Opposition Brief — Hervey v. Koochichiching County (No. 08-606)

[Supreme Coun. US.

FILED

\Y\ 1, DEC @ - 2008

No. 08-606 OFFICE OF THE CLERK

In the

Supreme Court of the United States

Florence Hervey,

Petitioner,

V.

County of Koochiching; Sheriff Duane Nelson,

individually and in his official capacity;

and Undersheriff John Mastin, individually

and in his official capacity,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF IN OPPOSITION

RATWIK, ROSZAK & MALONEY, P.A.

Ann R. Goering

Counsel of Record

Eric J. Quiring

300 U.S. Trust Building

°30 Second Avenue South

Minneapolis, MN 55402

(612) 339-0060

Attorneys for Respondents

2008 — Bachman Legal Printing & (612) 339-9518 @ 1-800-715-3582 & Fax (612) 337-8053

QUESTIONS PRESENTED

Whether the Eighth Circuit correctly affirmed

the District Court's grant of summary

judgment on Petitioners retaliation claim

where Respondents had no _ actual or

constructive knowledge of Petitioner’s

protected conduct until after she engaged in

misconduct that was the basis for discipline?

Whether the Eighth Circuit correctly affirmed

the District Court’s grant of summary

judgment on Petitioner’s retaliation claim that

was based solely on temporal proximity?

Whether the Eighth Circuit correctly affirmed

Summary judgment on Petitioner's gender

discrimination claim due to Petitioner’s failure

to establish that she was treated differently

than a similarly situated male employee?

TABLE OF CONTENTS

Questions Presented

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SMe OF Authorities... ...ceccaccesvecccecosevescssccuseeees

Statutory Provisions Involved

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Reasons for Denying the Petition

I.

THE EIGHTH CIRCUIT CORRECTLY HELD

THAT HERVEY’S REFERENCE TO THE

RESPECTFUL WORKPLACE POLICY WAS

NOT PROTECTED CONDUCT UNDER

REREAD VEL, isticnssachesvcineer een eee 10

A. The Eighth Circuit’s Decision does not

Leave Employees who Resort to Internal

Anti-Discrimination and Anti-Harassment

Policies Unprotected. ...<6sicisssasstavee 11

Hervey did not Oppose a Practice by

Resort to the County’s Internal Policy... 15

. THE EIGHTH CIRCUITS DECISION

CORRECTLY DETERMINED THAT HERVEY

COULD NOT ESTABLISH CAUSATION BY

TEMPORAL PROXIMITY ALONE. ............ 16

A. Respondents have Produced Evidence of

Their Legitimate Non-Retaliatory

Reasons for Their Actions. ................ 19

IIl.THE EIGHTH CIRUIT CORRECTLY

AFFIRMED SUMMARY JUDGMENT ON

HERVEY’S GENDER DISCRIMINATION

CLAIM BECAUSE SHE FAILED TO SHOW

THAT SHE WAS TREATED DIFFERENTLY

THAN A SIMILARLY SITUATED MALE

I Ts. ob e-sies bai nnnensincsescineses Rev erdeav ens +. we

A. Hervey Failed to Identify any Similarly

Situated Male Employees Who were

TORtOG DITICTORELY.. .....00:600000cescercvens 23

Hervey Failed to Establish that she was

Treated Differently than Similarly

Situated Employees under any

Comparable Conduct Analysis.......... 30

Conclusion

TABLE OF AUTHORITIES

CASES

Aramburu v. The Boeing Company.

112 F.3d 1398 (10th Cir. 1997)

Bryant v. Aiken Regional Medical Centers Inc..,

333 F.3d 536 (4th Cir. 2003)

Burke-Fowler v. Orange County, Florida,

447 F.3d 1319 (11th Cir. 2006)

Burks v Wisconsin Dept. of Transportation,

464 F.3d 744 (7th Cir. 2006)

Burlington Industries, Inc. v. Ellerth,

524 U.S. 742 (1998)

Clark v. Runyon,

218 F.3d 915 (8th Cir. 2000)

Cook v. CSX Transportation Corp.,

988 F.2d 507 (4th Cir. 1993)............0006..

Crawford v. Metropolitan Government of

Nashville and Davidson County, Tenn.,

211 Fed. Appx. 373 (6th Cir. 2006)

Davis v. City of Philadelphia Water Dept..,

57 Fed. Appx. 90 (8rd Cir. 2003)

Davis v. Team Electric Co.,

520 F.3d 1080 (9th Cir. 2008)

E.E.0O.C. v. Brown & Root, Inc.,

688 F.2d 338 (5th Cir. 1982)

E.E.O.C. v. Total Systems Services, Inc.,

221 F.3d 1171 (11th Cir. 2000)

Evans v. City of Houston,

246 F.3d 344 (5th Cir. 2001)

Eizell v. Potter,

400 F.3d 1041 (7th Cir. 2005)

Faragher v. Boca Raton,

ee Pe FFAS IOD ii seven eyecv desea enues

iV

Garcia v. Bristol-Myers Squibb Co.,

535 F.3d 23 (1st Cir. 2008)

Garrity v. New Jersey,

385 U.S. 493 (1967)

Gragg v. Somerset Technical College,

373 F.3d 763 (6th Cir. 2004)

Graham v. Long Island RR,

moe oe oe (ee Gir. 2000). ...........ccccceee

Hannoon v. Fawn Eng’g Corp..,

324 F.3d 1041 (8th Cir. 2003)

Hill v. St. Louis University,

123 F.3d 1114 (8th Cir. 1997)

Hitt v. Harsco Corp.,

356 F.3d 920 (8th Cir. 2004)

Hutson v. McDonnell Douglas Corp.,

63 F.3d 771 (8th Cir. 1995)

Kotcher v. Rosa and Sullivan Appliance

Center, Inc.,

957 F.2d 59 (2nd Cir. 1992)

Lynn v. Deaconess Med. Ctr.-W. Campus,

160 F.3d 484 (8th Cir. 1998)

Mickey v. Zeidler Tool and Die, Co.,

516 F.3d 516 (6th Cir. 2008)

Nix v. WLCY Radio/Rahall Communications,

738 F.2d 1181 (11th Cir. 1984)

Perry v. McGinnis,

209 F.3d 597 (6th Cir. 2000). ................

Strong v. University Healthcare System, L.L.C.,

482 F.3d 802 (5th Cir. 2007)

Texas Dept. of Community Affairs v. Burdine,

450 U.S. 248 (1981)

Tolen v. Ashcroft,

377 F.3d 879 (8th Cir. 2004)

Vasquez v. County of Los Angeles,

349 F.3d 634 (9th Cir. 2004)

White v. Burlington No. and S.F.R. Co.,

548 U.S. 53 (2006)

STATUTES AND RULES

42 U.S.C. § 2000e, et seq

Minn. Stat. § 13.01, et seq

NS A i

Minn. Stat. § 375.08

Sup. Ct. R. 10

STATUTORY PROVISIONS INVOLVED

United States Code Title 42, Section 2000e-

3(a). See Pet. at 1.'

