Opposition Brief — Keri v. Board of Trustees of Purdue University, 127 S. Ct. 1331 (2007) (No. 06-852)

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fo FILED |

Ne. 06-588 JAN 18 2007 |

E CLERK |

In The SUPREME COURT, U.S. |

Supreme Court of the Anited States

GABE KERI,

Petitioner,

BOARD OF TRUSTEES OF

PURDUE UNIVERSITY,

Respondent.

On Petition For Writ Of Certiorari To

The United States Court Of Appeals

For The Seventh Circuit

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

OF RESPONDENT BOARD OF

TRUSTEES OF PURDUE UNIVERSITY

ANTHONY S. BENTON

Counsel of Record

STUART & BRANIGIN LLP

300 Main Street, Suite 900

P.O. Box 1010

Lafayette, IN 47902-1010

Telephone: 765-423-1561

Facsimile: 765-742-8175

Counsel for the Respondent,

Board of Trustees of Purdue University

COCKLFE LAW RRIEF PRINTING CO : 800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Petitioner frames four (4) questions in his Petition for

Writ of Certiorari. Respondent objects to the consideration

of Petitioner’s Questions II and IV because Petitioner

failed to raise any arguments regarding Respondent's

alleged violation of its own policies and procedures or the

consideration of “after-acquired evidence” in the proceed-

ings below.

The district court and the court of appeals agreed that

Respondent was entitled to the entry of summary judg-

ment on Petitioner’s claim of race and national origin

discrimination under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e, et seg., because Petitioner failed

to establish a prima facie case under the standards articu-

lated by this Court in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973).

Respondent submits that the question presented is:

Whether Petitioner has presented a compelling reason

for this Court’s review of the judgment below.

PARTIES TO THE PROCEEDINGS AND RULE 29.6

STATEMENT

The parties to the proceeding are Petitioner, Dr. Gabe

Keri, and Respondent, The Trustees of Purdue University.

The Trustees of Purdue University is the body corporate

established by the State of Indiana to govern the conduct

of students, faculty, employees, and others while upon the

property owned, used, or occupied by Purdue University,

Indiana’s land-grant institution of higher education. See

IND. CODE § 20-13-1-1-2(a)(2).

The Petition for Writ of Certiorari’s caption indicates

that there are additional respondents to the Petition.

There are not. Petitioner originally filed suit against “John

Does 1 through 5,” but the district court entered summary

judgment on each individual claim, and Petitioner did not

appeal the district court’s determination in that regard.

(Pet. App. at la, fn.1).

ili

TABLE OF CONTENTS

QUESTION PRESENTED

PARTIES TO THE PROCEEDINGS AND RULE 29.6

STATEMENT

TABLE OF CONTENTS

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

SUMMARY OF REASONS FOR DENYING THE

PETITION

STATEMENT OF THE CASE

I. Statement of Facts

II. Course of Proceedings

REASONS FOR DENYING THE PETITION

I. The Seventh Circuit conducted a proper de novo

review of the summary judgment record

II. The courts below properly applied McDonnell

Douglas

Petitioner did not argue that an alleged

violation of an internal policy permitted a fa-

vorable pretext inference, and the courts below

did not resolve that question

Respondent did not offer “after-acquired”

evidence as support for its decision not to re-

appoint Petitioner, and the courts below did

not consider “after-acquired” evidence in their

Title VII analysis

CONCLUSION

TABLE OF AUTHORITIES

CASES

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

Bio v. Federal Express Corp., 424 F.3d 593 (7th Cir.

Byrd v. Ronayne, 61 F.3d 1026 (1st Cir. 1995)

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

City of Springfield v. Kibbe, 480 U.S. 257 (1987)

Conward v. The Cambridge School Committee, 171

F.3d 12 (1st Cir. 1999)

Dandy v. United Parcel Service, 388 F.3d 263 (7th

Cir. 2004)

Graham v. Long Island R.R., 230 F.3d 34 (2d Cir.

Hiatt v. Rockwell Intern. Corp., 26 F.3d 761 (7th

Cir. 1994)

McDonald v. Santa Fe Trail Transp. Co., 427 U.S.

273 (1976)

McDonald v. Vill. of Winnetka, 371 F.3d 992 (7th

Cir. 2004)

McDonnell Douglas v. Green, 411 U.S. 792

2, 12, 13, 17, 21

McMillian v. Svetanoff, 878 F.2d 186 (7th Cir. 1989)

Mitchell v. Toledo Hospital, 964 F.2d 577 (6th Cir.

Neuren v. Adduci, Mastriani, Meeks & Schill, 43

F.3d 1507 (D.C. Cir. 1995)

TABLE OF AUTHORITIES -— Continued

Patterson v. Avery Dennison Corp., 281 F.3d 676

(7th Cir. 2002)

Pennsylvania Dep't. of Corrections v. Yeskey, 524

U.S. 206 (1998)

Pivirotto v. Innovative Systems, Inc., 191 F.3d 344

(3d Cir. 1999)

Radue v. Kimberly-Clark Corp., 219 F.3d 612 (7th

Cir. 2000)

Raytheon Co. v. Hernandez, 540 U.S. 44 (2003)

Stanback v. Best Diversified Products, Inc., 180

F.3d 903 (8th Cir. 1999)

Texas Dept. of Comm. Affairs v. Burdine, 450 U.S.

