Opposition Brief — Norton v. Catanese

—_

No. 01-1236 MAR 28 2002

In The

Supreme Court of the United States

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SANDRA K. NORTON,

Petitioner,

ANTHONY CATANESE, RICHARD OSBURN, JAMES

MALEK, DAVID ANDERSON, ONDINA FELIPE,

CARLA COLEMAN, JEAN L. BALDET,

and LYNDA QUILLAN,

Respondents.

«

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

¢

RESPONDENTS’ BRIEF IN OPPOSITION

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MicHaet B. Davis

Counsel of Record

PAxTON & Smitn, P.A.

Barristers Building, Suite 500

1615 Forum Place

West Palm Beach, FL 33401

Phone: (561) 684-2121

Fax: (561) 684-6855

Counsel for all Respondents

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

i

TABLE OF CONTENTS

Page

pe OS Be yy 8 lnk re eee oer wr eee iii

RPA MAUR GRE BAUME GA 6 ik koe ccedswnncowcdsaes 1

A. PRUCBEUINGS BELOW «2... 6s... cscccs cess 1

esr Sy a Oe |” ty 5. ERO ane ee +

REASONS FOR DENYING THE PETITION......... 12

I THE PETITIONER’S FIRST ARGUMENT FOR

CERTIORARI REVIEW SHOULD BE REJECTED

FOR TWO REASONS: FIRST, THE CONFLICT

IDENTIFIED BY THE PETITIONER IS LIMITED

IN EXTENT, INVOLVING ONE DECISION IN

ONE CIRCUIT ON ONE SIDE AND THE GREAT

MAJORITY OF CIRCUITS INCLUDING THE

ELEVENTH CIRCUIT, ON THE OTHER, AND

SECOND, A RULING UPON THE ISSUE IN THIS

CASE WOULD NOT BE MEANINGFUL IN

RESOLVING THE DISPUTE BETWEEN THE

PARTIES SINCE, EVEN IF THE “PUBLIC CON-

CERN” ELEMENT WERE HELD INAPPLICABLE

TO PETITION CASES, THE RULE APPLYING IT

WAS ESTABLISHED IN THE ELEVENTH CIR-

CUIT AT THE TIME OF THE ALLEGED RETAL-

IATION AND THE DEFENDANTS WOULD

STILL BE ENTITLED TO DISMISSAL UPON

QUALIFIED IMMUNITY AS THEIR ALLEGED

CONDUCT WAS NOT CLEARLY UNLAWFUL

PR EEE ROME TE CAA 66sec ccccccccses 12

li

TABLE OF CONTENTS - Continued

Page

I] THE PETITIONER’S SECOND ARGUMENT FOR

CERTIORARI REVIEW SHOULD BE REJECTED

SINCE THE CONFLICT AMONG THE CIRCUITS

IDENTIFIED BY THE PETITIONER IS ILLUSORY !

AND SINCE THE FACTS ALLEGED BELOW :

CLEARLY ESTABLISH THE PROPRIETY OF

APPLYING THE “PUBLIC CONCERN” RULE AS

WAS DONE BY THE COURTS BELOW......... 18

CONCLUSION .....:55s08800s0uen eee en 23

iii

TABLE OF AUTHORITIES

Cases

Altman v. Hurst, 734 F.2d 1240 (7th Cir. 1984)....... 16

Ansley v. Heinrich, 925 F.2d 1339 (11th Cir. 1991) ....17

Auriemma v. Rice, 910 F.2d 1449 (7th Cir. 1990),

cert. denied, 501 U.S. 1204, 111 S.Ct. 2796, 115

ee oS a 5 odd xdbnskeeceesu ts 21

Badia v. City of Miami, 133 F.3d 1443 (11th Cir.

DUMGEUN A TEVEGE nes E Rane bebheceretscusesecece 17, 22

Beaulieu v. United States, 497 U.S. 1038, 110 S.Ct.

3302, 111 L.Ed.2d 811 (1990) (White, dissenting) .... 13

Belk v. Town of Minocqua, 858 F.2d 1258 (7th Cir.

EE AS CE 16

Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75

i éni oct aeisasabinsacseséones passim

Cromer v. Brown, 88 F.3d 1315 (4th Cir. 1996)........ 21

Day v. South Park Indep. Sch. Dist., 768 F.2d 696

(5th Cir. 1985), cert. denied, 474 U.S. 1101, 106

Dae. See, Ge bee ee FEB (1ISGG). ... occ acccccacsess 15

Gable v. Lewis, 201 F.3d 769 (6th Cir. 2000)....... 14, 16

Gearhart v. Thorne, 768 F.2d 1072 (9th Cir. 1985) ..... 16

Greco. v. Orange Memorial Hospital Corp., 423 U.S.

