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Conference Call summarizes the roughly 15 percent of all nonpauper petitions that are the most likely candidates for certiorari. It is prepared by the law firms Akin Gump Strauss Hauer & Feld and Howe & Russell, which together publish the Supreme Court weblog. Tom Goldstein, who is the head of Supreme Court litigation for Akin Gump, selects the petitions from the docket of nonpauper petitions. The firms then prepare the summaries of the cases. If either firm is involved in a case mentioned in this column, that will be disclosed.
In 2006′s Burlington Northern & Santa Fe Railway v. White, the Supreme Court laid down the basic framework for determining when employer action would constitute “retaliation” under Title VII of the Civil Rights Act of 1964. On Friday, the justices will consider whether to grant certiorari on a related question with a potentially sweeping impact for modern workplaces: whether the law’s “anti-retaliation” provision even applies to workers who voluntarily provide information during an internal office investigation of suspected discrimination or harassment. (The petition is No. 06-1595, Crawford v. Metropolitan Government of Nashville.) The petition arose out of a dispute between Vicky Crawford and her longtime employer, the Metropolitan Government of Nashville and Davidson County, Tenn. (or Metro, as it’s known). In late 2001, Metro hired Gene Hughes to oversee employment relations for the area school district, a job requiring him to investigate all claims of discrimination and harassment. In the ensuing months, however, Hughes himself became the subject of sexual harassment complaints from numerous female employees. During a subsequent internal investigation, Metro officials asked Crawford — who worked under Hughes but had not previously reported any offensive conduct on his part — whether she had observed Hughes engaging in any inappropriate behavior. Crawford replied that Hughes had repeatedly grabbed his crotch in front of her and asked to see her breasts, and on one occasion forcefully pulled her head toward his groin. The investigation resulted in no disciplinary action against Hughes. But upon its conclusion, according to Crawford, she and other female employees who testified to Hughes’ conduct were fired on other grounds. Crawford, who had worked as a payroll coordinator for more than 30 years, filed a complaint with the Equal Employment Opportunity Commission and, after receiving notice of her right to sue, accused Metro of violating the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964. In addition to outlawing employment discrimination based on race, color, religion, sex, and national origin, Title VII also forbids employers from retaliating against workers for voicing opposition to such practices or for participating in any type of investigation conducted under the statute. (The anti-retaliation provisions are known colloquially as the “opposition” and “participation” clauses.) Upholding the district court’s grant of summary judgment for the employer, a panel of the U.S. Court of Appeals for the 6th Circuit found that, even assuming the truth of Crawford’s allegations, Metro violated neither part of Title VII’s anti-retaliation provisions. In an unpublished opinion, the panel found that the opposition clause protects only employees who actively resist workplace discrimination — as by officially complaining to their employer or the government — not those who merely cooperate during in-house investigations. The panel also held that the participation clause only applies to statements made during proceedings held after the filing of charges with the EEOC. Crawford’s petition for certiorari, filed by Nashville attorney Ann Buntin Steiner, principally argues that the 6th Circuit’s ruling conflicts with the EEOC’s own interpretation of Title VII, and that, as a practical matter, it leaves employees with little incentive to cooperate in internal investigations. In contrast with the 6th Circuit opinion, Steiner argues, the EEOC’s compliance manual and its Web site both list cooperating with an internal investigation as a protected activity against which employers may not retaliate. Steiner further contends that as a result of the ruling, employees in the 6th Circuit will likely avoid cooperating with in-house investigations if they know they may be fired for doing so. Such wariness could arise with sexual harassment claims in particular, the petition contends, because employee witnesses are often under the direct supervision of the alleged harasser. And such a result would conflict with the overarching purpose of Title VII to induce employers to reduce workplace discrimination on their own, Steiner concludes. In its brief in opposition, Metro argues that in addition to a lack of a circuit split on the question at issue, the Court need not grant certiorari merely when a federal appellate court’s decision conflicts with the EEOC’s interpretation of Title VII. Defending the ruling, city attorney Francis Young contends that Crawford’s statements to investigators cannot amount to “opposition” when she had not previously complained to anyone about Hughes’ behavior and, prior to arriving at the interview, had no idea why she was being questioned. In any event, Young argues, Crawford was fired not in retaliation for her statements during the investigation but as a result of a separate audit regarding the school district’s payroll division, which revealed evidence of mishandling of employee retirement contributions, among other problems. In an invitation brief filed the week before Christmas, Solicitor General Paul Clement urged the Court to grant certiorari. The U.S. brief contends that Crawford remained protected under the opposition and participation clauses of Title VII and that the 6th Circuit opinion creates an “inexplicable gap” in the measure’s anti-retaliation provisions. The brief also contends that the ruling raises concerns under previous Supreme Court opinions that place an affirmative duty on employers to investigate allegations of sexual harassment to avoid or limit liability under Title VII. While acknowledging the lack of a circuit conflict, the government contends that the issue arises with sufficient frequency to merit the Court’s review. — Ben Winograd
Other cases up for review include the following: • 07-463, Summers, et al. v. Earth Island Institute, et al. (9th Circuit) Whether a group of environmental organizations had established standing to contest a series of Forest Service regulations, and whether the challenge was ripe for review under the Administrative Procedure Act. • 07-470, Robinson, et al. v. Lehman (9th Circuit) Whether two Reno, Nev., police officers were entitled to qualified immunity in the fatal shooting of a driver who attempted to break through a line of surrounding police cars. • 07-471, Ratliff-White v. United States (7th Circuit) Whether, in an alleged fraud of the Department of Veterans Affairs seeking fees for health care services never actually performed, a discrepancy in the indictment over the actual route of the money transfer warrants reversal of a conviction under the wire fraud statute. • 07-539, Progress Energy Inc. v. Taylor (4th Circuit) Whether Department of Labor regulations preclude employees from waiving past claims, as opposed to future claims, under the Family and Medical Leave Act. • 07-613, D.P., et al. v. School Board of Broward County, Fla. (9th Circuit) Whether, under the “stay put” provisions of the Individuals with Disabilities Education Act, a child transferring into preschool at age 3 is entitled to continue receiving early-intervention services. [Disclosure: Akin Gump represents amicus Autism Speaks.] • 07-619, PT Pertamina (Persero) fka Perusahaan Pertambangan Minyak Dan Gas Bumi Negara v. Karaha Bodas Co. (9th Circuit) Whether a federal district court has “ancillary” subject matter jurisdiction to issue an anti-suit injunction barring foreign litigation.

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