Opposition Brief — Dennison v. County of Frederick

(y)

No. 90-1650 ~~

rT or

-

In The

Supreme Court of the United States

October Term, 1990

a

JOHN W. DENNISON,

Petitioner,

COUNTY OF FREDERICK, et al.,

Respondents.

S

Petition For Writ Of Certiorari

To The United States Court of Appeals

For The Fourth Circuit

¢

RESPONDENTS’ BRIEF IN OPPOSITION

¢

WiLtuiAM E. Twomey, Jr.

* Scott S. Cairns

AcGuire, Woons, BATTLE

& BootTHeE

One James Center

Richmond, Virginia 23219

(703) 775-1000

* Counsel of Record

MAY 24 199)

F-BsSe—GE [ii CLERK

einasiene

COCKLE-TAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

A

Vp.

er

QUESTIONS PRESENTED

1. Did Petitioner state a claim for violation of his

First Amendment rights where he alleged he was con-

structively discharged for a generalized course of con-

duct and did not identify any particular speech, symbolic

or otherwise, for which he was punished?

2. Was Petitioner’s general performance of his

duties as Building Official a matter of public concern or

simply a private matter between him and his employer?

3. Did Plaintiff state a claim for denial of procedural

due process where he voluntarily spurned access to the

County’s grievance procedure by resigning his employ-

ment?

4. Did Plaintiff receive adequate procedural due

process where he received an eleven-day administrative

hearing in which he was represented by counsel and

could call witnesses, as well as cross examine witnesses?

5. Were Petitioner’s claims for deprivation of consti-

tutionally protected rights barred where the state court

had already determined that he voluntarily resigned his

employment and was not constructively discharged?

il

TABLE OF CONTENTS

Page

COUESTIONS PRESENTED . ... 0.6 cccasiccctasensscs i

TAS OF AURORE EIGS o.oo c ccs inccesweevncsiaes iii

PRELIMINARY STATEMENT ...................... 1

OPINIONS AND ORDERS BELOW ................ 2

PPPRERIT EIN ssa cs ea vaeesedanWepanenwnanneeas 2

STATEMENT OF THE CASE.............cccceecees 2

REASONS FOR DENYING THE WRIT............. 5

I. The Court Should Deny The Petition Since the

Petitioner Alleged He Was Constructively Dis-

charged Because Of A Generalized Course Of

Conduct And Did Not Identify Any Speech,

Symbolic Or Otherwise, For Which He Was Pun-

EEE RUPEE eee ee ree ee oa 6

Il. The Petition Should Be Denied Because The

“Speech” Alleged By Dennison To Be The

Motivating Factor In His Constructive Dis-

charge Did Not Involve Matters Of Public Con-

Ill. The Petition Should Be Denied Because. Peti-

tioner Has Received More Process Than

Required By The Fourteenth Amendment ..... 9

IV.- The Petition Should Be Denied Because The Dis-

trict Court Correctly Precluded Relitigation Of

Dennison’s Constructive Discharge Claim...... 11

ee EE Se | rrr et rr ee! Boake en 14

ili

TABLE OF AUTHORITIES

Page

Cases

Berry v. Bailey, 726 F.2d 670 (11th Cir. 1984), cert.

Cg ES A) ear e rer ae 7

Bristow v. Daily Press, Inc., 770 F.2d 1251 (4th Cir.

1985), cert. denied, 475 U.S. 1082 (1986)....... > &- 0

Cleveland Bd. of Education v. Loudermill, 470 U.S.

