Petition for Writ of Certiorari — Mann v. City of Chicago

Dui T

(') FILED.

96 260 AUG 15 19%

OFFICE OF THE CLERK

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1996

BEVERLY B. MANN,

Petitioner,

Vv.

THE CITY OF CHICAGO, JAMES MONTGOMERY,

JAYNE BARNARD AND TIMOTHY O’HARA,

Respondents.

On petition for writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Beverly B. Mann

7261 North Campbell Avenue

Chicago, Illinois 60645

(312) 465-4587

Petitoner Pro Se

/del pp

QUESTIONS PRESENTED

QUESTION 1

Does the use by a federal court of appeals of a circuit

rule that permits the resolution of appeals by unreported order

that will apply only in that lawsuit, rather than by reported

opinion, constitute an unconstitutional denial of the right to due

process of law as guranteed by the Fifth Amendment to the

Constitution if the unreported order effectively declares a

previously nonexistent rule of law either by contradicting

existing law or by resolving a question of first impression?

QUESTION 2

Does an unreported appellate order that without

comment affirms summary judgments and a bench verdict

constitute an unconstitutional denial of due process of law

because it fails to inform the appellant of the bases for the

rulings, because it lacks any evidence of actual consideration by

that court of the grounds for appeal, and because it significantly

impairs the appellant’s opportunity to successfully petition this

Court for review?

QUESTION 3

Does an appellate opinion or appellate order that

without comment affirms summary judgments fail, by its

absence of explanation for the rulings, to meet the de novo

standard of review of summary judgments?

QUESTION 4

Does application of the “clear error” standard of

appellate review of a bench verdict require that the appellant

show clear error concerning the ultimate judgment itself, or is

the appellant entitled to a new trial upon a showing of clear

li

error throughout the judge’s summary of the evidence upon

which the judge states the verdict is based?

QUESTION 5

Are district judges in their Findings of Fact and

Conclusions of Law that resolve bench trials required to

provide a reasonably accurate summary of the trial record and

base their trial verdicts upon the actual evidence in the trial

record?

UESTION 6

Is a district judge entitled to base a bench verdict upon

evidence that exists nowhere in the record of the case (or

anywhere else) and upon a defense that the defendants

expressly had waived in order to exclude from the record the

defendant’s deposition testimony that explicitly contradicted

that earlier-proffered defense?

QUESTION 7

Are district judges entitled in their Findings of Fact and

Conclusions of Law that resolve bench trials to fail to

acknowledge admissions in the trial record by the losing party’s

opponent that explicitly contradict the judge’s stated findings of

fact?

QUESTION 8

Can a district judge prevent substantive appellate review

of the actual evidence presented at trial simply by stating in his

Findings of Fact and Conclusions of Law that the plaintiff

presented no evidence to support her claims?

QUESTION 9 |

In a wrongful employment discharge lawsuit brought by

a discharged government employee who alleges a violation of

—e lll

iil

her First Amendment right to free association, does testimony

by the defendant who discharged the plaintiff that impeaches or

retracts that defendant’s proffered lawful reason for the

discharge constitute evidence of unlawful motive for the

discharge?

ESTION 10

Can summary judgment properly be based upon a

finding of fact by another court in an unrelated lawsuit when

the losing party in the second lawsuit was not a party to the

first lawsuit (and was unaware of the first lawsuit) and when no

evidence of that purported fact exists in the record of the

second lawsuit?

QUESTION 11

Can summary judgment properly be based upon a

finding of fact never asserted by the winning party and cited sua

sponte by the district court only in a memorandum opinion filed

during the appellate process (upon remand ordering the district

court to state its reasons for entry of summary judgment), thus

affording the losing party no opportunity to introduce contrary

evidence into the record?

QUESTION 12

Do federal constitutional and statutory civil rights laws

that provide protections to employees exclude in-house

government or private-sector attorneys from those protections

by virtue of their status as attorneys?

QUESTION 13

Does the First Amendment’s guarantee of free

association to most government employees, as defined in Elrod

v. Burns, 96 S.Ct. 2673 (1976), Branti v. Finkel, 100 S. Ct.

iv

1287 (1980), and Rutan v. Republican Party of Illinois, 110

S.Ct. 2729 (1990), automatically exclude in-house government

attorneys from that guarantee, irrespective of the nature of the

attorney’s job duties and the attorney’s position within the

hierarchy of that government’s law department?

QUESTION 14

Is a party entitled to rely upon rules of law issved by

this Court to prove a legal claim, or must a party present expert

testimony to prove what this Court earlier found as a matter of

law?

UESTION 15

Can summary judgment properly be based upon a

district court’s de facto sua sponte motion made in a

memorandum opinion filed during the appellate process (upon

remand ordering the district court to state its reasons for entry

of summary judgment), which states that a claim was

insufficient because it lacked expert testimony to support it?

QUESTION 16

Are women litigators among those whose profession

requires aggressiveness to succeed and who therefore are

entitled to the protection of 42 U.S.C. 2000e ef seq. against

sex-based employment-related stereotyping?

TION 17

In a lawsuit alleging unlawful sex discrimination in

employment, is summary judgment in favor of the defendants

permissible when the plaintiff's complaint states a prima facie

case and the plaintiff submits as part of her response to the

summary judgment motion transcripts of deposition testimony

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in which the defendants impeach or retract each of their

proffered lawful reasons for the discharge?

UESTION 18

On counts for which a jury demand appropriately was

filed, does summary judgment constitute a violation of the

Seventh Amendment’s guarantee of a right to jury trial when

issues of material fact clearly exist and the district court’s

explanation for the summary judgments do not even address

those factual contoversies?

UESTION 19

In a lawsuit alleging unlawful sex discrimination in

employment, is summary judgment in favor of the defendants

permissible when the opinion granting the summary judgment

fails to acknowledge and address most of the claimed bases for

the discrimination claim?

TION 20

Does the blacklisting from employment elsewhere of a

former government employee by officials of that government

constitute an unconstitutional violation of due process of law?

QUESTION 21

Is a party to a lawsuit in federal court entitled in her

appellate briefs and in a letter to that court pursuant to 28

U.S.C. 372 to challenge the integrity and motive of the district

judge without effectively waiving her right to consideration of

her substantive grounds for appeal?

TABLE OF CONTENTS

QUESTIONS PRESENTED

Rete SEN Ree Kon ME StS a Mree j

TABLE OF COOOOTIIITS. 5 ree a vi

TAREE OF ALTIOMODITENS 5 rr ae xi

CPRUONS SRI Ss ee ee ee 1

STATEMENT OF RIRISDOCTOIN o.oo ai ee. 2

THE CONSTITUTIONAL PROVISIONS AT ISSUE. ..-..s.:ccsssccecesesesesesssesssssseesesseveeee 2

STATEMGINT OF THE CAQR occ ictea alle Gee ae 3

REASONS FOR GRANTING THE WRIT ..........cccscccccssccscccccosecccssecccoseccsseseccessessesssecce 20

I. SEVENTH CIRCUIT RULE 53 AS APPLIED IN

THIS MATTER CONSTITUTES A

VIOLATION OF DUE PROCESS OF LAW

AND A FAILURE TO COMPLY WITH THE

DE NOVO STANDARD OF APPELLATE 7

REVIEW OF SUMMARY JUDGMENTS ......-....cssssccssssesssssseesesecevssvevcesse 20

Il. THE AFFIRMATION OF A BENCH VERDICT

THAT WAS BASED UPON OBVIOUSLY

INACCURATE JUDICIAL REPRESENTATION

OF THE EVIDENTIARY RECORD NEGATES

THE VERY PURPOSE OFTHE FACT-

FINDING LITIGATION PROCESS AND

ALTERS THE STANDARD OF PROOF .....-ccssscssssccssssssssssecsssssecesseveseon 27

Ill. CRITICISM OF JUDICIAL CONDUCT

SHOULD NOT OPERATE AS A WAIVER OF

THE RIGHT TO MEANINGFUL

CONSIDERATION OF AN AIPPIBAL, .......cescccsssscesccrsccssssssssensessensssesensssens 29

Vii

iil RI a nnsonentaeernvenmnnenivenmseoaenina en 30

APPENDIX

Letter from the Clerk of the United States Supreme

Court re: extension of time to file petition

Cie SE TIE ics csn seas ss castsess sca ecseres wens ensnsnssecnencnnnsnnenennesonensnnecnnnorornnonnenters la

Order of the United States Court of Appeals

for the Seventh Circuit denying rehearing

Cllrs 1D, ADD) on acsasaceeocsvsnssesrsseacsnsecsopesvesseossssnnasesonsnnnesensnsnnensnnnensnenensanensocensneees 2a

Decision of the United

States Court of Appeals for the Seventh Circuit

(Jammary 19, 1996) ...........cscvssoecsessnsennssnssnssnesnnesnssenensnsnnssnnscnscnsenssonssnnscenennannnsesessete 4a

Decision of the United States District Court

for the Northern District of Illinois

(November 8, 1991) ..........scsceccessesesrseesnesnssnsnenenssnenesnenenens Pn enc een ey l4a

Decision of the United States Supreme Court

for the Northern Distict of Illinois

Circling UE, ROG casas nsec nsnenecansnenennnesnsnncennnscsrnanvensennnonnngnenennnnensnnnnocennnetes 19a

Portion of trial transcript

re: exclusion of evidence

idee IN adic tressanernsinrenn penetrate 30a

Transcript of proceedings before

Hon. Paul E. Plunkett

(Sept. 15, 1989) ec os sh ap taeadnensinesncarraeeagennmennenniarin rot 45a

Letters re: judicial conflict of interest

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"BEST AVAILABLE COPY®

Vili

Response re. judicial misconduct complaint ‘ = womans 69a

Book proposal/query letter

(February 7, 1994)

Vi siisiedaliniehpnikaaneanpubabesciiehediigbaiisaciaetee Adseunrebeaaidess selaaamcumnideaembaiia 71a

Literary agent contract

PR ay I epicccpurei arcs iacdaspnunactdasibacatimm trian obs aidadiiesainhe maar oa 77a

Commentary published in Chicago Daily Law Bulletin

CERIO T, TG PGD ci siteicccacinvntsiccseciinscssccesvincacspenciioneneseniscainpndetnionrcctiinedanbosentevasents 79a

Defendants’ Motion for Leave to Serve

Discovery Requests

GOI FIR PIED ccanecttenievitontssesecesisvieneciooseshncuendioies tehnbednntl selabisetaithicaiisnenattetetenackiansical 80a

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ix

TABLE OF AUTHORITIES

Board of County Commissioners v. Umbehr,

"2 AEE: cilia Sakipls cinisheneenseawouteaseeshavsses abbaxierevcavearsueiieussbanctacseye View Re Meee ler 29

Branti v. Finkel,

as I II no nis. osha ches soph astiedeens bbiieipaaecie vebapigernasiabeecsbsbanvanetpens ee 8

Elrod v. Burns,

Sr a 2 sli gucrndapaacirinasibene naliocuxednsesvaahersnyedse@ntiiias ee

Harris v. Forklift Systems, Inc.,

UN ae aS, cans saonanpedaareeesensvosanicenavavesvieivanereelncrs pasted , a 8

Kier v. Commercial Union Ins. Companies,

ee Be OE sch ise tants nthe cceeptececnntesniterinsunencnsintncanetpneertnnedtinbaniancenass eevee 18,19,24,25

Liljeberg v. Health Services Acquisition she

SE ee iets sdeh sas chedeck parce Sich pas teshsonsteycda snip coe tetgbebeqseatraenooserenses 16

Price Waterhouse v. Hopkins

Ie, FF Fe IE scsnsceisnzsctccecincsvnscéccsasessneccaessivesesvepssnsnescngconsecsacensntevanssdaeesspibgnenres 14,15,22-25

Rand v. CF Industries,

BE Oe FI le Ce irnsevcd snes cnccesocasescenngnsevsnnvspeossnsonassnscusicentaveoguessaretvercensscaaes 24

Salaried Employees of North America (SENA) v. Illinois

Local Labor Relations Board

ascii cousaecdnsaspranscsecnnsisesernionsncesenten 12,13

Shakman v. Democratic Organization of Cook County, Illinois,

I i nsinwnsaneddencncesebcrn crohns 4

Williams v. City of River Rouge,

SOP F.26 151 (GER Cir. 1990)......2...0...200000.ssccecceees. SLES MORE RE SSE CR SN 12,13,14

No. 96-

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1996

BEVERLY B. MANN,

Petitioner,

Vv

THE CITY OF CHICAGO, JAMES MONTGOMERY,

JAYNE BARNARD AND TIMOTHY O’HARA,

Respondents.

On petition for writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

The petitioner, BEVERLY B. MANN, respectfully prays

that a writ of certiorari issue to review the judgment and opinion of

the United States Court of Appeals for the Seventh Circuit entered

in the above-entitled proceeding on January 19, 1996.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Seventh Circuit has not beer reported.

The opinions of the United States District Court for the

Northern District of Illinois have not been reported

2

STATEMENT OF JURISDICTION

Original subject matter jurisdiction before the United States

District Court was based upon federal questions presented under the

First and Fourteenth Amendments to the Constitution of the United

States, Title 42 of the United States Code, Sections 1983 and

2000e, and Federal Rule of Civil Procedure 18(a). Jurisdiction was

conferred under Title 28 of the United States Code, Sections 1331

and 1343.

The district court entered a final judgment on February 10,

1992. Petitioner timely appealed this case to the Court of Appeals

for the Seventh Circuit pursuant to 28 U.S.C. section 1291. On

January 19, 1996, the Court of Appeals filed an unreported Order

resolving the issues raised on appeal.

Petitioner filed a timely petition for rehearing to the Court of

Appeals. That petition was denied on March 19, 1996.

On May 31, 1996, Justice Stevens ordered that the time for

filing this petition for writ of certiorari be extended to and including

August 16, 1996.

The jurisdiction of this Court is invoked under 28 U.S.C.

section 1254(1).

THE CONSTITUTIONAL PROVISIONS AT ISSUE

Constitution of the United States, Amendment I.

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging

the freedom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the

government for a redress of grievances.

Constitution of the United States, Amendment V.

No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, except in cases arising in the land or naval

forces, or in the Militia, when in actual service for the same

offense to be twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a witness against

3

himself, nor be deprived of life, liberty, or property, without

due process of law, nor shall private property be taken for

public use, without just compensation.

Constitution of the United States, Amendment VII.

In Suits at common law, where the value in controversy shall

exceed twenty dollars, the right of trial by jury shall be

preserved, and no fact tried by a jury, shall be otherwise re-

examined in any Court of the United States, than according

to the rules of the common law.

Constitution of the United States, Amendment XIV, Section 1.

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

Petitioner Beverly B. Mann was discharged from her

position as an assistant corporation counsel for the City of Chicago

in the fall of 1984, one and one-half years after the inauguration of

Chicago Mayor Harold Washington. She had been hired for the

position five years earlier directly by former Chicago Mayor Jane

Byme, with whom she had a family connection. Washington had

defeated Byrne in the mayoral primary election of 1983. Mann and

some of her family members had actively supported Byrne during

the campaign.

During all but Mann’s first week of employment with the

City of Chicago, she was assigned to the Torts Division of the

City’s Law Department. Her job duties consisted solely of defending

the City and its employees in personal injury and, occasionally, civil

rights matters. Her job category throughout her employment there

was non-supervisory and was included among those protected by a

federal court decree known as the Shakman consent decree, which

4

in relevant part confers upon persons holding certain specified

employment positions within the City of Chicago’s government

explicit protection from discharge for politically related motive.

The Shakman consent decree resolved a lawsuit brought i in

the early 1970s not by City employees but by a few persons running

for political office against local Democratic “machine” candidates.

The plaintiffs in that lawsuit claimed that the local patronage system

created a patronage army that almost necessarily resulted in the

election of the machine’s candidates. [See Shakman v. Democratic

Organization of Cook County, 481 F. Supp. 1315 (N.D. Ill. 1979)]

Immediately upon assuming office in April, 1983, Mayor

Washington appointed respondent James Montgomery, his friend

and one-time legal counsel, as the City’s corporation counsel.

Montgomery acknowledged in deposition and trial testimony in this

lawsuit that Mann’s job duties were unrelated to politics or

policymaking and that political affiliation was irrelevant to

competent performance of the job. He had, in fact, immediately

upon assuming office completed the negotiation of the pertinent

portion of the Shakman decree, which was intended to mirror the

dictates of Elrod v. Burns 96 S.Ct. 2673 (1976), and Branti v.

Finkel, 100 S.Ct. 1287 (1980); the inclusion of Mann’s job category

as among those protected by the decree therefore served as further

such acknowledgment by him

Montgomery also acknowledged in deposition and trial

testimony that as corporation counsel he did not object to the

patronage system in hiring attorneys for the City’s Law Department,

provided that the attorneys hired were qualified for the job. He also

acknowledged, again in deposition and trial testimony, that he made

the following statement to reporter Douglas Franz, then of The

Chicago Tribune, as reported in that newspaper in May, 1985:

You engage people who are known to you, whose

confidence is known to you. I don't know that it would

really be a wise thing for any politician to hire people who

are not in any way aligned politically to him. That would be

suicide.

