# Opposition Brief — Voigt v. Savell > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1274%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1996 - **Citation:** 517 U.S. 1209 ## Text Supreme Court, U.S. ee ae SE a APR 18 1996 CLERK No. 95-1529 In The Supreme Court of the United States October Term, 1995 J. BURK VOIGT, Petitioner, Vv. RICHARD D. SAVELL, RONALD J. WOODS, KARROLD JACKSON, STEPHANIE COLE, ARTHUR SNOWDEN II, and STATE OF ALASKA Respondents. On Petition For Writ of Certiorari To The United States Court Of Appeals For The Ninth Circuit BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI FRANK S. KOZIOL Counsel of Record for Respondents 618 Christensen Drive Anchorage, Alaska 99501 (907) 258-7706 ee ~~ Ae meget ene rt te hss a AB Arta $e ES Ae | ) mente rmmeeniate-t-caesememanarnen peiemeres ys Se ee Foe i QUESTIONS PRESENTED FOR REVIEW (1) Where the content and circumstances of the speech are undisputed and where the Court of Appeals has applied the Pickering balancing test, has a compelling reason for granting the petition been shown if petitioner disagrees with the weight given the free Speech interest? , (2) Does an Alaska resident have Standing under 42 U.S.C. § 1985(3) to assert the constitutional rights of non-residents when the only contact with such non-residents is to occasionally consider them for hire as State employees? ii TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW TABLE OF CONTENTS TABLE OF AUTHORITIES OPINIONS BELOW COURT RULE INVOLVED STATEMENT OF THE CASE SUMMARY OF ARGUMENT ARGUMENT ° I. THE COURT OF APPEALS PROPERLY APPLIED THE PICKERING BALABLE.e © © © © © &© © & = @ II. VOIGT DOES NOT HAVE STANDING UNDER 42 U.S.C. § 1985(3) TO ASSERT THE CONSTITUTIONAL RIGHTS OF NON-RESIDENTS OF Re. +21. -* wwe ii iii 111i TABLE OF AUTHORITIES CASES PAGES Attorney Gen. of New York v. Soto-Lopez, es ee Cee — —« ~«— » 6 ew we we CG Caplin & Drysdale, Chartered v. United States, CO Hormel v. Helvering, Ee ee McCarthy v. Philadelphia Civil Serv. Comm’n, 424 U.S. 645 (1976) Lie ho & & «© «© « 4 Mt. Healthy City School Dist. v. Doyle, Oe lg Pickering v. Board of Ed. of Tp. H. S. Dist. 403, Zil., ea a Singleton v. Wulff, I United Bldg. and Constr. Trades v. Mayor of Camden, i rr CSeGe . oS Ck ttt wl Waters v. Churchill, coos Ge Beem £29964) . . . 1 ew ae Ds & iv TABLE OF AUTHORITIES - Continued CONSTITUTIONAL PROVISION PAGES United States Constitution, Article III . United States Constitution, Equal Protection Clause STATUTES a oe 2 | an ea i). © oa U.8.0, | TORRES nk Sale ss ee ee RULES Supreme Court Rule 10 .... » » 6s «2 l, 1 OPINIONS BELOW The tentative decision of the United States District Court dated January 31, 1994 has not been reported. A copy of that decision is set forth at Appendix I. (App. 75-160) COURT RULE INVOLVED Respondents have cited to United States Supreme Court Rule 10. Since this rule is lengthy, pursuant to Supreme Court Rule 24.1(f), the pertinent text is set forth at Appendix J. (App. 161-162) STATEMENT OF THE CASE The Court of Appeals has accurately and ably set forth the facts in its decision. (App. 3-7) A more extensive discussion of the facts is found in the Pistrict Court’s Tentative Decision issued on January 31, 1994 and referred to in the District Court’s Final Decision (App. 27, 75-160) The Court of Appeals found that J. Burk Voigt’s (Voigt) criticisms of Judge Richard Savell’s handling of the two internal personnel matters was an extension of a personal dispute with Judge Savell. (App. 11) Voigt memorialized this earlier dispute in a memorandum dated January 17, 1991. (App. 3, 163-167) 2 The Court of Appeals referred to affida- vits from court employees which set forth the disruption caused by Voigt’s criticisms. (App. 13) These affidavits show the harm caused by Voigt’s comments. (App. 180-196) Finally, Voigt criticized Judge Savell’s decision to uphold a grievance filed by an Alaska resident who complained about Voigt’s refusal to hire her. (App. 4) Judge Savell issued a written decision upholding this grievance. (App. 168-179) SUMMARY OF ARGUMENT Voigt’s 42 U.S.C. § 1983 claims were properly denied because the speech involved should not be constitutionally protected. The Court of Appeals correctly applied the balancing test set forth in Pickering v. Board of Education, 391 U.S. 563, 568 (1968). Voigt would balance the interests differently. However, given that Voigt’s criticisms involved two internal personnel matters, the Court of Appeals correctly concluded the employer’s interests were paramount. Voigt’s claims of unfair treatment are properly addressed by State claims in State court. Voigt cannot show a compelling reason for the petition for writ of certiorari (Petition) to be granted. Voigt’s 42 U.S.C. § 1983 claims were viewed in the light most favorable to Voigt. The content and circumstance of Voigt’s speech en 3 were resolved in Voigt’s favor. Any test in Waters v. Churchill, 114 S. Ct. 1878 (1994) is, therefore, inapplicable. Even if applicable, Voigt benefitted by not having the test applied. Furthermore, Voigt’s assertion that Waters should apply must be rejected because it was never raised in the lower courts. Voigt’s 42 U.S.C. § 1985(3) claim was properly denied because Voigt, an Alaska resident, lacks third-party standing to advance the constitutional rights of non- residents of Alaska. ARGUMENT : THE COURT OF APPEALS PROPERLY APPLIED ‘THE PICKERING BALANCE. The Court of Appeals applied the balancing test set forth in Pickering, 391 U.S. at 568 and concluded Voigt’s speech was not entitled to sconstitutional protection. (App. 2, 12) Voigt asserts greater weight should have been given his free speech interests. (Petition at 8) This is not a compelling reason to grant his petition. See, Supreme Court Rule 10. Voigt’s speech criticizing Judge Savell involved two personnel decisions. Voigt’s animosity to Judge Savell predated the personnel decisions. (App. 3) Voigt’s criticisms of Judge Savell severely damaged 4 office harmony and undermined Judge Savell’s authority. (App. 13) Voigt’s reference to Judge Jay Hodges’ affidavit is not contrary. (Petition at 5, 7) Judge Hodges does not acknowledge he knew of Voigt’s statements nor does he discuss their impact. (App. 52-56) The Court of Appeals recognized that Voigt’s assertions of unfair discrimination against non-residents and unfair treatment of job applicants in general touched on a matter Of public concern. (App. 12) Voigt suggests more weight should have been given to the allegation of discrimination because it involves underlying constitutional issues. (Petition at 8) Voigt likely errs as to any underlying constitutional issue. a state may impose a bona fide residency requirement as a condition of public employment. McCarthy Vv. Philadelphia Civil Serv. Comm’n, 424 U.S. 645, 646-647 (1976), (per curiam). Public employment is not a fundamental right under the Equal Protection Clause and the state may have bona fide residency requirements that are limited to public employment, services or funds. United Bldg. and Constr. Trades yv. Mayor of Camden, 465 U.S. 208, 219 (1984). A bona fide residency requirement, as opposed to a durational restriction, does not infringe on the constitutional right of interstate travel. Attorney Gen. of New York V. Soto-Lopez, 476 U.S. 898, 904 n.3 (1986). & i 3 5 Given the damage done to the employer’s interests, the Court of Appeals correctly concluded Voigt’s speech was not entitled to constitutional protection. Respondents prevailed based upon the District Court’s grant of summary judgment. (App. 8) The evidence was viewed in the light most favorable to Voigt. (App. 8) Thus, any factual dispute about what the speech was, its tone, or the listeners’ reaction was resolved in Voigt’s favor. The holding in Waters, 114 s. Ct. at 1884, 1889 (public employer’s reasonable belief that speech is unprotected permits employer to punish employee for that speech ) is inapplicable. The Waters holding rejected the summary judgment standard test as giving insufficient weight to the public employer’s interest in efficient government decision making. Waters, 114 S. Ct. at 1888. Therefore, contrary to Voigt’s assertions, Voigt benefitted by the failure to apply the waters test. The lower courts never addressed the question of whether Voigt could prove the protected speech was a “substantial” or “motivating” factor in his termination. Nor was the issve resolved whether the employer had shown that Voigt would have been fired even if the protected speech had not occurred. 6 See, Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287 (1977). These issues were not addressed because Voigt’s speech was held not entitled to federal protection. Voigt was free to pursue his State claims, including wrongful termination, in State court. (App. 8) Voigt’s reliance upon his management consultant’s affidavit is misplaced and better cited in State court. (App. 6, 37 n.4) Voigt alleges his employer failed to reasonably investigate "matters" prior to his termination, citing Waters. (App. 1, 9) As stated above, since there was no dispute as to Voigt’s speech, Waters is inapplicable. Even if applicable, Voigt raises this issue for the first time in his petition. The issue was not presented and argued to either the District Court or Court of Appeals. As a general rule, a federal appellate court will not consider an issue not passed upon below. The basis for the rule is that the parties should have an opportunity to offer all evidence relevant to the issues so the litigants will not be surprised on appeal by a final decision on issues of which they had no opportunity to present evidence. Singleton v. Wulff, 428 U.S. 106, 120 (1976), (citing Hormel v. Helvering, 312 U.S. 552, 556 (1941)). Therefore, this argument should not be considered. 