Opposition Brief — Haynes v. Level 3 Communications, LLC, 127 S. Ct. 1372 (2007) (No. 06-638)

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No. 06-638

IN THE

Supreme Court of the United States

LINDA HAYNES,

Petitioner,

v.

LEVEL 3 COMMUNICATIONS, LLC,

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

a ee eee

BRIEF IN OPPOSITION

LisA HOGAN RICHARD P. BARKLEY*

Levet 3 Communications, LLC MEGHAN W. MaRrTINEZ

1025 Eldorado Boulevard BROWNSTEIN HyaTT

Broomfield, CO 80021 FARBER SCHRECK, P.C.

(720) 888-1000 410 17" Street, Suite 2200

Denver, CO 80202

(303) 223-1100

Counsel for Respondent

* Counsel of Record

206173 g

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

QUESTIONS PRESENTED

1. Whether a plaintiff can maintain a discrimination claim

based on an adverse employment action for which there is no

evidence of discrimination by submitting evidence about

untimely acts of discrimination? (This restates Question Nos.

2, 3, and 4 of Haynes’ Questions Presented (see Pet. at 1i).)

2. Whether the discriminatory acts of removing lucrative

business accounts from Haynes constituted adverse employment

actions that were subject to the time limitations in § 706(e)(1)

of Title VII, 42 U.S.C. § 2000e-5(e)(1)? (This restates No. 1 of

Haynes’ Questions Presented (see Pet. at 11).)

il

CORPORATE DISCLOSURE STATEMENT

PURSUANT TO SUPREME COURT RULE 29.6

Pursuant to Rule 29.6 of the Supreme Court Rules, Level 3

states the following:

Level 3 Communications, LLC’s parent company is Level

3 Communications, Inc. Because Level 3 Communications, LLC

is a limited liability company, it does not have any stock. Level

3 Communications, Inc. is the only publicly held company that

holds an ownership interest of 10 percent or more in Level 3

Communications, LLC.

In addition, no publicly held company owns 10 percent or

more of Level 3 Communications, Inc.’s stock.

' tit

TABLE OF CONTENTS

QUESTIONS PRESENTED ..............

CORPORATE DISCLOSURE STATEMENT

TABLE OF CONTENTS .ccccccccccedess

STATEMENT OF THE CASE ............

I. FACTUAL BACKGROUND .......

Haynes’ Allegations of Discrimination

“7 © © @

Haynes’ Complaints of Discrimination ..

Haynes’ Allegations of Retaliation ........

Haynes’ Medical Problems ..............

Fee ROGCON WO FOS oc nev c ccc cescess

Haynes’ EEOC Proceedings .... 05-65%:

iH. PROCEDURAL HISTORY . 2... ccc ccucss

Proceedings in the District Court .........

Proceedings in the Tenth Circuit .........

Page

Contents

REASONS FOR DENYING THE PETITION ..... 14

I. THE PETITION SHOU! D BE DENIED

BECAUSE NONE OF THE REASONS SET

FORTH IN RULE 10 FOR GRANTING A

PURER ALT LAR PERE. occ ccc cece 15

A. The Tenth Circuit’s Decision Is Not a

Departure from the Accepted and Usual

Course of Judicial Proceedings That

Requires an Exercise of the Court’s

Supervisory POW. .... 66. ccccceese 15

B. The Tenth Circuit’s Decision Does Not

Conflict With Decisions by Other

ARS AAs PR eee Cee rca rene Fa een 16

Il. THE PETITION SHOULD BE DENIED

BECAUSE THE TENTH CIRCUIT’S

DECISION IS CONSISTENT WITH, AND

MANDATED BY, BINDING PRECEDENT

REE Ce GPR ob n't Vic ec ce rhea 18

Il. HAYNES’ HYPOTHESIS THAT THE

TENTH CIRCUIT’S RULING WILL

CREATE A PARADE OF REPETITIOUS

EEOC FILINGS IS UNREALISTIC. ...... 20

IV. THIS CASE DOES NOT IMPLICATE AN

UNRESOLVED ISSUE IN MORGAN. ..... 22

Contents

Page

V. THEISSUES RAISED BY THE PETITION

ARE DIFFERENT FROM THOSE

PRESENTED BY LEDBETTER. ......... 23

SE 6 aE FEVERS KO Reese es 25

vi

TABLE OF CITED AUTHORITIES

Page

SUPREME COURT CASES

Del. Staie Coll. v. Ricks, 449 U.S. 250 (1980) .. 3, 13, 19

Lorance v. AT&T Techs., Inc., 490 U.S. 900 (1989)

rae ee rr ee em eh ee 3, 20

Machinists v. NLRB, 362 U.S. 411 (1960) ........ 20

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101

EE ib vb deen VES 6 Oa eee eee passim

Pa. State Police v. Suders, 542 U.S. 129 (2004) ... 4

United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977)

LERMAN EE OE CR ea eee 3, 13, 20

OTHER CASES

Belton v. City of Charlotte, 175 Fed. Appx. 641

ic Sanh dees e eee e ks cae Cee 16

Carpinteria Valley Farms Ltd. v. County of Santa

Barbara, 334 F.3d 796 (9th Cir. 2003) ....... 17,18

Law v. Continental Airlines Corp., 399 F.3d 330

Ga EE aac kee aban ce eeacewaaee 18

Vil

Cited Authorities

Page

Ledbetter v. Goodyear Tire & Rubber Co., 421 F.3d

1169 (11th Cir. 2005), cert. granted, US. __,

126 3. Ct. 2965 (June 26, 2006)... ec cece: passim

Stinnett v. Safeway, Inc., 337 F.3d 1213 (10th Cir.

