Opposition Brief — Bewley v. Howell

| Suprems Gum, TS

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No. 93-603

___,_ nov 10 1993 |

In The UFRIOE Ur TH CLERK |

Supreme Court of the United States

October Term, 1993

+

GARY BEWLEY,

Petitioner,

BRUCE HOWELL, SUPERINTENDENT;

INDEPENDENT SCHOOL DISTRICT NO. 1 OF TULSA

COUNTY, OKLAHOMA; BOARD OF EDUCATION OF

INDEPENDENT SCHOOL DISTRICT NO. 1 OF TULSA

COUNTY, OKLAHOMA; JIMMY REEDER; DOUG

DODD; JIM PAYNE; VERNON HOBBS; JUDY

McINTYRE; WALTER HUSHBECK; individually and as

members of the Board of Education of Independent

School District No. 1 of Tulsa County, Oklahoma; and

CATHY RODGERS, an individual,

Respondents.

* —

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

e —

BRIEF IN OPPOSITION

eiandiaeinneta’ 4 _—

J. DouGias MANN*

Jerry A. RICHARDSON

ROSENSTEIN, Fist & RINGOLD

525 South Main, Suite 300

Tulsa, OK 74103

(918) 585-9211

*Counsel of Record

TABLE OF CONTENTS

Page

Response to Petition for Writ of Certiorari......... 1

CONE UENO o ccceev ete ece send seny ers pasesranes 2

Pearioceictborems Sembee... cc cece ces ceverveccves 2

PPT oP EP Te CTT T eee rETeere 2

Summary of Reasons for Denying Petitioner’s

| PPPS EPETET ETE CETL RETO TOEE 9

Reasons for Denying the Petition for Writ of Cer-

NDS 6 ek oes nec erececendeeseecneekeerss eras ets: 11

I. The Court of Appeals and District Court

Approved Summary Judgment in Favor of

Respondents Pursuant to the Guidelines Estab-

lished by this Court in Celotex Corp. v. Catrett

and Anderson v. Liberty Lobby, Inc. ............ 11

II. Petitioner Failed to Present Any Evidence that

the Respondent Board Members Were Aware of

Petitioner’s Alleged Whistle Blowing.......... 14

III. The Record Establishes that Petitioner Received All

the Due Process Protections to Which He Was Enti-

tled Under the Fourteenth Amendment ......... 19

Pe ay rete eta Mer rimcr eras Neath Stink Breadieags a, eM EOY le Mee 22

li

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Liberty Lobby, Inc., 477 U.S. 242

