Petition for Writ of Certiorari — Schramm v. LaHood

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Supreme Court, U.S.

FILED

No. vs-__09 - 440 OCT 12 2009

OFFICE OF THE CLERK

3u Whe Wikiam K. Suter, Clerk

Supreme Court of the Anited States

WILLIAM H. SCHRAMM,

Petitioner,

RAY LAHOOD,

Secretary, Department of Transportation,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

S. JOSEPH SCHRAMM

Counsel of Record

1129 Charles Street

McKees Rocks, PA 15136

(412) 331-6709

BEVERLY WOODALL

254 Hays Road

Pittsburgh, PA 15241

(724) 260-0525

ERIC SCHNAPPER

University of Washington

School of Law

P.O. Box 353020

Seattle, WA 98195

(206) 616-3167

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

(1) Rule 3(cX1XB) of the Federal Rules of

Appellate Procedure provides that a notice of appeal

must “designate the judgment, order, or part thereof

being appealed.” The first Question Presented is:

What standard governs the determination as

to whether a judgment or order has been

adequately designated under Rule 3(cX1)\B)?

(2) In Robinson v. Shell Oil Corp. this Court

held that the anti-retaliation provision of Title VII of

the 1964 Civil Rights Act protects former employees.

The second Question Presented is:

Is the standard governing when an employer

is vicariously liable for unlawful retaliation

under Title VI different when the victim is a

former employee rather than a current em-

ployee?

PARTIES

The parties to this case are set out in the caption.

TABLE OF CONTENTS

Page

CRE FIO dvs ss csstscesernicisicniaitenensaaees 1

IE iiisinhccinteisnnvanitsscnceinsidvasienchansnpectenicias 1

Rule and Statutory Provision Involved ................. 2

IE n.. cnconcictiseinenscinteanen een 2

(1) The Retaliatory Assault............................00. 2

(2) The Retaliatory Disqualification................. 4

Reasons for Granting The Writ......................-..-.--- 13

I. There Is An Important Inter-Circuit Con-

flict Regarding The Order-Designation Pro-

vision of Rule 3(cX1XB) of The Federal

Rules of Appellate Procedure ...................... 13

A. The Decision of The Sixth Circuit Is

In Conflict With Decisions In Ten Cir-

EELS SS An Se aT ME S.A SEM ae 13

B. The Sixth Circuit. Standard Is In-

consistent With The Decisions of This

CEES iii cncccccsdnenscdueinconnden tases. 29

C. This Case Is An Excellent Vehicle for

Deciding The Question Presented ........ 33

Il. The Court of Appeals Has Decided An

Important Question of Federal Law Which

Should Be Resolved by This Court.............. 35

LT AEE EVE IO Le | A AN EE, 38

TABLE OF CONTENTS — Continued

Appendix

Opinion of the Court of Appeals for the Sixth

Civoutt,, BE mrcin 29, DOOD anccncecoccvicscscsccscccsccesscscose

Order of the District Court for the Northern

District of Ohio, February 11, 2008...................

Order of the District Court for the Northern

District of Ohio, March 25, 2008 .......................

Order of the Court of Appeals for the Sixth

Circuit Denying Rehearing and Rehearing

Be Ng BU BG Oe cartvecerenevevicesersccvesetsnvessess

Rule and Statutory Provision Involved ................

Employment Discrimination Cases in The Su-

preme Court of the United States Brought

By Former Employees...................-...--sseesecseeeeees

TABLE OF AUTHORITIES

Page

CASES

Ametex Fabrics, Inc. v. Just In Materials, Inc.,

DO Hae Bk Ce GeE BI cic ncsnsssvcceiscciencvncsscsccsess 20

Bancroft Nav. Co. v. Chadade S.S. Co., 349

Be Ne I. I ca esse capsdeensberendevcsntensaccameiis 20

Becker v. Montgomery, 532 U.S. 757 (2001) ........ 13, 31

Benn v. First Judicial Dist. of Pa., 426 F.3d 233

NG I iscsi sarignnnigaiannensteledusmbunbeibaenccets 20

Blockel v. J.C. Penney Co., Inc., 337 F.2d 17

I oir riccctnicesanatanndeidunasdinhssaiiaseienamsnein 18

Bogart v. Chapell, 396 F.3d 548 (4th Cir. 2005) ........ 22

Bowles v. Russell, 551 U.S. 205 (2007) ...................... 13

Burlington Northern & Santa Fe Railway Co.

ee BE, | a 37

Canady v. Crestar Mortgage Corp., 109 F.3d

2 SR RE a Ne a 22

Chamorro v. Puerto Rican Cars, Inc., 304 F.2d

BN SII aiinincrisdscnndcteunnapssednansencontanecteuasaeessasats 18

Cooper v. American Automobile Ins. Co., 978

F.2d GO2 (10th Cin. 1992) ......0.cccccssccccovevccccssseseccseses 26

Cornelius v. Home Comings Financial Network,

Inc., 293 Fed. Appx. 723 (11th Cir. 2008)............... 27

CTC Imports and Exports v. Nigerian Petro-

leum Corp., 951 F.2d 573 (3d Cir. 1991)........... 20, 21

Dang v. C.I.R., 359 F.3d 204 (4th Cir. 2001).............. 22

TABLE OF AUTHORITIES — Continued

Denver & Rio Grande Western RR. Co. v. Union

Pacific RR. Co., 119 F.3d 847 (10th Cir. 1997)....... 26

ELCA Enterprises, Inc. v. Sisco Equipment

Rental & Sales, Inc., 53 F.3d 186 (8th Cir.

Tie la di caiaisa a canieetistanins 24

Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d

oo sce hatewecunsiiaaasmnaeessondovess 20

FirsTier Mortgage Co. v. Investors Mortgage

Insurance Co., 498 U.S. 269 (1991)...... 13, 31, 32, 33

Fleming v. Evans, 481 F.3d 1249 (10th Cir.

a ila ncaa ila a wk adceubionehdiognanees 25

Foman v. Davis, 371 U.S. 178 (1962)............. 13, 30, 31

Foretich v. American Broadcasting Companies,

198 F.3d 270 (D.C.Cir. 1999).....................2cee22ee 27, 28

Friou v. Phillips Petroleum Co., 948 F.2d 972

oa ld Sareea on eunmaibgabinibleenouens 23

Hartsell v. Duplex Products, Inc., 123 F.3d 766

I tices iahcahemasennnl 22

Hawkins v. City of Farmington, 189 F.3d 695

YE ER ES pee nea Sea 24

Independent Petroleum Ass’n of America uv.

Babbitt, 235 F.3d 588 (D.C.Cir. 2001) .................... 28

Isert v. Ford Motor Co., 461 F.3d 756 (6th Cir.

SNA Hache hiNiad dadiirenaduniimaecusesaekdnatonsmngauenéies 10, 11, 15

Jones v. Nelson, 484 F.2d 1165 (10th Cir. 1973)........ 26

KH Outdoor, LLC v. Trussville, City of, 465 F.3d

eS I SR iicrinennenssaccadescsscvascecnacserssessesseos 27

TABLE OF AUTHORITIES — Continued

Page

Karuse v. Bennett, 887 F.2d 362 (2d Cir. 1989).......... 20

Kicklighter v. Nails by Jannee, Inc., 616 F.2d

ee a os caeecanaseunteestaneoumnneuesal 27

Kotler v. American Tobacco Co., 981 F.2d 7 (1st

Cir, 1992) ooo... eoccceccccesecececeececssseseseseseesesesececeeeeees 18, 19

Kotler v. American Tobacco Co., 926 F.2d 1217

Ce ee asmeusaiaaammaninates 19

LeBlanc v. Great American Ins. Co., 6 F.3d 836

Ce ee a ciaesiaaaumaaensadanl 18, 19

Levald v. City of Palm Desert, 998 F.2d 680 (9th

CA SII xs .Gstautscnucuenssoeepenceeeadicnsnanauaaeimimideicaensans 25

Lynn v. Sheet Metal Workers’ Int'l Ass’n, 804

Re Ee CN GE IID cvcccesecvcncscsstacsesescssesions 24, 25

Mallis v. Bankers Trust Co., 717 F.2d 683 (2d

ee 19, 20

Martin v. General Electric Co., 187 Fed. Appx.

ee I i cusaonadaiuemisuatinien 16

Matarese v. LeFevre, 801 F.2d 98 (2d Cir. 1986)........ 19

McAninch v. Traders National Bank of Kansas

City, 779 F.2d 466 (8th Cir. 1985)...................2.2..... 24

McLemore v. River Villa Partnership, 898 F.2d

I 23

Meehan v. County of Los Angeles, 856 F.2d 102

a 25

Messina v. Krakower, 439 F.3d 755 (D.C.Cir.

TABLE OF AUTHORITIES — Continued

Page

Montes v. United States, 37 F.3d 1347 (9th Cir.

RSS PE REE R Rn a ee DOr en EOE He AER ETOP 25

Nationwide Mutual Ins. Co. v. Cosenza, 258

SP Se CUE le IE Prcncncnectuesiccsncstvensccssvessenees 20, 21

New Castle County v. Hartford Acc. and In-

demn. Co., 933 F.2d 1162 (3d Cir. 1992)................. 21

New York Life Ins. Co. v. Deshotel, 142 F.3d 873

I se ceechomneenesecunabien 23

Pacitti v. Macy’s, 193 F.3d 766 (3d Cir. 1999)............ 21

Reardon v. Adden Furniture, Inc., 1998 WL

Fe IG IEE ceresscsncenccncessateseséenssensisonsasesoes 22

Robinson v. Shell Oul Co., 519 U.S. 337 (1997) ......... 35

Sahu v. Union Carbide Corp., 538 F.3d 59 (2d

SET SE NSS EPONA DOO PE ena 19

Satterfield v. Johnson, 434 F.3d 185 (3d Cir.

ERE ARTEMIS SORE EE NS ORE CE AN eee ON ae ERO 21

SEC v. Van Waeyenberghe, 990 F.2d 845 (5th

ak ssasepinsabeammeanianbinges 23, 29

Shapiro ex rel. Shapiro v. Paradise Valley

Unified School Dist. No. 69, 374 F.3d 857

BRR re 16, 17

Shea v. Smith, 966 F.2d 127 (3d Cir. 1992) ............... 20

Simpson v. Lear Astronics Corp., 77 F.3d 1170

I a nsapueneanidaiaenasuancsies 25

Simpson v. Norwesto, Inc., 583 F.2d 1007 (8th

I te aiapenimeeaainusmauniaaabedal 24

TABLE OF AUTHORITIES — Continued

Page

Smith v. Barry, 502 U.S. 244 (1992)...............ceeceeeeees 13

Torres v. Oakland Scavenger Co., 487 U.S. 312

(|, | EER eS 10, 13, 31

Town of Norwood v. New England Power Co.,

20Z FB 406 (Lab Car. Bed csssccsecccccesccccccccccccccccsece 18

Turnbull v. United States, 929 F.2d 173 (5th

Cle, 2G1) cccoccccacsneneneieeeeeti tia stesscsoescecceossecce.e: 23

United States, ex rel. Eisenstein v. City of New

Yor de, 190 CE. Bie Cee eavassasesccvccccccescesccccccccseee 13

United States v. Belgarde, 300 F.3d 1177 (9th

0 | j PRR 28

United States v. Glover, 242 F.3d 333 (6th Cir.

BOOT. ) «cecvcccesescoscusensnsaaesesiaeeese 10, 15, 16, 29

United States v. Knowles, 29 F.3d 947 (5th Cir.

1 | Den 23

United States v. Lopez-Escobar, 920 F.2d 1241

COG Re Cher, TE circ eaitasbncecsccnc ccc: cccc cee 23

United States v. Morales, 108 F.3d 1213 (10th

Cle. 1907) oncssccccoscessaeee dabetasennees 25, 26, 28, 29

United States v. One 1977 Mercedes Benz, 708

F.De 666 Ce Fae i iatekesceccccccccccsccccce... 25

United States v. Rochester, 898 F.2d 971 (5th

Che. 1G) ccevenctssie erat etncenesecceccesceccceses 23

United States v. Rodriguez, 932 F.2d 374 (5th

Eb ee 22, 23

United States v. Taylor, 2000 WL 1763466 (4th

0 | | RR 22

TABLE OF AUTHORITIES — Continued

Page

United States v. Universal Management Ser-

vices, Inc., Corp., 191 F.3d 750 (6th Cir. 1999) ......16

United States v. Walker, 601 F.2d 1051 (9th Cir.

SPW wiceceudceeséuemneciuansitnadinsdesdamianinniamenicnainaamanaanmaa 29

Williams v. Guzzardi, 875 F.2d 46 (3d Cir. 1989) ....... 21

Wright v. American Home Assurance Co., 488

EE CUE GA BOOED coccnstasnincecsnantesensdcetasenaaeians 26

STATUTES

Bee ls OP SII F Piccisiscasnntvasscenstbedisicdnmessmaamuabeddasunneelis 1

Oe Ge Oe i ciiconchenuceenchovinsostecenseamtistioioummaas 35

Title VII of the 1964 Civil Rights Act

PDTENENEE WHITE cacscuncctedsbabeddanccetuacanieeicehuansudamnbanl passim

RULES AND REGULATIONS

Ea EG Sy SEINE TI cccncecuctincebssnhsentduiimmenicocsaiel Pekan 28

Federal Rules of Appellate Procedure

NIIP Ui saceinitiencatecnnaetibtainiekaiclieatcniatnaesasatiieenensemn aca 13, 31

BN SIE Fit ti Pcincensévicoveesncienusinnnsneeeecnsicadeiaiaemamannal 14

I aati aaa caer 25, 29, 31, 33

fh ER RIOT a we Ne AS 13, 15

ee passim

BE ivcsiniencencnnneruciaiciodisseemnisncntampenemussmmmanae ene 13

BE IAD sisi: coscinntnctenoienivesiaeemanaemaaananee 13

NI FMI EP sckniintoinsctinsteenuanesiencsteamesseanaanmeauemalal 13

TABLE OF AUTHORITIES — Continued

Page

Rule 4(aX1XA)...... ecpitieianland aiden

I I insole ses iaeanniacnaipiianianmannaules niga

Federal Rules of Civil Procedure

HIN Tl cccccenacansdniccndalandenendduesdiabiesnnniens | ..13

Rule 45(b)(1) 3

OTHER AUTHORITIES

Brief of Appellant, Nos. 08-3420 and 08-3421

BE GAD ictissitekonnndunscsiannnss scuisbindedacinaicicbitalabialaieédibinitiantid 8

Brief of Appellee, Nos. 08-3420 and 08-3421

a ey

Reply Brief of Appellant/Cross Appellee, 2001

WL 34090113...............cceceee0s ane sanaineaanlinsiunat 28

Supplemental Brief of Appelice, No. 08-3420...... 10,

Petitioner William H. Schramm respectfully

prays that this Court grant a writ of certiorari to

review the judgment and opinion of the United States

Court of Appeals for the Sixth Circuit entered on

March 19, 2009.

OPINIONS BELOW

The March 19, 2009, opinion of the court of

appeals, which is reported at 318 Fed. Appx. 337

(6th Cir. 2009), is set out at pp. la-23a of the Appen-

dix. The March 25, 2008 order of the district court,

which is unofficially reported at 2008 WL 820463

(N.D.Ohio), is set out at pp. 33a-42a of the Appendix.

The February 11, 2008 order of the district court,

which is unofficially reported at 2008 WL 397592

(N.D.Ohio), is set out at pp. 24a-32a of the Appendix.

The July 14, 2009 order of the court of appeals,

denying rehearing and rehearing en banc, which is

not officially reported, is set out at pp. 43a-44a of the

Appendix.

JURISDICTION

The decision of the court of appeals was entered

on March 19, 2009. A timely petition for rehearing

and rehearing en banc was denied on July 14, 2009.

The Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

RULE AND

STATUTORY PROVISION INVOLVED

The rule and statutory provision involved are set

out in the appendix to this document.

