Opposition Brief — Stavropoulos v. Firestone

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No. 04-1099 | MAR

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: OFFICE OF THE Cy I

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In The ee

Supreme Court of the Anited States

*

CAROL STAVROPOULOS,

Petitioner,

v.

EVAN FIRESTONE, ET AL.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

¢

BRIEF IN OPPOSITION

ON BEHALF OF RESPONDENTS

¢

THURBERT E. BAKER

Georgia Attorney General

DENNIS R. DUNN

Georgia Deputy Attorney General

Counsel of Record

Please serve:

DENNIS R. DUNN

Deputy Attorney General

Georgia Department of Law

40 Capitol Square, S.W.

Atlanta, Georgia 30334-1300

(404) 656-5614

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

i?

Whether the current case law across the various circuits is

consistent with this Court’s previous decisions and pro-

vides the necessary flexibility to address claims of “ad-

verse employment actions” under the facts of individual

cases?

2.

Whether any action identified by Petitioner rises to the

level of adverse employment action in analysis of a First

Amendment retaliation claim under 42 U.S.C. § 1983 or

under Title VII?

3.

Whether lowering the standard for what constitutes

adverse employment action would effectively eviscerate

the defense of qualified immunity, as virtually all govern-

ment decisions and actions could be adverse actions under

“clearly established” law?

ll

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..............:ssccccccessssssssssesecees i

TABLE OF CONTENTS ........ Siageekiiaapabaniseasaeritaaeebies ii

TABLE OF AU Rei riee Wii xxsdonersccancsssdeonsensnesdeossanseenses iii

STATEMENT OF THE CASE \Q.u..... cc cccscssssssesreeeceeeeees 1

REASONS FOR DENYING THE WRIT...................004. 8

I. Current case law across the various circuits is

consistent with this Court’s previous decisions

and provides the necessary flexibility to ad-

dress claims of “adverse employment actions”

under the facts of individual cases.................... 8

II. No action identified by Petitioner rises to the

level of adverse employment action in analysis

of a First Amendment retaliation claim under

42 U.S.C. § 1983 or under Title VII................... 13

III. Lowering the standard for what constitutes

adverse employment action would effectively

eviscerate the defense of qualified immunity,

as virtually all government decisions and ac-

tions could be adverse actions under “clearly

eatabriatedl” MiGP .....::csisscmenesencsieinsssnataisdbiosebadeasss 17

CONCLUSION .......<::s:sisuissiiesctasalseieaaiaaaansmaiaanailaidas 19

ili

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Creighton, 483 U.S. 635 (1987) .........0... 17, 18

Awabdy v. City of Adelanto, 368 F.3d 1062 (9th Cir.

SII dias esaaiibdbde tActhieinlasislias bhansadandualadetasshsepgnassilsundadaveasaites 14

Benningfield v. City of Houston, 157 F.3d 369 (5th

Ree EEC R EST aS oe 15

Brennan v. Norton, 350 F.3d 399 (3d Cir. 2003)......... 11, 12

Cole v. Me. Sch. Admin. Dist. No. 1, 350 F. Supp. 2d

I eae lial alid adele saeedgtines 9

Coszalter v. City of Salem, 320 F.3d 968 (9th Cir.

Ea RESET TSE DP RE SE aan 14

DeGuiseppe v. Palermo, 68 F.3d 187 (7th Cir. 1995)......... 16

Elder v. Holloway, 510 U.S. 510 (1994) .0..... cece 18

Elrod v. Burns, 427 U.S. 347 (1976) ....csscssssssssssssssssssecseseee 9

Graham v. Connor, 490 U.S. 386 (1986) ..........ccccceeeeeeeeee 18

Harlow v. Fitzgerald, 457 U.S. 800 (1982)............000... 17, 18

Lytle v. Carl, 382 F.3d 978 (9th Cir. 2004) .....0.....c cece 14

Nunez v. City of Los Angeles, 147 F.3d 867 (9th Cir.