1000, 96 S.Ct. 433, 46 L.Ed.2d 376 (1975).......... 13

Grigley v. City of Atlanta, 136 F.3d 752 (11th Cir.

1998), cert. denied, 525 U.S. 819, 119 S.Ct. 59, 142

i Mics ho beb 64556565004 0560s odbexe 16, 22

iv

TABLE OF AUTHORITIES - Continued

Page

Harrison v. Springdale Water & Sewer Com'n, 780

RAUk RGAE GRO Ce TO 5 a hs cncas cose tnsodunatins 15

Hoffman v. Mayor, Councilmen and Citizens of Lib-

erty, 905 F.2d 229 (Sth Cir. 1990)............c0800- 16

Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522

ob Ge E.Mey ee re eer ere eT eee 22

Martin v. City of Del City, 179 F.3d 882 (10th Cir.

Ey Sey Pr eer ee Perr ere mere hor Pp rorr eT 16

Morgan v. Ford, 6 F.3d 750 (11th Cir. 1993), cert.

denied, 512 U.S. 1221, 114 S.Ct. 2708, 129 L.Ed.2d

OD Cs knit Kea Oh Kh cab RK ee eeeIe eee 16,

Rathjen v. Litchfield, 878 F.2d 836 (5th Cir. 1989).....

Rendish v. City of Tacoma, 123 F.3d 1216 (9th Cir.

1997), cert. denied, 524 U.S. 952, 118 S.Ct. 2368,

BGA Lede FONE GUD UUS a hein esc skoas ceabenaseeuss es

Rice v. Ohio Dept. of Transp., 887 F.2d 716 (6th Cir.

1989), cert. denied, 512 U.S. 1207, 114 S.Ct. 2678,

SIP Ree We CN 6s hn 0h0 dd ccndssenteans 14,

Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988)...

San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir.

1994), cert. denied, 513 U.S. 1082, 115 S.Ct. 735,

és gm ge 8: | ee ee re rrr rE 13,

Schalk v. Gallemore, 906 F.2d 491 (10th Cir.

RE kk bata ne Os bck es kee cea eeas 14,

Stuckett v. United States Postal Service, 469 U.S. 898,

105 S.Ct. 274, 83 L.Ed.2d 210 (1984) (White,

CMOS oi on. o.n os dadKinckneeegnassuactasachinnss

Tao v. Freeh, 27 F.3d 635 (D.C. Cir. 1994) ............

Vv

TABLE OF AUTHORITIES - Continued

Page

Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) ....15

The Monrosa v. Carbon Black Export, Inc., 359 U.S.

180, 79 S.Ct. 710, 3 L.Ba.2d 723 (1959) ......... 13, 17

Valot v. Southeast Local School Dist. Bd. of Education,

107 F.3d 1220 (6th Cir. 1997), cert. denied, 522 U.S.

861, 118 S.Ct. 164, 139 L.Ed.2d 108 (1997)........ 14, 16

White Plains Towing Corp. v. Patterson, 991 F.2d

1049 (2d Cir. 1993), cert. denied, 510 U.S. 865, 114

SC. 165, 126 Lio. 266 (1988). kcesws cn dens ss 15

Zorzi v. County of Putnam, 30 F.3d 885 (7th Cir.

oe PTET PTT TeT ev Perr eri Tey ry re er 16

Laws AND STATUTES

Equal Pay Act of 1963

- Bik ae Per ye rr or rre re ene pe 1

4 USA. | TR assists irate, 1, & a 7, ae

§ 229.003(5)(A)

Paneiiia Demtaie GOOGE) oon is ck ei ee es 5

Law Review ARTICLE

Strauss, Note: Public Employees’ Freedom of Associa-

tion: Should Connick v. Myers’ Speech-Based Pub-

lic-Concern Rule Apply, 61 Fordham L.Rev. 473

ff) Pe rerrr ere yr rr errr er ys er oe 14

STATEMENT OF THE CASE

A. PROCEEDINGS BELOW

Sandra K. Norton brought suit in the United States

District Court, Southern District of Florida, naming as

Defendants Florida Atlantic University and six members

of its administration: Anthony James Catanese, Richard L.