Dade WOO CIES) «won eee cee e ees ens tenens 9

Detweiler v. Commonwealth of Virginia Dept. of Reha-

bilitative Services, 705 F.2d 557 (4th Cir. 1983)...... 10

Hortonville Jt. Sch. Dist. No. 1 v. Hortonville Educa-

tion Association, 426 U.S. 482, 496-97 (1976)........ 11

Hozie v. Preston, 493 F. Supp. 42, 44 (W.D. Va. 1980) .... 12

Johnson Co. v. Wharton, 152 U.S. 252 (1894).......... 13

Migra v. Warren City School Dist. Bd. of Education,

ys est Reba ANNA AD SHEER R: 12

Rankin v. McPherson, 483 U.S. 378, (1987), reh.

oe a Ey res re 6

Spence v. Washington, 418 U.S. 405, 410-11 (1974) ...5, 7

Standefer v. United States, 447 U.S. 10, 23 n. 18

I cana ch hah is hac snawawaaaeaas ear 13

Withrow v. Larkin, 421 U.S. 35, 47 (1975)............. 10

CONSTITUTIONAL PROVISIONS,

STATUTES AND RULES

First Amendment to the United States Constitu-

ak a a a a

Fourteenth Amendment to the United States Con-

Te ce hae cba kee seee nes 3, 4,9

iv

TABLE OF AUTHORITIES - Continued

Page

ee Acc Ee NEE Wc we's bon keedaes Uenadanedeutun iis 2

ee Reis YS Cos 60h eee heen aecekodes eadune es 12

Rule 10 of the Rules of the United States Supreme

Re ere erry yer ene ep ak nM PUR Men 2, 6

OTHER

IB ]. Moore & T. Currier, Moore’s Federal Practice

Ro: 3: ge Ff Sh, We ee eee 13

Restatement (Second) of Judgments § 28(1).......... 13

No. 90-1650

¢

In The

Supreme Court of the United States

October Term, 1990

’

JOHN W. DENNISON,

Petitioner,

COUNTY OF FREDERICK, et al.,

Respondents.

¢

Petition For Writ Of Certiorari

To The United States Court of Appeals

For The Fourth Circuit

+

RESPONDENTS’ BRIEF IN OPPOSITION

¢

PRELIMINARY STATEMENT

Petitioner John W. Dennison resigned his position as

Building Official of the County of Frederick, Virginia in

September of 1986. Since then, he has dragged his case

through the County’s grievance procedure, the state Cir-

cuit Court, the Supreme Court of Virginia, the United

States District Court for the Western District of Virginia,

the Court of Appeals for the Fourth Circuit, and now

seeks review by this Court. This case presents no issues

appropriate for review, and Respondents pray that his

Petition for Writ of Certiorari be denied.

¢

OPINIONS AND ORDERS BELOW

Respondents accept Petitioner’s statement of the

applicable opinions and orders below.

¢

JURISDICTION

The Petitioner claims that jurisdiction lies under 28

U.S.C. § 1254(1). However, Petitioner has failed to iden-

tify any of the grounds for which Certiorari may be

granted, as set forth in Rule 10 of the Rules of this Court.

¢

STATEMENT OF THE CASE

On September 30, 1986, the Frederick County Admin-

istrator, John Riley, and the County Planning Director,

Bob Watkins, met with Dennison to advise him that cer-

tain improvements were needed in his job performance.

Riley and Watkins had prepared an interim performance

evaluation which they planned to review with him. This

evaluation was advisory in nature and would not in any

way have affected Dennison’s salary, benefits or working

conditions. Riley advised DennisOn that he would be on

probation for the following six months. Riley also

explained that in the interim, Dennison would meet with

Riley and Watkins at sixty-day intervals to monitor his

progress.

At that time, and without review of either the evalua-

tion or the proposed corrective measures, Dennison

stated that he resigned. Ten days later, after consulting an

attorney, Dennison submitted a written resignation.

On October 20, 1986, Dennison filed a grievance

under Frederick County’s grievance procedure for

County employees alleging his resignation had been

“involuntary”. When a question was raised whether Den-

nison’s resignation was grievable, Mr. Riley asked James

Longerbeam, a resident and citizen of Frederick County

and a member of the County’s Employee Relations Com-

mittee, to investigate Dennison’s claims. He held eleven

days of hearings at which Dennison called witnesses,

cross examined witnesses and was represented by coun-

sel. Mr. Longerbeam determined that the facts and cir-

cumstances surrounding Dennison’s resignation did not

constitute an involuntary resignation, and the County

Administrator adopted his findings, ruling the resigna-

tion non-grievable.