7 The Court of Appeals correctly denied Voigt’s 42 U.S.C. § 1983 claims. II. VOIGT DOES NOT HAVE STANDING UNDER 42 U.S.C. § 1985(3) TO ASSERT THE CONSTITUTIONAL RIGHTS OF NON-RESIDENTS OF ALASKA. Voigt’s 42 U.S.C. § 1985(3) claim is based upon the premise that non-residents of Alaska competing for State public employment are entitled to special federal protection. The Court of Appeals never decided this issue. (App. 21, 24) Rather, the Court of Appeals found that Voigt lacked third-party standing to make the claim. (App. 24) Voigt suggests he has primary or first- party standing. (Petition at 10-11) However, Voigt was an Alaska resident at all pertinent times. (App. 21) Thus, Voigt is not a member of the class he asserts is entitled to federal protection. Voigt’s self-characterization as a "de facto non-resident" is erroneous. (Petition at 11) There is no factual basis for his assertion he was perceived to be a non-resident after residency was obtained. (Petition at 2) Voigt has no third-party standing because he has no special or close relationship to non-residents of Alaska. Voigt satisfied Article III’s case-or-controversy requirement, but failed the "prudential" test. See, Caplin 8 & Drysdale, Chartered v. United States, 491 U.S. 617, 623 n.3 (1989). (App. 22-24) The Court of Appeals correctly found Voigt’s only connection to non-residents is that he was occasionally in a position to hire a non-resident for employment with the State court system. (App. 23) This is not a sufficiently close relationship to the class of non-residents to conclude Voigt would be an effective advocate on their behalf. In fact, Voigt is a member of the class (Alaska residents) he seeks to disfavor. The petition should be denied. The Court of Appeals properly stated and applied the correct rule of law to undisputed facts. CONCLUSION Voigt’s Petition for Writ of Certiorari should be denied. DATED at Anchorage, Alaska, this 12th day of April, 1996. FRANK S. KOZIOL Counsel of Record for Respondents 618 Christensen Drive Anchorage, Alaska 99501 (907) 258-7706 No. 95-1529 In The Supreme Court of the United States October Term, 1995 J. BURK VOIGT, Petitioner, Vv. RICHARD D. SAVELL, RONALD J. WOODS, KARROLD JACKSON, STEPHANIE COLE, ARTHUR SNOWDEN II, and STATE OF ALASKA Respondents. On Petition For Writ of Certiorari To The United States Court Of Appeals For The Ninth Circuit APPENDIX TO BRIEF IN OPPOSITION TO PETITION FOR WRIT OF CERTIORARI App. 75 APPENDIX I IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA J. BURK VOIGT, Plaintiff, Ve RICHARD D. SAVELL, RONALD J. WOOD, KARROLD JACKSON, STEPHANIE J. COLE, ARTHUR SNOWDEN II, and STATE OF ALASKA, Defendants. ee ee ee ee ee ee” Case No. F92-012 Civil (JKS) ORDER (Filed February 2, 1994) Defendants moved for partial summary judgment on Plaintiff’s federal retaliatory discharge claims (Docket No. 87), Plaintiff filed his objection to the motion (Docket No. 101), and Defendants replied (Docket No. 112). The parties have not requested oral argument. Nevertheless, because this motion presents issues that implicate developing law, the Court feels that oral argument would be help- ful to provide a forum in which questions can be answered and the record clarified as to troubling points. Therefore, pursuant to Local Rule 5(C), the Court will hear oral App. 76 argument on the motion for partial summary judgment on Monday, March 28, 1994, at 2:00 P.m. in Fairbanks. In order to aid the parties in preparing for oral argument, the Court has prepared a tentative decision regarding Defendants’ motion. The tentative decision discussed below is not intended to chill or discourage oral advocacy or inhibit counsel in vigorously representing their positions. Its purpose is to focus the parties’ attention on any errors of fact or law that the Court may be laboring under and thus provide an opportunity at argu- ment to correct errors, prepare an accurate record, and assure that the material facts and the controlling law are completely developed. Following oral argument, the Court may modify or change its tentative decision if it relied on erroneous factual or legal conclusions. CASE STATUS J. Burk Voigt was the Clerk of Trials Court and Assistant Area Court Administrator for the Fourth Judicial District of Alaska at Fairbanks from July 17, 1989, until his termination on March 26, 1992.} Voigt * The reasons for Voigt’s discharge were articulated in a letter of March 24, 1992, informing Voigt of the intention to dismiss him effective March 26 at 4:30 P-m. Docket No. 101, Ex. Q-l1. The reasons included the ra 3 ; Be 4 3 = 4 b, 4 Bi “4 ; f By following: 1. engaging in a consistent pattern of making inappropriate statements to subordinate employees, resulting in a demoralizing effect on employees and subjecting the court system to potential liability; including the following: -- statements designed to "torpedo" the selection of Judith Cramer as Area Court Administrator; -- discussing a supervisor’s poor performance with a subordinate employee of that supervisor; -- statements indicating gender bias; -- expressing dissatisfaction with a Civil Supervisor with other supervisory and non-supervisory employees who had no interest or reason for involvement; -- prohibiting staff from smoking together or mingling during office breaks; -- removing a supervisor from a Revisions in Progress committee and warning her not to disclose or discuss the removal; -- referring to civil clerks as “dumb clerks"; -- placing employees in fear of retaliatory action after learning that some might have violated Voigt’s "edict" forbidding staff from talking to the presiding judge; -- ordering employees to “play dumb” in communicating with the new Area Court App. 78 has brought an action against each of the Administrator; 2. misusing court resources for improper and harmful purposes; for example, ordering long computer-generated reports for no reason other than to deny others computer system access and to assert control over the system; 3. engaging in insubordinate behavior by openly criticizing the presiding judge’s decision in the grievance filed by Roberta Demoski, discouraging employees from communicating with the presiding judge, and attempting to undermine the presiding judge’s action in front of subordinate employees; and 4. engaging in poor personnel and supervisory practices, such as: -- discouraging employees from applying for other jobs within the Clerk’s Office; -- creating the appearance of having preselected applicants; -- undermining the ability of Demoski to survive in the work environment of the Clerk’s Office; -- creating a work environment in which employees fear retaliation for expressing opinions contrary to Voigt’s; -- violating Personnel Rule 6.05 regarding overtime compensation by allowing an employee to accumulate substantial overtime hours’ without compensation. SS iS RI eR RCE SS YES PAE TES IE cr ND TA TAR. OE de oO LT Nake PRR BA App. 79 following Defendants in his or her individual capacity: Judge Richard D. Savell, the presiding judge of the Fourth Judicial District at Fairbanks since January 1, 1991; Ronald J. Woods, the Area Court Administrator for the Fourth Judicial District since November 18, 1991; Karrold Jackson, the Personnel Director for the Alaska Court System Since June 1, 1983; Stephanie J. Cole, the Deputy Administrative Director and senior lawyer on the administrative staff for the Alaska Court System; Arthur H. Snowden II, the Administrative Director of the Alaska Court System since September 9, 1973; and the State of Alaska.’ Voigt’s Second Amended Complaint at Docket No. 100 includes both federal and state law claims. Earlier, this Court dismissed all claims against the State of Alaska for damages, and all federal claims against the remaining Defendants except federal retalia- tory discharge claims. Docket No. 56. The Court advised the parties that it will not consider the state law claims until the * There is some confusion as to whether Snowden and Cole are actually parties. See Docket No. 112, p. 27, 31-32. Voigt’s Second Amended Complaint does not include Snowden or Cole under "Parties," but does refer to them as defendants in Counts XII and XIII. Docket No. 100. For purposes of this tentative decision, I will treat them as parties. App. 80 federal retaliatory discharge claims are decided. Docket No. 56. In his federal retaliatory discharge claims, Voigt alleges that the Defendants fired him because Voigt openly criticized Judge Savell’s manner of hiring a new Area Court Administrator and because Voigt hired a nonresident applicant for the Court Clerk I position in the Fairbanks Records Department instead of a resident applicant. Voigt contends that the Defendants’ retaliatory discharge deprived him of his constitutional right to free speech, violating 42 U.S.C. § 1983. Voigt also contends that’ the Defendants conspired to discriminate against out-of-state applicants, restricting their right to travel and violating 42 U.S.C. § 1985(3). The Court has ordered that the issue of whether or not the federal claims are barred by the affirmative defense of qualified immu- nity must be addressed at an early stage, before significant discovery. Docket Nos. 80, 89. If the issue of qualified immunity is decided in favor of the Defendants, then the Court will consider remanding Voigt’s remain- ing state law claims to the state court. If the issue is decided in Voigt’s favor, then discovery will proceed. If the Court deter- mines that a trial on the federal claims is necessary, it may decide to consider the state law claims at the same time (assuming Voigt is = _—- ss ht SARIS Re NPs Bay il that it Eat teas tics Bhi one as tae ae ele a [ee Oe ee aS Oe ee a ae ee iif Jind bake ll oly at “eee, SR ENS ES IA SE PTR IR ae esc App. 81 entitled to de novo review). Docket No. 80. However, the Court discourages any attempt by the parties to use "marginal federal claims to bootstrap state claims into federal court." Id. DISCUSSION I. QUALIFIED IMMUNITY GENERALLY A. Legal Standards Qualified immunity protects government officials performing discretionary functions from liability for civil damages, unless the official’s conduct violates clearly estab- lished statutory or constitutional rights of which a reasonable person would have known. Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir. 1993) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It is presumed that a defendant official is entitled to qualified immunity. Elder v. Holloway, 975 F.2d 1388, 1392 (9th Cir. 1991). The immunity given to the official is immunity from suit, not simply a defense to liability, and therefore immunity questions should be resolved at the earliest possible stage in litigation. Hunter v. Bryant, 112 S. Ct. 534, 536 (1991). Thus, the issue of immunity is generally a legal ques- tion for the court to decide, not the jury. Id. at 537; Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993). App. 82 In determining whether or not an official is entitled to qualified immunity, the Ninth Circuit has adopted a two-part analysis: (1) Was the law governing the official’s conduct clearly established? (2) Under that law, could a reasonable officer have believed that his conduct was lawful? Act Up!