Opposition Brief — Tinley Park Community Consolidated School District No. 146 v. Jennings

(»,) Supreme Court, U.S,

0 FILED

No. 86-1423 MAR 27 98T

NiOL, JR,

CLERK

In THE

Supreme Court of the Anited States

Octoser TERM, 1986

TINLEY PARK COMMUNITY CONSOLIDATED SCHOOL

DISTRICT NO. 146; ROBERT W. PROCUNIER, Superintendent

of Community Consolidated School District No. 146;

and THE BOARD OF EDUCATION OF COMMUNITY

CONSOLIDATED SCHOOL DISTRICT NO. 146,

Petitioners,

Vv.

KATHRYN M. JENNINGS,

Respondent.

On Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Seventa Circuit

RESPONDENT'S BRIEF IN OPPOSITION

DIANE I. JENNINGS

Couiisel of Record

LORD, BISSELL & BROOK

115 South LaSalle Street

Chicago, Illinois 60603

(312) 443-0694

Counsel for Respondent

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

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QUESTIONS PRESENTED

I. Should the Circuit Court of Appeals assume the role

of fact-finder when the District Court fails to make the

written findings of fact and conclusions of law required

by Federal Rule 52, and the District Court’s minimal oral

findings are so conflicting as to make it impossible to dis-

cern the basis for that court’s decision?

II. May an employer unilaterally declare an employee

outside the protection afforded by Title VII by claiming

that her lawful participation in activities opposing sex dis-

crimination caused the employer to “lose trust and con-

fidence” allegedly necessary to the employee’s position?

ii

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED .................. i

TABLE.OF AUTHORITIES «ins ccccces canes iii

STATEMENT OF THE CASE ............... 1

REASONS WHY THE WRIT

SHOULD BE DENIED:

A.

THE SEVENTH CIRCUIT’S REMAND OF

THE INSTANT CASE BECAUSE THE DIS-

TRICT COURT’S CONFLICTING AND CON-

FUSING ORAL FINDINGS OF FACT AND

CONCLUSIONS OF LAW NEED CLARIFICA-

TION IS NOT A MOMENTOUS LEGAL ISSUE

WORTHY OF THIS COURT’S REVIEW .... 9

B.

THE PROTECTION OF TITLE VII IS AF-

FORDED TO ALL EMPLOYEES WITHIN THE

PROTECTED CLASS, NOT LIMITED TO

THOSE OCCUPYING MENIAL POSITIONS .. 12

CAVING 00k Sh cnc levees ees aaa ees 15

ill

TABLE OF AUTHORITIES

Cases PAGE

Connick v. Myers, 461 U.S. 138 (1983) ........ 18, 14

E.E.0.C. v. Crown Zellerbach Corp., 720 F.2d 1008

I I a tg id dala «ew s's Ss Rig nid cae 13

Hochstadt v. Worcester Foundation, 545 F.2d 222

ye che ra ks eascdnssedbesvess 14, 15

McDonald v. United Air Lanes, Inc., 745 F.2d 1081

CPR MS RMD Sees 8 eh SW dcccssccvescass 11

Pickering v. Board of Education, 391 U.S. 563

Oe ia ea ncnas saves yp bss 13, 14

Texas Department of Community Affairs v. Bur-

Ge Ae ae. BOS CIBBD). on ccc cccccesccee 12

Statutes

Section 704(a) of the Civil Rights Act of 1964, 42

US.C.A. $2000e-Ma) (1961) ...:............ 1, 12

ar.

In THE

Supreme Court of the Anited States

OctosEer Term, 1986

TINLEY PARK COMMUNITY CONSOLIDATED SCHOOL

DISTRICT NO. 146; ROBERT W. PROCUNIER, Superintendent

of Community Consolidated School District No. 146;

and THE BOARD OF EDUCATION OF COMMUNITY

CONSOLIDATED SCHOOL DISTRICT NO. 146,

Petitioners,

Vv.

KATHRYN M. JENNINGS,

Respondent.

On Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

RESPONDENT'S BRIEF IN OPPOSITION

STATEMENT OF THE CASE

This action, brought pursuant to Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e et seg., involves al-

legations of sex discrimination in employment and Plaintiff-

Respondent Kathryn M. Jennings’ wrongful discharge in

retaliation for her activities in opposition thereto. Mrs.

Jennings’ First Amended Complaint alleged in pertinent

gullies

part that the ali-female secretaries employed by Defendant-

Petitioner Tinley Park Community Consolidated School

District No. 146 were discriminated against in the terms

and conditions of their employment, including the denial

of premium overtime wages when such wages were paid

to the all-male custodians employed by District 146. It

was further alleged that Mrs. Jennings engaged in activ-

ities opposing these perceived discriminatory practices on

June 1, 1979, and was thereafter subjected to repeated

harassment by her supervisor, Defendant-Petitioner Robert

W. Procunier, culminating in her discharge on June 15,

1979. (R. 11.)

The issues were tried before Judge Thomas R. McMillen

of the United States District Court for the Northern Dis-

trict of Illinois, Eastern Division, on May 1-3, 1985. At

the close of all the evidence, the District Court entered

judgment for Defendants (R. 115), but failed to make the

written findings of fact and conclusions of law required

by Rule 52 of the Federal Rules of Civil Procedure. Mrs.

Jennings appealed that decision to the United States

Court of Appeals for the Seventh Circuit.

On appeal, the Seventh Circuit rioted that the District

Court’s minimal oral findings ~ a regard to the alleged

sex discrimination in Defendants’ admitted policy of refus-

ing to pay the all-female secretaries overtime wages were

“not as clear as they might be.” Nevertheless, after “‘in-

terpreting and restating” the District Court’s findings, the

Seventh Circuit affirmed the ruling that Defendants had

established a legitimate, nondiscriminatory reason for pay-

ing custodians for overtime but not secretaries. (Slip Op.

at 4-7.)

On the issue of retaliation, however, the lack of proper

findings of fact and conclusions of law left the Seventh

Circuit in doubt as to whether the District Court had em-

allen

ployed the proper standard of law, and unable to discern

the factual basis for the District Court’s ruling because

of the conflicting findings stated orally. (Slip Op. at 9-10.)

Accordingly, the Court vacated the judgment in favor of

Defendants and remanded the case for further findings

rather than attempting to decide the case on the inade-

quate record generated by the District Court. (Slip Op.

at 11-12.) The majority declined to follow the dissent’s sug-

gestion that the Court of Appeals presume that the Dis-

trict Court applied the correct standard of law and make

the findings of fact that the District Court failed to make.

(Slip Op. at 12-19.)

Defendants’ Petition for Rehearing and for Rehearing

en banc was denied when no judge in active service re-

quested a vote thereon, and all of the judges on the original

panel, including the dissenting justice, voted to deny a

rehearing.

The facts which led the Seventh Circuit to question

whether Defendants had presented a legitimate, nondis-

criminatory reason for firing Mrs. Jennings are set forth

in the Court’s opinion. Defendants’ recital of ‘additional

facts” at pages 4 to 7 of their Petition are not taken from

any findings of the District Court, because no proper find-

ings were made; nor do they represent findings of the

Seventh Circuit, because that Court declined Defendants’

invitation to act as fact-finder. Instead, the “facts” stated

are nothing more than Defendants’ argumentative inter-

pretation of some of the evidence presented. In order to

balance Defendants’ one-sided recital, and to illustrate why

the Seventh Circuit questioned the District Court’s deci-

sion, Mrs. Jennings presents the following statement of un-

disputed facts established at trial which Defendants have

completely omitted from their statement to this Court:

ih

Defendant School District 146 employed two groups desig-

nated as Class I employees, secretaries and custodians.