Osburn, James S. Malek, David Anderson, Ondina Fel pe

and Carla L. Coleman. (R1-1). Her initial Complaint, filed

on January 7, 1997, set out four separate claims: a claim

under 42 U.S.C. § 1983 against the six individual defen-

dants for alleged violation of her rights under the First

and Fourteenth Amendments (claiming that the individ-

ual defendants undertook retaliatory action against her

after she sought certain documents in connection with a

personal employment dispute and then brought a man-

damus action in state court to compel release of those

documents by the University); a claim against the Univer-

sity for alleged violation of the Equal Pay Act of 1963, 20

U.S.C. § 206 et seq. (claiming she was paid less as a faculty

member than other similarly situated male faculty mem-

bers), and two state law claims, one for declaratory relief

against the University (asking that she be determined to

be the proper holder of an endowed chair at the Univer-

sity), and another for alleged breach of contract (claiming

that the University had breached a contract with her by

allegedly removing her from the endowed chair). (R1-1).

Each Defendant moved to dismiss the complaint pur-

suant to Fed.R.Civ.P. 12(b)(6). (R19-1; R21-1; R24-1; R25-1;

R26-1; R27-1; R28-1). Norton then moved for leave to

amend her Complaint, which the Court granted on March

10, 1997. (R39-1; R41-1).

Norton’s Amended Complaint substituted The Board

of Regents of the Division of Universities of the Florida

Department of Education (BOR) for the University, since

the latter was not an entity capable of being sued. Other

than this substitution, the Amended Complaint contained

a slight modification of the claim under 42 U.S.C. § 1983.

(R42-1).

The individual Defendants again moved to dismiss

pursuant to Rule 12(b)(6), as did the BOR. (R45-1; R46-1;

R47-1; R48-1; R50-1; R52-1; R563-1). Norton sought leave

to file a Second Amended Complaint, which the Court

granted on February 25, 1998. (R66-1; R73-1).

The Second Amended Complaint added two addi-

tional parties, Jean Louis Baldet and Lynda Quillen, and

alleged factually that Norton had been discharged from

her employment at the University following an extended-

controversy with the administration over her refusal to

provide a report from a physician estimating the time she

was expected to be remain unavailable to tend to her

teaching duties due to recuperation from minor surgery.

(R89-1 Pet. App. 44-47). The Count against the individual

Defendants for alleged retaliation for exercise of First

Amendment rights was amended to assert that Norton

was discharged for pursuing the present action. (R89-14

Pet. App. 50-52). A new Count against the individual

Defendants also alleged that the manner of Norton’s dis-

charge had deprived her of a property interest in her

a

employment with the University in violation of pro-

cedural due process rights under the Fourteenth Amend-

ment. (R89-16 Pet. App. 53). The remainder of the

pleading was essentially unchanged from the Amended

Complaint.?

Each of the individual defendants and the BOR again

moved to dismiss the Second Amended Complaint under

Rule 12(b)(6); the individuals also asked for dismissal

from the action on the ground of qualified immunity.

(R78-1; R85-1; R86-1; R99-1; R107-1; R109-1; R110-1).

On December 30, 1998, the District Court entered a

lengthy and detailed Order dismissing all Counts except

that against the BOR alleging Equal Pay Act violations.

(R128-1 Pet. App. 12). The claim under 42 U.S.C. § 1983

based upon alleged retaliation for exercise of First

Amendment rights was dismissed with prejudice upon

the ground that Norton’s document request and litigation

did not implicate matters of public concern. The District

Court, having dismissed the claims against all of the

individual Defendants with prejudice, deemed the Defen-

dant’s motions based upon qualified immunity to be

moot and did not rule upon them. Norton’s Motion ‘for

Reconsideration was denied on March 23, 1999. (R130-1;

R153-1). The action then proceeded against the BOR as

the sole Defendant. In January, 2000, Norton sought leave

to amend her pleadings to add new claims against the

BOR which the District Court denied. (R158-1; R162-1).

1 The Second Amended Complaint was factually detailed

. and contained 59 incorporated exhibits —- and totaled 119 pages

in length. The Petitioner’s Appendix includes only a fraction of

these incorporated exhibits.

Norton then dismissed her remaining claim against the

BOR and moved 'for entry of Final Judgment on May 4,

2000. (R170-1; R175-1).

The Court entered Final Judgment for all Defendants

on June 1, 2000, and, on June 30, 2000, Norton filed her

Notice of Appeal to the Circuit Court of Appeals, Elev-

enth Circuit. (R177-1; R178-1 Pet. App. 29). The Court of

Appeals affirmed the judgment of the District Court in an

unpublished opinion on November 6, 2001 (Pet. App. 1).