PS EE EE Tee EEE eT re heer 22

STATUTES AND RULES

ee te rer ye pers rn ye Snr ee 17

AZ U.S.C. § 200GO-SHOMT) onc cccvcesceseucs oy ee

ek OE a ace 12%

ee Sas ee Se onde baa aed eae ee ieee 1, 15

ee Ge: Ue SOE Wade skeen ooesaun cee eeee ee 16

PU Es tes CEE snc Kae er daca en ede eee el 16

N.S Th. Be aa Sia aA eviews il

vili

Cited Authorities

Page

OTHER AUTHORITIES

Pet. for Writ of Cert., Ledbetter v. Goodyear Tire &

Rubber Co., No. 05-1074, 2006 WL 448515 (Feb.

Ce RR SMe o Mat hee nes s 23, 24

Tr. of Oral Argument, Ledbetter v. Goodyear Tire &

Rubber Co., No. 05-1074, 2006 WL 3422212

CPR BT OE 6k Scns cee ber ee eee 24

]

INTRODUCTION

“A petition for a writ of certiorari,” Supreme Court Rule

10 provides, “will be granted only for compelling reasons.”

Sup. Ct. R. 10. Rule 10 then gives three examples of the

“character of the reasons the Court considers” in deciding

whether to review a decision by a United States court of

appeals: When the decision (a) conflicts with a decision by

another United States court of appeals on an important matter;

(b) decides an important federal question in a way that

conflicts with a decision by a state court of last resort; or

(c) has so far departed, or sanctions a lower court’s departure,

from the “accepted and usual course of judicial proceedings”

as to “call for an exercise of this Court’s supervisory power.”

Sup. Ct. R. 10(a).

Petitioner, Linda Haynes (“Haynes”) does not contend

that any of the reasons given in Rule 10(a) for granting review

apply to her Petition for a Writ of Certiorari (“Petition”).

She does not argue that the decision by the United States

Court of Appeals for the Tenth Circuit conflicts either with a

decision “of another United States court of appeals on the

same important matter,” or with a decision on an important

federal question “by a state court of last resort. . . .” Sup. Ct.

R. 10(a). To the contrary, Haynes repeatedly argues that the

Tenth Circuit’s decision “follow[s] a line of cases from the

First Circuit and the D.C. Circuit... .” (Pet. at 20.) Similarly,

Haynes does not assert that the Tenth Circuit’s decision “so

far departed from the accepted and usual course of judicial

proceedings” as to require “an exercise of this Court’s

supervisory power....” Sup. Ct. R. 10. Rather, Haynes

acknowledges that the decision “is the natural consequence

of this Court’s abolition of the continuing violation theory”

in National Railroad Passenger Corp. v. Morgan, 536 U.S.

2

101 (2002). (Pet. at 13.) Thus, Haynes fails to advance any

reason why, under the reasons delineated in Supreme Court

Rule 10, the Petition should be granted.

In fact, Haynes does not appear to argue that the court of

appeals’ decision was erroneous under the principles

delineated in Morgan: that (a) “discrete discriminatory acts

are not actionable if time barred, even when they are related

to acts alleged in timely filed charges;” (b) “[e]ach

discriminatory act starts a new clock for filing charges

alleging that act;” (c) “[t]he existence of past acts and the

employee’s prior knowledge of their occurrence. . . does not

bar employees from filing charges about related discrete acts

so long as the acts are independently discriminatory and

charges addressing those acts are themselves timely filed;”

and (d) 42 U.S.C. § 2000e-5(e)(1) does not “bar an employee

from using the prior acts as background evidence in support

of a timely claim.” /d. at 113. Instead, Haynes argues that

application of these rules (particularly the rule that each

discriminatory act starts a new clock for filing charges) may

create a cumbersome procedure for filing charges before the

Equal Employment Opportunity Commission (“EEOC”).

Haynes’ argument, however, does not identify a realistic

concern, and thus provides no reason for granting the Petition.

Moreover, to the extent Haynes’ Petition can be read to

allege error in the Tenth Circuit’s decision, the Petition is

mistaken. The decision merely stands for three unremarkable,

and undeniably correct, propositions. First, a claim of

discrimination under Title VII and the ADEA is time barred

if all of the allegedly discriminatory acts on which they are

based occurred more than 300 days before the plaintiff filed

an EEOC charge. Second, an adverse employment action that

is not based on discrimination, but is predicated on neutral

3

factors, cannot provide the basis for a claim of discrimination

even if a plaintiff argues that it is related to earlier, untimely

acts of alleged discrimination. Third, untimely acts of

discrimination cannot, by themselves, provide a basis for

determining that a timely, neutral action is based on

discrimination.

These holdings are mandated by the plain language of the

limitations period set forth in § 706(e)(1) of Title VII,

42 U.S.C. § 2000e-5(e){1), and this Court’s holdings in Morgan,

536 U.S. 101; Lorance v. AT&T Technologies, Inc., 490 U.S.

900 (1989); Delaware State College v. Ricks, 449 U.S. 250

(1980); and United Air Lines, Inc. v. Evans, 43 U.S. 553 (1977).

Accordingly, because the Tenth Circuit’s decision is in accord

with decisions by this Court over the past 30 years, and because

Haynes has not identified any conflicting state or federal

decisions, the Petition presents no reason — let alone a

compelling reason — for certiorari review.

Despite the fact her Petition does not implicate any of the

“compelling reasons” for review identified in Rule 10(a), Haynes

advances two reasons why, she believes, the Court should grant

the Petition. First, Haynes notes that in Morgan, the Court left

open the question of whether the time for filing an EEOC charge

ran from the date of injury or the date of discovery. (Pet. at 27

(quoting Morgan, 536 U.S. at 115 n.7).) Haynes suggests that

this case might present an opportunity for deciding that open

question. (Pet. at 27.) Second, Haynes asserts that the issue

currently pending before this Court in Ledbetter v. Goodyear

Tire and Rubber Co., 421 F.3d 1169 (11th Cir. 2005), cert.

granted, US. __,126S.Ct.2965 (June 26, 2006), “is identical

to the evidentiary issue in the instant case,” and thus the “reasons

for granting the instant Petition” are as “compelling” as they

were in Ledbetter. (Pet. at 27 (emphasis omitted).)

