Petition for Writ of Certiorari — Alexandru v. Northeast Utilities Service Co.
Supreme Court brief2000
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IN THE
Supreme Court of the Anited States
MICHAELA I, ALEXANDRU,
Petitioner,
V.
NORTHEAST UTILITIES SERVICE COMPANY,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Second Circuit
PETITION FOR WRIT OF CERTIORARI
JOHN F. KARL, JR. *
MCDONALD & KARL
900 17th Street, N.W.
Suite 1250
Washington, D.C. 20006
(202) 293-3200
* Counsel of Record Counsel for Petitioner
ee ee ee enn’
WILSON-EPES PRINTING COo., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001
QUESTIONS PRESENTED
I. WHETHER CLOSE PROXIMITY IN TIME BETWEEN
THE PROTECTED ACTIVITY AND THE ADVERSE
EMPLOY MENT ACTION IS A NECESSARY ELEMENT OF
A PRIMA FACIE CASE OF RETALIATION.
Il. WHETHER THE SECOND CIRCUIT'S RULING THAT
PETITIONER FAILED TO PRESENT A “LEGALLY
SUFFICIENT EVIDENTIARY BASIS” TO SUPPORT HER
CLAIMS OF RETALIATION CONFLICTS WITH THE
HOLDING OF THIS COURT IN REEVES V. SANDERSON
PLUMBING PRODUCTS, INC., 530 U.S. ____, 120 S. CT. 2097
(2000).
(i)
ii
PARTIES TO THE PROCEEDINGS
The plaintiff in the District Court was Michaela I. Alexandru.
The defendant in the District Court was Northeast Utilities
Service Company (“NUSCO”).
According to the Corporate Disclosure Statement filed with
the U.S. Court of Appeals for the Second Circuit, the parent
company of NUSCO is Northeast Utilities, which owns 100% of
NUSCO stock.
TABLE OF CONTENTS
Page
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PETITION FOR A WRIT OF CERTIORARI............... l
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STATUTORY AND REGULATORY PROVISIONS.. 2
INTRODUCTION AND STATEMENT OF THE
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REASONS FOR GRANTING THE PETITION ........... 14
I. THE COURT SHOULD GRANT CERTIO-
RARI TO RESOLVE A SPLIT IN THE
CIRCUI?S ABOUT WHETHER CLOSE
PROXIMITY IN TIME BETWEEN THE
PROTECTED ACTIVITY AND THE AD-
VERSE EMPLOYMENT ACTION IS A
NECESSARY ELEMENT OF A PRIMA FACIE
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(iii)
iV
TABLE OF CONTENTS—Continued
Page
Il. THE SECOND CIRCUIT’S DECISION IS
BASED ON THE NOW _ DISCREDITED
“PRETEXT PLUS” REQUIREMENT AND IS
INCONSISTENT WITH THIS COURT’S
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Vv
TABLE OF AUTHORITIES
CASES
Alexandru v. Northeast Utilities Service Co., 1996
WL 684421 (D.Conn. October 10, 1996) ..........
Alexandru v. Northeast Utilities Service Co., 1997
WL 766885 (D.Conn. December 3, 1997).........
Beckwith v. City of Daytona Beach Shores, 58 F.3d
ee Re ee ie iiictcieabskacinseonscsicnnisecciliinninnes
Burfield v. Brown, Moore & Flint, Inc., 51 F.3d
ee es PO caiatacilscsnihnhieciansiccaedneetiedeieienoi
Byrd v. Lakeshore Hosp., 30 F.3d 1380 (11th
a ED ii keiitebitascesctabibeinsiiabiniahidpcstapicanieiasansniesnitone
Candelaria v. EG&G Energy Measurements, Inc.,
So ee AIP CP es BOI ivcsncacacsccscrccavecenees
Carter v. Ball, 33 F.3d 450 (4th Cir. 1994) ...........
Causey v. Balog, 162 F.3d 798 (4th Cir.
SUT \anshiitellianibataniassncikiiuniabistaptibashiashacseeianees
Chavez v. City of Arvada, 88 F.3d 861 (10th Cir.
1996), cert. denied, 519 U.S. 1056 (1997).........
Clark v Chrysler Corp., 673 F.2d 921 (7th Cir.
ROPIIU ikatibeesiaiilcapccriac cabieeddaesdaauiantielceasnaiiecianeshiniiees
SE UTED tiscisactadiaisiciticedilabinsieictimsaniiguaanthiatcutanionnanaiinaaisiniaes
Conner v. Schnuck Markets, Inc., 121 F.3d 1390
case IE Dh vilictinincbyuilieicetiimeinidsdaniadinibielionies
Dowe v. Total Action Against Poverty in Roanoke
Valley, 145 F.3d 653 (4th Cir. 1998) ...........,.0.
EEOC v. Avery Dennison Corp., 104 F.3d 858 (6th
Sats ITE nn tceinhadshnceakecenddaispnsnciiaiidainehtinetebeedicteiinies
EEOC v. Cherry-Burrell Corp., 35 F.3d 356, 359
SR RSI: UPON ccciseitacbsipaiiitlceiamasicinnlnieacen
EEOC v. Reichhold Chemicals, Inc., 988 F.2d 1564
Pe acai. IE acctichitcanicdoaieialabindinecsanaeteniadeeeaenininsin
Filipovic v. K & R. Express Sys., Inc., 176 F.3d 390
Ce as Se isieihiiciicsiablenieintanuibhieiniaiatincsdcaatini
vi
TABLE OF AUTHORITIES—Continued
Page
Fisher v. Vassar College, 114 F.2d 1332 (2d Cir.
1997) (en banc), cert. denied, 522 U.S. 1075
TIE cherctssidinieel ubiiidanibassehenignnicipisceismniallegacnimnaiiatiioniia 24
Grizzle v. Travelers Health Network, Inc., 14 F.3d — .
ER | ae ea eae 19
Harrington v. Harris, 118 F.3d 359 (Sth Cir.), cert.
em, BAe TEs TBS IGG 8Y scncicnsesscssinesineseninns 15
Harris v. Secretary, U.S. Dep't of the Army, 9 F.3d
eae CN iy OIE Daccsnsennsecnsdnsnensiticosiisineesnathetaate 21
Harrison v. Metropolitan Gov't of Nashville, 80
Fc We Ce SOE. POPE scisreciicincrssssincatcnacesneins 16
Hollander v. American Cyanamid Co., 895 F.2d
Be Fle 0 TF onianeeithtndacaseitnnsssnnaensniaioineg 17
Johnson v. Univ. of Wisconsin-Eau Claire, 70 F.3d
A 6 Els BI Pincssnsmsovenqisenenteseamimnmiiadian 19
McCarthy v. New York City Technical College of
City Univ. of New York, 202 F.3d 161 (2d Cir.
ST iis dibbeiseasii insane onisiamipaihibcabiaicadaesiiandhlialistiiag 24
McDonnell Douglas Corp. v. Green, 411 U.S. 792
ih pinsiieblaedssntahsstnilenenniabiaiiennnapinintchansaiaiiunaminiaiae 16
Monahan v. United Technologies Corp., 113 F.3d
Bee (ee SAR. S9F7) CEI) wiccssenrsecrannnnasnsnnnnconnn 18
Oliver v. Digital Equip. Corp., 846 F.2d 103 (ist
Tas aa bucissovish soalinpninanapindssheionsnngainiapeiiainaidliaions 20
Olmstead v. Taco Bell, 141 F.3d 1457 (11th Cir.
PUITTEDE ssosindisceticiadhdiensetieniinlindieetbhnnmceiebiabminsiiasiilindl 20
Reeves v. Sanderson Plumbing Products, Inc., 530
U.S.—, 120 S.Ct. 2097 (June 12, 2000) ............ passim
Robinson v. Shell Oil Co., 519 U.S. 337 (1997)... 15
Robinson v. Southeastern Pennsylvania Transpor-
tation Authority (SEPTA), 982 F.2d 892 (3rd
ails Fi EID Miasacsctnairnnninibonbiiesinininadiligntitillinamuaeaciinia 20, 23
Vii
TABLE OF AUTHORITIES—Continued
Page
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502
CRIED iiiiicnnieaicaesicecentnsinnesaaasianeeiipndipinaiecsibiisaaiinn 24
Texas Dep’ t of Community Affairs v. Burdine, 450
Arey Ae | NOD eiicieasiintsaniibaibanmbiatenndinbhtinnein 16
STATUTES
28 U.S.C. § 12541) 42 U.S.C. 2000e
FRA Fie csncsnisctentenbbacicanieanisdacanienennimnastibnianninnn 2Z, i2
Family and Medical Leave Act of 1993, 29 U.S.C.