/Portland, 988 F.2d at 871; Hemphill v. Kincheloe, 987 F.2d 589, 592 (9th Cir. 1993).? Although these are questions of law, the plaintiff in a retaliatory discharge action bears the burden of proving that the right allegedly violated was clearly established at the time of the official’s conduct in order to overcome the presumption that the defendant official is immune from damages. See Camarillo, 998 F.2d at 639; Elder, 975 F.2d at 1392; Romero, 931 F.2d at 627. This means that the plaintiff “must show that the parti- cular facts of his case support a claim of clearly established right, and he loses if he does not come forward with statutory or deci- * Cf. Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 199%) ("The qualified immunity test necessita .s three inquiries: (1) the identification of the specific right allegedly violated; (2) the determination of whether that right was SO "clearly established" as to alert a reasonable officer to its constitutional parameters; and (3) the ultimate determination of whether a reasonable officer could have believed lawful the particular conduct at issue"). ST CE mR App. 83 sional law on which the court can find that the constitutional right allegedly violated was clearly established." Elder, 975 F.2d at 1393. The law is “clearly established” when "the contours of the right [are] sufficiently clear that a reasonable official would under- stand that what he is doing violates that right." Camarillo, 998 F.2d at 640 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). If the plaintiff carries this burden, then the officials must prove that their conduct was reasonable even though it might have violated constitutional standards. Romero, 931 F.2d at 627. The court may assert its discretionary power to permit limited discovery to determine if there are genuine issues of material fact surrounding the reasonableness of the official’s conduct. Id. at 628. B. Waiver Voigt contends that the Defendants have waived their qualified immunity defense and objects to the Court’s assertion of the defense sua sponte. Docket No. 101, pp. 6-13. Voigt admits that the Defendants raised the affirmative defense of qualified immunity initially in their answers to Voigt’s com- plaints, but complains that the Defendants did not pursue the defense in subsequent pleadings until prompted by the Court’s Order at Docket a App. 84 No. 80. Voigt further contends that the Defendants’ memorandum at Docket No. 87 inadequately briefs the issue, violating Local General Rule 5(B)(1)(b). Voigt does note that the Ninth Circuit permits the defense to be raised for the first time at summary judgment in the absence of a showing of prejudice. Camarillo, 998 F.2d at 639. However, Voigt contends that he has been "philosophically" prejudiced by the Court’s prompting of the Defendants. The Defendants respond that their motion for partial summary judgment on the issue of qualified immunity is still early in the dis- covery process and that they never intended to abandon the defense. Docket No. 112. They argue that Voigt has not demonstrated any prejudice from the delay in deciding the issue. The only deposition taken in the case so far has been the Defendants’ deposition of Voigt in order to determine the basis for his free speech claims. Docket No. 112, p. 2. Furthermore, the Defendants note that contrary to Voigt’s contention, they did cite to the seminal case on qualified immunity, Harlow. The Court has not specifically rejected Voigt’s waiver contention, but has explained that a waiver requires an intentional and voluntary relinquishment of a known right. Docket No. 89. It is clear that the | Defendants never intended to waive the defense of qualified immunity. Furthermore, Voigt App. 85 suffers no real prejudice; unlike the factual situation in Camarillo, the Defendants here asserted their affirmative defense of quali- fied immunity in their answers to Voigt’s complaints. Voigt should not be surprised to find the issue raised at summary judgment. Thus, case law supports finding that Defendants have not waived the defense. See, e.g., Camarillo, 998 F.2d at 639. C. Availability in a § 1985(3) Action Voigt contends that public officials are not entitled to qualified immunity for an alleged conspiracy under 42 U.S.C. § 1985(3). Docket No. 101, p. 72. He cites Burrell v. Board of Trustees of Georgia Military College, 970 F.2d 785, 794 (llth Cir. 1992), cert. denied, 113 S. Ct. 1814 (1993). In Burrell, the court explained that because public offi- cials are not liable in a § 1985(3) action unless their actions were motivated by “some racial, or perhaps otherwise class-based, invidiously discriminatory animus," they enjoyed additional protection against § 1985(3) actions not available to them in § 1983 actions. The court opined that denying officials qualified immunity under section 1985(3) would not threaten "the breathing space they need for making discretionary decisions," since invidious discrimination “has no place in public policy and any actions by public officials based on such animus deserve to be chilled." Id. at 794. App. 86 The Ninth Circuit has not addressed this issue specifically. However, qualified immu- nity has been applied where the defendant attempted to assert a conspiracy claim under § 1983 and § 1985. See Hewitt v. Grabicki, 794 F.2d 1373, 1381 & n.5 (9th Cir. 1986). As discussed below, it certainly is not clearly established under federal law that nonresident applicants seeking public employment are a protected class within the meaning of a § 1985(3). If it turns out that they are, should the officials be liable for damages? Qualified immunity would preclude plaintiff’s suit for civil damages, but not plaintiff’s suit in equity for prospective injunctive relief. See Wheaton v. Webb-Petett, 931 F.2d 613, 620 (9th Cir. 1991) (noting that section 1983 plaintiff may seek prospective injunctive relief from state officials who have personal immunity from damages). In the absence of a clear holding on the issue by the Supreme Court, this Court considers the qualified immunity defense to be available in a § 1985(3) action. II. WAS THE LAW SO CLEARLY ESTABLISHED THAT A REASONABLE OFFICIAL SHOULD HAVE REALIZED THAT CONSPIRING TO DISCHARGE VOIGT FOR REFUSING TO DISCRIMINATE AGAINST NONRESIDENTS APPLYING FOR PUBLIC EMPLOYMENT WOULD VIOLATE 42 U.S.C. § 1985(3)? A. Relevant Facts Voigt’s claim under 42 U.S.C. § 1985(3) is predicated on his belief that the ee ee ee eee at Tees cn oo ones Sh lh i a ee ee App. 87 Defendants conspired to discharge Voigt because he refused to follow the Defendants’ allegedly improper policy of discriminating against nonresident applicants for jobs with the Alaska Court System. Voigt’s belief stems from the following facts. On February 7, 1992, Voigt hired an out- of-state applicant for the position of Court Clerk I in the Records Department, Margaret Crawford/Perron, instead of a court clerk from Galena, Alaska, Roberta Demoski. Docket No. 101, Ex. H, p. 13; Ex. J-17.* Apparently, in making his decision, Voigt considered Personnel Rule 3.09 and Personnel Rule 3.13.02. Id.* He felt that Crawford/Perron, * Both previously applied unsuccessfully for the Court Clerk II position in the Criminal Department. Dana Hoffman/Evans, a clerk in the Records Department, received the job. 5 Personnel Rule 3.09 permits consideration of an applicant’s education, experience, record of accomplishment, knowledge, skill, capacity, intelligence, character and attributes to the extent such criteria are relevant to the position. Docket No. 101, Ex. K, p. 24-25. Personnel Rule 3.13.02 requires that "fajmong equally qualified applicant’s preference shall be given to each tenured employee in the classified service who is competing for a promotion." Id. (sic) at 26. Voigt notes a App. 88 who had previously worked as a law clerk for two of the Fairbanks judges, would make sig- nificant contributions because of her legal experience and education and first-hand experience with the court and judges. Docket No. 101, Ex. E-2. She was also the recom- mended choice of the Records Supervisor, Jan Stroffolino, who had listed the top three candidates-- none of whom was Demoski. Docket No. 101, Ex. J-15.° that the Galena clerk was classified as a range 10 position, while the Fairbanks records clerk was classified as a range 8 position. Thus, Voigt concluded that Rule 3.13.02 did not apply because Demoski was not competing for a promotion. Docket No. 101, Ex. H, p. 13. * Voigt contends that Demoski was not the best qualified applicant for the Records Clerk position, citing statements made by Sharon Hotrum, the Chief Deputy Clerk. Docket No. 101, p. 49. In a recorded interview with Karrold Jackson, Hotrum stated that although she initially favored Demoski because she was an Alaska resident, she conceded that Demoski’s answers to questions regarding her abilities were weak. Docket No. 101, Ex. O-6, pp. 9-10. However, Voigt appears to take Hotrum’s statements out of context. Hotrum was never involved with the interview process for the Records Clerk I position; she only interviewed applicants for the Criminal Clerk II position. Docket No. 101, Ex. O-6, p. 5. Consequently, her opinion did not address App. 89 Demoski filed a grievance following Voigt’s decision, and on February 25, 1992, Defendant Judge Savell issued a decision concluding that her grievance was valid. He found that Voigt relied upon improper criteria, applied impermissible factors and ignored Personal [sic] Rule 3.13.02. Docket No. 101, Ex. E-5, p. 6.’ He ordered that Demoski be transferred to the Fairbanks Clerk’s Office for the first available position for which she was qualified. Id. Pending the grievance decision, on February 13, 1992, Defendant Snowden ordered Defendant Jackson to conduct an investigation into the recent hirings at the Fairbanks Clerk’s Office. Snowden addressed four major concerns, one of which was whether or not “appropriate deference” was given to "in-house applicants." Docket No. 101, Ex. J-19. The affidavits of Judge Hodges, Crawford/Perron, and Voigt all state that Defendant Woods dis- cussed the Demoski grievance with Snowden and requested that Snowden put in writing any whether or not Demoski was the better qualified applicant for the records clerk position. ” Judge Savell also found that Voigt’s statements regarding the hiring of the Fairbanks records clerk (Hoffman/Evans) for the Court Clerk II position in the Criminal department suggested that an improper preselection had occurred. Id. [sic] at 4-5. App. 90 policy of not hiring applicants from out-of- state, and that Snowden responded that he could not put the policy in writing because it would be illegal. Docket No. 101, Ex. F, G, and H. In her investigation, Jackson conducted recorded interviews with various employees of the Clerk’s Office during March 1992." Voigt cites passages from Jackson’s interviews with Woods on March 4-5, 1992, revealing that Jackson warned the unsuspecting Woods that there was strong resistance to hiring non- residents;’ Jackson reminded Woods of ®* voigt refers to the affidavit of John Taylor, an associate professor of management at UAF, who opines that these interviews reveal the existence of a conspiracy to discharge Voigt in retaliation for his refusal to hire only Alaskans. Docket No. 101, p. 36; Docket No. 101, Ex. I-l, pp. 5-8. In Judge Fitzgerald’s order of July 17, 1992, denying Voigt’s motion for a preliminary injunction, Judge Fitzgerald refused to give much weight to Taylor’s testimony because the professor had insufficient information upon which to base an opinion. Docket No. 24. However, in his affidavit of August 23, 1993, Taylor states that he has since been supplied with a substantial volume of new materials detailing the events that took place. Docket No. 101, Ex. I-l, p. 2. ° However, as the Defendants point out, Jackson also noted that she personally did not App. 91 Defendant Cole’s instruction to avoid selecting from outside Alaska; Woods had failed to understand the ruckus that could result from hiring out-of-state; Jackson warned that Woods must take full control to assure Voigt changed his behavior or Woods could lose his job. Docket No. 101, Ex. 0-4, pp. 42-47; Ex. O-5, pp. 22-27. Voigt contends that Judge Savell was part of the Snowden-Jackson-Cole conspiracy to unlawfully discharge Voigt, citing Jackson’s telephonic interview with Accounting Supervisor, Shirley Nash, on March ll, 1992. In that interview, Jackson states that she has spoken with Judge Savell several times and feels that he is very interested in helping the disgruntled employees of the Clerk’s Office. Docket No. 101, Ex. O-22, p. 24. Voigt also cites Judge Savell’s memorandum to court employees on March 12, 1992, inviting their comments on a new filing system; the employees were instructed to ignore the chain of command and submit comments directly to the judge by March 24; the submissions could be anonymous. Docket No. 101, Ex. N-1.5. Voigt argues that the invitation for comments on the filing system was a pretense for soliciting negative comments about Voigt. Docket No. 101, p. 44-45. advocate Alaska-hire. Docket No. 101, Ex. O- 4, p. 45. App. 92 On March 24, 1993, Woods and Savell issued to Voigt their intent to dismiss letter, effective March 26 at 4:30 p.m. Docket No. 101, Ex. Q-1. Among other things, the letter referred to Voigt’s criticism of Judge Savell’s decision on the Demoski grievance. See footnote l, supra. Voigt received a final notice of dismissal on March 27, 1992, following a pretermination hearing. Docket No. 101, Ex. Q-3. B. Legal Discussion = Preclusion by Qualified Immunity To establish a violation of 42 C8 .¢. § 1985(3), the Plaintiff must prove the following elements: "(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States." United Bhd. of Carpenters and Joiners of America v. Scott, 463 U.S. 825, 828-29 (1983). To determine whether or not qualified immunity precludes Voigt’s § 1985(3) Claim, the Court must determine whether or not the law was sufficiently clear that a reason- able official would know that conspiring to discharge Voigt for refusing to follow an Po es App. 93 implied policy of discriminating against nonresidents applying for public employment would violate the second element of § 1985(3). a. unlawful discrimination The second element of § 1985(3) requires "some racial, or perhaps otherwise class- based, invidiously discriminatory animus behind the conspirators’ action." Griffin v. Breckenridge, 403 U.S. 88, 102 (1971). If the phrase "perhaps otherwise class-based" is to be extended beyond race, it “unquestionably connotes something more than a group of individuals who share a desire to engage in conduct that the § 1985(3) defendant dis- favors.” Bray, 113 S. Ct. at 759. In Scott, the Supreme Court analyzed the legislative history of § 1985(3) and concluded that "it is a close question whether § 1985(3) was intended to reach any class-based animus other than animus against Negroes and those who championed their cause, most notably Republicans." 463 U.S. at 836. However, the Court determined that § 1985(3) could not, in any event, be construed to reach conspiracies "motivated by economic or commercial animus," such as conspiracies against nonunion employees. Id. at 838. More recently, the Court held that discriminating against antiabortionists “is not the stuff out of which a § 1985(3) ‘invidiously discriminatory animus’ is created." Bray, 113 S. Ct. at 762. App. 94 In the Ninth Circuit, § 1985(3) is extended beyond race if the courts have desig- nated the class in question as a suspect or quasi-suspect classification or if Congress has indicated through legislation that the class requires special protection. Sever v. Alaska Pulp Corp., 978 F.2d 1529 (9th Cir. 1992) (citing Schultz v. Sundberg, 759 F.2d 714, 718 (9th Cir. 1985)); See also Canlis v. San Joaquin Sheriff’s Posse Comitatus, 641 F.2d 711, 720 (9th Cir.), cert. denied, 454 U.S. 967 (1981) ("§ 1985(3) applies only to groups that require and warrant’ special federal assistance in protecting their civil rights"). Voigt contends’ that discriminating against nonresident applicants is the type of invidious discrimination that violates § 1985(3). He cites Hicklin v. Orbeck, 437 U.S. 518 (1978), which held that the Alaska "local hire" statute requiring all pipeline- related contracts source of evil to justify a flat employment preference. Id. at 527. That case, however, does not imply that non- residents are a suspect or quasi-suspect class protected from discrimination under § 1985 (3). As the Defendants point out, the discrimina- tion against nonresidents for Alaska jobs is motivated by economic concerns (3..@., to employ more Alaskans), which does not violate § 1985(3) under Scott. App. 95 It is doubtful that discriminating against non-residents for public employment would violate the Privileges and Immunities Clause.’® The Supreme Court does hold that the "pursuit of a common calling" is a fundamental privilege under the Clause. Camden, 465 U.S. 208, 219 (1984) (citing Baldwin v. Montana Fish and Game Comm’n, 436 U.S. 371, 387 (1978)). However, that privilege appears limited to private employment. The Ninth Circuit implies that the law is unsettled as to whether or not public employment is a fundamental privilege under the Clause. International Org. of Masters, Mates & Pilots v. Andrews, 831 F.2d 843, 856 (9th Cir. 1987), cert. denied, 485 U.S. 962 (1988) (citing Camden, 465 U.S. at 219-20). However, the Supreme Court has clearly stated that the test for constitutionality is whether the discrimi- nation by the state or city would in any way bias the employment decisions of private °° “Application of the Privileges and Immunities Clause to a particular instance of discrimination against out-of-state residents entails a two-step inquiry." United Bldg. and Constr. Trades Council v. City of Camden, 465 U.S. 208, 218 (1984). First, the court must decide whether the discrimination burdens a privilege or immunity protected by the Clause. If so, then the second inquiry is to determine whether there are substantial reasons for the discrimination and whether the degree of discrimination bears a close relation to such reasons. Id. at 218, 222. App. 96 employers (such as contractors or _ sub- contractors) against out-of-state residents. Camden, 465 U.S. at 221. In Hicklin and in Camden, the discrimination affected private contractors working on public projects. In the present case, the discrimination against nonresidents applying for employment with the Alaska Court System would not have any direct or indirect effect on private employers within the state.” As far as potentially violating the right to travel, protected by the Equal Protection Clause, it is well-settled that while a state cannot condition public benefits or political rights on a term of residency, states may con- dition nonessential benefits and rights on a term of residency. See Andrews, 831 F.2d at 846 (citing Supreme Court cases). There is no fundamental right to government employment for ‘* In an analogous context, the state, as an employer, is acting as a market participant. In dormant Commerce Clause cases, the Ninth Circuit has afforded states broader power to affect private employment and to discriminate against out-of-state entities when states act as market participants rather than as market regulators. See, e@.g., Associated Builders and Contractors, Inc. v. City of Seward, 966 F.2d 492 (9th Cir. 1992), cert. denied, 113 S. Ct. 1577 (1993); Big Country Foods, Inc. v. Board of Educ. of the Anchorage Sch. Dist., 952 F.2d 1173 (9th Cir. 19923; LJ Td Meh SL Wome tlhe iS ana tl EI DE aE CLESER AOI BEE REN WS RAIDERS AM ete hi OKLA aici aden Sie SB elias App. 97 purposes of the Equal Protection Clause. Camden, 465 U.S. at 219. Thus, a state may condition applications for public employment on a bona fide residency requirement. See McCarthy v. Philadelphia Civil Service Comm‘n, 424 U.S. 645, 646-47 (1976) (per curiam) (upholding requirement of municipal residency for municipal employees). Furthermore, favoring resident applications is "rationally related" to the goal of attracting Alaskans to work for the state’s court system. See Andrews, 831 F.2d at 847 (upholding Alaska statute that provided for cost of living wage differentials between state marine highway system’s resident and nonresident employees). Thus, under the law as it stood in 1992, it was not clearly established that conspiring against nonresident applicants for public employment would violate § 1985(3), the Privileges and Immunities Clause, or the Equal Protection Clause. Consequently, it appears that qualified immunity precludes Voigt’s Claims relating to discrimination against nonresidents and the infringement of a non- resident’s right to travel. b. standing to assert unlawful discrimination Even if the Court were to determine that the law clearly protects nonresidents under § 1985(3), Voigt, a resident of Alaska, lacks standing to assert his discrimination claims. The Court has already noted Voigt’s potential ON EOL App. 98 lack of standing in its Order at Docket No. 89, citing Briley v. California, 564 F.2d 849, 858-59 (9th Cir. 1977), and Canlis, 641 F.2d at 718-21. Voigt argues that Briley does not stand for the proposition that a plaintiff must be a member of a class discriminated against to assert claims under § 1985(3). Docket No. 101, pp. 59-65. Rather, he argues that the statute itself states that defendants may not discriminate against “any person or class of persons." 42 U.S.C. § 1985(3) (underlining added). Voigt contends that the statute and Briley articulate an "either/or" situation. Voigt further contends that both the Court and the Ninth Circuit in Canlis misinterpreted the statute and Briley.'