BAG (1GB1) ..ccccececcerseorvovevecevesvoceossevevevceeseveosossoreeuseseees 17, 21

FED. R. Civ. P. 15(c)

FED. R. Civ. P. 56

Feb. R. Civ. P. 56(e)

Baw Cv, BR. 10. ...ccocccoccsssesccssevcvevevenscccccoocnesveserssecssosoossvsvosnees 1

STATUTES

IND. CODE § 20-13-1-1-2(a)(2)

28 U.S.C. § 1254(1)

42 U.S.C. § 1981

42 U.S.C. § 1985(3)

42 U.S.C. § 1986 3,10, 11, 13

42 U.S.C. § 2000e, et Seq. ........ceseeeesseceeeeeeeeeeentereceseerecerseneeses i

OPINIONS BELOW

Respondent states that Petitioner’s citation of the

opinions below is accurate, but states that the copies of

Petitioner’s Petition for Writ of Certiorari that were served

upon Respondent did not include a separate reproduction

of the Opinion and Order of the-district court in an “App.

B” as described by Petitioner. The court of appeals’ deci-

sion, which is reproduced in the Appendix, incorporates

the “Opinion and Order” of the district court, in its en-

tirety, beginning at p. 5a of the Appendix and continuing

through p. 88a of the Appendix.

JURISDICTION

The judgment of the court of appeals was entered on

August 14, 2006. The Petition for Writ of Certiorari was

filed on November 12, 2006, and was docketed on Decem-

ber 20, 2006. Petitioner invokes the jurisdiction of this

Court under 28 U.S.C. § 1254(1).

SUMMARY OF REASONS

FOR DENYING THE PETITION

Respondent, The Trustees of Purdue University,

(“Respondent”) respectfully requests that this Court deny

the Petition for Writ of Certiorari seeking review of the

Seventh Circuit Court of Appeals’ opinion affirming the

district court’s entry of summary judgment in Respon-

dent’s favor on Petitioner’s Title VII claim of race and/or

national origin discrimination. Petitioner has presented no

compelling reason for this Court to grant his Petition. Sup.

Cr. R. 10.

Petitioner argues that the Seventh Circuit and the

district court each misapplied the standard of review

mandated by Fen. R. Civ. P. 56. (Pet. at 9, 10). His argu-

ment can fairly be summarized as, “I lost, therefore the

courts below misapplied the standard of review.” His

conclusory argument borders on the frivolous and is

manifestly unworthy of this Court’s review.

Similarly, Petitioner claims that the courts below

misapplied the familiar McDonnell Douglas analytical

framework when they found that none of Petitioner’s

seventeen (17) allegedly comparable employees were

similarly situated. (Pet. at 15-17). Petitioner claims that

the alleged misapplication presents a split among the

circuits. (Jd.). However, he never articulates how the

instant case conflicts with cases decided in other circuits.

This case is fully consistent with the cases cited by Peti-

tioner, and this question is, again, unworthy of Supreme

Court review.

Petitioner’s contention that the courts below failed to

give the Petitioner the benefit of a favorable pretext

inference is not properly before this Court because the

courts below held that Petitioner failed to establish a

prima facie case of discrimination. Resolution of the

pretext question is, therefore, unnecessary to sustain the

judgment below. Moreover, Petitioner never argued in the

proceedings below that an alleged violation of a policy

occurred, or that any alleged violation was evidence of

pretext. The Petition does not contain any explanation of

Petitioner’s contention that Respondent violated its

internal policies or procedures. Thus, he has waived this

Court’s consideration of this question.

Petitioner’s question regarding the propriety of the

consideration of “after-acquired evidence” is also raised for

the first time in this Petition. This Court should deem the

issue waived by Petitioner because he never argued that

the formal internal complaints filed against him were

improperly considered by the decision-makers who decided

not to reappoint him. Indeed, the evidence is undisputed

that the non-reappointment decision was made before any

formal internal complaint was lodged against Petitioner.

The result of the University’s investigation of the formal

complaints was that Petitioner was assigned to a 100%

research position, and was not permitted to use his Uni-

versity office for the remainder of his employment.

The University’s investigation of the formal com-

plaints was considered by the courts below because the

Petitioner asked the courts below to consider the investi-

gation. Petitioner’s complaint includes allegations that the

investigation constituted a conspiracy to deprive him of his

civil rights under 42 U.S.C. §§ 1985(3), 1986. (Pet. App. at

51la-52a). Petitioner designated evidence regarding the

investigation, and argued that the investigation created a

triable issue of fact because the investigator could not

substantiate each of the claims filed against Petitioner.

Respondent did not rely upon evidence acquired by

the University investigator after the decision to not

reappoint Petitioner was made to determine that Peti-

tioner was not meeting Respondent’s legitimate employ-

ment expectations, and neither court below relied upon

“after-acquired” evidence in rendering its judgment.

In sum, Petitioner has plainly failed to carry his

burden of demonstrating that there is a compelling reason

for this Court to grant the Petition. Petitioner simply

seeks another review of the summary judgment record,

which the courts below unanimously found insufficient to

establish a prima facie case of discrimination. The judg-

ment of the courts below is fully consistent with the

precedent of this Court, and with the decisions of the

federal circuit courts of appeals. Accordingly, the Petition

should be denied.

