UNIVERSITY PARK, Pa. — The Penn State Dickinson Law Civil Rights Appellate Clinic, along with Mississippi employment firm Watson and Norris PLLC, filed a petition for certiorari with the Supreme Court of the United States on behalf of Sandy Mays on Oct. 22.
Along with Clinical Professor of Law and Clinic Director Michael Foreman, eight third-year clinical students worked on the brief: Alexis Bloodsworth, Ema Dick, C.J. Gust, Sarah Kelly, Lyn Mungin, Haley Russell, Caden Dean-Sauter and Kiera Stubbs.
The brief argued that the writ of certiorari should be granted on two separate grounds:
- The use of the McDonnell Douglas framework at summary judgment conflicts with Rule 56 of the federal rules of civil procedure and has created a circuit split.
- The lower courts are in disarray over whether “but for” causation or another causation standard applies in Family Medical Leave Act (FMLA) retaliation claims, and this court should resolve this issue.
“We initially had three theories we wanted to bring, but as we began the writing process, we realized that one of them was a lot weaker than the others, so we dropped it,” Dean-Sauter said. “We wanted to make sure our brief only contained the best arguments.”
Mays argued that she was wrongfully terminated from her position as a machine operator. She said she began experiencing health flare-ups that severely impacted her ability to perform the manual tasks of her position. As such, she asked for intermittent FMLA leave to manage the flare-ups. However, she still received write-ups for tardiness and absences caused by her flare-ups, despite invoking FMLA. She was eventually terminated from her position for exceeding the maximum number of write-ups.
Mays brought suit, claiming that her tardies and absences were covered by FMLA and she was wrongfully terminated. The district court granted the defendant summary judgment, reasoning that Mays failed to comply with the defendant’s policies, despite her claimed FMLA protection.
On appeal, the Fifth Circuit granted summary judgment for the defendant, finding no error with the trial court’s ruling. That’s when the clinic became involved. Although Mays’ argument was rejected twice, she still had an opportunity for relief.
“For me, the real hope of this petition is just giving the plaintiff a chance,” Gust said. “Because the defendant-employer was granted summary judgment, our plaintiff hasn't gotten a chance to make her case in front of a jury. I think more people should have that chance.”
“The lower courts don’t always get it right,” Mungin said. “As zealous advocates, we have to be prepared to take the next step and continue to advocate for our clients.”
This is many of the students’ first time working on an appellate briefing.
“The thing I love the most about appellate work is the hefty researching,” Kelly said. “The work is based more in legal theory, which requires toying with the plain language of a statute. That toying with language means that judges across the country can all read the same words and interpret them wildly differently. It’s our job to understand their understandings.”
In working on the brief, clinic students put hours into the process, and they said they found the work very rewarding.
“Perfecting our petition for certiorari was the most satisfying part of the process,” Stubbs said. “I loved debating word choice and polishing our writing as a group.”
“The students did an amazing job,” Foreman said. “Having less than a month to master the facts of the case, understand the nuances involved in the legal issues the case presented, and then develop a work product worthy of being filed in the Supreme Court was no small task."
The petition next will be reviewed by the Supreme Court, which will decide if it will consider the appeal. Until that time, the clinic students can reflect on what they learned and will bring with them, both in school and the professional world.
“I learned that even with a whole team of dedicated, intelligent classmates and attorneys working on this, there continue to be tiny details that can be improved,” said Gust. “The attention to detail that the work demands is on another level, and I already feel like on the next one, I'm going to have a better eye for the edit.”