(R. 122, Pl. Ex. 13 at 3.) The “secretarial”? employees

were all female, and performed such varied duties as sec-

retary, bookkeeper, switchboard operator, and printing

press operator. (R. 91; Tr. 274, 185, 379-80.) The “‘cus-

todial’’ employees were all male, and performed cleaning,

snow removal, landscape maintenance, and furniture in-

stallation. (R. 91.) During her term of employment, from

November 15, 1973 to June 15, 1979, Mrs. Jennings was

classified as a secretary, and worked as Defendant Pro-

cunier’s secretary, in addition to serving as recording sec-

retary of the Defendant Board of Education for separate

compensation. (Tr. 21, 23.)

As early as February, 1978, Procunier, chief administra-

tive officer of the District, was informed that the secre-

taries were concerned about the disparate treatment ac-

corded them in relation to the custodians, but his sole re-

sponse was: “That’s what the Board [of Education] wants.

C’est la guerre.”’ (Tr. 169-70.) When conditions did not

change, in 1979 the secretaries began a series of unproduc-

tive meetings with a member of the School District’s ad-

ministrative staff, Assistant Superintendent Noel Swin-

ford, to express their concerns regarding the disparity in

pay and working conditions between secretaries and cus-

todians, including the School District’s repeated refusal

to compensate secretaries at all for overtime worked,

while paying custodians for overtime at a rate of 142 times

their hourly rate of pay. (R. 91, 122; Tr. 58-60.)

An express procedure in the District’s employee hand-

book provided that, if employees were not satisfied with

the responses to their grievances, they had a right to ad-

dress their concerns to the next higher authority until the

matter was resolved. (Pl. Ex. 13 at 12.) Nevertheless, al-

—§—

though Mrs. Jennings told Procunier of the secretaries’

dissatisfaction with Swinford’s responses (R. 91; Tr. 110),

Procunier refused her repeated requests that he meet

with the secretaries and address their concerns. (Tr. 69.)

In May, 1979, Procunier promulgated a salary schedule

for the 1979-1980 fiscal year which continued the perceived

disparity between secretaries and custodians. (R. 122, PI.

Ex. 2 at 2.) He was informed of the secretaries’ opposi-

tion, but again refused to meet with them. (Tr. 69.) Ac-

cordingly, because the administrative staff through the

highest level failed to respond to their grievances, on the

date that Procunier’s proposed salary schedule was to be

presented to the Board a group of secretaries attended

the Board meeting and expressed their concerns. (R. 91;

Tr. 73-74, 404.) The Board did not respond, but instead

went into executive session with Procunier, then returned

to open meeting and passed his salary schedule without

comment. (Tr. 74-76, 404.) After the meeting, the secre-

taries decided to prepare a salary study and further ex-

plain their concerns to the Board in writing. (Tr. 224, 226,

259.) Mrs. Jennings also tried to make her individual feel-

ings known to the Board by resigning as recording secre-

tary, but Procunier would not accept her resignation and

withheld her letter of protest from the Board until he de-

cided to fire her. (Tr. 181-182, 105.)

The secretaries prepared a document entitled “P.S.:

Salary Study” which contained a detailed comparison of

the salaries paid to secretaries and custodians (R. 122,

Pl. Ex. 4) and attached thereto the minutes of their meet-

ings with Swinford regarding the lack of overtime pay.

(R. 91.) The study was delivered simultaneously to Pro-

cunier and the members of the Board of Education on

June 1, 1979. (R. 186-8.) Defendants now concede that

there was no policy prohibiting staff members from com-

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municating directly with the Board in this manner, and

the District Court found that they had every right to do

so. (Tr. 368, 456.) Defendants further admitted that de-

livery of the salary study in no way disrupted the School

District’s business. (Tr. 419.)

When Procunier received his copy of the salary study,

he was upset by its contents and became extremely agitated

when he learned that it had been given to the Board. (Tr.

81-83, 282.) At a meeting with the secretaries four days

later, he berated them for not giving him the study, and

accused them of giving it to the Board “to hurt him”’ (Tr.

87-88), threatening that “now no one would get anything.”

(Tr. 90-91, 247-50.) Procunier also gave the secretaries his

own salary study which attempted to justify the salaries

he had recommended to the Board, and admitted that, had

he received the secretaries’ study in advance, he probably

would not have given it to the Board. (Tr. 91-93, 246.)