SII cactihaiaiahsdetdia casa abbdhdies hada snidaaeemantiihicibedmbbigateidbunescamsnces 15

Phillips v. Bowen, 276 F.3d 103 (2d Cir. 2002)........... 13, 17

Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000)................ 9

Rutan v. Republican Party, 497 U.S. 62 (1990)......... passim

Saucier v. Katz, 533 U.S. 194 (2001)...................cccccccoeceeee 18

Snyder v. Nolen, 380 F.3d 279 (7th Cir. 2004) ............ 18, 19

Speigla v. Hull, 371 F.3d 928 (7th Cir. 2004)..............0000.. 16

1V

TABLE OF AUTHORITIES — Continued

Page

Suarez Corp. Industries v. McGraw, 202 F.3d 676

RI i anctscnsnicnsnemnindiniiccanietcnun 11, 12, 13, 14, 15

Thaddeus-X v. Blatter, 175 F.3d. 379 (6th Cir. 1999)... 12, 18

Wilson v. Layne, 526 U.S. 603 €1999)..............ccccccecseee sees 17

STATUTES

Ae as Se I csbiisinicasiepiesirasinabate dncicheauaniapianiglhbacadancuel passim

se EE a ninicacinsinnicednnsaabanbaebassienetaniadantusscusmnsesanans 8

Title VII of the Civil Rights Act of 1964 ............ ee. 8,9

OTHER AUTHORITIES

U.S. Equal Employment Opportunity Commission

Compliance Manual (May 1998)................ccccceeceeeeeeeeees 10

1

BRIEF IN OPPOSITION

ON BEHALF OF RESPONDENTS

Respondents adopt and incorporate by reference

herein the following portions of the Petition for a Writ of

Certiorari: Parties to the Proceedings Below, Opinions

Below, Statement of Jurisdiction, and Relevant Statutory

Provisions.

¢

STATEMENT OF THE CASE

While the opinion of the court below adequately

relates the facts involved in this matter, the Respondents

believe that it would be beneficial to further elaborate on

those facts to demonstrate that the Petitioner suffered no

adverse employment action which could serve as a basis

for her claims.

Petitioner’s employment at UGA, 1993-94

Petitioner was employed by Respondent Board of

Regents as an assistant professor in the University of

Georgia’s School of Art beginning the 1993-94 academic

year. (Pet. App. 2a). The director of the School of Art at the

time was Respondent Firestone. Jd. Petitioner was as-

signed to teach in the art education area, whose chairper-

son at the time was Respondent Nix. Respondent Squires

was a peer-level faculty member with Petitioner. (Resp.

Firestone, et al., C.A. Br. 3).

Tenure-track faculty members at UGA who have not

attained tenure are employed pursuant to one-year annual

contracts, and each year the senior faculty vote on

2

whether to offer a new contract for the next academic year.

(Pet. App. 2a).

Petitioner experienced depression and anxiety for a

number of years, beginning during her first year in Athens

(1993-94), before the occurrence of any of the events about

which she complained in this lawsuit. (Record 100: 23-28).

Her problems with depression began when she “had a

marital situation.” (Record 100: 26). She has been treated

over the years with Zoloft, Diazepam, Wellbutrin, Prozac,

Ambien and Klonopin. (Record 100: 23-28). During the

spring quarter of 1997, Petitioner took medical leave

because of migraine headaches, and she then became

addicted to narcotics. (Record 100: 75-81, 114-115; Record

119: 16-19).

The computer art search, 1994-95

As noted below, during the 1994-95 academic year, Dr.

Firestone appointed Petitioner and five others to serve on

a search committee charged with conducting a national

search to hire a computer artist. (Pet. App. 2a). Petitioner

ultimately disagreed with how she thought that search

committee operated and the conclusion it reached. Jd.

After the search committee voted to hire a candidate

different from the one Petitioner desired, Petitioner “had a

tantrum.” (Resp. Firestone, et al., C.A. Br. 4). According to

committee member Ed Lambert, she was “extremely,

extremely upset.” [ ... She] “physically got up from the

desk and was shaking her fists at us.... She was very

violent. [She was] right in your face yelling.” (Record 123:

23-24). According to committee member Lanny Webb,

Petitioner became very upset and hysterical. He “remem-

ber[s] papers were in the air and her voice was raised. She

was very upset....” Webb testified, “I was very disap-

pointed that Dr. Stavropoulos had used her position . . . to

retaliate against another colleague [Kaufman] who (sic)

she had a disagreement with.” She questioned the honesty

and integrity of the committee members who voted for

Kaufman. (Record 129: 17-19; Record 129 ex. 2; Pet. App.