4

These reasons likewise do not provide a basis for granting

the Petition. First, her suggestion that this case presents an

opportunity for the Court to decide whether the deadline for

filing an EEOC charge runs from the date of injury or the date

of discovery ignores the fact that the unlawful employment

practices at issue in this appeal occurred, and were discovered,

more than 300 days before she filed a complaint with the EEOC.

Thus, even if the Court were inclined to decide the issue

unresolved by Morgan, the Petition would not be an appropriate

vehicle for doing so. Second, Haynes is mistaken about the

similarity between this case and Ledbetter. Unlike the case in

Ledbetter, the issues raised in the Petition are not new ones.

They have already been decided by this Court. Accordingly,

there is no dispute, among the United States courts of appeals

or elsewhere, about their proper resolution.

STATEMENT OF THE CASE

I. FACTUAL BACKGROUND'

In March 1999, Haynes began working for Level 3 as a

“carrier sales manager.” (Pet. App. 4a.) Haynes, who had been

a top sales person for eight and a half years at a company named

IXE before coming to Level 3, was 44 years old at the time.

(Tenth App. 68, 2.)

1. As the Tenth Circuit noted, “Level 3 vehemently disputes many

of the facts alleged by Haynes.” (Pet. App. 7a n.6.) Because Haynes’

claims were dismissed in response to a summary judgment motion,

however, this Statement of Facts recites the evidence “in the light most

favorable to” Haynes. See Pa. State Police v. Suders, 542 U.S. 129, 134

(2004).

2. Facts set forth in the Appendix to the Petition are cited to as

“Pet. App.” Facts contained in the Appendix and Supplemental Appendix

filed with the court of appeals are cited to as “Tenth App.” or “Tenth

Supp. App.”

5

A few months after she started at Level 3, Haynes began

working for a manager named Paul Larson (“Larson”).

(Pet. App. 4a.) Initially, there were no problems with Haynes’

job performance, and her relationship with Larson, with

whom she had been friends prior to her employment at Level

3, was harmonious. (Tenth App. 190, 51-54.) During 1999,

and the first few months of 2000, Haynes received positive

job performance evaluations, and at least one raise. (Tenth

App. 445:3-25; id. 447:6-16.)

Haynes’ Allegations of Discrimination

In approximately August 1999, Larson hired a 31 year

old male employee named Shane Quivey (“Quivey”). (Pet.

App. 4a.) Haynes alleged that after Quivey was hired, Larson

began to discriminate against her based on her age, her sex,

and her disability. Among other things, (a) Haynes’ most

lucrative accounts were taken away from her and given to

Quivey, who engaged in improper workplace behavior (Pet.

App. 5a; Tenth App. 213:18-23; id. 218:4-22; id. 453:1-23;

id. 241:25-242:12); (b) Larson cancelled orders written by

Haynes and directed Level 3’s accounting department to

rewrite the orders under Quivey’s name (Tenth App. 227:17-

24); (c) Quivey was given favored treatment in the form of

assignments to the best leads and better pricing for his clients

(Pet. App. 5a); and (d) Larson bad mouthed Haynes to her

customers (Tenth App. 240:1-18). In May 2000, Larson

demanded that Haynes come to work against her doctor’s

advice, “only to have her attend a meeting at which she was

directed to give Quivey one of her most lucrative accounts.”

(Pet. App. 5a; Tenth App. 231:6-235:2.)

Haynes described this meeting as a “watershed moment,”

in which she came to the realization that Larson’s actions

6

against her were based on discrimination. (Pet. App. Sa.)

In Haynes’ words:

It was another watershed moment or a turning point

where I realized that it was going to be a turning

point, that Paul [Larson] knew that I knew what he

was doing... . And I rea zed at that moment that

possibly it could be like you could be — he could set

up an enemy camp separate from mine because he

wanted me just to go along with “this is how I treat

women; this is how I treat men;'I’m your boss; I can

do whatever I want and cover it up with top people,

and you’re challenging me; and now I know you

know what the truth is, and I’m going to continue to

do this.” There was that understanding after that

meeting.

(Tenth App. 239:12-24; see also Pet. App. 5a.) Haynes

“confronted Larson and accused him of discriminating against

her on the basis of her age and sex.” (Pet. App. 5a.)

Allegedly because of Larson’s discrimination, Haynes’ job

performance suffered. According to Haynes, her accounts

dwindled, while Quivey’s increased so that “[s]oon Quivey

had 90 accounts to plaintiff's 20 or 25. Plaintiff's accounts

were soon whittled down to three viah/e accounts (Pac Bell,

Mobile and SBC).”* (Tenth App. 185 421 (citations omitted).)

3. In her Factual Background, Haynes states that because of

Larson’s removal of accounts, “[s]oon the younger male newcomer

had ninety accounts to Haynes’ twenty or so.” (Pet. at 2, citing Pet.

App. 3la.) In her summary judgment papers in the district court,

Haynes averred: “Soon Quivey had 90 accounts to plaintiff's 20 or

25. See, Exhibit 1, p.42, 11.5-3. Plaintiff's accounts were soon whittled

down to three viah/e accounts (Pac Bell, Mobile and SBC). /d., at

p.96, ll.10-24.” (Tenth App. 185 421.)

7

In addition, Haynes’ work “shifted more and more toward the

clerical, and she complained about it.” (Tenth App. 185 418

(underlining omitted); see Pet. at 2.) By August 2000, Haynes

was Only meeting somewhere between seven and 13 percent

of her monthly sales quota. (Tenth App. 153; Pet. App. 6a &

n.4.)