STATEMENT OF THE CASE

I. Statement of Facts’

Petitioner is a former tenure-track Assistant Professor

employed by Respondent,’ in the School of Education at

Indiana University Purdue University at Fort Wayne

(“IPFW”). (Pet. App. at 2a). Petitioner was employed by

Respondent on a series of academic-year appointments,

beginning in May, 2000. (Pet. App. at 2a). Petitioner’s

appointment was reviewed annually by his immediate

supervisor, William Utesch (“Utesch”), the Acting Chair of

Professional Studies and Director of the School of Education

' Petitioner provides the Court with a “Statement of Facts,” which

he contends are “drawn from the Petitioner’s Brief filed on his behalf in

the Seventh Circuit Appeal.” (Pet. at 2). Petitioner provides no citation

(and attaches no support) for any alleged “fact.” Respondent's statement

of facts relies upon the district court’s recitation of undisputed material

facts.

* The Petition for Writ of Certiorari’s caption indicates that there

are additional respondents to the Petition. There are not. Petitioner

also filed suit against “John Does 1 through 5,” but the district court

entered summary judgment on each individual claim, and Petitioner

did not appeal the district court’s-determination in that regard. (Pet.

App. at 1a, fn.1).

Counseling Program and by Roberta Wiener (“Wiener”),

Dean of the School of Education. (Pet. App. at 2a).

Petitioner’s performance was reviewed annually. (Pet.

App. at 2a). Utesch reviewed materials submitted by

Petitioner and evaluated Petitioner by assessing his

performance in three (3) areas: teaching, research and

service. (Pet. App. at 26a). Satisfactory performance in all

three areas assured Petitioner’s reappointment for the

following academic year. (Pet. App. at 26a-27a). The

materials submitted by Petitioner were also reviewed by

Wiener, who conducted her own evaluation of Petitioner’s

record and performance and made her own recommenda-

tion regarding reappointment. (Pet. App. at 27a). Wiener’s

evaluation was conducted with reference to the same

criteria (i.e. teaching, research and service) as Utesch’s

evaluation. (Pet. App. at 27a).

Both Utesch’s and Wiener’s recommendations and the

faculty member’s materials were then forwarded to the

Vice Chancellor of Academic Affairs, Susan Hannah

(“Hannah”). (Pet. App. at 27a). Hannah then reviewed the

materials and made her own recommendation regarding

reappointment, using the same criteria as Wiener and

Utesch. (Pet. App. at 27a). Hannah, in turn, forwarded all

of the recommendations and the materials submitted by

Petitioner to the Chancellor, Michael Wartell (“Wartell”).

(Pet. App. at 27a). Wartell then made his final decision

based upon his review of the materials, and the recom-

mendations of Utesch, Wiener and Hannah.° (Pet. App. at

? Petitioner’s statement that Wartell makes a “recommendation”

for reappointment based upon the recommendations of Utesch, Wiener

and Hannah is a misstatement of fact. As Chancellor of IPFW, Wartell’s

decision is final and is based upon the recommendations of Utesch,

(Continued on following page)

27a). Wartell used the same criteria for evaluation as

Utesch, Wiener and Hannah. (Pet. App. at 27a).

Petitioner received satisfactory evaluations and was

reappointed for academic year 2001-2002 in January,

2001, about six months after he began working at IPFW.

(Pet. App. at 28a). Petitioner was next evaluated eight

months later, received a second satisfactory evaluation,

and was reappointed for the 2002-2003 academic year.

(Pet. App. at 29a).

Beginning in November, 2001, Utesch began receiving

student complaints regarding Keri’s classroom behavior.

(Pet. App. at 30a). Utesch continued to receive complaints

from students in both oral and written form throughout

the 2002-2003 academic year. (Pet. App. at 32a). From

November, 2001 through March, 2003, Utesch received six

written complaints, two from students who requested that

their identity be protected. (Pet. App. at 33a).

The complaints received by Utesch ranged from a

report that Petitioner failed to supervise his practicum

students to allegations of inappropriate classroom discus-

sions and included reports of “gay bashing” and “sexual

harassment of a student.” (Pet. App. at 32a). Utesch met

with Petitioner to discuss the student complaints and

initially believed that the situation would improve over

time. (Pet. App. at 30a-31a),

Petitioner was next evaluated for reappointment

beginning in March, 2002. (Pet. App. at 3la). His 2002

evaluation noted that Petitioner responded to student

Wiene: and Hannah, as well as Wartell’s own review of the materials.

(App. at (7a).

concerns and student feedback, and has sought multiple

measures of his teaching to further his growth. (Pet. App.

at 3la). Petitioner was reappointed for the 2003-2004

academic year on April 4, 2002. (Pet. App. at 32a).

During the academic year 2002-2003, student com-

plaints against the Petitioner continued and Utesch

referred some students to Dean Wiener. (Pet. App. at 33a).

In March, 2003, two graduate student employees ap-

proached Utesch and reported that Petitioner engaged in

inappropriate behavior and had made inappropriate

comments to one of them during her interview for a clinic

manager position. (Pet. App. at 32a). The inappropriate

comments included Petitioner’s recommendation that one

of the student employees “wear tighter pants.” (Pet. App.

at 32a). The same student employee also reported that

Petitioner told her that “she didn’t have big enough boobs

because she was white.” (Pet. App. at 32a). The inappro-

priate behavior also included Petitioner’s “gay bashing”

and disparaging Catholics during classroom lectures. (Pet.