POUND oes dh cee Cenk ae ee 4, 30, 33,32

Baker v. McCollum, 443 U.S. 137 (1979) .............. 20

Bishop v. Wood, 426 U.S. 341 (1976).............4.. 19, 20

Celotex Corp. v. Catrett, 477 U.S. 317 (1986).......... 11

Clark v. Mann, 562 F.2d 1104 (8th Cir. 1977)......... 20

Delta Air Lines v. August, 450 U.S. 346 (1981)......... +

Hortonville Joint Schcol District No. 1 v. Hortonville

Education Association, 426 U.S. 482 (1976).......... 21

Mangels v. Pena, 789 F.2d 836 (10th Cir. 1986) ....... 21

Mt. Healthy City School District Board of Education

v. Doyle, 429 US. 27% (STF ices cvesias 10, 15, 16, 17

Mullane v. Central Hanover Bank & Trust Co., 339

WS. 306 (3906) vo ivcteses it eee 10

Munson v. Friske, 754 F.2d 683 (7th Cir. 1985)........ 18

Prebble v. Brodrick, 525 F.2d 605 (10th Cir. 1976) ..... 16

Setliff v. Memorial Hospital of Sheridan County, 850

P20 1304 (10th Cie. OGG ccc cs ss cmcsenaeueeeuees 18

Vukadinovich v. Board of School Trustees, 978 F.2d

S05 GW Gi W992)... 5 a5 ci cscessaxcsveseeee eee 17

ill

TABLE OF AUTHORITIES - Continued

Page

STATUTES

EE G

NS SE) 11

II TE MOEN so oss viv ccc vecccceccccoesces 19

OTHER AUTHORITIES

Local Rule 15B of the Rules of the United States

District Court for the Northern District of Okla-

eg Seg EEA A a ee 12

PUBLICATIONS

21 C. Wricut & K. GraHam, FeperAL PRACTICE AND

oo RD gs 19

RESPONSE TO PETITION FOR

WRIT OF CERTIORARI

Respondents, Bruce Howell, Superintendent (“How-

ell”), Independent School District No. 1 of Tulsa County,

Oklahoma (the “Tulsa School District”), Board of Educa-

tion of Independent School District No. 1 of Tulsa County,

Oklahoma, and Jimmy Reeder, Doug Dodd, Jim Payne,

Vernon Hobbs, Judy McIntyre and Walter Hushbeck, indi-

vidually and as members of the Board of Education of

Independent School District No. 1 of Tulsa County, Okla-

homa (the “Board members”), respectfully request that

this Honorable Court deny the Petitioner’s request for a

writ of certiorari. Petitioner seeks review of a decision of

the United States Court of Appeals for the Tenth Circuit

that affirmed a summary judgment granted by the United

States District Court for the Northern District of Okla-

homa. The Court of Appeals properly followed the deci-

sions of this Court in affirming the summary judgment

order. As the Court of Appeals stated, under Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 257, “[o]nce a properly

supported motion for summary judgment is advanced,

the nonmovant must come forward with affirmative evi-

dence establishing the presence of a genuine issue of

material fact.” Petitioner’s Appendix 1, p. 3. Because

Petitioner failed to present any such affirmative evidence

raising a dispute as to any genuine issue of material fact,

Respondents were entitled to and were properly granted

summary judgment.

This case does not present any important question of

federal law, and the decision of the United States Court of

Appeals for the Tenth Circuit is not in conflict with the

controlling decisions of this Court, another court of

appeals, or a state court of last resort. Respondents

respectfully ask that Petitioner’s request for a writ of

certiorari be denied.

OPINIONS BELOW

See Petitioner’s Appendix 1 and Appendix 2.

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JURISDICTIONAL STATEMENT

Respondents accept Petitioner’s jurisdictional state-

ment.

STATEMENT OF THE CASE

Petitioner’s Statement of the Case is replete with

factual misstatements and unsubstantiated allegations.

Petitioner’s counsel in this matter is his sister, and that

relationship perhaps accounts for the disregard of the

record that is reflected in the Petition for Certiorari. Nev-

ertheless, Respondents cannot and will not allow such

misrepresentations to go unaddressed.

The opinions of the Court of Appeals and District

Court, which are attached to the Petition for Certiorari at

Appendix 1 and Appendix 2, establish the factual back-

ground for this action. Petitioner was terminated from an

administrative position with Respondent Tulsa School

District in June of 1990 following a thirteen (13) hour due

process hearing before the Board of Education. Peti-

tioner’s Appendix 2, p. 17. Prior to the hearing, Respon-

dent Howell met with Petitioner to hear his side of the

story concerning the allegations against him. Petitioner’s

Appendix 2, pp. 9-10. Respondent Howell later advised

Petitioner in writing that he would recommend Peti-

tioner’s dismissal and that Petitioner had the right to a

hearing before the Board of Education. Petitioner’s

Appendix 2, p. 10. Petitioner retained an attorney, and

Petitioner and his attorney had over two months to pre-

pare for the due process hearing. Petitioner’s Appendix 2,

p. 12.

Petitioner’s due process hearing was held on June 20,

1990. Petitioner’s Appendix 2, p. 13. The administration

was represented by the Respondent Tulsa School Dis-

trict’s regularly retained attorneys. Petitioner’s Appendix

2, p. 10. The administration presented five witnesses,

including Cathy Rodgers, who testified that she and Peti-

tioner engaged in an act of sexual intercourse at Will

Rogers High School during sixth hour on May 3, 1988.

Petitioner’s Appendix, pp. 13-14. Cathy Rodgers was a

seventeen (17) year old student at Will Rogers High

School at the time. Petitioner’s Appendix a 4H

Petitioner was present with his attorney and had the

opportunity to cross-examine Cathy Rodgers and all of

the administration’s witnesses. Petitioner's Appendix 2,

p. 15. Petitioner then called twelve (12) witnesses in his

defense and ultimately testified himself. Petitioner had

the opportunity to tell the Respondent Board members

everything he wanted to say in his defense. Petitioner’s

Appendix 2, pp. 15-17.

At the conclusion of the hearing, the Board of Educa-

tion voted 5-1 to terminate Petitioner based on a finding

that he had engaged in an act of sexual intercourse with a

student under the age of eighteen (18). Petitioner’s

Appendix 2, p. 18.

