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No. 05-683

In the Supreme Court of the United States

THOMAS MCADAMS, PETITIONER

v.

FRANCIS J. HARVEY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
MARLEIGH D. DOVER
STEPHANIE R. MARCUS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the elimination of petitioner's position and his resulting transfer constituted an adverse employment action sufficient to provide a basis for a claim of retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.

2. Whether petitioner failed to establish a causal connection between his protected activity and the challenged performance evaluation.

In the Supreme Court of the United States

No. 05-683

THOMAS MCADAMS, PETITIONER

v.

FRANCIS J. HARVEY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-3) is not published in the Federal Reporter but is reprinted in 141 F. App'x 802. The opinion of the district court (Pet. App. 4-26) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on July 6, 2005. A petition for rehearing was denied on August 29, 2005 (Pet. App. 27). The petition for a writ of certiorari was filed on November 25, 2005. The jurisdic tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. Petitioner Thomas McAdams filed the present action against the Secretary of the Army alleging, inter alia, that the agency retaliated against him for engaging in protected activity under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. Pet. App. 16-26.

During the times relevant to the present action, peti tioner was employed at the Army's Technical Manage ment Directorate (TMD). Pet. App. 5. TMD provides support to other agency organizations by assigning its personnel to offices that need technical support. Ibid. When such an office no longer requires the support of the TMD employee, it returns the employee to TMD so that the employee can be considered for other assign ments. Ibid. TMD employees are not guaranteed that they will be assigned to any particular organization or task. Id. at 5-6.

In April 1997, petitioner was detailed to the Targets Management Office (TMO). Pet. App. 5. While at TMO, petitioner became Assistant Project Manager. Ibid. Petitioner alleges that one of his supervisors, Lieuten ant Colonel Michelle Yarborough, subjected him to foul and offensive language at work. Id. at 6. Petitioner stated that in July 1999, he complained about the foul language to Yarborough's subordinate. Id. at 6-7. Peti tioner did not otherwise report Yarborough's language at that time. Id. at 7.

On February 22, 2000, petitioner received a Mid- Point Review from Yarborough that he believed in cluded unfavorable comments. Pet. App. 7. On March 7, 2000, petitioner filed a first step union grievance. Ibid. In response to the grievance, the Army told Yar borough to stop using foul language. Ibid. The agency's response to the grievance also noted that, during the investigation of petitioner's complaint, comments from other employees suggested "a serious problem" with pe titioner's conduct. Id. at 8 (citation omitted).

On April 13, 2000, the Army informed petitioner that he would be transferred from TMO back to TMD on April 23, 2000. Pet. App. 8. On May 4 or 5, 2000, peti tioner filed a second-level grievance regarding his mid- year report, Yarborough's use of offensive language, and the abolishment of his position at TMO. Ibid. On July 11, 2000, however, petitioner withdrew that grievance. Ibid. On that day, Yarborough gave petitioner a perfor mance appraisal that gave him a "B" rating. Ibid. The prior year, Yarborough had given petitioner an "A" rat ing. Id. at 6. Petitioner claimed that the lower perfor mance rating potentially caused him monetary losses, because an "A" rating could have resulted in a salary increase and separate cash award. Id. at 8.

On July 27, 2000, petitioner contacted an Equal Em ployment Opportunity (EEO) counselor. Pet. App. 8. Petitioner filed informal and formal EEO complaints of discrimination with the agency. Id. at 9. After failing to obtain relief at the agency level, petitioner filed the present lawsuit in federal district court. Ibid. Peti tioner contended, inter alia, that the Army retaliated against him when it abolished his position at TMO and transferred him back to TMD, and when he received a "B" performance rating. Id. at 9-10.

2. The district court granted summary judgment to the Army. Pet. App. 4-26. The court held that peti tioner's "B" performance rating was not an adverse em ployment action sufficient to constitute actionable retali ation, and that petitioner failed to present a genuine issue of material fact with respect to whether there was a causal link between his protected activity and the per formance appraisal. Id. at 21-22. In addition, the court ruled that the elimination of petitioner's TMO position and his transfer back to TMD did not constitute an ad verse employment action because his salary did not change, and, as a TMD employee, he was "subject to a transfer or return" to his base organization, whenever TMO determined it no longer needed his services. Id. at 23. In the alternative, the court held that accepting peti tioner's testimony that Yarborough began the process of eliminating his position in July 1999, "there cannot be a causal connection between [his] complaint of discrimina tion and the decision to eliminate his position." Ibid.

