Opposition Brief — Propst v. Weir

e) rth &

No. 91-955 JAN 2 199%

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

BARBARA PROPST,

Petitioner,

MORTON W. WEIR, JUDITH S. LIEBMAN, and

ROBERT M. BERDAHL,

Respondents.

Petition For A Writ Of Certiorari To The

Court Of Appeals For The Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

ARNOLD F. BLOCKMAN

JEROME P. LykE

HatcH, BLOCKMAN,

McPHETERS, FEHRENBACHER

& Lyke

115 N. Neil, Suite 309

Champaign, II. 61820

Telephone: (217) 356-2577

Attorneys for Respondent

Judith S. Liebman

JAMES KEARNS

BRADFORD J. PETERSON

Heyt, Royster, VOELKER

& ALLEN

300 County Bank Plaza

Urbana, IL 61801

Telephone: (217) 344-0060

Attorneys for Respondent

- Morton W. Weir

MicHaeL M. Conway*

Jute Gace PALMER

Hopkins & SUTTER

Three First National Plaza

Chicago, IL 60602

Telephone: (312) 558-6600

Attorneys for Respondent

Robert M. Berdahl

*Counsel of Record

COCKLE LAW BRIEF

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NTING CO., (800) 225-6964

“CT (402) 342-2831

TABLE OF CONTENTS

Page

SP Se Fe PO ei cinco dacekescwnenvcus ii

COUNTER-STATEMENT OF THE CASE............ 1

REASONS FOR DENYING THE WRIT..... on Ee 5

I. The Decision Below Is In Accordance With The

Well-Established Objective Test Set Forth In Sev-

eral Decisions CU This Court... 6 ....0-0.65: 5

Il. The “Minimum Quantum Of Proof” Standard

Applied In This Case Is Consistent With The

Traditional Summary Judgment Standard Set

ge | ee ee ree 7

III. Supreme Court Review Is Not Warranted ..... 11

ee IRIN ces Saw dic ayaa d Guess sneha nesses 13

il

TABLE OF AUTHORITIES

Page

Cases

Anderson v. Creighton, 483 U.S. 635 (1987) ....... » 6,7

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)

see ce eee seine twee a6 65 6 6m eile mitten 7< oe 3

Auriemma v. Rice, 910 F.2d 1449 (7th Cir. 1990) (en

banc), cert. denied, __ U.S. __, 111 S.Ct. 2796

42) PP ere er ns de ed

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)........... 7

Collinson v. Gott, 895 F.2d 994 (4th Cir. 1990)........ 10

Harlow v. Fitzgerald, 457 U.S. 800 (1982)........ > 9;

Malley v. Briggs, 475 U.S. Fao Games o case cs see ceases 7

Monks v. Marlinga, 923 F.2d 423 (6th Cir. 1991)....... 9

Pickering v. Board of Education, 391 U.S. 563 (1968)..... 6

Polenz v. Parrott, 883 F.2d 551 (7th Cir. 1989)......... 5

Rakovich v. Wade, 850 F.2d 1180 (7th Cir.), cert.

denied, 486 U.S. 966: CORN xc ieee ec ease ictess 7

Rankin v. McPherson, 483 U.S. 378 (1987) ............. 6

Siegert v. Gilley, __ U.S. __, 111 S. Ct. 1789 (1991) ..9, 11

Slattery v. Rizzo, 939 F.2d 213 (4th Cir. 1991) ......... 7

Weir v. Franklin M. Propst, 915 F.2d 283 (7th Cir.

|) SD reran rm er Fe Re 8

COUNTER-STATEMENT OF THE CASE

This case arose from a difficult conflict among the top

administrative personnel of the University of Illinois

Computer-based Education and Research Laboratory

(“CERL”). A wife and husband, Barbara and Franklin

Propst, who together headed up the CERL business

office, accused their immediate superior, the director of

CERL, Donald Bitzer, of a conflict of interest. The Univer-

sity thoroughly investigated these charges over a period

of several months.

