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

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## Record

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

## Text

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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
e
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

4

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)

19

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

1

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.

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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

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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).

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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)

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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).

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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)

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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).

10

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

11

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

12

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).

13

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

14

“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

15

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

16

[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

17

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

18

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.

19

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

20

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).

21

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

22

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

23

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.).

24

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,

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1914%3A2. Public record. Not legal advice.