Sc iacccsncacinsni-daecanciilininisetndlnceiianainaiticiabiaarinpiones 15
Americans with Disabilities Act of 1990, 42 U.S.C.
Se A aiicilinaiidbinichatinmnibicaalitanuibinininebndienins 12,15
Employment Retirement Income Security Act of
ee Me Ais OF 0 PR ch ntehniccsnishinmrnentnensvemninne 15
Occupational Health and Safety Act of 1970, 29
Ss 1 ED cessicwnvsncseensninecetonisansnenemaneesnennenin 15
Age Discrimination in Employment Act of 1967,
Pe Ries Ae ED ncheicinianessnnnniinatinnnninntes etanenes 15
National Labor Relations Act of 1947, 29 U.S.C.
Se Ale steauintinssbinsitictabiinstndibiniainabsichatniastanstaniiaaneanintingiin 15
Fair Labor Standards Act of 1938, 29 U.S.C.
ee GAD sihiobiedathisisaniesnserinsenninnnsenarenaninnbsconvinets 15
Fas Ue A niichaheseneenomssbininantncinionsticinninniniicnite 15
Oe real IEEE secsstaesieistnseehninanshibeoncansensannninieniaekes 15
Fee ED Prncisneseisnssnsisnssniinesannnniensansonnse 14, 24
IN THE
Supreme Court of the United States
No.
MICHAELA I. ALEXANDRU,
Petitioner,
¥%
NORTHEAST UTILITIES SERVICE COMPANY,
Respondent.
On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Second Circuit
PETITION FOR WRIT OF CERTIORARI
Petitioner Michaela I. Alexandru respectfully petitions for
a writ of certiorari to review the judgment of the United
States Court of Appeals for the Second Circuit entered in this
case on January 27, 2000. App. at 1-2a.' A timely Petition
for Rehearing and Suggestion for Rehearing En Banc was
denied on May 10, 2000. App. at 3a. By Order dated July 31,
2000, the Clerk of this Court extended the time for filing the
Petition for Certiorari to and including October 7, 2000. App.
at 7a.
OPINIONS BELOW
The opinion of the Court of Appeals, app. at la,
affirming the lower court’s judgment is not reported. The
Order of the Court of Appeals denying the Petition for
Rehearing and Suggestion for Rehearing En Banc is not
' References to the Appendix to this Petition are the page number
followed by “a.”
2
reported. App. at 3a. The District Court’s Judgment and the
oral opinion granting the motion for judgment as a matter of
law filed by Northeast Utilities Service Company
(“NUSCO”) are not reported. App. at 5-6a.
JURISDICTION
The judgment of the Court of Appeals was entered on
March 20, 2000. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1254(1). By Order dated July 31, 2000,
the Clerk of this Court extended the time for filiig the
Petition for Certiorari to and including October 7, 2000. App.
at 7a.
STATUTORY AND REGULATORY PROVISIONS
§ 2000e-3. Other unlawful employment practices
(a) Discrimination for making charges, testifying,
assisting or participating in enforcement proceedings. It
shall be an unlawful employment practice for an employer to
discriminate against any of his employees or applicants for
employment . . . because he has opposed any practice made
an unlawful employment practice by this title [42 USCS
§§ 2000e-2000e-17], or because he has made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding or hearing under this title [42 USCS
§§ 2000e-2000e-17].”
INTRODUCTION AND STATEMENT OF THE CASE
This case arises from efforts by Petitioner to vindicate her
employment rights under Title VII of the Civil Rights Act of
1964. Ms. Alexandru filed her first complaints of discrim-
ination and sexual harassment beginning in 1985, filed two
grievances in 1988, and continued to complain of sexual
harassment and retaliation until she was fired in early 1993.
> July 2, 1964, P.L. 88-352, Title VII § 704, 78 Stat. 257; Mar 24,
1972, P.L. 92-261, § 8(c), 86 Stat. 109.
Throughout the period 1985-1992, NUSCO refused to give
Petitioner meaningful assignments consistent with her
experience and expertise as an engineer. Ms. Alexandru
spent most days at her desk with nothing to do. Ms.
. Alexandru filed a grievance in 1992, which raised claims of
discrimination and subsequently she filed a complaint with
the Connecticut Commission on Human Rights. Shortly
thereafter, NUSCO terminated Ms. Alexandru.
Title Vil forbids discrimination on the basis of race, color,
religion; sex or national origin.
Perhaps more importantly, Title VII forbids retaliation
against employees who file charges of discrimination, oppose
employment practices made unlawful under Title VII, or
otherwise exercise their rights under Title VII.
This case presents the issue of whether the lower court’s
adoption of a per se rule prevented plaintiff from establishing
a prima facie case of retaliation when the first activity
protected under Title VII occurred some years earlier. There
is a split in the circuits on this issue. Many circuits have
adopted per se rules requiring dismissal on summary
judgment or on motion for judgment as a matter of law,
holding there can be no retaliation as a matter of law because
of the extended period of time between the first activity
protected under Title VII and the ultimate act of retaliation—
termination of employment.
This per se approach stands in contrast to the better
reasoned approach taken by the Eleventh and Third Circuits,
which are based on careful consideration of all the evidence
and any logical inferences drawn from that evidence to
determine whether there are issues to be decided by the finder
of fact. The Second Circuit’s application of the per se rule
prevented the jury from considering the merits of Ms.
Alexandru’s retaliation claims, even though there were
disputes of material fact regarding the real reason for her
termination by NUSCO. :
4
This case also presents the fundamental issue of the role of
the federal district court in determining which issues must be
decided by a jury and when summary judgment or judgment
as a matter of law is appropriate. As we show, the decisions
of the courts below are in conflict with this Court’s recent,
unanimous decision in Reeves v. Sanderson Plumb-
ing Products, Inc., 530 U.S. ___, 120 S.Ct. 2097 (June 12,
2000). :
1. Ms. Alexandru’s Employment History.
On August 25, 1980, Ms. Alexandru began working as an
engineer in NUSCO’s Generation Electrical Engineer-
ing/Instruments & Control Department. Ms. Alexandru
holds a Master of Science in Mechanical Engineering.
NUSCO initially assigned Ms. Alexandru to the Generation
Electrical Engineering Department where she was a
competent engineer, and the only woman in her office. Ms.
Alexandru performed her duties satisfactorily and enjoyed a
successful career with NUSCO for the first several years of
her employment. There are no adverse comments on her
performance until 1985. May 10, 1999, Tr., Vol. I, 17, 40,
50.
In 1985, Ms. Alexandru filed an internal grievance because
of a constant pattern of sexually harassing remarks and
sexually discriminatory conduct. See Pl. Ex. 87.4 After Ms.
Alexandru complained that her supervisor ignored her
repeated_requests to resolve the problem, Ms. Alexandru was
transferred to another position.
NUSCO’s grievance procedure culminated in a pro-
management decision in May of 1985. The grievance
findings acknowledged that as a result of Ms. Alexandru’s
grievance, Amold Roby, her manager, spoke at least twice to
* The reference “Tr” refers to the transcripts of the trial. The transcript
for May 10, 1999, was transcribed in two volumes.
* The reference is to Plaintiff's Trial Exhibits.
- 3
three different men about their offensive behavior to Ms.
Alexandru, culminating in his advice to them that, “if [your]
behavior needs correcting—correct it.”” The offenders were
not reprimanded and one was promoted. Pl. Ex. 82.
No action was taken by NUSCO apart from removing Ms.