Montgomery also testified that a draft speech titled

Patronage and Political Dismissals was written in his name and at

Oh ee ee eee

5

his direction in late 1984 by an attorney working under him in the

Labor and Personnel Division of the Law Department and

acknowledged that it contained the following passage:

As a practical matter, a public employer should never admit

to discharging an employee solely for his or her political

beliefs and should advise supervisors to keep quiet.

The passage a in a section a np ra

The rs was to be presented at a meeting ort the National

Association of Municipal Lawyers. Montgomery testified that he did

not actually give the speech, having become ill with the flu the day

before. He sent an assistant to speak in his place. Montgomery

testified that he never read the speech drafted for him.

During Mann’s entire tenure in the Torts Division, her

immediate supervisor was respondent Timothy O’Hara, whose title

was Chief Assistant Corporation Counsel in Charge of Torts. Mann

and O’Hara had had a somewhat tumultuous relationship

throughout Mann’s employment in the Torts Division. O’Hara

would provoke her into submitting her resignation or submitting a

divisional transfer request and then, as he admitted in testimony,

prevail upon her to withdraw her resignation or transfer request.

Shortly into Montgomery’s tenure as corporation counsel,

he hired respondent Jayne Barnard, a Harold Washington supporter

during the recent campaign and the wife of a friend of

Montgomery’s, as his deputy corporation counsel in charge of Law

Department personnel. Barnard was charged immediately with

hiring attorneys for the Law Department, although a hostile City

Counsel would not provide funding for additional attorneys.

Barnard nonetheless began in September, 1983 to interview job

candidates -- for non-existent job openings.

In early 1984, the City Counsel did approve funding for

more attorneys but, because of space limitations in the Torts

Division, Barnard could not place new attorneys there. She

acknowledged in testimony that she hired several attorneys during

the early months of 1984 with the promise that they would be

assigned to the Torts Division, the division they had requested,

EOE ———eESoO

6

when openings became available in that division. In late June, 1984,

the Torts Division moved to larger quarters and Barnard transferred

as many of the recently hired attorneys into the Torts Division as

space permitted. Space did not permit all of the attorneys hired with

the promise of assignment to the Tort Division to transfer into that

division, however.

Immediately upon assuming her job duties in August, 1983,

Barnard at Montgomery’s request created a job performance

evaluation system by which the division heads would submit written

evaluations of the attorneys they supervised. She instructed the

division heads on how to perform the evaluations. Montgomery, for

his part, informed the division heads that he expected some low

evaluations.

The evaluation system provided for no formal mechanism by

which the evaluated attorneys could challenge the evaluations, in

whole or in part.

The first set of job performance evaluations was written in

September, 1983. Among the chiefs of the approximately ten Law

Department divisions, only one, Timothy O’Hara, acceded initially

to Montgomery’s expressed expectation that he would be provided

with some low job performance evaluations for subordinate

attorneys. Montgomery acknowledged in testimony that he ordered

one of the other division heads to rewrite the evaluation of a

particular subordinate attorney to lower the evaluation, and told the

division head that he would be fired if he did not accede to the

demand.

O’Hara selected Mann as one of four attorneys to trash in

the evaluations, rating her as essentially incompetent in both sets of

categories: “job duties” and “personal characteristics.” On a scale

of “1” to “5S”, “5S” representing “excellent,” he rated Mann a “2’ in

the “trial” category, for example. he failed to rate her at all in some

important categories, such as “writing.” In the short space provided

for narrative comment, he wrote:

Attractive, very intelligent attorney. Seems to have missed

out on one step - (Can't put my finger on what it is). Wants

to succeed but won't take the hard risks? Should be able to

effectively help our office. Takes good depositions.

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7

Mann’s trial record, however, did not correspond accurately

to the rating; she had tried six cases to jury verdict and had obtained

a “not guilty” verdict for the City in four of them and a judgment

below the final pretrial demand in the other two. Nor did O’Hara’s

other ratings correspond accurately to Mann’s easily verifiable job

performance record.

She protested to O’Hara, who responded that he thought

she was very attractive. He also told her that Barnard had assured

him that this evaluation period was just a trial run and “will not be

used for anything.” There would be another evaluation in March,

he said, and his evaluation of her then would be better.

Mann complained to Barnard, at first orally and then in

writing. Mann’s written complaint, in a letter dated October 21,

1983, told Barnard (as did Mann’s earlier oral complaint) that there

was no correlation between O’Hara’s evaluations and the verifiable

performance record of the attorneys he evaluated. Orally, as

Barnard acknowledged in testimony, Mann told Barnard of

O’Hara’s repeated harassment of her. Barnard placed Mann’s letter

in her personnel file, but submitted O’Hara’s evaluation to

Montgomery with written comments indicating acceptance of them

as accurate. She admitted in testimony that she made no attempt to

verify their accuracy and did not know whether or not they were

accurate.

In January, 1984, ostensibly on the basis of that evaluation,

Mann was demoted and was relieved of her trial caseload. On June

1, 1984, she was denied a pay raise given to the other Torts

Division attorneys. O’Hara testified that he had recommended the

denial of the pay raise to Mann.

In late July, 1984, Barnard initiated the long-delayed second

round of Law Department job performance evaluations. This time,

O’Hara rated Mann competent in the “job duties” categories in

which he rated her at all. Again, he failed to rate her in some

obviously pertinent categories, and again he trashed her in the

“personal characteristics” categories. In answer to a question on the

evaluation form concerning whether the attorney being evaluated

was “ready to be assigned more difficult and challenging matters,”

aaa eens

8

O’Hara said Mann was not ready because she “is too hung up on

defending herself.”

In the space provided for narrative comment, he wrote:

Attorney is bright. A good legal mind. Unfortunately she

spends more time on her accomplishments to the detriment

of her assigned work.

Montgomery and Barnard testified that when O'Hara

submitted his performance evaluation of Mann, O'Hara

recommended that Mann not receive a pay raise for the coming

year.

On August 3, 1983, Montgomery decided to discharge

Mann ostensibly because of the two evaluations. Mann learned

informally of the decision and asked to meet with him. He agreed.

Mann repeated most of what she earlier had told Barnard about her

relationship with O’Hara, his harassment of her, her verifiable job

performance record. She also handed him a five-page, typed, single-

spaced summary of her job performance record, most of it

verifiable. Montgomery agreed to read it.

A few days later, Montgomery, Mann and O’Hara met

briefly. At the meeting, O’Hara praised Mann’s job performance.

Montgomery hinted that he would not discharge her. One month

later, on September 6, 1984, Barnard told Mann that Montgomery

had decided to fire her and that she must evacuate her office by the

| end of that day. Mann asked for an explanation. Barnard said she

would not provide one. Mann asked to meet with Montgomery,

who refused to meet with her.

Barnard ordered her secretary to type on Mann’s Exit

Interview report that Mann was “involuntarily terminated” for

“Inadequate performance of duties.” Barnard testified that the

statement was inaccurate and that Mann did not perform her duties

inadequately.

Montgomery acknowledged in deposition and trial testimony

that he "was aware" that O’Hara’s performance evaluations of

Mann were “not as candid as they could have been" and that Mann

“had good reason to bitch" about O'Hara's "treatment of her."

He testified that he discharged her nonetheless because she

had complained to him about the evaluations. Having given that

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9

testimony initially in his deposition, he acknowledged the statement

at trial but said he meant that Mann was complaining to him that

O’Hara’s evaluations of her were too high, not too low. The

following exchange ensued on cross-examination:

Q. Would you explain to me, Mr. Montgomery, why your

view that some of the evaluations were too high would give

Beverly Mann good reason to bitch, as you put it, about her

treatment?

A. I can't explain -- I can't answer that question.

Moments earlier, Montgomery had conceded that he

recognized that Mann was complaining not that her evaluations

were too high but that they were too low.

Montgomery also stated that he fired Mann because a judge

had complained to him about her conduct in a trial several years

earlier, which the judge said caused the Torts Division to routinely

file petitions for change of judicial venue (as allowed by Illinois

procedural law) on cases assigned to that judge. Montgomery

conceded, however, that O’Hara had told him that several other

Torts Division attorneys had had serious difficulty with that judge

and that he, Montgomery, was aware of the judge’s reputation

among Chicago lawyers for mental instability. Montgomery also

conceded that as a litigator he himself had had serious difficulty with

judges on occasion.

As for O’Hara, in both his deposition and trial testimony he

praised Mann’s job performance, describing it in one category after

another as “excellent,” “very good,” “better than average,” and the

like. He offered two reasons for his submission of the poor job

performance evaluations of her. He said he thought Mann was

afraid, or at least too hesitant, to try cases. He also said that some

judges had complained to him that Mann was “too aggressive,” “too

pushy,” in her manner in court.

Immediately after she was discharged, Mann retained

counsel, who negotiated an agreement by which Montgomery

would provide her with a detailed letter of recommendation and

personally respond to all inquiries about her from prospective

employers. Her- personnel file would indicate that the letter of

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10

recommendation supersedes the two performance evaluations. In

exchange, Mann would not file a lawsuit relating to her discharge.

Barnard drafted the detailed letter of recommendation,

which praised Mann’s job performance. Barnard testified in her

deposition that the statements in the letter were “factually” accurate.

Montgomery signed the letter but did not comply with the provision

that he himself respond to inquiries about Mann; he assigned that

task to Barnard, who made derogatory comments about Mann to a

prospective employer. Mann learned of the incident, suspected that

there had been similar incidents, and filed this lawsuit.

The operative complain‘ alleges violation of the Shakman

consent decree, the First Amendment right to free association,

denial by virtue of sex discrimination of the Fifth Amendment

guarantee of equal protection of the law, violation of 42 USC

2000(e) et seg., defamation, tortious interference with prospective

economic advantage and breach of severance agreement.

One month before trial, the district court entered summary

judgment in favor of the respondents on all federal counts except

the one alleging violation of the Shakman decree. The court

provided no explanation for its rulings, although Seventh Circuit

Rule 10 required an explanation.

The case was tried to a jury on the state-law counts alleging

defamation, tortious interference with prospective economic

advantage and breach of severance agreement, and to the bench on

the Shakman decree count..

A jury verdict was entered in favor of Mann on the count

alleging tortious interference with her job as a City assistant

corporation counsel and on the count alleging breach of severance

agreement. A jury verdict was entered in favor of the respondents

on the other state-law counts. The district judge entered a judgment

in favor of the respondents in the Shakman decree count and filed a

Findings of Fact and Conclusions of Law as explanation. [See

Appendix at 13a.]

The six-page Findings of Fact and Conclusions of Law

mentions almost none of the evidence that Mann recites in the

above paragraphs in this petition, notwithstanding that most of

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that evidence consisted of direct and directly pertinent admissions

by the respondents.

Moreover, two of the purported statements of fact that the

court claimed as grounds for its verdict were not alleged by the

respondents and no evidence exists in the trial record to support

those findings of fact.

One such claim was that Mann’s father met with former

Mayor Byme’s corporation counsel, Stanley Garber, to arrange a

pay raise for Mann that O’Hara had denied her in January, 1983,

Shortly before the primary election. The court viewed that as

evidence that Mann was incompetent in her job. Neither Mann’s

father nor Garber was a witness at trial (or in deposition) and no

one else testified to having heard such a conversation. (No such

conversation had occurred.)

Mann testified that O’Hara had obtained that pay raise for

Mann after she submitted her resignation, in exchange for her

agreement to withdraw her resignation. The district court’s

Findings do not acknowledge the existence of that testimony nor

O’Hara’s testimony that he had on several occasions persuaded

Mann to withdraw a resignation or transfer request she had

submitted.

The other claim was that Montgomery discharged Mann

‘because she did not want to try enough cases. Montgomery in his

deposition testimony had directly contradicted that finding, stating

that he agreed with Mann’s position and disagreed with O’Hara’s.

The court barred Mann from introducing that testimony into the

trial record, though, because the respondents expressly waived that

defense; the court ruled that the deposition testimony was irrelevant

in light of the waiver. Mann includes in her appendix the seventeen

pages of trial record in which this was discussed. [See Appendix at

30a. ]

The district court’s representation that Mann tried only two

or three cases to jury verdict also is inaccurate; Mann tried six cases

to verdict. The district court does acknowledge that the City

prevailed in the cases that Mann tried to verdict.

The district court stated in its Findings that no evidence

existed to support Mann’s claim and that a great deal of evidence

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12

existed to suggest that Montgomery discharged Mann in order to

upgrade the quality of the Law Department to that of a high-quality

law firm and because he wanted to dismantle the patronage system.

Mann appealed from the summary judgments, the bench

verdict and the jury verdicts in the respondents’ favor. She

challenged the jury verdicts on the basis of an instruction to the jury

that defined the term “actual malice.” The respondents appealed

from the two jury verdicts in Mann’s favor, also challenging a jury

instruction.

The Court of Appeals, as per its Circuit Rule 10, remanded

the case to the district judge for his statement of his reasons for

granting the respective summary judgments.[See Appendix at 19a. ]

The judge offered two grounds for his summary judgment on the

Free Association claim.

One of them was that the Sixth Circuit, in Williams v. City

of River Rouge, 909 F.2d 151 (6th Cir. 1990), had held that the

chief corporation counsel of the City of River Rouge, Michigan

(population 11, 314, according to the 1990 U.S. Government

census), was not entitled to First Amendment free association

protection in his job, and therefore Mann was not entitled to such

protection. On appeal, Mann noted that the single basis that the

court in Williams cited for its ruling was that the plaintiff was the

chief legal officer for the City, who in accordance with that City’s

ordinance, was formally nominated for the job by the mayor for a

specific term length, and whose nomination was confirmed by the

city counsel, and whose job duties concerned the formulation of

government policy, and who had direct regular contact with the

mayor.

The plaintiff in Williams, in other words, was in a

position that corresponded directly to Montgomery’s, not to

Mann’s. Not a single factual circumstance cited by the court in

Williams as a basis for its ruling was present in Mann’s case.

The district judge’s other justification for entry of that

summary judgment was a lengthy and detailed series of findings of

fact by another court in an unrelated matter in which the City of

Chicago was a party but in which Mann was not. The opinion is

Salaried Employees of North America (SENA) v. Illinois Local

Pee ere en ee

13

Labor Relations Board, 202 Ml. App.3d 1013 (1990). The district

court in Mann’s case adopted as fact three paragraphs from the

SENA opinion that purport to detail the job duties of City of

Chicago assistant corporation counsel. Neither Mann nor any

other Torts Division attorney during Mann’s five-year tenure

there ever was assigned any of those job duties, nor are those job

duties related to the work that the Torts Division performed.

The district court justified its adoption of the description in

SENA by adopting, in turn, another SENA finding of fact that is

utterly lacking in support in the evidentiary record of Mann’s case

and is utterly false. That finding: that the City of Chicago Law

Department in the late 1980s was structured so that staff attorneys

routinely rotated laterally from one division to another within the

department on a daily basis. Irrespective of the relevance (or lack of

it) of such a fact to the issue in Mann’s case, Mann’s respondents

had never alleged any such fact nor did any such evidence exist

in the record of this case. The alleged fact is erroneous, at least

with respect to the early 1980s, the time period relevant to this case,

and Mann easily could have proved this had she been afforded the

opportunity.

The court, in other words, entered summary judgment partly

on a sua sponte factual claim for which no evidence exists in the

record of this lawsuit and that Mann never was given the

opportunity to address. Unlike the opinion in Williams and in every

other federal court opinion concerning the issues addressed by this

Court in Elrod, supra., and Branti, supra., the statement by this

district judge contains no analysis of Mann’s job duties other than

its adoption of the finding of fact in SENA. The judge’s statement

mentions neither Montgomery’s testimony that political affiliation

was irrelevant to Mann’s job duties nor the inclusion of Mann’s job

category as among those protected in the Shakman decree.

Although the Court of Appeals in Mann’s case adopted

without explanation the Williams court’s result, it did not adopt the

Williams court’s recognition that E/rod and Branti require a

thorough stated analysis by the court of the plaintiff's actual job

duties, and that the simple mention of the fact that the plaintiff was

an attorney does not constitute such an analysis.

14

The Sixth Circuit Court of Appeals considered the Williams

plaintiff's claim of Free Association protection sufficiently plausible

in light of the factual circumstances in that case to warrant a

detailed analysis by that court and a detailed explanation for its

ruling, notwithstanding that that plaintiff was the top legal officer

for the respondent City and that his job duties required participation

in policymaking and regular contact with the mayor. The Seventh

Circuit Court of Appeals, on the other hand, professed to find

Mann’s job position -- a low-level non-policymaking position as a

tort defense attorney, entailing no contact with the mayor -- so

clearly lacking in Free Association protection that her claim

warranted no visible analysis and no explanation for the court’s

decision to affirm the summary judgment.