STATEMENT

For almost two decades prior to 1999 William

Schramm worked as an air traffic controller for the

Federal Aviation Administration. After his retirement

in 1999 Schramm filed suit under Title VII of the

1964 Civil Rights Act, alleging inter alia that he had

been the victim of gender-based discrimination while

employed at the FAA. That original discrimination

suit has since been resolved. That litigation, however,

led to a number of alleged incidents of retaliation,

resulting in two subsequent actions asserting that

Schramm was the victim of unlawful reprisals, in

violation of section 794(a) of Title VII. Although the

two retaliation actions turned on different issues, the

appeals in those cases were consolidated in the court

of appeals and resolved in a single opinion.

(1) The Retaliatory Assault

In 2002 Schramm assisted a process server in

serving subpoenas upon witnesses in the sex

discrimination suit then pending trial. The process

server enlisted Schramm to identify individuals to be

served as they left the tower at the Toledo Air-

port. One of Schramm’s former supervisors became

enraged when he was served. Shortly thereafter the

supervisor driving a pick-up truck pulled alongside of

Schramm and began verbally abusing him. The

supervisor made statements to the effect that “they

were not through with him” and “they would take

care of him at trial.” (App. 26a).

Schramm attempted to walk away from the mov-

ing truck. That provoked the supervisor to shift the

truck into reverse, drive at Schramm at a high rate of

speed, and swing around at the last possible second to

avoid hitting the plaintiff. The supervisor continued

to follow Schramm and verbally abuse him as

Schramm walked to the airport Police Station to file a

complaint. (App. 24a-26a).

After filing a charge with the EEOC, Schramm

filed suit alleging that the supervisor had assaulted

him in this manner in reprisal for Schramm’s actions

in filing suit under Title VII and in causing the

supervisor to be subpoenaed as a witness. (App. 26a).

The district court dismissed this complaint, holding

that the anti-retaliation provision in section 704(a) of

Title VII did not protect Schramm from a retaliatory

assault because Schramm, in assisting the process

server, had violated Rule 45(b)\1) of the Federal Rules

of Civil Procedure. (App. 30a-31a).

The Sixth Circuit affirmed on other grounds.

The court of appeals concluded that the government

“cannot be held vicariously liable under Title VII for

[the supervisor’s] conduct.” (App. 21a). An employer

is ordinarily liable for retaliatory acts taken by

supervisor or management officials against current

employees. The usual liability rules, the Sixth Circuit

held, do not apply to former employees.

Schramm had not been employed by the FAA

for several years when the subpoena inci-

dent occurred, and the analyses that courts

typically undertake to determine vicarious

liability for a violation of Title VII’s anti-

retaliation provision simply do not apply to

these facts.

(App. 21a).

The court of appeals held that an employer is not

liable for retaliatory actions against a former em-

ployee where the victim had not been employed for

“several years” and the retaliation occurred “outside

of the workplace.” (App. 21a and n.2).

(2) The Retaliatory Disqualification

In February 2003, following his retirement from

the FAA, Schramm was hired to work as an air traffic

controller for a private firm that contracted with the

FAA to handle air traffic at a smaller airport in

Michigan. In August 2003, Schramm was hired by

the Department of Defense to work as a contract

controller as part of Operation Enduring Freedom in

Afghanistan. Schramm was deployed to Uzbekistan,

and volunteered for duty in Kabul, Afghanistan. (App.

34a). As a condition of working as an air traffic con-

troller for these employers, Schramm was required

to obtain a medical certification from the Flight

Surgeon’s Office of the FAA. Schramm was issued

that certification in February 2003 and again in

August 2003.

On November 7, 2003, Schramm commenced the

civil action against the FAA for the retaliatory

assault. On or about December 1, 2003, a copy of the

summons and complaint were served on the Depart-

ment of Transportation. Less than a month later, on

December 30, 2003, without any prior notice or

explanation, the FAA sent Schramm a letter rescind-

ing his medical certification. As a result of the dis-

qualification, Schramm’s employment in Uzbekistan

was terminated, and he was forced to return to the

United States. The FAA did not reissue a medical

certificate to Schramm until January 2005, and he

was unable to resume employment as an air traffic

controller until May of that year.

Schramm alleged that the medical disqualifica-

tion issued in December 2003 was in retaliation for

the lawsuit he had filed against the FAA regarding the

retaliatory assault. After first filing an administrative

complaint with the EEOC, Schramm filed a second

retaliation lawsuit, in this action asserting that the

medical disqualification was a reprisal for his earlier

retaliation lawsuit, in violation of section 704(a) of

Title VIT.

Shortly after it was commenced, the retaliatory

disqualification case was reassigned to the district

judge already responsible for the retaliatory assault

case. The two cases were subsequently consolidated,

although the cases retained different docket sheets

and docket numbers and continued to be litigated

separately. That assignment and consolidation, how-

ever, set in motion the events which ultimately led

the court of appeals to dismiss Schramm’s appeal in

the retaliatory disqualification case.

After a period of discovery the defendant filed a

motion for summary judgment in the retaliatory dis-

qualification case. On February 11, 2008, while that

motion was still pending in the retaliatory dis-

qualification case, the judge to whom both cases had

been assigned granted summary judgment in the

separate retaliatory assault case. For reasons that

remain unexplained, the Clerk’s office filed the

February 11 order not only in the retaliatory assault

case (which that order resolved), but also in the

retaliatory disqualification case (which that order did

not mention).

Approximately six weeks later, on March 25,

2008, the same district judge granted summary judg-

ment in the retaliatory disqualification case. The

district court concluded that Schramm could not show

that the disqualification was issued for a retaliatory

purpose because there was insufficient evidence that

the FAA officials involved in the decision to cancel

Schramm’s medical qualification were aware of the

protected activity, the filing of the earlier retaliation

case. (App. 37a-42a).

On the front page of the Civil Docket for the

retaliatory disqualification case, the Clerk’s Office

subsequently wrote “Date Terminated: 02/11/2008.”

February 11, 2008, was actually the date on which

the retaliatory assault case had been terminated, not

the date on which the retaliatory disqualification case

ended.

On April 1, 2008, Schramm filed two notices of

appeal, one in each case, and paid separate filing fees

in each case. The notice of appeal in the retaliatory

disqualification case stated that Schramm was ap-

pealing “from the Summary Judgment and Termina-

tion entered in this action on the llth day of

February, 2008.” A month later, on April 21, 2008,

pursuant to Sixth Circuit practice, Schramm filed in

the court of appeals regarding the appeal in the retal-

iatory disqualification case a “Statement of Parties

and Issues.” The “proposed issues” set out in that

Statement clearly referred to the substance of the

March 25 summary judgment decision in the retal-

iatory disqualification case.’ That Statement in the

See: http-//ecf.ohnd.uscourts.gov/cgi-bin/DktRpt.pl?480295

896743097-L

* R. 52 Notice, J.A. 56.

* For example, the first proposed issue concerned the

portion of the March 25 order in which the district judge had

concluded there was insufficient evidence that the officials who

approved the disputed December 2003 disqualification were

aware of the lawsuit that Schramm had filed the month before:

I. Whether knowledge of Title VII activity may be

established through the statements of the plaintiff as

well as the contradictions in sworn testimony among

the defense witnesses when that evidence shows that

a secretary working [in] the medical department of

(Continued on following page)

appeal of the retaliatory disqualification case, how-

ever, also recited that Schramm was appealing from

“an order rendering summary judgment in ... favor [of

the defendant] on February 11, 2008.”

In his brief in the Sixth Circuit Schramm

interpreted the opinions and docket sheet to mean

that the district court’s February 11, 2008 order had

granted summary judgment in both cases, and that

the March 25, 2008 order had set out an additional

reason for the award of summary judgment in the

retaliatory disqualification case.“ The government’s

appellate brief did not dispute this characterization of

the events in the district court; that brief was silent

as to whether summary judgment in the retaliatory

disqualification case had been granted on February

11, 2008, on March 25, 2008, or both. The govern-

ment’s brief did state with regard to the two district

court cases that

The district court granted summary judg-

ment in favor of the Appellee ... in both

cases.... Final judgments that disposed of all

the defendant accessed the medical records of the

plaintiff at the request of an unauthorized person

from a department which knew of the plaintiff’s Title

VII activity, and who, together with that secretary,

used the information to retaliate against the plaintiff

shortly after the service of his Title VI] Compliant

upon the defendant.

Statement of Parties and Issues, filed April 21, 2008.

* Brief of Appellant, Nos. 08-3420 and 08-3421 (6th Cir.), at

24-25.

parties’ claims were entered by the district

court on March 25, 2008.°

In fact there was only a single final judgment entered

on March 25, and that was in the retaliatory dis-

qualification case. The government’s brief on appeal

noted with regard to the retaliatory disqualification

case that “the [district] court granted the FAA’s

Motion for Summary Judgment. Schramm filed a

Notice of Appeal from the district court’s decision on

April 1, 2008.” That statement reflected the defen-

dant’s understanding that Schramm’s notice of appeal

concerned the award of summary judgment in the

disqualification case.

At the oral argument the court of appeals, sua

sponte, raised a question as to whether it lacked

jurisdiction to hear the appeal of the retaliatory

certification case because Schramm’s notice of appeal

in that case referred only to the February 11, 2008

opinion and order. The Sixth Circuit directed the

parties to file supplemental briefs on that issue.

In response the government now asserted that

the February 11, 2008 order, although entered in the

retaliatory disqualification case, had no application to

that case. The United States made clear that it

understood that Schramm intended to appeal the

award of summary judgment in that case, and

° Brief of Appellee, Nos. 08-3420 and 08-3421 (6th Cir.) at 1.

* Id. at 6.

asserted that he had mistakenly identified the wrong

district court order.

[T]he Notice of Appeal in the Medical Certif-

ication Case incorrectly referred to the

Opinion and Order of February 11, 2008....

The district court did not issue an Opinion

and Order in the Medical Certification Case

until March 25, 2008.... The only document

filed by the district court in the Medical

Certification Case on February 11, 2008, was

the Opinion and Order in the Assault Case.’

The United States “concede[d] that [it] was not

harmed by Schramm’s failure to designate the correct

judgment entry.” The government nonetheless con-

tended that Schramm’s notice of appeal was insuf-

ficient to create jurisdiction over any appeal regard-

ing the March 25, 2008 order. The United States

noted that Sixth Circuit precedent mandated “a strict

application of Rule 3(c)(1XB),” rather than the

“functional notice” approach in Torres v. Oakland

Scavenger Co., 487 U.S. 312 (1988). The government

urged the court of appeals to adhere to its more

stringent standard.” The United States asked the

" Supplemental Brief of Appellee, No. 08-3420, at 3.

* Id. at 11-12.

* Id. at 11:

Following Torres, the Notice of Appeal would ... be

valid if it gave functional notice of the judgment being

appealed.... On the other hand, a strict application of

Rule 3(cX1XB), as illustrated in [United States v./

Glover [, 242 F.3d 333 (6th Cir. 2001)] and Jsert /v.

(Continued on following page)

Sixth Circuit to hold that in determining the suffi-

ciency of a notice of appeal, the court should consider

only the content of the notice of appeal itself. The

appellate courts, it urged, should not “review ... sur-

rounding circumstances to determine [an appellant’s]

intent.””

The court of appeals applied the standard

proposed by the government, relying on the Sixth

Circuit precedents cited in the government’s brief. In

determining under Rule 3(cX1XB) what order is the

subject of an appeal, the Sixth Circuit held, the

appellate court can consider only the content of the

notice of appeal itself, and must disregard any other

circumstances.

Our precedents do not allow us to examine

the circumstances surrounding an appeal in

an effort to determine whether an appellant

has made a mistake in designating the order

he wishes to appeal. They instead require

that we ... look to the notice of appeal to

Ford Motor Co., 462 F.3d 756 (6th Cir. 2006)], would

mandate dismissal of Schramm’s appeal.

'° Id. at 12. Among the surrounding circumstances which

the court of appeals should not consider, the government sug-

gested, was the fact that

there was only one judgment entry entered in the

case, reducing the chance that the court or opposing

party would be confused as to the judgment or issues

appealed

Id. at 11.

ascertain the judgments and orders the

notice encompasses.

(App. 15a). Thus although the Sixth Circuit, and the

government, both understood that Schramm had

actually intended to appeal the dismissal of his

retaliatory disqualification claim, the court of appeals

concluded that the notice of appeal filed in, and

bearing the docket number of, the disqualification

case, technically constituted an appeal of the dis-

missal of the retaliatory assault case.

It matters not that Schramm’s intent to

appeal the March 25, 2008 order is obvious

from his appellate briefs and that the

Secretary was not prejudiced by his mistake

in identifying the wrong order. What matters

is that Schramm’s intent to appeal the

March 25, 2008 order is not discernable from

the notice of appeal itself. To the contrary, it

appears from the notice that Schramm in-

tended to appeal only the order that granted

summary judgment in the retaliatory assault

case but which was entered into the record in

both that case and the medical disquali-

fication case.

(App. 15a-16a) (emphasis added).

Plaintiff filed a timely petition for rehearing and

rehearing en banc regarding the panel disposition of

both appeals. That petition was denied on July 14,

2009. (App. 43a-44a).

REASONS FOR GRANTING THE WRIT

I. THERE IS AN IMPORTANT INTER-

CIRCUIT CONFLICT REGARDING THE

ORDER-DESIGNATION PROVISION OF

RULE 3(c)(1)(B) OF THE FEDERAL

RULES OF APPELLATE PROCEDURE

A. The Decision of The Sixth Circuit Is In

Conflict With Decisions In Ten Cir-

cuits

Rules 3 and 4 of the Federal Rules of Appellate

Procedure play a pivotal role in determining what

appeals may be heard by the circuit courts. Because

of the central importance of those provisions in the

administration of justice in the appellate courts, this

Court has repeatedly granted certiorari to resolve

disagreements among the lower courts regarding the

proper interpretation of Rules 3 and 4." This case

concerns a sharp inter-circuit conflict regarding the

'' United States, ex rel. Eisenstein v. City of New York, 129

S.Ct. 2230 (2009) (interpreting Rule 4(aX1)); Bowles v. Russell,

551 U.S. 205 (2007) (interpreting Rule 4(aX1XA)); Becker v.

Montgomery, 532 U.S. 757 (2001) (evaluating the “com-

plementary operation” of Rule 4(aX1) and Rule 11 of the Federal

Rules of Civil Procedure); Smith v. Barry, 502 U.S. 244 (1992)

(applying Rule 3 to determination of whether an informa! brief

may constitute a notice of appeal); FirsTier Mortgage Co. v.

Investors Mortgage Insurance Co., 498 U.S. 269 (1991) (constru-

ing Rule 4(a)); Torres v. Oakland Scavenger Co., 487 U.S. 312

(1988) (construing Rule 3(cX1XA)); Foman v. Davis, 371 U.S. 178

(1962) (reversing decision that notice of appeal was defective

because it assertedly “failed to specify that the appeal was being

taken from” a particular judgment).

construction of Rule 3(cX1XB), which requires that a

notice of appeal “designate the judgment, order, or

part thereof being appealed.”

The Sixth Circuit applies a uniquely stringent

interpretation of Rule 3(cX1XB). In determining what

order or judgment is being appealed, the Sixth Circuit

holds, an appellate court may consider only “the no-

tice of appeal itself,” and must disregard any of “the

circumstances surrounding an appeal.” (App. 15a,

16a). Applying that rigid rule, the court of appeals

has concluded that the notice of appeal in the retal-

iatory disqualification case was actually an appeal of

an order in an entirely different case; as so construed

the notice of appeal was both manifestly pointless

(because the same party had filed a separate appeal

in that other case) and entirely ineffective (because it

was not filed in the case to which the circuit court

held it pertained).

The decision in the instant case applies well-

established Sixth Circuit case law embodied in a

series of officially reported decisions in that circuit.

The panel refused to construe the notice of appeal in

light of facts extrinsic to the notice itself because

“[ojur precedents do not allow us to examine the

circumstances surrounding an appeal in an effort” to

construe a notice of appeal. (App. 15a). The outcome

of the dispute regarding the application of Rule

3(aX1XB) in this case, the court below explained, was

governed by “our prior decisions.” (/d.; see id. (“case

law of this circuit”)).