It was not unusual for Procunier to withhold information

from the Board (Tr. 249, 257), as he did Mrs. Jennings’

letter of resignation.

It was stipulated that Mrs. Jennings possessed and uti-

lized outstanding skills and performed her work well both

before and after the June 1, 1979 salary study, and that

Defendants had no reason to fire her based on her job

performance. (R. 91; Tr. 433.) Further, despite his claimed

loss of trust and confidence, Procunier admitted at trial

that he had no reason to believe at any time during her

employment that Mrs. Jennings would ever disseminate

confidential material from his office (Tr. 424-427), and

acknowledged that she was not required or expected to

tell him everything, and that it was not her habit to de

so. (Tr. 319, 427-29.)

Nevertheless, after June 1, 1979, Procunier’s attitude

toward Mrs. Jennings changed completely. Whereas before

Po

that date, he had her open his mail and bring it in so

that they could go through it together, after June 1 he

had her just leave the mail, and even removed a chair

from his office so that she would have no place to sit.

(Tr. 100.) However, he still had her open the mail. (Tr.

100, 316.) He instructed her not to answer incoming calls

on his personal telephone line, although she continued

to handle all business calls. (Tr. 100.) Previously, Mrs.

Jennings had brought business related problems in the

office to Procunier’s attention, such as the practice of pay-

ing salaries out of the imprest fund without deducting

federal taxes, in contravention of an express Board direc-

tive. (Tr. 122, 127, 140.) After June 1, Procunier was

resentful of such things and implied that Mrs. Jennings

was being a “tattle-tale.” (Tr. 100.) Throughout the period

from June 1 until Mrs. Jennings was fired on June 15,

Procunier continued to harp on the theme that delivery

of the salary schedule to the Board was done to hurt him.

(Tr. 101.)

On June 13, 1979, Procunier called Mrs. Jennings into

his office and told her that he no longer trusted her, and

that he felt that by permitting her to attend the secre-

taries’ meetings, he had given them the erroneous impres-

sion that he approved of their meetings. (Tr. 103.) After

Mrs. Jennings’ discharge, those meetings ceased. (Tr. 331,

412.) Further, Mrs. Jennings informed Procunier on June

13 that one reason the secretaries had not given him the

salary study in advance was their concern that he would

not give it to the Board. (Tr. 196, 313.) Despite being re-

minded of his statement on June 5 that he probably would

not have permitted the study to go to the Board, Pro-

cunier indicated that he expected Mrs. Jennings to tell

the secretaries that he would have done so. (Tr. 313-14.)

af

Finally, on June 15, 1979, Procunier again called Mrs.

Jennings into his office at the end of the day, told her

he felt that she was not “loyal and supportive,” and

stated that he would recommend to the Board that she

be terminated. (Tr. 105.) At trial, Procunier stated that

he did not fire Mrs. Jennings because she disagreed with

his policies, but acknowledged that he fired her when she

did something about that disagreement. (Tr. 283-284.) He

further testified that Mrs. Jennings was fired because she

did not inform him that the secretaries were taking their

salary study to the Board (Tr. 314), and “partially” be-

cause he lost trust in her. (Tr. 427.)

The District Court found that Mrs. Jennings at all times

acted in good faith and reasonably believed that Defen-

dants’ policies were discriminatory (Tr. 372), and that she

had established a strong prima facie case of retaliatory

discharge. (Tr. 452.) The court further found that the ac-

' tivities in question violated no rule or policy of her em-

ployer (Tr. 368, 456), and Defendants admitted that those

activities did not disrupt their business. (Tr. 419.)

It was unclear, however, what legitimate nondiscrimina-

tory reason for her discharge the District Court found had

been articulated in ruling in favor of Defendants. As noted

by the Seventh Circuit:

“The district court stated that the reason she was

‘was that she went over his head. . . and

thereby lost his trust and confidence.’ Tr. at 368. Yet

at another point the court stated that ‘he was not op-

ager ga pr eal ory Aan Board... .’

at 456. At sill another point the court refers to

a ‘personality conflict that developed rather _.

triggere red, perhaps, by the fact that he felt s

ot ing fair with him and taking this matter direct-

ly to the Board without discussing it with him or ask-

ing him to submit it to the Board.’ Tr. at 457.” (Slip

Op. at 9, n.3.)