App. at 32a). The student employee complaints were

consistent with those that Utesch received from other

students in other classes taught by Petitioner. (Pet. App.

at 32a).

Based on the complaints received by Utesch from a

number of students, including the most serious allegations

received from the two graduate student employees in

spring 2003, Utesch recommended non-reappointment of

Petitioner for the 2004-2005 academic year. (Pet. App. at

33a). Utesch concluded that student complaints were

becoming more serious and that Utesch’s prior meetings

with Petitioner did not result in the desired change in

behavior. (Pet. App. at 33a). Utesch noted that Petitioner

continued to be productive in research and service, but

that his teaching was unsatisfactory. (Pet. App. at 34a).

Wiener also referenced the several student complaints

received regarding the Petitioner in her 2003 evaluation of

his performance. (Pet. App. at 35a-36a). She noted that

Human Resources and the Affirmative Action officer had

been notified of this problem. (Pet. App. at 35a-36a).

Wiener expressed reservations but recommended Peti-

tioner’s reappointment due to his record of productive

research and publications, and his verbal commitments to

change his teaching deficiencies. (Pet. App. at 36a).

Hannah met with both Wiener and Utesch to discuss

their recommendations and reviewed all available docu-

mentation. (Pet. App. at 36a). Hannah considered all

materials submitted to her by Utesch, Wiener and Peti-

tioner.’ (Pet. App. at 36a). Hannah recommended non-

reappointment on April 3, 2003. (Pet. App. at 36a-37a).

Chancellor Wartell concurred with Hannah’s recommenda-

tion. (Pet. App. at 37a). Petitioner was informed on or

about April 3, 2003 that he would not be re-appointed for

the 2004-2005 academic year. (Pet. App. at 37a).

Shortly after Petitioner received notice that he had

not been recommended for re-appointment, two graduate

student employees, Suzanne Swinehart (“Swinehart”) and

Virginia Hartman (“Hartman”) each filed a formal complaint

under University procedures,’ claiming that Petitioner had

* Petitioner’s statement that “Dr. Hannah was not willing to look

at any documentation Dr. Keri had brought” is a misstatement of the

facts in the summary judgment record. (Pet. at 3-4).

* Petitioner states that Hartman, Swinehart and Utesch “met and

discussed” Dr. Keri at an off-campus racquet club, and that “(such

conduct is also contrary to IPFW’s policies and procedures.” (Pet. at 4).

(Continued on following page)

harassed and discriminated against them in both the

classroom and in their work as graduate assistants. (Pet.

App. at 39a-40a). Respondent investigated the complaints

in accordance with applicable University procedures. (Pet.

App. at 40a). Elaine Blakemore (“Blakemore”) was as-

signed to investigate the complaints and interviewed all

parties to the complaints, Utesch and two other faculty

members in the Department of Education Studies, and

thirteen (13) student and former student witnesses from

the Counselor Education Program from four different

academic “cohorts.” (Pet. App. at 40a).

Blakemore issued a detailed, written report with

extensive findings on both complaints. (Pet. App. at 40a).

She noted that Petitioner was bewildered by all of the

allegations against him and that several witnesses were

supportive of Petitioner. (Pet. App. at 40a-41a). She also

reported that several students supported and corroborated

Swinehart and Hartman’s complaints. (Pet. App. at 41a-

42a).

Blakemore found that Petitioner subjected Hartman

to a hostile educational environment and that Petitioner

harassed Hartman. (Pet. App. at 42a). Blakemore did not

conclude that Petitioner discriminated against Hartman

Petitioner’s allegation is a misstatement of fact to the extent it is read

to imply that Hartman, Swinehart and Utesch convened at the racquet

club for the purpose of discussing Petitioner. Petitioner’s allegation that

the meeting “is contrary to IPFW’s policies and procedures” is false, and

finds no support in the summary judgment record.

* A “cohort” is defined as a group of students who begin the

program during a given academic year and progress through the

program together as a group. Petitioner’s statement that the investiga-

tor “spoke to a cohort” (i.e. a “single” cohort) of current and former

students is a misstatement of fact. (Pet. at 4).

on the basis of Hartman’s gender, noting that other stu-

dents, both male and female, were treated similarly by

Petitioner. (Pet. App. at 42a). Blakemore ultimately

concluded that Swinehart failed to timely file her Com-

plaint, but noted that Swinehart’s complaints were consis-

tent with reports of other students whom Blakemore

interviewed. (Pet. App. at 42a).

Blakemore recommended that Respondent honor

Petitioner’s academic year 2003-2004 appointment, but

that it remove Petitioner from his teaching and practicum

supervision responsibilities. (Pet. App. at 43a). Blakemore

presented her report to the University’s Committee on

Equity, and the Panel concurred with the Blakemore’s

findings and conclusions. (Pet. App. at 43a). Chancellor

Wartell assigned Petitioner to a 100% research position

during the 2003-2004 academic year. (Pet. App. at 43a).

II. Course of Proceedings

Petitioner filed an eight-count complaint in the

district court, asserting national origin and race discrimi-

nation claims under Title VII, a Title VII retaliation claim,

claims under 42 U.S.C. §§ 1981, 1985(3) and 1986 and

pendent state law claims of intentional and negligent

infliction of emotional distress, negligent supervision and

common law wrongful termination. (Pet. App. at 5a, 47a).