The Sixth Circuit rule forbidding consideration of

matters outside the notice of appeal was firmly

established by that circuit’s decision in United States

v. Glover, 242 F.3d 333 (6th Cir. 2001). Glover con-

cluded that the courts should not look at factors

outside the notice of appeal because there could be “a

morass of objective and subjective factors,” and it

would be unduly difficult to “divine the |appellant’s|

intended appellate targets.” 242 F.3d at 337." The

" Although the Sixth Circuit had earlier “loosen[ed]” the

requirement in F.R._App.P. 3(cX1XA) regarding the requirement

that a notice of appeal designate the court appealed to, it

insisted on a more stringent interpretation of Rule 3(cX1XB).

Unlike the decision where to appeal, the decision what

to appeal is left almost exclusively to the discretion of

the appellant. Furthermore, it generally is true that

numerous potentially appealable issues have been

generated by the district court before an appeal is

taken. Whether any of those issues actually will be

appealed depends upon a number of factors.... Thus,

unlike the decision ... loosening ... the requirement “to

name the court to which the appeal is taken” ... a

similar loosening of the requirement “to designate the

judgment, order or part thereof appealed” ... would, if

approved, too frequently require this Court to sort

through a morass of objective and subjective factors to

meditate upon and divine the party’s intended appel-

late targets.

242 F.3d at 336-37 (emphasis in original). The Sixth Circuit

reaffirmed the rule in Glover in Jsert v. Ford Motor Co., 461 F.3d

756, 760 (6th Cir. 2006)

“ The majority in Glover rejected the argument of the

dissenting judge that the order appealed from could readily be

identified by looking at the timing and procedural context of

the notice of appeal. The notice had been filed shortly after a

(Continued on following page)

panel in the instant case expressly relied on Glover,

as the United States had urged it to do. (App. 12a-

13a). The Sixth Circuit has been particularly aggres-

sive in invoking Rule 3(cX1XB) to dismiss appeals,

repeatedly doing so when the appellee itself had not

questioned the sufficiency of the notice of appeal.“

The court of appeals below candidly acknowl-

edged that the Sixth Circuit standard is different

than the standard in several other circuits.

Schramm ... cites two cases from other cir-

cuits in support of his argument that a party

should be permitted to pursue an appeal

from a specific judgment when the intent to

do so can fairly be inferred from the appel-

lant’s notice and subsequent filings and

when the opposing party is not misled by the

mistake. See Messina v. Krakower, 439 F.3d

755 (D.C.Cir. 2006); Shapiro ex rel. Shapiro

v. Paradise Valley Unified School Dist. No.

hearing at which the district judge ruled in favor of the

defendant on a hotly disputed issue, and “the Assistant United

States Attorney noted her objection to this ruling on the record.

No other issue was argued at this conference.” 242 F.3d at 338.

“ In Martin v. General Electric Co., 187 Fed. Appx. 553 (6th

Cir. 2006), the Sixth Circuit dismissed part of an appeal on this

basis even though “[t]he parties did not question our jurisdiction

to entertain this appeal in their briefs.” 187 Fed. Appx. at 557.

In United States v. Universal Management Services, Inc., Corp.,

191 F.3d 750 (6th Cir. 1999), the court of appeals did the same,

even though the United States, as the appellee, had apparently

argued that the court had jurisdiction over the question briefed

by the appellant. 191 F.3d at 755.

69, 374 F.3d 857 (9th Cir. 2004). Insofar as

these decisions allow the court to look be-

yond the notice of appeal to discern an

appellant’s intent and determine whether

the functional requirements of Rule 3 are

fulfilled, they are not consistent with the

case law of this circuit.... Our precedents do

not allow us to examine the circumstances

surrounding an appeal in an effort to

determine whether an appellant has made a

mistake in designating the order he wishes

to appeal.

(App. 14a-15a).

Ten circuits apply the very standard rejected by

the Sixth Circuit, holding that appellate courts can

and should look to documents and events outside the

notice of appeal itself in determining what orders and

issues have been appealed and are within the juris-

diction of the appellate courts.

The First Circuit has repeatedly insisted that

appellate courts should consider surrounding circum-

stances — as the Sixth Circuit does not — in inter-

preting a notice of appeal.

[Blecause the “failure to name the under-

lying judgment is usually a slip of the pen

and rarely causes any prejudice to the other

side,” courts often “rescue the technically de-

faulted portion of the appeal.” ... [WJe review

the notice of appeal in the context of the

entire record.

Blockel v. J.C. Penney Co., Inc., 337 F.2d 17, 24 (1st

Cir. 2003) (quoting Town of Norwood v. New England

Power Co., 202 F.3d 408, 415 (1st Cir. 2000)). In

Blockel the First Circuit, “reviewing the record as a

whole,” held that issues not expressly mentioned in

the notice of appeal were nonetheless within the

scope of that notice. The First Circuit relied in part

on the appellant’s appellate brief, which (like the

brief in the instant case) had expressly addressed

those issues. 337 F.3d at 24. The First Circuit has

repeatedly applied this standard that a notice of

appeal is to be construed in light of the contents of

the entire record in a case.”

*’ Chamorro v. Puerto Rican Cars, Inc., 304 F.2d 1, 3 (1st

Cir. 2002):

[First Circuit precedent] does not mean ... that an

appellate court invariably is bound to read the notice

of appeal literally... [{I]Instead, our precedents

encourage us to construe notice of appeal liberally and

examine them in the context of the record as a whole.

The court in Chamorro relied on the appellant’s appellate brief

in construing his notice of appeal. Jd. In Town of Norwood v.

New England Power Co., 202 F.3d 408, 415 (1st Cir. 2000), the

First Circuit relied on the content of the appellant’s trial court

motions in construing its subsequent notice of appeal. In

LeBlanc v. Great American Ins. Co., 6 F.3d 836, 839 (1st Cir.

1993), the First Circuit explained that a notice of appeal was

sufficient to encompass a judgment not mentioned therein

where the appellant’s intent to appeal from the judg-

ment is clear.... In making this assessment, we con-

sider the notice of appeal “in the context of the record

as a whole.” Kotler [v. American Tobacco Co.,| 981 F.2d

[7,] 11 (ist Cir. 1992)].

(Continued on following page)

In the Second Circuit a notice of appeal entails

any order or judgment where an “intent to appeal

from [that] specific judgment [or order] can fairly be

inferred.” Matarese v. LeFevre, 801 F.2d 98, 105 (2d

Cir. 1986). In ascertaining the intent of the appellant,

the Second Circuit routinely looks beyond the terms

of the notice itself. In Sahu v. Union Carbide Corp.,

538 F.3d 59 (2d Cir. 2008), the court relied on the

content of the appellant’s Pre-Argument Statement,

“together” with the notice of appeal, in concluding

that the two documents were the “functional equiva-

lent” of a notice of appeal of the order discussed in

that statement, but not mentioned in the notice itself.

538 F.3d at 66. In Mallis v. Bankers Trust Co., 717

F.2d 683 (2d Cir. 1983), the court explained that given

the overall history of the case, “we cannot see how the

notice of appeal ... could have conveyed anything to

[the appellee] other than the plaintiffs’ dissatisfaction

The court in LeBlanc relied on the content of a separate notice of

appeal in construing the disputed notice. Kotler explained that

“we do not examine the notice in a vacuum but in the context of

the record as a whole.” 981 F.2d at 11. An earlier decision in that

litigation, Kotler v. American Tobacco Co., 926 F.2d 1217 (1st Cir.

1990), announced the same rule.

In determining whether appellant’s notice of appeal,

despite their obvious failure to mention the May 1988

order, sufficiently demonstrated an intent to appeal

that order, we are not limited to the four corners of

the notices, but examine them in the context of the

record as a whole.

926 F.2d at 1221.

with the [non-listed] judgment.” 717 F.2d at 693."

The Second Circuit also applies a second more liberal

rule that differs from the standard in most other

circuits. Even if the appellant’s intent to appeal a

particular order or judgment

cannot be inferred, [if] the appellee “has not

been prejudiced” by the inaccuracy and ....

has “responded in full” to the appellant’s sub-

stantive arguments, the court has juris-

diction.

Ametex Fabrics, Inc. v. Just In Materials, Inc., 140

F.3d 101, 106 (2d Cir. 1998) (quoting Karuse v. Ben-

nett, 887 F.2d 362, 367 n.2 (2d Cir. 1989)).

In the Third Circuit it has long been the rule that

“if from the notice of appeal and the subsequent

proceedings on appeal it appears that the appeal was

intended to have been taken from an unspecified

judgment order or part thereof, the notice may be

construed as bringing up the unspecified order for

review.” Elfman Motors, Inc. v. Chrysler Corp., 567

F.2d 1252, 1254 (3d Cir. 1977) (emphasis added).”

* See Bancroft Nav. Co. v. Chadade S.S. Co., 349 F.2d 527,

528 (2d Cir. 1965) (“[ulnder the circumstances specification of

the September 23 order in the notice of appeal could hardly have

conveyed anything to [the appellee] other than [the appellant’s]

unwillingness to accept the ... September 14 decision.”).

This holding in Elfman has been repeatedly applied in

the Third Circuit. Benn v. First Judicial Dist. of Pa., 426 F.3d

233, 236 (3d Cir. 2005); Nationwide Mutual Ins. Co. v. Cosenza,

258 F.3d 197, 203 n.1 2001); Shea v. Smith, 966 F.2d 127, 129

(3d Cir. 1992); CTC Imports and Exports v. Nigerian Petroleum

(Continued on following page)

“{A] policy of liberal construction of notices of appeal

prevails in the Third Circuit where the intent to ap-

peal an unmentioned or mislabeled ruling is apparent

and there is no prejudice to the adverse party.”

Nationwide Mutual Ins. Co. v. Cosenza, 258 F.3d 197,

202 n.1 (3d Cir. 2001). That rule was applied most

recently in Satterfield v. Johnson, 434 F.3d 185 (3d

Cir. 2006) (opinion joined by Alito, J.). In Satterfield

the appellant’s “intention to appeal the issue” in

question, although the order involved was not men-

tioned in the notice of appeal, was “‘clearly manifest’

from its first brief ... [which] devote[d] thirteen pages

to [that] issue.” 434 F.3d at 191. There was no

prejudice to the appellee, which had ample time to

include a response in its own appellate brief. Jd.

Similarly, in Pacitti v. Macy’s, 193 F.3d 766, 777 (3d

Cir. 1999) (opinion by Alito, J.), the court noted that

the defendant “had notice of plaintiffs’ intent to ap-

peal” an order not mentioned in the notice of appeal

because the appellants “argued the merits of the ...

order in their opening appellate brief.”

In the Fourth Circuit the requirements of Rule

3(c)(1XB) are satisfied, regardless of the language of a

notice of appeal, if the issue raised by a district court

order is briefed by the appellant on appeal.

Corp., 951 F.2d 573, 577 (3d Cir. 1991); New Castle County uv.

Hartford Acc. and Indemn. Co., 933 F.2d 1162, 1179 n.1 (3d Cir.

1992); Williarns v. Guzzardi, 875 F.2d 46, 49 (3d Cir. 1989).

The appellant simply needs to address the

merits of a particular issue in her opening

brief in order to demonstrate she had the

intent to appeal that issue and the appellees

were not prejudiced by her mistake, inas-

much as they had notice of the issue and the

opportunity to fully brief it.

Bogart v. Chapell, 396 F.3d 548, 555 (4th Cir. 2005).”

That circuit has also noted that an intent to appeal

an order can be inferred where that order resolved

the sole issue that determined the outcome of the

case below. Dang v. C.I.R., 359 F.3d 204, 208 (4th Cir.

2001).

In the Fifth Circuit, where a notice of appeal

failed to designate or “misdesignated” the

ruling being appealed ... we liberally con-

strue the order designation portion of Rule

3(c) and, when the intent to appeal an un-

named or mislabeled ruling is apparent

(from the briefs or otherwise) and no

prejudice results to the adverse party, the

appeal is not jurisdictionally defective.

United States v. Rodriguez, 932 F.2d 374, 375 (5th

Cir. 1991). In Rodriguez the notice of appeal, “when

viewed in isolation, ... would indicate a clear intent

* This Fourth Circuit rule was applied in United States v.

Taylor, 2000 WL 1763466 at n.* (4th Cir. 2000), Reardon v.

Adden Furniture, Inc., 1998 WL 77788 at *4 n.4 (4th Cir. 1998),

Hartsell v. Duplex Products, Inc., 123 F.3d 766, 771 (4th Cir.

1997), and Canady v. Crestar Mortgage Corp., 109 F.3d 969, 974

(4th Cir. 1997).

not to appeal [the matter in question].” 932 F.2d at

375-76. The requisite intent to appeal the order in

question was demonstrated, however, by the action of

the appellant in addressing the matter in question in

its appellate brief and by ordering the portions of the

trial transcript dealing with that issue. 932 F.2d at

376. The Fifth Circuit has repeatedly relied on appel-

late briefs or other matters extrinsic to the notice

of appeal in determining compliance with Rule

3(c)(1B).”

In the Eighth Circuit

in accordance with a policy of liberal inter-

pretations of notices of appeal[,} in situations

where intent is apparent and there is no

prejudice to the adverse party, this court will

consider [an] appeal on its merits.

* New York Life Ins. Co. v. Deshotel, 142 F.3d 873, 884 (5th

Cir. 1998) (intent demonstrated by brief on appeal); United

States v. Knowles, 29 F.3d 947, 949-50 (5th Cir. 1994) (intent

demonstrated by brief on appeal); SEC v. Van Waeyenberghe, 990

F.2d 845, 847 n.1 (5th Cir. 1993) (intent demonstrated by appel-

late brief and oral argument); Friou v. Phillips Petroleum Co.,

948 F.2d 972, 974 (5th Cir. 1991) (intent demonstrated by brief

on appeal); Turnbull v. United States, 929 F.2d 173, 177 (5th Cir.

1991) (defect in notice may be cured by indication of intent in

brief or otherwise); United States v. Lopez-Escobar, 920 F.2d

1241, 1244-45 (5th Cir. 1991) (intent demonstrated by brief and

statement of issues); United States v. Rochester, 898 F.2d 971,

976 n.1 (5th Cir. 1990) (“(f Jailure to properly designate the order

appealed from ... may be cured by an indication of intent in the

briefs or otherwise”); McLemore v. River Villa Partnership, 898

F.2d 996, 1000 (5th Cir. 1990) (intent demonstrated by timing of

appeal, status of the case when the notice was filed, and brief).

Simpson v. Norwesto, Inc., 583 F.2d 1007, 1009 n.2

(8th Cir. 1978). In determining the intent of the

appellant, the Eighth Circuit relies on considerations

other than the content of the notice itself. E.g.,

Hawkins v. City of Farmington, 189 F.3d 695, 703-05

(8th Cir. 1999) (procedural history of the case, appeal

information form, statement of issue form, designa-

tion of the record); ELCA Enterprises, Inc. v. Sisco

Equipment Rental & Sales, Inc., 53 F.3d 186, 189 (8th

Cir. 1995) (appeals information Form A); McAninch v.

Traders National Bank of Kansas City, 779 F.2d 466,

467 n.2 (8th Cir. 1985) (appeal information form and

briefs).

The Ninth Circuit applies an interpretation of

Rule 3(cX 1B) that is avowedly less stringent than in

other circuits.

While some circuits construe Rule 3(c) strictly,

... this circuit has held that “a mistake in

designating the judgment appealed from

should not bar appeal as long as the intent to

appeal a specific judgment can be fairly

inferred and the appellee is not prejudiced by

the mistake.” United States v. One 1977

Mercedes Benz, 708 F.2d 444 (9th Cir. 1983).

Lynn v. Sheet Metal Workers’ Intl Ass’n, 804 F.2d

1472, 1481 (9th Cir. 1986). That circuit has repeat-

edly held that the requisite intent is shown if the

appellant’s brief addresses the correctness of the

order not specified in the notice of appeal.”

The Tenth Circuit has been particularly specific

in holding that the interpretation of a notice of appeal

is not limited to the words of the notice itself. “Even if

a notice fails to properly designate the order from

which the appeal is taken, this court has jurisdiction

if the appellant’s intention was clear.” Fleming v.

Evans, 481 F.3d 1249, 1253-54 (10th Cir. 2007). In

United States v. Morales, 108 F.3d 1213 (10th Cir.