2a).

Notwithstanding the Petitioner’s position, as outlined

in a minority opinion report prepared by a colleague,

Petitioner did not say anything of substance to the full

faculty, nor did she speak during a meeting with the

Associate Dean of the College of Arts and Sciences, to

discuss the computer art hiring process. (Resp. Firestone,

et al., C.A. Br. 4).

Subsequently, Respondent Firestone issued a memo-

randum dated March 27, 1995, to Petitioner and her

colleague, stating in its entirety,

In regard to your March 24, 1995 memo [the

“minority report” to Dean Anderson, Record 111

ex. 16], please recognize that search committee

recommendations are advisory to the faculty. The

faculty can accept or reject the recommenda-

tion(s) of the committee. In the case of the com-

puter art position, the faculty subscribed to the

search committee’s majority recommendation

(four of six members).

Insofar as the search and vote for appointment

followed The University of Georgia’s Guidelines

for Appointment, Promotion, and Tenure and

Dean Anderson’s “Guidelines for Recruitment of

Tenure-Track Faculty,” I am surprised that you

intend to press a minority position that is advi-

sory to begin with.

4

You should realize that your intended involve-

ment in the appointment process at this point is

unprecedented in the School of Art. However, it is

your prerogative to meet with the Dean or one of

his staff (Associate Dean John Morrow oversaw

this search), to which I have no objection.

(Pet. App. 3a; Record 111 ex. 17). The memorandum was

copied to the Dean and the Associate Dean of the School of

Art. Id. After investigating the matter, the Dean’s office

ultimately deferred to the School of Art and approved the

hiring of Kaufman. (Resp. Board of Regents C.A. Br. 6).

After the computer art search, according to Petitioner,

she “noticed [her] art education colleagues were treating

{her] differently. Nothing [she] could put [her] finger on,

just a little more distance.” (Record 100: 51-52).

1995 uneffectuated nonrenewal vote for 1996-97

In the spring of 1995, the senior faculty of the School

of Art voted not to renew Petitioner’s employment contract

for the 1996-97 academic year because of the faculty’s

perception that Petitioner refused to behave professionally

or to have collegial relationships with her colleagues.

(Pet. App. 3a, Resp. Board of Regents C.A. Br. 6-7). Peti-

tioner had questioned the honesty and integrity of her

colleagues on the computer art search committee and had

often alienated her colleagues in other ways such as

concluding a departmental retreat by verbally attacking

them; referring in a hostile manner to “an 800 or 900

pound gorilla in Art Education;” reading a lengthy poem at

a faculty meeting criticizing her colleagues; and provoking

a loud argument with a colleague in the hall. (Resp.

Firestone, et al., C.A. Br. 5.) Many of her colleagues and

|

NT |

+)

students (both male and female) memorialized the reasons

for their votes against and/or problems with Petitioner in

subsequent letters to Dr. Firestone. (Resp. Firestone, et al.,

C.A. Br. 5-6) (referred to by Petitioner as the “separate

personnel file,” Petition 14).

Despite the nonrenewal vote, Petitioner received a

new contract for 1996-97, and continued her employment

at the art school during the 1996-97 academic year, except

for the entire spring quarter, during which she took

medical leave. (Pet. App. 4a; Record 100: 75-81, 114-115).

The Dean and the Associate Dean had informed Firestone

and the School of Art that they could not support the non-

renewal vote for procedural reasons, because they could not

find sufficient evidence in the file to support the faculty’s

negative vote and they felt the faculty had not sufficiently

discussed the matter prior to the vote. (Pet. App. 4a).

Petitioner’s third-year review

At the end of a faculty member’s third year at the

University of Georgia, her colleagues conduct a third-year

review to assess the progress she has made toward earn-

ing tenure. (Pet. App. 4a; see also Pet. App. 4a n. 1).

Because of Petitioner’s concerns about the process, she

began to work closely in this regard with Dr. Hugh Rup-

persburg, the new Associate Dean of the School of Art.

(Record 100: 91).

Dean Ruppersburg offered written assurance to

Petitioner that a file of letters gathered by Respondent

Firestone the previous summer to support the 1995

nonrenewal decision would not be considered by the third-

year review committee; that she would have the opportu-

nity to respond to the third-year review committee’s report

6

in accordance with the University’s Guidelines for Ap-

pointment, Promotion, and Tenu;e; and that Firestone had

been instructed to make sure the third-year committee

would conduct itself accordingly. (Record 100: 90 exs. 1, 2).