San

Accordingly, the Seventh Circuit remanded the case for

further findings, stating as follows:

“Further, we think that there is some reason to

doubt whether defendant presented a legitimate, non-

discriminatory reason for the discharge. As the Ninth

Circuit has noted, almost every form of opposition

to an employment practice is in some sense disloyal.

See EEOC v. Crown Zellerbach Corporation, 720

F.2d 1008, 1014 (9th Cir. 1983). If mere ‘disloyal’ con-

duct could provide a legitimate basis for discharge,

the protection extended by section 2000e-3 would be

severely limited.

* * *

It is entirely possible that under all the circumstances

Procunier showed a ‘legitimate’ reason for the dis-

charge. But, because a sense of ‘disloyalty’ is inherent

in almost any assertion of Title VII rights, we think

it essential to determine whether the alleged disloyal-

ty here constituted a legitimate business reason under

the Crown Zellerbach test or was of a sort that is

not izable as a defensé to a retaliatory discharge

claim.” (Slip Op. at 10-12.)

REASONS WHY THE WRIT

SHOULD BE DENIED

A.

THE SEVENTH CIRCUIT’S REMAND OF THE INSTANT

CASE BECAUSE THE DISTRICT COURT’S CONFLICT-

ING AND CONFUSING ORAL FINDINGS OF FACT AND

CONCLUSIONS OF LAW NEED CLARIFICATION IS NOT

A MOMENTOUS LEGAL ISSUE WORTHY OF THIS

COURT'S REVIEW.

Defendants’ vehement assertions to the contrary not-

withstanding, the Seventh Circuit has not created any

new standard of proof in a Title VII action, nor did it

iil

shift the burden of persuasion to the Defendants. All that

the Court definitively decided was that it could not de-

cide at this point if the District Court’s ruling was right

or wrong because that court did not make the written

findings of fact and conclusions of law required by Rule

52, and its oral findings and conclusions left the Seventh

Circuit unable to determine what the basis for the rul-

ing was, because the District Court’s findings kept chang-

ing depending on its then prevailing view of the law.

The Seventh Circuit had every reason to believe that

Mrs. Jennings was discharged for a reason prohibited by

Title VII, namely, because she went over Procunier’s head

and took her complaints regarding discriminatory prac-

tices directly to the Board, thereby incurring Procunier’s

enmity. Indeed, the following undisputed evidence com-

pelled such a finding:

1. Taking the salary study directly to the Board was

perfectly proper and in keeping with District 146’s

own internal guidelines for taking grievances to the

next higher authority if an employee was dissatisfied

pi response at lower levels in the chain of com-

mand;

2. Far from showing that he had any legitimate ex-

pectation, or had even asked that Mrs. Jennings act

as a spy and inform him of the secretaries’ planned

protest, Procunier himself testified that Mrs. Jennings

was not in the habit of telling him everything, and

it was not a requirement of her job that she do so;

3. Procunier was in fact iniurmed of the existence

and delivery of the salary study (just not in time to

stop it), and in any event was well aware of its con-

tent since he had already heard and not only refused

to redress each of the complaints therein, but also

refused to even meet with the secretaries in con-

travention of the District’s own policy for handling

grievances;

="

4. During a lengthy diatribe berating their action,

Procunier told the secretaries that, had he been in-

formed of its existence in advance, their salary study

would never have reached the Board, and now “none

of them would get anything’;

5. The study opposed the precise practices which

Procunier advocated;

6. Procunier coi.uplained that the secretaries’ action

was done to “hurt” him and “make him look bad,”

and that, by “permitting” Mrs. Jennings to partici-

pate in their meetings, he might have given the sec-

retaries the erroneous impression that he approved

of their activities;

7. Contrary to his claimed loss of trust and con-

fidence, Procunier acknowledged that he did not be-

lieve, either before or after the salary study, that

Mrs. Jennings would violate her position and dissemi-

nate confidential information; and

8. Mrs. Jennings’ discharge effectively put an end

to meetings among the secretaries to discuss and

seek redress of their grievances.