Because Mann’s job position was the lowest level position

for attorneys in the City’s Law Department, because her job

position entailed no contact with the mayor, because she was a tort

defense litigator and therefore was not involved in politically-related

matters, because her low level position was in one of the largest

municipal law offices in the country, the court’s ruling as a matter of

law that Mann was not entitled to Free Association protection

constitutes a ruling that no government attorney, or at least no

municipal government attorney, is entitled to that protection. It is

unlikely that a position as a government attorney exists anywhere in

the country with job duties less related to political affiliation than

the one at issue here.

On the gender-motive counts, the judge stated as his

grounds for summary judgment that the criticism of aggressiveness

about a woman in a traditionally male job is gender-neutral and that

Mann had failed to establish with expert testimony by a social

psychologist in her response to the summary judgment motion that

aggressiveness is associated in American society with masculinity.

The defendants’ summary judgment motion did not argue that a

complaint of aggressiveness in a woman is gender-neutral, and

inasmuch as this Court had held this as a matter of law in Price

Waterhouse v. Hopkins, 109 S.Ct. 1775 (1989), Mann was unaware

that it remained an issue.

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The judge also simply dismissed the evidence regarding

O’Hara’s specific treatment of Mann as she describes it above. In

commenting upon Mann’s claim that Montgomery considered the

comments that she “was too pushy or aggressive and lacked humility in

determining to terminate her,” the judge said:

There was nothing wrong in defendant Montgomery s considering

plaintiff's having poor interpersonal skills, see Price Waterhouse v

Hopkins, 490 US 228, 236, 109 S Ct 1775, 1783 (1989), and

there was no evidence that he would have considered the same

traits as positive or even neutral in a male employee. There was,

in short, no direct evidence of sex discrimination in the decision to

terminate plaintiff.

The judge, in other words, disagrees with the ruling in

Price Waterhouse and openly mocked it, citing it as authority for

his proposition that, as a matter of law, criticism of a woman as

too aggressive a litigator is gender-neutral and constitutes

evidence of poor interpersonal skills.

The Court of Appeals, in turn, affirmed this, but carefully

avoided making the rule of law in any case but this one.

The district judge further stated — as a matter of law —,

that Montgomery thought Mann was complaining to him that

O’Hara’s evaluations of her were too high; because they were too

high, Mann had “good reason to bitch” to Montgomery about

them.

Montgomery, as noted above, testified that he could not

explain why he thought Mann was complaining to him that her

evaluations were too high. The judge, who apparently could explain

this, chose not to do so.

In violation of Mann’s Seventh Amendment right to a jury

trial on her Equal Protection count, the judge ruled as a matter of

law that the defendants were entitled to summary judgment because:

Based upon defendant O'Hara's 1983 and 1984 evaluations,

defendant Montgomery concluded that plaintiff's poor job

performance justified terminating her.

16

Heavily featured in Mann’s response to the summary

judgment motion was O’Hara’s own deposition testimony to the

contrary, as well as Montgomery’s statements of acknowledgment

that the evaluations were inaccurate and that he believed Mann had

good reason to bitch about them.

The district judge states repeatedly in his memorandum

opinion that he granted the summary judgments on the basis of what

he terms “the evidence that defendant Montgomery believed plaintiff's job

performance was poor.” The judge cites to no such evidence, though; he

cites only to Montgomery’s bare conclusory statement, hardly a sufficient

legal foundation upon which to deny a jury trial.

During the appellate process -- in her Reply brief and in a

response to a motion, and later in a letter of complaint to the chief

circuit judge -- Mann raised the issue of judicial impropriety on the

part of the final district judge and an earlier one.

The judge assigned to the case initially, in December, 1984,

had a close family relationship with respondent Jayne Barnard.

Federal Rule of Civil Procedure 455 mandated his recusal, yet he

retained the case for nearly four years, repeatedly ordering the

respondents’ counsel to file dispositive motions and the like. He

removed himself from the case shortly after this Court issued its

opinion in Liljeberg v. Health Services Acquisition Corp., 108 S.Ct.

2194 (1988), which reinforced that Rule 455 requires rather than

merely suggests judicial recusal when a conflict of interest exists.

The judge next assigned to the case expressed dismay at the

respondents’ counsel’s expressed intent to file a summary judgment

motion, stating unequivocally that he considered the case an

inappropriate one for summary judgment. [See Appendix. at 49a.]

In response to the defendants’ counsel’s statement that the

defendants “intend to file a motion for summary judgment,” the

judge, Paul E. Plunkett, said, “What -- you know, I have read

enough of this. What in heaven’s name makes you think you could

get summary judgment in this case? There are factual controversies

all over it.” He set a date for the filing of the pretrial order.

Shortly thereafter, the case was reassigned to a newly

appointed judge, the judge who granted the summary judgments and

wrote the two memorandum opinions that Mann describes above.

During the trial before that judge, the respondents’ counsel raised

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17

the issue of the earlier judge’s relationship to Barnard, asking Mann

questions about it on cross-examination

In the four years in which the case was assigned to the initial

judge, James B. Moran, eight new caseloads were created from

existing ones, seven for newly appointed judges and one for a judge

returning after a lengthy illness. Yet the case remained with Judge

Moran. As Mann noted in her various statements of complaint,

including in her Reply brief on appeal, the case was available for

judicial reassignment nine times. The first eight times, when the case

was before Judge Moran, it was not reassigned. The ninth time,

when it was before the judge who stated that summary judgment

was inappropriate, it was reassigned.

The lottery result, in other words, favored the respondents

all nine times. In her Reply brief, Mann commented that she

congratulated the defendants on their remarkable luck of the draw

and suggested that they try their luck in Las Vegas.

Mann includes her complaint letters as part of her Appendix

at 51a through 65a. All are part of the formal record below. The

letter of complaint to the circuit executive was submitted in

accordance with 28 USC 372(c) (3) (A). [See Appendix at Sla.]

That letter, which Mann included as part of her Petition for

Rehearing with Suggestion for Rehearing En Banc, details the

relationship between Barnard and Judge Moran, and Judge Moran’s

conduct in the case. Mann also includes in her Appendix at 69a the

memorandum of response she received, which states that her

complaint was time-barred and that, in any event, the substance of it

was not an appropriate matter for a misconduct complaint.

Also now a part of the record below, Mann having included

it as part of her Petition for Rehearing with Suggestion for

Rehearing En Banc, is a copy of four-page book proposal/query

letter Mann drafted and sent to literary agents in early 1994 during

the interminable appellate process in this case, and a copy of her

contract with a literary agent regarding her proposed book. The

-Proposal is for a book detailing the court’s handling of Mann’s

lawsuit, and the reasons for that manner of handling, as evidence of

the current state of federal judicial conduct in civil litigation.

18

Mann argues in her proposal letter that federal judges

routinely nullify, by a variety of means, laws they do not like and

use their authority to serve their personal or ideological interests.

Mann includes that letter and the literary agent’s contract regarding

that book proposal in her Appendix at 71a and 77a, respectively,

and makes the arguments in the proposal letter a part of this

petition.

Mann also notes that although technically represented by

counsel on appeal, she was de facto (for financial reasons)

essentially a pro se appellant, having herself drafted most of her

opening brief and all of her Reply brief, facts known to the court via

motions and responses during the appellate process. Mann also

orally argued the appeal before the assigned panel. She considers

this noteworthy because it became clear during oral argument that

none of the panel members had read her briefs and all three were

poorly informed about the evidentiary record and about the

arguments in those briefs.

Mann includes in her Appendix at 79a an article she

submitted to The Chicago Daily Law Bulletin that that journal

published on December 8, 1994, which argues that federal judges

commonly determine matters before them on the basis of the relative

social status of the litigants and their respective counsel. She adopts

the arguments in that article as part of this petition.

The case initially was assigned to an appellate panel

comprised of Judges Joel Flaum, Kenneth Ripple and Ilana Rovner.

Before oral argument, Judge William Bauer replaced Judge Flaum.’

Mann presumed then that Judge Flaum had recused himself because

of a conflict of interest. Yet he participated in the ruling on Mann’s

Petition for Rehearing with Suggestion for Rehearing En Banc,

presumably an indication that he had no conflict of interest when he

withdrew as a member of the panel. Mann considers this pertinent to

this petition because of the peculiar history that Judge William

' The Seventh Circuit Court of Appeals does not announce the panel makeup

until the morning of oral argument. It does, however, assign all cases heard on

the same day in the same courtroom to the same panel. All of the other cases

argued that day in that courtroom were heard by Judges Flaum, Ripple and

Rovner.

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19

Bauer brought to his participation in this matter. In an opinion he

authored in 1987, he wrote:

Although ADEA prohibits employers from

discriminating against employees based on age, in this case

Commercial was more than Kier’s employer. Kier was

Commercial’s attorney and Commercial was Kier’s client;

nothing in this opinion should be read to limit the clear right

of a client to discharge his or her attorney for any reason, or

for no reason. This principle reflects an understanding that

the relationship between attorney and client is based on trust

and cannot function unless the client has complete

confidence in his or her attorney. However, although

defendant submitted a jury instruction on this issue, it did

not press any objection to the district court’s failure to

instruct on the issue. Nor did Commercial submit any

memoranda of law in support of its assertion, presented for

the first time below as a jury instruction, that an in-house

attorney should be treated the same as a non-employee

attorney for the purpose of the discharge. More importantly,

the defendant did not present this issue on appeal.

Accordingly, we deem the argument waived. ier v.

Commercial Union Ins. Companies, 808 F.2d 1254, 1256-

57.

Judge Bauer over the years has participated in rulings in a

number of wrongful employment discharge lawsuits brought by in-

house counsel for corporations, governments or insurance carriers.

To Mann’s knowledge, he has never voted in favor of the attorney-

plaintiff, although he has never cited this exemption theory as a

basis in any other case. The respondents in Mann’s case never raised

such an issue, but, in light of Judge Bauer’s participation, they did

not have to.

Judge Bauer, incidentally, was a member of the motion panel

that remanded this case to the district judge for his statement of

reasons for his summary judgments, so he was aware of the case

before it was assigned to a merits panel.

The Court of Appeals on January 19, !996 resolved the

cross-appeals in this matter by issuing an Order pursuant to its

20

Circuit Rule 53, which provides for the resolution of appeals in

certain circumstances by court order applicable only to the case

being resolved rather than by published opinion. The court’s order

in this case reversed and remanded the case for retrial on two of the

state-law counts, adopting the respective arguments challenging the

two jury instructions at issue. It affirmed, without comment, all the

other judgments entered in the case.

Although issued nine and one-half months after oral

argument, and although Circuit Rule 53 expressly requires that such

an Order “contain reasons for the judgment” unless “the court has

announced its decision and reasons from the bench,” the Order

entered in this appeal affirmed without comment the summary

judgments on all of Mann’s civil rights counts and on the bench

verdict in the Shakman decree count. [Emphasis added.] The court

had announced nothing from the bench.

Mann filed her Petition for Rehearing with Suggestion for

Rehearing En Banc on February 2, 1996. Six and one-half weeks

later, triple the usual length of time for such rulings by that court,

her petition was denied. The denial order stated that no judge voted

to hear the matter en banc.

REASONS FOR GRANTING THE WRIT

I. SEVENTH CIRCUIT RULE 53 AS APPLIED IN THIS

MATTER CONSTITUTES A VIOLATION OF DUE

PROCESS OF LAW AND A FAILURE TO COMPLY WITH

THE DE NOVO STANDARD OF APPELLATE REVIEW OF

SUMMARY JUDGMENTS

Seventh Circuit Rule 53 states in relevant part:

(c) Guidelines for Method of Disposition.

(1) Published opinions.

A published opinion will be filed when the decision

(i) establishes a new, or changes an existing rule of

law;

(ii ) involves an issue of continuing public interest;

( iii ) criticizes or questions existing law;

21

( iv ) constitutes a significant and non-duplicative

contribution to legal literature

(A) by a historical review of the law,

(B) by describing legislative history,

(C) by resolving or creating a conflict of law;

(2) Unpublished orders.

When the decision does not satisfy the

criteria for publication, as stated above, it will be

filed as an unpublished order. The order will

ordinarily contain reasons for the judgment, but may

not do so if the court has announced its reasons from

the bench. A statement of facts may be omitted from

the order or may not be complete or detailed.

The district court’s memorandum opinion stating its reasons

for its entry of the summary judgments, as affirmed on appeal,

establishes one after another new or altered rule of law, although

the invocation by the Court of Appeals of its Rule 53 establishes

those rules of law only in Petitioner’s case. Via Rule 53, the

pertinent rules of law (and the absence of such) that existed before

the Order was entered in Petitioner’s case will apply to all further

such cases, at least until further notice.

Before entry of that Order, no rule of law existed holding

that in-house government attorneys by virtue of their position as

attorneys lack entitlement to First Amendment protections

irrespective of the nature of their actual job duties. No such rule of

law exists after entry of that Order either. Yet the court necessarily

invoked such a rule of law to affirm without comment the summary

judgment on Petitioner’s First Amendment count.

No rule of law existed before, or exists after, the entry of

that Order that holds that findings of fact in another lawsuit can

determine a finding of fact against a party in another lawsuit

although that party was not involved in the earlier lawsuit. Much

less did, and does, a rule of law exist permitting such a factual

determination sua sponte without prior notice to the losing party

and without affording that party an opportunity to address the

factual issue. Yet the court quietly invoked such a rule of law to

22

affirm without comment the summary judgment on Petitioner’s First

Amendment count.

No rule of law existed, or exists, that holds that a decision to

discharge a woman from her traditional male job because of

criticism that she was too aggressive in performing that job does not

constitute evidence of unlawful sex discrimination. To the contrary,

the law before and after the entry of that Order explicitly states that

it does; this court’s opinion in Price Waterhouse was at the time of

entry of this Order the law, and remains so. Yet the court failed to

comply with that rule of law when it affirmed without comment the

summary judgments on both of Petitioner’s counts alleging unlawful

sex-based motive.

Nor did, or does, the law require plaintiffs to reestablish via

expert testimony an established rule of law. Yet the court held

otherwise in affirming without comment the summary judgments

entered in Petitioner’s gender-related counts partially on the basis

that Petitioner had not reestablished that criticism of a women’s job

performance as too aggressive is a gender-specific criticism.

To Petitioner’s knowledge, no rule of law existed or exists

that holds that a bench verdict can be based virtually entirely upon a

phantom evidentiary record. Yet the court invoked such a rule of

law to affirm without comment the summary judgment on

Petitioner’s Shakman decree count.

In preparing to draft this petition, Mann, who had never seen

much less drafted a certiorari petition, contacted a few attorneys

who had drafted successful petitions and asked for copies of those

petitions. One of the attorneys was Irwin Venick of Nashville,

Tennessee, the petitioner’s counsel in Harris v. Forklift Systems,

Inc., 114 $.Ct. 367 (1993). When Mann received the copy of the

petition filed in that case, she was struck by the indication that that

case, like her own, was appealed to this Court from an unpublished

Order, pursuant to a Sixth Circuit rule similar to the Seventh

Circuit’s Rule 53.

The question presented to this Court in that petition read:

Is a plaintiff in a sexual harassment case also required

to prove, in order to prevail, that she suffered severe

psychological injury when the Trial court has found that she

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23

was offended by conduct that would have offended a

reasonable victim in the position of the plaintiff?

Petitioner makes no comment on the merits of the written

statement and the ruling by that court from which that plaintiff

petitioned this Court for review. She suspects, though, that that

court’s determination of that issue in Harris hardly reflected settled

law, nationwide or even in that circuit. It appears then that federal

courts of appeals perceive circuit rules such as Seventh Circuit

Rule 53 as authorizing the unequal application of the law upon

the whim of the assigned judicial panel and as authorizing the

repeated application of de facto but undeclared rules of law.

This use of that Rule in Petitioner’s case was not an

aberration.

What is an aberration, though, is the court’s decision in

Petitioner’s case to disregard the requirement in its own Rule 53

that “(t]he order will ordinarily contain reasons for the judgment,

but may not do so if the court has announced its decision and

reasons from the bench.”

Or even if it has not, when that court wishes to rule in a

particular case, and only in that case, contrary to established law or

contrary to what it believes this Court would allow.

Petitioner has researched the matter as best she could and

has queried several federal court litigators in Chicago, and has

learned of no case in which judgments were affirmed on appeal

without a statement, even if brief, of the court’s reasons for its

rulings. It seems clear to Petitioner and others that the court failed

to provide any explanation for its decision to affirm those judgments

because it was aware that the reasons provided by the district court

were improper and no other legitimate justification could be found.