1997), the government sought to appeal the failure of

the trial court to impose the minimum mandatory ten

years of imprisonment.

Because the notice of appeal does not

indicate the United States intends to appeal

the sentence of Mr. Morales, the government

failed to comply with Fed.R.App.P. 3(c). Nev-

ertheless, our inquiry does not stop there....

Notwithstanding the wording of the notice of

appeal in the present case, we are confident

the notice was sufficient to inform Mr.

* Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1171 (9th

Cir. 1995) (“[wle may infer from ... the arguments contained in

Simpson’s opening brief, that Simpson intended to appeal ... the

order”); Montes v. United States, 37 F.3d 1347, 1351 (9th Cir.

1994) (“[f}rom his briefs, it is clear that Montes intended to

appeal from the [omitted] judgment”); Levald v. City of Palm

Desert, 998 F.2d 680, 691 (9th Cir. 1993); Meehan v. County of

Los Angeles, 856 F.2d 102, 105-06 (9th Cir. 1988); Lynn, 804 F.2d

at 1481; United States v. One 1977 Mercedes Benz, '708 F.2d 444,

451 (9th Cir. 1983).

Morales that the government sought to

appeal his sentence.

108 F.3d at 122-23. In holding the notice of appeal

was nonetheless sufficient, the Tenth Circuit relied

on matters outside the notice itself, the docketing

statement the government later filed in the court of

appeals, and the fact that the sentence was the only

part of the district court decision which the United

States could appeal. 108 F.3d at 123.” The Tenth

Circuit attaches particular weight to documents filed

close in time to the notice of appeal itself. Denver &

Rio Grande Western RR. Co. v. Union Pacific RR. Co.,

119 F.3d 847, 849 (10th Cir. 1997).

The Eleventh Circuit standard is consistent with

the majority rule.

“[I]n this circuit, it is well settled that an

appeal is not lost if a mistake is made in

designating the judgment appealed from

where it is clear that the overriding intent

* See Cooper v. American Automobile Ins. Co., 978 F.2d 602,

607-08 (10th Cir. 1992) (order appealed from determined by

examining not only the notice of appeal but also “the supporting

papers and particular circumstances surrounding it”; intent

demonstrated by appellants’ statement of points on which she

intended to rely on appeal and by merits brief); Wright v.

American Home Assurance Co., 488 F.2d 361, 363 (10th Cir.

1974) (“{a]ppellant’s intention to seek review of the judgment is

manifest.... [A]ppellant ... briefed the merits, and the appellant’s

statement of issues similarly demonstrates an intent to chal-

lenge the judgment”); Jones v. Nelson, 484 F.2d 1165, 1168 (10th

Cir. 1973) (scope of appeal determined “[bly looking behind the

form of notice”).

was effectively to appeal.” Kicklighter v.

Nails by Jannee, Inc., 616 F.2d 734, 439 n.1

(5th Cir. 1980).... Here, it is overwhelmingly

clear that the city intended to appeal the

district court’s ruling.... the appellant’s brief

addresses only that issue.

KH Outdoor, LLC v. Trussville, City of, 465 F.3d 1256,

1259 (11th Cir. 2006) (emphasis in original); see

Cornelius v. Home Comings Financial Network, Inc.,

293 Fed. Appx. 723, 726 (11th Cir. 2008) (“Cornelius

demonstrates ‘overriding intent’ to effectively appeal

the grant of summary judgment.... Two of the three

sections in his appellate brief are devoted to argu-

ments concerning the summary judgment”).

The District of Columbia Circuit applies a

well-settled rule that a mistake in designat-

ing the specific judgment or order appealed

from should not result in loss of the appeal

so long as the intent to appeal from a specific

judgment can be fairly inferred from the

appellant’s notice (and subsequent filings)

and the opposing party is not misled by the

mistake.

Foretich v. American Broadcasting Companies, 198

F.3d 270, 273 n.4 (D.C.Cir. 1999) (emphasis added).

That circuit has repeatedly held it has jurisdiction to

review orders mentioned in the statement of issues

filed by the appellant in the court of appeals, even

though the order was not mentioned in the actual

notice of appeal.”

This inter-circuit conflict has resulted in in-

consistent decisions in cases in which the United

States filed a notice of appeal that ran afoul of Rule

3(cX1XB). On occasions in which it filed a notice of

appeal which failed to specify the order it wished to

appeal, the government has successfully relied on the

liberal construction of Rule 3(cX1XB) in the Fifth,

Ninth and Tenth Circuits. United States v. Belgarde,

300 F.3d 1177, 1180 (9th Cir. 2002) (“all parties

understood the government was appealing” the

omitted order);” United States v. Morales, 108 F.3d

™ Messina v. Krakower, 439 F.3d 755, 759 (D.C.Cir. 2006)

(order listed in statement filed under D.C.Cir. R. 2&aX1\XB) of

“Rulings Under Review”); Independent Petroleum Ass'n of America

v. Babbitt, 235 F.3d 588, 593 (D.C.Cir. 2001) (order listed in

“Non-Binding Statement of Issues to be Raised”); Foretich, 198

F.3d at 273 n.4 (order listed in “Docketing Statement”).

* In its brief in Belgarde, the United States argued that the

content of its appellate brief could be relied on to ascertain the

intended scope of the appeal.

Here, it was obvious that the underlying dismissal of

the indictment was at stake.... [[]n its opining brief

before this Court, the government explains that

because of the arguments expressed in its brief, “the

court’s order and judgment should be reversed.” ... The

government's presentation in its opening brief deals

entirely with the question of whether its indictment

was properly dismissed on the merits. Under these

circumstances, it is obvious that this appeal is an

appeal of the order dismissing the indictment.

Reply Brief of Appellant/Cross Appellee, 2001 WL 34090113, at

*10.

1213, 1223 (10th Cir. 1997) (government’s intent to

appeal demonstrated by government's subsequent

docketing statement and fact the omitted order con-

cerned the only issue which the government legally

could appeal); SEC v. Van Waeyenberghe, 990 F.2d

845, 847 n.3 (5th Cir. 1993) (government’s intent to

appeal demonstrated by its brief and oral argument);

United States v. Walker, 601 F.2d 1051, 1058 (9th Cir.

1979) (“[i]t is apparent the Government intended to

appeal both orders”). In United States v. Glover, on

the other hand, the Sixth Circuit applied its partic-

ularly stringent standard to dismiss the government’s

appeal for failure to comply with Rule 3(cX1XB).

B. The Sixth Circuit Standard Is Incon-

sistent With the Decisions of This

Court

The panel opinion rests on two distinct grounds.

First, it held that in applying Rule 3(c) the meaning

and intent behind a notice of appeal must be deter-

mined based solely on the words in the notice itself.

The panel acknowledged that Schramm actually

intended to appeal the March 25 order, but found the

notice of appeal defective because that intent was not

apparent on the face of the notice itself.

It matters not that Schramm’s intent to

appeal the March 25, 2008 order is obvious

from his appellate briefs. What matters is

that Schramm’s intent to appeal the March

25, 2008 order is not discernable from the

notice of appeal itself. To the contrary, it

appears from the notice that Schramm

intended to appeal only the [February 11,

2008] order....

(App. 15a-16a).

The panel’s first reason is squarely inconsistent

with the decision of this Court Foman v. Davis, 371

U.S. 178 (1962). The appellant in Foman had filed a

notice of appeal that designated as the order appealed

from a decision denying a motion. to vacate the

judgment and to amend the complaint. The court of

appeals held that this notice was insufficient to also

designate an earlier order dismissing the complaint;

nothing on the face of the notice itself contained any

mention of that earlier order. In reversing, this Court

did precisely what the panel forbade, expressly

relying on materials “beyond the notice of appeal”

itself “to discern [the] appellant’s intent.” The

decision in Foman rested on the content of an earlier

premature notice of appeal and of the papers sub-

sequently filed by appellant in the court of appeals.

Taking the two notices and the appeal papers

together, petitioner’s intention to seek review

of both the dismissal and the denial of

motions was manifest. Not only did both

parties brief and argue the merits of the

earlier judgment on appeal, but petitioner’s

statement of points on which she intended to

rely on appeal, submitted to both respondent

and the court pursuant to rule, similarly

demonstrated the intent to challenge the

371 U.S. at 229-30. Under the holding of the panel in

the instant case, neither those briefs, the statement

of points nor the other notice of appeal could have

been considered.

This Court has repeatedly explained that under

Foman a court is to consider “all the circumstances” —

not merely the circumstances “discernable from the

notice of appeal itself” — in deciding whether there

has been sufficient compliance with Rule 3(c). Torres

v. Oakland Scavenger Co., 487 U.S. 312, 316 (1988);

FirsTier Mortgage Co. v. Investors Mortgage Insur-

ance Co., 498 U.S. 269, 276 n.3 (1991). This Court re-

iterated this interpretation of Rule 3 in Becker uv.

Montgomery, 532 U.S. 757 (2001).

[O}pinions of this Court are in full harmony

with the view that imperfections in noticing

an appeal should not be fatal where no

genuine doubt exists about who is appealing,

from what judgment, to what appellate

court.... Foman v. Davis, 371 U.S. 178 (1962)

(holding that an appeal was improperly

dismissed when the record as a whole —

including a timely but incomplete notice of

appeal and a premature but complete notice

— revealed the orders petitioner sought to

appeal).

532 U.S. at 657-68.

The panel held, second, that although a notice of

appeal regarding a particular order or judgment

might in some situations be deemed to encompass an-

other order or judgment, that exception was limited

to cases in which the additional order or judgment

had been entered before (or simultaneously with) the

order or judgment specifically designated in the

notice of appeal.

In each of [the decisions relied on by

Schramm], the appellant designated the

final judgment or order in the notice of

appeal and sought to appeal either an order

that preceded the final judgment or a portion

of the final judgment. This case is distin-

guishable in that Schramm seeks to appeal a

final order that he did not designate in the

notice of appeal, and the order that he did

designate in the notice was a previously-

issued order....

(App. 14a) (emphasis added). The panel’s second

reason is inconsistent with the this Court’s decision

in FirsTier Mortgage Co. v. Investors Mortgage Insur-

ance Co., 498 U.S. 269 (1991). In FirsTier the appel-

lant had filed a notice of appeal designating the order

appealed from as a January 26, 1989 bench ruling, a

premature appeal permitted in some circumstances

by Rule 4(aX2). This Court held that notice of appeal

sufficient to encompass the findings of fact and

judgment issued by the district court several weeks

later, on March 3, 1989. Just as in the instant case,

the appellant in FirsTier relied on a notice of appeal

regarding “a previously-issued order” to present for

appeal a challenge to a latter-issued ruling.

In our view, a notice of appeal from a Rule

4(aX2) “decision” — that is, a decision that

would be appealable if immediately followed

by the entry of judgment — sufficiently mani-

fests an intent to appeal from the final

judgment for purposes of Rule 3(c).

498 U.S. at 276 n.6.

C. This Case Is An Excellent Vehicle For

Deciding The Question Presented

This case presents an excellent vehicle for re-

solving the question presented. The circumstances of

this case are a classic application of the Sixth Circuit

rule that the scope of a notice of appeal must be

determined solely by the content of the notice itself.

The same circumstances, on the other hand, would in

ten other circuits be held sufficient to confer juris-

diction on the appellate court to review the dismissal

of the claim in question.

A lawyer who read only that notice of appeal, and

who knew nothing about the content of the February

11, 2008 order or the nature of the underlying law-

suit, undoubtedly would conclude (as the Sixth

Circuit) that the issue which Schramm sought to

raise on appeal in the retaliatory disqualification law-

suit was the correctness of the February 11 order.

Nothing on the face of the notice of appeal itself gives

any indication that the February 11 order was

actually a decision in another case, and thus could

not have been the order which the notice of appeal

intended to appeal. The Sixth Circuit standard com-

pels the conclusion that the notice of appeal filed in

the retaliatory disqualification case was an appeal of

the February 11 order which actually dismissed the

retaliatory assault case.

On the other hand, in the ten circuits which look

outside the notice of appeal in applying Rule 3(cX1XB),

an appellate court would assuredly conclude that the

notice of appeal was intended to appeal the dismissal

of the retaliatory disqualification action which actu-

ally occurred on March 25. First, of course, that

would be apparent simply from a reading of the

February 11 order, which has nothing to do with the

retaliatory disqualification case, and of the March 25

order, which does dispose of that case. Second, the

filing in the retaliatory disqualification case of an

appeal from the February 11 order cannot have been

intended as an appeal of the February 11 order itself,

which resolved the retaliatory assault case. The

record in the latter case contained a separate notice

of appeal in that litigation, and Schramm’s counsel

had paid two $455 docketing fees in the two cases,

clearly intending to initiate two appeals. Third, on

April 21, 2008, within the time period for appealing

from the dismissal of the retaliatory disqualification

case, Schramm had filed in the court of appeals a

Statement of Parties and Issues in that case which

described the issues in the March 25 order, not those

in the February 11 order. Fourth, Schramm’s brief on

appeal specifically challenged the reasoning and

holding of the March 25 order.

In sum, this is prerisely the type of case in which

the application of Rule 3(c\1)B), and the existence of

appellate jurisdiction, turn on whether the court of

appeals applies the Sixth Circuit standard or the very

different standard utilized in the other circuits.

Il. THE COURT OF APPEALS HAS DECIDED

AN IMPORTANT QUESTION OF FEDER-

AL LAW WHICH SHOULD BE RESOLVED

BY THIS COURT

In Robinson v. Shell Oil Co., 519 U.S. 337 (1997),

this Court held that the anti-retaliation provision of

Title VII protects former employees. The decision of

the Sixth Circuit effectively nullifies Robinson for a

substantial and important group of workers.

The Sixth Circuit holds in the instant case that

an employer is not liable for retaliation against a

former worker if the victim has not been employed for

several years and the retaliation occurs outside the

workplace. That immunity from liability would,

almost by definition, apply to an entire and important

category of protected workers: former employees (or,

presumably, unsuccessful applicants) who file suit

under Title VII against their former employers.

Section 704(a) of Title VII expressly forbids

retaliation against an individual because he or she

“participated in any manner in a{] ... proceeding, or

hearing under this title.” 42 U.S.C. § 2000e-3(a).

Participation in a lawsuit to enforce Title VII itself

lies at the very core of the anti-retaliation protection.

For a former employee asserting that he or she was

dismissed or forced to resign in violation of Title VII,

a judicial proceeding under Title VII would as a

practical matter usually occur “several years [after]

the termination of the ... employment.” (App. 21a n.2).

Because of the exhaustion requirement in Title VU,

most Title VII litigation only commences at least a

year after a worker’s dismissal or resignation, and

normally continues for a significant period of time

thereafter. Precisely because these plaintiffs are

former employees, they are unlikely to set foot in

their former workplace. Thus retaliation against a

former employee who files suit under Title VII will

ordinarily fall under the Sixth Circuit rule precluding

employer lability for retaliation that is “several

years” after the termination of the victim’s employ-

ment and that “occurred outside of the workplace.”

(App. 22a).

In the context of Title VII, a rule that employers

are not liable for such a category of retaliation is

indistinguishable from a holding that that type of

retaliation is lawful under section 704(a). Individual

supervisors and managers are not personally liable

for their role in violations of Title VII. Thus if the

employer itself is not liable for a particular action, no

one is liable at all. It makes no practical sense to say

that retaliation against Schramm, or other former

employees who sue their former employers, is “a

violation of Title VII's anti-retaliation provision,” and

yet insist that employers “cannot be held vicariously

liable” for that type of violation. (See App. 21a).

The loophole in the Title VII anti-retaliation pro-

vision created by the decision below is of considerable

practical importance. A majority of all Title VII

lawsuits appear to be filed by former employees; a

substantial majority of the employment discrimina-

tion cases decided by this Court were brought by such

former employees.“ If, as the Sixth Circuit held,

employers are not (at least ordinarily) liable for

retaliation against those plaintiffs, the statutory

provision protecting these Title VII plaintiffs from

retaliation would usually be meaningless.

It is particularly inappropriate that the Sixth

Circuit rule, holding that Title VII generally affords

no protection for non-workplace retaliation against

former employees who file suit, was adopted at the

behest of the United States. Only three years ago in

Burlington Northern & Santa Fe Railway Co. v.