STATEMENT OF THE CASE AND THE FACTS

Petitioner Florence Hervey (“Hervey”) initiated

this action against her employer, Koochiching

County, former Sheriff Duane Nelson and former

Undersheriff John Mastin (collectively

“Respondents”) alleging employment discrimination

based on disparate treatment because of her gender,

hostile work environment based on gender, and

retaliation under Title VII, 42 U.S.C. § 2000e, et seg.

and the Minnesota Human Rights Act, Minn. Stat. §

363A.01, et seq. Hervey also asserted a claim against

Koochiching County for a violation of the Minnesota

Government Data Practices, Minn. Stat. § 13.01, et

seq. On June 9, 2008, the Eighth Circuit Court of

Appeals affirmed summary judgment for

Respondents, which was granted by the United

States District Court for the District of Minnesota on

October 20, 2006. The Eighth Circuit also denied

Hervey’s Petition for Rehearing En Banc on August 5,

2008. The District Court subsequently entered

judgment consistent with the Eighth Circuit’s

decision on September 26, 2008.

Hervey was employed by Koochiching County

beginning in 1976 as a jailer dispatcher. She

remained in that position until she was promoted to

' Citations in the form “Pet.” are to Petitioner’s Petition.

Citations in the form “Pet.’s App.” are to the Appendix to the

Petition.

the position of Jail Administrator effective February

12, 2001. At the time of her promotion, the

Undersheriff was Robert Byman, who retired April

30, 2003. Nelson appointed John Mastin as Byman’s

replacement.’

Hervey alleges in her Petition that she had not

received any significant job criticisms during her

employment with the County. This is incorrect.

Byman testified in his deposition to disputes and

criticisms of Hervey.’ No performance evaluations

were conducted of Hervey during her employment

until 2004, when the evaluation of all staff was

commenced.

The Sheriff, consistent with his authority as an

elected official, developed a chain of command for the

Sheriffs Office which required Hervey to report to

Mastin. A memo outlining the chain of command was

issued in April 2003.4

At an April 2003 meeting between Byman,

Nelson, Mastin and Hervey, Hervey objected to the

chain of command, arguing without reference to any

legal authority that only the County Board could

make such a change. Both Hervey and Nelson

raised their voices, with Hervey stating that she

would not report to Mastin and that the duly elected

Sheriff did not have the authority to change the

reporting structure in his own office.” Nelson told

? Pet.s’ App., A-Z.

> Respondents’ Appellate Brief, p. 11, 54, Appendix 204-207.

* Pet.’s App., A-41.

* Id.

°Id., A-42.

Hervey that she was “disrespectful.”’ Hervey stated

that Nelson had “respectful workplace issues.”* She

did not allege any form of harassment or

discrimination based on gender or any other

protected class, nor did she file a complaint under the

County’s Respectful Workplace Policy.

The County's Respectful Workplace Policy

prohibits discrimination as well as “rudeness,” “angry

outbursts” and “disrespectful language,” whether or

not such conduct is related to protected class status.”

Throughout the summer and fall of 2003,

Hervey repeatedly failed or refused to follow

directives issued to her by Mastin and Nelson and

engaged in acts of insubordination, including the

requirement to review her budget to determine ways

to save money in the midst of a budget crisis and

instead issuing a memo saying not a dime could be

reduced and recommending a significant increase in

her _ staff.'® Hervey repeatedly violated a

departmental directive and directly contacted both

the County Attorney and County Board regarding

internal department matters without prior approval

of the Sheriff.'' At no time during any discussions

with Nelson and Mastin, when confronted regarding

her misconduct did Hervey ever allege gender based

harassment or discrimination, nor did she file a

complaint alleging such pursuant to the County’s

internal policy.

” Id. A-17.

4 Id., A-3

” Pet.’s App., A-17

” id., A-42.

' Id. A-3

Due to the budget crisis, both Nelson and

Mastin took on additional duties.'” After Hervey

refused to examine ways to find cost savings in the

jail, the County Board looked at eliminating her

position. Nelson fought to save the position and was

successful. However, in order to save money, Hervey

was assigned to work two hours per day as a

corrections officer.'”

Hervey’s performance evaluation was

conducted on February 6, 2004. Hervey was given

high ratings for her knowledge of the position and

productivity, but low ratings for teamwork, judgment

and dependability. She was found to be supportive of

her own staff in the jail, but needed to become a team

player in the overall department."

Hervey took off February 10 and 11, 2004

without speaking to either Nelson or Mastin. She

stayed home those days and drafted a document

claiming unfair treatment in response to the

evaluation.”

Mastin called Hervey at home on February 11

and asked why she had not been at work the prior

day and told her he wanted to meet with her the next

morning regarding her absences.'° At the meeting on

February 12, Mastin informed Hervey that he had

not received any voicemail message from her or her

'* Pet.’s App., A-44

'* Id., A-4.

"Td

* Id.

1d. A-5

co-worker’’ regarding her intent to be absent and her

missing two days of work without speaking to either

him or Nelson directly.'® Mastin told Hervey that he

intended to recommend to Nelson that she be

disciplined for her conduct.'? Hervey then informed

Mastin that she intended to file a complaint with the

Minnesota Department of Human Rights.”°

Hervey met with County Coordinator Jaksa on

February 12 and informed her that Mastin was

intending to recommend discipline to Sheriff

Nelson.”! Hervey told Jaksa she felt she was being

treated improperly by Mastin and that he was

controlling her too much for her to do her job.” Jaksa

contacted the Sheriff and the meeting scheduled for

that afternoon was postponed. Jaksa informed

Hervey of her right to file a respectful workplace

complaint under the County’s policy, and Hervey

indicated she would like to do so.” Jaksa further

informed Hervey that it would not be appropriate for

her to investigate the complaint, as she knew all of

the parties and that she would be leaving on vacation

the next day.” Jaksa informed Hervey that she

would follow-up with her once Jaksa returned.” The

Hervey alleges, citing only her brief as evidence, that Mastin

admitted to receiving a voice mail from a co-worker, which

Respondent disputes.