The court circled the wagons around its lower-court

colleagues whose conduct in this matter Petitioner severely

criticized, including in her Reply brief. The defensive tone of voice

in the questioning of her at oral argument by one of the panel

members, Judge Ilana Rovner, suggested that Judge Rovner was

made aware of Petitioner’s allegations even without having been

made aware of most of the remainder of the contents of Petitioner’s

briefs.

24

Irrespective of the accuracy of Petitioner’s presumption

concerning judicial motive by the Court of Appeals, circuit rules

such as the Seventh Circuit’s Rule 53 constitute an

unconstitutional denial of due process of the law when used to

circumvent the very concept of the rule of law. Rule 53 itself

appears to acknowledge this; as indicated above, it states that “[a]

published opinion will be filed when the decision establishes a new,

or changes an existing rule of law.” Inasmuch as only published

opinions can establish as precedent new, or changes in existing, law,

the provision makes sense only if interpreted to require that new

statements of law be published and thus become precedent. That is,

the court lacked the authority, according to the Rule itself, to alter

the law for only the case at issue.

The Court of Appeals, in other words, ignored the obvious

dictate of the very rule it cited to effectuate its tactic.

Nor was that limitation to the Rule the only one that the

court ignored. Also as indicated above, the Rule states that “{a]

published opinion will be filed when the decision ... involves an issue

of continuing public interest.” It seems likely, in fact, that the court

hid its rulings in this case precisely because it recognized that those

rulings addressed issues of continuing public interest, and that if

stated clearly and as precedent would generate controversy. A

clearly stated ruling by a federal court of appeals that female

litigators lawfully can be discharged from their employment for

litigating too aggressively to suit the sensibilities of male judges, for

example, likely would be noticed by the news media, and certainly

by bar associations. A clearly stated ruling by the local federal court

of appeals that in-house government attorneys necessarily lack First

Amendment free association protection in their employment likely

also would be noticed by the local news media and certainly by local

bar associations.

If, as Petitioner suspects, the motivating factor for one of

the appellate panel members in this case was his belief as expressed

in Kier v. Commercial Union Ins. Companies, supra., that in-house

attorneys are not entitled to federal civil mghts protections,

constitutional or statutory, he is obligated to state this for the

record. He lacks the legal authority to promulgate and enforce an

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25

undeclared rule of law, a stealth rule of law, and thus avoid scrutiny

of that law by the appellate court en banc or, more important, by

this Court.

This stealth rule of law did become less stealthy in

December, 1994, when the Seventh Circuit Court of Appeals

adopted without analysis a modified version of the dictum

comments made by Judge Bauer in Kier. The court in Rand v. CF

Industries, 42 F.2d 1139 (7th Cir. 1994), piggy-backed on those

comments, treating them as precedent, and therefore as not

requiring analysis, notwithstanding their explicit identification in

Kier as dictum. In doing so, the court in Rand altered the standard

of proof and the application of Federal Rule of Evidence 403 in

employment civil rights lawsuits brought by in-house corporate or

government counsel.

The court wrote:

Moreover, Rand was not just any employee. He held the

unique and no doubt sensitive position of in-house counsel

for CFI. Because he is one of CFI’s attorneys, Rand’s age

discrimination claim implicates “the clear right of a client to

discharge his or her attorney for any reason, or for no

reason.” Kier v. Commercial Union Ins. Companies, 808

F.2d 1254, 1256-57 (7th Cir. 1987). An attorney’s age

discrimination claim against his employer requires careful

scrutiny because “the relationship between attorney and

client is based on trust and cannot function unless the client

has complete confidence in his or her attorney.” Jd. at 1257.

For the same reasons, it is difficult to document

dissatisfaction with an attorney’s performance. Thus, CFI’s

decision to fire one of its attorneys must be given special

deference. Jd.

Though treated cavalierly by the court in Rand, this is hardly

a trivial issue. Without specifically addressing the question, the

Rand court simply presumes, as did Judge Bauer in Kier, that the

client of in-house counsel is not the corporation or government that

employs the attorney but rather the head of the corporation’s or

government’s law department. That is a highly debatable

presumption. The presumption results in the believe that the head of

i a ca cla a Ni il i a aR i ett i a BESS a oleae as ny

26

a law department may decide, for example, to employ only white

male attorneys to suit his personal preferences, notwithstanding that

the real parties in interest -- the corporate shareholders or the

government entity’s residents -- may not as a group share these

preferences.

The personnel makeup of corporate and government law

departments have far-reaching implications regarding the

corporation’s or government’s policies, and so more is at issue in

this regard than simply employment opportunities for attorneys.

Equally important, this quiet, judicially created rule of law is

promulgated upon a belief that federal courts of appeals are entitled

to create exceptions to federal statutory civil rights protections on

other than constitutional grounds. 42 USC sec. 2000e et seq., after

all, contains no statement exempting in-house counsel from its

protections or altering the standard of proof by in-house counsel in

such cases.

Additionally, there is the question of the de novo standard of

judicial review of summary judgments and whether that requirement

implicitly necessitates a stated explanation by the Court of Appeals

of its rulings. The failure by the Court of Appeals to state any

reasons for its rulings affirming the summary judgments in this case

is itself a declaration of law: that litigants must accept on faith that

the court has complied with its legal obligation to engage in

meaningful review of those judgments.

Petitioner does not willingly accept on faith that this court

did so in this matter. She asks this Court to hold that she is entitled

to some evidence that the Court of Appeals did comply with that

standard of review. Without such evidence, the stated standard of

review is meaningless, or at least it is not mandatory; courts need

not actually comply with it if they prefer not to do so.

She asks this court also to recognize that the utter absence

of any stated reason for the court’s decision to affirm the district

court’s various judgments deprives the losing party of the right to

meaningfully petition this Court for review, or even to meaningfully

petition for en banc appellate review. Several of the district court’s

statements of law that the Court of Appeals affirmed in this case are

credible candidates for review by this Court, Petitioner believes, but

27

her task of persuading this Court to address those issues is made so

much more difficult because of the absence of a definitive statement

of law by the Court of Appeals.

Petitioner states those issues at the beginning of this petition,

in her list of questions presented for review.

A rule of law that permits courts of appeals to fail to state

the reasons for their rulings empowers the appellate panels to help

determine the outcome of petitions for review of their own

decisions. Whether the petition seeks review by this Court or by the

appellate court en banc, the obvious argument among the justices or

judges against review in such circumstances is that the ruling has no

precedential value and effects no other case.

Il. THE AFFIRMATION OF A BENCH VERDICT THAT

WAS BASED UPON OBVIOUSLY INACCURATE

JUDICIAL REPRESENTATION OF THE EVIDENTIARY

RECORD NEGATES THE VERY PURPOSE OF THE FACT-

FINDING LITIGATION PROCESS AND ALTERS THE

STANDARD OF PROOF

As stated above, Petitioner knows of no rule of law that

holds that a bench verdict can be based virtually entirely upon a

phantom evidentiary record. The civil litigation process, particularly

in federal court, is governed by elaborate rules of discovery and of

admission of evidence. The purpose for these rules presumzoly is to

increase the likelihood that the outcome of litigation will reflect the

actual relevant facts, the evidence, upon which the litigation is

based.

In this case, Petitioner engaged in a lengthy, expensive and

emotionally grueling process of discovery, of gathering the evidence

to prove her assertions. As the above statement of the case

suggests, her case rested very largely upon express and highly

pertinent admissions by the respondents.

The district court in this case in its Findings of Fact and

Conclusions of Law on the Shakman decree bench count brazenly

tossed out the evidentiary record and supplanted it with an

evidentiary record of his own. He pretended that the respondents’

28

various admissions presented at trial were never made. He barred

Petitioner from presenting admission testimony by one of the

respondents and then purported to find directly to the contrary of

the barred admission. He fabricated an account of an incident that

had not occurred. He drew affirmative conclusions of fact that

contradicted the respondents’ own testimony.

In doing so, he altered the nature of the trial from a fact-

finding mission to an exercise in the perversion of truth To a

mockery. To a staged show. To a farce. The evidence painstakingly

gathered during the preceding nearly seven years meant nothing

because it did not comport with the judge’s predetermination.

Had the evidence supported the judge’s predetermined

outcome, his Findings of Fact and Conclusions of Law surely

would have veritably teemed with pertinent evidentiary detail.

And so would the opinion of the Court of Appeals, as its

opinions routinely do in explaining its rulings in employment-related

and other fact-based controversies.

Instead, the Court of Appeals affirmed without comment the

district court’s affirmative conclusions though utterly unsupported

by logical explanation. In doing so, it removed the requirement of

correlation between evidence and result, of correlation between the

evidentiary record and the representation of that record by the

court. It cavalierly destroyed, in turn, the legitimacy of the federal

civil justice system, at least in Petitioner’s view. It affirmed the

suspicion that she and many others familiar with federal court

practice have held: that, in federal court, truth is subject to revision

at the whim of the assigned judge.

The respondents are treating the appellate affirmation of the

district court’s judgment in the Shakman decree count tried to the

bench as a finding by the Court of Appeals that the affirmative

representations of findings of fact by the district judge are accurate.

The issues in the state-law counts that were remanded for retrial

correspond to the conclusory representations of fact in the district

court’s Findings of Fact and Conclusions of Law, and the

respondents recently filed a motion seeking to reopen discovery on

the grounds that the appellate affirmance of those professed findings

of fact necessarily mean that the representations are accurate. [See

29

Appendix at 80a.]} A summary judgment motion on this ground

likely will follow, notwithstanding the extensive case authority that

holds that judicial findings of fact cannot determine jury issues, as

per the Seventh Amendment.

The premise is that reality is whatever the district judge says

it is, irrespective of the evidentiary record.

If the standard for appellate reversal of bench verdicts is that

the judgment itself must be clearly erroneous, irrespective of the

accuracy of the professed evidentiary foundation for the judgment,

district judges are free to arbitrarily alter the standard of proof in

any bench trial they choose. To win in such circumstances, the

unfavored party would have to supply evidence so clear that a

judgment against that party would be clearly erroneous. If the

unfavored party is the plaintiff, he or she would have to produce

evidence well beyond a preponderance or, in this case, clear and

convincing. If the unfavored party is the respondent, the plaintiff s

burden of proof would be lessened significantly below a

preponderance.

The procedural requirement that the judge state his findings

of fact and conclusions of law would constitute a pro forma

irrelevance, as the Court of Appeals would lack the authority to

scrutinize the substance of the judge’s statement. Only the judgment

itself could be scrutinized for clear error.

Yet this is the rule of law that the Court of Appeals

implemented in Petitioner’s case.

Ii, CRITICISM OF JUDICIAL CONDUCT SHOULD NOT

OPERATE AS A WAIVER OF THE RIGHT TO

MEANINGFUL CONSIDERATION OF AN APPEAL

This Court held recently in Board of County Commissioners

v. Umbehr, _ S.Ct.__ (1996) that criticism by a county

independent contractor of the county board on matters of public

concern cannot lawfully precipitate the termination of the business

relationship between the contractor and the county. This court held

that a contract termination for that reason violated the contractor’s

First Amendment free speech rights.

30

Petitioner’s allegations against two district judges

respectively assigned to this case, and specifically her accusation of

impropriety on the part of the judge who shared four stepchildren

with one of the respondents in this matter and served openly as an

advocate for her, addressed matters of public concern. The

Congress in fact has invited litigants with legitimate concerns about

possible judicial misconduct to file a complaint with the chief circuit

judge, as Petitioner did.

Petitioner cannot demonstrate with certainty that her

allegations regarding those two judges were what caused the

appellate panel to diverge so starkly from its own written rules and

its own common procedural practice in such obvious ways. She can,

however, conceive of no other reason for these brazen departures

from their own procedural norm.

CONCLUSION

Circuit Rule 53 provided the procedural means for the Court

of Appeals to fashion a result in this case that defied the pertinent

settled rules of law without declaring an alteration in the law. It

provided the procedural means for the court to effectuate its desired

result in this case without adherence to the rule of law, or to the

concept of the rule of law, because it provided the means to rule

without public scrutiny. Similar rules in other circuits provide that

cover elsewhere.

If this Court does not act to bar the use of those circuit rules

as a means for courts of appeals to diverge at will from applying the

law or from formally declaring the law, this practice likely will gain

in acceptance and in use.

This Court therefore should grant the petition for a writ of

certiorari.

Respectfully submitted,

BEVERLY B. MANN Petitioner Pro Se

7261 North Campbell Avenue

Chicago, Illinois 60645 Chicago, Illinois

(312) 465-4587 August 12, 1996

APPENDIX

OC LAR hte + BOSAL A. the PE

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. [~k AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

lar

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, DC 20543-0001

WILLIAM K. SUTER

AREA CODE 202

CLERK OF THE COURT 479-3011

wo

May 31, 1996

Ms. Beverly B. Mann

\

7261 North Campbell Avenue

Chicago, IL 60645

Dear Ms. Mann:

The application for an extension of time

within which to file a petition for a writ of

certiorari in the above-entitled case has been

presented to Justice Stevens, who on May 31, 1996,

extended the time to and including August 16, 1996.

This letter has been sent to those

designated on the attached notification list.

Sincerely,

WILLIAM K. SUTER, Clerk

By

Troy D. Cahill

Assistant Clerk

20a

United States Court of Appeals

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

March 19, 1996

Before

Honorable WILLIAM J. BAUER, Circuit

Judge

Honorable KENNETH F. RIPPLE, Circuit

Judge

Honorable LANA DIAMOND ROVNER,

Circuit Judge

Nos. 92-3761, 92-3797

BEVERLY B. MANN, )

)

Plaintiff-Appellant, _) Appeal from the United States

Cross-Appellee, ) District Court for the

) Northern District of Illinois,

v. ) Eastern Division

)

CITY OF CHICAGO, et al., ) No. 84 C 11020

Cross-Appellants. )

) George W. Lindberg, Judge.

ORDER

On consideration of the petition for rehearing with

suggestion for rehearing en banc filed by plaintiff/appeallant,

cross-appellee on February 2, 1996, no judge in active service has

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

panel have voted to deny the petition. Accordingly,

3a

IT IS HEREBY ORDERED that the petition for rehearing

with suggestion for rehearing en banc be, and the same is,

DENIED.

tYa

United States Court of Appeals

FOR THE SEVENTH CIRCUIT

CHICAGO, ILLINOIS 60604

Argued March 30, 1995

Decided January 19 _, 1996

Before

Honorable WILLIAM J. BAUER, Circuit

Judge

Honorable KENNETH F. RIPPLE, Circuit

Judge

Honorable LANA DIAMOND ROVNER,

Circuit Judge

Nos. 92-3761, 92-3797

BEVERLY B. MANN, )

)

Plaintiff-Appellant, ) Appeal from the United States

Cross-Appellee, ) District Court for the

) Northern District of Illinois,

v. ) Eastern Division

)

CITY OF CHICAGO, et al, ) No. 84C 11020

Cross-Appellants. )

) George W. Lindberg, Judge.

ORDER

Beverly B. Mann filed suit against the City of

Chicago, James Montgomery (formerly

Chicago’ sCorporation Counsel), and Jayne Barnard and

Timothy O’Hare (formerly of the Corporation Counsel's

Sa-

office) after she was terminated from her position as an

Assistant Corporation Counsel in 1983. Her Third

. Amended Complaint asserted claims based on the First and

Fourteenth Amendments to the Constitution of the United

States, the consent decree entered in Shakman v.

Democratic Organization of Cook County, and Illinois law;

a supplemental complaint also alleged a violation of Title

VU of the Civfl Rights Act of 1964, 42 U.S.C. 2000e. A

number of Mann's claims were dismissed or disposed of on

summary judgment. The case proceeded to trial in 199] on

the Shakman claim and Mann's state law claims for

defamation, breach of contract and tortious interference with

a prospective economic advantage. The jury found in favor

of Mann on the breach of contract claim (awarding damages

of $68,285) and on her claim for tortious interference with

the prospective economic advantage of continued

employment with the City's Law Department (awarding

damages of $74,700); but it found against her on her claims

of defamation and tortious interference with the prospective

economic advantage of alternative employment following

her departure from the Law Department. Tne trial judge

entered findings against Mann on the Shakman claim. Mann

has appealed from the adverse disposition of a number of her

claims; the City and Montgomery, in turn, have cross-

appealed from the verdicts entered against them on the

breach of contract and tortious interference claims. After

considering all of the arguments raised by the parties, we

have concluded that only two claims merit our discussion

here: the defamation claim and the claim for tortious

interference with the prospective economic advantage of

Mann's continued employment with the Law Department.