‘Petitioner found the selection of the committee members,

three of the four of whom were women, to be acceptable.

(Resp. Firestone, et al., C.A. Br. 7; Record 100: 101).

During the third-year review process, some of the

members asked Petitioner about her medications and her

mental health. (Pet. App. 5a, €a; Record 100: 93-96).

Respondent Squires explained in a memvurandum the role

he felt that illness had played in the problems Petitioner

had had in the School of Art. (Resp. Board of Regents C.A.

Br. 11). Dr. Squires testified that his intent in creating the

memo was to help Petitioner by explaining possible rea-

sons for her non-collegial behavior. Jd.

1996 ineffective nonrenewal vote for 1997-98

The third-year review committee presented its report

to a meeting of the faculty, at which the senior faculty

were to vote on whether to offer an employment contract

to Petitioner for the 1997-98 academic year. (Pet. App. 5a;

Resp. Board of Regents C.A. Br. 11-12, 13-14). The five-

page committee report concluded: “The committee agreed

that Dr. Stavropoulos is making good progress toward

achieving promotion and tenure in the area of research.

However, persistent and ongoing problems in the areas of

teaching and service are jeopardizing Dr. Stavropoulos’

progress towards promotion and tenure.” (Pet. App. 5a-6a;

Record 100 ex. 3).

The senior faculty voted not to offer Petitioner a contract

for 1997-98 due to “[rlepeated instances of unfortunate or

unprofessional behavior involving both students and

faculty [which] caused both to feel threatened and im-

pugned by Dr. Stavropoulos.” The third-year review

committee had noted that “public expressions of anger,

shouting, as well as berating and belittling colleagues has

created a difficult working environment.” (Pet. App. 5a-6a;

Resp. Board of Regents C.A. Br. 12-14; Record 100 ex. 3).

The committee had also cited Petitioner’s holding numer-

ous classes in her home rather than on campus and her

assigning “all ‘A’ grades (30+ students) for one full calen-

dar year (1995),” which called “into question positive

student course evaluations.” Also noted were Petitioner’s -

“inability to deal constructively with criticism from stu-

dents and colleagues,” as well as her resistance to learning

and following procedures, both of which resulted in inac-

curate guidance and advice to students. Id.

Petitioner’s grievance to Faculty Senate regarding

the 1996 nonrenewal vote

The 1996 nonrenewal vote was reversed by the Col-

lege of Arts and Sciences’ Faculty Senate Grievance Panel

pursuant to Petitioner’s formal grievance, as provided for

in the University policies and procedures for the College of

Arts and Sciences (Record 132 ex. BB), before the 1997-98

academic year commenced. (Pet. App. 6a; Resp. Board of

Regent C.A. Br. 12). An evidentiary hearing was con-

ducted, and Petitioner hired an attorney for her represen-

tation at it. (Record 100: 107-110 ex. 4). Despite the

problems identified in the third-year committee’s report,

Petitioner received a contract for the 1997-98 academic

year prior to the beginning of school. Petitioner was

employed for the 1997-98 academic year with no loss of

salary. (Pet. App. 6a; Resp. Board of Regents C.A. Br. 12).

Proceedings Below

Petitioner Carol Stavropoulos filed her Complaint in

the Middle District of Georgia, Athens Division, on Octo-

ber 20, 1997. She asserted claims against the Board of

Regents and three individual colleagues in the University

of Georgia School of Art under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e, et seg.; and 42 U.S.C.

§ 1983 for alleged violation of free speech, among other

grounds. (Pet. App. la). The Court of Appeals for the

Eleventh Circuit affirmed the Orders of the district court

granting summary judgment on the Title VII retaliation

claims against individual Respondents Firestone, Squires

and Nix, in their official capacities, and Respondent Board

of Regents; and granting summary judgment to the indi-

viduals on Petitioner’s claims of retaliation under Title VII

and under 42 U.S.C. § 1983 for violation of her First

Amendment right to free speech. (Pet. App. 18a).