* Pet.’s App., A-52.

19 Id.

20 Tq.

“" App. to Resp. Appell. Brief, 139.

“ Id., at 140.

24

“" Id

** App. to Resp. Appell. Brief, 140

S

claim in her Petition that the Jaksa refused to take

her complaint is misleading at best.

Hervey hired an attorney who contacted the

County Attorney on February 13, 2004 to schedule a

meeting, which was then postponed until Jaksa

returned from vacation.*° When Jaksa returned from

her vacation, she e-mailed Hervey asking if she

wanted to file a complaint pursuant to County policy

at that time.”’ Hervey responded that she would do

so through her attorney.”

Mastin and Nelson rescheduled the meeting

with Hervey for February 17, 2004. At that time,

Mastin had been informed that Hervey had been in

his office when he was not present going through files

in his office. Hervey did not need a master key to

perform her job duties and Mastin was concerned

about confidential files in his office. Therefore, her

master keys were removed from her and a memo

issued regarding her job duties on February 18,

2004.”

On February 18, 2004, after the meeting with

Nelson, Mastin and Hervey on February 17, Hervey’s

attorney sent another letter to the County making

additional allegations... The meeting with Hervey

regarding her absence from work on February 10th

and llth was finally scheduled for March 2, 2004,

primarily due to the intervention of her attorney

~

© Id., at 120.

*"Id., at 95-96

8 Id., at 141.

*? Pet.'’s App., A-53.

App. to Resp. Appell Brief. 186-189.

6

On March 12, 2004, Hervey’s attorney issued a

Notice of Claim to the County.*' The County began a

respectful workplace investigation through an outside

investigator. The investigator interviewed Hervey,

Mastin and other witnesses and issued a report

concluding that the allegations were

unsubstantiated.” Hervey was notified of this on

May 21, 2004.’ Six days later, Hervey, through her

attorney, sent a letter to the EEOC alleging

discrimination, followed by a charge of discrimination

dated June 14, 2004.**

Hervey falsely alleges that Mastin, along with

other armed officers, forced his way into her

attorneys office. This claim is spurious. The

undisputed facts establish that the visit to Biggins'’

office on May 28, 2004, was instigated and controlled

by the International Falls Police Department.’

Mastin was merely called by that Department as

backup. There is absolutely no evidence of forcible

entry in the record.

Both Hervey and a male employee were

warned in June 2004 about using a County credit

card for the purchase of alcohol, which is a clear

violation of County policy. There is no evidence of

any other employees using County credit cards for

such purposes that were treated differently.

*'Id., at 195-202

32 Id

at”

44 Id.

> Resp. Appell. Brief, App. 216

2)

9)

a

/

Moreover, Hervey was the male employee’s direct

" 6

supervisor.”

Hervey persisted in violating directives

throughout 2004 and 2005, including her ongoing

insubordination in refusing to meet with Mastin ona

daily basis to update him regarding the jail, even

though their offices were only ten feet apart, as well

as other numerous documented issues.°’ Due to her

ongoing misconduct, Hervey was suspended for five

days in March 2005 and fifteen days in July 2005.

The March 2005 suspension was for 1) her continued

refusal to meet with Mastin as directed, and 2)

implementing actions that were inconsistent with

policies, procedures and job duties.’ The July 2005

letter set forth sixteen specific grounds for the

suspension, including but not’ limited _ to

insubordination for her ongoing refusal to meet with

John Mastin on a daily basis and failure to comply

with other directives and meet job expectations.”

Hervey was given the opportunity to provide Nelson

with any information rebutting the stated grounds,

but did not do so.*!

Hervey falsely states in her Petition that she

was suspended for explaining to a union employee

her rights before investigating a possible workplace

violation. First, this incident occurred in August

2005, following her return from suspension. Second,

%6 ’ o<

Pet.’s App., A-22.

A-7

* Id, A-54.

’ App. Resp. Appell. Brief 7-9.

Id., at 131-134

* Id.

it involved Hervey questioning the person assigned as

acting jail administrator during her suspension

regarding what she had been doing while Hervey was

gone. Further, this did not involve explaining union

employment rights, but involved the issuance of a

Garrity warning without authorization from either

the Sheriff or County Attorney.** See Garrity v. New

Jersey, 385 U.S. 493 (1967).

Hervey raises the issue of Mastin asserting on

his application for his law enforcement license more

than twenty-five years before the commencement of

this lawsuit that he was not a felon. Mastin received

a pardon for the underlying offense more than two

decades before he became Undersheriff.*’

Hervey falsely alleges that Mastin violated a

union contract by failing to notify an employee of the

right to representation. There is no obligation for an

employer to notify a union member of the right to

representation; it is up to the employee to request

such representation.

Hervey brought suit against the County for

alleged violation of her rights pursuant to the

Minnesota Government Data Practices Act. Her

claim was dismissed by the District Court. Hervey’s

contention that private personnel data was published

in the newspaper is false.

Rich Mastin is a_ backup deputy who

occasionally fills in at the Koochiching County

Sheriffs Office.“* He is not regularly scheduled there.

He has no supervisory or administrative duties. His

*? App. Resp. Appell. Brief, p. 19-20

** Pet.’s Appell. Brief, p. 4.

** Pet.’s App., A-61.

full-time job is as Police Officer at the International

Falls Police Department.*° Rich Mastin was involved

in a car accident while intoxicated. His full-time

en:ployer suspended him. The Sheriff concurred with

the discipline meted out by the City. The conduct

was unrelated to his sporadic employment with the

County.*’

REASONS FOR DENYING THE PETITION

The arguments set forth in Hervey’s Petition

fail to demonstrate chat a Writ of Certiorari should be

granted in this case. The Eighth Circuit’s decision

affirming summary judgment in favor of Respondents

is well-reasoned and consistent with controlling

precedent. Hervey simply disagrees with the

outcome. She has not carried her burden of

demonstrating any “compelling reasons” for the

Petition to be granted. See Sup. Ct. R. 10.

I. THE EIGHTH CIRCUIT CORRECTLY

HELD THAT HERVEY’S REFERENCE TO

THE RESPECTFUL WORKPLACE

POLICY WAS NOT PROTECTED

CONDUCT UNDER TITLE VII.

