Johnson v. Potter - Opposition

No. 06-1172

In the Supreme Court of the United States

ROLAND JOHNSON, PETITIONER

v.

JOHN E. POTTER, POSTMASTER GENERAL

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

BRIEF FOR THE RESPONDENT IN OPPOSITION

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

QUESTIONS PRESENTED

1. Whether the court of appeals properly held that petitioner's employment discrimination claims that were or could have been raised in petitioner's prior lawsuit were barred by res judicata.

2. Whether the court of appeals properly rejected petitioner's constructive discharge claim.

3. Whether the court of appeals properly rejected petitioner's remaining retaliation claim.

In the Supreme Court of the United States

No. 06-1172

ROLAND JOHNSON, PETITIONER

v.

JOHN E. POTTER, POSTMASTER GENERAL

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

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A3-A6) is not published in the Federal Reporter, but is reprint ed in 184 Fed. Appx. 138. The opinion of the district court (Pet. App. A9-A39) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on June 7, 2006. A petition for rehearing was denied on November 29, 2006 (Pet. App. A1-A2). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In 1990, petitioner filed an employment discrimi nation suit against the United States Postal Service (Postal Service), alleging that the Postal Service had denied him a promotion because of his race, in viola- tion of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. Pet. App. A5. The parties eventu ally agreed to settle the case. Ibid. In January 2002, petitioner filed a second Title VII lawsuit against the Postal Service (Johnson II), alleging that his supervi sors had engaged in acts of retaliation against him be cause he had filed the first suit. Ibid. The district court granted summary judgment to the Postal Service, and the court of appeals summarily affirmed. Id. at A4-A6.

2. While the second lawsuit was still pending, peti tioner filed a third Title VII lawsuit against the Postal Service (Johnson III), this time alleging both retaliation and constructive discharge. The district court granted summary judgment to the Postal Service on both claims. Pet. App. A9-A39.

The district court first held that all but two of peti tioner's claims had been rejected in Johnson II, and that petitioner's effort to relitigate those claims was there fore barred by res judicata. Pet. App. A35-A36. The court identified petitioner's remaining two claims as a claim that a Postal Service administrator had allegedly retaliated against him by requiring excessive documen tation to support his claim for leave under the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. 2601 et seq., and a claim that a supervisor had allegedly retal iated against him by telling him, inter alia, that "if any one were to be fired, he would be the first to go." Pet. App. A22, A35.

The district court held that the "excessive documen tation" claim was barred by res judicata because peti tioner could have raised that claim in Johnson II, but failed to do so. Pet. App. A35-A36. The court also con cluded that petitioner's "excessive documentation" claim failed on the merits, both because petitioner failed to establish that he had suffered an adverse employment action, and because petitioner failed to refute the Postal Service's evidence that the administrator had no knowl edge of petitioner's protected activity. Id. at A36.

The district court rejected petitioner's claim that his supervisor's remarks constituted actionable retaliation. Pet. App. A22. The court concluded that the alleged remarks were insufficient to constitute an adverse em ployment action. Id. at A36. The court also concluded that petitioner had failed to refute the supervisor's legit imate non-discriminatory explanation for the remark about petitioner being the first to go. Id. at A36-A37.

The district court also ruled against petitioner on his constructive discharge claim. Pet. App. A37-A38. The court concluded that collateral estoppel barred most of the underlying allegations, but that even if collateral estoppel did not apply, the allegations fell far short of establishing constructive discharge. Ibid.

The district court also concluded that petitioner was not entitled to additional discovery on his retaliation and constructive discharge claims. Pet. App. A34-A35. The court explained that petitioner had ample opportunity to conduct discovery in Johnson II, and that petitioner had not shown how additional discovery would assist his claims. Ibid.

3. The court of appeals summarily affirmed by an unpublished decision. Pet. App. A3-A6. The court held that res judicata barred all of petitioner's claims that were or could have been litigated in Johnson II. Id. at A5. The court held that petitioner's new allegations of retaliation were insufficient to constitute actionable re taliation because a necessary element of a retaliation claim is an "adverse employment action," and petitioner had failed to satisfy that element. Ibid. The court of appeals also held that petitioner's allegations were in sufficient to support an inference of constructive dis charge. Ibid. Finally, the court of appeals held that the district court did not abuse its discretion in failing to grant petitioner additional discovery. Id. at A6.

4. After the court of appeals issued its summary affirmance, this Court decided Burlington Northern & Santa Fe Railway v. White, 126 S. Ct. 2405 (2006) (Bur lington Northern). In that case, the Court held that a plaintiff alleging retaliation "must show that a reason able employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 2415 (citation and internal quotation marks omitted). In a petition for rehearing, petitioner argued that the court of appeals' decision relied on a definition of retaliation that was inconsistent with the Burlington Northern standard. The petition for rehearing was denied. Pet. App. A1-A2.

ARGUMENT

Petitioner contends that the decision below conflicts with this Court's decision in Burlington Northern & Santa Fe Railway v. White, 126 S. Ct. 2405 (2006). For all but one of petitioner's claims, the court of appeals ruled in favor of the Postal Service for reasons unrelated to the holding in Burlington Northern. With respect to one claim, the court relied on a standard for retaliation that is different than the one announced in Burlington Northern. But petitioner brought Burlington Northern to the court's attention in his petition for rehearing, and the court denied the petition; the question whether peti tioner's allegations meet the Burlington Northern is fact-bound; and a plaintiff seeking to prove a retaliation claim against the federal government must show that alleged retaliation took the form of a "personnel ac tion[]," 42 U.S.C. 2000e-16(a) (2000 & Supp. IV 2004), a requirement that petitioner has failed to satisfy here. The petition for a writ of certiorari should therefore be denied.