? He cites to a number of decisions from other circuits allowing non- members of the class to assert § 1985(3) claims on behalf of the class. Those decisions, however, preceded Caplin & Drysdale v. United States, 491 U.S. 617 (1989). In Caplin & Drysdale, the law firm ‘2 Note that the Ninth Circuit in Canlis stated as follows: "The law in this circuit is clear: the plaintiff must be a member of the class discriminated against to claim the benefits of § 1985(3)." Canlis, 641 F.2d at 721. This Court cannot ignore decisions of the Ninth Circuit regardless of its opinions concerning the Court of Appeals’ reasoning. App. 99 representing a criminal defendant charged with engaging in a continuing criminal enterprise challenged the forfeiture of defendant’s assets used to retain the law firm, arguing that the forfeiture statute infringed on the criminal defendant’s Sixth Amendment right to counsel of choice and violated the Due Process Clause of the Fifth Amendment. On the stand- ing issue, the Court stated the following test: When a person or entity seeks standing to advance the consti- tutional rights of others, we ask two questions: first, has the litigant suffered some injury in fact, adequate to satisfy Article III’s case-or-controversy require- ment; and second, do prudential considerations which we have iden- tified in our prior cases point to permitting the litigant to advance the claim? ... The second inquiry-- the prudential one-- is more difficult. To answer this question, our cases have looked at three factors: the relationship of the litigant to the person whose rights are being asserted; the ability of the person to advance his own rights; and the impact of the litigation on third- party interests. Id., 491 U.S. at 623 n.3 (1989). The Caplin & Drysdale test was applied by the Supreme Court recently in a right-to-travel case, Nordlinger v. Hahn, 112 S. Ct. 2326, 2332 (1992). In Nordlinger, a California homeowner App. 100 and resident challenged the state’s exemptions for transfers of property by owners over 55 and for transfers between parents and children from tax reassessments, alleging that the exemptions violated the right-to-travel because they made classifications directly on the basis of California residency. The Court found that the petitioner did not have stand- ing to assert the constitutional claim because She did not identify any obstacle preventing nonresidents from asserting claims on their own behalf and did not show any special rela- tionship with nonresidents whose rights she wished to assert. Id. at 2332 (citing Caplin & Drysdale, 491 U.S. at 623 n.3). In this case, Voigt is not arguing that his own right-to-travel as a nonresident is restricted;** rather, he argues that because the state restricts others’ rights to travel by discriminating against nonresident appli- cations, the state denies Voigt employment unless he agrees to discriminate against nonresidents, too. Therefore, he would argue, if non- residents are deserving of protection under § 1985(3), Voigt should be able to assert a claim under § 1985(3) because his injury is associated with the nonresidents’ plight. This assertion may show an injury that could satisfy the first prong of the ‘Indeed, it is instructive that Voigt was a "non-resident" at the time he was hired as Clerk of Court for Fairbanks. App. 101 Caplin & Drysdale test. However, Voigt cannot assert others’ rights-to-travel because Voigt’s situation does not satisfy the second inguiry under Caplin & Drysdale. See Nordlinger, 112 S. Ct. at 2332. In light of Caplin & Drysdale, Voigt lacks standing to assert the § 1985(3) claim. 2. Lack of “Conspiracy” Precludes Claim a. intra-corporate conspiracy doctrine Defendants contend that Voigt’s con- spiracy claim under § 1985(3) is barred by the “intra-corporate conspiracy doctrine," which holds that managers of a corporation jointly pursuing its lawful business do not become “conspirators” under § 1985(3) when acts within the scope of their employment are said to be discriminatory or retaliatory. Defendants cite Travis v. Gary Community Mental Health Ctr., Inc., 921 F.2d 108 (7th Cir. 1990), cert. denied, 112 S. Ct. 60 (1991). In Travis, the plaintiff sued three senior executives of a mental health center under § 1985(2) after she was fired following her testimony on behalf of an employee that was suing the Center for vacation, sick, and holiday pay. It was unclear from the facts whether the Center was a private or public employer. The court cited an earlier Seventh Circuit decision, Dombrowski v. Dowling, 459 App. 102 F.2d 190, 196 (7th Cir. 1972) (Stevens, J.), which held that a discriminatory business decision by two or more executives of the same firm did not constitute a conspiracy within the meaning of § 1985(2). In reexamining the issue, the Travis court noted two rhetorical questions that framed the dispute: (1) Why should action by a single employer be covered by § 1985 just because discussions among’ the firm's multiple agents precede decision? (2) Why should decisions taken by a plurality of actors be immune from check under § 1985 just because they take the trouble to incorporate? Id. at 109. The Travis court then looked to the function of a § 1985 and determined that "Congress was concerned not about unilateral action but about organized, almost society- wide resistance to emancipation and civil rights." Id. at 110. Consequently, the court Supported the Dombrowski decision. The Seventh Circuit recently reaffirmed the Travis decision in Hartman v. Board of Trustees of Community College Dist. No. 508, Cook County, Illinois, 4 F.3d 465 (7a Cir. 1993). In Hartman, the plaintiff sued the Board of Trustees of a public institution under § 1985(3) after certain trustees directed her not to send a special student recruitment program into Latino communities. In dismissing the § 1985(3) claim under the App. 103 intra-corporate conspiracy doctrine, the court noted that the doctrine would not apply if the defendants are shown to have been motivated solely by personal bias. If the interests of the corporation played no part in the collect- ive action, then the action was not taken within the scope of employment. Id. at 470. Also, the doctrine may not apply if it is shown that the conspiracy was part of some broader, extensive discriminatory pattern that permeated the ranks of the public institu- tion’s employees. Id. at 470-71. While the intracorporate conspiracy doctrine may be well-established in other circuits, the Ninth Circuit Court of Appeals has not squarely addressed whether it applies in § 1985 cases. See Portman v. County of Santa Clara, 995 F.2d 898, 910 (9th Cir. 1993) {noting the massive split on the issue in other circuits, but refusing to decide the issue without briefing by the parties); Padway v. Palches, 665 F.2d 965, 969 (9th Cir. 1982) (expressly reserving the issue). Two district courts in the Ninth Circuit, however, have squarely addressed the issue and have con- cluded that the doctrine should not apply to conspiracies within a single governmental entity. See, e.g., Diem v. City and County of San Francisco, 686 F. Supp. 806, 810 (N.D. Cal. 1988); Rebel Van Lines v. City of Compton, 663 F. Supp. 786, 790-93 (C.D. Cal. 1987). App. 104 The district court in Rebel van Lines noted that the Ninth Circuit had decided several cases involving § 1985 allegations against executives of a single corporation and had never dismissed the claims on the ground that they did not state a conspiracy. Con- sequently, the court felt the Seventh Circuit’s Dombrowski decision "is of doubtful vitality in this circuit." Id. at 791. The district court opined that "there is no reason to believe that discrimination by an indivi- dual business is less harmful than discrimina- tion by multiple businesses, or that discrimi- nation by a single business deserves to be protected because it confers any benefit on society [citation omitted]. Conspirators should not be able to avoid the civil rights laws merely by incorporating before they commit their discriminatory acts." Id. at 792. The district court went on to hold that even if Dombrowski was good law as applied to private business, the doctrine could not apply to conspiracies within governmental entities, for to do so would immunize official policies of discrimination, contravening the law as it now exists." ‘* The court cited Monell v. Department of Social Servs., 436 U.S. 658, 690-91 (1978), which held that a municipality could be liable under § 1983 if the injury was the result of a custom or policy of the municipality. The court reasoned that if the intracorporate conspiracy doctrine applied to conspiracies App. 105 The Rebel Van Lines opinion appears well- reasoned. Even if the Ninth Circuit has not ruled specifically on the issue, it appears that it has impliedly refused to apply the doctrine to conspiracies within a governmental entity. See, e.g., Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). In Usher, the plaintiff, a minority employee of the Los Angeles Police Department, was arrested when police responded to a complaint that he had broken a window in his apartment. He was taken to the police station where he remained handcuffed for two hours, was denied toilet access, was physically abused by the police officers without justification, and was subjected to racial slurs. The Ninth Circuit held that Usher "has adequately pleaded causes of action under 42 U.S.C. § 1985(2) and (3)" and reversed the district court’s dismissal of Usher’s claims. The court did not mention the intracorporate conspiracy doctrine. In light of the district court opinions in the Ninth Circuit and the Ninth Circuit’s refusal to dismiss the § 1985 claims in Usher, this Court will not dismiss Voigt’s § 1985(3) Claim solely on the basis of the intra- corporate conspiracy doctrine. within governmental entities, why restrict it to conspiracies alleged under § 1985 and not under § 1983 as well? Rebel Van Lines, 663 F. Supp. at 793 n.14. App. 106 b. absence of facts revealing a conspiracy While Voigt’s § 1985(3) claim may not be dismissed under the intracorporate conspiracy doctrine, it may be dismissed for failure to offer a preponderance of evidence revealing the existence of a conspiracy.'