2016 WL (U.S.) (Appellate Petition, Motion and Filing) Supreme Court of the United States.

Transcription

1 2016 WL (U.S.) (Appellate Petition, Motion and Filing) Supreme Court of the United States. Jill CRANE, Petitioner, v. MARY FREE BED REHABILITATION HOSPITAL, Respondent. No April 26, On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit Brief in Opposition William H. Fallon, Matthew M. O Rourke, Miller Johnson, 250 Monroe Ave., N.W., Suite 800, Grand Rapids, MI 49503, (616) , for respondent. Should this Court grant certiorari where: a. No circuit conflict is presented; *i RESTATEMENT OF QUESTION PRESENTED b. The Petitioner asserts the Circuit Court made erroneous factual findings and misapplied a properly stated rule of law; and c. The Petitioner failed to demonstrate she suffered an adverse employment action necessary to maintain a claim for race discrimination under 42 U.S.C. 1981? *II CORPORATE DISCLOSURE STATEMENT In accordance with United States Supreme Court Rule 29.6, Respondent Mary Free Bed Rehabilitation Hospital makes the following disclosure: There is no publicly held parent company that owns 10% or more of the stock of Mary Free Bed Rehabilitation Hospital. *iii TABLE OF CONTENTS RESTATEMENT OF QUESTION PRESENTED... CORPORATE DISCLOSURE STATEMENT... TABLE OF AUTHORITIES... i ii v INTRODUCTION... 1 COUNTERSTATEMENT OF THE CASE... 2 REASONS FOR DENYING THE PETITION... 4 I. THE SIXTH CIRCUIT S DECISION BELOW DOES NOT CONFLICT WITH DECISIONS OF THE Thomson Reuters. No claim to original U.S. Government Works. 1

2 SEVENTH AND ELEVENTH CIRCUITS.... A. The Seventh Circuit s Holding in Chaney v. Plainfield Did Not Address the Requirement of an Adverse Employment Action, and Its Holding is Not Contrary to the Sixth Circuit s Decision In This Case.... B. The Eleventh Circuit s Holding in Ferrill v. The Parker Group Does Not Conflict With the Sixth Circuit s Holding Here, Because the Ferrill Court Did Not Discuss the Requirement of an Adverse Employment Action.... II. THE ARGUMENTS PETITIONER PRESENTS ARE NOT APPROPRIATE FOR SUPREME COURT REVIEW III. PETITIONER DID NOT SUFFER AN ADVERSE EMPLOYMENT ACTION *iv IV. THIS IS NOT A SEGREGATION CASE CONCLUSION *v TABLE OF AUTHORITIES CASES Brown v. Board of Education, 347 U.S. 43 (1954) Chaney v. Plainfield, 612 F.3d 908 (7th Cir. 2010)... 5, 7 Ferrill v. The Parker Group Inc., 168 F.3d 468 (11th Cir. 1999)... 6, 7 Grimsley v. Marshalls of MA Inc., 284 F. App x 604 (11th Cir. 2008)... 6 Kocsis v. Multi-Care Mgt., Inc., 97 F.3d 876 (6th Cir. 1996)... 6, 7, 8 Kyles v. Whitley, 514 U.S. 419 (1995)... 7, 8 McCrary v. Oakwood Healthcare, Inc., No , 2016 U.S. Dist. LEXIS (E.D. Mich. Mar. 16, 2016)... Patterson v. UPMC South Hills Health Systems Home Health, No , 2005 U.S. Dist. LEXIS (W.D. Pa. May 19, 2005) , 10 Plessy v. Ferguson, 163 U.S. 537 (1896) Porter v. City of Chicago, 700 F.3d 944 (7th Cir. 2012)... 6 United States v. Johnston, 268 U.S. 220 (1925)... 7, 8 *vi Williams v. CSX Transp. Co., 643 F.3d 502 (6th Cir. 2011)... 5 Wyninger v. New Venture Gear, Inc., 361 F.3d 965 (7th Cir. 2004)... 5 STATUTES AND RULES 42 U.S.C passim 2016 Thomson Reuters. No claim to original U.S. Government Works. 2