Dennison appealed the County Administrator's deci-

sion to the Frederick County Circuit Court, which held

that Dennison did not prove the two elements necessary

to establish a constructive discharge: deliberateness of the

employer’s action and intolerability of the working con-

ditions, citing Bristow v. Daily Press, Inc., 770 F.2d 1251

(4th Cir. 1985), cert. denied, 475 U.S. 1082 (1986). See Peti-

tioner’s Appendix at 55-58. Dennison attempted a collat-

eral attack on this decision by alleging that the Circuit

Court was biased against him. This attempt was rejected

by the Circuit Court, and the Virginia Supreme Court

denied Dennison’s Petition for Appeal.

While the state court action was pending, Dennison

filed this federal court action alleging denial of rights

under the first and fourteenth amendments to the United

States Constitution. Following discovery, the County

moved for summary judgment. When the Circuit Court

ruled on Dennison’s state claims, the County filed the

decision with the District Court and submitted that col-

lateral estoppel made summary judgment appropriate for

that reason as well.

The District Court requested a review of the Circuit

Court file to confirm that the proceedings in that court

involved factual issues identical to those in the federal

action. On December 1, 1989, the District Court granted

the County’s Motion to Dismiss And/Or For Summary

Judgment. See Petiticner’s Appendix at 25-42. The Dis-

trict Court determined that the state court had applied

the Bristow standard in reaching its determination of the

involuntary resignation question. Therefore, the District

Court held:

An essential element of plaintiff's claim having

been decided adversely to him in a proceeding

before the Circuit Court for the County of Fre-

derick, and that decision being final and unre-

viewable, that issue is now res judicata.

Therefore, summary judgment for the defen-

dants in the present action, as to plaintiff’s fed-

eral claims, is appropriate.

See Petitioner's Appendix at 39.

The United States Court of Appeals for the Fourth

District affirmed the District Court’s decision, but on

alternate grounds. It determined that it need not decide

whether collateral estoppel was appropriate because

Plaintiff failed to state a claim under the First or Four-

teenth Amendments.

First, the Court of Appeals reviewed the speech and

conduct Dennison alleged were the basis for his construc-

tive discharge and determined:

At most, the present case involves a dispute

overa —* course of conduct, not the expres-

sion of any idea or opinion. Dennison never

evinced an “intent to convey a particularized

message ... . ” Spence v. Washington, 418 U.S.

405, 410-11 (1974). Since Dennison cannot iden-

tify any particular speech, symbolic or other-

wise, for which he was punished, we hold that,

as a matter of law, his First Amendment right to

freedom of speech could not have been violated.

See Petitioner’s Appendix at 14-15.

Second, the Court of Appeals held that urgings by

Dennison’s supervisors for a less strict enforcement of the

State Building Code, when taken in context, were essen-

tially a private matter between him and the County, and

not of public concern. Therefore, his alleged “speech”

was not protected under the First Amendment. See Peti-

tioner’s Appendix at 19.

With respect to Dennison’s due process claims, the

Court of Appeals again did not address whether Den-

nison was constructively discharged, but instead held

that he received adequate process and spurned further

post “termination” process by resigning and waiving his

rights under the County’s grievance procedure. See Peti-

tioner’s Appendix at 21-22. On these bases, the Court of

Appeals upheld the District Court’s judgment in favor of

the County.