Petitioner brought this action alleging numerous

causes of action, including deprivation of property and

liberty without due process, a first amendment “whistle

blowing” claim, age discrimination, and various state law

causes of action including breach of contract and viola-

tion of the Oklahoma Open Meeting Act. The District

Court granted summary judgment to Respondents on all

of Petitioner’s claims. On appeal, Petitioner raised only

three (3) issues: deprivation of liberty without due pro-

cess, the first amendment whistle blowing claim, and

qualified immunity. Petitioner’s Appendix 1, p. 3.

Because Petitioner did not preserve his state law claim of

a violation of the Oklahoma Open Meeting Act before the

Tenth Circuit Court of Appeals, he cannot raise that issue

before this Court.! Delta Air Lines v. August, 450 U.S. 346,

362 (1981). His allegations at pp. 4 and 7 of his Petition

that state law was violated are insupportable and gratu-

itous.

Petitioner alleges at p. 5 that the Respondents failed

to prove by a preponderance of evidence that he commit-

ted an act of sexual misconduct with the minor student

! As the District Court pointed out, Petitioner did not even

mention the alleged Open Meeting Act violation in his brief in

response to the Respondents’ motion for summary judgment.

Petitioner’s Appendix 2, p. 32. Petitioner has never presented

any evidence to support this allegation.

Cathy Rodgers. Yet the record reflects that both parties

characterized the due process hearing as a “swearing

match” between Cathy Rodgers and Petitioner. Peti-

tioner’s Appendix 2, p. 29. The Respondent Board mem-

bers heard both sides and believed Cathy Rodgers. Her

testimony at Petitioner’s due process hearing was ample

evidence to support the decision to terminate Petitioner.

See Petitioner’s Appendix 2, pp. 13-14.

Petitioner asserts that he was “cleared” of this allega-

tion in an investigation in 1988 and later denied access to

that “investigatory file.” Yet as the District Court

observed, the evidence established that the initial deci-

sion of Petitioner’s immediate supervisor not to pursue

the investigation further in 1988 was “based upon an

erroneous interpretation of alibi information.” Peti-

tioner’s Appendix 2, p. 27. Moreover, both the District

Court and the Court of Appeals concluded that Petitioner

presented no evidence that Respondents had ever denied

Petitioner access to any relevant document that he had

requested. Petitioner's Appendix 1, p. 4; Petitioner’s

Appendix 2, pp. 19, 22.

Petitioner discusses his whistle blowing claim at pp.

5-6 of his Petition. He claims that he was terminated

because he uncovered a plot to falsify student attendance

figures at Will Rogers High School. Petitioner fails to

mention that it is undisputed that the Respondent Board

members, the decisionmakers who voted to terminate

him, were never made aware of Petitioner’s so-called

whistle blowing. Petitioner’s Appendix 1, p. 4; Peti-

tioner’s Appendix 2, pp. 21, 30. Furthermore, the undis-

puted facts establish that Petitioner himself never

mentioned this issue at his due process hearing. Peti-

tioner’s Appendix 2, pp. 17, 21. In addition, the District

Court found that there was no evidence that the record

keeping practices at Will Rogers High School, about

which Petitioner purportedly complained, were in any

way illegal. Petitioner's Appendix 2, p. 21. Thus, the

record establishes that Petitioner “blew the whistle” on a

perfectiy lawful practice.

Petitioner asserts that Cathy Rodgers has a “lengthy

psychiatric history” and has accused “many” men of

having sexual relations with her. The record does not

support either of these characterizations.?, However, the

salient point is that Petitioner brought both of these alle-

gations to the attention of the Respondent Board mem-

bers at Petitioner’s due process hearing. Petitioner’s

Appendix, pp. 16, 23. To the extent that they had some

bearing on Cathy Rodgers’s credibility as a witness, these

allegations were for consideration by the Board of Educa-

tion.