Throughout this period, Chancellor Morton W. Weir,

Vice-Chancellor Judith S. Liebman and Vice-Chancellor

Robert M. Berdahl (collectively, the “University Adminis-

trators”) received reports from subordinates that CERL

was deteriorating because of growing dissension in the

workplace. As the Seventh Circuit Court of Appeals

found, the University Administrators “decided that either

Bitzer or the Propsts had to go if the Laboratory was to

return to normal. When in the fall of 1987 the auditors

submitted a report that the administrators interpreted as

absolving Bitzer of any material conflicts, the administra-

tors decided to move the Propsts.” (App. 31).!

The Court should note two highly-misleading state-

ments in petitioner’s statement of the case. First, peti-

tioner states that she was “removed” from her CERL

position, implying that she was fired. (Petition, at 4, 5). In

truth, the petitioner was not fired but was simply trans-

ferred from CERL to the position of Assistant Dean in the

1 “App.” indicates reference to the Opinion of the Court of

Appeals, contained in the Appendix to Petitioner’s Petition.

College of Applied Life Studies without any loss of salary

or benefits. Similarly, petitioner’s husband, Franklin Pro-

pst, was transferred from CERL to his tenured position in

the University’s physics department, also without loss of

salary or benefits. (App. 31-32). At no time was the peti-

tioner ever terminated from her employment at the Uni-

versity of Illinois.

: Second, petitioner states that defendants’ motion for

summary judgment was filed “prior to any discovery”.

(Petition, at 5). However, petitioner’s lawyers had the

opportunity to examine under oath all three of the Uni-

versity Administrators, and defendant Donald Bitzer, in a

series of lengthy depositions and to obtain production of

hundreds of documents in the parallel case filed by peti-

tioner’s husband, Franklin Propst. The discovery in the

parallel Franklin Propst case includes a 1034-page deposi-

tion of Bitzer, a 330-page deposition of Weir, a 420-page

deposition of Liebman, a 283-page deposition of Berdahl,

a 1467-page deposition of Franklin Propst, and a 860-page

deposition of Barbara Propst.

As a further Counter-Statement of the Case, the Uni-

versity Administrators adopt and incorporate by refer-

ence the statement of facts in the Court of Appeals

opinion below. In addition, the University Administrators

set forth the following material facts which confronted

them when they made their decision to transfer petitioner

to another administrative position on the University of

Illinois campus:

e Barbara and Franklin Propst, who held the

two senior financial positions in CERL, were

at extreme odds with CERL’s director,

Donald Bitzer. SA 173-78, 184-85, 196-98.2

e The Propsts made serious accusations of

wrongdoing against Bitzer for conflicts of

interest, which prompted a full-scale Univer-

sity audit. SA 172-74, 194-95, 214-17, 237-39.

e The work in CERL was being seriously dis-

rupted by their dispute. SA 109, 125-28, 139,

142, 149-50, 155-56, 222-228, 246.

e The University had to appoint a “go-

between” between the Propsts and Bitzer to

get any work done at CERL. SA 179-80, 199.

e Groups of CERL employees and others com-

plained to each of Weir, Berdahl and Lieb-

man about the adverse working atmosphere

in the laboratory, the friction between the

Propsts and Bitzer, and the burdens and anx-

iety visited on lab personnel by the Univer-

sity’s investigation of Propsts’ accusations

against Bitzer. Employees had made veiled -

threats to quit. SA 139-40, 157-58.

e The situation was intolerable in the labora-

tory; either Bitzer or the Propsts had to be

removed from CERL. SA 112-13, 128-29.

e If Bitzer had been guilty of wrongdoing, he

would have been removed as CERL’s direc-

tor. SA 113, 153-154.

e The University audit found that Bitzer had

engaged in no material wrongdoing. SA

110-111, 125, 189-90, 192, 200, 202.

2 “SA” indicates references to the Supplemental Appendix

of materials from the Record on Appeal before the Court of

Appeals.

e CERL’s continued success was tied to Donald

Bitzer. SA 113, 159, 231-32, 236.

e Franklin Propst was a tenured professor in

the Physics Department. Barbara Propst

could fulfill other administrative posts

within the University. SA 121, 230, 233-35,

241.

Petitioner’s “questions presented” numbers 2 and 3

are not applicable in this case. The University Adminis-

trators have not made any argument based on their sub-

jective belief, and the Seventh Circuit made no ruling

based on subjective belief, contrary to Question 2’s prem-

ise. As stated above, the petitioner had access to substan-

tial discovery, contrary to the premise of Question 3.