Haynes’ Complaints of Discrimination

After Haynes realized she was being subjected to

discrimination by Larson, she brought several complaints to

Level 3. On May 18 or 19, 2000, Haynes complained to

Larson’s supervisor, Mike Lanza (“Lanza’’), that Larson was

discriminating against her by giving the benefits of her work

to somebody else. (Pet. App. 6a.) In July and August, 2000,

Haynes confronted Larson about his management style.

(Tenth App. 451:18-25.) On September 18, 2000, Haynes

sent an e-mail to Scott Roberts (“Roberts”), the Senior Vice

President of Sales and Marketing (and Lanza’s supervisor),

complaining of Larson’s management style and his failure

to support her. (Pet. App. 6a.) The following day, on

September 19, 2000, Haynes sent a second e-mail to Roberts

regarding Larson’s lack of management skills in

more detail and requesting help in resolving the

problem. She complained Larson’s lack of support

caused customers to get angry with her and, in

turn, caused Larson to reassign her accounts to

Quivey. She also alleged Larson had been

unavailable to help close deals, fell asleep during

customer calls and had told her not to discuss her

problems with upper management.

(Pet. App. 7a.)

8

On October 24, 2000, Roberts notified Haynes that he

had asked Randall Hester (“Hester”), a Director of Human

Resources, to meet with Haynes about her complaints. On

November |, 2000, Haynes spoke with Hester and, according

to her, told Hester both that she was being discriminated

against on the basis of sex and that two other women had

been victims of discrimination. (Pet. App. 7a-8a n.6.)

Haynes’ Allegations of Retaliation

Haynes contends that her complaints of discrimination

resulted in retaliation against her. The day after her second

e-mail to Roberts, for example, Larson and Lanza both issued

e-mails prohibiting employees from going over the heads of

supervisors. (Pet. App. 8a; Tenth App. 361.) On October 3,

2000, Larson issued Haynes a formal, written warning. (Pet.

App. 7a.) And on November 13, 2000, Larson placed Haynes

on a performance improvement plan (“PIP”). (Pet. App. 8a.)

The PIP identified five areas of improvement, including that

Haynes “[mlJeet or exceed 100% of [her] monthly sales quota

of $50,000 for December ’00 and January ’01.” (Pet. App.

8a.) The PIP also stated:

Il am looking for an immediate, dramatic and

sustained improvement in your sales performance.

Your objectives during your written warning

period must be met and a satisfactory level of sales

performance must be maintained in the future. It

is crucial you understand how important your

required improvement is, since continued

unsatisfactory sales performance will result in

further disciplinary action.

(Pet. App. 8a-9a; Tenth App. 153.)

Haynes’ Medical Problems

Nine days after Haynes was placed on a PIP, her physician

notified Level 3 that she was “placing [Haynes] on a 2 week

medical disability while she consults with specialists who

will determine the full time required for recovery.” (Pet. App.

9a; Tenth App. 158.) Five days later, Haynes took a medical

leave of absence. The first twelve weeks of the leave were

taken pursuant to the Family Medical Leave Act (“FMLA

Leave”). (Pet. App. 9a.) After that time, Haynes took

indefinite leave under Level 3’s medical leave policy. (/d.)

For the first portion of her FMLA Leave — through February

26, 2001 — Haynes received short-term disability (“STD”)

payments from Level 3’s third party insurance carrier. (/d.)

After the STD payments expired in February, 2001, Haynes

applied to the carrier for long-term disability benefits. (/d.)

Haynes’ application was denied by the carrier, and it was

undisputed that “Level 3 had no control or influence over

this decision.” (/d.)

Haynes’ medical problems included ulcerative colitis,

depression, and (according to Haynes) traumatic stress

syndrome. These conditions incapacitated Haynes completely

for at least nine months, and prevented her from performing

any job for at least a year. (Tenth App. 120, Il.1-7). Haynes

described her mental and physical state during and after the

time she was on medical leave as follows:

I was in a state, I could not work for nine months.

For the first time — I did have colitis before, but |

had incontinence, and I was having irritable

bowel. I was having colitis, bladder problems. I

was having panic attacks. | was having vertigo.

And | couldn’t eat anything without just laying

LO

on the floor in pain. I was absolutely not in the

condition to work.

** * *

I could not leave the house. I could not do

anything. My mom was feeding me with a straw.

I couldn’t even fax something with the initial

attorney | had. I stayed under the covers up to my

neck.

(Tenth App. 250:4-11; id. 113:18-22.)

The Reduction in Force

Haynes remained on medical leave until June 2001, when

Level 3 underwent one of several reductions in force (“RIF’’).

(Tenth App. 71, 24.) One of the criteria that triggered an

employee’s selection for the RIF was the employee’s

placement on a PIP. (Pet. App. 9a; Tenth App. 26, 192-93,

65-68.) Plaintiff was selected for the June 2001 RIF, as were

her supervisor, Larson, and his supervisor, Lanza. (Pet. App.

9a.) Roberts made the decision to discharge Haynes, Larson

and Lanza as part of the RIF. (Pet. App. 9a.)

Haynes’ EEOC Proceedings

On October 11, 2001, Haynes filed a charge of

discrimination with the EEOC. (Pet. App. 9a.) On June 27,

2002, at the request of Haynes, the EEOC issued a Notice of

Right to Sue letter. (Pet. App. 9a.)

11

II. PROCEDURAL HISTORY

Proceedings in the District Court

On September 4, 2002, Haynes filed this action against

Level 3. (Pet. App. 9a; Tenth App. 8-14.) In her First

Amended Complaint, filed on January 24, 2003, Haynes

alleged four claims: for violations of the ADA, the ADEA,

and Title VII, and for breach of contract. (Pet. App. 9a-10a.)

On May 5, 2003, Level 3 moved for summary judgment.