Based on our finding that the jury was erroneously

instructed as to each of these Claims, we vacate the verdicts

rendered (against Mann on the defamation claim, for her on

the tortious interference claim) and remand for a new trial

on those claims alone; the judgment below is affitmed in all

other respects.

oe

6a

I. THE DEFAMATION ITINSTRUCTION

In Count VIII of her Third Amended Complaint,

Mann alleged that Barnard and O'Hara had defamed Mann

by making false statements about her job performance and

competence as an attorney to her superiors within the Law

Department; Mann also alleged that Barnard made additional

defamatory statements to prospective employers outside the

Law Department. The parties agree that because Barnard

and OHara made any such statements in fulfillment of their

duties as employees of the City, they enjoyed a qualified

privilege and can only be held liable if Mann proved that the

defendants made a defamatory statement or statements with

actual malice. See Krasinski v. United Parcel Serv., Inc.,

530 N.E.2d 468, 471 (M. 1988); Anderson v. Vanden

Dorpel, 645 N.E.2d 250, 258-59 (Ill. App. 1994), appeal

allowed, 652 N.E.2d 338 (1995); Davis v. John Crane, Inc.,

633 N.E.2d 9291) 937-38 (111. App. 1994); Muthuswamy

v. Burke, 646 N.E.2d 616, 620 (Ill. App. 1993). At issue

here is an instruction concerning the malice element of the

defamation claim. With the parties’ agreement, the district

court advised the jury that a statement is made with actual

malice ff "the defendant made the statement despite knowing

that it was false or despite a high degree of awareness of its

probable falsity or entertaining serious doubts as to its

truth." R. 406. However, over Mann's objection, the court

went on to instruct the jury that "[a] defendant's mere failure

to conduct a proper investigation into the truth of a

statement before making it to another does not constitute

the actual malice required for plaintiff to prevail on her

defamation claim." Id (Defendant's Proposed Instruction 4-

B.) Mann argues that the additional instruction conflicted

with the court's explanation of actual malice and erroneously

suggested to the jury that a defendant might not act with

actual malice ff he makes a statement without ETst

“Ja

investigating its veracity, even ff he entertains serious doubts

on that subject. We agree.

It is, in One sense, correct to say that the failure to

investigate the truth of a statement does not, in and of itself.

establish a defendant's actual malice in maldng the statement.

St. Amant v. Thompson, 390 U.S. 727, 731, 88 S. Ct. 1323,

1325 (1968); Troman v. Wood, 340 N.E.2d 292, 295 (Il.

1975); Jones v. Britt Airways, Inc., 622 F. Supp. 389, 393

(N.D. Ill. 1985); Fopay v. Noveroske, 334 N.E.2d 79, 88

(Ill. App. 1975); Bloomfield v. Retail Credit Co., 302

N.E.2d 88, 96 (ID. App. 1973); see also Beauvoir v. Rush-

,Presbyterian-St. Liske's Medical Cenier, 484 N.E.2d 841,

844 (111. App. 1985). But this is merely another way of

emphasizing that when a defamatory statement is qualifiedly

privileged, ordinary negligence will not suffice to establish

liability; at a minimum, the plaintiff will have to show that

the defendant acted with reckless disregard of its truth.

Durso v. Lyle, Stuart, Inc., 337 N.E.2d 443, 446 (111.

App. 1975); Bloomfield, 302 N.E.2d at 95.

[R]eckless conduct is not measured by whether a

reasonably prudent man would have published, or

would have investigated before publishing. There

must be sufgcient evidence to pern3 .it the conclusion

that the defendant in fact entertained serious doubts

as to the truth of his publication. Publishing with

such doubts shows reckless disregard for truth or

falsity and demonstrates actual malice.

St. Amant, 390 U.S. at 731, 88 S. Ct. at 1325. Thus, when

the cases reiterate that the failure to investigate is not alone

enough to establish actual mauce, they mean simply that

additional proof concerning the defendant's mental state is

required. A defendant who repeats information without first

checking into its accuracy is not reckless so long as he

harbors no serious doubts on that score; on the other hand, a

at a cance ce a nk Si eae in anneal acai tie ie ES Hii)

X C-

defendant who has serious reservations as to the veracity of

the information may well be reckless if he repeats the

information without investigating. Fopay, 334 N.E.2d at

88-90. The failure to investigate thus remains "a very

important Consideration" in assessing the defendant's

culpability. Fopay, 334 N.E.2d at 90.

The instruction which the district court gave here is

misleading in the sense that it suggests that the element of

actual malice requires the defendant to have done, or

omitted to do, more than simply failing to look into the

truth of the statement he made. In fact, so long as the

defendant doubted the veracity of the statement, his failure

to investigate may well be enough to establish liability.

One who suspects that a statement is inaccurate but

decides to make it anyway without attempting to establish

its truth evinces an indifference that amounts to actual

malice. The instruction was misleading in another, more

fundamental sense as well. It focused the jury's attention

upon a single circumstance which, albeit highly relevant,

ultimately is collateral to the central question in a

defamation case - the defendant's regard for the accuracy

of the complained of statement. For just this reason, the

Illinois Supreme Court in Reed v. Northwetern Pub. Co.,

530 N.E.2.d 474, 487 (Ill. 1988), cert. denied, 489 U.S.

1067, 109 S. Ct. 1344 (1989), upheld the trial court's

refusal to give an instruction which advised the jury that it

could infer actual malice from a "grossly inadequate"

investigation, emphasizing the court's history of

disapproving jury instructions which give "undue

prominence" to particular facts. The instruction should

likewise have been refused here.

The balance of the instructions given upon

defamation did nothing to correct the misguided focus that

the "mere failure to investigate" instruction gave the jury.

We must therefore conclude that the jury deliberated with an

Ya

incorrect impression of the law and that Mann was

prejudiced by the mistaken instruction. See generally

DePaepe v. General Motors Corp., 33 F.3d 737, 743-44

(7th Cir. 1994). Mann is therefore entitled to a new trial on

her defamation claim.

Il. TORTIOUS INTERFERENCE WITH THE

PROSPECTIVE ECONOMIC ADVANTAGE OF

CONTINUED EMPLOYMENT WITH LAW

DEPARTMENT

In Count XI of her Tlird Amended Complaint, Mann

alleged that Montgomery, O'Hara, and Barnard had all

wrongfully interfered with her expectation of continued

employment with the city's Law Department. The jury

found in favor of O'Hara ‘and Barnard on this claim, but

against Montgomery. Montgomery contends that the

verdict may have been the product of an erroneous jury

instruction that advised the jury that the defendants acted

with the requisite "actual malice" in interfering with

Mann's prospective economic advantage if the jury found

that they acted "Mth the intent and purpose to injure the

plaintiff or they acted "without justification." R. 406.

Montgomery argues that "without justification" has a

very specific messing in the context of an at-

will employment relationship like the one Mann had with

the city; and because the district court failed to apprise

the jury of what "without justification" meant,

Montgomery reasons, the jury may have been misled as

to what proof would be adequate to meet this element of

the tortious interference claim. Again, we agree.

As an at-will employee of the city, Mann could be

terminated for any reason or for no reason at all.

Zimmerman v. Buchheit of Sparta Inc., 645 N.E.2d 877,

879 (Ill. 1994) (plurality); Hanlein v. Illinois Power Co

601 NE. 2d 720, 728 (Ill. 1992); Fellhauer v. City of

/Oe

Geneva, 568 N.E.2d 870, 875 (Ill. 1991). Although an

at-will employee thus has no enforceable contractual

right to continued employment, the Illinois courts

have recognized a cause of action for tortious

interference with an at-will employee's legitimate

expectation of continued employment. Eg., Fellhauer,

568 N.E.2d at 878-79.

Montgomery, O'Hara, and Bamard, of course, were

not outsiders intermeddling with the relations between

Mann and her employer; they were supervisory

employees with a duty to oversee and evaluate the work

of Mann and other attorneys. See id As such, they

enjoyed a qualified privilege to exercise their professional

judgment and act in good faith on the city's behalf. See

id.; Mittelman v. Waous, 552 N.E.2d 973, 987 (Ill.

1989). Thus, only if the defendants acted in a fashion

Illinois courts describe as “without justification or

maliciously" may they be held liable for tortiously

interfering with Mann's expectation of continued

employment with the city. Id. at 987; Fellhauer, 568

N.E.2d at 878; Swager v. Couri, 395 N.E.2d 921, 927

(Ill. 1979); HF. Philipsborn & Co. v. Suson, 322

N.E.2d 45, 50(Tll. 1974).

Although Illinois courts have never expressly

articulated a defamation of “without justification" in this

context, it is quite clear that they have never employed those

words in their ordinary sense - i.e., as the equivalent of

“unjustly’ or “for no valid reason." Instead, consistent with

the nature of a defendant's qualified privilege - that is, to act

in good faith for the benefit of his employer - the courts have

described tortious conduct to fall principally into two

categories: (1) behavior intended solely to harm the plaintiff,

and (2) behavior that is undertaken solely for the defendant's

interest, and not that of his employer. Ile first of these

categories is, quite obviously, what the courts are referring

jan

to when they speak of "malicious" behavior or "actual

malice". See, eg., MGD, Inc. v. Dalen Trading Co., 596

N.E.2d 15, 18 (M. App. 1992) ("‘[a]ctual malice’ is a

positive desire or intent to injure another"). The second

category is what has been described as conduct undertaken

“without justification," and it thus becomes apparent that

something unique is meant by those words. In case after

case, courts have described this realm of conduct not to

include behavior that is irrational, unexplained, or unjust, but

actions taken solely for the defendant's own gain and

contrary to the best interests of the employer. See, eg.,

Fellhauer, 568 N.E.2d at 878-79; Mitiebnan, 552 N.E.2d at

987; Girsberger v. Kresz, 633 N.E.2d 781, 790 (11). App.

1993); see also George A. Fuller Co. v. Chicago College of

Osteopathic Medicine, 719 F.2d 1326, 1333 (7th Cir. 1983),

Cromley v. Board of Educ. of Lockport Township High

School Dist. 205, 699 F. Supp. 1283, 1299 (N.D. Ill. 1988);

Vassardakis v. Parish, 36 F. Supp. 1002, 1005 (S.D.N.Y.

1941). It would be illogical to define the range of culpable

conduct otherwise - at win employment after all, implies that

it is the employer's prerogative to discharge an employee

whether a jury might think it fair or not.

Despite the distinct meaning ‘without justification"

has in this context, the district court failed to define the term

for the jury. With no other meaning to ascribe to the phrase,

the jury could only have interpreted the phrase to mean

“unfairly.” It thus might have found Montgomery liable for

tortiously interfering with Mann's expectation of continued

employment with the Law Department ff it believed

Montgomery acted out of malice or without a reason the

jury believed was just. That is plainly a far broader standard

than articulated for the tort, and patently inconsistent with

Mann's status as an at-will employee. ‘nus, we are

compelled to conclude that the jury was not properly

instructed as to the legal standards governing this claim and

jaa

that Montgomery was prejudiced by the mistake.

Montgomery is therefore entitled to a new trial.

Ill. CONCLUSION

For the reasons we have given, we vacate the verdicts

rendered in favor of Barnard and O'Hara and against Mann

on Count VIII of the Third Amended Complaint and in favor

of Mann and against Montgomery on Count XI of the Third

Amended Complaint and we remand for a new trial on those

claims alone. The judgment below is affirmed in all other

respects. The parties shall! bear their own costs on appeal.

AFFIRMED IN PART, VACATED IN PART, and

REMANDED.

(3a

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

BEVERLY MANN,

Plaintiff,

JAMES MONTGOMERY.

et al.,

Defendants.

JUDGE GEORGE W.

)

)

)

)

VS. ) No. 84C 11020

)

)

) LINDBERG

)

FINDINGS OF FACT AND

CONCLUSIONS OF LAW

The Shakman count of plaintiff's complaint was tried to

the court while the balance of plaintiff's claims were tried to the

jury. The court has given careful attention to the plaintiffs claim

of a Shakman violation and no facts that would support her

claim. The court concludes that the paucity evidence requires

that the court find for defendants on that claim.

FINDINGS

The court finds that the only political aspect in this case of

any relevance is that plaintiff was a 1979 patronage hire fresh out

of law school and was placed in the Torts Division of the City of

Chicago Law Department without any experience and little, if any,

preparation for the courtroom. She was the ‘beneficiary’ of a

political patronage appointment by Jay McMullen, the husband of

then-Mayor Jane Byrne, without any consideration or evaluation

of her skills or interests beyond a perfunctory interview by the

then-chief of the Torts Division. Plaintiff s father is a friend of

——_E_aa

ey &

McMullen's from the days when they worked together at the now-

defunct Chicago Daily News.

Appallingly, this fledgling lawyer was assigned a smothering

caseload of 500 to 600 tort cases. The record shows that

during plaintiff s tenure under the Byrne administration there was

little or no effort to assist her or any other division lawyer, with

second-chair trial experiences or trial practice seminars. The

record makes it abundantly clear that, resultantly perhaps, plaintiff

was reluctant to try cases, a reluctance which appears to have

persisted throughout her career in the Torts Division to 1984

when she was terminated resulting in this lawsuit. Much of the

dispute in this case turns on the parties' respective

characterizations of this reluctance. Plaintiff ascribes her

reluctance to the highest objectives of the legal profession and

presumably the best interests of the administrations she served

(Harold Washington dispossessed Jane Byrne of the mayor's office

in the spring of 1983), that is, to settle cases rather than risk losing

by a big verdict against the City including the risk of adverse

newspaper publicity.

On the other hand, the chief of the division, defendant Tim

0’Hara who had been personally sponsored and hired by Mayor

Richard J. Daley, testified that the plaintiff was reluctant to try

cases. This was in contrast to other lawyers in the division who

were anxious to build a trial record to enhance their value when

subsequently seeking employment with law firms. It is clear that

O'Hara felt that plaintiff was not ready and willing to try cases

which he also wanted to settle if possible. He testified that during

negotiations it was necessary that the lawyers on the other side

feel that if they didn't settle with the City, the City's lawyers were

anxious or at least had no hesitancy to go to trial. Such was the

relationship of plaintiff and her chief throughout the employment

and without regard to whether her political sponsor was in office

or not.

Another point of friction between plaintiff and her supervisor,

defendant O'Hara, was his 1983 and 1984 formal evaluations of

16 Ge

her. It came to pass with the advent of the Washington

administration, that defendant Montgomery was appointed

Corporation Counsel and was charged with the objective of

making the Law Department a high quality law firm of which

Mayor Washington could be proud. Washington had served in the

Law Department earlier in his career and considered it a meritless

patronage office, with most of its lawyers having private practices

on the side, according to Montgomery. Decisions were made to

increase the size of the department by hiring more lawyers and

obtaining additional space, eliminating outside law practices,

reducing caseloads, instituting training programs, ascertaining

existing lawyers’ legal interests for possible reassignment within

the department, and instituting a formal program of annual

evaluations of lawyers performance and ability.

The evidence established that defendant Jayne Barnard and

her husband were lawyers with the firm of Jenner and Block.

Although she was a partner, she left the firm and was hired by .

Montgomery to assist him in a the foregoing objectives. She

explained that she had been active in organizations that opposed

patronage and saw working in the Washington administration as

an Opportunity to put her views on the subject into practice. She

drafted the 1983 evaluation form and trained the chiefs in its use

for the first for the first formal evaluations to be conducted in the

Law Department.

‘The evidence further established that the ratings of plaintiff

in the 1983 and 1984 evaluations form a significant basis of

plaintiff's claim of her discharge for political reasons. She

vehemently and consistently criticized those of O'Hara's gradings

of her that were less than 'satisfactory,' particularly on issues

relating to trial, and his failure to rate her at all on what she

considered her strengths - issues relating to research and writing.

In fact, in the 1983 post-evaluation conference where the Barnard

program called for the supervisor and the employee to discuss

both the supervisor's evaluation of the lawyer

IG a—

and the lawyer's evaluation of himself or herself, O'Hara changed

his evaluations on some of the parameters to reflect satisfactory

performance on issues relating to litigation.

Based at least in part upon O'Hara's less than favorable

position regarding plaintiff's value to the division even before the

evaluation program was instituted, she was initially denied the

January 1, 1983, 10-15% increase granted to most of the other

lawyers in the Law Department. Instead she received only 5%.

She complained through her father to Stanley Garber, the

Corporation Counsel during the Byrne administration, and plaintiff

was given the 15% increase.

As a result of the 1983 evaluation of plaintiff by O'Hara

and the aggressive approach of defendants to implementing the

policies of the Washington administration, a special assignment

was carved out for plaintiff to begin June 1, 1984. Except for a

few cases from her caseload, she was relieved of trial

responsibilities. Instead, she was to become a specialist drafting

and consulting with other lawyers on motions. She was also to

start an intra-office newsletter on different subjects. The evidence

establishes that this was as an attempt by the Washington

administration to accommodate plaintiff's interests in legal

research and writing and to relieve her, and her chief, of the strain

of their continuing disagreement concerning her reluctance to try

cases and mm judicial criticism of her performance or attitudes. It

should be noted that the City prevailed in the few cases she tried.

The evidence indicates she only tried two or three cases to verdict

from 1979 to June 1, 1984, when she was to start her new

assignment.