Norton’s motion for rehearing and rehearing en banc were

denied on October 26, 2001 (Pet. App. 31, 32).

B. STATEMENT OF FACTS

Since the appeal below proceeded upon the District

Court’s dismissal of Norton’s Second Amended Com-

plaint pursuant to Fed.R.Civ.P. 12(b)(6), the facts recited

herein are drawn exclusively from that pleading with its

attached exhibits except for a reference to the Transcript

of the hearing upon the Rule 12(b)(6) motions in respect

to certain material representations made by Norton’s trial

counsel.

Sandra K. Norton had served as Dean of the College

of Arts and Humanities of Florida Atlantic University

from 1987 until her resignation from that position upon a

vote of no confidence by the College faculty in July of

1994. (R89-17, 31 Pet. App. 52). Following her resignation

as Dean, she remained a faculty member of the University

until her termination in May, 1997. (R89-117)..

Florida Atlantic University is a State university oper-

ated at the time under the Board of Regents of the Divi-

sion of Universities of the Florida Department of

Education. (R89-2 Pet. App. 35).2 During all or a portion

of the time relevant to the allegations of the Second

Amended Complaint, Anthony Catanese was President of

the University; Richard Osburn was Provost; James

Malek was Dean of the College of Arts and Humanities;

David Anderson was Associate Dean of that college;

Carla Coleman was Vice President of University

Advancement; Jean Louis Baldet was Chairman of the

Theater Department; Ondina Felipe was General Counsel

for the University and Lynda Quillen was Associate

Counsel. (R89-2, 3 Pet. App. 35, 36).

In 1991, Charles E. Schmidt, a local philanthropist

and long time benefactor of the school, began contribut-

ing funds toward the establishment of two endowed

chairs at the University which were initially denominated

as Superchair I and Superchair II. (R89-3, 22 Pet. App. 36).

Upon Norton’s resignation as Dean in 1994, she was

offered - and accepted - the position of Director of the

University’s Schmidt Institute for Comparative Studies.

In April of 1996, a dispute arose between Norton and

the University administration when Norton claimed that

the offer of the position of Director of the Schmidt Insti-

tute “entitled her to hold one of the two Superchairs.

2 The Board of Regents was abolished effective July 1, 2001,

pursuant to a reorganization of the structure of higher

education in the State of Florida. § 229.003(5)(A), Florida Statutes

(2001).

(R89-6, 43 Pet. App. 41). According to Norton’s allega-

tions, Malek — then Dean of the College of Arts and

Humanities - had allocated some of the funds earned

from one of the Superchair endowments to new programs

at the College. (R89-6 Pet. App. 40). Norton alleged that

this irritated Schmidt and that President Catanese, seek-

ing to “mollify” him, wrote Schmidt a letter on April 29,

1996 detailing the University’s efforts at establishing a

search committee to identify “two world-class scholars”

to hold the chairs. (R89-6, 43 Pet. App. 41).

In the subsequent course of Norton’s dispute with

the University, she retained a law firm which, on her

behalf, made a request under State law for public records.

(R89-7 Pet. App. 41-42). Norton’s pleadings specifically

describe in somewhat convoluted fashion the purpose for

which she sought access to those public records:

48. Dr. Norton acted within the scope of pro-

tected First Amendment rights where she com-

municated with University officials to obtain

documents from the University to substantiate

the position taken by the University that she was not

the occupant of Superchair II. (emphasis added)

(R89-14, Pet. App. 50).

When she did not receive all the records she wanted,

Norton, through her counsel, instituted a Mandamus

action in State court to obtain those records. (R89-7 Pet.

App. 42). The State Court granted Norton’s petition and

ordered release of the additional documents sought by

her. (R89-7 Pet. App. 42). The University, allegedly

through Vice President Coleman, issued a press release

on September 5, 1996, advising that Catanese had

released the documents - consisting of correspondence

between Schmidt and himself - in compliance with the

State Court order of August 30. There was no indication

that the release was reported by the press. (R89-45).

Norton alleged that Catanese, Osburn, Malek, Ander-

son, Felipe and Coleman then conspired to retaliate

against her for her action in seeking access to the docu-

ments and in seeking a “redress of grievance in a court of

law” by pursuing her Mandamus action. (R89-8 Pet. App.