Alexandru from a position where she was succeeding and
transferring her to another position in a different division. In
July, 1985, NUSCO transferred Ms. Alexandru from a project
where she was performing successfully to its Operating
Nuclear Reactor Group, EEQ, Off Generation Electrical
Engineering Department. Ms. Alexandru’s direct supervisor
was Bruce Tuthill and his supervisor was John Ferraro. May
10, 1999 Tr., Vol. lat 17. After her transfer, Ms. Alexandru
found that all opportunities for advancement, promotion and
raises were denied to her. Her overtime work was unrecog-
nized. Rather than receiving duties commensurate with her
engineering background, Ms. Alexandru was assigned menial
unprofessional tasks to perform or tasks that were inherently
unsafe. While eight months pregnant, she was told to inspect
equipment locations inside a fully-powered nuclear reactor.
NUSCO reassigned Ms. Alexandru’s work and redirected
credit for Ms. Alexandru’s work to her male counterparts. In
addition, NUSCO denied Ms. Alexandru pay raises and
Opportunities for educational advancement and professional
training that were made available to similarly situated males.
In June, 1988, Ms. Alexandru was transferred to the Fossil
Hydro Engineering Department. Ms. Alexandru’s direct
supervisor was Walter Kornacki and her second level
supervisor was Robert Smart. May 10, 1999, Tr., Vol. I at
417.
Once again, Ms. Alexandru was left to sit at her desk and
not given any assignments. May 10, 1999, Tr. Vol. II at 42.
Mr. Kornacki told Ms. Alexandru that “he had more than
enough engineers in this group and that he expected me to
display my female talents.” May 10, 1999, Tr. Vol. II at 42.
6
During the following three years, Ms. Alexandru was
denied assignments commensurate with her experience and
skill as an engineer and had almost nothing to do. When
NUSCO gave Ms. Alexandru work, she was requested not to
sign the work and most of the tasks to which she was
assigned were menial, requiring little or no skill. In addition,
Ms. Alexandru was given poor performance evaluations
based in large part on the fact that she could not demonstrate
accomplishments in her position precisely because she had
nothing to do.
2. The Termination Process.
On April 24, 1991, Messrs. Kornacki and Smart, Ms.
Alexandru’s immediate supervisors, assigned her to a six to
eight week project counting fish. Pl. Ex. 223. Ms. Alexandru
was to be assigned to stand on the unprotected sides of a
water canal in Holyoke, Massachusetts, where there was no
security protection, for eight hours per day to watch fish
entering the river. Ms. Alexandru objected on the grounds
that the fish counting assignment did not require engineering
or technical skills and she would not be working in a
supervisory capacity. Jd. Ms. Alexandru was told the
assignment required pulling buckets of fish out of the water,
counting them and then dumping the fish back into the river.
Mr. Smart claimed that “the project had to be manned day
and night,” May 18, 1999, Tr. at 170, but never explained
how Ms. Alexandru was supposed to see and count the fish in
the dark.
Ms. Alexandru sent Mr. Kornacki a memo expressing her
concern that she would have to drive through a dilapidated
and unsafe neighborhood and that a woman standing on the
canal at dark exposes herself to violence and crime. The “fish
counting” assignment also required Ms. Alexandru to make a
daily round trip of two hours from her home to Holyoke,
Massachusetts. Nevertheless, Ms. Alexandru indicated a
7
willingness to count fish, as long as she could do so in
daylight. Pl Ex. 27.
On April 30, 1991, Mr. Kornacki responded to her
concerns by claiming that the assignment was “part of a very
important project.” Pl. Ex. 226. However, Mr. Smart
testified at trial that Ms. Alexandru was the only person “that
was asked to take that assignment.” May 18, 1999 Tr. at 171.
Despite Ms. Alexandru’s statement that she was willing to
count fish during the daylight, Mr. Kornacki ignored her
request that she be assigned to track fish only in daytime and
characterized her written response as refusing the assignment,
even though she had not actually done so. Pl. Ex. 226. Mr.
Kornacki advised Ms. Alexandru that there was “no
alternative assignment but we will try to find something for
you.” Id.
On May 14, 1991, Ms. Alexandru continued her efforts to
obtain assignments commensurate with her education and
experience by reminding Mr. Kornacki that “two engineers
left our department leaving a number of projects and
engineering tasks available.” Pl. Ex. 225. Ms. Alexandru
requested that the projects left undone by the departure of
these two engineers be assigned to her because of her
excellent qualifications and because she had in fact
“developed the technical basis for some of this work.” Pl. Ex.
225. NUSCO never formally responded to this request, and
continued to fail to assign her work for many months.” Ms.
Alexandru testified at trial that whenever she asked for
assignments, her supervisor, Mr. Kornacki “would make a
rude gesture and tell me to go back to my desk.” May 10,
1999, Tr., Vol. II at 42.
* As part of its effort to force Ms. Alexandru to resign, she was given
assignments to climb stacks and crawl through ducts. May 10, 1999, Tr.
Vol II at 57; Pl Ex 283. Ms. Alexandru had never worked at great heights
and had no experience in this areas NUSCO did not provide Ms.
Alexandru with fall protection or other safety equipment.
8
In order to build a record to fire her, Messrs. Kornacki and
Smart then began to conduct special surveillance of Ms.
Alexandru to make certain she was at her desk, even though
she had nothing to do during the period 1988-1993. PI. Exs.
226, 227. NUSCO disciplined Ms. Alexandru for two
occasions when she was away from her work station, even
though she was in the bathroom. On one occasion, Ms.
Alexandru stayed at the office to complete one of the rare
assignments given her, even though she had been directed to
go home for the remainder of the day. Ms. Alexandru’s
decision to complete the assignment became the basis for a
charge of insubordination. Pl. Ex. 227.
Ms. Alexandru filed a grievance dated March 13, 1992
because she was concerned she was not assigned professional
work. Pl. Exs. 223, 225 and 229. Ms. Linda Singer from
Human Relations was one of several recipients of this
grievance and grievances Ms. Alexandru had filed in the past.
On May 12, 1992, NUSCO issued its second-level
rejection of the March 1992 grievance. Although the
grievance was phrased in general terms of work assignments,
Ms. Alexandru specifically raised the issue of whether
another engineer or female engineer was given the “fish
counting” assignment, Pl Ex. 279, thereby placing NUSCO
on notice that Ms. Alexandru believed the “fish counting”
assignment was discrimination based on her gender.
NUSCO based its eventual termination decision in part on
Ms. Alexandru’s performance evaluation for 1991. Yet in its
February, 1992 evaluation for the prior year, NUSCO
acknowledged that “there was a period of no _ work
assignments . . . due to a lack of new projects/opportunities
available to FDI.” Pet. App. at 124.° The evaluation was, of
course, suspect because, as Ms. Singer from NUSCO’s
° The reference is to the Appendix filed by Petitioner with the Court of
Appeals.
9
Human Relations Department admitted at trial, if the
employee had no work to do, then “ there would be no way to
rate your team work, your quality, quantity, your decision
making, your communication skills.” Pet. App at 126, 128.
NUSCO further supported its termination decisien on Ms.
Alexandru’s alleged unwillingness to participate in the “fish
counting” assignment at night. NUSCO never explained,
either before or during the trial, how Ms. Alexandru was
expected to count fish in the dark, or why she was the only
engineer assigned to the “fish counting” project.
On June 30, 1992, Ms. Alexandru requested assignment to
the NOX Reduction - Clean Air Act project because she had
significant experience in this area. Pl. Ex 283; Pet App. at 60.
NUSCO never responded to this request. On July 27, 1992,
NUSCO issued its “third step” decision denying Ms.
Alexandru’s grievance. NUSCO’s decision stated: “While
discriminatory treatment was not specified in the original
grievance points, concerns were raised by the Grievant during
the grievance process that led the committee to hold
discussions with a number of individuals ...”. Pl. Ex. 291.
Thus, the officials making the decision to terminate Ms.
Alexandru were fully aware that she had raised issues and
claims of discrimination in her grievance. Moreover, they
treated Ms. Alexandru’s grievance as a complaint of sex
discrimination.
NUSCO investigated and addressed these claims by
interviewing those previously accused of discrimination and
sexual harassment by Ms. Alexandru, including Messrs.
