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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008

## Text

[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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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0791%3A2. Public record. Not legal advice.