42-43, 50). She claimed that retaliation included the seiz-

ing of books and records in her office which were avail-

able from other sources; the posting of a guard at her

office to make note of anyone entering or leaving; threat-

ening discharge if she did not execute her annual employ-

ment contract without unilateral changes; undertaking a

“witch-hunt” to attempt to uncover financial irregu-

larities in her expenditures, and otherwise embarrassing

her in front of colleagues and students. (R89-8, 9 Pet.

App. 43).

Norton filed the present lawsuit on January 7, 1997,

alleging claims against Florida Atlantic University, Cata-

nese, Osburn, Malek, Anderson, Felipe and Coleman.

(R1-1). These claims, all arising out of Norton’s personal

employment dispute with the University, included a Fed-

eral claim under 42 U.S.C. § 1983 alleging that the indi-

vidual Defendants took retaliatory action against her in

respense to her efforts to obtain the documents which she

believed would assist her in supporting her claim of

entitlement to one of the endowed chairs; an Equal Pay

Act claim against the University, and two State law claims

against the University relating to her claim to be a holder

of the chair. On January 14, 1997, she requested medical

leave from Jean Baldet, her departmental chairman for a

scheduled surgery to remove a sinus cavity growth.

(R89-9 Pet. App. 44-45). At the time she indicated that she

expected to return to teach her theater seminar class by

January 27. (R89-88).2 When she failed to return as she

had originally advised, Baldet was forced to attempt -

with limited success - to locate other faculty to assume

charge of Norton’s class on an ad hoc basis. This situation

continued on a “week by week” basis as Norton repeat-

edly gave Baldet projected return dates, and, before each

such date, gave short notice that she would be unable to

make the date. (R89-9, 73, 74 Pet. App. 44). After Norton

failed to meet several of these projected return dates,

Quillen wrote Norton’s attorney requesting that Norton

provide a statement from her treating physician as to

when Norton could be expected to return to her class (at

that point it had been without a regular instructor for

over a month). (R89-51).

Rather than comply, Norton’s attorney demanded to

know the legal authority for the request. (R89-52). Quillen

provided her a citation to the relevant provisions of the

Florida Administrative Code, but Norton’s counsel

remained unsatisfied. (R89-54, 56). Correspondence con-

tinued over the next several weeks between Norton’s

attorney and both Quillen and the trial counsel for FAU/

BOR; deadlines for compliance were given and extended.

(R89-57-65).

3 This class which began the Winter semester on January 6,

1997 met weekly for 3 hours; Norton only met with her students |

the first two sessions. (R89-73, 74).

EE

Finally Norton was given an ultimatum that, if she

failed to provide the requested statement by March 3,

1997, she would be regarded as having abandoned her

job. (R89-43).

Norton never provided the physician’s statement, but

alleges that she returned to her office on March 3, 1997 -

during Spring Break - and picked up some papers for her

class. (R89-11, 12 Pet. App. 47).

On March 6, 1997, Osburn forwarded to Norton a

letter by overnight delivery advising that the University

intended to terminate her employment for cause due to

her failure to provide the requested statement. (R89-66).

The letter provided a detailed notice of the grounds for

her proposed discharge - recounting the need that the

University had to determine when she could resume reg-

ular attendance of her class sessions and setting forth a

listing of the many instances during Norton’s leave

period when she had given projected return dates, only to

cancel them on short notice to the detriment of the stu-

dents. (R89-68, 69). Attached to it was the provision of the

Florida Administrative Code setting forth the Univer-

_sity’s 3 Step grievance procedure. (R89-68, 69).

Pursuant to Administrative Code procedure, Norton

requested a Step 1 grievance meeting before the Associate

Provost as hearing officer. (R89-70). Norton and her coun-

sel were present, as were Dean Malek and his counsel

and counsel for the University. (R89-70). Each party sub-

mitted statements and documentation, and the represen-

tative prepared a report with findings and a proposal for

resolution on April 16, 1997. (R89-70-78). This proved

10

unacceptable to Norton who requested a Step 2 proceed-

ing which was held on May 1, 1997, before a second

hearing officer. (R89-116). Present were the same parties

and counsel as at the Step 1 meeting. (R89-116, 117). On

May 2, 1997, the hearing officer filed a decision finding

no merit in Norton’s exceptions to the proposed dis-

charge and noting that resolution of the dispute was not

attainable. (R89-116).