White, 548 U.S. 53 (2006), this Court unanimously

rejected the contention there advanced by the Solici-

tor General that section 704(«) is limited to retal-

iatory acts involving the “terms and conditions of

employment.” 548 U.S. at 62-67. “The scope of the

anti-retaliation provision,” the Court held, “extends

beyond workplace-related ... acts and harm.” 548 U.S.

at 67. In the instant case, the government has

obtained — at least for employers in the Sixth Circuit

— a holding that employer liability for retaliation

against former workers is limited to acts that have a

“connection to the workplace” (App. 21a n.2), a con-

nection that for many of those plaintiffs will not exist.

* See Brief Appendix.

CONCLUSION

For the above reasons, a writ of certiorari should

issue to review the judgment and opinion of the court

of appeals.

Respectfully submitted,

S. JOSEPH SCHRAMM

Counsel of Record

1129 Charles Street

McKees Rocks, PA 15136

(412) 331-6709

BEVERLY WOODALL

254 Hays Road

Pittsburgh, PA 15241

(724) 260-0525

ERIC SCHNAPPER

University of Washington

School of Law

P.O. Box 353020

Seattle, WA 98195

(206) 616-3167

Attorneys for Petitioner

318 Fed.Appx. 337

United States Court of Appeals,

Sixth Circuit.

William SCHRAMM, Plaintiff-Appellant,

Ray LaHOOD, Secretary, Dept. of Transportation,

Defendant-Appellee.

Nos. 08-3420, 08-3421.

March 19, 2009.

On Appeal from the United States District Court for

the District Northern of Ohio.

Before: McKEAGUE and GRIFFIN, Circuit Judges;

WEBER, Senior District Judge.*

PER CURIAM.

Plaintiff-Appellant William Schramm (“Schramm”)

filed two retaliation cases under Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et

seq., against the Secretary of the Department of

Transportation (“Secretary”). Although the two cases

were consolidated by the district court, they retained

their separate case numbers and documents con-

tinued to be filed separately in the two cases. The

* The Honorable Herman J. Weber, Senior United States

District Judge for the Southern District of Ohio, sitting by desig-

nation.

district court granted summary judgment in favor of

the Secretary in both cases. Schramm filed a notice of

appeal in each case, and this court consolidated the

two appeals. For the reasons set forth below, we find

that the notice of appeal filed in Case No. 08-3420

violates Fed. R.App. P. 3, and we DISMISS the

appeal for lack of subject matter jurisdiction. We

AFFIRM the decision of the district court granting

summary judgment in favor of the Secretary in Case

No. 08-3421.

IL.

Schramm was employed by the Federal Aviation

Administration (“FAA”) in the 1990’s as an air traffic

controller at the Toledo Express Airport in Toledo,

Ohio. In November of 1998, he went on adminis-

trative leave from his position, and the following year

he retired from the FAA on a disability pension. In

May of 2000, Schramm filed an employment discrim-

ination action in federal court against the Secretary,

claiming he had been the victim of sex discrimination

and retaliation during his employment with the FAA.

Among the individuals he named as wrongdoers in

the suit was James Blumberg (“Blumberg”), an air

traffic control specialist supervisor. Summary judg-

ment was granted in favor of the Secretary and the

decision was affirmed on appeal on July 14, 2004.

While Schramm’s employment discrimination

lawsuit was pending, an incident occurred which led

to the filing of the first lawsuit that forms the basis

for the present appeal (hereinafter referred to as the

“retaliatory assault case”). The facts surrounding that

incident, construed in the light most favorable to

Schramm, are as follows: On December 18, 2002, a

process server retained by Schramm, William Boden

(“Boden”), went to the Toledo Express Airport to serve

subpoenas on witnesses in the pending discrimination

lawsuit. Boden met with Mark Fischer (“Fischer”),

the chief of the airport security personnel, to enlist

his assistance in serving four subpoenas on FAA

employees working in the air traffic control tower, a

restricted area within the terminal building to which

members of the public do not have access. Fischer

advised Boden to proceed to the tower entrance,

where an FAA employee would either grant him

admittance or accept the subpoenas. After airport

officials decided to deny Boden access to the control

tower, Boden was allowed access to a landing area

leading to the tower, through which all employees

would have to pass when going to or from the tower.

At some point, Boden called Schramm and re-

quested that he come to the airport and identify the

individuals to be served as they exited the tower. On

Boden’s advice, Schramm maintained a distance of 20

feet from the individuals to be served, including

Blumberg. Schramm identified Blumberg as he left

the tower. Boden pressed a subpoena to Blumberg’s

shoulder and informed him that he had been served.

Blumberg, whose face and body language reflected

rage, swung his arm back to avoid contact with Boden

and let the subpoena fall to the ground. On the advice

of Boden, Schramm remained in the terminal for a

period of time after Blumberg left in order to lessen

the chance of encountering Blumberg in the parking

lot. Schramm then exited through the main doors of

the lobby.

As Schramm made his way to his car, Blumberg

pulled around the corner in his pick-up truck and

drove alongside Schramm. Blumberg verbally abused

Schramm and made comments such as “they were not

through with him” and “they would take care of him

at trial.” Schramm shouted back at Blumberg that he

had been served and walked away, after which

Blumberg shifted his truck into reverse, drove at

Schramm at a high rate of speed, and swung around

at the last possible second. Blumberg continued to

follow Schramm and verbally abuse him as Schramm

walked to the Port Authority Police Station to file a

complaint.

On March 20, 2003, Schramm filed a complaint of

retaliation with the Equal Employment Opportunity

Commission (“EEOC”). Shortly before he did so, a

series of events began to unfold which culminated in

the filing of Schramm’s second retaliation lawsuit

(hereinafter the “medical disqualification case”). In

February of 2003, after having been on medical dis-

ability retirement for taking Zoloft to treat Anxiety

Depressive Disorder, Schramm applied to be an air

traffic controller for Midwest Air Traffic Controllers

(“Midwest Air”), a company that contracts with the

FAA to handle air traffic at smaller facilities. On

February 5, 2003, he underwent a standard FAA

medical examination conducted by Dr. John

Culberson. Schramm informed Dr. Culberson that he

had not taken Zoloft in over 90 days, which Dr.

Culberson noted on his medical exam. Dr. Culberson

issued him a Class Il medical certification and

transmitted the exam to the appropriate division of

the FAA for review. Schramm then went to work as

an air traffic controller at the airport in Jackson,

Michigan.

In August of 2003, Schramm obtained a position

as a contract controller for the United States Depart-

ment of Defense as part of Operation Enduring

Freedom. Because his deployment would last a year,

he underwent another standard FAA examination,

which was conducted by Gary L. Lynd, D.O. Dr. Lynd,

like Dr. Culberson, was an Aviation Medical Exam-

iner (“AME”), who conducted medical examinations

on a contract basis for the FAA. Schramm informed

Dr. Lynd that he was no longer being treated for

anxiety/depression and that he had not taken Zoloft

since 2002. Schramm received a Class Il medical

certificate on August 25, 2003. He was then deployed

to Uzbekistan.

On November 7, 2003, Schramm filed his com-

plaint in federal court in the retaliatory assault case,

Case No. 3:03cv7655. He claimed that the Secretary

had retaliated against him for participating in an

activity protected by Title VII, specifically, that

Blumberg had assaulted him in retaliation for liti-

gating his sex discrimination suit and the FAA was

vicariously liable for Blumberg’s conduct as it had

actual and constructive knowledge of that conduct.

Schramm served a copy of the summons and com-

plaint on the Secretary on or about December 1, 2003.

On December 30, 2003, Dr. Nestor B. Kowalsky

sent Schramm a letter notifying him that he was

not: qualified for the Class IT medical certificates

issued to him on February 5, 2003, and August 23,

2003." The letter informed Schramm that a review of

his applications and reports of physical examinations

of August 25, 2003 and February 5, 2003, disclosed

that he did not meet the governing medical standards

and that he was not qualified for the airman medical

certificate issued to him by the AME “due to history

of Anxiety Disorder and/or Depressive Disorder and

use of disqualifying medication.” As a result of this

action, Schramm was forced to terminate his position

in Uzbekistan and return to the United States, and

his employment with Midwest Air was terminated.

Only after Schramm underwent yet another medical

examination in January of 2005 was he re-issued a —

Class II medical certificate by the FAA. Midwest Air

did not rehire him until May of 2005.

Plaintiff filed a complaint arising from his medi-

cal disqualification on December 28, 2004 (Case No.

3:04cv7782), claiming that the FAA’s December 30,

2003 decision denying his Class II medical certification

was in retaliation for engaging in activity protected

* The latter certificate was actually issued on August 25,

2003.

by Title VII, specifically, filing the retaliatory assault

case against the Secretary on November 7, 2003.

iif.

The district court issued a decision on February

11, 2008, 2008 WL 397592, granting summary judg-

ment in favor of the Secretary in the retaliatory

assault case on the ground that Schramm could not

show that he was engaged in a protected activity, and

he therefore could not establish a prima facie case

of retaliation. The district court determined that a

plaintiff in a civil lawsuit is normally not permitted to

be involved in the subpoena process in any respect

pursuant to Fed.R.Civ.P. 45(bX1), which at the time of

the court’s decision provided that “A subpoena may be

served by any person who is not a party and is not

less than 18 years of age.” The district court found

that Schramm could have applied to the court for an

order allowing him to assist the process server be-

cause of the unusual circumstances, but he did not do

so. The court indicated that Schramm had engaged in

unreasonable conduct and had flaunted federal avi-

ation policy and the federal rules by identifying for

Boden the individuals to be served.

The February 11, 2008 order granting the Secre-

tary’s motion for summary judgment and dismissing

Schramm’s complaint with prejudice in Case No. 3:03

cv7655, the retaliatory assault case, was entered in

the medical disqualification case, Case No. 3:04cv7782,

on that same date. The order did not, however,

resolve any part of the medical disqualification case,

which remained pending. On March 25, 2008, 2008

WL 820463, the district court issued an opinion and

order in the medical disqualification case which dis-

posed of the case on the merits. In its opinion, the

district court acknowledged that the Secretary did

not dispute that the first and third prongs of

Schramm’s prima facie case were met for summary

judgment purposes, i.e., Schramm had engaged in

protected activity by filing the first Title VII re-

taliation lawsuit, and the FAA had taken an adverse

employment action against Schramm by finding that

he was disqualified from holding a Class II airman’s

medical certificate. The court also found that the

causation prong was satisfied for purposes of the

prima facie case in view of the brief period of time —

only 53 days — between the filing of the Title VI

lawsuit and Schramm’s medical disqualification. The

court determined, however, that the knowledge ele-

ment was not satisfied. Specifically, the district court

determined that the Flight Surgeon’s Office of the

FAA did not know of Schramm’s lawsuit when it

issued the medical disqualification letter.

IV.

Following dismissal of the medical disqualifi-

cation case, on April 1, 2008, Schramm filed separate

notices of appeal in the two retaliation cases. In each

notice of appeal, Schramm states that he is appealing

from the “Summary Judgment and Termination

entered in this action on the 11th day of February,

2008.” The only entry dated February 11, 2008, is the

opinion and order that disposed of the retaliatory

assault case. Schramm failed to designate the March

25, 2008 order that disposed of the medical dis-

qualification case in either notice of appeal, even

though he challenged the order in his appellate briefs

and the Secretary responded to his arguments.

Although the Secretary did not bring Schramm’s

omission to our attention, we have a duty to consider

sua sponte whether appellate jurisdiction is properly

invoked. See Mattingly v. Farmers State Bank, 153

F.3d 336, 336 (6th Cir.1998). Accordingly, at oral

argument we raised the issue of whether there is a

jurisdictional defect in the notice of appeal filed in the

medical disqualification case. Following oral argu-

ment, the parties submitted briefs on the issue.

Schramm alleges that he mistakenly interpreted the

February 11, 2008 order as dismissing both retali-

ation cases, and he misunderstood the March 25,

2008 order to be an additional opinion of the district

court which was intended to supplement its earlier

order. Schramm explains that this is why he did not

mention the March 25, 2008 order in his notice of

appeal. He claims that despite his omission, this

court has jurisdiction to review the order because his

subsequent filings and briefs clearly demonstrate

that it was his intent to appeal the March 25, 2008

order and the Secretary understood that such was his

intent. Schramm asserts that he stated the sub-

stantive issues he intended to address on appeal of

the medical disqualification case in the Statement of

10a

Issues and Parties served on the Secretary on April

21, 2008; he contested the district court’s decision to

dismiss the medical disqualification case in his

appellate brief; and the Secretary responded in his .

brief to the issues Schramm had raised concerning

the retaliatory medical disqualification. Schramm

claims that he has provided the functional equivalent

of what Fed. R.App. P. 3 requires, so this court has

jurisdiction to review dismissal of the medical dis-

qualification case.

The Secretary argues that Schramm’s failure to

properly identify the order being appealed in the

medical disqualification case violates Fed. R.App. P.

3(cX1) and deprives this court of subject matter

jurisdiction over the appeal. The Secretary concedes

that he was not harmed by the error but argues that

the court cannot employ a harmless error or waiver

analysis when evaluating defects that go to subject

matter jurisdiction.

Fed. R.App. P. 3(cX1) states that the notice of

appeal must

(A) specify the party or parties taking the

appeal by naming each one in the cap-

tion or body of the notice, but an attor-

ney representing more than one party

may describe those parties with such

terms as “all plaintiffs,” “the defen-

dants,” “the plaintiffs A, B, et al.,” or “all

defendants except X”;

(B) designate the judgment, order, or part

thereof being appealed; and

lla

taken.

Rule 3(c)’s requirements serve two functions:

They address fairness and due process con-

cerns by ensuring that the filing provides

sufficient notice to other parties and the

courts. And they address administrative

concerns by avoiding inconsistency, vague-

ness and an unnecessary multiplication of

litigation caused by uncertainty over who

has appealed and from what judgment. Unit-

ing these considerations is notice — notice to

the opposing party and the court that an

appeal of a given order has been taken and

that it has been taken to a certain court. An

aspiring notice of appeal thus must specify

not just any party but the party ... taking

the appeal; it must designate not just any

court but the court to which the appeal is

taken; and it must designate not just any

order but the ... order [or orders] . .. being

appealed.

Isert v. Ford Motor Co., 461 F.3d 756, 758-59 (6th

Cir.2006) (internal quotations and citations omitted).

Rule 3 imposes jurisdictional requirements that

may not be waived, even for good cause shown. See

Torres v. Oakland Scavenger Co., 487 U.S. 312, 317,

108 S.Ct. 2405, 101 L.Ed.2d 285 (1988); Caudill v.

Hollan, 431 F.3d 900, 907 (6th Cir.2005). Nonethe-

less, despite the mandatory nature of the Rule, its

requirements should be liberally construed and

applied. Caudill, 431 F.3d at 907. “[F]Junctional rather

12a

than formalistic compliance is all that is required.”

Isert, 461 F.3d at 759. “[I}mperfections in noticing an

appeal should not be fatal where no genuine doubt

exists about who is appealing, from what judgment,

to which appellate court.” Becker v. Montgomery, 532

U.S. 757, 767, 121 S.Ct. 1801, 149 L.Ed.2d 983

(2001); see also Sanabria v. United States, 487 U.S.

54, 68 n. 21, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) (“A

mistake in designating the judgment appealed from is

not always fatal, so long as the intent to appeal from

a specific ruling can fairly be inferred by probing the

notice and the other party was not misled or prej-

udiced.”)

Although we have loosened the requirement that

the notice of appeal name the court to which the

appeal is taken, see Dillon v. United States, 184 F.3d

556, 558 (6th Cir.1999) (en banc), we have declined to

similarly loosen the requirement that the notice of

appeal “designate the judgment, order, or part thereof

being appealed.” United States v. Glover, 242 F.3d

333, 337 (6th Cir.2001). We reasoned in Glover that to

opt for a more relaxed approach in this regard would

“too frequently require this Court to sort through a

morass of objective and subjective factors to meditate

upon and divine the party’s intended appellate tar-

gets” from among any number of potentially appeal-

able issues that may have arisen prior to an appeal.

Id. Thus, where an appellant “chooses to designate

specific determinations in its notice of appeal, only

those determinations may be raised on appeal.”