3 Sup. Ct. R , 8 *1 INTRODUCTION The Petition for Writ of Certiorari filed by Jill Crane does not present any issue that is appropriate for this Court s review. Accordingly, the petition should be denied. First, there is no split among the federal circuit courts on any issue in this case. Contrary to Crane s argument, the Sixth, Seventh, and Eleventh Circuits all require a plaintiff to demonstrate that he or she suffered an adverse employment action to maintain a claim for race discrimination. Second, Crane argues that the Sixth Circuit made erroneous factual findings and misapplied a properly stated rule of law. The Supreme Court Rules and this Court s precedent strongly discourage the granting of certiorari when the Petitioner raises these claims of error. Third, the Sixth Circuit s decision was correct on the merits. Crane cannot establish that she suffered an adverse employment action because she had no direct care responsibilities for the patient and her job assignment never changed based on her race. Fourth, no segregation occurred in this case and the case does not invoke the separate but equal doctrine. For these reasons, as more fully discussed below, Mary Free Bed respectfully requests that this Court deny Crane s Petition for Writ of Certiorari. *2 COUNTERSTATEMENT OF THE CASE Petitioner Jill Crane, who is African American, is a registered nurse who was employed as a part-time nursing supervisor at Mary Free Bed Rehabilitation Hospital ( Mary Free Bed ) (Pet. App. at 2). As a supervisor, Crane was not responsible for direct patient care. (Pet. App. at 3). Crane alleges that on either December 3 or 4, 2010, another Mary Free Bed nursing supervisor told Crane that a patient s family had requested that no African-American caregivers provide care for the patient. (Pet. App. at 2). 1 Crane complained to Mary Free Bed s director of nursing about the request. Crane worked one additional shift during the remaining seven days of the patient s stay at Mary Free Bed. (Pet. App. at 3). Crane had no assigned responsibility to care for the patient who was the subject of the request. She was not personally reassigned because of the request, and her own work was not significantly impacted in any way. The request did not require Crane to reassign any of the employees she supervised. (Pet. App. at 9). Crane filed this action against Mary Free Bed on November 12, 2013 in the U.S. District Court for the Western District of Michigan. She alleged, inter alia, that Mary Free Bed discriminated against her based on her race, under 42 U.S.C and Michigan s *3 Elliott-Larsen Civil Rights Act, by allegedly honoring the patient s request. 2 Mary Free Bed moved for summary disposition on Crane s disparate treatment claim, on the ground that Crane could not prove that she was subjected to an adverse employment action. Mary Free Bed asserted that the alleged request had no significant effect on any aspect of Crane s employment. On March 13, 2015, the District Court granted Mary Free Bed s motion for summary judgment. The District Court found that there was no adverse employment action in this case because the impact on Plaintiff was de minimis. (Pet. App. at 38). The Sixth Circuit Court of Appeals affirmed the District Court s decision. The Sixth Circuit held that Crane failed to demonstrate the prima facie elements of her discrimination claim because she did not suffer a material change in the terms or 2016 Thomson Reuters. No claim to original U.S. Government Works. 3

4 conditions of her employment as a result of the race-based request. (Pet. App. at 11). On January 22, 2016, the Sixth Circuit denied Crane s petition for en banc rehearing. (Pet. App ). *4 Crane filed this petition on March 24, 2016, and asks this Court to review the dismissal of her Section 1981 claim. REASONS FOR DENYING THE PETITION This case presents no question of top priority. The well-reasoned Sixth Circuit opinion does not conflict with the holdings of other circuits. And Crane did not suffer an adverse employment action sufficient to maintain her Section 1981 claim. Further review is unwarranted. I. THE SIXTH CIRCUIT S DECISION BELOW DOES NOT CONFLICT WITH DECISIONS OF THE SEVENTH AND ELEVENTH CIRCUITS. The Sixth Circuit ruled that Crane could not establish a Section 1981 claim for race discrimination because she did not suffer an adverse employment action. (Pet. App. at 11). Crane argues that the Seventh and Eleventh Circuits have held that the Civil Rights Act is violated when a preference based on race is granted by an employer, and that the Sixth Circuit s decision in this case conflicts with those circuits. (Pet. at 4). Contrary to Crane s contention, the Seventh and Eleventh Circuits have consistently agreed with the Sixth Circuit s holding below that a Section 1981 plaintiff must demonstrate that she suffered an adverse employment action that materially altered the terms or conditions of her employment. The cases cited by Crane do not demonstrate a circuit split because they do not address the issue of an adverse employment action. *5 A. The Seventh Circuit s Holding in Chaney v. Plainfield Did Not Address the Requirement of an Adverse Employment Action, and Its Holding is Not Contrary to the Sixth Circuit s Decision In This Case. Crane argues that the Seventh Circuit held in Chaney v. Plainfield, 612 F.3d 908 (7th Cir. 2010), that it is widely accepted that a customer s racial preference is not a defense to a Title VII claim. (Pet. at 4). But Chaney involved a racial harassment claim, where over the course of three months co-workers called [plaintiff] a black bitch and a nigger on multiple occasions. Chaney, 612 F.3d at 912. Based on these facts, the Seventh Circuit found a racially charged environment, and found that the defendant nursing home contributed to it by writing on plaintiffs assignment sheet that certain residents preferred no black CNAs. Id. at 912. The Seventh Circuit in Chaney never addressed whether the plaintiff suffered an adverse employment action. That analysis was not necessary because, in a racial harassment case like Chaney, a hostile work environment is itself sufficient to establish an adverse employment action because it alter [s] the conditions of employment. Wyninger v. New Venture Gear, Inc., 361 F.3d 965, 975 (7th Cir. 2004); Williams v. CSX Transp. Co., 643 F.3d 502, 511 (6th Cir. 2011). Contrary to Crane s presentation, the Chaney court never suggested that a no Black caregivers directive would establish racial harassment or discrimination in the absence of a hostile work environment or another materially adverse employment action. *6 In fact, the Seventh Circuit is fully aligned with the Sixth Circuit s holding below that a disparate treatment claim of race discrimination requires a plaintiff to prove an adverse action that materially alters the terms or conditions of employment. See Porter v. City of Chicago, 700 F.3d 944, 954 (7th Cir. 2012); Kocsis v. Multi-Care Mgt., Inc., 97 F.3d 876, 885 (6th Cir. 1996). B. The Eleventh Circuit s Holding in Ferrill v. The Parker Group Does Not Conflict With the Sixth Circuit s Holding 2016 Thomson Reuters. No claim to original U.S. Government Works. 4