On July 27, 1994, O'Hara again evaluated plaintiff lower

generally in the same litigation categories. However the

supervisor/lawyer conference for 1984 did not take

place as it had the previous year. Instead, and without the benefit

of her self-evaluation and the conference, because of time

constraints according to O'Hara, his evaluation went directly to

(7a

defendant d who drafted notes of its highlights and presented them

to Montgomery along with the evaluations of other Torts Division

lawyers. Thereafter, on August 3, 1994, Montgomery decided to

discharge plaintiff.

Plaintiff retained counsel who succeeded in negotiating a

termination agreement for plaintiff. The alleged breach of that

agreement was one of the subjects of the jury's verdict in the

instant case.

Plaintiff argues that there is no question that she was

covered by the Shakman decree and that she established that she

was in a nonexempt position as listed in the Shakman decree.

Plaintiff maintains that the record discloses ‘substantial evidence’

that plaintiffs termination was politically motivated, the third

element of a Shakman case. Principally, plaintiff argues that

defendant Montgomery attempted to create ‘slots for attorneys’

hired by the Washington administration by firing or reassigning

attorneys hired by previous administrations. The court finds,

however, there was no evidence that would lead to this

conclusion. In fact the record is to the contrary in that it was

established that the size of the department was increased. The

increased size of the Law Department resulted in a diminution in

caseloads from 500 to 600 per lawyer during the Byrne

administration to about 250 cases per lawyer during the

Washington administration.

Plaintiff does acknowledge that because Byme left office,

plaintiff no longer had the political ‘clout’ necessary to hold her

job. However, plaintiff cites no authority for the proposition that,

where a patronage worker loses his or her patronage and is

thereafter terminated for lack of merit, of violation of the Shakman

decree occurs.

Finally, plaintiff contends that when defendant

Montgomery agreed to give a speech to a convention of

municipal lawyers he publicly espoused the view that a

eee

j Fa

public employer should simply never admit a political motive.

Plaintiff points to this speech, which was drafted by a staff

member and not reviewed by Montgomery, and was actually

delivered by another staff member when Montgomery found

that he could not attend, established the motivation for

plaintiffs discharge. The court agrees that this position

attributable to Montgomery could, along with other evidence,

establish Montgomery's intent in discharging plaintiff.

However on the record there is no such evidence and, indeed,

there is a great deal of evidence tending to establish that

Montgomery's motivation in running the Law Department

generally, and in particular in terminating plaintiff, was to run

the Law Department as a high quality law firm and not on the basis

of political patronage.

As defendants note, to prevail on her claim plaintiff

must prove by clear and convincing evidence that she would

not a been prio w et = for her eorrans political affiliations.

: anizé .. 533 F2d

344, 351 (7th Cir 1976); ner pags mea 708 F Supp

954, 959 (N D III 1989), aff'd in part, rev'd in part, on other

grounds, 906 F2d 1187 (7th Cir 1990). The court agrees with

the conclusion of defendants that there is no evidence, much

less clear and convincing evidence, that politics motivated

plaintiff's discharge.

Judgment for defendants.

NOV 8 1991

Date:

George W. Lindberg

United States District Ju

Beh

[Ga

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

BEVERLY MANN,

Plaintiff,

JAMES MONTGOMERY,

et al.,

Defendants.

JUDGE GEORGE W.

)

)

)

)

vs. ) No. 84C 11020

)

)

) LINDBERG

)

MEMORANDUM OPINION

The United States Court of Appeals for the Seventh

Circuit has remanded this case for the limited purpose of

permitting this Court to enter a statement of reasons for its

granting partial summary judgment in favor of defendants. US

Ct App, 7th Cir CR

50.

The order granting partial summary judgment was

entered on August 13, 1991. At that time, there were pending

plaintiffs Supplemental Complaint and Counts 1, 11, 111, VI,

VIII, X, XI, and XI of plaintiffs Third Amended Complaint.

Summary judgment was denied as to Counts I and VIII of the

Third Amended Complaint.

Count 11 alleged a Section 1983 political discrimination claim

42 USC 1983.

The Illinois Appellate Court has described the City of

Chicago Law Department and its attorneys as follows:

[A]II of the attorneys work in multiple areas and . the

demands of the client (i.e., the City of Chicago) are

—

WOa

such that an attorney may be assigned to the Torts

Division on one day and the Labor and Personnel

Division the next... .

Second, all of the Law Department attorneys

have the authority to recommend changes in the manner

in which the city operates. Indeed, the record reveals

that the city depends on the recommendations from the

Law Department to function on a day-to-day basis. The

Law Department attorneys review all legislation voted

upon by the City Council, assist alderman [sic] and city

departments on rules and regulations, draft personnel

ordinances for city employees, carry out the mayor’s

executive orders regarding hiring quotas, take measures

to increase revenues for the city budget, recommend

changes in the city's labor contracts with outside unions,

alter the city's licensing policies and practices, and

review and modify all of the personal service contracts

executed by the city.

Third, the Law Department attorneys exercise a

tremendous amount o discretion on behalf of the city. . .

[A]lthough there are senior members

(.e., Supervisors), all of the attorneys exercise

managerial discretion on behalf of the city. All of the

attorneys are involved in hiring, have access to all files,

and may be assigned to labor-related matters. The

authority structure within the Law Department is

diffused rather than rigid. And, all of the attorneys i-

nay, at any time, be assigned to work closely with the

mayor or his advisors on special projects vitally

important to the interests of the city.

ala

Salaried Employees of North America (SENA) v Illinois Local

Labor Relations Board, 202 Ill App 3d 1013@ 560 NE2d 926,

933-34 (1990). Given the breadth of the duties of Law

Department attorneys, their authority to recommend changes in

the manner in which the city operates, their tremendous amount

of discretion, and that they may be called upon to work closely

with the mayor or his advisors at any time, their political

affiliation is an appropriate consideration when they are

terminated. Williams v City of River Rouge 909 F2d 151, 155

(6th Cir 1990 ("Given the function of a citv attorney and the

decisions of courts that have addressed the issue, it is difficult

to imagine a set of facts under which it would violate the first

amendment to fire a city attorney for purely political reasons. a)

See Hudson v Burke, 913 F2d 427, 434 (7th Cir 1990)

("Appellants were political hires whose sponsor lost power. . . .

Political affiliation was an appropriate consideration when they

were hired, and was equally appropriate when they were

fired."). Therefore, defendants were granted summary judgment

on Count 11.

Count III alleged that plaintiff was deprived of liberty

without due process of law by certain statements made about

her. 42 USC 1983. Ina footnote to her response to

defendants’ motion for summary ‘judgment, plaintiff stated:

Plaintiff's claim for deprivation of liberty was

significantly limited by Judge Moran's prior Order to the

phrases "paranoid" and “emotionally disturbed".

Although these phrases were used to describe plaintiff

within the Corporation Counsel's Office, plaintiff is not

sursuing a claim for publication of either description

i office. Plaintiff, however, intends to seek

reconsideration of Judge Moran's earlier decision

limiting the claim. For this reason, this Response does

not address Count 111.

(Emphasis added). Plaintiff thus stated that she was not

pursuing the only portions of Count Il remaining after the

——— <<

QAQVe

disposition of the prior motion to dismiss by Judge Moran. For

this reason, defendants were granted Summary judgment on

Count 111.

The portion of Count VII remaining at the time of the

ruling on the motion for summary judgment and the

Supplemental Complaint alleged related claims. Count VII

alleged a Section 1983 claim for violation of equal protection

by discrimination against plaintiff because of her gender. 49

USC 1983. The Supplemental Complaint alleged a-claim for

sex discrimination in violation of Title VI[ of the Civil Rights

Act of 1964. 42 USC 2000(e), et seq. Tile Supplemental

Complaint's sex discrimination claim will

be addressed first.

Plaintiff contended that there was direct evidence of sex

discrimination in terminating her from her job, in that there was

evidence that defendant Montgomery considered sexual

stereotypes in terminating her. Plaintiff noted that:

Mr. O'Hara evaluated plaintiff's performance in the

terms of her physical appearance. Mr. O'Hara made

specific note of plaintiff's "attractive" appearance while

male attorneys were spared that indignity.

However, in the context in which the "attractive" comment was

made--O'Hara calling her an “attractive, very intelligent

attorney"--it was a positive remark. There was no evidence

that it was considered by defendant Montgomery to be in any

way negative, much less to be a factor in favor of terminating

plaintiff. Plaintiff further noted that:

Beverly Mann was perceived has having, "bitched" too

much about her treatment although with good reason.

Use of the word "bitched" is not of itself proof of a sexual

stereotype, "bitched" being common slang for "complained. "

234

Webster's Third New International Dictionary 222 (1986).

There was no evidence that the word "bitched" was used as a

sexual stereotype, and there was no evidence that male

employees acting as plaintiff acted would not have been

"perceived as having bitched’ too much" about their treatment.

Plaintiff also stated that:

The record also clearly establishes that Mr.

Montgomery, considered comments that Beverly Mann

was too pushy or aggressive and lacked humility in

determining to terminate her. . . .

There was nothing wrong in defendant Montgomery s

considering plaintiffs having poor interpersonal skills, see Price

Waterhouse v Hopkins, 490 US 228, 236, 109 S Ct 1775, 1783

(1989), and there was no evidence that he would have

considered the same traits as positive or even neutral in a male

employee. There was, in short, no direct evidence of sex

discrimination in the decision to terminate plaintiff.

ti Plaintiff contended that Price Waterhouse was a case

7 very similar to hers. Price Waterhouse v Hopkins, 490 US 228,

109 S Ct 1775 (1989). However, in that case there was very

strong, evidence of sexual stereotyping in the employment

decision. The plurality opinion states:

There were clear signs, though, that some of the

. partners reacted negatively to Hopkins’ personality

because she was a woman. One partner described her

as "macho" . . . ; another suggested that she

“overcompensated for being a woman" . . . ; a third

advised tier to take "a course at charm school" . .

Several partners criticized her use of profanity, in

response, one partner suggested that those partners

objected to her swearing only “because it's a lady

using foul language." Another Supporter explained

that Hopkins "ha[d] matured from a tough-talking

re ha

somewhat masculine harc-nosed mgr to an

authoritative, formidable, but Much more appealing

lady ptr candidate." But it was the man who, as Judge

Gesell found, bore responsibility for explaining to

Hopkins the reasons for the Policy Board's decision to

place her candidacy on partnership, Thomas Beyer

advised, Hopkins should “walk more femininely, talk

more femininely, dress more femininely, wear make-

up, have her hair styled, and wear jewelry...........

Dr. Susan Fiske, a social psychologist and Associate Professor of

Psychology at Carnegie-Mellon University, testified at trial that the

partnership the evaluations made it likely that sharply critical remarks

such as these were the product of sex stereotyping--although Fiske

admitted that she could not say with certainty whether any particular

comment was the result of stereotyping. Fiske based her opinion oil a

review of the submitted comments, explaining that it was commonly

accepted practice for social psychologists to reach this kind of

conclusion Without having, met any of the people involved in the

decisionmaking, process.

In previous years, other female candidates for partnership also had been

evaluated in sex-based terms. As a general matter, Judge Gesell concluded,

"[c]andidates were viewed favorably if partners believed they maintained their

femin{in}ity while becoming effective professional managers”, in this

environment, “[t]o be identified as a ‘women’s lib[bJER' was regarded as [a]

negative comment........... In fact, the judge found that in previous years "[o}ne

partner repeatedly commented that he could not consider any woman seriously

as a partnership candidate and believed that women were not even capable of

functioning, as senior managers--yet the firm took no action to discourage his

comments and recorded his vote in the overall summary of the evaluations."

Price Waterhouse v Hopkins, 490 US 228, 235-36, 109 S Ct 1775, 1782-83

(1989). Plaintiff at bar had no evidence remotely similar to that in Price

Waterhouse; she presented no evidence of overtly sex-based comments that

affected the decision to terminate her, presented no expert testimony that

asa

gender-neutral remarks were the product of sex stereo

Presented no evidence that oth rsa ep

in sex-based terms. er female employees were evaluated

Plaintiff also contended that there was indirect proof of sex

a

248, 101 S Ct 1089 (1981). See MicDomal Dandies

Corporation v Green, 411 US 792, 93 S Ct 1817 (1973)

However, defendants articulated a legitimate, nondiscriminatory

reason for plaintiff's termination. Texas Department of

Community Affairs v Burdine, 450 US 248, 253, 101 S Ct

1089, 1093 (1981). It was undisputed that defendant

Montgomery was the decisionmaker with respect to plaintiff s

termination. Based upon defendant O'Hara's 1983 and 1984

evaluations, defendant Montgomery concluded that plaintiff's

poor job performance justified terminating per.

Plaintiff contended that defendant Montgomery was not

justified in relying upon defendant O'Hara's evaluations,

because Montgomery “was aware that these subjective

evaluations were less than candid." However, defendant .

Montgomery's concern about the candidness of the evaluations

was that they were overly positive about employees-, that

supervisors, including defendant O'Hara, were too reluctant to

put negative information about employees in the evaluations.

Moreover, plaintiff never told defendant Montgomery that she

believed defendant O'Hara had a discriminatory animus toward

her because of her sex. She did inform-n defendant

Montgomery of remarks defendant O'Hara had made, but as

discussed previously these remarks were not sexual stereotypes

so that would not serve to put defendant Montgomery on

notice that defendant O'Hara's negative evaluations were based

on sexual animus toward plaintiff. There was, in other words,

no reason for defendant Montgomery not to rely upon

defendant O'Hara I s evaluations in making the decision to

terminate plaintiff.

Léa

Plaintiff also contended that Montgomery promoted

her shortly before her termination, and claimed that this act.

was inconsistent with his believing that her job performance

was poor. In fact, plaintiff was reassigned from a position in

which she was trying tort cases to a position in which she was

supervising law students preparing motions. This sort of

reassignment does not rebut the evidence that defendant

Montgomery believed plaintiff's job performance was poor.

Thus, there was no direct evidence of sex

discrimination; defendants produced evidence that the

decisionmaker, defendant Montgomery, terminated plaintiff

for poor job performance; and plaintiff failed to produce

evidence that this reason was a pretext for sex discrimination.

This Court accordingly granted defendants summary judgment

on the Supplemental Complaint.

The portion of Count VII remaining at the time of the ruling,

on the motion for summary judgment was a Section 1983 claiim

that plaintiff had been discriminated against because of her sex

in violation of the equal protection clause. In order to establish

this claim plaintiff would have to prove not just that she was

treated differently from other similarly situated employees, but

also purposeful and intentional discrimination based on her

membership in a particular class (i.e., that defendants acted with

discriminatory intent). Sims v Mulcahy , 902 F2d 524, 538-39

(7th Cir 1990). This requirement of proof of discriminatory

intent makes the burden on a plaintiff alleging a Section 1983

equal protection sex discrii-nination claim much heavier than

the burden on a plaintiff alleging a Title VII claim. Finally,

similarly to the Title VII indirect proof analysis:

If a prima facie case of racial discrimination Linder the

Equal Protection Clause is established,

“the burden then shifts to defendants to

articulate a legitimate nondiscriminatory reason

for taking the action alleged by plaintiff to be

ata

discriminatory. If defendants do articulate such

a reason, the burden then shifts back to plaintiff

to demonstrate that the proffered reason is

merely a pretext for discrim-ninatioii."

Sims v Mulcahy , 902 F2d 524, 539 (7th Cir 1990). quoting

Webb v City of Chester, 813 F2d 824, S'-'S (7tli Cir 1987).

Defendants were entitled to summary judgment on the

Section 1983 equal protection sex discrimination claim ill

Count VII for the same reasons that they were entitled to

summary judgment on the Title VII claim of the Supplemental

Complaint. In addition, plaintiff did not present evidence that

defendant Montgomery harbored a discriminatory intent when

he decided to terminate her employment with the City of

Chicago Law Department. For these reasons, defendants were

granted summary judgment on Count VII of the Third

Amended Complaint.

Count X alleged breach of a contract relating to what

was to be told prospective employers or other persons

contacting the City of Chicago Law Department about plaintiff

Summary judgment on this claim was granted in favor of

defendants O'Hara and Barnard because they were not parties

to the contract alleged. The other

defendants, Montgomery and the City of Chicago, were parties

to the contract alleged, so summary judgment was denied to

them on Count X.

Count XI alleged both tortious interference with

plaintiff's employment contract and tortious interference with

her prospective economic advantage irom her continued

employment. Because plaintiff's employment was at-will, the

court granted defendants summary judgment with respect to the

tortious interference with a contract claim, plaintiff under those

circumstances being unable to establish the element of that tort

LPa

that her employer breached the employment contract. See

Fellhauer v, City of Geneva, 142 III 2d 495, 568 NE 2d 870,

877-79 (1991); Delphi Industries. Inc Stroh Brewery Co., 945

F2d 215, 220 (7tli Cir 1991). See also Alistar Music, Inc. v

Eckhoff, 629 NE2d 816, 821 (111 App 1994) (setting forth the

elements of tortious interference with contractual relations).