Finally, the court ruled that even assuming arguendo that petitioner had demonstrated a prima facie case of retaliation, the Army had established legitimate, non- discriminatory reasons for his "B" performance rating and his transfer back to TMD. Pet. App. 24. The court further held that petitioner failed to submit sufficient evidence upon which a reasonable juror could find that such reasons were a pretext, and thus, the Army was entitled to judgment as a matter of law. Id. at 25-26. 3. In an unpublished, per curiam opinion, the court of appeals affirmed. Pet. App. 1-3. The court held that petitioner failed to demonstrate a causal link between his protected activity and the challenged performance rating, and that petitioner failed to establish that the elimination of his position and the resulting transfer to a new position constituted an adverse employment ac tion. Id. at 3.

DISCUSSION

1. Petitioner contends (Pet. 5-11) that review is war ranted to resolve a conflict in the circuits on the showing that an employee must make to demonstrate an adverse employment action for purposes of a Title VII retalia tion claim. In Burlington Northern & Santa Fe Rail way v. White, cert. granted, No. 05-259 (Dec. 5, 2005) (oral argument scheduled for April 17, 2006), the Court granted a petition for a writ of certiorari to resolve that conflict.

This case involves Title VII's application to a federal employer, rather than a private employer, as in Burlington. Because of differences in the language be tween Title VII's federal employer and private employer provisions, the decision in Burlington would not neces sarily affect the proper disposition of the petition in this case. See U.S. Amicus Br. at 19 n.5, Burlington North ern, supra (No. 05-259). Nonetheless, because of the overlap in the basic issue presented, it would be appro priate to hold the present petition pending the Court's decision in Burlington.

2. Petitioner further contends (Pet. 11-12) that a writ of certiorari is warranted to review the court of ap peals' determination that he failed to establish a causal connection between his protected activity and the chal lenged performance rating. In particular, petitioner argues (Pet. 11) that his showing of a causal connection was sufficient because the Army's challenged ac tion-the "B" performance rating-occurred 67 days after he first engaged in protected activity. See ibid. For several reasons, that contention does not warrant review.

First, petitioner does not assert that the court of ap peals' holding that he failed to introduce sufficient evi dence of causality conflicts with the holding of any other court of appeals or any decision of this Court. Second, the causality question is fact-bound and does not raise any issue of recurring legal importance. As this Court has observed, "[t]he cases that accept mere temporal proximity between an employer's knowledge of pro tected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close." Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (internal quotation marks and cita tion omitted). The question whether a 67-day period between the protected activity and the adverse employ ment action is sufficient to raise an inference of causal ity simply involves the application of settled legal stan dards to the particular facts of this case.

Third, the decisions below do not present the ques tion whether, as a categorical matter, a 67-day period between the protected activity and the adverse action can ever raise an inference of causality. The court of appeals did not address the issue of causality in those terms. Instead, it held that "[t]he district court prop erly determined that [petitioner] did not make out a prima facie case for retaliation because he failed to es tablish * * * a causal connection between his protected activity and his performance evaluation." Pet. App. 3. Nor did the district court reject petitioner's proof of causality on the ground that a 67-day period between the protected activity and the adverse action is always insufficient to create an inference of causality. Instead, the court held that no reasonable inference of causality could be drawn based on the particular circumstances in this case because the Army first noted problems with petitioner's performance in his mid-point review, before petitioner filed his first grievance. Id. at 22-23. Because the court of appeals did not squarely address the ques tion petitioner seeks to present, and the district court expressly based its decision on other grounds, the ques tion petitioner seeks to raise is not presented.

CONCLUSION

The petition for a writ of certiorari should be held pending this Court's decision in Burlington Northern & Santa Fe Railway v. White, No. 05-259, and then dis posed of as appropriate in light of that decision.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
MARLEIGH D. DOVER
STEPHANIE R. MARCUS
Attorneys

MARCH 2006