Scully, Peterson and Blanch, but failed to officially interview
Ms. Alexandru herself. The Grievance Committee
specifically considered the “similar grievance” filed by. Ms.
Alexandru in 1985 alleging sexual harassment and retaliation.
In so doing, the Grievance Committee found that Ms.
Alexandru’s 1985 grievance lacked merit and concluded that
“there was a pattern not of supervisory unfairness but a
10
pattern of response by the Grievant to efforts to conduct
constructive appraisals of performance that is of serious
concern to the Committee.” Pl. Ex. 291; Pet. App. at 140.
The Grievance Committee acknowledged that it specif-
ically considered in its deliberations the fact that Ms.
Alexandru had gone through “similar experiences” in 1986
and 1987. Pet.App. at 140. The “Committee believes it is
aiso noteworthy that [Ms. Alexandru] filed a_ similar
grievance in 1985 regarding her review and the alleged
unfairness of her supervisor at that time in discrediting her
work and blocking her career and professional growth.” Pet.
App. at 141. NUSCO thus blamed Ms. Alexandru for having
to file a grievance as a result of being the victim of sexual
harassment and retaliation during the 1985-1988 period.
NUSCO explicitly based its 1992 decision on its view that
Ms. Alexandru’s prior complaints lacked merit.
Ms. Singer testified that she sent Ms. Alexandru to a
“outside” career counselor because she had reviewed her
previous grievances arising from her complaints of sexual
harassment and decided Ms. Alexandru had not responded in
a positive way. Pet. App. at 127. Pl Ex. 298. Effective
August 1, 1992, NUSCO placed Ms. Alexandru on a
Performance Improvement Program for a period of 90 days.
May 10, 1999,Tr., Vol. I at 17.
On August 14, 1992, Ms. Alexandru filed a complaint of
discrimination with the Connecticut Commission on Human
Rights. On August 21, 1992, Ms. Alexandru filed an internal
grievance alleging that NUSCO had retaliated against her by
harassment and intimidation, in addition to the discriminatory
treatment described in her March, 1992 grievance. PI. Ex.
303.
On November 6, 1992, Mr. Kornacki gave Ms. Alexandru
an unsatisfactory rating for her performance and notified her
that she had 90 days within which to apply for other positions
11
at NUSCO. If she failed to find another position at NUSCO
by February 5, 1992, her employment would be terminated.
May 10, 1999, Tr., Vol. I at 17. Ms. Alexandru applied for
other positions, but was rejected for each position because of
her personnel record. May 10, 1999, Tr., Vol. II at 61-69.
On February 5, 1993, NUSCO terminated Ms. Alexandru,
allegedly on the grounds of unsatisfactory work performance.
On December 3, 1992, NUSCO issued its third-level rejection
of Ms. Alexandru’s grievance. Pl. Ex. 333.
3. Relevant Decision Makers.
Although the trial court found that Messrs. Smart and
Kornacki, Ms. Alexandru’s supervisors, were officially the
persons responsible for her termination, the testimony at trial
demonstrated that in fact, the Human Relations Office and
NUSCO’s senior management controlled all of the final
decisions regarding the termination of Ms. Alexandru. Linda
Singer, who was professional manager in Human Relations,
testified that she was the person who made all of the
arrangements, who convened the panel, who performed all of
the legwork, the scheduling, and the writing and drafting of
the grievance decision document for the NUSCO officers.
Pet. App. at 138. Ms. Singer also testified that the decision
denying Ms. Alexandru’s grievance was made by Ms. Cheryl
Grise, who was Vice President of Human Relations, and Mr.
Bill Reckert, Vice President of Ms. Alexandru’s Department.
Pet. App. at 139-140. Moreover, Ms. Singer testified that
Human Relations had control over Ms. Alexandru’s
supervisors,
who could not issue a written warning to any employee
without coming through Human Resources and having
Human Resources listen to the facts leading up to the
reason for suspension and making a complete review.
_ Then we authorize whether or not they can discipline an
employee.
Pet. App. at 151.
12
Ms. Singer further testified that the chain of command and
control would hold true in suspension and no action would be
taken without the permission of Human Relations. Pet. App.
at 151.
4. Judicial Proceedings
Following the exhaustion of administrative remedies,
Petitioner brought suit in U.S. District Court on March 14,
1995. Ms. Alexandru alleged violations of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. 2000e et seg. and the
Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et
seq. and raised various common law claims. The only issues
raised in this Petition stem from Ms. Alexandru’s retaliation
claims brought under Title VII.
On October 9, 1996, the district court granted NUSCO’s
motion for partial summary judgment, dismissing all of Ms.
Alexandru’s claims brought under ADA and some of her
defamation claims. 1996 WL 684421 (D.Conn. October 10,
1996).
Although jury selection was completed on April 8, 1997
and trial was scheduled to commence on April 21, 1997, the
district court discharged the jury. The district court directed
NUSCO to refiie its previously filed motions in limine on
April 15, 1997 as a motion for summary judgment.
On December 3, 1997, U.S. District Judge Nevas denied
NUSCO’s motion for summary judgment on the Title VII
claims, holding that Ms. Alexandru has alleged “a continuing
course of discriminatory conduct by NUSCO beginning in
1985 and continuing through August 14, 1992 when she filed
her EEOC complaint.” 1997 WL 766885 (D.Conn December
3, 1997) at 7. |
The district court conducted a jury trial from May 10, 1999
through May 21, 1999. The district court entered judgment
on jury verdict on the discrimination claims in favor of
13
NUSCO on May 21, 1999. However, the trial court granted
NUSCO’s motion for judgment as a matter of law on Ms.
Alexandru’s retaliation claims. In so doing, the court relied
on the “pretext plus” requirement which was then the law of
the Second Circuit prior to this Court’s ruling in Reeves,
supra. During trial, the court explicitly stated: “All right,
now you understand that not only do you have to prove that
the reason that Northeast Utilities gave for terminating your
employment was a pretext, but that the actual reason was sex
discrimination, gender discrimination.” Pet. App. at 82.
In dismissing the retaliation claims, the trial court ruled as
a matter of law that Ms. Alexandru could not base her
retaliation claims on the earlier grievances:
Yes, but Ms. Alexandru, if what you’re doing is
addressing the retaliation claim, the lapse of time
between early 1980 and the situation when you were
working for Mr. Kornacki, makes the continuation of
claim a problem, particularly when the grievances that
were filed in the interim were not sexual harassment
grievances. You can’t draw—I can’t allow the jury to
call an inference over that lapse of time and so that the
retaliation claim is out.
Pet. App. at 172.
The trial court further explained its ruling:
No. The retaliation ruling is based on the fact that there
was no showing that the persons that you claimed
retaliated against you had any knowledge of the CHRO
complaint, or assuming that there was an earlier sexual
harassment complaint, which would constitute forbidden
activity under Title 7 that they had any knowledge that
you made a sexual harassment complaint. The knowl-
edge is a necessary prerequisite to proving retaliation.
It’s an essential element of the case, and there is no
evidence from which a reasonable jury could conclude
that these people had any knowledge if either your
4
sexual harassment complaint, or your CHRO complaint.
That’s what it’s based on.
Pet. App. at 181-182. The court held:
“There is no evidence from which a reasonable jury
could find there was retaliation”.
Pet App. at 184.
On May 21, 1999, Ms. Alexandru timely filed a Notice of
Appeal. On January 27, 2000, the United States Court of
Appeals for the Second Circuit affirmed the judgment of the
district court in an unpublished opinion.
The district court properly granted Northeast Utilities
judgment as a matter of law on Alexandru’s claims for
retaliation . . . because she failed to provide a ‘legally
sufficient evidentiary basis,’ Fed.R.Civ.P. 50(a)(1), on
which the jury might find in her favor. Alexandru never
countered the testimony of her supervisor and manager
that they were unaware that she had filed any grievances.
Thus, she failed to establish a crucial element of a prima
facie case of retaliation—namely, that Northeast Utilities
was aware of the protected activity which, she claims,
led it to retaliate against her. App. at 2a.
The Court of Appeals denied the timely filed Motion for
Rehearing and rehearing en banc. App. at 3a.