This rationale does not apply to tortious interference with

prospective economic advantage. Therefore, summary

judgment was granted in defendants’ favor on the tortious

interference with a contract claim but not on the tortious

interference with prospective economic advantage claim of

Count XI.

Count XII alleged a claim for violation of the Illinois

Personnel Records Act, III Act Stat ch 48, 2001, et seq. (West

1986) (the Act). The Illinois Supreme Court has held the Act

unconstitutionally vague, Spinelli v Immanual Lutheran

Evangelical Congregation. Inc., 118 Ill 2d 389, 515 NE2d

1222 (1987). Plaintiff argued that summary judgment

nonetheless Should not be granted on Count XII because (1)

the Act was subsequently amended and (2) Spinelli did not

address Section 2006 which provided the basis for plaintiff's

Count XII. As to plaintiffs first contention, the subsequent

amendment of the Act cannot be applied to defendants’ conduct

prior to its effective date; this is particularly true in this case,

where the Illinois Supreme Court held the statute

unconstitutionally vague because it did not provide sufficient

notice to employers of their obligations under the statute. As

to the second contention, the Court in Spinelli stated:

We therefore agree with the appellate court that the Act

is vague and uncertain, and therefore, is unconstitutional in that

it violates the due process rights of employers.

Spinelli v Immanuel Lutheran Evangelical Congregation. Inc. .

118 III 2d 389, 515 NE2d 1222, 1228 (1987). Thus, tile

LY a

Illinois Supreme Court held the entire Act unconstitutional, and

not only the sections of it specifically involved in the case

before the Court. Accordingly, defendants were granted

summary judgment on Count XII

ENTER:

GEORGE W. LINDBERG

District Judge

DATED: 7-18-94

aaa

40 o-

O’Hara - direct

A. we had discussions reagularly about Beverly’s attitude

about cases about that.

Q. And Beverly Mann in these cases would tell you that she

thought the risks were too great to run?

A. She would tell me: We have this terrible witness here, an

this was bad about this case. And there was always something

about every case that she had that she was crying that there

was something wrong with the case and we should try to settle

it.

Q. That’s her job, right, to evaluate the case, to tell you

what’s good about the case, tell you what’s bad?

A. Her job was to dispassionately tell me what the facts of

the case were. And she did not dispassionately tell me; she

would get teary eyed and all upset.

Did you ever disagree with her?

Yes.

Did you tell her to try the cases?

Yes.

And she went to trial?

Yes.

What more did you want her to do?

> Oo FP 8B FF OO F ®

I did not feel that I could force her to trial on every

case that I thought she should be ready to try.

Q. Did you pull it away from her?

A. I effectively pulled it away from her one way or the

32 /@

O’Hara - direct

THE COURT: May have to.

MR. MORAN: As part of your offer of proof, from whor

will she say that she learned of this policy that she Says --

that you’re representing she thought Mr. O’Hara was violating?

MR. DiVINCENZO: She's going to testify that it was

her understanding of her role that she was Supposed tc make

recommendations as to which cases should be tried and which

cases shouldn’t be tried, and that she was Supposed to argue

and make recommendations if the case was, if the liability

risks were too great, to dispose of cases as cheaply as

possible under the circumstances. And that apparently is not

what Mr. O’Hara’s philosophy was.

MR. MORAN: Your Honor, the offer of proof is wholly

insufficient.

THE COURT: Yes, I’m going to stick with the Original

Tuling.

MR. DiVINCENZO: Fine, your Honor.

(End of side bar.)

THE COURT: I think this might be the time to take a

break.

MR. DiVINCENZO: That would be fine, your Honor.

MR. MORAN: Excuse me, your Honor, one more thing at

Side bar.

THE COURT: Yes.

(Proceedings at side bar:)

3a a

MR. MORAN: I would just ask that before we take the

break, that you let the jury know that the objection was

sustained.

THE COURT: Yes.

(End of side bar.)

THE COURT: The objection is sustained.

And someone should be coming out in just a moment.

You can disconnect there, Mr. O'Hara.

THE WITNESS: Thank you, your Honor.

(Recess. )

(The jury enters. )

THE COURT: You may be seated.

And you may resume.

MR. DiVINCENZO: Thank you, your Honor.

BY MR. DIVINCENZO:

Q. Mr. O’Hara, in Duties, is it not correct in 1983 that the

only less-than-satisfactory grade that you gave Beverly Mann

was on trial?

A. That is correct.

Q. Is it not correct that Beverly Mann’s trials all saved th

City of Chicago money?

A. Yes.

Q. That was either because she got no-liability verdicts,

city not liable for anything, or received verdicts below what

the plaintiff was demanding in their final settlement demand?

BF BORO ADA,

ot tn Lag NED te POE ET at CI Ay oa 8

Ned mh

33@

Q He was mayor at the time that you did that work for him?

oa Yes.

Q Then Jane Byrne was mayor at the time that you did the

work for her, right?

BR Yes, that's correct.

Q Did you ever wear a Washington button?

A Yes, I did.

Q Now, sir, when did you leave the employment with the City

of Chicago?

iA 1985.

Q Why did you leave?

MR. MORAN: Objection.

MR. DI VINCENZO: May we approach?

THE COURT: You may.

(The following proceedings were had at side bar out

of the hearing of the jury:)

MR. DI VINCENZO: Your Honor, they opened the door

} to the question that they just went into going into the

performance evaluations because they implicated that there was

nothing political going on here at all, that he wasn't

| political, that Mr. Montgomery's concerns about him weren't

political. That opened the door.

MR. MORAN: First of all, this is the limine order

in the case. This is the third time that counsel has done

this. My understanding of the limine order is that if he

Joa

feels the door is opened and the order is to be reconsidered,

he is to ask the Court to reconsider the order before he asks

the questions, and this is the THIRD time.

THE COURT: Is this designed as to any?

MR. MORAN: Your order specifically says that.

THE COURT: Are his questions designed to --

MR. DI VINCENZO: The question is designed to go to

the political issues to indicate the politics.

MR. MORAN: One of the specific things that the

order says, which are about to be gone into, are the

circumstances under which any of the individual defendants

left the employ of the City of Chicago. Get the order.

THE COURT: I guess you better.

MR. DI VINCENZO: I don't dispute that that's what

the order says.

THE COURT: Okay.

MR. MORAN: Maybe it would be a good time to take

the morning break for the jury.

(The following proceedings were had in open court in the

presence and hearnig of the jury:)

THE COURT: Okay. Ladies and gentlemen of the jury,

we will take your morning recess now until about 10 minutes tc

11:00. Diane or someone should be-here in a minute.

(The following proceedings were had in open court

outside the presence and hearing of the jury:)

avo

a

MR. MORAN: Judge, just for the record I want to

read the language of the order, and I will hand it to you.

The second sentence states, and I quote, "Evidence regarding

defendants' job performance will be admitted only as it

concerns their performance evaluations of plaintiff.

Other evidence of job performance and evidence

regarding the circumstances under which defendants ended their

employment with the city is excluded from trial."

As I said before, that order has no effect at

all. When counsel believes that the door has been opened, he

just proceeds to ask questions pertaining to that without

consulting the Court to see whether the Court agrees that the

door had been opened and therefore to modify or rescind its

order. This is the third time we have had to do this. I ask

the Court to hold to the ruling and sustain the objections and

admonish counsel he is not to ask these types of questions

while the order is still in effect unless he persuades the

Court to withdraw or modify the order.

MR. DI VINCENZO: I asked the question because they

opened the door in the middle of the examination. They can't

hide behind a limine order and bring the things in. It woulda

be disruptive to the proceeding every time I think the door is

open to make a motion and ask the jury to leave.

THE COURT: Where was that raised?

MR. DI VINCENZO: Your Honor, they got into the

errr reer cat ar arr nrr caarena ea aeaae

‘3G a

circumstances at the end of the examination in which they were

talking about political issues in this case.

MR. MORAN: The questions were whether he ever

considered the plaintiff's political affiliation in doing his

evaluations and whether Mr. Montgomery ever directed him as to

what he ought to put in his evaluations.

That's strictly within the scope of the order

and goes to the evaluations and nothing further. It does not

open the door to have your Honor reconsider the order.

MR. DI VINCENZO: We believe the testimony of the

witness will be on an issue that one of the reasons he was

terminated was because of Beverly Mann. He was terminated

immediately after the filing of the lawsuit, and as a result,

that was a direct implication and the relevance of the

evidence.

They brought it up as to the issue of what Mr.

O'Hara knows about Mr. Montgomery's motivations, and this

would go to that issue directly.

THE COURT: Only as to the questions were limited to

whether Mr. O'Hara had a political motive or Jim Montgomery

with regard to the plaintiff, and the answers were absolutely

not.

MR. DI VINCENZO: Right.

THE COURT: I don't see that that violates the in

limine order.

372

MR. DI VINCENZO: I am not suggesting it does, your

Honor. I am suggesting it's absolutely not. Then when I am

attempting to probe that the absolutely not is not the truth,

that there were politics involved and he was fired under

circumstances, that raised that issue.

THE COURT: Okay. You are going beyond the

plaintiff here. Those are questions relating to this

plaintiff, which is not circumscribed.

MR. DI VINCENZO: Your Honor, I can narrow the

question down to specifically relating to the plaintiff and

ask him whether he was terminated for anything to do with the

filing of the plaintiff's lawsuit or the plaintiff's

termination. I would be happy to do that at this time.

MR. MORAN: Judge, the circumstances under which Mr.

O'Hara left the employment of the city are totally irrelevant.

When we filed this motion, that was the basis of this. The

response that the plaintiff filed to the motion said in

essence, of course, their performance of their duties. is

relevant as it pertains to the manner in which they evaluated

Beverly Mann.

Our reply brief said: “If that's all they want

to go into, then the motion ought to be to that extent granted

as without objecti:n because we want to exclude other things,

particularly the dispute between mr. Montgomery and Mr. O'Hara

about the philosophy of settling cases and the fact that Mr.

3a

Montgomery ultimately asked Mr. O'Hara to leave the employment

of the City of Chicago, and he did resign.”

That's what we attempted to keep out. They

never in their response said, “Oh, we want to bring that in

and here's why it's relevant." Instead they keep asking the

questions counter to the order during the course of the trial

MR. DI VINCENZO: Your Honor, we were unaware at thi

time that we wrote this, if we might point out, that it was

not us that brought up the issue of the reason for Mr. O'Hara

being asked to resign. That's now come up as a result of the

examination with Mr. O'Hara.

THE COURT: I don't believe it has, but you have

indicated that you want to modify the question to whether or

not Mr. O'Hara was terminated because of his evaluation of thi

plaintiff. Is that the point you want to make? I thought I

heard you say that.

MR. DI VINCENZO: Your Honor, whether or not it had

to do with the filing of two things. The filing of

plaintiff's lawsuit and, secondly, the termination of the

plaintiff, correct, your Honor.

MR. MORAN: Well, I think that's not correct becaus

he said everything. Was he going to ask him whether he was

asked to resign because of his evaluations of the plaintiff,

which you indicated that that's the sole issue. The lawsuit

is different, and the termination is different.

THE COURT: Yes.

MR. DI VINCENZO: Those would be the questions, your

Honor.

THE COURT: I understand from Mr. Moran that he has

no objection to a question with regard to whether or not Mr.

O'Hara was terminated because of his evaluations of Beverly

Mann. Am I correct?

MR. MORAN: I can't think of an objection now. I

certainly think that it's something that would be permitted by

the order. Although, the order Says the circumstances of

leaving the office, but if that's the question and your Honor

thinks that that's allowed by the order, that's your ruling.

I don't want to be in a position by saying I waive any

objections.

THE COURT: Let me just ask Mr. DiVincenzo this.

What's the scope of your question?

MR. DI VINCENZO: Certainly that question is -- one

of the questions that I would like to go into at this time is

whether Mr. O'Hara left as a result of anything to do with his

evaluation of Beverly Mann.

Secondly, however, to go beyond that Slightly

aS to whether or not he left under circumstances of anything

to do with the lawsuit because I think that also goes to the

issue even if he won't admit that it had something to do with

his evaluations.

C/O

If he was asked to leave under circumstances

directly connected to the lawsuit, I think that an inference

can be argued from that that that had something to do with his

evaluation procedure, and I would like to broaden it slightly

to ask if it had anything to do with it because the evaluation

was part of the termination process.

Ask a follow-up question, whether it didn't

have to do with the specific written evaluations, anything to

do with the conduct in the determination of the plaintiff. I

think that would cover the basis at this point, your Honor.

MR. MORAN: You have already indicated, Judge, that

you don't think the door has been opened.

THE COURT: I am sure the door hasn't been opened.

I am now at a point where you have indicated -- Had the

plaintiff at the time that this issue came up indicated that

the questions were to be limited to whether or not Mr. O'Hara

was discharged because of his evaluations of plaintiff, that

you would have no objection. If that be the case, I will

allow that question to be asked now.

I don't think I will allow -- As a matter of

fact, I will not allow it to go beyond that.

MR. MORAN: May I make one other point? I think

that depending -- Well, I guess we will cross that bridge when

we come to it.

THE COURT: Okay. The ruling is that the ruling in

ej /e

limine prevails with the exception that I will permit a

question to be asked whether or not Mr. O'Hara was terminated

because of his evaluations of the plaintiff.

MR. DI VINCENZO: Your Honor, one other matter, and

we brought this up to a degree. It really became only

apparent right now, but Mr. Moran and Miss VanAllen are both

participating concerning this witness. One examines and one

objects.

Your Honor, I think at some point in time that

that procedure is slightly inappropriate, and I think now

would be a good time to get ground rules straight.

‘MR. MORAN: Judge, I thought we had gotten this

straight in the pretrial conference when your Honor said that

you would take objections of only one attorney, that it could

be the lead attorney or the attorney that is questioning the

witness, and we adhered to that.

THE COURT: I don't remember that.

MR. MORAN: I thought that's what you said during

the pretrial conference.

THE COURT: Ordinarily I limit it just to the

questioner. I don't remember that.

MR. DI VINCENZO: It was with the questioner of the

particular witness that would be handling the entire

examination and the objections.

THE COURT: That's the way I operate. I can't

Ye

imagine I would say otherwise. Okay. Carry on-

MR. MORAN: It seems to me that one of the problems

with your ruling -- and I am not going to ask you to reverse

your ruling, but I am going to suggest a procedure to deal

with the problem. Mr. DiVincenzo has suggested that the

witness would testify in a certain way, and I think that was

part of your Honor's ruling.

I don't frankly know what the answer to that

question is going to be. The problem is if he is asked the

question in the presence of the jury and he answers "No", the

jury will still have learned thc he was asked to resign by

Mr. Montgomery.

So what I would suggest that based on the

question being "Weren't you terminated because of your

evaluations with Beverly Mann" -- Now, I would suggest that

the question be asked and answered by the witness outside the

presence of the jury in the first instance. If the answer is

yes, then the jury be brought in and the question and answer

repeated.

If the answer is no, then there is no basis fo:

the jury to learn that in fact Mr. O'Hara had been asked to

resign since that itself is not relevant.

MR. DI VINCENZO: Your Honor, I do not intend to

phrase the question in that manner. During the break, I

phrased the question and wrote it down so I'd make sure that

oy 3

didn't cause the problem that Mr. Moran is alluding to.

My intention was to ask: Was your leaving the

Department of Law of the City of Chicago in any way related to

your performance evaluation of Beverly Mann?

That does not imply -- It leaves the door open

for it either to be a voluntary or any act. It does not imply

the circumstances.

MR. MORAN: I still think it would be appropriate

that that question be asked in the first instance outside of

the presence of the jury in the nature of a formal offer of

proof, which is what informally Mr. DiVincenzo had mentioned

in his article.

THE COURT: Out of abundance of caution, I will

allow that question to be answered now outside of the presence

of the jury, and let's see where it takes us.

THE COURT: Can you answer?

THE WITNESS: No.

MR. DI VINCENZO: May I raise one cther issue?

THE COURT: He answered "No."

MR. DI VINCENZO: Your Honor, I would like to raise

one other issue in an abundance of caution. The motion in

limine goes to the reasons why he was terminated from his

position. I take it, under the motion in limine, since I

don't want to be accused of violating it, it does not go to

the issue of for what reasons he was demoted in this position.

Ye |

MR. MORAN: The motion in limine goes to anything

related to the performance of his duties.

’ THE COURT: I will have to co for the file. Just a

minute.

MR. DI VINCENZO: Your Honor, I can obviate this. I

will not get into the request at this time.

THE COURT: Go ahead.

MR. DI VINCENZO: Your Honor, I don't think at this

point -- I will not ask that question at this time.

THE COURT: Okay.

MR. MORAN: I would ask that counsel be admonished

that if he feels that the door has been opened for this order

to be reconsidered, that he ask the Court whether the Court

agrees with that prior to asking any questions that are in

conflict with this order. Otherwise it's the same as if there

was no limine order entered in the first place, and the

question gets asked and I have to object to it.