Finally, the University Administrators have indeed

argued, contrary to petitioner’s implications (Petition, at

7), that the clearly established law at the time in question,

and still today, allows administrators, after reasonable

balancing, to transfer an employee whose speech is dis-

rupting her workplace. The University Administrators

have argued that the balance they struck was not only

objectively reasonable, but even correct with hindsight.

For striking an objectively reasonable balance, the Uni-

versity Administrators are entitled to qualified immunity.

+

REASONS FOR DENYING THE WRIT

I. The Decision Below Is In Accordance With The

Well-Established Objective Test Set Forth In Several

Decisions Of This Court

In ruling that the University Administrators are enti-

tled to qualified immunity, the Seventh Circuit decision

followed the well-accepted objective test established by

this Court. According to a settled and often quoted prin-

ciple, public officials are entitled to the protections of

qualified immunity when “their conduct does not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). Accord, Auriemma v.

Rice, 910 F.2d 1449, 1452 (7th Cir. 1990) (en banc), cert.

denied, 111 S.Ct. 2796 (1991) (quoting Polenz v. Parrott, 883

F.2d 551, 553-54 (7th Cir. 1989) itself quoting Harlow).

In applying this test, this Court in Anderson v.

Creighton, 483 U.S. 635, 641 (1987), cautioned that the

objective reasonableness of an official’s immunity — and

therefore his entitlement to qualified immunity — often

depends upon the information the official actually pos-

sessed. Like the petitioner here, Creighton asserted that

examining the information possessed by public officials

injected a subjective component into the inquiry. This

Court rejected that argument in Anderson, stating:

[C]ontrary to the Creightons’ assertion, this

does not reintroduce into qualified immunity

analysis the inquiry into officials’ subjective

intent that Harlow sought to minimize.

483 U.S. at 641. Petitioner’s argument has already been

heard and rejected by this Court.

The relevant question in Anderson was:

whether a reasonable officer could have

believed Anderson’s warrantless search to be .

lawful, in light of clearly established law and

the information the searching officers possessed.

453 U.S. at 641. Likewise, in this case, the relevant ques-

tion is whether reasonable university officials could have

believed Barbara Propst’s transfer to be lawful, in light of

clearly established law and the information that the Uni-

versity Administrators possessed.

The “clearly established” law shedding light on this

case is Pickering v. Board of Education, 391 U.S. 563 (1968),

and its progeny. Thus, the relevant objective question

here is whether reasonable administrators could have

believed Barbara Propst’s transfer to be lawful under

Pickering and its progeny, given the specific facts con-

fronting the University Administrators. In finding that

reasonable university administrators could have believed

that Barbara Propst’s transfer to another responsible post

at the University of Illinois was lawful, the Seventh Cir-

cuit properly applied the objective, qualified immunity

test. The Seventh Circuit did not, despite petitioner’s

assertions, reject Pickering and Rankin v. McPherson, 483

U.S. 378 (1987). These cases did not involve qualified

immunity. Whether Pickering and Rankin call for inquiry

about the “actual conditions” in the workplace is inap-

posite here, where qualified immunity is asserted by Uni-

versity Administrators who were not present in the

workplace.

The Seventh Circuit’s decision is in line with the

well-established principle articulated in United States

Supreme Court and Court of Appeals decisions that since

“objectively reasonable but mistaken conclusions do not

violate the Constitution” (App. 33), the correct inquiry

focuses on the facts confronting public officials when

they act. Anderson v. Creighton, 483 U.S. 635, 640-41 (1987);

Slattery v. Rizzo, 939 F.2d 213, 216 (4th Cir. 1991); App. 33;

Auriemma, 910 F.2d at 1455; Rakovich v. Wade, 850 F.2d

1180, 1209 (7th Cir.), cert. denied, 488 U.S. 968 (1988). In

Malley v. Briggs, 475 U.S. 335, 341 (1986), this Court

stated: “As the qualified immunity defense has evolved,

it provides ample protection to all but the plainly incom-

petent or those who knowingly violate the law”. If peti-

tioner’s theory were accepted, the law of qualified

immunity would change drastically and would provide

little or no protection to officials who must rely on subor-

dinates to report to them about workplace conditions.