(Tenth Suppl. App. 1-2.) [n its supporting papers, Level 3

argued, among other things, that Haynes’ EEOC charge was

untimely. (Tenth App. 75 n.1.) On July 16, 2004, the district

court held a hearing on the timeliness of Haynes’ EEOC

charge. (Tenth Suppl. App. 3.) After the hearing, Haynes filed

a motion, which the court granted, to submit supplemental

authority on the issue of timeliness. (Tenth App. 536-99.)

On July 27, 2004, the district court granted summary

judgment on Haynes’ claims under the ADA, the ADEA, and

Title VII. (Tenth App. 600-19.) The court held that Haynes’

ADA, ADEA, and Title VII claims were barred because

Haynes had not filed a timely EEOC charge. (Tenth App.

613-17.) The court also declined to exercise supplemental

jurisdiction over Haynes’ breach of contract claim, dismissing

it without prejudice. (Tenth App. 617.)

Proceedings in the Tenth Circuit

Thereafter, Haynes filed an appeal to the Tenth Circuit,

which was submitted to the court on the briefs. On August 8,

2006, the Tenth Circuit issued an opinion affirming the

district court’s dismissal of Haynes’ federal-law claims,

finding that none of them was timely.

12

The court of appeals began by determining the threshold

question of what allegations “constituted an adverse

employment action because such ‘discrete discriminatory acts

are not actionable if time barred, even when they are related

to acts alleged in timely filed charges.’” (Pet. App. 11a.) The

court concluded that Haynes’ discharge was unquestionably

“an adverse employment action that occurred within the 300-

day statutory time period.” (Pet. App. 18a.) The Tenth Circuit

ruled that the discharge was not an unlawful employment

action, however, because “Haynes failed to present evidence

of a discriminatory intent, i.e., that her inclusion in the RIF

was based on her age, disability or sex, respectively, because

her termination was pursuant to a neutral policy.” (Pet. App.

18a-19a.) The court of appeals also concluded (in dicta)* that

under the circumstances of the case, the decision to place

Haynes on a PIP was not an adverse employment action.

(Pet. App. 15a-17a.) Finally, the court found that the removal

of Haynes’ accounts from her were adverse employment

actions. The Court stated:

Haynes clearly knew the discriminatory nature of

Larson’s actions and the resulting detrimental

effect to her income. Indeed, in a November 7,

2000 e-mail to Larson, Haynes stated, “this has

impacted my sales output tremendously, as the

work I’ve done is not reflected in my base and

someone else is now getting paid on much of my

work.” (R.VIII at 333.) Because each removal of

4. To be timely, the “discriminatory actions on which [Haynes]

base[d] her claims must have occurred on or after December 15,

2000.” (Pet. App. 10a.) Haynes was placed on the PIP on November

13, 2000. (Pet. App. 8a.) Therefore, Haynes’ placement on the PIP

was untimely, and the issue of whether it was an adverse employment

action was unnecessary to resolution of the case.

13

an account constituted an actionable adverse

employment action, Haynes was required to file

an administrative charge within 300 days of each

removal. She did not do so. Thus, any claim based

on the removal of her accounts is time-barred.

(Pet. App. 15a.)

The Tenth Circuit then considered whether Haynes had

filed a timely claim to the EEOC. The court ruled that Haynes

had not. Her allegations concerning removal of her accounts

alleged adverse employment actions based on discrimination,

but the actions were not timely. (Pet. App. 14a-15.) Her

allegation concerning her placement on the PIP neither

alleged an adverse employment action, nor was timely. (Pet.

App. 15a-17a.) And her allegation that she was unlawfully

terminated as part of a RIF alleged an adverse employment

action that was timely, but there was no evidence that it was

based on discrimination. (Pet. App. 23a.) Thus, none of the

actions were sufficient to sustain Haynes’ claims.

The court of appeals also rejected Haynes’ argument that

she could use the untimely discriminatory adverse

employment actions to establish that the timely adverse

employment action of termination was also discriminatory.

Based on its review of relevant case law, including this

Court’s decisions in Evans and Ricks, the Tenth Circuit held:

Haynes cannot use Larson’s alleged intent in

performing time-barred discrete actions resulting

in the PIP to attach discriminatory intent or

pretext to the termination decision based on a

neutral policy. Haynes has failed to allege any

discriminatory act on or after December 15, 2000.

14

She does not claim that a PIP was outside standard

operating procedure to address a failure to meet

her sales quota. Neither has she alleged that Level

3 did not even-handedly include all employees

currently on a PIP in the RIF. Finally, Haynes

presented no evidence that any other employees

on a PIP were spared in the RIF. As a result, she

fails to demonstrate any timely inference of

discrimination in her inclusion in the RIF.

(Pet. App. 23a-24a.)

REASONS FOR DENYING THE PETITION

Haynes’ Petition should be denied because she has not

presented any “compelling reasons” for review by this Court.

First, Haynes does not assert that any of the reasons set out

in Rule 10 for granting a petition apply here. Second, the

Tenth Circuit’s decision is not erroneous; to the contrary, it

is consistent with, based on, and mandated by, binding

decisions by this Court. Third, the parade of horribles

advanced by Haynes is merely the hypothetic construct of a

fertile imagination that does not identify any legitimate

concerns. And fourth, despite Haynes’ attempt to recast this

case, the Petition presents neither (a) an opportunity to

address unresolved issues in Morgan, nor (b) the same issues

that are before the Court in Ledbetter. Accordingly, Level 3

requests that the Court deny the Petition.

15

I. THE PETITION SHOULD BE DENIED BECAUSE

NONE OF THE REASONS SET FORTH IN RULE 10

FOR GRANTING A PETITION APPLIES HERE,

Rule 10(a) recognizes that certiorari review may be

appropriate when a court of appeals (a) issues a decision that

conflicts “with the decision of another United States court of

appeals on the same important matter,” (b) decides “an important

federal question in a way that conflicts with a decision by a

state court of last resort,” or (c) “has so far departed from the

accepted and usual course of judicial proceedings . . . as to call

for an exercise of this Court’s supervisory power. . . .” Sup. Ct.