* As noted above, one of the elements that the plaintiff must show in establishing the defendants’ violation of § 1985(3) is the existence of a conspiracy. Scott, 463 U.S. at 828. Generally, a civil conspiracy is a combination or agreement of two or more persons’ to accomplish some unlawful purpose or to accomplish some lawful purpose’ through unlawful means. In a § 1985(3) action, the conscious objective of the agreement must be to accomplish the second element: "depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immuni- ties under the laws." Id.; See Bray, 113 *° As the Supreme Court clarified in Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), "the inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at trial on the merits." Td. at 232. In Voigt’s case then, the Court must determine whether reasonable jurors could find by a preponderance of the evidence that Voigt is entitled to a verdict. App. 107 S. Ct. at 762-63 (conscious objective of conspiracy must be impairment of constitutionally-protected right). To show that each defendant participated in such a conspiracy, the plaintiff must dem- onstrate that each defendant tacitly agreed to share the common objective of the conspiracy; however, the plaintiff does not need to show that each defendant knew the exact details of the plan. United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir.), cert. denied, 493 U.S. 809 (1989); Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983). When the plaintiff has the burden of proof on an issue, the defendant may move for summary judgment simply by pointing to the absence of facts to support plaintiff’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). To avoid summary judgment, the non- moving plaintiff must submit evidence of sufficient quantity and quality to support a jury verdict in plaintiff’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The court may draw an inference as to material fact in favor of the nonmoving plaintiff if the inference is rational or reasonable. Phelps Dodge, 865 F.2d at 1542 (citing T.wW. Elec. Serv. v. Pacific Elec. Contractors, 809 F.2d 626, 631 (9th Cir. 1987)).* ‘* In Phelps Dodge, the plaintiff alleged that Phelps Dodge, a corporation that owned and operated a large copper mine and milling App. 108 In this case, Voigt has not presented evidence from which a reasonable jury could infer that each of the Defendants tacitly agreed to retaliate against Voigt for his refusal to discriminate against nonresident applicants. The facts presented are largely undisputed, since Voigt relies heavily on transcripts of recorded interviews supplied by the Defendants, intraoffice memoranda, and public decisions and letters. See Part II-A above (Relevant Facts). From the facts, there is insufficient evidence to show each plant in Ajo, Arizona, conspired with local law enforcement officials to deprive its striking employees of their constitutional rights under § 1983. The plaintiffs had submitted evidence that Phelps Dodge enjoyed a powerful position in the community and had repeated contacts with the police; that the Justice of the Peace issued warrants without probable cause, following a meeting with the attorney’s for Phelps Dodge; that the police allowed Phelps Dodge officials to view the list of employees that the police intended to arrest; and that the police provided deferential treatment to stikebreakers over strikers. The Ninth Circuit concluded that while none of the evidence on its own would support a justifiable inference of Phelps Dodge’s participation in a conspiracy, such an inference could be drawn from all of the direct and circumstantial evidence taken together. Thus, summary judgment for the defendants was inappropriate. App. 109 Defendant participated in a retaliatory conspiracy. Defendant Savell: Voigt contends that Judge Savell discriminated against nonresident applicants by deciding Demoski’s grievance was valid. Voigt argues that Judge Savell vio- lated the Personnel Rules because the Rules do not permit deference to an in-house applicant unless the applicant seeks a promotion. See Voigt’s Affidavit, Docket No. 101, Ex. H, p. 13; Personnel Rule 3.13.02, Docket No. 101, Ex. K, p. 26. While Judge Savell did mention Rule 3.13.02 on p. 6 of his decision, the decision focused on Voigt’s failure to pro- perly evaluate the applicants’ qualifications for the Records Clerk position. Judge Savell’s decision suggests that Demoski was better qualified than Crawford/Perron. Docket No. 101, Ex. E-5. If Demoski was more quali- fied, Judge Savell’s decision does not imply a conspiracy. Voigt also relies on Jackson’s statement in her telephonic interview with Shirley Nash regarding Judge Savell’s interest in helping disgruntled employees (Docket No. 101, Ex. O-22, p. 24), Judge Savell’s memorandum to court employees inviting comments on a new filing system (Docket No. 101, Ex. N-1.5), and the letter of intent to dismiss, which men- tions Voigt’s criticism of Judge Savell’s grievance decision (Docket No. 101, Ex. Q-1), to show that Judge Savell had conspired with App. 110 the other Defendants to improperly discharge Voigt. This evidence does not give rise to an inference that Judge Savell agreed with others to discriminate against nonresidents and to discharge Voigt for refusing to join in such discrimination. Defendant Jackson: Voigt appears to rely on Jackson’s statements during recorded interviews with employees, especially Woods, to show that she was a member of the retali- atory conspiracy. Yet during the same inter- view, she clearly denies following any "local hire" policy.’’ Her statements to Woods reveal that she exerted pressure on Woods to more closely supervise the hiring decisions of Voigt, but no inference can be made from such statements that she supported an unlawful discrimination policy or supported firing Voigt because he did not follow an "Alaska- hire" policy. Voigt contends that Jackson selectively ‘7 During the interview, Woods stated that he was not aware of an "edict or mandate" that precluded hiring out-of-state applicants. Jackson replied, "I guess I’m the last person- - I’m not one of those people that preach Alaska hire." She explained that there was no such mandate, but cautioned that if Woods hired from outside the state, "“you’re going to be criticized, and you better be ready to justify it." Docket No. 101, Ex. O-4, pp. 43- 44. App. 111 interviewed members of Voigt’s staff, implying that she was on some sort of witch-hunt to gather evidence against Voigt. Docket No. 101, p. 44. Voigt cites Jackson’s statement to Shirley Nash advising Nash that she and the other disgruntled employees should "kind of join forces.” The record does not bear out Voigt’s contentions. In the course of her investigation, Jackson interviewed all employees who were involved in any way with the hiring process for the recent criminal and records clerk positions.’*® From her investigation, Jackson ‘8 Jackson interviewed the following employees regarding the hiring procedures: Burk Voigt (he interviewed all the applicants); Mary Jo Carr (the personnel clerk who screened applications), Docket No. 101, Ex. O-2; Mary Betts (criminal supervisor who interviewed applicants for the criminal position), Docket No. 101, Ex. O-3; Ron Woods (area court administrator who initially denied Demoski’s grievance), Docket No. 101, Ex. O-4, O-9; Sharon Hotrum (deputy clerk who interviewed applicants for the criminal clerk position), Docket No. 101, Ex. O-6; Dana Hoffman/Evans (she received the criminal clerk position), Docket No. 101, Ex. O-5; Megan Crawford/Perron (she received the records clerk position), Docket No. 101, Ex. O-7; Kathy Jenkins (Voigt’s secretary who amended Crawford/Perron’s application so that she would qualify for the criminal clerk App. 112 concluded that Crawford/Perron had received an unfair advantage in resubmitting her application for the records clerk position; that Voigt made inappropriate statements to Demoski by telling her that he was basing his selection of the new criminal clerk on “out- going personality," which was an improper criterion; and that Demoski had not received proper deference for the records clerk posi- tion because the selection criteria used by Voigt to exclude her (legal experience and education) were far beyond that required of an entry level clerk. See Jackson’s response to interrogatories, Docket No. 101, Ex. J-20. While Jackson was investigating in position), Docket No. 101, Ex. O-10; Jan Stroffolinc (records supervisor who interviewed applicants for the records clerk position), Docket No. 101, Ex. O-11; Roberta Demoski (she was denied the records clerk position), Docket No. 101, Ex. O-19; Magistrate Jackson (Supervisor of Demoski at the Galena court), Docket No. 101, Ex. O-20; Shirley Nash (accounting supervisor who interviewed applicants for the records clerk position), Docket No. 101, Ex. O-22; Brenda Pitka (one of the applicants for the criminal clerk position), Docket No. 101, Ex. O-15; and Carolyn Turner (former personnel technician who disqualified Crawford/Perron’s initial application for the criminal clerk position and later qualified the amended application), Docket No. 101, Ex. 0-23. App. 113 Fairbanks, several employees asked to speak with her individually regarding other problems in the Fairbanks court. Carol Knight, one of the applicants for the criminal clerk posi- tion, complained that Voigt made inappropriate statements, such as airing problems he had with certain supervisors to other employees and stating that he felt he needed to treat women like children. She also complained that Voigt maliciously tied up the computer system to prevent others from using it and to assert his control. Docket No. 101, Ex. O-8. Susan Thorgaard, a clerk in the Transcript Department, complained of the low morale in the office, her perception that Voigt was dishonest,’**® and that she had worked an extra 500 hours of unpaid overtime helping Voigt set up the computer system. Docket No. 101, Ex. O-14. Melanie Corkhill, a civil clerk, also complained that morale was extremely low, that Voigt referred to his clerks as “dumb clerks," that Voigt talked to her about. other employees’ mistakes, and that Voigt abused the chain-of-command by demanding that communica- tions from employees flow through their supervisors but refusing himself to communi- ** She explained that one day, workers in the building broke an employee’s coffee mug and left three dollars for a replacement. Voigt pocketed the cash and the employee bought her replacement mug without reimbursement. Docket No. 101, Ex. O-14, pp. 9-10. App. 114 cate to employees through the supervisors. Docket No. 101, Ex. O-16. Finally, Wendy Clayton, a former secretary for Voigt, complained of Voigt’s general hostility. Docket No. 101, Ex. O-24. These employees apparently sought out Jackson while she was investigating alleged improprieties in hiring procedures; there is no implication that Jackson was attempting to find additional excuses