Il. The “Minimum Quantum of Proof” Standard

Applied In This Case Is Consistent With The Tradi-

tional Summary Judgment Standard Set Forth By

This Court

The Seventh Circuit’s ruling is in accord with the

well-established doctrine that a plaintiff may not rely on

speculative, conclusory allegations of the complaint to

defeat a motion for summary judgment. Anderson v. Lib-

erty Lobby, Inc., 477 U.S. 242, 256 (1986) (“[A] party oppos-

ing a properly supported motion for summary judgment

may not rest upon mere allegation or denials of his plead-

ing, but must set forth specific facts showing that there is

a general issue for trial”); see also Celotex Corp. v. Catrett,

477 U.S. 317, 322-323 (1986) (“In our view, the plain

language of Rule 56(c) mandates the entry of summary

judgment, after adequate time for discovery and upon

motion, against a party who fails to make a showing

sufficient to establish the existence of an element essen-

tial to that party’s case, and on which that party will bear

the burden of proof at tria!”). Despite having had unique

access to discovery in the face of a qualified immunity

defense, Barbara Propst did not meet the standard

required of nonmovants to defeat a motion for summary

judgment. She produced no competent evidence at all to

support her allegations that the University Administra-

tors (i) did not actually receive the information about

disruptions at CERL, (ii) made an objectively unreason-

able decision, or (iii) acted with an improper purpose.

Barbara Propst “offers no reason other than her own

suspicions” to impute improper motive to the University

Administrators. (App. 38). Barbara Propst’s lawyers had

the opportunity to cross examine all three University

Administrators in a series of lengthy depositions and to

- obtain extensive document discovery in the parallel case

filed by Barbara Propst’s husband, Franklin Propst.* In

Franklin Propst’s case, which presented “the same legal

issue — qualified immunity — in identical procedural and

—

3 The Franklin Propst case is still pending in the United

States District Court for the Central District of Illinois. Franklin

M. Propst v. Bitzer, No. 88-3005 (C.D. Ill.). The district judge in

that case denied summary judgment, but found that the quali-

fied immunity question was a close one and certified the

question for appeal. The Seventh Circuit declined to exercise

its discretion to hear the appeal, at least in part on procedural

grounds. Weir v. Franklin M. Propst, 915 F.2d 283 (7th Cir. 1990).

A renewed motive for summary judgment has now been filed

in the district court based upon the Seventh Circuit’s decision

in the Barbara Propst case.

factual contexts” (F. Propst v. Bitzer, et al., No. 88-3005

(C.D. ill. Nov. 25, 1991 at 2); (C.D. Ill. June 20, 1990 at 5)),

discovery focused on the same facts giving rise to this

case. Barbara Propst’s lawyer, who also represents Frank-

lin Propst, questioned deponents extensively about Bar-

bara Propst’s transfer and the circumstances surrounding

it.

Even with access to the complete evidentiary record

made in Franklin Propst’s case, Barbara Propst “does not

deny that the three administrators received reports of

growing dissension, of diversion of time from the Lab’s

work, and of plans to leave unless something were done.”

(App. 32). Not only did Barbara Propst fail to produce

any deposition testimony or a single affidavit as evidence

of improper motive, she also failed to file an affidavit

under Fed. R. Civ. P. 56(f) stating that she needed a

“continuance to permit affidavits to be obtained or depo-

sitions to be taken.” Monks v. Marlinga, 923 F.2d 423, 425

(6th Cir. 1991) (affirming summary judgment for defen-

dants-appellees where plaintiffs-appellants had “failed to

submit any affidavits whatsoever”).

This case is not a proper vehicle to address the

“heightened pleading standard” which was alluded to in

Siegert v. Gilley, 111 S.Ct. 1789, 1793 (1991). Justice Ken-

nedy, in a concurring opinion in Siegert, presented this

standard as a way to resolve, “the tension between the

rationale of Harlow and the requirement of malice.” 111

S.Ct. at 1795. The promise made in Harlow, that defen-

dants entitled to qualified immunity would not be sub-

jected to discovery, conflicts with the need to establish

improper intent in certain constitutional causes of action.

That perceived conflict is not present in this case.