1. The district court dismissed all but two of peti tioner's retaliation claims on the ground that it had re jected them in an earlier lawsuit and that petitioner's effort to relitigate them was therefore barred by res judicata. Pet. App. A35-A36. The district court also dismissed one of the two remaining retaliation claims -the "excessive documentation" claim-on res judicata grounds, explaining that petitioner had the opportunity to include that claim in the earlier lawsuit but had not done so. Ibid. The court of appeals affirmed those res judicata rulings. Id. at A5. The court held that "[t]he District Court correctly determined that, in so far as [petitioner] alleged claims for retaliation that were [or] could have been raised in Johnson II, his claims were barred by res judicata." Ibid. Because nothing in Bur lington Northern has any bearing on the doctrine of res judicata, Burlington Northern provides no basis for re examining those fact-bound claims, and they otherwise do not merit review.

2. Burlington Northern also has no bearing on the dismissal of petitioner's constructive discharge claim. The court of appeals held that petitioner's allegations "fall far short of establishing a constructive discharge." Pet. App. A5. The court explained that petitioner's alle gations "do not legally suffice to sustain an inference that a reasonable person would have been compelled to resign." Id. at A5-A6 (citation and internal quotation marks omitted). Because Burlington Northern ad dressed the standard for proving retaliation, and did not address the standard for proving a constructive dis charge, Burlington Northern provides no basis for reex amining petitioner's constructive discharge claim. Like wise, that fact-bound claim does not otherwise merit review.

3. Burlington Northern is also inapplicable to peti tioner's claim that he was entitled to conduct additional discovery. The district court denied petitioner's request for additional discovery because petitioner "already had a full opportunity" to conduct discovery in Johnson II, and because petitioner failed to show that additional discovery "would be helpful." Pet. App. A34. The court of appeals affirmed, explaining that petitioner "had al ready enjoyed a full opportunity to conduct discovery in Johnson II," and that petitioner "failed to identify any new facts as to which he needed discovery that might reasonably [be] expected to raise a genuine issue of ma terial fact." Id. at A6 (brackets in original; citation and internal quotation marks omitted). Petitioner has not offered any basis for revisiting those determinations in light of Burlington Northern. In particular, he has not identified any facts that he sought to uncover through discovery that were irrelevant under the standard ap plied by the court of appeals, but relevant under Burlington Northern. And that claim does not other wise merit review.

4. That leaves only petitioner's claim that his super visor's remarks constituted actionable retaliation. Peti tioner alleges that, after he wrote a letter to his supervi sor complaining of harassment, his supervisor "con fronted him about the letter," stating "why don't you be a man and talk about the letter." Pet. App. A73. Ac cording to petitioner, his supervisor also stated that she knew that petitioner's "problem" was that he was "see ing 'dollar signs,' and that it wasn't going to happen off 'her career.'" Ibid. Petitioner also alleges that his su pervisor told him that "if anyone were to be fired, he would be 'the first to go.'" Ibid.

The district court dismissed the claim on the ground that those remarks did not establish an adverse employ ment action, either separately or together. The district court also held that petitioner had failed to rebut the legitimate non-discriminatory reason for the "first to go" comment-that the Postal Service had legitimate business reasons for eliminating petitioner's position and that he had the least seniority among the clerks. Pet. App. A36-A37. The court of appeals affirmed, hold ing that the alleged comments were insufficient to estab lish an "adverse employment action." Id. at A5.

In Burlington Northern, the Court held that a plain tiff alleging retaliation under 42 U.S.C. 2000e-3(a) need not establish that a challenged action is "employment- related." 126 S. Ct. at 2414. Instead, the Court held that such a plaintiff "must show that a reasonable em ployee would have found the challenged action materi ally adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. at 2415 (cita tion and internal quotation marks omitted). The court of appeals issued its decision prior to this Court's deci sion in Burlington Northern, and it did not apply the Burlington Northern standard in assessing the legal sufficiency of petitioner's claim that his supervisor's comments constituted actionable retaliation. For sev eral reasons, however, there is no need in this case to vacate the judgment and remand the case for reconsid eration in light of Burlington Northern.

First, the court of appeals had an opportunity to re consider its decision in light of Burlington Northern, and it refused to alter the result. In his petition for re hearing, petitioner argued that Burlington Northern required the court of appeals to vacate its decision. The court of appeals, however, denied the petition for re hearing.

Second, the supervisor's alleged remarks do not nec essarily constitute actionable retaliation under the Burlington Northern standard. That is particularly true when the comments are interpreted in the context in which they were allegedly made-that the Postal Ser vice had legitimate business reasons for eliminating peti tioner's position and that petitioner had the least senior ity among the clerks. Pet. App. A36-A37. In addition, the comment about a "firing" ("if anyone was fired, he would be the first to go") was not addressed specifically to petitioner but instead was made in the subjective as to "anyone." And petitioner does not allege that anyone at the Postal Service ever attempted to fire him. The question whether the alleged remarks satisfy the Bur lington Northern standard is fact-bound and therefore does not warrant review.

Third, Burlington Northern established the standard for proving retaliation under the anti-retaliation prohibi tion in Section 2000e-3(a), and that prohibition does not apply to the federal government. Instead, any re- taliation claim against the federal government must be brought under 42 U.S.C. 2000e-16 (2000 & Supp IV 2004), which expressly limits the federal government's waiver of sovereign immunity to "personnel actions af fecting" federal employees. Petitioner has failed to ex plain how the supervisor's alleged remarks could consti tute a "personnel action[]" within the meaning of Section 2000e-16(a).

5. CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
MARLEIGH DOVER
KELSI BROWN CORKRAN
Attorneys

MAY 2007