This Court granted an enlargement of time for filing a
Petition for Writ of Certiorari to and including October 7,
2000. App. at 7a.
REASONS FOR GRANTING THE PETITION
It is of vital importance that employees who file complaints
of discrimination under Title VII and other statutes be
protected from retaliation by their employers. The Court
should grant review of the first question presented because of
the importance of the issue and to resolve a split in the
Circuits as to whether an employee may establish a prima
facie case of retaliation where a substantial period of time has
passed between the protected activity and the adverse action.
15
The Court should grant review of the second question
because the decisions of the Courts below are flatly
inconsistent with this Court’s ruling last term in Reeves,
supra. In affirming the dismissal of Ms. Alexandru’s
retaliation claims as a matter of law, the Court of Appeals
applied the Second Circuit’s “pretext plus” requirement and
engaged in exactly the same judicial error which was
corrected in Reeves. The lower courts substituted their own
judgment on the merits for those of the jury, which should
have been allowed to decide the retaliation claims.
Numerous federal and state statutes prohibit employers
from retaliating against employees who file discrimination
claims based on race, sex, religion, age, ethnicity or
disability.’ There are also federal statutes prohibiting
retaliation against whistleblowers.” Many states have enacted
anti-retaliation provisions in connection with workers’
compensation and whistleblower acts to protect those who
file claims. Further, the First Amendment protects
government employees from retaliation when they speak out
on matters of public concern. See, e.g., Harrington v. Harris,
118 F.3d 359, 365, (Sth Cir.), cert. denied, 522 U.S. 1016
(1997).
These anti-retaliation provisions are designed to ensure that
employees may freely exercise their statutory legal rights to
be free of discrimination in the workplace. These provisions
serve an important public purpose by encouraging workplace
integrity. Inthe absence of these anti-retaliation provisions,
the. right to be free from discrimination would be
. Family and Medical Leave Act of 1993, 29 U.S.C. § 2615; Americans
with Disabilities Act of 1990, 42 U.S.C. § 12203; Employment
Retirement Income Security Act of 1964, 29 U.S.C. § 1140; Occupational
Health and Safety Act of 1970, 29 U.S.C. § 660(c); Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 623(d); National Labor Relations
Act of 1947, 29 U.S.C. § 201; Fair Labor Standards Act of 1938, 29
U.S.C. § 215(a)(3).
*5 U.S.C.A. § 2302 (2000); and 42 U.S.C.A. Sec. § 5851 (2000).
. 16
unenforceable. “Maintaining unfettered access to statutory
remedial mechanisms” is an important policy goal and a
primary purpose of anti-retaliation provisions. Robinson v.
Shell Oil Co., 519 U.S. 337 (1997).
In order to prevail on her claim of retaliation, Petitioner
must demonstrate that she engaged in protected activity, that
her employer took adverse action against her, and that there
was a causal link or connection between the protected activity
and the adverse action. Carter v. Ball, 33 F.3d 450, 458 (4th
Cir. 1994). Some courts modify the prima facie case by
adding a fourth element requiring that an employer have
knowledge of the employee’s protected activity. See, e.g.,
Harrison v. Metropolitan Gov't of Nashville, 80 F.3d 1107,
1118 (6th Cir. 1996). Those courts using only three elements
subsume the fourth element of knowledge into the third
element of causation. See, e.g., Cohen v. Fred Meyer, Inc.,
686 F.2d 793, 796 (9th Cir. 1982).
Petitioner need not prevail on the underlying charge to be
protected under the participation clause of Title Vil. E.g.,
Filipovic v. K & R Express Sys., Inc., 176 F.3d 390, 398 (7th
Cir. 1999). Thus, the fact that the jury decided against Ms.
Alexandru on her discrimination claims is irrelevant for
determining whether the retaliation claims should have gone
to the jury.
The employee's burden of satisfying the elements of a
prima facie case is not onerous; rather a prima facie showing
is “quite easy to meet.” Texas Dep’t of Community Affairs v.
Burdine, 450 U.S. 248, 250 (1981). The ruling below vio-
lated this basic precept.
Where the plaintiff establishes a prima facie case under the
burden-shifting approach established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), the defendant must
articulate a legitimate nondiscriminatory reason for its
adverse employment action. EEOC v. Avery Dennison Corp.,
17
104 F.3d 858, 861 (6th Cir. 1997). Once the defendant has
met its burden of production, the plaintiff must then
demonstrate pretext, by proffering what is essentially a
second showing of causation to demonstrate the adverse
action would not have occurred but for the plaintiff's
Protected activity. Jd. at 861.
There is no dispute that Ms. Alexandru engaged in
protected activity and that she suffered an adverse action
when she was fired. Thus, the key inquiry in this case is the
issue of Causation—whether an adverse action was taken by
the employer because of Ms. Alexandru’s protected activity.
The resolution of the Causation inquiry turns on whether
Petitioner may establish a prima facie case of retaliation
where there is a substantial period of time between the first
protected activity and the adverse action and whether close
proximity in time is necessary as a matter of law to establish a
retaliation claim. Since Ms. Alexandru establishes a prima
facie of retaliation and there is sufficient evidence to
demonstrate pretext, the issue of retaliation should have been
decided by the jury under Reeves, supra, rather than
dismissed as a matter of law.
ITY AND THE ADVERSE EMPLOYMENT
ACTION IS A NECESSARY ELEMENT OF A
PRIMA FACIE CASE OF RETALIATION.
Here, the courts below held as a matter of law that Ms.
Alexandru could not prevail on her retaliation claim because
seven years had passed since she filed her initial complaint of
retaliation. The Second Circuit adopted a per se rule barring
retaliation claims when a substantial period of time has
Passed since the employee first engaged in protected activity.
18
Hollander v. American Cyanamid Co., 895 F.2d 80, 85 (2d
Cir. 1990); Monahan v. United Technologies Corp., 113 F.3d
1229 (2d Cir. 1997) (Table).’
There is a split in the Circuits regarding the necessity of
proximity in time between the protected activity and the
adverse employment action. For example, the Tenth Circuit
held that an inference of retaliation “can only be made,
however, where ‘close temporal proximity’ exists between the
bringing of charges and the subsequent adverse action.
Candelaria v. EG&G Energy Measurements, Inc., 33 F.3d
1259, 1262 (10th Cir. 1994) (citation omitted) (emphasis
added)(ten-year gap between the EEOC charge and the failure
to achieve a promotion is too long to support an inference of
retaliation); Chavez v. City of Arvada, 88 F.3d 861 (10th Cir.
1996), cert. denied, 519 U.S. 1056 (1997). The Tenth Circuit
has adopted a rule that a retaliatory inference cannot be drawn
when there is a more than three-year gap between the
protected activity and the adverse employment decision and
strong evidence is necessary when the time gap exceeds three
years. The Tenth Circuit has also held that a lag of four
months between protected activity and termination was not
sufficient to justify an inference of causation. Conner v.
Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997).
The Fourth Circuit has adopted a similar view, holding that
a thirteen month interval between the charge and termination
is too long to establish causation absent other evidence of
retaliation. Causey v. Balog, 162 F.3d 798, 803 (4th Cir.
1998). “A lengthy time lapse between the employer
becoming aware of the protected activity and the alleged
adverse action, as was the case here, negates any inference
that a causal connection exists between the two.” Dowe v.
Total Action Against Poverty in Roanoke Valley, 145 F.3d
* Although the Court of Appeals did not cite either of these cases, both
were cited in NUSCO’s Brief filed with the Second Circuit. Brief of
Appellee at 33-34.
19
653, 657 (4th Cir. 1998) (citation omitted) (passage of three
years). ;
The Fifth Circuit also takes a similar view holding that the
passage of approximately ten months “is by itself . . .
insufficient to prove there was retaliation, in the context of
this case it does not support an inference of retaliation and
rather, suggests that a retaliatory motive is highly unlikely.”