Petitioner alleged that the decision to not reappoint him

was discriminatory and/or in retaliation for his reporting

alleged discriminatory admission practices by Respondent.

(Pet. App. at 5a). He further alleged that Respondent’s

investigation of Swinehart’s and Hartman’s internal

complaints against him were discriminatory and part of a

conspiracy to smear Petitioner’s reputation. (Pet. App. at

6a).

Respondent moved for summary judgment on each of

Petitioner’s claims, arguing that, as an instrumentality of

the State of Indiana, Respondent was immune from

liability for damages on Petitioner’s claims under 42

U.S.C. §§ 1981, 1985(3) and 1986. (Pet. App. at 48a).

Respondent also argued that the claims against Defen-

dants identified only as “John Does 1 through 5,” were

barred by the statute of limitations, and Petitioner had no

right to amend his Complaint, such that the individual

claims would relate back under Federal Rule of Civil

Procedure 15(c). (Pet. App. at 48a). Finally, Respondent

argued that an entity could not conspire with itself, and,

therefore, Petitioner’s § 1985(3) claim failed, as a matter of

law. (Pet. App. at 52a).

Respondent argued that Petitioner failed to establish

a prima facie case of discrimination or retaliation under

Title VII. (Pet. App. at 56a-57a). Specifically, Petitioner

was unable to establish that he was meeting his em-

ployer’s legitimate employment expectations, and could

not identify similarly situated comparators who were

treated more favorably than he was treated under the

same or similar circumstances. (Pet. App. at 60a). Respon-

dent also argued the existence of a legitimate, non-

discriminatory reason to not reappoint Petitioner. (Pet.

App. at 63a-64a). Finally, Respondent argued that it was

entitled to the entry of summary judgment on each of

Petitioner’s pendent state law claims. (Pet. App. at 75a).

Petitioner responded to Respondent’s motion for sum-

mary judgment, and argued that he was meeting Respon-

dent’s legitimate expectations. (Pet. App. at 64a). Petitioner

also identified seventeen (17) allegedly comparable em-

ployees. (Pet. App. at 61a). Finally, he submitted that

Respondent’s legitimate, non-discriminatory reason for his

non-reappointment was pretextual because the allegations

of his inappropriate behavior and ineffective teaching had

no basis in fact.’ (Pet. App. at 64a).

Respondent replied to Petitioner’s brief in opposition

and moved to strike several exhibits designated as “evi-

dence” in support thereof.” Petitioner opposed Respon-

dent’s Motion to Strike, and Respondent replied to

Petitioner’s opposition. The district court struck fifteen

(15) of the seventeen (17) challenged statements, and

Petitioner appealed nine (9) of these rulings. The Seventh

Circuit upheld each evidentiary ruling, and Petitioner

does not seek review of these decisions in his Petition.

(Pet. App. 1la-23a).

The district court entered summary judgment on each

of Petitioner’s claims against the Respondent. (Pet. App. at

48a). Using the analytical framework articulated by this

Court in McDonnell Douglas, the district court concluded

that Petitioner failed to establish the existence of a prima

’ Petitioner never argued that Respondent improperly considered

“after-acquired evidence,” or that the Respondent violated its policies

and procedures such that the Court should find a reasonable juror could

infer that its stated reasons for non-reappointment were pre-textual.

Respondent submits that Petitioner has, therefore, waived the review of

these questions in this Court.

® For example, Respondent moved to strike the deposition testi-

mony of Josue Njock Libii, including his testimony that Utesch

“berated” Dr. Keri with inappropriate comments about minorities. That

testimony was stricken by the District Court, and Petitioner did not

appeal this ruling. (Pet. App. at 19a-21a). Petitioner’s reliance on the

stricken testimony in his Petition for Writ of Certiorari is improper.

(Pet. at 3).

facie case of discrimination. (Pet. App. at 57a-63a). Specifi-

cally, the district court found that Petitioner failed to

establish the existence of similarly situated comparators,

and further failed to establish that he was meeting Re-

spondent’s legitimate employment expectations. (Pet. App.

at 63a-64a, 73a-75a). The district court further found that

Respondent offered a legitimate, non-discriminatory reason

for not reappointing Petitioner, and that Petitioner failed

to establish that the reason was pretextual. (Pet. App. at

75a).

Petitioner appealed the district court’s entry of sum-

mary judgment on his claims under 42 U.S.C. §§ 1981,

1985(3) and 1986, as well as his Title VII discrimination

claim and three of his four pendent state claims. Petitioner

did not appeal the entry of summary judgment on his Title

VII retaliation claim or his common law wrongful dis-

charge claim. (Pet. at 1-20).

The Seventh Circuit Court of Appeals affirmed the

district court in all respects, and adopted the “excellent

opinion of the district court.” (Pet. App. at 4a). The Sev-

enth Circuit expressly noted that Petitioner “had failed to

establish his prima facie case.” (Pet. App. at 3a) (citing

McDonnell Douglas v. Green, 411 U.S. 792, 802-04 (1973).

The court of appeals noted that “there was a lack of

evidence that [Petitioner] was meeting the legitimate

expectations of his employer.” (Pet. App. at 3a). The court

of appeals further agreed that the summary judgment

record lacked evidence of similarly situated employees who

were treated more favorably. (/d.).