5 Here, Because the Ferrill Court Did Not Discuss the Requirement of an Adverse Employment Action. In an effort to show a circuit split on the nature of the adverse employment action requirement, Crane also cites Ferrill v. The Parker Group Inc., 168 F.3d 468 (11th Cir. 1999). But Ferrill does not indicate a circuit split, because the Eleventh Circuit s decision never addressed the issue of an adverse employment action. Neither party raised it and the court never mentioned it. In fact, the Eleventh Circuit concurs with the Sixth Circuit that a plaintiff must prove an adverse employment action in order to support a race discrimination claim under Section In order to establish a disparate treatment race claim, a plaintiff must also show that an adverse employment action was taken against him regardless of whether he is relying on direct evidence of discrimination or employing the burden shifting approach. Grimsley v. Marshalls of MA Inc., 284 F. App x 604, 608 (11th Cir. 2008) *7 (citation omitted). This holding is fully consistent with the Sixth Circuit s view. Kocsis, 97 F.3d at 885. Neither Chaney nor Ferrill stands for the proposition that a plaintiff can establish a violation of the Civil Rights Act without showing an adverse employment action. Consequently, the Sixth Circuit s decision below does not reflect a circuit split, and this case is not appropriate for certiorari. II. THE ARGUMENTS PETITIONER PRESENTS ARE NOT APPROPRIATE FOR SUPREME COURT REVIEW. This Court rarely grants petitions for certiorari when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law. Sup. Ct. R. 10. United States v. Johnston, 268 U.S. 220, 227 (1925) (this Court does not grant a certiorari to review evidence and discuss specific facts ); Kyles v. Whitley, 514 U.S. 419, 456 (1995) (Scalia, J., dissenting) ( The Court has adhered to the policy that, when the petitioner claims only that a concededly correct view of the law was incorrectly applied to the facts, certiorari should generally (i.e., except in cases of the plainest error) be denied. ) Crane asks this Court to grant certiorari to determine whether she suffered more than a de minimis adverse employment action. She claims that the Sixth Circuit erred because she had responsibilities to care for all patients under her supervision and being told she couldn t based solely on her race was a violation of her civil rights. (Pet. at 6). Whether Crane had responsibilities for all patients under her supervision, and whether the patient s race- *8 based caregiver request affected the terms or conditions of Crane s employment, are factual inquiries best answered by the lower courts. Crane s petition for certiorari should be denied because this Court does not grant certiorari to review evidence and discuss specific facts. Johnston, 268 U.S. at 227. Notably, Crane does not contend that the Sixth Circuit stated the rule of law improperly in its decision below. Crane relies on Kocsis - just as the Sixth Circuit did in its decision below - for the rule that a plaintiff must point to a materially adverse change in the terms or conditions of employment to establish an adverse employment action. (Pet. at 6-7; Pet. App. at 8; Kocsis, 97 F.3d at 885). Crane s contention, instead, is that the District Court and the Sixth Circuit misinterpreted and misapplied Kocsis to reach decisions that Crane argues are contrary to the Section Thus her petition claims the misapplication of a properly stated rule of law. This is not a proper basis for certiorari. Sup. Ct. R. 10; Kyles, 514 U.S. at 456 (Scalia, J., dissenting). *9 III. PETITIONER DID NOT SUFFER AN ADVERSE EMPLOYMENT ACTION. Crane s argument fails on its merits because she cannot demonstrate that she suffered an adverse employment action. Crane s reliance on McCrary v. Oakwood Healthcare, Inc., No , 2016 U.S. Dist. LEXIS (E.D. Mich. Mar. 16, 2016), to support her argument that Mary Free Bed unlawfully discriminated against her is misplaced. In McCrary, the district court stated that it did not believe that the existence of an adverse action - as typically defined in the case law - is necessarily an element of a plaintiff s 1981 claim. Id. at *18. That position is contrary to clearly established Sixth Circuit 2016 Thomson Reuters. No claim to original U.S. Government Works. 5