to fire Voigt, although the intent to dismiss letter specifically mentions each of the complaints raised by these employees as a reason for his dismissal. See footnote l, supra. Jackson’s statement to Shirley Nash suggesting that Shirley and others should "kind of join forces" is part of her statement to Shirley that “if you think you’re being treated unfairly or you see other people being treated unfairly, you’re going to have to kind of join forces.” Docket No. 101, Ex. 0-22, p. 22-23. Nash had just complained to Jackson that she felt Voigt unfairly manipulated his employees and refused to help them when he identified a performance problem. Jackson asked “why haven’t you gone to the ACA if you think that things haven’t been handled fairly?" Nash replied that she didn’t think Woods would want to talk to her. Id. at 22. Consequently, Jackson made the statement cited by Voigt. Such statements, taken together, do not imply that Jackson was promoting any conspiracy to fire Voigt. r EEE a Peeve et a dle ae bined 1a — Anise iii Hy App. 115 None of the evidence presented by Voigt permits an inference that Jackson participated in a conspiracy to discriminate against non- residents or to participate in a conspiracy to discharge Voigt unlawfully. Defendant Woods: Voigt cites to Woods’ interview with Jackson to show that he joined the retaliatory conspiracy. On March 4, 1992, after Jackson cautioned Woods that hiring out- of-state would create a ruckus, Woods stated that "the last thing I would have done is to allow a situation to happen that was going to blow up in Art’s face... Burk. . . didn’t realize the ramifications. I certainly didn’t and-- but I do now." Docket No. 101, Ex. 0-4, p. 45. Woods further stated that "it did not register with me that we were operating in an environment that I’ve learned we’re operating in.” Id. at 46. Jackson then replied, "All I can say is that Sunny obviously thought that she had conveyed it very strongly to you. She says she called you and said that Cole was adamant about not selecting from outside of Alaska because that caused Legislatures [sic] to call and ask questions and complain." Id. at 47. The next day, March 5, Jackson continued the interview with Woods, noting that some employees perceived that if they got on Voigt’s bad side, they would be pressured to leave. Woods replied that “quite honestly and guite frankly, Karrold, I’m forming the App. 116 opinion that that may well be true, you know, that there are some problems with Burk." Docket No. 101, Ex. O-9, pp. 15-16. Jackson then warned Woods that he must get the court in order, Stating “your destiny is tied to the morale of this court" (Docket No. 101, Ex. O-9, p. 22), and encouraged Woods to assert his control as ACA (Id. at 23). Woods then announced that "it’s my opinion from my investigation thus far, that there was management judgment error problems. And there’s reason for concern.” Id. at 24. Voigt essentially argues that’ the interview reveals that Woods succumbed to the pressures exerted by Jackson to join the conspiracy to discharge Voigt unlawfully and to discriminate against nonresidents. The record does not support this contention. Defendants Snowden and Cole: Assuming Snowden and Cole are parties to the action, Defendants’ counsel admits there may be a "scintilla" of evidence against Snowden and Cole that they were part of a conspiracy to discriminate against nonresidents. Docket No. haae. De ate The evidence cited by Voigt includes a statement by Sunny Ziots, an Acting Personnel Director during: Jackson's periodic absence, which Jackson read to Woods during the interview with Woods. Ziot’s statement noted that "Cole instructed me to call Woods and relay four points. I was to advise him... (3) that Cole is adamant about not pees ad Nit ht titel ate App. 117 selecting from outside Alaska because that caused Legislators to call and ask questions and complain." Docket No. 101, Ex. O-4, p. 42. However, as the Defendants point out, Ziots asserts in an affidavit that her state- ment was a misstatement of what Cole had actually instructed her to say. Ziots states that Cole had instructed Ziots to say, “selec- ting from the Lower 48 could be a big issue for legislators and others." See Ziots’ affidavit, Docket No. 112, Ex. E. While this inconsistency may create a question of Ziots’ credibility, it does not provide cognizable evidence regarding Cole. See Fed. R. Civ. P. 56(e). Ziots’ explanation is, however, con- sistent with the position Cole took in a letter to Representative Phillips on August 23, 1989, following the controversial hiring of Voigt as Clerk of Court, an out-of- state applicant at the time. Cole states in her letter that “no future out-of-state recruitment" will occur except under exceptional circumstances, but that any out- of-state applications that come in on their own will be handled in the same manner as all others in the selection process; the court will choose the best qualified candidate from the pool of applicants. Docket No. 101, Ex. J-2. Cole’s affidavit reaffirms this position. Docket No. 112, Ex. F, p.- 4. As to Snowden, the Administrative App. 118 Director who ordered the investigation into the unusual hiring procedures in Fairbanks, Voigt contends that Snowden acknowledged an Alaska-hire policy, but refused to put the policy in writing because it would be illegal. The contention is supported by three affidavits from Judge Hodges, Crawford/Perron, and Voigt, which simply relate what Woods allegedly told each of them after meeting with Snowden. Docket No. 101, Ex. F, G and H. However, as the Defendants point out, the affidavits contain double hearsay that has been repudiated by Woods. Docket No. 112, p. 29-3¢. Woods and Snowden clearly deny that Snowden acknowledged any such policy. Docket No. 112, Ex. H and I. Rather, Snowden was concerned that a more qualified Alaskan minority was not selected over a minimally gualified nonresident. Id. Furthermore, Woods denies ever speaking to Crawford/Perron regarding his conversation with Snowden. Docket No. 112, Ex. H, p. §$. While these inconsistencies may reflect on the credibility of Woods, they do not implicate Snowden in any conspiracy. Consequently, Voigt has not produced the “quantum and quality” of evidence sufficient for a jury to find that Snowden and Cole par- ticipated in a retaliatory conspiracy to discharge Voigt. OS Yee Dingper ns ta he ica eka sealaaee Ale dd.cahie eat Glaietadast Dall 7 at Sai galt ist alla DY Seas Gi IRD Atte a7 3 le aah ta a eri ih Bt OREM ci oIS Balls Mod tise a. SP NLA BE IG SA RET EON CAG te 5 3p le -' eet LY panies % om fs e ¥ App. 119 ee. Conclusion The Court tentatively grants Defendants’ motion for partial summary judgment as to Voigt’s cause of action under 42 U.S.C. § 1985(3). In the first place, Voigt has failed to satisfy the first element of a § 1985(3) claim; the facts presented to not appear to support a reasonable inference that each of the Defendants participated in a retaliatory conspiracy. Second, even if Voigt has offered sufficient evidence to raise the inference, Voigt has failed to satisfy the second element of a § 1985(3) claim; the facts do not support a reasonable inference that the purpose of the conspiracy was to invidiously discriminate against a protected class of persons. In fact, Voigt, Cramer and Mills were all out-of-state residents at the time they were “hired” for employment with the court system. In any event, it appears that the claim is precluded by the doctrine of qualified immunity, since the law was not so clearly established that a reasonable official should have realized that conspiring to dis- charge Voigt for refusing to discriminate against nonresidents applying for public employment would violate 42 U.S.C. § 1985(3). App. 120 III. WAS THE LAW SO CLEARLY ESTABLISHED THAT A_REASONABLE OFFICIAL SHOULD HAVE REALIZED THAT DISCHARGING VOIGT FOR HIS CRITICISM OF THE CRAMER HIRING AND THE DEMOSKI GRIEVANCE DECISION WOULD VIOLATE 42 U.S.C. § 1983? A. Relevant Facts In December 1990, a report was prepared by Dale Sipes, a court management consultant, entitled "Fairbanks Judgeship Needs Study." Docket No. 101, Ex. C. The Sipes report was highly critical of the working environment at the Fairbanks courthouse. Id. at p. 23-24.?° Voigt appears to have been quite defensive following the report, perceiving that Judge Savell blamed him for the critical report. See Voigt’s memorandum to Savell of January 17, 1991, at Docket No. Lig, Be. 8, last page. A vacancy occurred in the Fairbanks Area Court Administrator position in early 1991, and four individuals were interviewed for the position in mid-April 1991. See Voigt’s ** The report made such statements as "the working environment of the entire courthouse is not reported to be one of mature collegiality," and "sending memoranda that are biting or downright nasty instead of walking down the hall to discuss an issue has become an acceptable practice. This does not appear to be an environment where new ideas can be put forth in a spirit of goodwill and mutual Support." Id. at p. 23. MARIE MCS APTI ERE a OO SHAS OW! es é ik oa i A bik be oh dO dl ald ea SS = 3 es 7 “ Say 7 y oy ued Be = eS 4 an aH eae = > a *. ee App. 121 deposition, Docket No. 87, Ex. A, p. 66. One of the candidates was Judith Cramer, an administrator in Ohio. Voigt was highly critical of Cramer. In a supervisors’ meeting sometime in April, Voigt indicated that Cramer had received preferential treatment because she was an administrative favorite who knew Snowden well and because she was the only candidate to have lunch with Chief Justice Rabinowitz. See Voigt deposition, Docket No. 87, EX. A, pp. 22, 35. Voigt also expressed concern that Cramer would adopt Snowden’s policies rather than serve as an advocate for the Fourth Judicial District. Id. at 28-29; see Affidavit of Brenda Richards [sic] (jury clerk), Docket No. 101, Ex. A-19. Finally, he also stated that the judges in Ohio would not be sorry to see her go. Docket No. 87, Ex A, pp. 29-30. Voigt also stated to Judge Savell that he thought Judge Savell should consider Cramer’s gender if that might exacerbate the court system’s existing male and female cliques. Id. at 56-58, 82-83. Judge Savell initially offered the position to Cramer, but she declined the position. On Friday afternoon of April 26, Savell offered the position to Donald Mills, an administrator in Oregon, and Mills accepted the position. See Savell’s affidavit at Docket No. 8&7, Ex. C. On Monday, April 29, Cramer called to indicate that she had changed her mind and would like to accept the posi- tion. Id. That afternoon, Judge Savell and App. 122 Judge Steinkruger