Petitioner alleges that J. Douglas Mann, attorney for

Respondents, met with the Board members prior to Peti-

tioner’s pretermination hearing and presented evidence

that biased the Board against Petitioner. This is an abso-

lute falsehood. There is no evidence anywhere in the

2 It is undisputed that another teacher at Will Rogers High

School resigned after Cathy Rodgers identified him as the father

of her child. Cathy Rodgers stated that she had been seduced by

this teacher the year after she was seduced by Petitioner. Peti-

tioner’s Appendix 2, pp. 9-10. It is also undisputed that Cathy

Rodgers admitted that she had sought counseling from a psy-

chologist. Petitioner's Appendix 2, p. 23.

record to indicate that this occurred. The only evidence

that even remotely bears on this point is the deposition

testimony of Board member Vernon Hobbs. Hobbs recal-

led that at some time before the due process hearing,

Respondent Howell (not Mann) advised the Board that

the media would likely be contacting them regarding a

minor student’s allegations against Petitioner. According

to Hobbs, Respondent Howell told the Board of Educa-

tion that “he did not have enough information to do

anything with at that time, but he was trying to get us

notified before the media did... ” (see Appellee’s

Answer Brief, p. 25, filed January 29, 1993, Bewley v.

Howell, et al., No. 92-5215 (10th Cir.), and citations to the

record therein). The Court of Appeals, after a de novo

review of the record, found no evidence of any other pre-

hearing meeting. Petitioner's Appendix 1, pp. 5-6. The

Court of Appeals found that this meeting was open to the

public and that Petitioner had presented no evidence

indicating that he was in any way prejudiced by this

meeting. Id.

Petitioner’s fabrications continue when he asserts

that Mann, Cathy Rodgers, her mother, and her attorney,

Doris Fransein, went into deliberative sessions with the

Respondent Board members. This never happened, and

Petitioner can point to no evidence in the record suggest-

ing that it did. The District Court specifically noted in its

opinion that the attorneys for the Respondents “did not

meet with the Board while the Board deliberated or

advise the Board in any improper manner.” Petitioner’s

Appendix 2, pp. 28-29.

Petitioner asserts that the Respondent Board mem-

bers indicated that they placed the burden of proof on

Petitioner to prove his innocence, rather than on the

administration to prove the allegations against Petitioner.

In fact, the record discloses that all of the Respondent

Board members testified that they understood that the

burden of proof was on the administration. Petitioner’s

Appendix 2, pp. 25, 29.

Petitioner contends that Respondents denied him

access to the records in his office and had them “boxed

up and destroyed” to keep Petitioner from being able to

prove his whereabouts on the date and time in question.

This is yet another falsehood. The Court of Appeals noted

that there was no evidence in the record that the Respon-

dents ever denied Petitioner a document he had properly

requested or destroyed any relevant document. Peti-

tioner’s Appendix 1, p. 4. The District Court likewise

found that no documents had been withheld from Peti-

tioner. Petitioner’s Appendix 2, pp. 22-24.

Petitioner states that after his due process hearing he

found at his mother’s house documents that proved he

was breaking up a “girl fight” involving a gun during

sixth hour on May 3, 1988. Yet the undisputed facts

established that these documents did not reflect that any-

one was in Petitioner’s office during sixth hour on May 3,

1988. Petitioner’s Appendix 2, p. 17. These documents do

not contradict Cathy Rodgers’s testimony in any way.

Moreover, as the District Court found, the record shows

that these documents were not withheld from Petitioner

by Respondents. They were stored in Petitioner’s

mother’s garage at all times. Petitioner’s Appendix 2, p.

25. Yet Petitioner did not tell the Board of Education

about these documents at his due process hearing. Peti-

tioner’s Appendix 2, p. 17.

During the course of this litigation, Petitioner has put

forward allegations against Respondents ranging from

failure to provide him the appropriate statutory termina-

tion procedures under Oklahoma law to discrimination

based on age. Petitioner’s Appendix 2, pp. 31-32. None of

Petitioner’s allegations has ever been supported by any

evidence. Following Respondents’ motion for summary

judgment, it was incumbent upon Petitioner to present

affirmative evidence establishing the presence of a genu-

ine issue of material fact concerning any of these claims.

As the opinions of the Court of Appeals and the District

Court reflect, Petitioner failed to make such a showing.

+

SUMMARY OF REASONS FOR DENYING

PETITIONER’S REQUEST

Petitioner’s request for a writ of certiorari should be

denied because this case does not present an important

question of federal law. The lower courts properly fol-

lowed this Court’s decisions governing summary judg-

ment practice, first amendment claims, and due process.

All of the issues in this case are governed by existing law.

Petitioner’s request for a writ of certiorari does not raise

any important new issues; it is merely an attempt to raise

yet again the same baseless allegations that were consid-

ered and rejected by the Court of Appeals and the District

Court.