,

-

REASONS FOR DENYING THE WRIT

I. Current case law across the various circuits

is consistent with this Court’s previous deci-

sions and provides the necessary flexibility to

address claims of “adverse employment ac-

tions” under the facts of individual cases.

This Court’s decision in Rutan v. Republican Party,

497 U.S. 62 (1990), clarified in necessarily broad terms the

standard for what kinds of employer conduct are action-

able in a First Amendment retaliation case brought under

9

42 U.S.C. § 1983.’ Rutan established that adverse em-

ployment action is not limited to terminations, but “extends

to promotion, transfer, recall [after layoff], and hiring

decisions based on party affiliation and support... .” 497

U.S. at 79. The Court noted that requiring the adverse

employment action to be equivalent to a dismissal was

unduly restrictive because it failed to recognize that there

were deprivations less harsh than dismissal that pres-

sured state employees and applicants to conform their

beliefs and associations to some state-selected orthodoxy.

Rutan, 497 U.S. at 75; see Elrod v. Burns, 427 U.S. 347,

356-357 (1976). This Court’s holding in Rutan was fol-

lowed by the Eleventh Circuit below and is consistent with

what Petitioner refers to as the “majority rule” of Circuits

1, 3, 4, 6, 7, 9, 10 and D.C., and the “minority rule” of

Circuits 5, 8 and 11.

The current “majority rule,” as characterized by the

Petitioner, is articulated in Cole v. Me. Sch. Admin. Dist.

No. 1, 350 F.Supp. 2d 143, 152 (D. Me. 2004), as the

“reasonably likely to deter” test: “an action is cognizable as

an adverse employment action if it is reasonably likely to

deter employees from engaging in protected activity[]”

(citing Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000)).’

The current “minority rule” was set forth by the

Eleventh Circuit below in the case sub judice as follows:

* Although the Petition refers to “actionable retaliation” in § 1983

cases, the specific issues before the Court are whether any employer

conduct towards Petitioner satisfies the retaliatory adverse employ-

ment action requirements of a 42 U.S.C. § 1983 prima facie case under

the First Amendment, and a Title VII prima facie case. The two claims

are treated together in this Brief.

? Cole, 350 F.Supp. 2d at 152 n. 13.

10

A public employer retaliates when he takes an

adverse employment action that is likely to chill

the exercise of constitutionally protected speech.

ural

While it is true that a claimant must show a

chilling effect on her protected speech, she must

also show that this effect resulted from an ad-

verse employment action. To be considered an

adverse employment action in a First Amend-

ment retaliation case, the complained-of action

must involve an important condition of employ-

ment.

Pet. App. 12a, 13a (citations omitted).

As recognized by the Eleventh Circuit, this Court’s

holding in Rutan, however, does not mean that any em-

ployer conduct likely to chill an employee’s exercise of

constitutionally protected speech is actionable, nor does it

impose an unnecessarily high standard for showing

adverse action. Instead, the standard imposed by Rutan is

fact-specific, flexible and appropriate to First Amendment

employment cases, which place special focus on the rela-

‘ionship between governmental employer and employee

and their regular interactions and communications.”

Employment cases take form in an arena from which both

parties draw important and distinct benefits, both mate-

rial and intangible. To omit the “employment” aspect from

* The three examples of what does and does not constitute adverse

employment action in the section of the EEOC Compliance Manual

cited in the Petition illustrate the significance of the relationship

between employer and employee and the culture of the workplace in the

“adverse employment action” analysis. U.S. Equal Employment

Opportunity Comm’n Compliance Manual, § 8 at 14 (May 1998).

11

the adverse employment action requirement, reducing it to

any action by a public employer that has some chilling

effect on protected speech ignores the realities of the

workplace, its opportunities and its pitfalls.

The flexible standard of Rutan, applied by all judicial

Circuits, accommodates the myriad situations and circum-

stances that may or may not constitute adverse employ-

ment action. This flexible standard does not represent a

split in the determinations of the various circuit courts of

appeals, but, as recognized by the Third Circuit in Bren-

nan v. Norton, 350 F.3d 399, 419 (3d Cir. 2003):

“Determining whether a plaintiff’s First

Amendment rights were adversely affected by re-

taliatory conduct is a fact intensive inquiry focus-

ing on the status of the speaker, the status of the

retaliator, the relationship between the speaker

and the retaliator, and the nature of the retaliatory

acts.” Suarez Corp. Industries v. McGraw, 202 F.3d

676, 686 (4th Cir. 2000) (emphasis added). Conse-

quently, “to properly balance these interests, courts

have required that the nature of the retaliatory

acts committed by a public employer - be more

than de minimis or trivial.” Id. A public employer

“adversely affects an employee’s First Amend-

ment rights when it refuses to rehire an em-

ployee because of the exercise of those rights or

when it makes decisions, which relate to promo-

tion, transfer, recall and hiring, based on the exer-

cise of an employee’s First Amendment rights.” Jd.