Grizzle v. Travelers Health Network, Inc., 14 F.3d 263, 268
(Sth Cir. 1994) (affirming grant of employee’s motion for
J.N.O.V. on retaliation claims.) (footnote omitted). Even ina
case where statements indicating “clear anger” about the
employee’s filing a workers’ compensation claim were made
fifteen to sixteen months prior to his termination, the Fifth
Circuit held that “the long period between the workers’
compensation claim and the discharge militates against a
finding of retaliation.” Burfield v. Brown, Moore & Flint,
Inc., 51 F.3d 583, 590 (Sth Cir. 1995).
The Seventh Circuit goes even further, holding that
“substantial time lapse between the protected activity and the
adverse action ‘is counter-evidence of any causal con-
nection.’” Johnson v. Univ. of Wisconsin-Eau C laire, 70 F.3d
469, 480 (7th Cir. 1995) (citation omitted); Clark v Chrysler
Corp., 673 F.2d 921, 930 (7th Cir. 1982) (two-year time lapse
negated any inference of a causal connection). In subsequent
decisions the Seventh Circuit has continued to narrow its
definition of “substantial time lapse” so that the passage of
only four months prevented plaintiff from establishing a
prima facie case of retaliation. Filipovic v. K & R Express
Systems, Inc., 176 F.3d 390, 399 (7th Cir. 1999).
The Eighth Circuit agrees that the “passage of seven years
blunts any inference” of a causal connection. EEOC vy.
Cherry-Burrell Corp., 35 F.3d 356, 359 (8th Cir. 1994). The
First Circuit takes a similar view holding that an employee
cannot prove retaliation where there was a passage of two and
20
one-half years. Oliver v. Digital Equip. Corp., 846 F.2d 103,
110-111(1st Cir. 1988).
The Eleventh Circuit has adopted a contrary rule that a lack
of temporal proximity is not an automatic bar to a retaliation
suit. Under the Eleventh Circuit’s case law, “the causal link
requirement under Title VII must be construed broadly; ‘a
plaintiff merely has to prove that the protected activity and
the negative employment actions are not completely
unrelated.’” Olmstead v. Taco Bell, 141 F.3d 1457, 1460
(11th Cir. 1998), citing EEOC v. Reichhold Chemicals, Inc.,
988 F.2d 1564, 1571-1572 (11th Cir. 1993); Beckwith v. City
of Daytona Beach Shores, 58 F.3d 1554, 1555 (11th Cir.
1995).
The Third Circuit has adopted a similar view. “The mere
passage of time is not legally conclusive proof against
retaliation.” Robinson v. Southeastern Pennsylvania
Transportation Authority (“SEPTA” ), 982 F.2d 892, 894-895
(3d Cir. 1993) (citation and footnote omitted) (affirming
finding of retaliation despite the passage of almost two years
where there was an “intervening pattern of antagonism”’).
Under the Eleventh Circuit rule, Ms. Alexandru would
have had to present evidence to raise the inference that her
protected activity was the likely reason for the adverse action
and that the protected activity and the adverse action “are not
completely unrelated.” Here, Ms. Alexandru established a |
prima facie case of retaliation because she did all she was
required to do; she presented sufficient evidence at trial to
support a finding of causation because NUSCO witnesses
conceded at trial that there was a connection between the
1985 complaints of sexual harassment and the subsequent
grievances and her termination in 1992. Similarly, under the
- Third Circuit rule, where there is an “intervening pattern of
antagonism,” Ms. Alexandru can establish a prima facie case
of retaliation.
21
Ms. Alexandru demonstrated that after she complained of
sexual harassment, NUSCO denied her assignments com-
mensurate with her skill as an engineer. When NUSCO gave
Ms. Alexandru work, the company assigned menial tasks to
Ms. Alexandru. Even though for much of the time between
1985 and 1992, Ms. Alexandru had nothing to do, NUSCO
nevertheless gave Ms. Alexandru poor evaluations because
she failed to demonstrate any accomplishments in her
position. NUSCO failed to provide any legitimate business
reason for relying on its prior refusal to give Ms. Alexandru
assignments to justify her termination.
Courts of Appeal hold that the employee must demonstrate
that the employer was aware of the protected activity.
However, there is no additional requirement that the em-
ployee must demonstrate that specific persons are aware of
the prior protected act—only that the decision-makers knew.
Ms. Alexandru provided evidence to demonstrate that the
decision-makers employed by NUSCO were aware of her
protected activity and that her prior complaints were con-
sidered when she was terminated. See Harris v. Secretary,
U.S. Dep’t of the Army, 9 F.3d 1313, 1318 (8 Cir. 1997)
(employee engages in protected conduct by complaining of
discrimination).
The Grievance Committee which rejected Ms. Alexandru’s
1992 complaints of discrimination did so after recognizing
that Ms. Alexandru. was raising complaints of sex
discrimination, not just a grievance. This Committee’s deci-
sion on her 1992 complaint was made in reliance on
NUSCO’s prior decision that Ms. Alexandru was a problem
employee and was not the victim of discrimination or
retaliation. This finding shows a clear connection between
the 1985 claims of discrimination and the 1992 decision to
fire Ms. Alexandru.
As Ms. Singer testified, the termination process was
controlled by the Human Relations Department, which
22
exercised a veto over all proposed disciplinary action. Thus,
the power to make the decision to terminate Ms. Alexandru
rested with Human Relations, not with Messrs. Kornacki and
Smart.
Second, the officials charged with the decision to reject
Ms. Alexandru’s grievance and then fire her were fully aware
of her 1985 complaint of sexual harassment and_ the
grievances that followed. In fact, these NUSCO officials
admitted in writing that they held discussions with persons
involved in Ms. Alexandru’s prior complaints of
discrimination. Pl. Ex 291. NUSCO officials considered the
criticisms of Ms. Alexandru’s performance made by the
officials who were previously charged with sexually
harassing her when they made the 1992 decision to terminate
her.
The NUSCO officials who decided Ms. Alexandru’s 1992
complaints lacked merit did so only after concluding that this
was so because her prior complaints filed in 1985 and 1988
lacked merit. The 1992 rejection of Ms. Alexandru’s griev-
ance and her termination were based on the finding that there
was a “pattern of response by the Grievant to efforts to
conduct constructive appraisals of performance. :
NUSCO rejected Ms. Alexandru’s 1992 complaints after
concluding she had a bad attitude and that her current
complaints were simply a repeat of past complaints, which
the company had previously rejected.
9
The Second Circuit’s application of its a per se rule
requiring close temporal proximity illustrates the error of this
approach. This approach to the timing issue replaces a fact-
bound, common sense inquiry with an artificial rule of law.
Resolving «is question requires careful consideration of all
the evidence and any logical inferences drawn from that .
evidence. Undue focus on timing distorts this well-
established sufficiency of the evidence formula and does not
help resolve intent questions like the one raised in this case.
23
Beckwith v. City of Daytona Beach Shores, supra, 58 F.3d at
1556 (citation omitted).
The adoption of a per se rule making the passage of time
sufficient to defeat retaliatory discharge claims as a matter of
law would give employers “a fail-safe recipe” for avoiding
retaliation claims. /d. An employer, such as NUSCO, could
take away an employee’s professional duties and subject her
to continuing harassment and retaliation, but avoid legal
liability for the unlawful retaliation by waiting a “decent
interval” before actually firing the employee. A reasonable
jury could find that the initial complaint of sexual harassment
and discrimination caused Ms. Alexandru’s and NUSCO’s
relationship to deteriorate and set a pattern of behavior that
NUSCO followed in assigning Ms. Alexandru to dead-end
jobs with menial tasks and low-level responsibilities in
retaliation for Ms. Alexandru’s engaging in protected activi-
ties, which ultimately led to her termination. Robinson v.
SEPTA, supra, 982 F.2d at 895 (citation omitted)
Petitioner provided sufficient evidence to establish a prima
facie case of retaliation. The Court should grant the Petition
to resolve the split in the Circuits regarding appropriate
standard for resolving retaliation cases where there is a
substantial passage of time between the protected activity and
the adverse action, and to correct the Second Circuit’s error
below in adopting a per se rule requiring dismissal of Ms.
Alexandru’s claims.