REASONS FOR DENYING THE WRIT

The Petition for Writ of Certiorari does not even

allege that this case satisfies the criteria specified in Rule

10 for review by this Court. There is no allegation that the

Court of Appeals’ decision is in conflict with the decision

of any other court. Nor does the Petition identify any

important question of law which has not been, but which

should be, settled by this Court. Instead, the Petition

reveals that Dennison is simply dissatisfied with the deci-

sions reached by the state Circuit Court, the Virginia

Supreme Court, the District Court and the Court of

Appeals for the Fourth Circuit. The decisions of these

courts were correct and need not be reviewed by this

Court.

I. The Court Should Deny The Petition Since the Peti-

tioner Alleged He Was Constructively Discharged

Because Of A Generalized Course Of Conduct And

Did Not Identify Any Speech, Symbolic Or Other-

wise, For Which He Was Punished.

Petitioner concedes that to state a claim under the

First Amendment, he must identify speech protected by

the First Amendment and establish that this speech was a

motivating factor in his discharge. See Rankin v. McPher-

son, 483 U.S. 378 (1987), reh. denied, 483 U.S. 1056 (1987).

Here, there was no discharge, and the Court of Appeals

found that Dennison failed to identify any protected

speech. Petitioner’s Appendix at 15.

When asked in depositions to identify any particular

speech he alleged to have been a motivating factor in his

“discharge”, or which he believed to be protected by the

First Amendment, Dennison could not do so. Indeed, his

counsel admitted this in deposition: “Mr. Schultz: .. . |

think he has stated that his conduct in enforcing the

Building Code was the motivation behind the creation of

the circumstances, particularly the placing on probation

that caused him to resign.” When pressed to identify any

particularized speech, Dennison was instructed not to

answer by his counsel. Even in his briefs to the Court of

Appeals, Dennison continued to argue, not that any par-

ticular speech motivated his “constructive discharge”,

but simply that the County did not like the way in which

he did his job. Petitioner’s Appendix at 13-14.

In his Petition, Dennison again reaffirms his allega-

tion that it was merely his course of conduct of “properly

but thoroughly enforcing the Building Code of the State

of Virginia” that led to his constructive discharge. Peti-

tion at 31-33. He tries to bolster his position by pointing

to specific incidents where he properly enforced the

Building Code. However, these are simply examples of

his “course of conduct” in doing his job as the Building

Official, not particularized speech intended “to convey a

particularized message.” See Spence v. Washington, 418

U.S. 405, 410-11 (1974).

Petitioner’s allegations are insufficient to state a

claim under the First Amendment. For example, in Berry

v. Bailey, 726 F.2d 670 (11th Cir. 1984), cert. denied, 471 US.

1101 (1985), the Eleventh Circuit Court of Appeals found

no First Amendment violation in a sheriff’s discharge of a

deputy “for doing a good job,” even when the “good job”

involved refusal to conform to corrupt practices in the

Sheriff’s Department. Quoting with approval from the

trial court opinion, the Court stated:

‘While the Court agrees that termination [for

properly doing one’s job] can be unjust’, it does

not implicate a First Amendment right.

Id. at 675.

Because Dennison could not present evidence of any

protected speech, dismissal of his First Amendment claim

was Clearly appropriate. Moreover, this issue concerns

only the specific facts of this case and presents no reason

for review by this Court.

II. The Petition Should Be Denied Because The

“Speech” Alleged By Dennison To Be The Motivat-

ing Factor In His Constructive Discharge Did Not

Involve Matters Of Public Concern.

The Court of Appeals found, as an alternative reason

for dismissal of Petitioner’s First Amendment claims, that

the alleged retaliation for Dennison’s enforcement of the

Building Code, taken in context, was essentially a private

matter between him and the County, not retaliation for

speech involving a matter of public concern. Petitioner’s

Appendix at 19.