(Citations and internal quotations omitted). “On

the other hand, courts have declined to find that an

employer’s actions have adversely affected an em-

ployee’s exercise of his First Amendment rights

where the employer’s alleged retaliatory acts

12

were criticism, false accusations, or verbal rep-

rimands.” Jd. (citations omitted).

Brennan, 350 F.3d at 419. The Third Circuit’s decision

highlights the harmony between the various circuits by

acknowledging the variety of circumstances to which the

standard for adverse employment action properly applies.

The scope of application of the Rutan standard in all

circuits attests to its flexibility, which should be main-

tained by denying certiorari in the case sub judice.

Determination of what constitutes adverse employ-

ment action under First Amendment retaliation and Title

VII retaliation analyses must occur on a case-by-case basis

in all but the most obvious cases. A ruling from this Court

that adverse employer actions are to include any or every

transfer, minor disciplinary action, memorandum and

other correspondence, investigation and administrative

decision, even if it was never effectuated, would be a

disservice to Circuit and District Courts across the coun-

try, which are regularly presented fact patterns involving

innumerable complexities of the collective American

workplace, and in which the exercise of judicial discretion

is both necessary and appropriate. A strictly uniform

approach to what constitutes adverse employment action

for purposes of First Amendment and Title VII analysis is

inappropriate and unnecessary. Where factors such as

factually nuanced circumstances, workplace culture,

personalities and intent are involved, “one-size-fits-all”

does not fit. “The definition of adverse action is not static

across contexts[,]” Suarez Corp. Indus. v. McGraw, 202 j

F.3d at 686 (citing Thaddeus-X v. Blatter, 175 F.3d 379,

398 (6th Cir. 1999)), nor should it be.

SS Ul

13

II. No action identified by Petitioner rises to the

level of adverse employment action in analysis

of a First Amendment retaliation claim under

42 U.S.C. § 1983 or under Title VII.

Petitioner argues that five employer actions were

retaliatory adverse employment actions which can serve as

the basis of her claims. As demonstrated correctly by the

opinion below, none of the five accounts of alleged adverse

action constitutes a retaliatory adverse action under even

the most liberal interpretation of the Rutan standard.

The first employer action is Dr. Firestone’s “letter” to

colleagues Bradley Tindall and Petitioner in response to

previous correspondence from them notifying the admini-

stration that they were filing a “minority report” concern-

ing the computer art search. (Record 111 exs. 16, 17). Dr.

Firestone’s memorandum addresses only the procedural

irregularity of hiring committee members communicating

up the chain of command after their advisory role was

fulfilled. (Record 111 ex. 17). It is simply a factual commu-

nication from supervisor to employee. There is no objective

chilling effect on further expressions of protected speech.

See Phillips v. Bowen, 276 F.3d 103, 109 (2d Cir. 2002).

Characterization of the memorandum by Petitioner as

being retaliatory adverse employment action renders

virtually any written guidance, advice or transfer of

information from supervisor to employee actionable. See

Suarez Corp., 202 F.3d at 687. That clearly is not a stan-

dard embraced by this Court or any of the various circuits.

The second alleged retaliatory adverse employment

action is what Petitioner labels the “internal investigation”

conducted by Dr. Firestone to support the 1995 vote not

to renew Petitioner’s annual contract for the 1996-97

14

academic year. Because Respondents never notified

Petitioner of the nonrenewal, and the nonrenewal was

never put into effect, the “investigation” in itself was not

related to anything even resembling an adverse action. See

Lytle v. Carl, 382 F.3d 978, 987 (9th Cir. 2004) (holding

investigation, together with ultimate denial of paid sick

leave, subject to review as adverse action.)