In her Petition, Hervey attempts to confuse the

issues by claiming that the Eighth Circuit held that

opposing an employer practice by resorting to an

internal policy against discrimination and

harassment is not protected conduct. See Pet., p. 13.

45 Id.

*© Pet.’s App., A-62

"Id.

However, the Eighth Circuit’s decision did not

diminish the standard for protected conduct and is

consistent with this Court’s rulings. See Faragher v.

Boca Raton, 524 U.S. 775 (1998); Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

Rather, the Eighth Circuit simply applied the law

and determined that Respondents had no actual or

constructive notice that Hervey had engaged in

protected conduct under Title VII or the Minnesota

Human Rights Act at the time that she had only

referenced the Respectful Workplace Policy, but did

not give any indication that she was alleging gender

discrimination or harassment.

A. The Eighth Circuit’s Decision does

not Leave Employees who Resort to

Internal Anti-Discrimination and

Anti-Harassment Policies

Unprotected.

Hervey attempts to portray the Eighth

Circuit's decision as a setback to an employee’s right

to be free from retaliation for engaging in protected

conduct is unpersuasive. Even if Hervey’s brief

mention of “respectful workplace issues” in April

2003 could be characterized as resorting to her

employer’s internal policy, she gave no indication

that she was claiming gender discrimination or

harassment under Title VII. The rights of an

employee who actually does resort to his or her

employer's internal policy to oppose an employer's

unlawful discrimination or harassment’ are

unaffected by the Eighth Circuit’s decision in this

case.

1]

The Eighth Circuit dismissed Hervey’s

contention that she engaged in protected conduct as

far back as April 11, 2003 when she first referred to

respectful workplace issues. Pet.s’ App., A-17. As the

Court noted, the Respectful Workplace Policy applies

to rude or disrespectful comments not based on

unlawful discrimination, and Hervey’s comments did

not indicate that her issues were related to gender

discrimination or harassment based on protected

status. Id. Asa result, Respondents had no actual or

constructive knowledge of protected activity by

Hervey as of April 2003. Id.

Hervey’s first comment that could be construed

as referencing the County’s Respectful Workplace

Policy on April 11, 2003 was not articulated as a

gender discrimination or harassment issue. Hervey

simply claimed that Nelson had “respectful workplace

issues” and she gave no indication that her complaint

was for anything more than rude or angry comments,

which would be inconsistent with the Policy. See

Pet.’s App., A-17. Unlike the facts of the cases cited

by Hervey in her Petition, the record in this case

demonstrates that Respondents could not have

unlawfully retaliated against Hervey because they

had no reason to believe she was complaining of

conduct that might be protected by Title VII.

By the time Hervey did engage in Title VII

protected conduct on February 12, 2004, by telling

Mastin that she was filing a claim with the

Minnesota Department of Human Rights, Hervey had

already been accused of repeated acts. of

insubordination and was facing discipline for being

AWOL. Id. The Eighth Circuit correctly

}?

—

distinguished Hervey’s allegations of retaliatory

actions as simply the logical consequence of Hervey’s

pre-existing disciplinary problems. Pet.s’ App., A-19.

Despite Hervey’s best efforts to shield herself from

legitimate discipline by interjecting announcements

of her discrimination claim, the Eighth Circuit

correctly determined that Hervey could not create a

submissible case of unlawful retaliation.

Moreover, the Eighth Cuircuit’s decision is

consistent with controlling precedent. In support of

her Petition, Hervey relies on this Court’s decision to

consider Crawford v. Metropolitan Government of

Nashville _ and Davidson County, Tenn., 211 Fed.

Appx. 373 (6th Cir. 2006). Hervey alleges that she,

like the plaintiff employee in Crawford, has been left

unprotected from retaliation because she used the

County’s internal policy to assert her claim.

However, in Crawford, the employee had cooperated

with her employer’s internal investigation of sexual

harassment and clearly asserted that her employer

had sexually harassed her. Id. Unlike the employee

in Crawford, Hervey never once mentioned gender

discrimination or harassment until February 12,

2004, well after she was already having extensive

disciplinary problems.

In Evans v. City of Houston, the plaintiff

testified at a grievance hearing about allegations of

racial and age discrimination. 246 F.3d 344 (5th Cir.

2001). Likewise, in Kotcher v. Rosa and Sullivan

Appliance Center, Inc., the plaintiff made an internal

complaint to protest sexually harassing actions of her

supervisor. 957 F.2d 59 (2nd Cir. 1992). Finally, in

E.E.O.C. v. Total Systems Services, Inc., the plaintiff

13

participated in an internal investigation and made

allegations of explicit sexual harassment. 221 F.3d

1171 (11th Cir. 2000). The cases cited in Hervey’s

Petition do not address situations in which an

employee referenced a general internal policy, but

failed to indicate that the alleged complaint was

based on discrimination or harassment.

Indeed, there is no support for the proposition

that Hervey engaged in protected conduct simply by

making a comment about “respectful workplace

issues” in the context of discussing rude and angry

behavior. The Eighth Circuit has not left Hervey

unprotected simply because she used her employer’s

internal policy to bring forth her claims, but rather

because she did not indicate anything about gender

discrimination or harassment when she initially

commented about “respectful workplace issues” prior

to February 2004.

Contrary to Hervey’s assertion, the Eighth

Circuit's decision does not preclude an employee who

uses an internal complaint procedure from coming

under the protection of Title VII’s anti-retaliation

provisions. The decision simply reinforces that an

employer cannot unlawfully retaliate against an

employee if it has no reason to believe that the

employee has engaged in protected conduct under

Title VII. Hervey’s claim that the Eighth Circuit’s

decision is in conflict with the decisions of other

Courts of Appeal is disingenuous. None of the cases

cited in her Petition relate to a situation in which the

employer did not know that the employee had

engaged in protected conduct under Title VII.

14

Interestingly, Hervey fails to discuss this

Court’s recent decision in White v. Burlington No.

and S.F.R. Co., which addressed retaliation claims.

548 U.S. 53 (2006). The White decision does not

remove the requirement that employees must

establish a prima facie case of retaliation, including

requiring a causal nexus between the protected

conduct and the adverse employment action. Id. The

Eighth Circuit applied the appropriate legal

standards, as articulated in White, to the facts of this

case and correctly dismissed Hervey’s retaliation

claim as a matter of law.

B. Hervey did not Oppose a Practice

by Resort to Respondents’ Internal

Policy against Discrimination and

Harassment.