R. 10(a). . . .” None of these situations exists here.

A. The Tenth Circuit’s Decision Is Not a Departure

from the Accepted and Usual Course of Judicial

Proceedings That Requires an Exercise of the

Court’s Supervisory Power.

In the Petition, Haynes does not contend that in deciding

this case the Tenth Circuit “so far departed from the accepted

and usual course of judicial proceedings . . . as to call for an

exercise of this Court’s supervisory power. .. .” Sup. Ct. R. 10.

Although Haynes asserts that this Court’s abolition of the

continuing violation theory in Morgan is “now being honed to

razor sharpness in the circuit courts” (whatever that means)

(see Pet. at 13), she does not suggest in any way that this

“honing” is jurisprudentially improper. Rather, she

acknowledges that the circuit court decisions are a “natural

consequence” of Morgan. (Pet. at 13.) Moreover, Haynes does

not suggest that the Tenth Circuit’s decision is an outlier by

rogue judges or a rogue court. Instead, she concedes that the

Tenth Circuit is following decisions by the First Circuit and the

D.C. Circuit “spawned by Morgan ... .” (Pet. at 20; 21-23.)

16

Haynes’ admissions that the Tenth Circuit’s decision in

this case was “spawned by,” and is a “natural consequence

of’ Morgan, disclose what appears to be Haynes’ true

objective in petitioning for certiorari review: she is unhappy

with this Court’s rejection in Morgan of the continuing

violation doctrine. But because Haynes has not petitioned

this Court to review and reverse Morgan, and because she

has advanced no explanation why Morgan was wrongly

decided, her unhappiness cannot be ameliorated here.

B. The Tenth Circuit’s Decision Does Not Conflict

With Decisions by Other Courts.

Haynes also does not contend that the Tenth Circuit’s

decision conflicts on an important matter with another federal

court or a state court of last resort. To begin with, Haynes

indisputably does not assert a conflict with a decision by a

state court in another case because in the Petition she does

not cite to a single state court decision, conflicting or

otherwise.’ Further, with one exception, Haynes’ Petition

does not assert a conflict between the decision here and any

decision by another court of appeals. Indeed, the opposite is

true. Haynes argues in the Petition that the Tenth Circuit “is

following a line of cases from the First Circuit and the D.C.

Circuit spawned by Morgan, supra.” (Pet. at 20 (emphasis

added).) Moreover, as shown below (see infra § I), this “line

of cases” — which also includes decisions by the Fourth

Circuit Court of Appeals, see, e.g., Belton v. City of Charlotte,

175 Fed. Appx. 641, 653 (2006) (unpublished) — is entirely

consistent with prior decisions by this Court.

5. Because no state court decision is at issue, the guidelines

for certiorari review in Rule 10(b) and (c) are irrelevant. See Sup.

Ct. R. 10(b), (c).

17

Haynes points to a single case — Carpinteria Valley

Farms Ltd. v. County of Santa Barbara, 334 F.3d 796 (9th

Cir. 2003) — that she claims “differ[s] from the First, Tenth

and D.C. Circuits....” (Pet. at 23.) Haynes’ attempt to

manufacture a conflict with Carpinteria fails. In Carpinteria,

which applied Morgan to claims brought under 42 U.S.C.

§ 1983, the plaintiff brought an action against Santa Barbara

County based on the County’s imposition of conditions for

issuance of a building permit. The court of appeals found

that all of the discrete acts alleged by the plaintiff to be

unconstitutional were time barred “except for those

pertaining to the polo field application and the residential

building permit... .” /d. at 800. Thus, the court held, the

“time barred acts could not be used to support [the plaintiffs]

claims of constitutional violations,” although they could be

used “as evidence to establish motive and to put his timely

filed claims in context.” /d. at 800-01.

The Ninth Circuit’s statement in Carpinteria — that

although evidence of untimely acts are not admissible to

support a plaintiff's claim that timely acts were

unconstitutional (or discriminatory), such evidence may be

admissible for other evidentiary purposes, such as showing

motive and context (in Morgan’s words, “as background

evidence”) — is entirely consistent with the Tenth Circuit’s

decision here. In fact, the Tenth Circuit’s decision echoes

the Ninth Circuit’s statement; the Tenth Circuit expressly

declares that “Haynes is correct that the statute [§ 706(e)(1)

of Title VII} does not ‘bar an employee from using prior acts

as background evidence in support of a timely claim.’”

(Pet. App. 13a (emphasis added) (quoting Morgan, 536 U.S.

at 113).) Thus, there is no conflict or inconsistency with, or

difference between, the Ninth Circuit’s analysis in

Carpinteria and the Tenth Circuit’s decision in this case.

18

Il, THE PETITION SHOULD BE DENIED BECAUSE

THE TENTH CIRCUIT’S DECISION IS

CONSISTENT WITH, AND MANDATED BY,

BINDING PRECEDENT FROM THIS COURT.

Although Haynes’ assertion of a conflict between this

case and Carpinteria is incorrect, it illuminates Haynes’

failure to grasp the key fact on which the Tenth Circuit’s

decision turned. In this case, all of the acts for which there

was evidence of discrimination, or from which discrimination

could be inferred, occurred more than 300 days before Haynes

filed her EEOC charge. Accordingly, unlike the case in

Carpinteria — where untimely acts were relevant (as_

background evidence and to show motive) to the plaintiff's

timely claims — here there were no timely claims. And, as

the Tenth Circuit ruled, untimely discrimination “cannot

suffice [to establish a timely claim] where [there is] no

evidence of discriminatory purpose other than (at most) [a]

discrete time-barred decision. ...” (Pet. App. 13a-14a

(quoting Law v. Continental Airlines, Corp., 399 F.3d 330,

334 (D.C. Cir. 2005).