THE COURT: Well, the ordinary order of things is if

there is a question that's asked that appears to be in

violation of a ruling on a motion in limine, you have to

object and bring it to the Court's attention. I don't think

it's appropriate to require plaintiff to anticipate your

objection unless it becomes abusive or appears to be

excessive.

(The following proceedings were had in open court in the

YS 0

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS,

EASTERN DIVISION

BEVERLY MANN, )

)

Plaintiff, )

)

vs. ) Docket No. 84 ¢C 11020

)

CITY OF CHICAGO, ) Chicago, Illinois

et al., ) September 15, 1989

Defendants. ) 9:15 ©o’clock, a.m.

TRANSCRIPT OF PROCEEDINGS

BEFORE HONORABLE PAUL E. PLUNKETT

PRESENT:

For the Plaintiff: mr. MICHAEL J. LEECH

Hinshaw, Culbertson -

Chicago, Illinois

For the Defendants: ms. MARIA C CAMPO and

a. MR. TERRY MORAN

Asst. Corporation

Counsel

City of Chicago

180 North LaSalle st.

Chicago, Illinois

Court Reporter: Joseph R. Betz,

U. 8. District Court

Chicago, Illinois

THE CLERK: 84 C 11020, Mann versus

City of Chicago;status.

MR. LEECH: Good morning, your Honor.

Michael Leech on behalf of the

plaintiff.

MS. COMPO: Good morning, your

Honor. Marie Compo and Terry

U/ 6a—

Moran on behalf of the defendants.

MR. LEECH: I understood we were

here this morning for a ruling,

your Honor.

THE COURT: That's right, you are.

On the defendants' position that

they are entitled to go into the

plaintiff's privileged

conversations with her doctors, if

such there are, I am going to

modify Judge Balog's order

' somewhat and I am going to explain

to you what I am doing.

I perceive that the defendants

position that they are entitled to

go into all of this because the

plaintiff says 'I had emotional

distress as a result of the

actions of the defendants," is

wrong, two district courts have

held it is wrong, and I certainly

wouldn't allow it on that basis.

Their second basis that somehow it goes to

damages, I think, is equally without merit.

The place it has merit, their position has

merit, is because Beverly Mann has

brought a defamation claim. She says that

she was called paranoid and emotionally

disturbed and she says that's wrong. Well,

whether the has to prove it is wrong or the

defendants have to prove it is true, and I

think it's the latter, in any event that is

now in issue, thus, she places it in issue,

not the defendants, by making a defamation

claim out of that.

The city has the right to go into it, but

there are limits on it in terms of

relevance because if today she went and

saw a psychiatrist it wouldn't have much, if

Ye

any, relevance to what she was like at the

time she was fired.

Thus, I have modified Mag4.strate Balog's

order to say because of the defamation

claim the defendant is entitled to go into

this otherwise privileged information but

only covering a period during the time she

was employed by the city and for two years

thereafter. After that, it becomes

meaningless or at least marginally relevant

and not sufficient in my view to invade a

privilege of this sort.

Now that takes care of that and the

remaining question is, does she have to

come back and be deposed, and I guess the

question is has she answered questions

about talking or getting mental help from

any source during the time she was at the

Corporation Counsel’s Office and for a

period of two years there after.

MR. LEECH: No, sir, your Honor.

THE COURT: She has not?

MR. LEECH: She has not.

MS. COMPO: She has not.

THE COURT: All right. That’s what

she has to do. She will do that

within, and there is no reason to

spend much time on this -- I am

staggered by the plaintiff telling

me how much time has been spent on

her deposition. Enough. You take

her deposition on that limited

point and it is not to exceed

one and a half hours in length.

When is that going to be done?

When is she going to be available

for that?

YP

MR. LEECH: We can do that in the

next two weeks, your Honor.

THE COURT: Fine. Then we are

finished with discovery in this

case?

MS. COMPO: Your Honor, we are

still. cleaning up some matters.

There are a couple of depositions

that need to be taken. We only

have one more deposition after

that and that's the deposition of

plaintiff's father, Mr. Mann,

and the deposition of Mr.

Blezenna. We have subpoenaed

him again. We may have to go in

before Magistrate Balog, because

he has not shown up any time we

have subpoenaed him.

Mr. LEECH: Let me suggest this,

your Honor, without getting into

any details on it, we are one of

the cases on the civil task

force and Judge Bua set the case

for a settlement conference, I

believe, in early November --

23.

MR. MORAN: November 15, Judge.

MR. LEECH: I think it might be a

good idea if we set a date here

to have the pretrial order done

by that time and we can work out

between us the details of

getting this stuff cleaned up.

If it doesn’t get cleaned up,

that's whoever didn't clean it

up's problem. I would like to

get goingon the pretrial order.

wy is

THE COURT: I agree.

MR. MORAN: judge, we have no

objection to that, and we also

intend to file a motion for

summary judgment. We

contemplate doing that

simultaneously with the pretrial

order so as not to delay things.

THE COURT: What -- you know, I

have read enough of this. What

in heaven's name makes you think

you could get summary judgment

in this case? There are factual

controversies all over it.

MR. MORAN: Well, Judge, I

think, for example, there is a

variety of different claims and

I think that, for example, the

defense of qualified immunity

may be raised with respect to

the Section 1983 count going to

the termination of a government

lawyer.

In addition, I think there is an

absence of evidence of

discriminatory intent behind all

of these things.

There is a variety of claims,

some of which have jury -- a

right to a jury trial, others of

which do not, so even if we were

only partially successful, it

might reduce the issues and have

an impact or. whether or not the

case is tried before a jury or

before your Honor.

MR. LEECH: Your Yonor, if I could suggest

perhaps if you looked at the pretrial order

S0Oa

when it was completed you could determine

whether there was any point in a summary

judgment motion. I don't think there is. I

don't think it's going to affect how the case

is tried. I don"t think at this point --

THE COURT: All right. Well, we will worry

about that when I get my final pretrial

order. I will see you on November 15 with

pretrial order in hand.

What time is your meeting with Judge Bua?

MS. COMPO: At 9:15, your Honor.

THE COURT: 9:15? All right. Then why don't

you come and see me at 9:00 o'clock, just so

you can file the pretrial order, and then you

can go and see Judge Bua.

MR. MORAN: I think Judge Bua is at 9:00

o'clock, Judge.

MR. LEECH: Why don't we come in on the 14th,

then, your Honor?

THE COURT: All right.

MR. LEECH: Thank you, your Honor.

MR. MORAN: What time will that be on the

14th, Judge? 9:15?

THE COURT: Yes.

MR. MORAN: Thank you, your Honor.

Transcript above certified true and complete.

25

10/2/89

September 19, 1995

Collins T. Fitzpatrick

Circuit Executive

United States Court of Appeals

for the Seventh Circuit

219 South Dearborn Street

Chicago, Illinois 60604

Dear Mr. Fitzpatrick:

I bring the enclosed complaint against U.S. District Judges

James B. Moran pursuant to the Judicial Councils Reform and

Judicial Conduct and Disability Act of 1980.

My complaint concerns a lawsuit in which I am the

plaintiff’ The lawsuit is titled Mann v. City of Chicago, James

Montgomery, Timothy O’Hara and Jayne Barnard. The case

currently is before your court on cross appeals.

The district court number is 84 C 11020. The appellate

court number is 92-3761.

Judge Moran retained the assignment of the case for nearly

four years although he had a family relationship with defendant

Jayne Barnard that required his recusal. I believe that the judge’s

retention of the case violated 28 USC 455. He used his position

as the judge assigned to the case to engage in a long succession of

overtly inappropriate acts on behalf of the defendants, acts that

even if not motivaféd by an obvious conflict of interest, constituted

impropriety. My complaint is not solely of a technical violation of

28 USC 455.

I enclose several documents that discuss the specifics of

that conduct and its intermediate consequences.

eo

The family relationship at issue is fairly complicated. In the

early 1970s, Judge Moran, his wife Robin, and their four minor

children were neighbors of attorney John Tucker, his wife Nancy

and their four minor children. The families became close friends.

In 1975, Robin Moran and John Tucker left their respective

spouses and filed for divorce. Shortly thereafter, both divorces

were granted and each of the wives was granted primary custody

of their respective minor children.

Almost immediately after these divorces, John Tucker and

Robin Moran were married. They continued to live as neighbors

of their respective former spouses. In 1979, Judge Moran and

Nancy Tucker were marned. They continued as neighbors of John

Tucker and his wife, the former Robin Moran. The eight children

of the two respective first marriages moved freely between the two

homes of their parents.

After six years of marriage, John Tucker and Robin

divorced. In early 1983, Tucker married Jayne Barnard, and they

remain married. Barnard and Judge Moran thus share four

stepchildren, two of whom were minors at the time of Barnard’s

marriage to Tucker and all of whom once lived with the judge.

Barnard’s husband was, for six years, the stepfather of Judge

Moran’s children, all of whom once lived with John Tucker.

My lawsuit was filed in December, 1984. In sworn

testimony in the case, Barnard indicated a close personal

relationship with the stepchildren she shares with Judge Moran. In

deposition testimony, she referred to one of those stepchildren as

“my daughter,” and stated that she was preoccupied in August,

1983 with her “daughter’s” wedding. At trial, she referred to the

children of her stepchildren as her own grandchildren.

At three status hearings in chambers during 1985 at which

I was present, the judge instructed the defendants’ counsel to file a

dispositive motion. There was no court reporter present at these

hearings. When the motion finally was filed, as a Rule 12(b)

S Za

motion, the judge orally ordered a stay in discovery in the case

until he ruled on the motion.

Seven months later, in May, 1986, he entered an order

stating that he intended to treat a Rule 12(b) motion as a Rule 56

motion.

My attorney at the time was a neighborhood lawyer who,

the judge certainly presumed, normally represented plaintiffs on a

contingent-fee basis. That is, he was not sufficiently prestigious to

command the attention of the members of your court and obtain an

appellate reversal of summary judgment. Already sufficiently

aware of the status-oriented culture that dominates federal court

practice, I quickly discharged that attorney and retained a

sufficiently prestigious one; i.e., the attorney represented

corporations as well as individuals, and, most important, charged a

substantial hourly fee.

The attorney, R. Peter Carey, had the added status and

credibility of having recently argued and won a case before the

United States Supreme Court.

The judge began an immediate retreat from his plan to end

the case with summary judgment. At the first hearing at which

Carey appeared, the judge confirmed that he indeed had intended

to grant the defendants summary judgment. He said he would

reconsider that decision, though, in light of Carey’s appearance on

my behalf. He said he had planned to base his ruling upon his

presumption that I would obtain no evidence through the

discovery process that would support the allegations in my

complaint. The premise, which proved incorrect, necessarily was

based upon either blind speculation or an out-of-court ex parte

representation to the judge.

I believe that that hearing was held in open court, with a

court reporter present.

54 a

In July, 1986, the judge filed a lengthy memorandum

opinion ruling on the dispositive motion that was filed at his own

instigation. The memorandum opinion was replete with factual

inaccuracy and snide commentary, but it treated the motion as a

Rule 12(b) motion, not as a Rule 56 motion.

(

The memorandum opinion dismissed parts of the

complaint, most notably parts that addressed mainly Jayne

Barnard’s conduct. In the following weeks, my attorney filed a

series of motions for reconsideration, and, in response, the judge

retreated further.

The cost to me in attorneys’ fees: approximately $25,000.

Had I not happened to have immediate access to that amount of

money to pay the legal fees, Judge Moran would have granted

summary judgment to the defendants -- on what essentially was

his own motion.

The July, 1986 memorandum opinion has had a large, if

largely indirect, effect upon the course of the litigation. So has

the undue delay of so many years in the progression of this

litigation, and threatens further substantial harm. Among the

enclosed documents is a copy of a motion I filed recently with the

Illinois Supreme Court for leave to file an amicus curiae brief on a

case that may change pertinent law significantly in favor of the

defendants in my lawsuit, and particularly in favor of Jayne

Barnard. The case may alter the standard of proof required in

lawsuits alleging employer blacklisting of former employees, a key

issue in my lawsuit. (Barnard already was assisted significantly by

the three-year delay in discovery, courtesy of Judge Moran, when

the head of a large insurance in-house law department, who had

made, and then retracted, a job offer to me in November, 1984,

died in 1987.)

The defendant in the case before the Illinois Supreme

Court filed objections to my motion, relying heavily upon the

memorandum opinion that Judge Moran entered in my lawsuit as

$ 5a

his ruling on the dispositive motion filed at his own insistence. My

motion for leave to file the amicus curiae brief was denied.

Also enclosed are lengthy documents detailing other large

consequences of the incessant delays in this lawsuit orchestrated

by Judge Moran.

Once Judge Moran concluded that he could not kill the

lawsuit by entry of a judgment order, he began to try to kill the

case by delay. For the following one and one-half years, he

refused to enter a discovery order in the case. Month after month

at status hearings, my attorneys would ask for the entry of a

discovery order, and month after month -- after month after

month -- the judge would promise to enter such an order at the

next hearing. Only when my attorney in January, 1988 filed

lengthy and detailed documents intended obviously as a prelude to

a mandamus petition to force the entry of a discovery order did the

judge refer the case to a magistrate for discovery purposes.

All of the delay -- ail of the delay -- during the years

when the case was assigned to Judge Moran was at the judge’s

instigation. The defendants did ask for a number of extensions of

time in which to respond to a lengthy request to admit facts, but

neither I nor they ever asked that this cause a delay in any other

discovery.

I had served the request to admit facts because the judge

had so stringently limited the lengths of the defendants’

depositions that I was forced to supplement them with written

requests for additional information. He refused, however, to place

any time restrictions whatsoever upon my deposition, allowing it

to extend indefinitely. It lasted for five days over a period of

years, and ended only when a subsequent judge granted my motion

to end it.

Judge Moran provided other assistance to the defendants,

as well. He unabashedly offered specific advice to their counsel

Sée

about litigation strategy, telling them which standard defense he

thought was most likely to succeed. The lawsuit is an employment

case. The judge’s advise to the defendants’ counsel: proffer that I

was discharged from my job because I did not get along with my

supervisor, a claim that the person who discharged me denied

repeatedly during discovery. This incident occurred during a

status hearing in chambers in the spring of 1987. I was not

present, but two of my attorneys, Michael J. Leech of Hinshaw &

Culbertson and Peter Carey, were. Each, in separate

conversations later that day, told me of the judge’s statements at

the hearing. It was my understanding that a court reporter also

was present.

In June, 1988, the United States Supreme Court affirmed

that 28 USC 455 actually means what it says and does require

judicial recusal in the circumstances described in that statute. I

had my attorney draft a recusal motion, and, in preparation,

contacted Judge Moran’s court reporter and requested transcripts

of certain hearings, as well as verification that no court reporter

was present at other particular hearings. Shortly afterward, and

before my motion was filed, Judge Moran quietly removed himself

from the case, trading it for a case from which Judge Paul Plunkett

had recused himself.

During the nearly four years that my lawsuit was assigned

to Judge Moran, eight case dockets were created from existing

ones in the Northern District of Illinois, seven for judges newly

appointed to the bench and one for a judge returning from an

extended leave of absence. Given this math, it appears likely that

the case remained assigned to Judge Moran because he was

removing it from the reassignment lottery each time.

Once reassigned to Judge Plunkett, the case remained there

for only fourteen months. At a hearing before that judge in

September, 1989, the defendants’ counsel stated his intention to

file a summary judgment motion. The judge responded with

dismay, and said that he was familiar enough with the case to

STH

believe that such a motion would be inappropriate. He set a date

for the filing of the pretrial order and for the scheduling of a trial

date. Shortly thereafter, the case was reassigned to a newly

appointed judge, Judge George Lindberg, who, without

explanation, granted most of the defendants’ eventual summary

judgment motion. (The single explanation that Judge Lindberg

provided in his order ruling on the summary judgment motion

stated his reason for nof granting the motion on one of the

counts. )

Nine new case dockets were created in the Northern

District of Illinois during the pendancy of this lawsuit there. The

result of the case reassignment lottery served the foreseeable,

obvious interests of the defendants al/ nine times.

A number of attormeys representing a cross-section of

federal court litigators have told me that Judge Lindberg’s conduct

in the case was so bizarre that it raises significant questions about

his motive for that conduct. They, and I, view some specifics of

that judge’s conduct as strongly suggesting a desire by him to

advertise to Judge Moran support for the defendants, and

particularly support for Barnard. In his Findings of Fact and

Conclusions of Law, Judge Lindberg lavished Barnard with praise

and gratuitously mentioned her husband and the law firm where he

was a longtime partner.

Yet Judge Lindberg displayed no bias in favor of the

defendants until the defendants filed a summary judgment motion

in 1990 that ostentatiously featured Judge Moran’s 1986

memorandum opinion. Judge Lindbe

This text is long and has been trimmed here. Open the source document for the complete record.