Thus, it appeared to the Seventh Circuit that the Dis-

trict Court’s decision was based on a legally insufficient

excuse for firing Mrs. Jennings and amounted to retali-

atory discharge. Nevertheless, it exercised restraint and

declined to engage in the type of fact finding which De-

fendants would have this Court indulge in—a function

more properly left to the District Court. See McDonald

v. United Air Lines, Inc., 745 F.2d 1081 (7th Cir. 1984)

(remand appropriate where District Court fails to provide

adequate findings of fact or conclusions of law).

The standard applied by the Seventh Circuit in remand-

ing this case for further findings is precisely that man-

dated by this Court, namely, that Defendants must articu-

late a legitimate nondiscriminatory reason for Mrs. Jennings’

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discharge, i.e., one which is legally sufficient to justify

a verdict for Defendants if unrebutted. (Texas Department

of Community Affairs v. Burdine, 450 U.S. 248, 254-55

(1981).) Based on that standard, the Seventh Circuit de-

cided that the District Court’s decision might be wrong

as a matter of law, but Defendants should be given the

benefit of the doubt in light of the poor record generated

by the District Court. There is nothing in that decision

deserving of review by this Court.

B.

THE PROTECTION OF TITLE VII IS AFFORDED TO

ALL EMPLOYEES WITHIN THE PROTECTED CLASS,

NOT LIMITED TO THOSE OCCUPYING MENIAL POSI-

TIONS.

What Defendants are really seeking in this case is ap-

parent at pages 12-14 of their Petition. Under the guise

of complaining of an “improper standard” created by the

Seventh Circuit, Defendants are asking this Court to en-

graft an exception onto Title VII and hold, not only that

some conduct in opposition to discriminatory practices is

not protected by section 2000e-3 (42 U.S.C.A. § 2000e-3

(1981) (i.e., conduct that disrupts the employer’s business),

but also that some persons otherwise within the class pro-

tected by Title VII nonetheless may be discharged for

engaging in protected activities.

Defendants do not now dispute that the activity engaged

in was one protected by Title VII. Instead, they urge that

they could lawfully discharge Mrs. Jennings for her par-

ticipation therein because she allegedly held a position re-

quiring “trust and confidence,” and her involvement in

the protected activity caused her employer to lose its

“trust and confidence.” However, they do not cite any

case hold'ng that the protection afforded by Title VII is

ae

limited to low level positions. There are none, because

their theory is the antithesis of Title VII.

Title VII is designed to allow employees to advance in

the marketplace unhandicapped by discrimination based

on race, religion or sex. But under Defendants’ theory,

once employees make any gains and move beyond the

most menial positions, they are stripped of Title VII’s pro-

tection, doomed thereafter to suffer discrimination im

silence because the very positions they attained under the

aegis of Title VII have now made them fatally vulnerabie

to claims that their “disloyalty” in opposing their em-

ployers’ discrimination caused a “loss of trust and con- -

fidence.”’ Title VII contains no such restrictions, nor is

there any case which would support Defendants’ astound-

ing view that its protection does not extend equally to

employees who occupy positions of “trust and confidence.”

Mrs. Jennings is no more required to tolerate unlawful

practices than were the “factory line workers and manu-

facturing employees” in E.E.0.C. v. Crown Zellerbach

Corporation, 720 F.2d 1008 (9th Cir. 1983).

Faced with a lack of Title VII case law to support their

unique theory of law, Defendants suggest that this Court

apply two First Amendment/Freedom of Speech cases,

Pickering v. Board of Education, 391 U.S. 5638 (1968) and

Connick v. Myers, 461 U.S. 138 (1983) to their version

of the “facts.” Those cases, however, are clearly inap-

posite. Governmental bodies suffer a unique handicap in

their role as employers because of the First Amendment

prohibition against abridging any person’s right of free

speech. Private employers suffer no such restrictions, and

tension inevitably arises between the government’s rights

as an employer, and the employee’s rights as a citizen.