Pursuant to Rule 56, Feb. R. Civ. P., a party opposing

a properly supported motion for summary judgment

“may not rest upon mere allegation or denials of his

pleading, but must set forth specific facts showing that

10

there is a genuine issue for trial.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256 (1986). The lower courts

properly held Petitioner to this requirement and properly

granted and affirmed summary judgment to Respondents

when Petitioner failed to make such a showing.

The law governing Petitioner’s first amendment

claim is equally well established. Pursuant to Mt. Healthy

City School District Board of Education v. Doyle, 429 U.S. 274

(1977), Petitioner had the burden of establishing both that

his speech was protected and that it was a substantial or

motivating factor in the action taken against him.

Respondents conceded the first point, but Petitioner

utterly failed to establish the second.

Finally, this Court has long held that due process

requires that any deprivation of life, liberty, or property

“be preceded by notice and an opportunity for a hearing

appropriate to the nature of the case.” Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). It is

undisputed that Petitioner was terminated only after a

thirteen (13) hour due process hearing, which in turn was

preceded by twc months of preparation and discovery by

Petitioner and his attorney. Because the Court of Appeals

and the District Court tellowed settled law in disposing

of Petitioner’s claims, Petitioner’s request to invoke the

discretion of this Court should be denied.

¢

11

REASONS FOR DENYING THE PETITION

FOR WRIT OF CERTIORARI

I. The Court of Appeals and District Court Approved

Summary Judgment in Favor of Respondents Pur-

suant to the Guidelines Established by this Court in

Celotex Corp. v. Catrett and Anderson v. Liberty

Lobby, Inc.

In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), this

Court defined the standard by which a motion for sum-

mary judgment is to be judged:

In our view, the plain language of Rule 56(c)

mandates the entry of summary judgment, after

adequate time for discovery and upon motion,

against a party who fails to make a showing

sufficient to establish the existence of an ele-

ment essential to that party’s case, and on which

that party will bear the burden of proof at trial.

Id. at 322.

The Court observed:

One of the principal purposes of the summary

judgment rule is to isolate and dispose of factu-

ally unsupported claims or defenses, and we

think it should be interpreted in a way that

allows it to accomplish this purpose. Id. at

323-24.

On the same day that Celotex was decided the Court

also decided Anderson v. Liberty Lobby, Inc., 477 U.S. 242

(1986). In Anderson, the Court held that the standard for

deciding motions for summary judgment is the same as

the standard for directed verdicts. Id. at 250. Thus, a

properly supported motion for summary judgment

should be granted unless there is sufficient evidence in

12

the record to justify a jury verdict for the non-moving

party. As the Court in Anderson pointed out:

The mere existence of a scintilla of evidence in

support of the plaintiff’s position will be insuffi-

cient; there must be evidence on which the jury

could reasonably find for the plaintiff. Id. at 252.

The record of this case demonstrates that Petitioner

failed to present evidence necessary to withstand Respon-

dents’ motion for summary judgment. The opinion of the

District Court indicates that in his brief in opposition to

Respondents’ motion, Petitioner responded to only thir-

teen (13) of the fifty-nine (59) numbered statements of

undisputed fact set forth in Respondents’ opening brief.

Petitioner’s Appendix 2, pp. 4-5. Thus, Petitioner admit-

ted’ all but thirteen of the fifty-nine fact statements relied

on by Respondents in seeking summary judgment.

The District Court, in a thorough opinion that metic-

ulously cited to deposition testimony and the transcript

of the due process hearing, discussed each of the undis-

puted material facts relied on by the Respondents and

each of Petitioner’s alleged statements of disputed fact.

3 Local Rule 15B of the Rules of the United States District

Court for the Northern District of Oklahoma provides in part:

A brief in support of a motion for summary judgment

(or partial summary judgment) shall begin with a

section that contains a concise statement of material

facts as to which movant contends no genuine issue

exists. ... All material facts set forth in the statement

of the movant shall be deemed admitted for the pur-

pose of summary judgment unless specifically contro-

verted by the statement of the opposing party.

Petitioner’s Appendix 2, p. 4.

13

Petitioner's Appendix 2, pp. 5-25. After a fact-by-fact

comparison, the District Court concluded that there were

no material facts in dispute. This conclusion was affirmed

by the Court of Appeals following a de novo review of the

record. Petitioner’s Appendix 1, p. 3.