telephonically contacted the other judges who were within the district to get their approval to fire Mills and hire Cramer. Id. Apparently, six judges voted to hire Cramer and Judge Hodges opposed. See Hodges’ memorandum of May 20, 1991, Docket No. 101, Ex. A=-16. Judge Savell then called Snowden, who approved the action and author- ized an offer to make Mills whole for any losses or expenses he had occurred [sic]. Docket No. 87, Ex. C. Judge Savell then called Mills in the late afternoon of April 29 and "fired" him; he then hired Cramer. Id. Apparently, when Savell called Mills, Mills indicated that he had met with a realtor to consider listing his house for sale, and that neither he nor his wife had terminated their current employment. Id. However, Judge Hodges contends that when he called Mills the next day, April 30, Mills indicated that his wife had resigned her job and an initial garage sale had taken place. See Hodges memorandum dated April 30, 1991, Docket No. 101, Ex. A-6. Judge Steinkruger circulated a memorandum to all court system employees on April 30, informing them of the hiring change. Docket No. 101, Ex. A-7. The following day, there was a supervisors’ meeting attended by the various departmental heads of the Fairbanks Court System. See Voigt deposition, Docket No. 87, Ex. A, p. 7-10. At the meeting, Voigt agreed with an attendee’s characterization ‘ — — SRO RS. SERA eter aps RROD MN eS PP Ta REO. mA et ae RID Sa ER “ ee ee App. 123 that Judge Savell acted "“disgracefully.” Id. at 18. He stated that Judge Savell lacked honor and integrity in his handling of the Cramer incident. Id. at 15. He also does not deny that he told the supervisors that Judge Savell acted without authority in violation of Personnel Rules. Id. at 45-46. After the meeting on May 1, Voigt met Anna Farneski, a news reporter for the Fairbanks Daily News-Miner, in the courthouse parking lot. Id. at 103-104. She inquired about the ACA situation, and Voigt responded that he could give her a copy of Judge Steinkruger’s memorandum. Id. at 104-105. When Voigt made a copy of the memorandum, he discovered a copy of Judge Hodges’ memorandum to Judge Savell on top of a printer in the clerk’s office. Id. at 105. Judge Hodges’ memorandum was highly critical of Judge Savell’s handling of the Cramer incident. Docket No. 101, Ex. A-6. Voigt placed both memoranda in an envelope and sent them to Farneski. Docket No. 87, Ex. A, p. 106. On May 5, 1991, the Fairbanks Daily News-Miner published a story on the Cramer/Mills fiasco. Docket No. 101, Ex. A-9. The story published Judge Hodges’ statement that the matter “reflects adversely on the credibility and integrity of the Alaska Court System and the 4th Judicial District." Docket No. 101, Ex. A-6; Docket No. 101, Ex. A-9. On May 8, Judge Savell denied Voigt’s App. 124 request that he receive a salary adjustment for service as acting ACA. Docket No. 101, EX. A-10.** Voigt responded on May 8 that he intended to "refrain from any involvement outside the scope of the Clerk's Office." Docket No. 101, Ex. A-12. Judge Savell then clarified that he expected Voigt to meet his responsibilities as assistant ACA, which is part of his job description. Docket No. 101, Ex. A-13. On May 15, Voigt noted his inten- tion to file an informal grievance, stating that Savell’s denial of Voigt’s request was "unfair and capricious." Docket No. 101, Ex. A-14. Consequently, Judge Savell issued a formal written reprimand to Voigt on May 15. Docket No. 101, Ex. A-15. In his reprimand, Judge Savell explained the reasons for his dissatisfaction with Voigt’s performance. He regarded Voigt’s behavior as uncooperative and "befitting a spoiled, pouting child." He noted Voigt’s failure to attend a regularly scheduled meeting because he was no longer the acting ACA and Voigt’s resistance to performing ** Judge Savell’s memorandum to Voigt stated, "Effective immediately, you are no longer to perform the duties or exercise the responsibilities of acting area court administrator. I have found your performance in this capacity unsatisfactory and I do not recommend, and in fact, oppose a salary adjustment.” | BEB OG Sesh UL Lisa rears Or SRA ¥ “ ee SBET ie Hl f A by ‘ a e 4 id a ¥ +. fy a s a: 4 iy ne App. 125 duties expected of an assistant ACA, requiring the recent exchange of clarifying memoranda. Savell also explained that Voigt’s attitude was having a harmful effect on relations with court system representatives. He complained of Voigt’s "insolent and sarcastic comments” during a work session and Voigt’s war-like “us and them" attitude toward the Anchorage Court System. Savell was upset with Voigt’s actions that "appear to have been designed to torpedo my selection of Judith Cramer and to undermine any chance she has of being accepted in the building and succeeding at her job." He noted Voigt’s apparent gender bias” and his comments regarding preferential treatment and allegi- ance to the Anchorage administrators, as well as other negative comments. Finally, Savell noted Voigt’s resistive behavior toward Savell’s request for case management reports. Although Voigt disagreed with the reprimand, he chose not to file a grievance; instead, he apologized to Judge Savell and the two shook hands and agreed to move forward. Docket No. 87, Ex. A, p. 91. For no apparent reason, Judge Savell mailed a copy of the reprimand along with a copy of the newspaper article to his former law clerk, Crawford/Perron. See Crawford/Perron affidavit, Docket No. 101, Ex. F. 22 See Excerpt from Voigt’s deposition, App. 126 Later that summer, Voigt was criticized for transferring a records clerk to the civil department and a civil clerk to records. Karrold Jackson investigated the incident and in a memorandum dated August 8, 1991, she criticized Voigt’s “poor managerial judgment,” noting that he had discussed a supervisor’s poor performance with one of the supervisor’s employees and that he had undermined the authority of subordinate supervisors. Docket No. 101, Ex. B-l, p. 5-6. Jackson concluded as follows: If this were the first time Burk had been in violation of the personnel rules or shown poor managerial judgment, I believe a stern verbal warning would be in order. However, this is not the first time for either [citation to certain attachments]. If Burk persists in violating the personnel rules and/or taking inappropriate actions as a manager, he is placing the court in jeopardy of adverse legal action. Id. at 6. In October 1991, Voigt received his six- month evaluation from Judge Savell. Docket No. 101, Ex. B-6. Savell rated Voigt “above average” overall, but noted several categories where Voigt needed improvement: “following policies and procedures," “getting along with other workers,” and “supervising others.* In his comments, Savell explained as follows: Id. at 3 (emphasis added). Savell further complained that Voigt was “openly hostile and disrespectful" toward court administrators and "I, and others, perceive that he often has a hidden or ‘secret agenda’ that is being that App. 127 If he cannot accomplish what he wants directly, through proper procedures, he will at times ignore the procedures to obtain his goal through less direct means. Examples abound, whether in his dealings with the financial arm of administration to procure equipment or funds, adding extra duties to the scope of work of contractors, unde t n Area Court Administrator whose s t Vv , or coercing a “voluntary” personnel action. His great accomplishments in the Clerk’s Office have come at the price of dampened morale and fear on the part of subordinate employees. He has been uncooperative and has harmed our relations with the Department of Transportation, which maintains our facility. advanced." Id. at 3. 1992. Savell, Apparently, Ron Woods. The Demoski grievance erupted in February See “Relevant Facts" at Part II-A. Voigt was again highly critical of Judge following his grievance decision. Voigt discussed the grievance decision with at least five other court employees, including Shirley Nash, Sharon Hotrum, Jan Stroffolino, Robin Nicholson and See Voigt deposition, Docket No. App. 128 87, Ex. A, pp. 670-672. Voigt speculated that Savell discriminated against nonresidents, and voiced this criticism to Shirley Nash. Id. at 561. He also admits that he may have told her that he felt Savell had violated the personnel rules and that Savell was motivated by per- sonal dislike for Voigt. Id. at 562-65. Voigt admits that he felt Savell was out to “get him" ever since his criticism of the Cramer incident. Id. at 674. Voigt also commented to Nash that he thought it would be hard for a person to grieve something and expect to end up working in that environment, and he disagreed with Savell’s remedy of hiring Demoski for the next available posi- tion. Id. at 687-88. Once Crawford/Perron started to work as the new records clerk, Judge Savell informed her that she would have to “choose sides," implying that she would have to choose between her friendship with Judge Savell and any ___ positive relationship with Voigt. See Crawford/Perron affidavit, Docket No. 101, Ex. F, p- 6. Sometime after Voigt was discharged, Judge Savell told her that she no longer needed to choose sides. Id. at 7. Voigt was discharged March 26, 1992. The reasons for his discharge were articulated in the letter of intent to dismiss, which included his inappropriate statements regarding the Cramer incident and his negative statements regarding the Demoski grievance decision. See footnote l, supra. App. 129 B. Voigt’s § 1983 Claims Section 1983 prohibits the deprivation of constitutional rights by any person acting under color of state law. Voigt claims that his discharge was in retaliation for Voigt’s criticism of the Cramer and Demoski incidents, essentially depriving him of his constitution- al right to freedom of speech. He claims that the Defendants together violated § 1983 by conspiring to discharge Voigt for his criti- cisms of the Cramer and Demoski incidents.” He also claims that each Defendant violated § 1983 by retaliating against Voigt for his criticisms of the Cramer and Demoski incidents.** ” Voigt merges this conspiracy claim with his conspiracy claim under § 1985(3). As noted already, there is no evidence of a conspiracy under § 1985/3). * there is nce evidence that Snowden, Cole or Jackson retaliated against Voigt because of his criticism of the Cramer incident or the Demoski incident. They merely participated in the investigation of alleged improper hiring practices. In fact, it appears that Snowden ordered the investigation before Voigt ever mde his critical remarks regarding the Demoski grievance decision. The Letter of intent to