Crawford v. Roane, 53 F.3d 750, 752 (6th Cir.1995);

13a

see also United States v. Universal Mgmt. Servs., Inc.,

Corp., 191 F.3d 750, 756 (6th Cir.1999) (appellants

were foreclosed from asking the court to review issues

rejected in the district court’s denial of their motion

for reconsideration where their notice of appeal

indicated they were appealing only the district court’s

order on motions for summary judgment).

Schramm cites several of our prior decisions in

support of his position that the notice of appeal filed

in the medical disqualification case provides the func-

tional equivalent of what Rule 3 requires and we

therefore have jurisdiction to review the dismissal of

the case. First, he cites Crawford, 53 F.3d at 750,

where we considered the district court’s denial of the

plaintiffs’ motion for leave to amend, even though the

plaintiffs stated in the notice of appeal that they

sought review of the district court’s judgment denying

their motion for summary judgment and granting one

defendant’s motion for summary judgment. Second,

Schramm cites Caudill, 431 F.3d at 900, where the

notice of appeal stated that the plaintiffs were

appealing the order that directed the entry of final

judgment but did not specifically mention the

judgment itself and did not refer to an earlier order

that dismissed claims against one of the defendants

in her individual capacity. We interpreted the appeal

from the order directing entry of final judgment as

tantamount to an appeal from the final judgment

itself, and we found we had jurisdiction over the

appeal from the order on the individual liability

claims pursuant to our rule that “we will entertain

l4a

arguments on all objections and asserted errors prior

to the final disposition of a case if a party indicates in

its notice of appeal that it appeals either the final

judgment or the final order in the case.” Id. at 906.

Third, Schramm cites Taylor v. United States, 848

F.2d 715 (6th Cir.1988), where we found we had

jurisdiction to consider the declaratory judgment

aspect of the case as well as the breadth of the in-

junctive relief ordered as part of the same judgment,

even though the notice of appeal designated only the

injunctive aspect of the case.

Our prior decisions on which Schramm relies do

not support a finding that we have jurisdiction over

the notice of appeal filed in the medical disqualifi-

cation case. In each of these previous cases, the

appellant designated the final judgment or order in

the notice of appeal and sought to appeal either an

order that preceded the final judgment or a portion of

the final judgment. This case is distinguishable in

that Schramm seeks to appeal a final order that he

did not designate in the notice of appeal, and the

order that he did designate in the notice was a

previously-issued order which disposed of a factually

distinct, albeit consolidated, case. There is no excep-

tion to the rule that the notice of appeal must desig-

nate “the judgment, order, or part thereof being

appealed” in a situation such as this.

Schramm also cites two cases from other circuits

in support of his argument that a party should be

permitted to pursue an appeal from a specific judg-

ment when the intent to do so can be fairly inferred

15a

from the appellant’s notice and subsequent filings

and when the opposing party is not misled by the

mistake. See Messina v. Krakower, 439 F.3d 755

(D.C.Cir.2006); Shapiro ex rel. Shapiro v. Paradise

Valley Unified School Dist. No. 69, 374 F.3d 857 (9th

Cir.2004). Insofar as these decisions allow the court to

look beyond the notice of appeal to discern an appel-

lant’s intent and determine whether the functional

requirements of Rule 3 are fulfilled, they are not

consistent with the case law of this circuit and

Schramm’s reliance on them is misplaced. Our prece-

dents do not allow us to examine the circumstances

surrounding an appeal in an effort to determine

whether an appellant has made a mistake in desig-

nating the order he wishes to appeal. They instead

require that we hold firm to the requirements of Rule

3(cX1) and look to the notice of appeal to ascertain

the judgments and orders the notice encompasses.

Consistent with our prior decisions, we conclude

that the defect in the notice of appeal is jurisdictional

and precludes us from entertaining the appeal filed in

the medical disqualification case. Schramm concedes

that the notice misidentified the order being appealed

and designated the February 11, 2008 order, which

resolved only the retaliatory assault case. The appeal

from that order does not encompass orders issued in

the medical disqualification case after February 11,

2008. It matters not that Schramm’s intent to appeal

the March 25, 2008 order is obvious from his appel-

late briefs and that the Secretary was not prejudiced

by his mistake in identifying the wrong order. What

16a

matters is that Schramm’s intent to appeal the March

25, 2008 order is not discernible from the notice of

appeal itself. To the contrary, it appears from the

notice that Schramm intended to appeal only the

order that granted summary judgment in the retali-

atory assault case but which was entered into the

record in both that case and the medical disquali-

fication case. Thus, despite the harsh result that a

strict application of Rule 3(cX1) yields in this case,

Schramm’s failure to designate the March 25, 2008

order in his notice of appeal filed in Case No.

3:04cv7782 compels us to conclude that we lack

jurisdiction over the district court’s order of that date

deciding that Schramm could not establish a

retaliation claim under Title VII stemming from his

medical disqualification.

We turn then to whether the district court erred

by granting summary judgment in favor of the

Secretary in the retaliatory assault case and dis-

missing that lawsuit.

This court reviews a district court’s grant of sum-

mary judgment de novo. White v. Baxter Healthcare

Corp., 533 F.3d 381, 389 (6th Cir.2008). Summary

judgment is proper “if the pleadings, the discovery

and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any mate-

rial fact and that the movant is entitled to judgment

as a matter of law.” Fed.R.Civ.P. 56(c). A “genuine”

17a

dispute is one that would permit a reasonable jury

to return a verdict in favor of the non-moving party.

Henderson v. Walled Lake Consol. Schs., 469 F.3d

479, 487 (6th Cir.2006). A factual dispute involves a

“material” fact only if its resolution could affect the

outcome of the litigation under the applicable law. Id.

At the summary judgment stage, the district court

must construe the evidence and draw all reasonable in-

ferences in favor of the non-moving party. Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Jones v.

Potter, 488 F.3d 397, 403 (6th Cir.2007).

Title VII’s anti-retaliation provision, 42 U.S.C.

§ 2000e-3(a), provides that

It shall be an unlawful employment practice

for an employer to discriminate against any

of his employees or applicants for employ-

ment ... because he has opposed any prac-

tice made an unlawful employment practice

by this subchapter, or because he has made a

charge, testified, assisted, or participated in

any manner in an investigation, proceeding,

or hearing under this subchapter.

To establish a prima facie case of retaliation, a

plaintiff must demonstrate that (1) he engaged in

activity protected under the statute; (2) the exercise

of his civil rights was known by defendant; (3)

defendant thereafter took an adverse employment

action against the plaintiff, or the plaintiff was sub-

jected to severe or pervasive retaliatory harassment

by a supervisor; and (4) a causal connection exists

18a

between the protected activity and the adverse em-

ployment action or harassment. See Morris v. Oldham

County Fiscal Court, 201 F.3d 784, 792 (6th Cir.2000).

In Burlington Northern & Santa Fe Ry. Co. v.

White, 548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d

345 (2006), the United States Supreme Court clari-

fied that the scope of Title VII's anti-retaliation provi-

sion extends beyond workplace-related or employment-

related retaliatory acts and harm. The Supreme

Court fleshed out the provision’s standard, explaining

that the anti-retaliation provision protects an indi-

vidual not from all retaliation, but only from retali-

ation that causes injury or harm. Jd. The challenged

action must be one that a reasonable employee would

have found to be “materially adverse,” which in the

context of a retaliation claim “means it well might

have ‘dissuaded a reasonable worker from making or

supporting a charge of discrimination.’” Jd. at 68, 126

S.Ct. 2405 (citing Rochon v. Gonzales, 438 F.3d 1211,

1219 (D.C.Cir.2006)). The anti-retaliation provision’s

standard is phrased in terms of “the reactions of a

reasonable employee” because “the provision’s stan-

dard for judging harm must be objective.” Id. The

standard is phrased “in general terms because the

significance of any given act of retaliation will often

depend upon the particular circumstances. Context

matters.” Id. at 69, 126 S.Ct. 2405.

The anti-retaliation standard does not require

consideration of the underlying conduct that prompted

the filing of the Title VII complaint. Jd. Instead, “the

standard is tied to the challenged retaliatory act... .”

19a

Id. The Supreme Court in Burlington explained that

“(bly focusing on the materiality of the challenged

action and the perspective of a reasonable person in

the plaintiff’s position, we believe this standard will

screen out trivial conduct while effectively capturing

those acts that are likely to dissuade employees from

complaining or assisting in complaints about dis-

crimination.” Jd. at 69-70, 126 S.Ct. 2405.

Schramm claims that the district court com-

mitted reversible error by holding that he went

beyond the bounds of protected conduct and violated

Fed.R.Civ.P. 45(b)(1) by identifying Blumberg to the

process server, Boden. The Secretary argues that

Schramm’s conduct violated Rule 45(bx1) because

Schramm was involved in serving a subpoena. The

Secretary further argues that Schramm cannot

establish a retaliation claim because Blumberg’s con-

duct is not the type of conduct that “could well

dissuade a reasonable worker from making or sup-

porting a charge of discrimination.” The Secretary

contends that a reasonable plaintiff would not serve a

trial subpoena and therefore would not fear that he

may be assaulted by an employee of a defendant

during the subpoena process. Finally, the Secretary

denies that he can be held vicariously liable under

Title VII for Blumberg’s conduct.

The district court’s determination that Schramm’s

conduct in assisting the process server was not pro-

tected because it violated Rule 45(bX1) was errone-

ous. Schramm complied with the Rule by enlisting

the services of Boden to serve the subpoenas.

20a

Schramm came to the airport at Boden’s request not

to serve the subpoenas himself, but only to identify

the individuals on whom Boden was to serve the

subpoenas. There is nothing in the text of Rule

45(bX1) that prohibited Schramm from assisting

Boden in this manner. Nor is there anything in the

Rule that would have alerted Schramm to the need to

obtain a court order before he went to Boden’s assis-

tance. Schramm did not flaunt the federal rules in

any manner by acting as he did and, contrary to the

district court’s suggestion, his conduct did not invite

Blumberg’s threatening and belligerent behavior.

Because Schramm’s act of assisting with the service

of subpoenas in his discrimination lawsuit falls with-

in the purview of Title VII’s anti-retaliation provision,

and because Blumberg’s conduct might well deter a

reasonable individual from engaging in such activity,

Schramm is not precluded from establishing that he

engaged in protected conduct.

We therefore turn to the question of whether the

Secretary can be held liable for Blumberg’s conduct.

The Secretary argues that he cannot be held liable

because this case does not fall under any of the cate-

gories where vicarious liability is traditionally im-

posed upon an employer. The Secretary contends that

Blumberg did not serve the interest of the FAA in any

discernible fashion and he was not aided by his

supervisory position in carrying out his personal ob-

jective. Schramm counters that as his former super-

visor, Blumberg was a decision maker who frequently

affected the conditions of his working environment

2la

and he was therefore a proxy for the FAA when he

assaulted Schramm.

We find that the Secretary cannot be held vicar-

iously liable under Title VII for Blumberg’s conduct

based on the peculiar facts of this case. Schramm

had not been employed by the FAA for several years

when the subpoena incident occurred, and the analy-

ses that courts typically undertake to determine

vicarious liability for a violation of Title VII’s anti-

retaliation provision simply do not apply to these

facts. Blumberg was not Schramm’s supervisor when

he engaged in the wrongful conduct, and the fact that

he had supervised Schramm some years before the

subpoena incident is not material to the question of

whether Blumberg’s personal conduct outside of the

workplace can be imputed to the Secretary.” The Sec-

retary therefore cannot be held liable for Blumberg’s

conduct based on his supervisory position with the

FAA.

Nor is the imposition of liability proper under the

analysis applicable to a situation involving retalia-

tory conduct by a coworker, pursuant to which an

* We do not mean to suggest that vicarious liability can

never be imposed under Title VII's anti-retaliation provision for

conduct that occurs outside the workplace. In the circumstances

presented by this case, however, where several years had

elapsed between the termination of the plaintiff’s employment

and the alleged retaliatory action, which had no connection to

the workplace, the mere fact that the person who took the action

formerly supervised the plaintiff is immaterial for purposes of

imposing vicarious liability.

22a

employer will be liable for a coworker’s actions if

“(1) the coworker’s retaliatory conduct is sufficiently

severe so as to dissuade a reasonable worker from

making or supporting a charge of discrimination, (2)

supervisors or members of management have actual

or constructive knowledge of the coworker’s retalia-

tory behavior, and (3) supervisors or members of

management have condoned, tolerated, or encouraged

the acts of retaliation, or have responded to the plain-

tiff’s complaints so inadequately that the response

manifests indifference or unreasonableness under the

circumstances.” See Hawkins v. Anheuser-Busch, Inc.,

517 F.3d 321, 347 (6th Cir.2008). Blumberg and

Schramm cannot be characterized as coworkers at the

time of the subpoena incident because they had not

worked together for several years. Moreover, this is

not a situation where the Secretary could have pre-

vented the offending conduct given that Blumberg’s

actions were spontaneous and occurred in a non-work

setting. Finally, Schramm does not allege on appeal

that the Secretary condoned, tolerated or encouraged

Blumberg’s outrageous conduct in any manner.

In short, because Schramm had not been working

at the FAA for several years when the subpoena

incident occurred, and because the incident was an

isolated, unforeseen event which occurred outside of

the workplace, there is no basis for holding the Secre-

tary liable under Title VII for Blumberg’s actions

against Schramm. Instead, given the unique circum-

stances of this case, Schramm’s proper remedy lies

against Blumberg under tort law. We therefore affirm

23a

the district court’s grant of summary judgment in

favor of the Secretary in the retaliatory assault case,

but we do so on the alternative ground that the Sec-

retary is not vicariously liable for Blumberg’s actions.

See Zaluski v. United Am. Healthcare Corp., 527 F.3d

564, 570 (6th Cir.2008) (appellate court may affirm

the district court’s dismissal of the plaintiff’s claims

on any grounds, including those not relied on by the

district court).

For the reasons set forth above, the appeal filed

in the medical disqualification case, No. 08-3420, is

DISMISSED for lack of jurisdiction. The decision of

the district court dismissing the retaliatory assault

case, No. 08-3421, is AFFIRMED.

24a

2008 WL 397592

United States District Court,

N.D. Ohio,

Eastern Division.

William H. SCHRAMM, Plaintiff,

Norman Y. MINETA, Secretary,

Department of Transportation, Defendant.

No. 3:03CV7655.

Feb. 11, 2008.

S. Joseph Schramm, McKees Rocks, PA, for Plaintiff.

Robert G. Young, Office of the U.S. Attorney, Toledo,

OH, for Defendant.

OPINION AND ORDER

CHRISTOPHER A. BOYKO, Judge:

This matter comes before the Court upon the

Moion (ECF DKT. # 29) of the United States for

Summary Judgment. For the following reasons, the

motion is granted.

I. FACTUAL BACKGROUND

Plaintiff William H. Schramm (“Schramm”) was

formerly employed by the Federal Aviation Adminis-

tration (“FAA”) as an air traffic controller at the

Toledo Express Airport in Toledo, Ohio. He went on

administrative leave from his position with the FAA

in November of 1998 and ultimately retired on a

25a

disability pension from the agency in 1999. In May of

2000, Schramm filed an employment discrimination

action in the Northern District of Ohio against the

United States Secretary of Transportation, alleging

he had been a victim of sex discrimination while em-

ployed by the FAA. Plaintiff claimed he was subjected

to a hostile work environment, disparate treatment

and retaliation for engaging in an activity protected

by Title VII of the Civil Rights Act of 1964 (“Title

VII”). James Blumberg (“Blumberg”), an air traffic

control specialist supervisor, was among the individ-

uals named in that suit. Summary judgment was

granted to the FAA in that case by the Magistrate

Judge. On July 14, 2004, the Sixth Circuit Court of

Appeals affirmed the Magistrate Judge’s decision.

That lawsuit was pending when the events occurred

that form the basis for the instant case.