The Tenth Circuit’s holding in this regard is not novel.

In Morgan, this Court stated that “[t]he existence of past

acts ... does not bar employees from filing charges about

related discrete acts so long as the acts are independently

discriminatory and charges addressing those acts are

themselves timely filed.” Morgan, 536 U.S. at 113 (emphasis

added). Thus, under Morgan, evidence of untimely

discriminatory acts is admissible only to support timely

claims that are independently discriminatory. Such

evidence cannot, through some prejudicial form of alchemy,

transform a timely neutral act for which there is no evidence

of discrimination into a timely discriminatory act.

19

Further, this Court’s recognition that untimely acts of

discrimination are not admissible absent a timely, and

independently discriminatory, claim did not originate with

Morgan. In its discussion, the Morgan Court described Ricks,

449 U.S. 250, as standing for the following propositions:

[A plaintiff] could not use a termination that fell

within the limitations period to pull in the time-

barred discriminatory act. Nor could a time-barred

act justify filing a charge concerning a

termination that was not independently

discriminatory.

Morgan, 536 U.S. at 113 (emphasis added). Yet that is

precisely what Haynes attempted to do in this case. Level 3

engaged in multiple acts, all of which were untimely when

Haynes filed her EEOC charge, that were allegedly based on

discrimination. Level 3 also engaged in a single act —

terminating Haynes’ employment as part of a RIF — that was

timely but which, according to the undisputed evidence, was

not based on discrimination. Because the termination alone

could not sustain Haynes’ claims (as it was not unlawful,

see 42 U.S.C. § 2000e-5(1)), Haynes sought to use the time

barred acts of discrimination to “justify filing a charge

concerning [her] termination” even though it was not

“independently discriminatory.” Accordingly, the Tenth

Circuit did not err in rejecting Haynes’ attempted misuse of

the untimely acts of discrimination. In fact, Morgan and Ricks

mandated that result.

Moreover, Morgan and Ricks are not the only cases in

which this Court has addressed the issue raised in the Petition.

Over the past 30 years, this Court has consistently rejected

efforts to infer discrimination based on timely neutral acts

20

solely because of the existence of time-barred, discriminatory

acts. In Evans, for example, this Court held that “a challenge to

a neutral system may not be predicated on the mere fact that a

past event which has no present legal significance has affected

[the current employment status] even if the past event might at

one time have justified a valid claim against the employer.”

Evans, 431 U.S. at 560. And in Lorance, the Court emphasized,

in a statement that is directly applicable here, “‘[W]here a

complaint based upon that earlier event is time-barred, . . . to

permit the event itself’ ‘to cloak with illegality that which was

otherwise lawful’ ‘in effect results in reviving a legally defunct

unfair labor practice.’” Lorance, 490 U.S. at 911 (quoting

Machinists v. NLRB, 362 U.S. 411 (1960)).

Iii, HAYNES’ HYPOTHESIS THAT THE TENTH

CIRCUIT’S RULING WILL CREATE A PARADE

OF REPETITIOUS EEOC FILINGS IS

UNREALISTIC. _

As shown previously, Haynes does not argue that the Tenth

Circuit’s decision is contrary to other federal court decisions.

Instead, she attacks the decision indirectly by asserting that it

will create havoc in the EEOC. According to Haynes, the adverse

employment actions that she suffered before her discharge —

the removal of individual sales accounts and similar incidents

— were “petty actions” (Pet. at 11), that did not “significantly

affect[]” her compensation. (Pet. at 3.) But because the Tenth

Circuit in the decision created a “portentous” rule that an

employee has to file a formal charge with the EEOC in response

to each petty action, “[a]ll manner of work charges” will have

to be “complained about immediately, or the victim [will] be

forever time-barred from doing so.” (Pet. at 12.) For example,

Haynes contends, under the Tenth Circuit’s decision, she would

have to file a series of 70 lawsuits, one for each time an account

was removed. (/d.)

21

Haynes’ argument completely misses the mark. The Tenth

Circuit’s ruling does not require Haynes to file 70 lawsuits.

What it does require is for Haynes to file at least one claim

with the EEOC no more than 300 days after a discriminatory

adverse employment action occurs. And it is undisputed that

Haynes never did that.

Nor does Haynes provide any legitimate reason for her

failure. Although Haynes attacks the Tenth Circuit’s

conclusion that the loss of accounts by her was an adverse

employment action — as mentioned, in the Petition Haynes

characterizes the loss of accounts as “petty” — her position

has changed dramatically. In the trial court, Haynes testified

under oath in her deposition that the discrimination she

suffered — all of which occurred more than 300 days before

she filed an EEOC charge — caused such severe emotional

and physical injuries that she was completely incapacitated

for at least nine months. According to Haynes’ sworn

deposition testimony, because of the discrimination against

her, she suffered traumatic stress syndrome, ulcerative colitis,

irritable bowel syndrome, depression, and incontinence.

Haynes also testified that she suffered panic attacks, and

vertigo. And, in Haynes’ own words, “I could not leave the

house. I could not do anything. My mom was feeding me

with a straw. I couldn’t even fax something with the initial

attorney I had. I stayed under the covers up to my neck.”

(Tenth App. 250:4-11; id. 113:18-22.)

Further, although Haynes now contends that she did not

suffer any real economic loss from the discrimination she

suffered (in Level 3’s view, a highly ironic admission), the

evidence she presented in the trial court suggests otherwise.

(See Pet. App. 14a-15a.) But even if that were not the case,

are not simply limited to

eee

adverse employment actions

Nm

ho

monetary losses in the form of wages or benefits.”” Stinnett v.