The cases cited by Defendants involve an attempt to bal-

ance those interests and decide what type of speech is

protected and in what context.

ath...

Under Title VII, however, Congress has prescribed pre-

cisely what “speech” is to be protected, namely that in

opposition to discriminatory employment practices, and it

applies to all employers, private and governmental alike,

and it applies to all employees, menial as well as those

in “positions of trust and confidence.” This was not a

First Amendment case (as Defendants repeatedly reminded

the Seventh Circuit in their brief and argument before

that Court, even conceding that, if it were, they would

lose), and neither Pickering nor Connick protects Defen-

dants from their violation of the express mandate of Title

VII.

Defendants also rely on Hochstadt v. Worcester Founda-

tion, 545 F.2d 222 (1st Cir. 1976) as a case involving “dif-

ferent treatment of protectable interest for employees who

enjoy a confidential, close-working relationship with their

employer.” (Def. Pet. at 13.) Hochstadt, however, was con-

cerned with what conduct is protected by Title VII, not

what employees are protected. That case merely stands

for the proposition that Title VII does not give any em-

ployee carte blanche to engage in any activity she chooses

under the guise of opposing discriminatory practices. An

employee cannot allow her opposition activities to interfere

with her work, and in Hochstadt the plaintiff's conduct

was simply “beyond the pale” (545 F.2d at 230) in that

she disrupted meetings, engaged in personal confronta-

tions with supervisors, spread false rumors which drove

employees away, and in every way became totally ob-

sessed with her discrimination claims to the point where

it disrupted the work of an entire institution. Here, in

contrast, it has been stipulated that Mrs. Jennings was

an outstanding employee, that there was no reason to dis-

charge her based on her job performance, and that tak-

ing her complaints of sex discrimination direetly to the

it~

School Board was perfectly proper under the School Dis-

trict’s own guidelines regarding handling of employee

grievances and in no way disrupted the School District’s

business.

In effect, what Defendants propose is that they had a

legitimate reason to fire Mrs. Jennings because Procwnier

disrupted her work; that Mrs. Jennings, who continued

throughout to perform in an outstanding manner, was right-

fully disciplined because of Procunier’s irrational behavior

in disrupting his office routine because the secretaries

“went over his head” to the Board of Education. Pro-

cunier may have been guilty of the type of excessive be-

havior found to justify discharge in Hochstadt, but it has

been stipulated that Mrs. Jennings was not. Indeed, there

is no case which even suggests that the hapless victim

should be discharged because her lawful activities pro-

voked retaliation by an out-of-control supervisor.

CONCLUSION

Se

There is nothing in the instant case worthy of this

Court’s review, because the only ruling made thus far is

that the District Court’s conflicting findings of fact and

unclear but seemingly infirm conclusions of law are in-

adequate for purposes of review. Defendants’ assertions

that the Seventh Circuit fashioned some new standard for

Title VII cases, or somehow shifted the burden of proof

to them is plainly unfounded, and is no more than an ex-

cuse to ask this Court to do what the Seventh Circuit

‘refused to do, namely, assume the role of fact-finder. In-

deed, what Defendants are seeking in the instant case is

~1-

to carve out an exception to Title VII which would allow

them to deny some employees the protection clearly af-

forded by that law. There is nothing in the cases cited,

nor in the purposes of Title VII, which would support

Defendants’ request for such a radical change in the law.

To the contrary, the rule proposed by Defendants would

virtually destroy Title VII’s ban on retaliation against

employees who engage in lawful activities designed to

secure the rights promised by that statute, and simply

cannot be the law.

Respectfully submitted,

DIANE I. JENNINGS

Counsel of Record

LORD, BISSELL & BROOK

115 South LaSalle Street

Chicago, Illinois 60603

(312) 443-0694

Counsel for Respondent

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