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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 872

## Text

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(') 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

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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

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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

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APPENDIX

Letter from the Clerk of the United States Supreme
Court re: extension of time to file petition
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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®

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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

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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

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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

hdl t ain. mal BS Mabe ate oe

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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.

nts sass Ai ott ath

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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rom ce ee ee ar pee oes

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

ee a ee, ee

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 right

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1315%3A1. Public record. Not legal advice.