Safeway, Inc., 337 F.3d 1213, 1217 (10th Cir. 2003) (citation

omitted). An action that results in “significantly different

responsibilities” — such as Haynes’ allegation that as her accounts

were withdrawn and her responsibilities were “shifted more and

more toward the clerical,” (Tenth App. 185 118) — can constitute

an adverse employment action. /d. Accordingly, it cannot

seriously be disputed that Haynes’ allegations and testimony

demonstrate that the court of appeals correctly concluded that

the discriminatory acts by her supervisor against her constituted

“adverse employment actions.” ° Under these circumstances, the

law requires that she file a charge with the EEOC within 300

days after the discrimination occurred. Because she did not, her

claim was barred.

IV. THIS CASE DOES NOT IMPLICATE AN

UNRESOLVED ISSUE IN MORGAN.

Haynes next contends that the Court should grant the

Petition to address an issue that was left open in Morgan:

Whether the time for filing an EEOC charge begins to run

“when the injury occurs as opposed to when the injury

reasonably should have been discovered.” (Pet. at 27

(quoting Morgan, 536 U.S. at 115 n.7).) But this case does

not present that issue. It is undisputed that Haynes had

discovered that she was being subjected to discrimination

6. Further, Haynes appears confused about the significance of

the court of appeals’ ruling. If the court had found, as Haynes appears

to suggest it should have, that the loss of accounts did not constitute

an adverse employment action based on discrimination, that finding

would not have altered the court’s determination that the termination

of her employment was not based on discrimination. It would only

mean that Haynes had not suffered an adverse employment action

based on discrimination, and thus she had no claim to bring.

23

more than a year before she filed her EEOC charge.

(Pet. App. 22a n.13.) Indeed, Haynes described in detail the

“watershed moment,” when she realized that Larson

was discriminating against her. (Tenth App. 239:12-24;

see also Pet. App. 5a.) Moreover, Haynes complained of

discrimination on numerous occasions outside the limitations

period to the Human Resources Department, to her supervisor

(Larson), to her supervisor’s supervisor (Lanza), and even to

the supervisor of her supervisor’s supervisor (Roberts). (See

supra pp. 7-8.) Thus, regardless whether an occurrence or

discovery test is applied, Haynes’ own testimony demonstrates

that her claims were untimely.

V. THE ISSUES RAISED BY THE PETITION ARE

DIFFERENT FROM THOSE PRESENTED BY

LEDBETTER.

Finally, Haynes argues that the Court should grant the

Petition because a case that presents the identical issues as the

Petition — Ledbetter -- is currently pending before the Court.’ In

truth, however, Ledbetter is inapposite to the issues raised in

the Petition. The issue in Ledbetter concerns the applicability

of the continuing violation doctrine to a pay disparity case.*

7. Haynes’ argument that the supposed similarity betwcen the

issues raised in the Petition and the pending issues presented by

Ledbetter creates a compelling reason for granting the Petition is

counterintuitive. If the identical issucs are pending before this Court,

there would appear to be no “compelling reasons” for granting

certiorari in this case. Nonetheless, the issues in the Petition are not

“identical” to the issues in Ledbetter.

8. The Petition for Writ of Certiorari in Ledbetter set forth

the following Question Presented:

(Cont’d)

24

The continuing violation doctrine provides that when a series

of acts are performed by an employer, “so long as one act falls

within the charge filing period, discriminatory and retaliatory

acts that are plausibly or sufficiently related to that act may also

be considered for the purposes of liability.” Morgan, 536 US.

at 114. Thus, in Ledbetter, it was “undisputed that Ledbetter’s

claim is not entirely time barred.” Ledbetter, 421 F.3d at 1180.

Here, by contrast, it is equally undisputed that Haynes’ claim

is entirely time barred. Every act for which evidence of

discrimination existed occurred more than 300 days before

Haynes filed her EEOC charge. Thus, the continuing violation

doctrine is not at issue. Indeed, what Haynes is seeking is not

reinstatement of the continuing violation doctrine. She is seeking

a significant expansicn of that doctrine.

Second, this case does not involve a pay disparity issue.

And in Ledbetter, the Petitioner argued that pay disparity issues

should be treated differently from other recurring causes of

action. (See Tr. of Oral Argument, Ledbetter v. Goodyear Tire

& Rubber Co., No. 05-1074, 2006 WL 3422212, at *4 (Nov.

27, 2006) (“JUSTICE KENNEDY: But are you saying that the

rule for paycheck decisions is different than the rule for other

(Cont’d)

Whether and under what circumstances a plaintiff may

bring an action under Title VII of the Civil Rights Act of

1964 alleging illegal pay discrimination when the disparate

pay is received during the statutory limitations period, but

is the result of intentionally discriminatory pay decisions

that occurred outside the limitations period.

Ledbetter v. Goodyear Tire & Rubber Co., No. 05-1074, 2006 WL

448515, at *i (Feb. 17, 2006).

25

sorts of decisions? MR. RUSSELL: It — it is.”’). In fact, this

case does not even involve recurring identical acts. Rather, the

acts here, although similar, are not identical. Thus, this is not a

recurring discrimination case, but merely a case alleging multiple

acts of discrimination. Haynes’ attempted reliance on Ledbetter,

therefore, is misplaced.

CONCLUSION

As shown above, Haynes has not identified any

compelling reasons for granting the Petition. Accordingly,

Level 3 requests that the Petition be denied.

Respectfully submitted,

LisA HOGAN RICHARD P. BaRKLEY*

LEVEL 3 CoMMUNICATIONS, LLC MEGHAN W. MarTINEZ

1025 Eldorado Boulevard BROWNSTEIN Hyatt

Broomfield, CO 80021 FARBER SCHRECK, P.C.

(720) 888-1000 410 17" Street, Suite 2200

Denver, CO 80202

(303) 223-1100

Counsel for Respondent

* Counsel of Record