Hervey bases her first argument for seeking a

Writ on the misguided notion that she opposed a

practice of her employer by resorting to the

Respectful Workplace Policy. However, the record

clearly reflects that Hervey did not take advantage of

the internal procedures available to her under the

Respectful Workplace Policy until February 2004.

Prior to that, she never filed a complaint under the

Policy or pursued any of the procedures to do so.

Instead, Hervey simply relies on a comment she

made during a conversation with Nelson about

having “respectful workplace issues” as the basis for

her claim that she resorted to her employer's internal

policy. Pet.’s App., A-17. The Eighth Circuit

correctly found that, under the circumstances,

Hervey cannot be said to have engaged in protected

15

conduct in April 2003 or any time in 2003. Id.

Accordingly, Hervey’s concern about the Eighth

Circuit's decision resulting in leaving employees who

resort to internal policies unprotected under Title VII

is clearly misplaced. Hervey never actually resorted

to the internal policy herself. The first time that she

informed the County that she wanted to file a

complaint was not until February 12, 2004.

This Court has held that an employee's

unreasonable failure to participate in an employer's

internal complaint procedure may be an affirmative

defense to liability. Faragher v. Boca Raton, 524 US.

775 (1998); Burlington Industries, Inc. v. Ellerth, 524

U.S. 742, 765 (1998). In this case, Respondents

maintained a Respectful Workplace Policy, which

encompassed prohibitions against gender

discrimination and harassment, yet Hervey failed to

take advantage of any preventative or corrective

opportunities provided by the Policy. Her claims of

being unjustly penalized by losing anti-retaliation

protections under Title VII have no merit. Not only

did she not engage in protected conduct under Title

VII until February 12, 2004, but she never resorted to

the County’s internal Respectful Workplace Policy.

II. THE EIGHTH CIRCUIT’S DECISION

CORRECTLY DETERMINED THAT

HERVEY COULD NOT ESTABLISH

CAUSATION BY TEMPORAL PROXIMITY

ALONE.

Both the District Court and the Eighth Circuit

correctly concluded that Hervey did not produce

sufficient evidence .f a causal connection to support

16

her retaliation claim. In Hervey’s opinion, the mere

fact that she filed a complaint of discrimination tied

all future (and even past) actions by her employer

back to that complaint, and resulted in retaliation.

Hervey relied solely upon the timing of her actions,

which she was able to manipulate, in relation to the

alleged adverse employment actions to assert her

retaliation claim. However, despite Hervey’s best

efforts to time her complaints to when she expected to

be disciplined for prior conduct, she was unable to

demonstrate the evidence necessary to support a

causal connection in this case.

Hervey’s behavior both before and after she

filed a discrimination complaint weighs against a

finding of a causal connection. MHervey’s acts of

misconduct after she engaged in protected conduct

were worthy of discipline in their own right and did

not require an inference of retaliatory motives by

Respondents. Hervey repeatedly failed or refused to

follow directives and engaged in insubordination.

Respondents provided ample evidence of legitimate

non-retaliatory reasons for their actions, but Hervey

failed to provide any evidence of pretext.

Moreover, Hervey’s filing of a complaint prior

to some of her misconduct cannot insulate her from

the legitimate consequences of that misconduct. As

the Eighth Circuit observed, insubordinate employees

cannot insulate themselves from discipline by

announcing an intention to claim discrimination just

before the employer takes action. Pet.’s App., A-24.

The evidence in this case demonstrates that this is

precisely what Hervey attempted to accomplish.

Hervey’s conduct during the February 12, 2004

17

meeting with Mastin is a perfect example of Hervey’s

attempts to avoid responsibility for her misconduct

and take advantage of the situation to turn legitimate

discipline into a basis for a _ retaliation claim.

Coincidental timing and _ MHervey’s belief of

Respondents’ nefarious motives, no matter how

strongly-held the belief may be, cannot avoid

summary judgment.

Hervey claims that summary judgment is not

appropriate because Respondents did not provide

evidence that Mastin intended to discipline Hervey

before she informed him of her discrimination

complaint. The Eighth Circuit correctly noted that

Respondents did not bear the burden to show that

they already intended to discipline Hervey before she

interjected that she had engaged in _ protected

conduct. Pet.’s App., A-20. The burden of persuasion

remains with Hervey to show that more than

temporal proximity supports her claim. Id. The

record is clear that Mastin scheduled a meeting with

Hervey to discuss her absence from work. It further

shows that Hervey’s announcement of her complaint

occurred after Mastin accused her of taking leave

without providing proper notice and lying about it.

The mere fact that Hervey opportunistically informed

Mastin of her complaint during the same meeting

that she was informed of the intended consequences

of her conduct cannot serve as the basis for a

retaliation claim on its own. Moreover, regardless of

when Hervey made the complaint, Hervey was indeed

AWOL from work prior to the meeting with Mastin,

making her claim that the _ discipline’ was

unwarranted disingenuous at best.

18

A. Respondents have Produced

Evidence of Their Legitimate Non-

Retaliatory Reasons for Their

Actions.

The record in this case is replete with Hervey’s

performance’ deficiencies and _ insubordination.

Deficient performance and personality conflicts are

legitimate, non-retaliatory reasons for adverse

employment actions. See, e.g., Hannoon v. Fawn

Eneg’g Corp., 324 F.3d 1041, 1047 (8th Cir. 2003). The

fact that Hervey was pursuing a discrimination

complaint at the same time as her misconduct does

not justify or excuse her misconduct. In addition, the

question is not whether Hervey actually had poor

performance, was’ insubordinate, or whether

Respondents needed to make administrative changes

due to budget cuts, but rather whether Respondents

believed this to be the case when their actions were

taken. See Hitt v. Harsco Corp., 356 F.3d 920, 924

(8th Cir. 2004).

The undisputed need to reduce costs due to

budget constraints, Hervey’s poor performance and

insubordination, and personality conflicts between

Hervey and Mastin based on Mastin’s management

style, which differed from that of Hervey’s previous

supervisors, constituted legitimate business reasons

for Respondents’ actions. None of these reasons were

contradicted by evidence produced by Hervey. As the

Eighth Circuit's decision points out, there is no

evidence that the Respondents’ motive for taking

these actions was in retaliation for her engaging in

protected conduct. Pet.’s App., A-25.