The appellate court recognized that Petitioner identi-

fied seventeen (17) allegedly comparable employees but

noted that the record established that many of them were

“subject to a separate and entirely different means of

oversight, making them dissimilarly situated.” (Pet. App.

at 4a). Regarding the remainder of the allegedly compara-

ble employees, the Seventh Circuit noted that “there was

no evidence whatsoever that the remaining employees

were supervised by Utesch or had ever stood accused of

the same or similar conduct as [Petitioner].” (Pet. App. at

4a). Finally, the Seventh Circuit noted that Petitioner

“failed to explain when and how the non-tenured employ-

ees were treated more favorably than he.” (Pet. App. at

4a).

REASONS FOR DENYING THE PETITION

The Seventh Circuit conducted a proper de

novo review of the summary judgment record.

Petitioner argues that the Seventh Circuit “misap-

plied the standard of review dictated by the Supreme

Court” because it “did not weigh all of the evidence and

considered only the evidence favoring the District Court's

findings.” (Pet. at 8). Essentially, Petitioner argues that he

designated some evidence, and the Seventh Circuit af-

firmed the entry of summary judgment. Thus, Petitioner

argues that the Seventh Circuit misapplied the standard

of review. Petitioner’s argument regarding a purported

“misapplication” of the standard of review amounts to

nothing more than question-begging, and offers no compel-

ling reason for this Court’s review.

Petitioner’s contention that the courts below “took all

of Respondent’s assertions as factual and clearly appear to

draw all reasonable inferences adversely to Petitioner” is

demonstrably false. (Pet. at 10). Each court concluded that

Petitioner failed to establish two essential elements of his

prima facie case. (Pet. App. at 3a, 36a, 38a). Each court

found that Petitioner failed to carry his burden of estab-

lishing the existence of similarly situated employees. (Pet.

App. at 4a, 36a). Each court found that Petitioner failed to

establish that he was meeting Respondent’s legitimate

employment expectations for employees. (Pet. App. at 4a,

38a).

The Seventh Circuit plainly conducted a de novo

review in this case. It studied the evidence, and concluded

that Petitioner simply failed to carry his burden of estab-

lishing a prima facie case of discrimination. FED. R. Civ. P.

56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Although the moving party bears the initial burden of

demonstrating the absence of a genuine issue of material

fact, there is no requirement that the movant negate his

opponent’s claim. Celotex Corp., 477 U.S. at 323. Once the

moving party has met its initial burden, the nonmovant

may not rest on conclusory allegations but instead must

come forward with evidence demonstrating the existence

of each element of its case upon which it would bear the

burden of proof at trial. FEp. R. Civ. P. 56(e). Evidence

which is merely colorable or not significantly probative

cannot defeat summary judgment. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249-50 (1986).

Petitioner’s allegation that the Seventh Circuit failed

to conduct an appropriate review is wrong. That court

reviewed Petitioner’s evidence regarding the existence of

seventeen (17) allegedly similar employees. It noted that

the district court “thoroughly and carefully analyzed all

the issues raised in this appeal” and adopted the district

court’s order. (Pet. App. at 4a). The district court reviewed

this evidence and concluded that “the similarities of which

[Petitioner] speaks relate only to his ability to teach, write,

and research. The [Petitioner] has not shown similarities

as to the status of these individuals or any detrimental

conduct, similar to his own, that they were accused of.”

(Pet. App. at 35a). The district court carefully compared

each of the seventeen current and former employees to

Petitioner and concluded that none were comparable to

Petitioner. (Pet. App. at 36a).

The appellate panel unanimously agreed with the

district court’s assessment of the evidence, noting that:

[W]hile [Petitioner] points to 17 current and for-

mer members of the faculty as similarly situated,

many of them were tenured professors. Due to

their tenure, they were subject to a separate and

entirely different means of oversight, making

them dissimilarly situated. In other words, there

was no evidence they were subject to the same

standards for promotion and tenure as [Peti-

tioner], nor was there any evidence the tenured

professors were supervised by the same indi-

viduals. As for the remaining employees, there

was simply too little evidence regarding their re-

spective situations. For example, there was no

evidence whatsoever the remaining employees

were supervised by Utesch or had ever stood ac-

cused of the same or similar conduct as [Peti-

tioner’s]. Finally, [Petitioner] failed to explain

when and how the non-tenured employees were

treated more favorably than he.

(Pet. App. at 4a).

The appellate court conducted a proper de novo review

in this case. The mere fact that it adopted the “thorough

and careful” analysis of the district court does not indicate

otherwise. Petitioner’s bald statement that he “presented

abundant evidence, which raised numerous issues of

material fact, that the Court of Appeals did not consider in

the course of its de novo review,” (Pet. at 10) is demonstra-

bly false, and utterly unworthy of this Court’s review.

II. The courts below properly applied McDonnell

Douglas.

Petitioner argues that the courts below erred in

concluding that Petitioner failed to establish the existence

of similarly situated employees who were treated more

favorably under the same or similar circumstances. (Pet.

at 16). He contends that this failure creates a conflict

among the circuits, and is contrary to this Court’s prece-

dent as articulated in McDonnell Douglas and McDonald

v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976). (Pet. at

16). Specifically, Petitioner claims that the “Seventh

Circuit misapplied the appropriate standard” articulated

by those cases by “holding that there was no evidence that

other employees were accused of the same or similar

conduct” as Petitioner was accused of (i.e. ineffective

teaching and inappropriate classroom behavior). (Pet. at

16). Petitioner carries the burden of establishing the

existence of similarly situated comparators. McDonnell

Douglas v. Green, 411 U.S. 792, 804 (1973); see also Texas

Dept. of Comm. Affairs v. Burdine, 450 U.S. 248, 258-59

(“McDonnell Douglas teaches that it is the plaintiff’s task

to demonstrate that similarly situated employees were not

treated equally.”).