Il. THE SECOND CIRCUIT’S DECISION IS
BASED ON THE NOW DISCREDITED “PRE-
TEXT PLUS” REQUIREMENT AND IS INCON-
SISTENT WITH THIS COURT’S DECISION IN
REEVES
Initially, we note that the Second Circuit is one of those
circuits whose pretext plus analysis was rejected by this
Court’s decision in Reeves, supra, 120 S. Ct. at 2109. See,
24
e.g., Fisher v. Vassar College, 114 F.3d 1332 (2d Cir. 1997)
(en banc), cert. denied, 522 U.S. 1075 (1998); McCarthy v.
New York City Technical College of City Univ. of New York,
202 F.3d 161 (2nd Cir. 2000). Further the trial court
explicitly stated that it was imposing the “pretext plus”
burden on Ms. Alexandru in analyzing the evidence.
The Second Circuit specifically grounded its rejection of
Ms. Alexandru’s appeal on Fed.R.Civ.P. 50(a)(1), stating Ms.
Alexandru failed to provide a “legally sufficient evidentiary
basis, on which the jury might find in her favor.” This legal
error is based on the Court of Appeals’ misapprehension
regarding the requirements of Rule 50(a)(1) and the
consequences flowing from its erroneous “pretext plus”
doctrine.
This Court’s decision in Reeves reasoned that it is
permissible for the trier of fact to infer the ultimate fact of
discrimination from the falsity of the employer’s explanation.
Id. at 2108 (emphasis added). “Proof that the defendant’s
explanation is unworthy of credence is simply one form of
circumstantial evidence that is probative of intentional
discrimination, and it may be quite persuasive.” /d., citing St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 517 (1993).
The role of the jury must be preserved with respect to the
determination of credibility, the weighing of evidence and the
drawing of legitimate inferences from the facts. Under
Reeves, there was sufficient evidence presented at trial to
allow the jury to find that Ms. Alexandru was the victim of
retaliation when she was terminated. Ms. Alexandru pre-
sented sufficient evidence to demonstrate that the decision-
makers working for her employer had knowledge of her 1985
complaints of sexual harassment prior to the time that her
employer fired her. Indeed, NUSCO made the decision that
Ms. Alexandru’s 1992 grievance lacked merit because she
had previously shown that she could not take direction, as
evidenced by the rejection of her 1985 grievance. NUSCO
25
reached that conclusion after conferring with the very men
who had sexually harassed Ms. Alexandru, or who had
refused to respond to her complaints. As Ms. Singer testified
at trial, NUSCO’s initial premise in deciding that Ms.
Alexandru’s 1992 complaints of discrimination were without
merit and that the problem was Ms. Alexandru and not any of
NUSCO’s male employees, was based on events surrounding
Ms. Alexandru’s 1985 complaint.
Thus, a reasonable jury could find that NUSCO retaliated
against Ms. Alexandru because she engaged in protected
activity. Ms. Alexandru could also show a causal connection
between the protected activity and the adverse action because,
as Ms. Singer testified, NUSCO corisidered Ms. Alexandru’s
1985 complaint of sexual harassment and retaliation when the
decision to reject Ms. Alexandru’s 1992 grievance was made.
Further, NUSCO officials consulted with unidentified per-
sons in determining that Ms. Alexandru was a complainer
who was unwilling to take direction. At no time did NUSCO
officials ever conduct an even handed investigation, either in
1985-1988, or in 1992, or ask Ms. Alexandru about her view
of events in 1985-1986, prior to rejecting her complaints in
1992. NUSCO’s failure in 1992 to ever ask Ms. Alexandru
about her side of the story is sufficient evidence to support a
finding of pretext and to create a factual dispute regarding the
real reason for Ms. Alexandru’s termination. If NUSCO
really wanted to conduct an impartial investigation, rather
than create a paper justification for firing Ms. Alexandru, the
company would surely have asked Ms. Alexandru about the
earlier sexual harassment.
NUSCO articulated various reasons to support Ms.
Alexandru’s termination. For example, NUSCO criticized
Ms. Alexandru’s job performance, stating Ms. Alexandru
failed to demonstrate “team work, the quality and quantity of
her work, her decision making and communication skills.”
NUSCO also cited Ms. Alexandru’s “refusal” to count fish at .
26
night on unprotected river banks as a reason for her
termination. In addition, NUSCO argues that the termination
was justified because Ms. Alexandru was not at her desk or
several occasions and that she was “insubordinate.”
There is more than ample evidence in the record that these
reasons were pretextual. Here the evidence at trial on the
retaliation claims contained evidence from which a
reasonable jury could have found that defendants were lying
as to the real reason for firing Ms. Alexandru.
After she filed her complaint of sexual harassment,
NUSCO failed and refused to give Ms. Alexandru regular
duties and responsibilities commensurate with her education
and experience and indeed, there is little dispute about the
absence of appropriate duties. In fact, Ms. Alexandru’s
performance evaluation for 1991 even acknowledges that Ms.
Alexandru did not have work to perform during much of the
relevant time period. Pet. App. 124-128. But it is nonsensical
for NUSCO to rely on Ms. Alexandru’s failure to demonstrate
her “team work, the quality and quantity of her work, her
decision making and communication skills” where NUSCO
denied Ms. Alexandru the opportunity to demonstrate these
skills. NUSCO certainly cannot rely on Ms. Alexandru’s
“failure” in her job performance to justify the decision to fire
Ms. Alexandru where NUSCO denied her an opportunity to
succeed.
Nor can the claimed refusal to count fish at night on
unprotected river banks support Ms. Alexandru’s termination.
NUSCO never advanced any legitimate business reason for
assigning a highly educated and trained engineer such as Ms.
Alexandru to this position, rather than giving her assignments
related to her skill and experience. Nor did NUSCO ever
explain why the fish counting had to be done on a 24-hour a
day basis and how Ms. Alexandru was supposed to count fish
in the dark. Even though NUSCO witnesses testified that the
fish counting project was important, the cancellation of the
27
project never had any adverse impact on NUSCO. The fact
the NUSCO managers lied when they claimed counting fish
was important supports Ms. Alexandru’s claims of pretext.
When the evidence is viewed in a light most favorable to
Ms. Alexandru, it is clear that Ms. Alexandru did not actually
refuse to participate in the fish counting. Ms. Alexandru
rather simply voiced legitimate concerns regarding her safety
if she worked after dark, but agreed to perform this “make-
work” assignment during the day. Based on evidence pre-
sented at trial, a reasonable jury could find that NUSCO
decided to further retaliate against Ms. Alexandru by using
this assignment to manufacture a justification for firing her.
A jury could find that NUSCO created a demeaning “make
work” assignment for Ms. Alexandru that would either
pressure Ms. Alexandru to resign or would provide a pretext
for her subsequent termination. Where the employer advances
an inherently implausible explanation for its actions, this is
sufficient to create a factual issue to be decided by the jury.
Byrd v. Lakeshore Hosp., 30 F.3d 1380, 1383 (i1th
Cir.1994).,
Similarly, NUSCO’s explanation for why Ms. Alexandru’s
occasional absence from her desk justified her termination is
flawed. NUSCO never explained why Ms. Alexandru’s
supervisors were monitoring her activities or why there was
such a strong objection to Ms. Alexandru’s use of the
bathroom during work hours when there was no work for Ms.
Alexandru to do. A reasonable jury could find that NUSCO
was simply grasping at straws to justify a decision to fire Ms.
Alexandru for retaliatory reasons.
Further, where there is evidence that a proffered reason is
pretextual, then the proffer is itself evidence of discrimi-
nation. “In appropriate circumstances, the trier of fact can
reasonably infer from the falsity of the explanation that the
employer is dissembling to cover up a discriminatory
purpose.” Reeves, supra, 120 S. Ct. at 2108. The lower
28
courts failed to consider the evidentiary value of defendants
having proffered inadequate and pretextual explanations for
firing Ms. Alexandru.
A reasonable jury could find that NUSCO engaged in
continuing retaliation against Ms. Alexandru for complaining
about sexual harassment by assigning her to positions which
had no duties and no opportunity for promotion or replace-
ment in other positions at NUSCO.