‘

10

Here, Barbara Propst has already had access to, and

the use of, substantial document and deposition discovery

relating to the transfer of her husband and her. She has

had the opportunity to probe the University Administra-

tors’ motives in depth. Accordingly, there is no concrete

circumstance in this petition for this Court to decide how

to reconcile Harlow’s promise cf protection from discov-

ery with the requirement of improper intent. The Univer-

sity Administrators have already been subjected to

extensive discovery. In support of their motion for sum-

mary judgment in this case, the University Administra-

tors filed 35 pages of testimony from Berdahl’s

deposition, 32 pages from Weir’s deposition, 18 pages

from Barbara Propst’s deposition, 33 pages from Franklin

Propst’s deposition, 38 pages from Liebman’s deposition,

4 pages from Bitzer’s deposition, and several exhibits and

discovery documents.

P

Judge Phillips, concurring in the Fourth Circuit’s per

curiam judgment in Collinson v. Gott, 895 F.2d 994, 1002

_(4th Cir. 1990), stated that he did not believe that requir-

ing plaintiffs to point to specific evidence of improper

intent necessarily imposed a “higher than ordinary stan-

dard on plaintiffs opposing summary judgments”. Judge

Phillips stated that such a requirement:

Simply provides that plaintiffs cannot rely on

merely conclusory assertions of unconstitutional

motive in this context. In this, it seems to me to

be well within established procedures under

Fed. R. Civ. P. 56, particularly in the aftermath of

Celotex and Liberty Lobby. If it does represent a

heightened standard, however, I agree with the

Pueblo court that it is justified as a necessary

means for vindicating immunity principles.

11

895 F.2d at 1002. Because one of the elements of Barbara

Propst’s claim is improper intent, her failure to bring

forward any evidence of improper motive is a failure to

“present evidence from which a jury might return a ver-

dict in [her] favor.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 257 (1986). Barbara Propst has not met the

_ ordinary standard imposed on plaintiffs opposing sum-

mary judgment.

If a heightened pleading standard were applied in

this case, Barbara Propst could not meet it. But it is not

necessary in this case to establish a heightened standard.

Barbara Propst failed to meet the traditional summary

judgment standard after having had access to voluminous

discovery materials. Although the Court may desire to

clarify whether a heightened pleading standard is

required, such a clarification in this case would not be

appropriate.

III. Supreme Court Review Is Not Warranted

Supreme Court Rule-10 sets forth the character of

reasons for granting certiorari. No such reasons are

present in the instant case. Petitioner has not cited any

conflict between the Court of Appeals decision in this

case and the decision of any other Court of Appeals.

There are no state court decisions that are applicable to

the issues presented. The Seventh Circuit’s decision in

this case is consistent with traditional legal principles,

long-settled by this Court. The potentially important fed-

eral !aw question raised by the Siegert decision does not

present a live controversy in this case.

12

This case breaks no new ground. The Seventh Circuit

properly applied the objective qualified immunity test to

administrators who, though not present in the workplace,

had to balance competing interests based on the facts as

reported to them. Confronted with a substantial showing

by the University Administrators that they acted in an

objectively reasonable manner, Barbara Propst introduced

no evidence to support her allegation of improper

motive, even after access to substantial discovery. The

Seventh Circuit properly ruled that the University

Administrators were entitled to summary judgment

based upon the qualified immunity defense. No Supreme

Court review is required or appropriate.

ae -

13

CONCLUSION

For these reasons, Barbara Propst’s petition should be

denied.

ARNOLD F. BLOCKMAN

JEROME P. LYKE

HaTCcH, BLOCKMAN,

McPHETERS, FEHRENBACHER

& LykE

i115 N. Neil, Suite 309

Champaign, IL 61820

Telephone: (217) 356-2577

Attorneys for Respondent

Judith S. Liebman

JAMES KEARNS

BRADFORD J. PETERSON

Heyt, Royster, VOELKER

& ALLEN

300 County Bank Plaza

Urbana, IL 61801

TMephone: (217) 344-0060

Attorneys for Respondent

Morton W. Weir

Respectfully submitted,

MicHaeL M. Conway*

Jutie Gace PALMER

Hopkins & SUTTER

Three First National Plaza

Chicago, IL 60602

Telephone: (312) 558-6600

Attorneys for Respondent

Robert M. Berdahl

Dated: January 2, 1992

*Counsel of Record