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Arlene Fry v. Rand Construction Corporation

Paid petition · United States Court of Appeals for the Fourth Circuit, No. 18-2083 · judgment July 1, 2020


Certiorari denied · May 3, 2021
Pre-decision estimate: 7% cert probability (95% interval 4%–12%)

Before the decision, about 1.6× the 4.1% base rate. The model weighted this up for a circuit split argued in the petition, a petition citing three to ten dissents, and a dissent in the court below, and down for a business respondent.

Question presented

I. In Burrage v. United States, 571 U.S. 204 (2014), this Court explained that a “but-for” cause is merely one cause, perhaps among several, which is “the straw that broke the camel’s back” and, in June, this Court reiterated in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), that “but-for” cause is not sole cause and may be one of many causes for an adverse employment action. Here, the question presented to the Court is whether the lower court erred in adopting what is, in essence, a “sole cause” standard, in direct conflict with the Court’s holdings in Burrage and Bostock. II. Although the Fourth Circuit purported to apply a “but-for” causation standard to Petitioner’s FMLA claim, there is clear disarray among circuit courts regarding the correct standard. Because of confusion within the circuits, deepened by the Department of Labor’s adoption of a “negative factor” regulation, the question presented is whether the correct causation standard is but-for, motivating factor, or negative factor.

Counsel of record

For petitioner
Adam Augustine Carter
The Employment Law Group, PC

For respondent
James Edward Tysse
Akin Gump Strauss Hauer & Feld LLP

Case

Subject area
Civil Rights (estimated from the questions presented, in the Supreme Court Database’s categories)

Conference history
Distributed for 2 conferences

Order
Order list, May 3, 2021 · Certiorari denied

Proceedings

  1. May 03 2021
    Petition DENIED.
  2. Apr 14 2021
    DISTRIBUTED for Conference of 4/30/2021.
  3. Apr 08 2021
    Reply of petitioner Arlene Fry filed.
  4. Mar 26 2021
    Brief of respondent Rand Construction Corporation in opposition filed.
  5. Feb 09 2021
    Motion to extend the time to file a response is granted and the time is extended to and including March 26, 2021.
  6. Feb 08 2021
    Motion to extend the time to file a response from February 24, 2021 to March 26, 2021, submitted to The Clerk.
  7. Jan 25 2021
    Response Requested. (Due February 24, 2021)
  8. Jan 20 2021
    DISTRIBUTED for Conference of 2/19/2021.
  9. Jan 15 2021
    Waiver of right of respondent Rand Construction Corporation to respond filed.
  10. Dec 23 2020
    Petition for a writ of certiorari filed. (Response due January 29, 2021)