In his Petition, Dennison argues that “the ‘public

interest’ is extricably involved in all ‘speech’ which

relates to the strict but proper enforcement of the Build-

ing Code.” Petitioner’s Appendix at 51-52. The essence of

Petitioner’s argument is that all speech related to his job

as Building Official would be of public interest. Although

the Building Official certainly performs an important

function, as do policemen, firemen, county managers, and

other public officials, the effect of Petitioner’s argument

would be to constitutionalize all aspects of these

employees’ job performance. This is not, and should not

be, the law. The Court of Appeals properly found no First

Amendment right to be implicated by Petitioner’s allega-

tions. Again, this issue presents no conflict in the law and

turns only on the facts of this case, presenting no reason

for review.

Ill. The Petition Should Be Denied Because Petitioner

Has Received More Process Than Required By The

Fourteenth Amendment.

Even if this Court were to view Dennison’s resigna-

tion as a constructive discharge, the Court of Appeals

properly found that he had extensive review of his claims

— more process than he was due under the Fourteenth

Amendment - and that he had spurned additional review

by resigning. Petitioner’s Appendix at 20-23.

It is undisputed that Dennison received extensive

due process. Dennison was notified of the plan to re-

evaluate him and place him on probation in a face-to-face

meeting with Mr. Riley and Dennison’s direct supervisor,

Mr. Watkins. Mr. Riley began to explain the reasons for

the decision to re-evaluate him, but Dennison instead

chose to resign without hearing the details of the decision

and without taking the opportunity to respond.

Even if Dennison’s resignation is viewed as a termi-

nation, the Court of Appeals properly found that this

meeting with Riley and Watkins more than satisfied any

requirements of a pre-termination hearing. A pre-termi-

nation hearing need not be elaborate and must simply

provide the employee with notice of the charges against

him and an opportunity to respond, either in writing or

in person. See Cleveland Bd. of Education v. Loudermill, 470

U.S. 532, 546 (1985).

10

Dennison argues in his Petition that his evaluation

and probation were completed before this meeting. Peti-

tion at 55. However, the evaluation and probation did not

deprive him of his property interest. If any deprivation

occurred, it occurred when Dennison resigned. Clearly

the meeting with Riley and Watkins had occurred before

the resignation.

With respect to post-termination due process, Peti-

tioner does not dispute that the grievance procedure for

Virginia's public employees, upon which the County’s

procedure is modeled, satisfies the requirements of due

process. See Detweiler v. Commonwealth of Virginia Dept. of

Rehabilitative Services, 705 F.2d 557 (4th Cir. 1983). More-

over, Petitioner does dispute that he spurned this griev-

ance procedure in favor of resignation and only

attempted to invoke that procedure after he resigned. He

also does not dispute that he had eleven days of hearings

on his complaints, that he was represented by counsel,

and that his counsel called witnesses and cross-examined

the County’s witnesses at length.

Petitioner’s only argument about the process he

received was that the final step of the state mandated

grievance procedure is heard by a three-member panel

chosen by the participants from a panel of five selected

by the County. Petition at 56. He makes no allegations of

actual bias on the part of any panel. Indeed he could not

do so because he resigned before ever participating in a

panel hearing. Furthermore, administrative decision

makers, like judicial ones, are entitled to a “presumption

of honesty and integrity,” see Withrow v. Larkin, 421 U.S

1]

35, 47 (1975), and absent a showing of actual bias stem-

ming from an extrajudicial source, they are not constitu-

tionally precluded from participating in a grievance

procedure. See Hortonville Jt. Sch. Dist. No. 1 v. Hortonville

Education Association, 426 U.S. 482, 496-97 (1976). Indeed,

there was no requirement of review by this panel after

Dennison had already received an eleven-day hearing

before Mr. Longerbeam. This is a well established legal

proposition, and there is no reason for review by this

Court.

IV. The Petition Should Be Denied Because The Dis-

trict Court Correctly Precluded Relitigation Of

Dennison’s Constructive Discharge Claim.