On December 18, 2002, at the Toledo airport,

Schramm assisted a process server in serving sub-

poenas upon witnesses in the sex discrimination suit

for the pending trial. The process server enlisted

Schramm to identify the individuals to be served as

they exited the tower, after the airport officials denied

him access to the control tower. Plaintiff alleges

Blumberg, one of his former supervisors, became en-

raged when he was served with the subpoena and

then left the control tower by a side exit. Schramm

claims he himself exited through the main doors of

the lobby, and as he made his way to his car,

Blumberg pulled around the corner in his pick-up

truck. While driving alongside of him, Plaintiff states

26a

Blumberg verbally abused him with comments to the

effect that “they were not through with him” and

“they would take care of him at trial.” Plaintiff claims

he walked away, which provoked Blumberg to shift

his truck into reverse, drive at Plaintiff at a high rate

of speed, and swing around at the last possible second

to block Plaintiff’s path. Schramm alleges Blumberg

continued to follow him and verbally abuse him as he

walked to the Port Authority Police Station to file a

complaint.

On March 20, 2003, Schramm filed a formal

Equal Employment Opportunity Commission com-

plaint. Then, on November 7, 2003, Schramm filed

his Complaint in U.S. District Court against the FAA

for severe retaliatory harassment against Plaintiff for

his participation in an activity protected by Title VI

of the Civil Rights Act of 1964, § 704, as amended, 42

U.S.C. § 2000e, et seg. Schramm alleges Blumberg

assaulted him in retaliation for litigating the sex

discrimination suit; and since the FAA had actual and

constructive knowledge of Blumberg’s conduct, the

Government is vicariously liable.

IT. LAW AND ANALYSIS

Standard of Review

Motion for Summary Judgment

A summary judgment should be granted only if

“the pleadings, depositions, answers to interroga-

tories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact, if any,

27a

timely filed in the action, show that there is no

genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of

law.” See, Fed.R.Civ.P. 56(c). The burden is on the

moving party to conclusively show no genuine issue of

material fact exists, Celotex Corp. v. Catrett, 477 U.S.

317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986);

Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th

Cir.1994); and the court must view the facts and all

inferences in the light most favorable to the nonmov-

ing party, Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d

538 (1986). Once the movant presents evidence to

meet its burden, the nonmoving party may not rest

on its pleadings, but must come forward with some

significant probative evidence to support its claim.

Celotex, 477 U.S. at 324; Lansing Dairy, 39 F.3d at

1347; Lee v. Ritter, No. 1:02-CV-282, 2005 WL

3369616, at *2 (E.D.Tenn. Dec.12, 2005) This Court

does not have the responsibility to search the record

sua sponte for genuine issues of material fact.

Betkerur v. Aultman Hospital Ass’n., 78 F.3d 1079,

1087 (6th Cir.1996); Guarino v. Brookfield Township

Trustees, 980 F.2d 399, 404-06 (6th Cir.1992). The

burden falls upon the nonmoving party to “designate

specific facts or evidence in dispute,” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct.

2505, 91 L.Ed.2d 202 (1986); and if the nonmoving

party fails to make the necessary showing on an

element upon which it has the burden of proof, the

moving party is entitled to summary judgment.

Celotex, 477 U.S. at 323; Lee, 2005 WL 3369616 at *2.

28a

Whether summary judgment is appropriate depends

upon “whether the evidence presents a sufficient dis-

agreement to require submission to a jury or whether

it is so one-sided that one party must prevail as a

matter of law.” Amway Distributors Benefits Ass’n v.

Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir.2003)

(quoting Anderson, 477 U.S. at 251-52).

Retaliation Under Title VII

Title VII forbids an employer to discriminate

against an employee because the employee has

“opposed” a practice that Title VII prohibits or has

“made a charge, testified, assisted, or participated in”

a Title VII “investigation, proceeding, or hearing.” 42

U.S.C. § 2000e-3(a).

In order to establish a prima facie case of retal-

iation under Title VU, a plaintiff must show: (1) he

engaged in activity protected by Title VII; (2) this

exercise of protected rights was known to defendant;

(3) defendant took an adverse employment action

against the plaintiff, or the plaintiff was subjected to

severe or pervasive retaliatory harassment by a

supervisor, and (4) there was a causal connection be-

tween the protected activity and the adverse employ-

ment action or harassment. Morris v. Oldham County

Fiscal Court, 201 F.3d 784, 792 (6th Cir.2000). Once a

plaintiff has established a prima facie case, “the bur-

den of production of evidence shifts to the employer to

‘articulate some legitimate, nondiscriminatory reason’

for its actions.” Id. at 792-793 (quoting McDonnell

29a

Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct.

1817, 36 L.Ed.2d 668 (1973)). If the defendant can-

not establish a legitimate reason for its actions, the

plaintiff prevails. Ceckitti v. City of Columbus, 14

Fed. Appx. 512, 516 (6th Cir.2001); see also Cline v.

Catholic Diocese of Toledo, 206 F.3d 651, 658 (6th

Cir.2000). If a legitimate reason is established, then

the plaintiff must demonstrate, by a preponderance of

the evidence, that defendant’s proffered reason was

pre-textual, i.e., that it “was not the true reason for

the employment decision.” Morris, 201 F.3d at 793

(quoting Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67

L.Ed.2d 207 (1981)).

Plaintiff Schramm filed a Complaint against the

FAA for sex discrimination in May of 2000. Defendant

does not dispute that fact, nor contest that prose-

cuting that Complaint constitutes a protected activity.

However, whether Schramm’s assisting in serving

trial subpoenas upon anticipated witnesses qualifies

as a protected activity is genuinely disputed.

In answer to Plaintiff’s Request for Admission

No. 6 (ECF DKT. # 35), Defendant responds in part as

follows:

“George G. Hughes, Manager of the Toledo

Tower, was advised on December 18, 2002

that an individual was at the front door of

the facility and wished to serve subpoenas on

individuals working in the radar room and

tower. He called Howard Lyons, of the Great

Lakes Region’s Resource Management Branch,

30a

to determine whether the process server

should be afforded access to the secured

areas of the facility. After a discussion

with Lyons, Hughes decided not to give the

process server access to the tower due to

safety concerns and a desire not to interrupt

the operation, administrative work or train-

ing being carried out. Instead, he gave the

process server access to the landing area

leading to the tower which all employees

would have to pass through going to or from

work.”

In the Court’s view, this refusal of the process

server’s request to enter the radar tower, for non-

aviation purposes, and during normal hours of

operation, reflects a neutral policy, meant to foster

airport security and to insure the safety of employees,

as well as incoming and outgoing flights. The tower

personnel were responding to the process server, a

member of the general public, and not reacting to

Plaintiff Schramm. The contention that Plaintiff was

consequently “compelled” to assist the process server,

and put in the position of “confronting” his former

supervisor, James Blumberg, resulting in an assault,

was, in reality his own choice and a situation of his

own making.

Further, the Court agrees with Defendant, that

a plaintiff in a Title VII lawsuit, or in any civil

lawsuit, is normally not permitted to be involved in

the subpoena process in any respect. Pursuant to

Fed.R.Civ.P. 45(b\(1): “A subpoena may be served by

any person who is not a party and is not less than

3la

18 years of age.” (Emphasis added). Schramm could

have applied to the Court for an order allowing him to

assist the process server because of the unusual

circumstances. He did not.

Title VU anti-retaliation provisions protect rea-

sonable conduct by the employee in pursuing and

participating in litigation. They do not provide license

to flaunt the Federal Rules of Civil Procedure, nor do

they justify some exception to federal aviation secu-

rity policy. Schramm’s actions were counterproductive

and unauthorized. That Schramm was helping to

serve subpoenas for a discrimination lawsuit does not

excuse him, particularly since he could have secured

service by using proper legal channels. Certainly, the

Court does not condone Blumberg’s tortious conduct —

i.e., using a vehicle to assault Schramm and put him

in fear of bodily harm. However, if the Court were to

adopt Schramm’s argument, Title VII plaintiffs would

believe themselves entitled, behind the shield of

“protected activity”, to act outside the procedural

rules, and then sue their employers if they suffer an

adverse employment action. The Court will not

countenance such a result nor establish such a

precedent.

IT. CONCLUSION

For the foregoing reasons, the Court finds Plain-

tiff, William H. Schramm, cannot show he was en-

gaged in a protected activity and cannot, therefore,

establish a prima facie case of retaliation under Title

32a

Vil. Thus, the Court grants Defendant’s Motion for

Summary Judgment and dismisses Plaintiff’s Com-

plaint with prejudice.

IT IS SO ORDERED.

33a

2008 WL 820463

United States District Court,

N.D. Ohio,

Eastern Division.

William H. SCHRAMM, Plaintiff,

Norman Y. MINETA, Secretary, Department of

Transportation, Defendant.

No. 3:04CV7782.

March 25, 2008.

S. Joseph Schramm, McKees Rocks, PA, for Plaintiff.

Robert G. Young, Office of the U.S. Attorney, Toledo,

OH, for Defendant.

CHRISTOPHER A. BOYKO, J.

This matter comes before the Court upon the

Motion (ECF DKT # 18) of the United States for

Summary Judgment. For the following reasons, the

motion is granted.

I. FACTUAL BACKGROUND

William H. Schramm (“Schramm”), formerly em-

ployed as an air traffic controller with the Federal

Aviation Administration (“FAA”), brings this Title VII

action pursuant to 42 U.S.C. § 2000e-3(a), against the

Secretary of Transportation in his official capacity,

alleging Schramm was subjected to post-employment

retaliation. Specifically, Schramm claims the FAA's

decision in December of 2003 denying him medical

clearance to work as an Air Traffic Control Specialist

34a

for a private contractor was an adverse employment

action causally connected to a previous Title VII re-

taliation claim he filed against the FAA on November

7, 2003, designated as Case No. 3:03CV7655.

In February of 2003, Schramm applied to be an

air traffic controller for Midwest Air Traffic Con-

trollers, a company which contracts with the FAA to

handle air traffic at smaller facilities. On February 5,

2003, Schramm obtained the necessary Class IU

medical certification from the Flight Surgeon’s Office

of the FAA. He then went to work as an air traffic

controller at the airport in Jackson, Michigan.

In August of 2003, Schramm applied for, and ob-

tained a position as a contract controller for the

Department of Defense as part of Operation Endur-

ing Freedom. Because his deployment would last a

year, Schramm underwent another examination and

received a Class II medical certificate on August 25,

2003. Schramm was deployed to Uzbekistan, and

volunteered for duty in Kabul, Afghanistan.

On November 7, 2003, Schramm filed Case No.

3:03CV7655, alleging the FAA had retaliated against

him in violation of Title VII of the Civil Rights Act of

1964, when a supervisor assaulted Schramm shortly

after being served with a subpoena to appear at the

trial of Schramm/’s first Title VII action. Schramm

served a copy of the Complaint and Summons on the

Department of Transportation on or about December

1, 2003.

35a

On December 30, 2003, Dr. Nestor B. Kowalsky

(“Kowalsky”) sent Schramm a letter, notifying him he

was not qualified for the Class II airman’s medical

certificates issued to him on August 23, 2003 and

February 5, 2003, due to his history “for taking Zoloft

and for Anxiety Depressive Disorder.” (Pleinti/f’s

Opposition Brief, ECF DKT # 44, p. 9). Schramm con-

tends the decision of the Flight Surgecn finding him

unqualified was in retaliation for initiating the Title

VII lawsuit of November 7, 2003 against the FAA.

Only after Schramm underwent yet another

medical examination in January of 2005, was he

issued a Class II medical certificate by the FAA; and

Midwest Air did not re-hire him until May of 2005.

Schramm alleges, as a direct result of the retali-

atory conduct of the FAA, he was forced to terminate

his position controlling traffic in Uzbekistan for the

Department of Defense; he was forced to return to the

United States; his employment with Midwest Air was

terminated; he was forced to pay additional income

taxes, penalties, and interest; and he was forced to

incur additional traveling and living expenses he

would not otherwise have had to incur.

Defendant United States submits summary judg-

ment in its favor is appropriate with respect to the

above-captioned Title VII retaliation claim.

36a

IT. LAW AND ANALYSIS

Standard of Review

Motion for Summary Judgment

A summary judgment should be granted only if

“the pleadings, depositions, answers to interroga-

tories, written admissions, affidavits, transcripts of

evidence, and written stipulations of fact, if any,

timely filed in the action, show that there is no

genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of

law.” See, Fed.R.Civ.P. 56(c). The burden is on the

moving party to conclusively show no genuine issue of

material fact exists, Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986); Lansing Dairy, Inc. v. Espy, 39 F.3d

1339, 1347 (6th Cir.1994); and the court must view

the facts and all inferences in the light most favorable

to the nonmoving party, Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Once

the movant presents evidence to meet its burden, the

nonmoving party may not rest on its pleadings, but

must come forward with some significant probative

evidence to support its claim. Celotex, 477 U.S. at

324; Lansing Dairy, 39 F.3d at 1347; Lee v. Ritter, No.

1:02-CV-282, 2005 WL 3369616, at *2 (E.D.Tenn. Dec.

12, 2005). This Court does not have the responsibility

to search the record sua sponte for genuine issues of

material fact. Betkerur v. Aultman Hospital Ass’n., 78

F.3d 1079, 1087 (6th Cir.1996); Guarino v. Brookfield

Township Trustees, 980 F.2d 399, 404-06 (6th

Cir.1992). The burden falls upon the nonmoving party

to “designate specific facts or evidence in dispute,”

37a

Anderson v. Liberty Lobby, Inc., 477 U .S. 242, 249-50

(1986); and if the nonmoving party fails to make the

necessary showing on an element upon which it has

the burden of proof, the moving party is entitled to

summary judgment. Celotex, 477 U.S. at 323; Lee,

2005 WL 3369616 at *2. Whether summary judgment

is appropriate depends upon “whether the evidence

presents a sufficient disagreement to require submis-

sion to a jury or whether it is so one-sided that one

party must prevail as a matter of law.” Amway

Distributors Benefits Ass’n v. Northfield Ins. Co., 323

F.3d 386, 390 (6th Cir.2003) (quoting Anderson, 477

U.S. at 251-52).

Retaliation Under Title VII

Title VII forbids an employer to discriminate

against an employee because the employee has

“opposed” a practice that Title VII prohibits, or has

“made a charge, testified, assisted, or participated in”

a Title VII “investigation, proceeding, or hearing.” 42

U.S.C. § 2000e-3(a).

In order to establish a prima facie case of retali-

ation under Title VII, a plaintiff must show: (1) he

engaged in activity protected by Title VII; (2) this

exercise of protected rights was known to defendant;

(3) defendant took an adverse employment action

against the plaintiff, or the plaintiff was subjected

to severe or pervasive retaliatory harassment by a

supervisor, and (4) there was a causal connection

between the protected activity and the adverse

38a

employment action or harassment. Morris v. Oldham

County Fiscal Court, 201 F.3d 784, 792 (6th Cir.2000).

The burden of establishing a prima facie case is not

onerous; and, in fact, is a burden easily met. Nguyen

v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000).

A prima facie case is defined as “sufficient evidence in

the type of case to get plaintiff past a motion for

directed verdict in a jury case or motion to dismiss in

a nonjury case; it is the evidence necessary to require

defendant to proceed with his case.” Black’s Law

Dictionary 1190 (6th Ed.1990). Once a plaintiff has

established a prima facie case, “the burden of pro-

duction of evidence shifts to the employer to ‘articu-

late some legitimate, nondiscriminatory reason’ for

its actions.” Morris, 201 F.3d at 792-793 (quoting

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973)). If the defendant cannot establish a legitimate

reason for its actions, the plaintiff prevails. Ceckitti v.

City of Columbus, 14 Fed. Appx. 512, 516 (6th

Cir.2001); see also Cline v. Catholic Diocese of Toledo,

206 F.3d 651, 658 (6th Cir.2000). If a legitimate rea-

son is established, then the plaintiff must demon-

strate, by a preponderance of the evidence, that

defendant’s proffered reason was pre-textual, i.e.,

that it “was not the true reason for the employment

decision.” Morris, 201 F.3d at 793 (quoting Texas

Dept. of Community Affairs v. Burdine, 450 U.S. 248,

256 (1981)).

In the case at bar, Defendant does not dispute

the first prong of Plaintiff’s prima facie retaliation

claim. It is unquestioned that Schramm engaged in

39a

activity protected by Title VII before and after the

termination of his employment with the FAA. More-

over, for purposes of this summary judgment analy-

sis, Defendant concedes the decision of the Flight

Surgeon in December of 2003, finding Schramm was

disqualified from holding a Class II airman’s medical

certificate, was an employment action adverse to

Plaintiff.