6 precedent. See Pet. App. at 6-8. In any event, the McCrary court made clear that it did not intend its decision to be contrary to the Sixth Circuit s decision in this case. The McCrary court specifically distinguished the Sixth Circuit s decision below on the ground that the caregiver in McCrary, unlike Crane, was responsible for direct patient care and, on two occasions, was actually excluded from a patient s room and removed from her responsibilities for caring for the patient. Id. at *21. Thus McCrary itself refutes any argument that Crane suffered an adverse employment action. Likewise, Crane s case is not supported, and no important federal question is presented, by the district court decision in Patterson v. UPMC South Hills Health Systems Home Health, No , 2005 U.S. Dist. LEXIS (W.D. Pa. May 19, 2005). Patterson does *10 not suggest that a decision to honor a patient s race-based caregiver request is sufficient ipso facto to establish an adverse employment action. There was evidence in Patterson that a race-based directive caused the plaintiff (a Black home health nurse) to be assigned less than a full schedule of patients; it also affected her ability to qualify for a productivity-based annual raise and bonus. Id. at *17. The Patterson court found a question of fact as to (1) whether the terms and conditions of the plaintiffs employment changed due to the race-based caregiver request and, therefore, as to (2) whether the caregiver suffered an adverse employment action. In contrast, Crane had no direct care responsibilities for the patient and Crane s job assignment never changed based on her race. The undisputed facts here stand in stark contrast to those in Patterson. IV. THIS IS NOT A SEGREGATION CASE. Finally, Crane argues that this case invokes the separate but equal doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896), and that she suffered the segregation that this Court held unconstitutional in Brown v. Board of Education, 347 U.S. 43 (1954). This argument is a desperate attempt to distract from the fact that she cannot establish a prima facie case for discrimination under Section First, Crane does not allege that Mary Free Bed s alleged discrimination deprived [her] of the equal protection of the laws guaranteed by the Fourteenth Amendment. Id. at 495. Instead, Crane s claims of *11 intentional discrimination by a private entity are remedied by 42 U.S.C Second, no segregation occurred in this case. Mary Free Bed did not relegate Crane to a separate facility, define her job assignments based on race, or assign her to work with only African-American employees or patients. For the short time the patient stayed at Mary Free Bed, no aspect of Crane s position, duties, location, or work environment were changed in any way. In short, the District Court and Court of Appeals correctly held that Crane must establish an adverse employment action to maintain her discrimination claim, and that she failed to do so. Certiorari is not appropriate in this case. CONCLUSION For the reasons stated above, the Petition for Writ of Certiorari should be denied. Footnotes 1 Mary Free Bed denies that it honored this request, as it is undisputed that African-American employees continued to provide care throughout his stay. For purposes of summary judgment, however, both the District Court and Circuit Court assumed that Mary Free Bed granted the request. (Pet. App. at 3, 24) Thomson Reuters. No claim to original U.S. Government Works. 6

7 2 3 Crane also claimed that Mary Free Bed failed to promote her to a Director of Education position in retaliation for her objection to the race-based request. The District Court granted summary judgment on that claim, and the Sixth Circuit affirmed. Crane also claimed race discrimination under Title VI of the Civil Rights Act of 1964 and intentional infliction of emotional distress, but stipulated to the dismissal of those claims with prejudice. None of these claims is a subject of Crane s Petition to this Court. Crane makes a vague argument that the lower courts decisions are inconsistent with the bona fide occupational qualifications permitted by Title VII. (Pet. at 7). Mary Free Bed never argued that the alleged patient request was a bona fide occupational qualification, and neither the District Court nor the Court of Appeals analyzed the patient s preference as a bona fide occupational qualification. End of Document 2016 Thomson Reuters. No claim to original U.S. Government Works Thomson Reuters. No claim to original U.S. Government Works. 7