19

Although Hervey may disagree with the

wisdom of Respondents’ disciplinary and managerial

decisions, Title VII does “not prohibit employment

decisions based upon poor job performance, erroneous

evaluations, personal conflicts between employees, or

even unsound business practices.” Hill v. St. Louis

University, 123 F.3d 1114, 1120 (8th Cir. 1997)

(quoting Hutson v. McDonnell Douglas Corp., 63 F.3d

771, 781 (8th Cir. 1995)). Nor does Title VI1 “entitle

courts to ‘sit as super-personnel departments,’

second-guessing the wisdom of businesses’ personnel

decisions.” Id.

Hervey attempts to spin her failure to produce

evidence as the Court resolving factual issues in favor

of Respondents. However, the Eighth Circuit simply

held Hervey to her burden to produce evidence

beyond mere timing to support a reasonable inference

of pretext and retaliatory motive. Without the

Eighth Circuit's adherence to the _ standards

established for retaliation claims, employers could

never address performance or misconduct issues

without fearing a retaliation claim. Hervey failed to

meet her burden and her Petition is simply a last-

ditch effort to create fact issues out of nothing more

than temporal proximity.

Hervey claims that the Eighth Cuircuit’s

decision is contrary to other Circuits’ holdings that

employers must show a legitimate business reason

with evidence in the record. Pet., p. 20. However,

the Eighth Circuit’s decision in this case is consistent

in requiring the employer to provide evidence of non-

retaliatory reasons for its actions. The difference is

that, unlike the employers in the cases cited by

20

Hervey, the Respondents in this case met their

burden by providing evidence of Hervey’s

insubordination, poor performance, personality

conflicts with Mastin, and the County’s budgetary

constraints. Hervey, however, was unable to produce

any evidence to support an inference of retaliatory

motive. Pet.’s App., A-21.

In Mickey v. Zeidler Tool and Die, Co., cited by

Hervey, the employee was able to present evidence

that the employer's reasons were merely a pretext for

retaliating against the employee and the alleged

performance deficiencies and unavailability of work

asserted by the employer had no basis in the record.

516 F.3d 516 (6th Cir. 2008). The employer's

proffered reasons of performance deficiencies and

dwindling availability of work for plaintiff were easily

shown to be pretext where the employee had no

record of discipline or negative evaluations and the

employer had run advertisements seeking additional

employees. Id., at 527.

Likewise, in Davis v. Team Electric Co., also

cited by Hervey, the employee was able to provide

evidence that the employer’s proffered economic

reason for laying her off was pretextual. 520 F.3d

1080 (9th Cir. 2008) (employer retained less senior

electrictans and employer conceded that employee

was a skilled and dedicated worker).

These cases differ from the present case where

Hervey has completely failed to produce evidence of

pretext, and instead, simply asserts that the reasons

are false. However, simply disagreeing with the

employer's proffered reasons is not sufficient; the

employee must provide evidence to support a

21

reasonable inference of retaliatory motive. The

Eighth Circuit correctly concluded that summary

judgment was appropriate because Hervey could not

provide any evidence beyond her beliefs of

Respondents’ retaliatory motives. Accordingly,

Hervey has not met her burden and summary

judgment is appropriate.

Ill. THE EIGHTH CIRCUIT CORRECTLY

AFFIRMED SUMMARY JUDGMENT ON

HERVEY’S GENDER DISCRIMINATION

CLAIM BECAUSE SHE FAILED TO SHOW

THAT SHE WAS TREATED

DIFFERENTLY THAN A SIMILARLY

SITUATED MALE EMPLOYEE.

Hervey completely failed to meet her burden of

proof on her’ disparate treatment gender

discrimination claim against Respondents. Hervey

failed to produce any direct evidence of

discrimination. However, the true weakness of

Hervey’s gender discrimination claim is that she

failed to show that she was treated differently than

similarly situated male employees. The comparators

offered by Hervey were not similarly situated to her

because of the vast differences in positions, duties,

and conduct. Hervey ignores all similarly situated

factors other than conduct in an attempt to raise

doubt about the Eighth Circuit’s decision. Despite

her arguments relating to the semantics of the

conduct factor, Hervey still fails to establish that

Mastin or his step-son were similarly situated to her,

and thus, she cannot satisfy her burden on her

gender discrimination claim.

22

A. Hervey Failed to Identify any

Similarly Situated Male Employees

Who were Treated Differently.

In a futile attempt to meet her burden, Hervey

alleged that she was treated less favorably than

Mastin and Mastin’s step-son, Rich. It is the

plaintiffs burden to demonstrate that similarly

situated employees were not treated equally. Texas

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

258 (1981). Hervey’s comparisons, as the Eighth

Circuit found, were unpersuasive because neither of

them were “similarly situated” to her. The alleged

inter-Circuit conflict regarding comparisons of

conduct for similarly situated employees does not

support Hervey’s case. The comparison of conduct is

only one factor in the similarly situated analysis. See

Tolen v. Ashcroft, 377 F.3d 879, 882 (8th Cir. 2004)

(“To be similarly -ituated, the comparable employees

‘must have dealt with the same supervisor, have been

subject to the same standards, and engaged in the

same conduct without any i “mitigating = or

distinguishing circumstances.) In her Petition,

Hervey attempts to ignore the other factors and focus

solely on the conduct comparison.

While Hervey focuses on the variations of the

wording that other Circuits have used to compare the

conduct of employees for similarly situated disparate

treatment analysis, she fails to address the fact that,

regardless of the disparity of the conduct, she is not

similarly situated to Mastin or his step-son. In order

to be similarly situated, “fijndividuals used for

comparison must have dealt with the same

supervisor, have been subject to the same standards,

23

and engaged in the same conduct without any

mitigating or distinguishing circumstances.” Clark v.

Runyon, 218 F.3d 915, 918 (8th Cir. 2000), citing

Lynn v. Deaconess Med. Ctr.-W. Campus, 160 F.3d

484, 487-88 (8th Cir. 1998).

The Eighth Circuit is not alone in considering

a comparator’s position, duties, and supervisor along

with the conduct at issue. In her Petition, Hervey

lists a case from each Circuit in an attempt to display

a conflict in the similarly situated standard.

However, the variations cited address only the

comparable conduct factor for determining whether

an employee is similarly situated. Hervey completely

overlooks the other factors, such as position, duties,

and supervisors, to draw the conclusion that there is

a Circuit split. A careful and more thorough review

of the similarly situated standards demonstrates that

Hervey’s sole reliance on the comparable conduct

factor is misguided. Many of the cases cited by

Hervey involve employees holding the same position

with the same duties as the plaintiff. None of the

cases involve employees found to be similarly

situated even though they hold different positions

with drastically different duties and report to

different supervisors.