The third alleged retaliatory adverse employment

action was Dr. Squires’s “false accusations” of mental

illness. The Ninth Circuit Court of Appeals has recognized

false accusations to be actionable under 42 U.S.C. § 1983

only when in combination with more substantial adverse

action and causally linked to protected speech. See

Awabdy v. City of Adelanto, 368 F.3d 1062, 1071 (9th Cir.

2004) (holding that false accusations and other wrongful,

concerted conduct intended to institute an unfounded

criminal charge, were sufficient to state a claim under

§ 1983 for violation of his First Amendment rights);

Coszalter v. City of Salem, 320 F.3d 968, 976-977 (9th Cir.

2003) (applying the “reasonably likely to deter [protected

speech]” test to hold that a reprimand containing a false

allegation, taken together with a criminal investigation,

repeated and ongoing harassment and humiliation, a ten-

day suspension from work, and other employer actions

were adverse employment actions).

Other Courts of Appeals hold that employer speech

such as false accusations are only actionable when they

include “a threat, coercion, or intimidation intimating that

punishment, sanction, or adverse regulatory action will

imminently follow.” Suarez Corp., 202 F.3d at 687. Other-

wise, “such speech does not adversely affect a citizen’s

First Amendment rights, even if defamatory.” Jd.; see 202

F.3d at 687-688 for additional citations and quotations in

15

accord); Benningfield v. City of Houston, 157 F.3d 369, 376-

377 (5th Cir. 1998) (holding that employees “falsely ac-

cused” of criminal wrongdoing and “verbally reprimanded”

by their employer failed to allege adverse employment

actions sufficient to constitute retaliation), cert. denied,

526 U.S. 1065 (1999) (cited in Suarez Corp., 202 F.3d at

686); Nunez v. City of Los Angeles, 147 F.3d 867, 875 (9th

Cir. 1998) (“It would be the height of irony, indeed, if mere

speech, in response to speech, could constitute a First

Amendment violation.”)

The fourth alleged, retaliatory adverse employment

action was Petitioner’s performance evaluation for calen-

dar year 1995 in which Petitioner scored 3.6 out of 5.0.

(Record 121: 134 ex. 11). As Firestone was Petitioner’s

immediate supervisor,’ this written review of job perform-

ance was but another instance of day-to-day personnel

management in an employment setting, not an “adverse

employment action.” The Annual Faculty Evaluation of

Petitioner was performed in accordance with the same

standards used to evaluate other School of Art faculty,

including “Professional Service and University Govern-

ance.” Respondent Firestone was merely fulfilling his

duties as Art School Director and not demonstrating any

retaliatory animus necessary to transform this routine

managerial function into-an adverse employment action.”

* Firestone’s initial scoring of Petitioner’s performance, including

the written comments, was made with input from a four-member

committee of three men and one woman. (Record 121: 134 ex. 11).

* Firestone testified, “[Petitioner’s] continued [ . . . ] questioning of

the faculty [hiring] process is alienating faculty. At that point, I never

heard anything about gender discrimination. All I heard was that the

best candidate by far had not been selected. ... I asked her to be aware _

(Continued on following page)

16

The fifth alleged retaliatory adverse employment

action was the 1996 vote of the senior faculty not to renew

Petitioner’s employment contract for the 1997-98 academic

year. This vote was reversed by a grievance committee of

the Faculty Senate, pursuant to Plaintiff’s formal griev-

ance, as provided for in the University policies and proce-

dures for the College of Arts and Sciences (Record 132 ex.

BB; see Pet. C.A. Br. 29), before the 1997-98 academic year

commenced. (Record 100: 101-02, 105-107). Petitioner’s

successful appeal of that decision does not transform the

faculty vote, reversed and remedied by Respondents’ own

procedures, into an adverse employment action. See

DeGuiseppe v. Palermo, 68 F.3d 187, 191 (7th Cir. 1995)

(holding exercise of plaintiff’s own volition in ending his

police career rendered termination not actionable).

Petitioner argues that the attorney’s fees expended to

appeal the nonrenewal of her employment contract for the

1997-98 academic year renders her successful appeal an

adverse employment action and “actionable retaliation.”