CONCLUSION
The Petition for a Writ of Certiorari should be granted
to resolve these issues of nationai importance regarding the
requirement that the protected activity and the adverse action
be closely related in time and whether the per se rule is
inconsistent with this Court’s decision in Reeves. The Petition
should also be granted because the decisions of the Court of
Appeals is flatly inconsistent with Reeves. Alternatively, we
respectfully request the Court grant the Petition, vacate the
judgment of the Court of Appeals for the Second Circuit, and
remand for reconsideration in light of Reeves.
Respectfully submitted,
JOHN F. KARL, JR. *
MCDONALD & KARL
900 17th Street, N.W.
Suite 1250
Washington, D.C. 20006
(202) 293-3200
* Counsel of Record Counsel for Petitioner
APPENDIX
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APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RES JUDICATA.
two thousand.
PRESENT:
Pierre N. Leval,
Fred I, Parker,
Robert A. Katzmann,
Circuit Judges
2a
99-7611
MICHAELA I. ALEXANDRU.
Plaintiff-Appellant,
Lf
NORTHEAST UTILITIES SERVICE COMPANY,
Defendant-Appellee.
APPEARING FOR PLAINTIFF-APPELLANT:
MICHAELA I, ALEXANDRU, pro se, Cheshirc, CT.
APPEARING FOR DEFENDANT-APPELLEE:
ALICIA B. DAVENPORT, Senior Counsel.
Northeast Utilities Service Company, Hartford, CT.
Appeal from the United States District Court for the District
of Connecticut (Nevas, J.)
Following a jury verdict in favor of the defendant on her Title
VII claim alleging sexual discrimination and harassment,
Plaintiff Michaela I. Alexandru appeals from orders of the
United States District Court for the District of Connecticut
dismissing three additional claims for retaliation, breach of an
implied covenant of good faith and fair dealing, and intentional
infliction of emotional distress. In addition, Alexandru appeals
from the district court’s decision to exclude from evidence
certain business records, medical records and witnesses.
The district court properly granted Northeast Utilities
judgment as a matter of law on Alexandru’s claims for
retaliation and for breach of an implied covenant, because she
failed to provide a “legally sufficient evidentiary basis,” Fed. R.
Civ. P. 50(a)(1), on which the jury might find in her favor.
Alexandru never countered the testimony of her supervisor and
manager that they were unaware that she had filed any
grievances. Thus, she failed to establish a crucial element of a
prima facie case of retaliation--namely, that Northeast Utilities
3a
was aware of the protected activity, which, she claims, led it to
retaliate against her. Likewise. Plaintiff offered no evidence that
she had entered any express or implied contract with Northeast
Utilities limiting the duties to which she might be assigned. For
this reason, Northeast Utilities did not breach any implied
covenant of good faith and fair dealing by assigning her
allegedly menial tasks.
The district court correctly granted Northeast Utilities
summary judgment on Alexandru’s claim for intentional
infliction of emotional distress, because she failed to raise
“genuine issue[s] as to any material faci.” Fed R. Civ. P. 56(c).
To sustain a claim for intentional infliction of emotional
distress, Alexandru must show that Northeast Utilities engaged
in “conduct exceeding all bounds usually tolerated by decent
society.” DeLaurentis v. City of New Haven, 597 A.2d 807, 828
(Conn. 1991) (internal quotation omitted). Alexandru failed to
allege any facts rising to the level of “outrageous[ness],” id.,
required by Connecticut law, and thus summary judgment in
favor of Northeast Utilities was appropriate.
We also affirm the district court’s evidentiary rulings.
“Evidentiary rulings ordinarily will not be overturned, absent an
abuse of discretion,” Perry v. Ethan Allen, Inc., 115 F.3d 143,
150 (2d Cir.1997), and the record does not indicate that any
such abuse occurred.
ON CONSIDERATION WHEREOF, IT IS HEREBY
ORDERED, ADJUDGED AND DECREED that the judgment
of the district court is AFFIRMED.
FOR THE COURT:
KAREN GREVE MILTON, ACTING CLERK
By: Lucille Carr, Deputy Clerk
4a
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
UNITED STATES COURT HOUSE
40 FOLEY SQUARE
NEW YORK 10007
ROSEANN B. MACKECHNIE, clerk
At a stated term of the United States Court of Appeals for the
Second Circuit, held at the United States Courthouse, Foley
Square, in the City of New York, on the tenth day of May two
thousand. .
Dkt No: 99-7611
ALEXANDRU
Appellant,
Vv
Nusco
Appellee.
A petition for panel rehearing and a petition for rehearing en
banc having been filed herein by the appellant MICHAELA
ALEXANDRU.
Upon consideration by the panel that decided the appeal, it is
Ordered that said petition for rehearing is DENIED.
It is further noted that the petition for rehearing en banc has
been transmitted to the judges for the court in regular active
service and to any other judge that heard the appeal and that no
such judge has requested that a vote be taken thereon.
FOR THE COURT:
ROSEANN B. MACKECHNIE, Clerk
By: BETHJ. MEADOR, Administrative Attorney
Sa
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Civil No. 3:95cv0461 (HBF)
MICHAELA ALEXANDRU
V.
NORTHEAST UTILITIES
JUDGMENT
This action came on for trial before the Court and a jury, the
Honorable Holly B. Fitzsimmons, United States Magistrate
Judge, and the issues having been duly tried and the jury have
duly rendered its verdict on May 21, 1999,
It is hereby ORDERED and ADJUDGED that judgment be
and hereby is entered in favor of the defendant, in accordance
with the Jury’s verdict.
Dated at Bridgeport, Connecticut this 16" day of June, 1999.
KEVIN F. ROWE,
By /s/
CAROL E. CANNADY
Deputy in Charge
6a
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Civil No. 3:95cv0461 (HBF)
MICHAELA ALEXANDRU
\ Vv.
NORTHEAST UTILITIES
EXCERPTS FROM TRIAL
THECOURT: “All right, now you understand that not only
do you have to prove that the reason that Northeast Utilities
gave for terminating your employment was a pretext, but that
the actual reason was sex discrimination, gender
discrimination.” Trial Transcript, May 7, 1999, at 22; Pet. App.
at 82.
* * * *
THE COURT: “Yes, but Ms. Alexandru, if what you’re
doing is addressing the retaliation claim, the lapse of time
between early 1980 and the situation when you were working
for Mr. Kornacki, makes the continuation of claim a problem,
particularly when the grievances that were filed in the interim
were not sexual harassment grievances. You can’t draw -- I
can’t allow the jury to call an inference over that lapse of time
and so that the retaliation claim is out.” Trial Transcript, May
20, 1999 at il. Pet. App at 172.
* * * *
THE COURT: “No. The retaliation ruling is based on the
fact that there was no showing that the persons that you claimed
retaliated against you had any knowledge of the CHRO
complaint, or assuming that there was an earlier sexual
harassment complaint, which would constitute forbidden
activity under Title 7 that they had any knowledge that you
Ta
made a sexual harassment complaint. The knowledge is a
necessary prerequisite to proving retaliation. It’s an essential
element of the case, and there is no evidence from which a
reasonable jury could conclude that these people had any
knowledge if either your sexual harassment complaint, or your
CHRO complaint. That’s what it’s based on.” Trial Transcript,
May 20, 1999, at 25-26; Pet. App. at 181-182.
* * * *
THE COURT: “There is no evidence from which a
reasonable jury could find there was retaliation.” Trial
Transcript, May 20, 1999, at 29; Pet App. at 184.
8a
SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, DC 20543-0001
WILLIAM K. SUTER
Clerk of the court
202-479-301 |
July 31, 2000
Mr. Christopher G. Hoge
Crowley, Hoge & Fein
1717 Massachusetts Ave., N.W.
Washington, DC 20036
Re: Michaela I. Alexandru
v.
Northeast Utilities Service Company
Application No. 00A96
Dear Mr. Hoge:
The application for an extension of time within which to file a
petition for a writ of certiorari in the above-entitled case has
been presented to Justice Ginsburg, who on July 31, 2000,
extended the time to and including October 7, 2000.
This letter has been sent to those designated on the attached
notification list.
Sincerely,
WILLIAM K. SUTER, Clerk
By
/s/ Loretta S. Ruffin
Assistant Clerk
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.