In her Petition, Hervey cites to a First Circuit

case, Garcia v. Bristol-Myers Squibb Co., for the

proposition that comparators need not be perfect

replicas, but must “closely resemble one another in

respect to relevant facts and circumstances.” 535

F.3d 23, 31 (1st Cir. 2008). Hervey neglects to point

out that the plaintiff in the Garcia case and her

24

comparator were both project engineers with the

same supervisor.

Hervey’s Second Circuit case, Graham v. Long

Island RR, involved a plaintiff and comparators who

were all car repairmen subject to the same discipline

standards. 230 F.3d 34 (2nd Cir. 2000). Regardless

of any perceived different standards for comparable

conduct, Hervey cannot be considered similarly

situated to Mastin or his step-son because of the more

basic differences in their positions, duties, and

supervisors.

In affirming summary judgment against the

employee, the Third Circuit in Davis v. City of

Philadelphia Water Dept., which is an unpublished

case that has no precedential value, does not address

the positions or duties of the plaintiffs alleged

comparators. 57 Fed. Appx. 90 (8rd Cir. 2003). Like

the other cases cited in her Petition, Davis does not

support Hervey’s contention that she is similarly

situated to Mastin or his step-son.

The Fourth Circuit in the case cited by Hervey,

Cook __v. CSX Transportation Corp., affirmed

summary judgment for the employer on a Title VII

race discrimination claim. 988 F.2d 507 (4th Cir.

1993). The plaintiffs comparators for similarly

situated purposes were also railroad workers. The

Court did not address whether the plaintiff could

have been similarly situated to his supervisor or

other employees with different job duties. As a

result, the Cook decision does not support Hervey’s

claim in this case. In fact, the Fourth Circuit has

held that a part-time employee could not be similarly

situated to a full-time nurse for a Title VII racial

Pd

discrimination claim. Bryant v. Aiken Regional

Medical Centers Inc., 333 F.3d 536, 546 (4th Cir.

2003). Hervey fails to address how this decision

impacts her attempted comparison to Rich Mastin,

who only occasionally works for the County.

For her Fifth Circuit case, Hervey cites a

twenty-six year old case, E.E.O.C. v. Brown & Root,

Inc., which involves a female electrician’s helper who

was terminated for being incapable of performing

assigned work when she was unable to work on an

overhead steel beam. 688 F.2d 338, 339 (5th Cir.

1982). Without expressly addressing the positions

and duties, the Court compared the plaintiff to male

workers who also had to work on overhead steel

beams for the similarly situated analysis. Id. Last

year, the Fifth Circuit held that a nurse coordinator

was not similarly situated to a doctor who engaged in

similar misconduct because the positions were

“considerably different.” Strong v. University

Healthcare System, L.L.C., 482 F.3d 802, 807 (5th

Cir. 2007). The Court stated, “[w]e cannot assume,

nor require, that hospitals discipline doctors and

nurse coordinators in an identical fashion.” Id.

The Sixth Circuit unpublished decision cited by

Hervey, Perry v. McGinnis, involved a plaintiff and

similarly situated employees consisting of his fellow

hearing officers who were supervised by the same

officials, subject to the same standards, and charged

with the same duties. 209 F.3d 597 (6th Cir. 2000).

More recently, the Sixth Circuit has confirmed its

position when it held that a plaintiff was not

similarly situated to a comparator where _ the

comparator worked for a different supervisor, had

26

more seniority in the position, and worked in a more

regional capacity than the plaintiff. Gragg ev.

Somerset Technical College, 373 F.3d 763, 768 (6th

Cir. 2004).

Hervey’s chosen Seventh Circuit case, Ezell v.

Potter, demonstrates that a plaintiff must show that

a comparator must be similarly situated with respect

to performance, qualifications and conduct. 400 F.3d

1041, 1049 (7th Cir. 2005) (plaintiff compared to

fellow letter carriers). “This normally entails a

showing that the two employees dealt with the same

supervisor, were subject to the same standards, and

had engaged in similar conduct without such

differentiating or mitigating circumstances as would

distinguish their conduct or the employer’s treatment

of them.” Id. A careful reading of Hervey’s proffered

cases demonstrates that she cannot be similarly

situated to her supervisor or a deputy who works only

occasionally for the County where they have different

supervisors and duties. See also Burks v. Wisconsin

Dept. of Transportation, 464 F.3d 744, 751 (7th Cir.

2006) (factors for similarly situated analysis include

whether the comparators reported to the same

supervisor, whether they were subject to the same

standards, and whether they had comparable

education, experience, and qualifications).

Again, Hervey’s chosen Ninth Circuit case

demonstrates the fallacy of the premise for her

argument that conduct is the only relevant factor to

determine whether employees are similarly situated.

In Vasquez v. County of Los Angeles, the Ninth

Circuit stated that, “individuals are similarly

27

situated when they have similar jobs and display

similar conduct.” 349 F.3d 634, 641 (9th Cir. 2004).

The Tenth Circuit, in Aramburu v. The Boeing

Company, agreed that in order for employees to be

similarly situated, they must deal with the same

supervisor and be subject to the same standards

governing performance evaluation and discipline.

112 F.3d 1398, 1404 (10th Cir. 1997). The Tenth

Circuit's variation on conduct requiring that similarly

situated employees must have violated the same rule

or a similar rule does not matter if the employees are

not similarly situated in the first place because of

different jobs, supervisors, and standards.

Finally, Hervey’s Eleventh Circuit cases, Nix v.

WLCY_ Radio/Rahall Communications and Burke-

Fowler _v. Orange County, Florida, also involve

plaintiffs and comparators who held the same

positions with the same supervisor. 738 F.2d 1181

(llth Cir. 1984); 447 F.3d 1319 (11th Cir. 2006). In

Nix, the plaintiff and comparator were both radio

announcers, and in Burke-Fowler, the plaintiff and

comparators were all corrections officers. Id. These

cases, like the rest of the cases in Hervey’s Petition,

do not support her argument that she is similarly

situated to Mastin and his step-son. In fact, the cases

generally support the proposition that the similarly

situated analysis must include a comparison of the

jobs, duties, and supervisors, in addition to the

conduct.

With respect to Hervey’s comparison to Mastin,

the differences in their positions are clear and

provide no basis that they could be considered

“similarly situated” for a disparate treatment

28

analysis. Mastin was the Undersheriff reporting

directly to the Sheriff, and would (and did) perform

all duties and functions of the Sheriff during a

vacancy in office by operation of law. See Minn. Stat.