Petitioner contends that the District Court ignored its

duty to view the facts in the light most favorable to him.

Yet the opinion of the District Court noted:

The evidence and inferences therefrom must be

viewed in a light most favorable to the non-

moving party. . . . Unless Defendants can dem-

onstrate their entitlement beyond a reasonable

doubt, summary judgment must be denied

.. . (citations omitted). Petitioner’s Appendix 2,

p. 3.

The Court of Appeals applied the same standard pur-

suant to its de novo review.

Characteristically, Petitioner is totally silent as to any

specific fact dispute that the lower courts might have

overlooked. He neither identifies nor makes reference to

any such error anywhere in the record of this case.

Because the Court of Appeals and District Court

correctly followed this Court’s decisions regarding the

showings necessary in ruling on a motion for summary

judgment, and because Petitioner fails to identify any

reason that this case merits review other than his own

refusal to accept the judgment of the lower courts, Peti-

tioner’s petition for a writ of certiorari should be denied.

_—

oe

II. Petitioner Failed to Present Any Evidence that the

Respondent Board Members Were Aware of Peti-

tioner’s Alleged Whistle Blowing.

The second and third propositions in the Petition for

Certiorari relate to Petitioner’s first amendment whistle

blowing claim. Petitioner appears to argue that such

claim is governed by state law. Yet he also characterizes

this issue as a “federal question,” and goes on to state his

third proposition of error as follows: “The Tenth Circuit

Court of Appeals has decided a federal question, the

right of Petitioner to a jury trial on his state law claims

for deprivation of his First Amendment right of free

speech, for his termination for vocally refusing to alter

attendance records, in a way in conflict with the decisions

of the Supreme Court of Oklahoma.” Petition for Cer-

tiorari, p. 14.

Respondents do not understand Petitioner’s argu-

ment. The record, however, establishes that the Court of

Appeals and District Court addressed Petitioner’s first

amendment claim. Following its de novo review of the

record, the Court of Appeals concluded: “There is no

evidence that . . . (4) the Board had been apprised of

[Petitioner’s] alleged ‘whistle blowing’ activities prior to

the hearing.” Petitioner's Appendix 1, p. 4. Likewise, the

District Court noted:

The evidence is undisputed that [Petitioner] did

not communicate this allegation to the school

Board previous to or during the hearing of June

20, 1990. There is no evidence in the record that the

school Board had any knowledge of [Petitioner's]

prior “whistle blowing” concerning the average daily

pupil attendance funding matter. [Petitioner] bears

15

the burden of showing that his speech was the

motivating factor behind the Board’s decision,

and mere conjecture about the motive behind

the official decision is not sufficient to carry the

Plaintiff’s burden (emphasis added). Peti-

tioner’s Appendix 2, p. 30.

Respondents would stress that Petitioner has never

shown that there was any illegality or impropriety in the

way attendance records were maintained at Will Rogers

High School. The District Court concluded that there was

“no significant law violation concerning Will Rogers High

School’s method and way of recording students atten-

dance for funding purposes.” Petitioner’s Appendix 2, p.

21. Petitioner’s speech on this issue did not reveal any

wrongdoing by the Respondent Tulsa School District; at

most, it disclosed Petitioner’s own ignorance about pub-

lic school enrollment and attendance practices in the State

of Oklahoma. This point is discussed in detail in Appel-

lee’s Answer Brief, pp. 13-15, filed January 29, 1993,

Bewley v. Howell, et al., No. 92-5215 (10th Cir.).

The lower courts’ decisions follow well-established

law.4 In Mt. Healthy City School District Board of Education

v. Doyle, 429 U.S. 274 (1977), this Court set forth a three-

pronged test to determine whether a public employee's

first amendment right to free speech has been infringed:

(1) the public employee has the burden of establishing as

a matter of law that his speech was protected; (2) the

employee must demonstrate that the protected speech

was a substantial or motivating factor in the action taken

4 Contrary to Petitioner’s suggestion, Oklahoma law does

not control Petitioner’s first amendment claims.

16

against him; and (3) the burden then shifts to the

employer to show by a preponderance of the evidence

that the employer would have made the same decision

even in the absence of the protected speech. Id. at

284-287.

Respondents acknowledge that Petitioner’s so-called

“whistle blowing” is protected speech. But the record

establishes that Petitioner failed to meet the second prong

of the Mt. Healthy test, which requires a showing that his

speech was a substantial or motivating factor in the

Board’s decision.

