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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2007

## Text

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1709%3A2. Public record. Not legal advice.