Petitioner feebly claims that the judgment below

creates a conflict between the Seventh Circuit and the

First Circuit.’ He claims that the First Circuit does not

require that a plaintiff establish that allegedly comparable

employees were accused of the same or similar conduct. He

cites Conward v. The Cambridge School Committee, 171

F.3d 12 (1st Cir. 1999), as support for this argument.

Conward is not different from this case.-It held that a

Title VII plaintiff failed to establish the existence of

similarly situated employees. Jd. at 22. For example, the

court noted that a white teacher accused of shoving a

student was not comparable to an African-American

teacher accused of sexual harassment. Jd. at 21 (“The

improper use of physical force, on one hand, and sexual

harassment, on the other hand, are qualitatively different

infractions.”) The First Circuit noted that “in terms of

comparative evidence, similarity, rather than identicality,

provides the essential requirement for an analogy.” Id. at

21-22. Still, the court found that the evidence offered by

the plaintiff for comparison failed the test because he

could not establish that others had been charged with the

same or similar conduct. Jd. at 22.

Petitioner’s Title VII claim failed for the same reason

in the proceedings below. Both courts concluded that

Petitioner failed to establish that any of his proffered

comparators were charged with the same or similar

conduct as Petitioner. (Pet. App. at 4a). For example, he

claimed that a faculty member was accused of plagiarism,

but was retained by the University. (Pet. App. at 63a). The

courts below each found plagiarism is not the same, or

° Petitioner actually claims that the judgment below conflicts with

eight (8) other circuits. Respondent is unsure of Petitioner's basis for

this allegation because he cites to only a single case from the First

Circuit.

even arguably similar, to harassment, and that Petitioner

failed to carry his burden of establishing the existence of a

similarly situated employee who was treated more favora-

bly than he was treated under the same or similar circum-

stances. (Pet. App. at 60a).

Just like the First Circuit in Conward, the Seventh

Circuit holds that in order for a plaintiff to establish the

existence of a similarly situated employee or “comparator,”

the plaintiff must show that both employees were sub-

jected to the same standards, had the same supervisor,

and engaged in similar conduct. Bio v.. Federal Express

Corp., 424 F.3d 593, 597 (7th Cir. 2005); McDonald v. Vill.

of Winnetka, 371 F.3d 992, 1002-03 (7th Cir. 2004) (citing

Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617 (7th Cir.

2000)). To successfully establish a comparator, the plaintiff

must show that there is someone who is directly comparable

to him in all material respects. Patterson v. Avery Dennison

Corp., 281 F.3d 676, 680 (7th Cir. 2002). A plaintiff’s

subjective beliefs alone cannot create triable issues of fact

to preclude summary judgment. See McMillian v. Svetan-

off, 878 F.2d 186, 190 (7th Cir. 1989); see also Dandy v.

United Parcel Service, 388 F.3d 263, 273 (7th Cir. 2004)

and Hiatt v. Rockwell Intern. Corp., 26 F.3d 761, 771 (7th

Cir. 1994).

The foregoing standards are fully consistent with the

standards for similarity articulated by this Court. McDon-

ald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 274 (1976)

(holding that decision to terminate employees who were

charged with the same crime was a legitimate decision,

but the criterion “must be ‘applied alike to members of all

races’”), The standards applied in this case are in har-

mony with other judicial circuits. Graham v. Long Island

R.R., 230 F.3d 34, 39 (2d Cir. 2000) (confirming that a Title

VII plaintiff must establish the existence of comparators

who are similar in all material respects); Pivirotto v.

Innovative Systems, Inc., 191 F.3d 344, 359 (3d Cir. 1999)

(holding that a similarity analysis should focus upon

performance criteria and qualificetions identified by the

employer as its reasons for the adverse action); Stanback

v. Best Diversified Products, Inc., 180 F.3d 903, 910 (8th

Cir. 1999) (when “different decision-makers are involved

two decisions are rarely similarly situated in all relevant

respects”); Byrd v. Ronayne, 61 F.3d 1026, 1033 (1st Cir.

1995) (noting that comparators must establish similarity

of performance, qualifications and conduct); Neuren v.

Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1514

. (D.C. Cir. 1995) (similarity means that all of the relevant

aspects of the employment situation were nearly identi-

cal); Mitchell v. Toledo Hospital, 964 F.2d 577, 593 (6th

Cir. 1992) (holding that similarity required the plaintiff to

establish that he had the same supervisor, was subject to

the same standards and exhibited the same conduct as the

putative comparators).

Consistent with the foregoing standards, the courts

below found that Petitioner’s proffered comparators were

different in three (3) material ways. First, Petitioner and

the majority of the alleged comparators were not subject to

the same standards for continued employment. (Pet. App.

at 4a, 35a). Second, Petitioner and he majority of his

proffered comparators did not report t the same supervi-

sors. (Pet. App. at 4a, 35a). Third, there was no evidence

that e:.y of the proffered comparators were accused of even

arguably similar conduct to Petitioner. (Pet. App. at 4a, 35a).