This argument transposes cause and effect, confuses a

damages issue with the more fundamental one of adverse

employment action, and introduces the employee’s own

volition into the standard of what constitutes “adverse

employment action.” See Speigla v. Hull, 371 F.3d 928,

941, n.6 (7th Cir. 2004) (rejecting the plaintiff’s contention

that the pay cut she received after voluntarily applying for

and being assigned to a new position is evidence of adverse

action, despite her feelings that she was “forced” to do it).

that her persistence [ ... ] was not responsive to a collegial process

arrived at by consensus. . . .” (Record 121: 140-141).

17

Even when viewed in the aggregate, the five employer

actions discussed in the Petition do not constitute adverse

employment action. The standard for adverse employment

action in the Second Circuit, as articulated in Phillips v.

Bowen, 276 F.3d 103, 109 (2d Cir. 2002), requires an

objective assessment of whether “the total circumstances

of an employee’s working environment changed to become

unreasonably inferior and adverse when compared to a

typical or normal, not ideal or model, work place.” Jd. With

objective consideration of even the cumulative impact on

Petitioner of Dr. Firestone’s memorandum to Tindall and

Petitioner of March 27, 1995, the “internal investigation,”

the “false accusations,” the performance evaluation for

1995, and the 1996 nonrenewal vote, in light of Peti-

tioner’s own exacerbation of the problems of her workplace

environment, the employer actions fail to meet the stan-

dard applied in Phillips.

Ill. Lowering the standard for what constitutes

adverse employment action would effectively

eviscerate the defense of qualified immunity,

as virtually all government decisions and ac-

tions could be adverse actions under “clearly

established” law.

Individual Respondents such as those in the instant

case, as government officials performing discretionary

functions, are generally granted qualified immunity and

thus “‘shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person

would have known.’ Harlow v. Fitzgerald, 457 U.S. [800,]

818 [1982].” Wilson v. Layne, 526 U.S. 603, 615 (1999); see

Anderson v. Creighton, 483 U.S. 635, 639 (1987) (citing

18

Harlow, 457 U.S. at 819); see also Graham v. Connor, 490

U.S. 386, 397 (1986). “The central purpose of qualified

immunity is to protect public officials ‘from undue inter-

ference with their duties and from potentially disabling

threats of liability.’ Elder v. Holloway, 510 U.S. 510, 514

[...] (1994) (quoting Harlow, 457 U.S. at 806).” Snyder v.

Nolen, 380 F.3d 279, 289 (7th Cir. 2004).

A determination of entitlement to qualified immunity

involves determining whether the facts alleged show that

Respondents violated a constitutional right, and whether

that right was clearly established at the time of the

violation. See Saucier v. Katz, 533 U.S. 194, 201 (2001)

The clearly established inquiry “must be undertaken in

light of the specific context of the case, not as a broad

general proposition.” Jd. ““‘The contours of the right must

be sufficiently clear that a reasonable official would

understand that what he is doing violates that right.’” Jd.

at 202 (quoting Anderson, 483 U.S. at 640).

Should the current fact-specific, flexible standard for

retaliatory adverse employment action under 42 U.S.C.

§ 1983 be lowered to include the employer actions dis-

cussed in the Petition, government actors would be hob-

bled, as exercise of virtually any aspect of their authority

and fulfillment of virtually any duty assigned them would

be an adverse action under “clearly established” law. “The

definition of adverse action is not static across contexts.”

Thaddeus-X v. Blatter, 175 F.3d at 398. Instead, it has the

capacity to accommodate, whether inclusively or exclu-

sively, the variety of fact patterns presented by public

employment. Petitioner’s position eviscerates the defense

of qualified immunity and has potential to expose govern-

ment employers to undue interference with their perform-

ance of their duties, threats of liability, as well as the

A rere

19

demands of litigation. See Snyder, 380 F.3d at 289 (cita-

tions omitted).

¢

CONCLUSION

The current standard for adverse employment action

in the analyses of § 1983 First Amendment claims and

Title VII retaliation claims, is very much workable, as

demonstrated by its application by all the judicial circuits.

For this and all foregoing reasons, the petition for writ of

certiorari should be denied.

Respectfully submitted,

THURBERT BAKER 033887

Attorney General

DENNIS R. DUNN

Deputy Attorney General

Counsel of Record

Please serve:

DENNIS R. DUNN

Deputy Attorney General

40 Capitol Square, S.W.

Atlanta, Georgia 30334-1300

(404) 656-5614