In Prebble v. Brodrick, 535 F.2d 605 (10th Cir. 1976), the

Tenth Circuit noted that a first amendment claim is not an

appropriate vehicle to attempt to overturn decisions

made by school officials:

It was incumbent upon the plaintiff to establish

that his exercise of First Amendment rights was

the reason for his discharge. . . . Prebble did

present some substantial proof of his excellence

as an economics professor and that he was a fine

person to associate with. .. . But § 1983 is not a

vehicle for federal court corrections of errors,

committed by school administrators in the exer-

cise of their discretion, not rising to the level of

violations of specific constitutional guarantees

(citations omitted). Id. at 617.

The court made clear that conjecture about the motive

behind an official decision is not sufficient to carry the

plaintiff’s burden:

Here Prebble’s only proof touching on his First

Amendment claim was that he had spoken out

in some faculty meetings and associated with

17

some faculty members who disagreed with their

superiors, and with Dr. Pikl, who was replaced.

But there was no showing that the defendants

objected to this conduct. . . . [H]ere is it only

surmise that his discharge was in retaliation for

his statements or association (emphasis added).

Id.

In Vukadinovich v. Board of School Trustees, 978 F.2d 403

(7th Cir. 1992), the Seventh Circuit affirmed the dismissal

of a terminated teacher’s complaint. The teacher was

terminated after he had twice been arrested, convicted

and incarcerated for alcohol and driving offenses. The

teacher claimed, however, that his termination was moti-

vated by his public criticism of the hiring of a new

superintendent two years earlier. The Seventh Circuit

observed that the teacher had been reemployed for

another year after his speech. The court also noted that

the teacher never raised his speech claim to the Board of

Trustees at his due process hearing:

Vukadinovich himself did not assert any link

between his 1986 comments and his discharge

more than two years later - despite repeated

opportunities to do so — in fact, until he filed

this lawsuit. During the hearing before the

Board, Vukadinovich never suggested, or even

hinted, that the Board might have been moti-

vated by his 1986 comments. Id. at 408.

The court determined that no jury could conclude that

the teacher’s comments were a factor in the Board’s deci-

sion to terminate him.

The Court of Appeals and District Court also reached

the correct result based on the third prong of the Mt.

Healthy test. The record shows that the Board terminated

18

Petitioner based on Cathy Rodgers’s testimony that she

and Petitioner engaged in an act of sexual intercourse at

Will Rogers High School. Clearly, Petitioner would have

been terminated regardless of his alleged whistle blow-

ing. In a footnote in Setliff v. Memorial Hospital of Sheridan

County, 850 F.2d 1384 (10th Cir. 1988), the Tenth Circuit

observed:

We note that in general summary judgment is

“an inadequate procedure for sorting out nebu-

lous questions of motivation”. . . . Nonetheless,

there is ample evidence suggesting that the

defendants had reasons for investigating Setliff

unrelated to Setliff’s speech. By contrast, Set-

liff’s only evidence suggesting retaliation based

on his speech are his conclusory allegations of

retaliation and the recitation of certain criticisms

he directed at certain Hospital practices. That is

insufficient to withstand a motion for summary

judgment. See Munson v. Friske, 754 F.2d 683, 690

(7th Cir. 1985) (“[A]lthough summary judgment

is usually not proper in a case involving a

weighing of conflicting questions of motive and

intent, summary judgment is proper where the

plaintiff presents no indication of motive and

intent supportive of his position.”). Setliff, 850

F.2d at 1393, n. 12.

In granting summary judgment to the defendants, the

court in Setliff noted that the plaintiff had failed “to

identify any evidence suggesting a causal link between

Setliff’s speech and the investigation.” Id. at 1393. The

court concluded by noting, “We require more than pure

speculation to defeat a motion for summary judgment.”

Id.

19

These cases illustrate that the lower courts’ decisions

rejecting Petitioner’s whistle blowing claim are well

grounded in existing law.

Petitioner alleges that the Court of Appeals declined

to take judicial notice as requested under Rule 201, Feo.