§ 375.08. Most significantly, Mastin was Hervey’s

supervisor. Employees in supervisory positions may

not be similarly situated to their subordinates for

disparate treatment purposes. See Burks v

Wisconsin Dept. of Transportation, 464 F.3d 744, 751

(7th Cir. 2006); Vasquez v. County of Los Angeles,

349 F.3d 634, 641 (9th Cir. 2004).

Hervey’s comparison to Rich Mastin, an

occasional fill-in deputy, is equally unavailing. Rich

Mastin had no supervisory duties related to his

employment by the County. He merely works on a

sporadic basis for the County when he was not

working as a full-time city cop. Pet.’s App., A-62.

The idea that he could be similarly situated to the

County’s Jail Administrator, who had supervisory

and administrative duties quite distinct from those of

a licensed deputy, is clearly mistaken.

Without even considering the nature, extent,

or severity of the conduct engaged in by Hervey,

Mastin, or Mastin’s step-son, the case law provides no

support for the notion that Hervey could be similarly

situated to them. The jobs are simply too different to

allow a court to make an accurate comparison for a

Title VII disparate treatment analysis. The general

rule requiring the same position, duties, and

supervisor for similarly situated employees is sound.

When considering whether to discipline’ such

dissimilar employees, many different factors would

apply. Add in the fact that the discipline decisions in

29

this case would be made by different supervisors, and

it is easy to see how inapt it would be to consider

Hervey to be similarly situated to Mastin or his step-

son.

B. Hervey Failed to Establish that she

was Treated Differently than

Similarly Situated Employees under

any Comparable Conduct Analysis.

Even if focusing only on the comparable

conduct factor of the similarly situated analysis, as

Hervey would prefer, Hervey’s comparisons to Mastin

and his step-son still fail to demonstrate that they

are similarly situated employees. The conduct of

Mastin cited by Hervey consisted of a few unrelated,

isolated incidents that occurred over several decades.

Pet.’s App., A-13. With respect to Rich Mastin, the

conduct cited by Hervey consisted of one off-duty

incident that was unrelated to his part-time work for

the County. Id., at A-14. On the other hand, Hervey

engaged in repeated acts of workplace misconduct

over a relatively short span of time. Hervey’s

persistent refusal to follow directions cannot logically

be compared to the alleged isolated misconduct of

John Mastin or Rich Mastin, regardless of which

variation of the similarly situated standard is

utilized. The Eighth Circuit held that Hervey’s

comparison failed because she could not show the

same conduct. However, the evidence in the record

demonstrates that the conduct of Hervey and her

comparators was not of comparable seriousness, did

not involve similar circumstances, was not similar in

all relevant aspects, and did not involve violation of

the same or similar rule.

30

Hervey was disciplined for repeated and

persistent acts of insubordination occurring over a

relatively short span of time, under the same

supervisor and Sheriff. For example, Hervey refused

to acknowledge the Department’s reporting lines,

refused to help find budget savings for the jail as

directed, went over her’ supervisors’ heads,

complained about new duties and budget procedures,

and took unauthorized absences. Pet.’s App., A-13.

The record is replete with evidence that Hervey was

insubordinate on a persistent basis. Hervey failed to

show that any male employees were disciplined less

severely for anything approaching similar repeated

workplace misconduct.

The Eighth Circuit held that MHervey’s

comparison to Mastin involved circumstances that

are “substantially different.” Pet.’s App., A-13.

Mastin’s incident of alleged misconduct occurred

many years ago, under a different Sheriff, and did not

involve a pattern of behavior. Hervey’s attempts to

compare her discipline with Mastin’s isolated

incident of alleged misconduct was found equally

unavailing by the Eighth Circuit, and would not

support a reversal of summary judgment under any

of the other Circuit’s variations of the similarly

situated standard.

The Eighth Circuit also found that Rich

Mastin’s misconduct, for which he was disciplined by

his full-time employer, was not similar to Hervey’s

insubordination, and that the two employees were not

similarly situated in all relevant respects for

purposes of disparate treatment analysis. Id., at A-

14. Rich Mastin, an occasional fill-in deputy who was

31

involved in off-duty misconduct, cannot be used as a

viable comparator to Hervey, regardless of the

variation of the similarly situated standard used. As

a result, this case does not present the proper facts to

consider the appropriate comparator test. Contrary

to Hervey’s assertion, the Eighth Circuit’s analysis

does not prevent Hervey from proving differential

discipline. Pet., p. 22.

Different Circuit Courts of Appeal have applied

slight variations of the similarly situated factors to

analyze comparators for disparate treatment

purposes. See Pet., pp. 23-25. While the Eighth

Circuit accurately held that Hervey failed to provide

any evidence of a similarly situated male employee

receiving different treatment, Hervey attempts to

seize upon the variations by other Circuits to frame

the issue as a full-blown Circuit split. Contrary to

Hervey’s assertion, the “split among the Circuits”

amounts to little more than slight variations of

framing the issue, ranging from the “same offense”

version to “comparable seriousness” to “similar

circumstances.” Under any version of the similarly

situated standard, Hervey’s claim fails as a matter of

law.

Even assuming that a split exists, this case

would not provide the appropriate facts to address

the alleged conflict. As the record demonstrates,

Hervey’s claims would fail regardless of which

variation of the comparator test is used. Hervey’s

failure to provide evidence that she was treated

differently than a similarly situated employee cannot

be salvaged by her alleged Circuit conflict relating to

comparable conduct. Whether the issue is framed as

39

a hw

the “same conduct,” “comparable seriousness,” or

“similar circumstances,’ Hervey fails to meet the

standard in this case. Hervey’s repeated workplace

insubordination over a short period of time is not

comparable to the alleged isolated, off-duty, or stale

incidents of Mastin and his step-son. Hervey cannot

set forth any standard that would allow her to prevail

in this case. Accordingly, the Court should not grant

the Writ.

CONCLUSION

For the foregoing reasons, the Petition should

be denied.

Respectfully submitted,

RATWIK, ROSZAK & MALONEY, P.A.

Ann R. Goering

Counsel of Record

Eric J. Quiring

300 U.S. Trust Building

730 Second Avenue South

Minneapolis, MN 55402

(612) 339-0060

Attorneys for Respondents

Dated: December 8, 2008

RRM: 125853