To prevail on any of his federal claims, Petitioner first

had to establish that his resignation was involuntary and

that he was actually the victim of a “constructive dis-

charge.” In Bristow v. Daily Press, Inc., 770 F.2d 1251 (4th

Cir. 1985), cert. denied, 475 U.S. 1082 (1986), the Fourth

Circuit held:

A constructive discharge occurs when an

employer deliberately makes an employee's

working conditions intolerable and thereby

forces him to quit his job... . a plaintiff alleging

constructive discharge must . . . prove two elements:

deliberateness of the employer's action and intol-

erability of the working conditions.

Id. at 1255 (emphasis added).

The state Circuit Court applied precisely this stan-

dard, citing Bristow, and found:

12

Mr. Dennison has not established a probability

that the County intended to cause his resigna-

tion, or that the circumstances of his employ-

ment were intolerable. Therefore, Mr. Dennison

has not established the elements of constructive

discharge or involuntary resignation.

See Petitioner’s Appendix at 51.

The state court’s determination that there was no

“constructive discharge” collaterally estopped Dennison

from relitigating that issue in the District Court. In Migra

v. Warren City School Dist. Bd. of Education, 465 U.S. 75

(1984), this Court held that if a plaintiff asserts a claim

under 42 U.S.C. § 1983, and also litigates the same issue

in state court, the state court judgment may decide the

federal claim:

It is now settled that a federal court must give to

a state-court judgment the same preclusive

effect as would be given that judgment under

the law of the State in which the judgment was

rendered.

Id. at 81. Section 1983 does not create an exception to this

rule. Id. at 84. Applying Virginia law, the Court in Hozie v.

Preston, 493 F. Supp. 42, 44 (W.D. Va. 1980) held:

Collateral estoppel is the preclusive effect

impacting in a subsequent action based upon a

collateral and different cause of action. In the

subsequent action, the parties to the first action

and their privies are precluded from litigating

any issue of fact actually litigated and essential

to a valid and final personal judgment in the

first action.

Dennison has already fully litigated the constructive

discharge issue in the state Circuit Court. He has had his

13

day in court and lost. To prevail in federal court, Den-

nison would have had to persuade the District Court to

reach a different determination than that reached by the

Circuit Court when the evidence before both courts was

identical. Because the state and federal actions involved

the same parties and the same claims, the District Court

properly gave full faith and credit to the state court

decision and precluded further litigation of the issue.

Petitioner asserts that because the state Circuit Court

decision was not directly appealable, collateral estoppel

should not be applied. He argues that this Court should

adopt the Restatement (Second) of Judgments § 28(1), and

require that a decision be appealable for it to be given

preclusive effect in subsequent litigation. However, no Vir-

ginia court has ever adopted this provision of the Restate-

ment. Dennison has shown no compelling reason for this

Court to adopt the Restatement approach where the state

courts of Virginia have not, and to do so would be contrary

to law and policy. Furthermore, as this Court stated in

Standefer v. United States, “[t]his is not to suggest that the

availability of appellate review is always an essential predi-

cate of estoppel. See Johnson Co. v. Wharton, 152 U.S. 252

(1894); see generally IB J. Moore & T. Currier, Moore’s Fed-

eral Practice J 0.416 [5] (2d ed. 1974).” 447 U.S. 10, 23 n.18

(1980). This Court should give the same full faith and credit

to the state court decision as the state itself would. Therefore,

because Dennison could not establish a constructive dis-

charge, dismissal of his federal claims was appropriate. Fur-

thermore, the decision whether to apply estoppel turns on

the facts of each case, and this issue presents no reason for

review by this Court.

14

CONCLUSION

The issues presented by the Petitioner involve nei-

ther a substantial federal question nor a split among the

circuits. Therefore, Respondents pray that Certiorari be

denied.

Respectfully submitted,

COUNTY OF FREDERICK,

VIRGINIA, KENNETH W. StTiLes

and JOHN R. RiLey

WiLuiAM E. Twomey, Jr.

Scott S. CaiRNs

McGuire, Woops, Battie & BOooTHE

One James Center

Richmond, Virginia 23219

(804) 775-1000

Counsel for Respondents

OO OO