# Opposition Brief — Tinley Park Community Consolidated School District No. 146 v. Jennings > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1913%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1987 - **Citation:** 481 U.S. 1017 ## Text (»,) 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 . , / i see ‘ = s & " : ee : * £m, % x voi e % a a " $ i 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- - = 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’ = 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 % --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1913%3A2. Public record. Not legal advice.