It is significant, and undisputed, that Schramm

was medically disqualified from holding a Class II

airman’s medical certificate only fifty-three days after

he filed a Title VU lawsuit against the FAA. Temporal

proximity between the protected activity and the re-

taliatory conduct, when combined with other factors,

may be sufficient indirect evidence to create an in-

ference of retaliatory motive. Singfield v. Akron

Metro. Housing Auth., 389 F.3d 555 (6th Cir.2004);

Dicarlo v. Potter, 358 F.3d 408 (6th Cir.2004); Nguyen,

supra. In view of the minimum burden of proof for a

prima facie case, this Court will consider the cau-

sation prong of Schramm’s retaliation case satisfied.

However, the Court must undertake a critical

analysis of the remaining element of Plaintiff

Schramm’s proof, i.e., Defendant’s knowledge of his

protected activity. Schramm points out his 2003 law-

suit was known at the regional level of the FAA. The

Office of the Regional Counsel was aware (Answers to

Plaintiff’s requests for Admissions, Interrogatories

- and Requests for Production of Documents, Exhibit

#30) as were the Tower Manager and the Great

40a

Lakes Region’s Resource Management Branch (An-

swers to Plaintiff’s Interrogatories, Exhibit # 36).

Plaintiff Schramm’s medical examination sum-

maries have a computer date stamp of “11/18/03” at

the bottom, which Schramm presents as circumstan-

tial evidence his files were accessed by the Flight

Surgeon’s Office eleven days after he filed his Title

VII action. According to Plaintiff, Joan Morgan, a

program analyst for the FAA Flight Surgeon’s Office,

could not, or would not, identify at her deposition who

directed her to access Plaintiff’s files on 11/18/03.

Plaintiff presumes that direction would have come

from the Air Traffic Division or Legal Counsel, or

both.

Plaintiff also directs the Court’s attention to

notes, presumably written by Deputy Flight Surgeon,

Robert E. Liska, M.D., referencing an Alternative

Dispute Resolution process in Plaintiff’s initial law-

suit, which were improperly placed in Plaintiff’s

medical file, and “presented a negative view” of

Schramm.

In Schramm’s estimation, the correspondence of

December 30, 2003, disqualifying him from con-

trolling air traffic, has a “legal slant” and could not

have been written solely by someone in the Flight

Surgeon’s Office.

On the other hand, Defendant denies knowledge

of Schramm’s protected activity prior to its December

30, 2003 determination of disqualification; Defendant

contradicts Schramm’s purported “plethora” of facts,

4la

and Defendant submits sworn supporting evidence.

Dr. Kowalsky, who authored the December 30, 2003

notice of disqualification, avers he had no knowledge

of Plaintiff’s prior Title VII complaints until some-

time after March 19, 2004. (Kowalsky Affidavit at p.

1). Joan Morgan avers she learned about Plaintiff’s

“EEO complaint in about April 2004, when the EEO

investigator came to talk to the Regional Flight Sur-

geon,” and denies any “knowledge of any other EEO

complaints or activity by him.” At her deposition,

Morgan acknowledged the date stamp of 11/18/03 on

Plaintiff’s medical file, but denied knowing what it

means. (Morgan Depo. at 84). She also specifically

denied anyone from Air Traffic or Legal requested her

to access Plaintiff’s files. (Morgan Depo. at 86). The

medical disqualification issue was not discussed with

anyone outside the Flight Surgeon’s Office. (Morgan

Depo. at 101). The disqualification correspondence

was prepared by Morgan for Kowalsky’s signature

and was drafted using a master form letter. (Morgan

Depo. at 101-104). The decision to disqualify Schramm

from controlling air traffic was a medical decision,

made without reference to prior EEO/Title VII com-

plaints or litigation. When asked about the influence

of Schramm’s prior litigation history on the disquali-

fication decision, Morgan responded: “None, not

accessed, not reviewed, not a consideration.” (Morgan

Depo. at 104).

In sum, Defendant counters each item of Plaintiff

Schramm’s circumstantial proof on the element of

knowledge with sworn testimony in affidavit or

42a

deposition form. This Court acknowledges that Plain-

tiff’s burden in his prima facie retaliation case is not

onerous. However, Schramm has not provided any

evidence from which reasonable inferences can be

drawn by a fact-finder; rather, Schramm provides

only speculation of what was known or contemplated

by the Flight Surgeon’s Office of the FAA when the

disqualification letter of December 30, 2003 was

issued.

Il, CONCLUSION

For the foregoing reasons, this Court finds Plain-

tiff has not satisfied his burden of establishing Defen-

dant’s knowledge of his protected activity by evidence

of any sort, direct or circumstantial, sufficient to

create a reasonable inference of a retaliatory motive.

Plaintiff, William H. Schramm, has failed to demon-

strate a prima facie case of retaliation under Title

VII; and therefore, Defendant’s Motion for Summary

Judgment is granted.

IT IS SO ORDERED.

43a

No. 08-3420/3421

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

WILLIAM H. SCHRAMM,

)

Plaintiff-Appellant, .

hs ORDER

RAY LAHOOD,

SECRETARY, DEPARTMENT ) (Filed Jul. 14, 2009)

OF TRANSPORTATION,

Defendant-Appellee.

BEFORE: MCKEAGUE and GRIFFIN, Circuit

Judges; and WEBER,* District Judge.

The «ourt having received a petition for rehear-

ing en banc, and the petition having been circulated

not only to the original panel members but also to all

other active judges of this court, and no judge of this

court having requested a vote on the suggestion for

rehearing en banc, the petition for rehearing has been

referred to the original panel.

The panel has further reviewed the petition for

rehearing and concludes that the issues raised in the

petition were fully considered upon the original sub-

mission and decision of the cases. Accordingly, the

petition is denied.

* Hon. Herman J, Weber, Senior United States District

Judge for the Southern District of Ohio, sitting by designation.

4Aa

ENTERED BY ORDER

OF THE COURT

/s/ Leonard Green

Leonard Green

Clerk

45a

Rule 3(cX1) of the Federal Rules of Appellate

Procedure, provides in part:

(1) The notice of appeal must:

+ * +

(B) designate the judgment, order or

part thereof being appealed,

* * *

Section 704(a) of Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §2000e-3(a) provides:

It shall be unlawful employment practice for

an employer to discriminate against any of

his employees or applicants for employment,

for an employment agency, or joint labor-

management committee controlling appren-

ticeship or other training or retraining,

including on-the-job training programs, to

discriminate against any individual, or for a

labor organization to discriminate against

any member thereof or applicant for mem-

bership, because he has opposed any prac-

tice, made an unlawful employment practice

by this subchapter, or because he has made a

charge, testified, assisted, or participated in

any manner in an investigation, proceeding,

or hearing under this subchapter.

46a

EMPLOYMENT DISCRIMINATION CASES

IN THE SUPREME COURT OF THE UNITED

STATES BROUGHT BY FORMER EMPLOYEES

In cases in which the underlying claim

challenged the dismissal of the plaintiff, the plaintiff

is referred to as a discharged employee

Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555 (1999)

(action under the Americans with Disabilities Act

brought by discharged employee)

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)

(action under Title VII brought by discharged

employee)

Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) (action

under Title VII brought by former employee)

Arline v. School Bd. of Nassau county, 480 U.S. 273

(1987) (action under the Rehabilitation Act

brought by discharged employee)

Astoria Federal Savings and Loan Ass’n v. Solimino,

501 U.S. 104 (1991) (action under the Age

Discrimination in Employment Act brought by

former employee)

AT&T Corp. v. Hulteen, 129 S.Ct. 1962 (2009) (action

under Title VI brought by retired employees)

Baldwin County Welcome Center v. Brown, 466 U.S.

147 (1984) (action under Title VII brought by

former employee)

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742

(1988) (action under Title VII brought by former

employee)

47a

Carnegie-Mellon University v. Cohill, 484 U.S. 343

(1988) (action under the Age Discrimination in

Employment Act brought by discharged em-

ployee)

CBOCS West, Inc. v. Humphries, 128 S.Ct. 1951

(2008) (action under 42 U.S.C. § 1981 brought by

discharged employee)

Cleveland v. Policy Management Systems Corp., 526

U.S. 795 (1999) (action under the Americans with

Disabilities Act brought by former employee)

Consolidated Rail Corp. v. Darrone, 465 U.S. 824

(1984) (action under the Rehabilitation Act

brought by discharged employee)

Corporation of the Presiding Bishop of the Church of

Jesus Christ of Latter-Day Saints v. Amos, 483

U.S. 327 (1987) (action under Title VII brought

by discharged employee)

Crawford v. Metropolitan Government of Nashville

and Davidson County, 129 S.Ct. 846 (2009)

(action under Title VII brought by discharged

employee)

Crown Cork & Seal Co. v. Parker, 462 U.S. 345 (1983)

(action under Title VII brought by discharged

employee)

Delaware State College v. Ricks, 449 U.S. 250 (1980)

(action under Title VII brought by discharged

employee)

Desert Palace v. Costa, 539 U.S. 90 (2003) (action

under Title VII brought by discharged employee)

48a

Edelman v. Lynchburg College, 535 U.S. 106 (2002)

(action under Title VII brought by discharged

employee)

Faragher v. City of Boca Raton, 524 U.S. 775 (1998)

(action under Title VII brought by former

employee)

Federal Express Corp. v. Holowecki, 128 S.Ct. 1147

(2008) (action under the Age Discrimination in

Employment Act brought by former and current

employees)

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) (action

under Title VU. brought by former and current

employees)

Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20

(1991) (action under the Age Discrimination in

Employment Act brought by discharged em-

ployee)

Great American Federal Sav. & Loan Ass’n sv.

Novotny, 442 U.S. 366 (1979) (action under 42

U.S.C. § 1985(3) brought by discharged em-

ployee)

Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993)

(action under Title VII brought by former

employee) |

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993)

(action under the Age Discrimination in Em-

ployment Act brought by discharged employee)

Hishon v. King & Spaulding, 467 U.S. 69 (1984)

(action under Title VII brought by discharged

employee)

49a

Irwin v. Department of Veterans Affairs, 498 U.S. 89

(1990) (action under Title VII brought by

discharged employee)

Jett v. Dallas Ind. School Dist., 491 U.S. 701 (1989)

(action under 42 U.S.C. § 1981 brought by former

employee)

Johnson v. Railway Express Agency, 421 U.S. 454

(1975) (action under 42 U.S.C. § 1981 brought by

discharged employee)

Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369

(2004) (action under 42 U.S.C. § 1981 brought by

discharged and former employees)

Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000)

(action under the Age Discrimination in Em-

ployment Act brought by former and current

employees)

Kremer v. Chem. Const. Corp., 456 U.S. 461 (1982)

(action under Title VII brought by discharged

employee)

Landgraf v. USI Film Products, 511 U.S. 244 (1994)

(action under Title VII brought by former em-

ployee alleging constructive discharge)

Ledbetter v. The Goodyear Tire & Rubber Co., Inc.,

127 S.Ct. 2162 (2007) (action under Title VI

brought by retired employee)

Loeffler v. Frank, 486 U.S. 549 (1988) (action under

Title VII brought by discharged employee)

Lorillard v. Pons, 434 U.S. 575 (1978) (action under

the Age Discrimination in Employment Act

brought by discharged employee)

50a

Lytle v. Household Mfg., Inc., 494 U.S. 545 (1990)

(action under Title VIJ and 42 U.S.C. § 1981

brought by discharged employee)

McDonald v. Santa Fe Trail Transportation Co., 427

U.S. 273 (1976) (action under 42 U.S.C. § 1981

brought by discharged employee)

McKennon v. Nashville Banner Publishing Co., 513

U.S. 352 (1995) (action under the Age Dis-

crimination in Employment Act brought by

discharged employee)

Meacham v. Knolls Atomic Power Laboratory, 128

S.Ct. 2395 (2008) (action under the Age Dis-

crimination in Employment Act brought by

discharged employee)

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986)

(action under Title VII brought by former

employee)

Mohasco v. Silver, 477 U.S. 807 (1988) (action under

Title VII brought by discharged employee)

Murphy v. United Parcel Service, 527 U.S. 516 (1999)

(action under the Americans with Disabilities Act

brought by discharged employee)

Nevada Dept. of Human Resources v. Hibbs, 538 U.S.

721 (2003) (action under the Family and Medical

Leave Act brought by discharged employee)

New York Transit Authority v. Beazer, 440 U.S. 568

(1979) (action under Title VII brought by dis-

charged employees)

5la

O’Connor v. Consolidated Coin Caterers Corp., 517

U.S. 308 (1996) (action under the Age Discrimi-

nation in Employment Act brought by discharged

employee)

Office of Senator Dayton v. Hanson, 127 S. Ct. 2018

(2007) (action under the Congressional Account-

ability Act brought by discharged employee)

Oncale v. Sundowner Offshore Services, Inc., 523 U.S.

75 (1998) (action under Title VII brought by

former employee)

Oscar Mayer & Co. v. Evans, 441 U.S. 750 (1979)

(action under the Age Discrimination in Em-

ployment Act brought by retired employee)

Oubre v. Entergy Operations, Inc., 522 U.S. 422

(1998) (action under the Age Discrimination in

Employment Act brought by former employee

alleging constructive discharge)

Pennsylvania State Police v. Suders, 542 U.S. 129

(2004) (action under Title VII brought by former

employee alleging constructive discharge)

Pollard v. E.I1. Du Pont De Nemours & Co., 532 U.S.

843 (2001) (action under Title VII brought by

former employee)

Public Employees Retirement System of Ohio v.

Betts, 492 U.S. 158 (1989) (action under Age

Discrimination Employment Act brought by

retired employee)

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

(action under the Americans with Disabilities Act

brought by former employee)

52a

Reeves v. Sanderson Plumbing Products, Inc., 530

U.S. 133 (2000) (action under the Age Discrimi-

nation Employment Act brought by discharged

employee)

Rivers v. Roadway Exp. Inc., 511 U.S. 298 (1994)

(action under 42 U.S.C. § 1981 brought by dis-

charged employee)

Robinson v. Shell Oil, 519 U.S. 337 (1997) (action

under Title VII brought by former employee)

Saint Francis College v. Al-Khazraji, 481 U.S. 640

(1987) (action under 42 U.S.C. § 1981 brought by

former employee)

School Board of Nassau County v. Arline, 480 U.S.

273 (1987) (action under the Rehabilitation Act

brought by discharged employee)

Sprint/United Management co. v. Mendelsohn, 128

S.Ct. 1140 (2008) (action under the Age Discrimi-

nation in Employment Act brought by discharged

employee)

St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993)

(action under Title VII brought by discharged

employee)

Swierkiewicz v. Sorenma N.A., 534 U.S. 506 (2002)

(action under Title VII brought by discharged

employee)

Texas Dept. of Community Affairs v. Burdine, 450

U.S. 248 (1981) (action under Title VII brought

by discharged employee)

Toyota Motor Manufacturing, Kentucky, Inc. v.

Williams, 534 U.S. 184 (2002) (action under the

53a

Americans with Disabilities Act brought by

discharged employee)

Trans World Airlines, Inc. v. Hardison, 432 U.S. 63

(1977) (action under Title VII brought by

discharged employee)

Trans World Airlines, Inc. v. Thurston, 469 U.S. 111

(1985) (action under the Age Discrimination in

Employment Act brought by retired employee)

United Airlines, Inc. v. McDonald, 432 U.S. 385

(1977) (action under Title VII brought by dis-

charged employee)

University of Tennessee v. Elliott, 478 U.S. 788 (1986)

(action under Title VII and 42 U.S.C. § 1981

brought by discharged employee)

US Airways, Inc. v. Barnett, 535 U.S. 391 (2002)

(action under the Americans with Disabilities Act

brought by discharged employee)

Walters v. Metropolitan Educ. Enterprises., 519 U.S.

202 (1997) (action under Title VII brought by

discharged employee)

Western Air Lines, Inc. v. Criswell, 472 U.S. 400

(1985) (action under the Age Discrimination in

Employment Act brought by retired and current

employees)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.