Moreover, the Seventh Circuit noted that Petitioner “failed to

explain when and how the non-tenured employees were

treated more favorably than he.” (Pet. App. at 4a).

The standards articulated in the Seventh Circuit were

properly applied in this case. The judgment in this case is

fully consistent with the precedent of this court. The

proceedings below do not create a circuit split. This Court

should deny the Petition.

III. Petitioner did not argue that an alleged viola-

tion of an internal policy permitted a favorable

pretext inference, and the courts below did not

resolve that question.

Petitioner devotes a good deal of his Petition to the

question of whether he was entitled to a pretext inference

based on his allegation that Respondent violated its

internal policies and procedures. This question is not

properly before this Court. First, as shown above, the

courts below each concluded that Petitioner failed to

establish a prima facie case of discrimination. (Pet. App. at

3a, 57a-63a). This conclusion requires the entry of sum-

mary judgment in Respondent’s favor on Petitioner’s Title

VII claim. McDonnell Douglas, 450 U.S. at 802; see also

Burdine, 450 U.S. at 254 n.7 (the phrase prima facie case,

as used in McDonnell Douglas means “the establishment

of a legally mandatory, rebuttable presumption”). Peti-

tioner’s inability to establish a prima facie case renders

the McDonnell Douglas burden shift and pretext analysis

unnecessary. Raytheon Co. v. Hernandez, 540 U.S. 44, 50

n.3 (2003); McDonnell Douglas, 450 U.S. at 802.

Moreover, Petitioner never argued below that an

alleged violation of an internal policy created an inference

that Respondent’s reasons for not reappointing Petitioner

(i.e. his ineffective teaching and inappropriate behavior)

were pretextual. As the district court noted, in response to

Respondent’s legitimate. non-discriminatorv reason for its

decision, Petitioner “offer[ed] a two-paragraph rebuttal

insisting that [Respondent’s] stated reasons have no basis

in fact.” (Pet. App. at 64a). The district court found that

Petitioner “failed to present enough evidence to cast the

shadow of pretext on the [Respondent’s] explanation why

he was not reappointed.” (Pet. App. at 64a).

Petitioner did not argue that a violation of a policy

permitted a pretext inference, and neither court below

addressed this question. Therefore, this Court should

decline to review the question in this case. Pennsylvania

Dep't of Corrections v. Yeskey, 524 U.S. 206, 212-13 (1998)

(“Where issues are neither raised before nor considered by

the Court of Appeals, this Court will not ordinarily consider

them.’”) (citations omitted); City of Springfield v. Kibbe, 480

U.S. 257, 258 (1987) (“Iwle ordinarily will not decide ques-

tions not raised or litigated in the lower courts”).

Petitioner has presented no compelling reason for this

Court to review the question of whether a violation of an

internal policy creates a pretext inference. The Petitioner’s

failure to establish a prima facie case renders the pretext

question unnecessary to sustain the judgments below.

Moreover, the courts below did not address the question of

an alleged policy violation because Petitioner did not make

this argument in the proceedings below. Therefore, the

question is not properly before this court.

IV. Respondent did not offer “after-acquired” evidence

as support for its decision not to reappoint Peti-

tioner, and-the courts below did not consider “after-

acquired” evidence in their Title VII analysis.

Petitioner correctly states that “Respondent’s ultimate

decision not to reappoint Petitioner was final prior” to the

filing of formal complaints of harassment against Peti-

tioner by two graduate student employees.” (Pet. at 17).

He claims the judgment below conflicts with precedent of

this Court, and with the rulings of other federal circuits to

the extent that the courts relied upon “after-acquired”

evidence to support the entry of summary judgment. This

question amounts to nothing more than a red herring, and

this Court should not grant the Petition to- review this

issue.

Respondent did not rely upon evidence acquired after

its decision not to reappoint Petitioner to support that

decision. Rather, Respondent established that complaints

received by Utesch and Wiener over two academic years

prior to the decision proved Petitioner’s failure to meet

legitimate employment expectations. (Pet. App. at 30a-

34a). Because Respondent offered no such evidence,

neither court below addressed the issue of “after-acquired”

evidence. Thus, this Court should not address the question

of “after-acquired” evidence in this case. Yeskey, 524 U.S.

at 212-13 (1998); Kibbe, 480 U.S. at 258.

Evidence of the University’s investigation of the

formal complaints were before the courts below because

Petitioner claimed that the University’s investigation

evinced a conspiracy to deprive him of his civil rights, and

because Petitioner claimed that the investigation estab-

lished that Respondent negligently supervised and trained

its employees, a claim sounding in tort under Indiana's

common law. (Pet. App. at 30a-32a, 46a). Petitioner raised

His claim that both formal complaints were untimely is false.

(Pet. App. at 18). Only Swinehart’s complaint was filed after the 120-

day time period expired. (/d.).

the issue in his Complaint, and never moved to strike or

otherwise limit the Court’s review of the evidence regard-

ing the University’s investigation. Most important, Peti-

tioner simply has no basis to argue to this Court that

either court below impermissibly relied upon “after-

acquired” evidence.

Petitioner’s fourth question is not properly before this

Court. The Court should deny the Petition.

CONCLUSION

Petitioner has not established any compelling reason

for the court to grant his Petition. Therefore, Respondent

respectfully requests that the Petition be denied.

Respectfully submitted,