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No. 05-1267

In the Supreme Court of the United States

MICHAEL A. THOMAS, PETITIONER

v.

JOHN E. POTTER, POSTMASTER GENERAL

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

BRIEF FOR THE RESPONDENT

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

QUESTION PRESENTED

Whether transferring an employee from the day shift to the night shift constitutes an adverse employment action sufficient to establish actionable retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.

In the Supreme Court of the United States

No. 05-1267

MICHAEL A. THOMAS, PETITIONER

v.

JOHN E. POTTER, POSTMASTER GENERAL

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

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-4a) is not published in the Federal Reporter but is reprinted in 145 Fed. Appx. 182. The decision of the district court (Pet. App. 5a-7a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on August 18, 2005. A petition for rehearing was denied on October 24, 2005 (Pet. App. 8a-9a). The petition for a writ of certiorari was filed on January 21, 2006. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In 1988, petitioner Michael Thomas began work ing for the United States Postal Service as a custodian in the maintenance craft department. Pet. App. 2a. Thereafter, petitioner filed an EEO complaint based on his failure to receive a promotion or transfer. Ibid. In 1994, petitioner and the Postal Service settled the com plaint, agreeing that petitioner would be promoted to a maintenance support clerk. Ibid. Between 1988 and 1997, petitioner worked on the day shift. Ibid. In 1997, petitioner's department was relocated to a new facility, and petitioner was transferred to the night shift. Ibid. Five women and four men were allowed to remain on the day shift. Ibid. Those co-workers had less seniority in the maintenance craft department, but more seniority as maintenance support clerks. Ibid.

2. Petitioner filed suit under Title VII alleging that the Postal Service discriminated against him on the ba sis of gender by transferring him to the night shift while allowing female employees with less seniority to remain on the day shift. Pet. App. 2a. Petitioner also alleged that the Postal Service transferred him to the night shift as retaliation for his having filed the EEO complaint that resulted in the 1994 settlement. Id. at 2a-3a.

The district court granted summary judgment in favor of the government. Pet. App. 6a-8a. The court held that in order to establish a prima facie case of dis crimination, a plaintiff "must show that he [s]uffered an adverse employment action." Id. at 6a. The court fur ther held that "a decision to change an employee's work shift, without a change in the employee's title, pay or responsibilities, does not rise to the level of an adverse employment action." Id. at 7a.

3. The court of appeals affirmed. Pet. App. 1a-4a. The court rejected petitioner's contention "that his shift change was an adverse employment action because it caused him to suffer severe depression that necessitated medical treatment and counseling." Id. at 3a. The court "assume[d] for the purposes of summary judgment that [petitioner] actually suffered emotional distress from his shift change." Ibid. The court concluded, however, that "Title VII does not provide a remedy for actions like those here that do not affect an employee's terms of em ployment." Id. at 3a-4a.

DISCUSSION

Petitioner contends (Pet. 4-5) that review is war ranted to clarify the showing that an employee must make to demonstrate an adverse employment action for purposes of a Title VII retaliation claim. In Burlington Northern & Santa Fe Railway v. White, No. 05-259 (ar gued April 17, 2006), the Court granted a writ of certio rari to resolve that issue.

This case involves Title VII's application to a federal employer, rather than a private employer, as in Burlington Northern. Because of differences in the lan guage between Title VII's federal employer and private employer provisions, compare 42 U.S.C. 2000e-16(a) (federal employer), with 42 U.S.C. 2000e-3(a) (private employer), the decision in Burlington Northern will not necessarily affect the proper disposition of the petition in this case. See Gov't Amicus Br. at 19 n.5, Burlington Northern, supra (No. 05-259). Nonetheless, because of the overlap in the basic issues presented, it would be appropriate to hold the present petition pending the Court's decision in Burlington Northern.

CONCLUSION

The petition for a writ of certiorari should be held pending the 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
MARK S. DAVIES
Attorneys

 

 

MAY 2006