R. Evip. Petitioner misunderstands the nature of judicial

notice under Rule 201, which is limited to “adjudicative

facts.” Petitioner argues that the Court of Appeals failed

to take judicial notice of the law of Oklahoma. This rule,

however, does not-apply to judicial notice of laws, as the

Advisory Committee Notes make ciear. See 21 C. WriGHT

& K. GraHam Feperat Practice AND Procepure § 5103

(1977). Moreover, the disposition of Petitioner’s first

amendment claim by the lower courts makes the statutes

of the state of Oklahoma regarding student attendance

records irrelevant, because Petitioner utterly failed to

carry his burden of showing that his speech on the stu-

dent attendance issue was in any way a motivating factor

in the Board’s decision to terminate him. Petitioner’s

judicial notice argument is wholly without merit.

Ill. The Record Establishes that Petitioner Received

All the Due Process Protections to Which He Was

Entitled Under the Fourteenth Amendment.

Petitioner completely misunderstands due process

analysis under the fourteenth amendment, as evidenced

by his attempt to distinguish Bishop v. Wood, 426 U.S. 341

(1976). Indeed, Petitioner distorts the District Court’s

opinion when he suggests that the District Court relied

on Bishop v. Wood in “granting . . . summary judgment to

respondents on all issues.” Petition for Certiorari, p. 15.

20

In truth, the District Court cited numerous authorities in

addressing each of Petitioner’s many causes of action. It

relied on Bishop v. Wood only for the proposition that

federal courts do not sit to second guess public bodies on

the myriad personnel decisions made by such bodies

from day to day. The District Court properly concluded

that Petitioner could not use his due process claim to

retry the merits of the decision to terminate him. Peti-

tioner’s Appendix 2, pp. 26-27.

Petitioner also fails to understand that the law does

-not absolutely protect property and liberty interests. The

fourteenth amendment is no guarantee against the depri-

vation of property or liberty. It only insures that such

deprivations will not be accomplished without due pro-

cess of law. Baker v. McCollum, 443 U.S. 137, 145 (1979).

The record establishes that Petitioner was terminated

following an all-day due process hearing before the

Board of Education of Respondent Tulsa School District.

Petitioner was represented by counsel, confronted with

the evidence against him, allowed to present and cross-

examine witnesses, and allowed to present whatever evi-

dence and argument he wanted. Petitioner received more

than adequate due process protection.

Petitioner complains that he has been stigmatized as

a result of his terminaticn. Yet to the extent Petitioner

attempts to premise a liberty interest claim on the out-

come of the Board hearing, which Petitioner himself

requested, his claim is unfounded as a matter of law. In

Clark v. Mann, 562 F.2d 1104 (8th Cir. 1977), the court

discussed a non-tenured teacher’s liberty interest claim

as follows:

21

{[W]jhere derogatory reasons for nonrenewal are

incorporated into a record made available to a

prospective employer or are publicly

announced, the teacher may be said to have

been deprived of an interest in liberty. . . . It 1s

important to note, however, that where the rea-

sons for nonrenewal become public information

solely by way of a public hearing held at the

behest of the teacher, such disclosures cannot

form the basis for a deprivation of the teacher’s

interest in liberty (citation omitted). Id. at 1116.

Thus, Petitioner cannot claim a deprivation of liberty

without due process simply because stigmatizing infor-

mation was made public as a result of his due process

hearing.

Petitioner also contends that the Respondent Board

members were biased against him. This claim was also

considered and rejected by the Court of Appeals and the

District Court. Petitioner’s Appendix 1, p. 4; Petitioner’s

Appendix 2, p. 28. Petitioner can point to no evidence in

the record that supports his allegation of bias. Absent

such a showing, this claim must be rejected. In Hortonville

Joint School District No. 1 v. Hortonville Education Associa-

tion, 426 U.S. 482, 497 (1976), this Court noted that the

law presumes that school board members act with hon-

esty and integrity when discharging their official duties.

Because of this presumption, there must be “some sub-

stantial countervailing reason to conclude that a decision-

maker is actually biased.” Mangels v. Pena, 789 F.2d 836,

838 (10th Cir. 1986). There is nothing in the record to

indicate that the Board was biased. Contrary to Peti-

tioner’s apparent belief, the fact that the Board believed

a6

the evidence against him and voted to terminate him is

not evidence of bias.

CONCLUSION

For the reasons stated herein, Respondents pray that

Petitioner’s Petition for Writ of Certiorari to the Tenth

Circuit Court of Appeals be denied.

Respectfully submitted,

J. Douctas MANN

Jerry A. RICHARDSON

ROSENSTEIN, Fist & RINGOLD

525 South Main, Suite 300

Tulsa, OK 74103

(918) 585-9211

Counsel for Respondents