Norton chose not to proceed with the Step 3 review,

and, instead, sought leave to file a Second Amended

Complaint. (R66-1). In this pleading, Norton charged that

she had been the recipient of retaliatory action by the

individual Defendants as a result of her pursuit of the

documents she felt might be relevant to her dispute over

the Superchair position and as a result of her filing the

present action. (R89-14, 15 Pet. App. 50). She also charged

that the individual Defendants (except Coleman)

deprived her of her procedural due process rights in the

course of the discharge hearings - contending that the

meetings were not held before impartial representatives.

(R89-16, 17 Pet. App. 53-54). She reasserted the claims

against the BOR that she had previously. made.

(R89-18-21 Pet. App. 54-58). The Defendants each moved

for dismissal pursuant to Rule 12(b)(6). All individual

Defendants challenged the First Amendment retaliation

claims on the same ground raised in their motion directed

to the earlier pleadings — that those activities undertaken

by Norton were not protected speech or actions under the

First Amendment since they did not implicate matters of

public concern; they challenged the validity of the due

process claim on the ground that procedural due process

did not require an administrative hearing before an

11

“impartial” officer and that Norton’s pleadings estab-

lished that she had failed to comply with all available

steps of State remedial procedures. (R78-1; R85-1; R86-1;

R92-1; R99-1; R107-1; R109-1; R110-1). In addition, each

Defendant raised the defense of qualified immunity.

(R78-2, R85-5; R86-5; R92-2; R99-2; R107-2; R109-1, 2;

R110-1, 2).

The BOR also moved for dismissal on several

grounds. (R91-1).

In the course of the hearing upon these motions,

there was extensive discussion of the First Amendment

issue; the Defendants’ counsel argued that the request for

documents and the Mandamus action as well as the filing

of the present action did not constitute protected speech

or petition under the First Amendment since both speech

and petition actions by government employees were

required to satisfy the element of public concern as estab-

lished in Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75

L.Ed.2d 708 (1983). (R182-1 et seq.). The Defendants

argued that the very terms in which the allegations of the

Second Amended Complaint were cast indicated that the

actions did not encompass “public concerns”. Norton’s

counsel did-not dispute this; instead, she frankly admit-

ted that Norton’s actions did not encompass matters of

public concern. (R182-31).

The District Judge dismissed the claims against all

individual Defendants on December 30, 1998. (R128-1 Pet.

App. 12-27). Norton never requested leave to further

plead against the individual Defendants.

+

12

REASONS FOR DENYING THE PETITION

I

THE PETITIONER’S FIRST ARGUMENT FOR CER-

TIORARI REVIEW SHOULD BE REJECTED FOR TWO

REASONS: FIRST, THE CONFLICT IDENTIFIED BY

THE PETITIONER IS LIMITED IN EXTENT, INVOLV-

ING ONE DECISION IN ONE CIRCUIT ON ONE SIDE

AND THE GREAT MAJORITY OF CIRCUITS INCLUD-

ING THE ELEVENTH CIRCUIT, ON THE OTHER,

AND SECOND, A RULING UPON THE ISSUE IN THIS

CASE WOULD NOT BE MEANINGFUL IN RESOLV-

ING THE DISPUTE BETWEEN THE PARTIES SINCE,

EVEN IF THE “PUBLIC CONCERN” ELEMENT WERE

HELD INAPPLICABLE TO PETITION CASES, THE

RULE APPLYING IT WAS ESTABLISHED IN THE

ELEVENTH CIRCUIT AT THE TIME OF THE

ALLEGED RETALIATION AND THE DEFENDANTS

WOULD STILL BE ENTITLED TO DISMISSAL UPON

QUALIFIED IMMUNITY AS THEIR ALLEGED CON-

DUCT WAS NOT CLEARLY UNLAWFUL AT THE TIME

IT OCCURRED. ;

The Petitioner first seeks certiorari review arguing

that there is a significant and broadly based conflict

among the Circuits upon the issue of whether the “public

concern” threshold test announced in Connick v.. Myers,

461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), and

applied in that case to a First Amendment free speech/

retaliation claim by a public employee should also be

applied in cases involving claims of retaliation for the

exercise of the First Amendment petition right by public

employees.

The Respondents submit that the conflict among the

Circuits on this issue is much less significant and more

13

narrowly based than suggested by the Petitioner, and

urge this Court to deny the Petition both because the

conflict is one of a lesser dimension than contended and

because a decision upon the issue in this Cause can have

no impact upon the final determination of the claim.

Although conflict of decisions among the Circuits are

a potential basis for the exercise of certiorari review by

this Court under Supreme Court Rule 10, conflict in and

of itself is not always a sufficient basis for such review.

See The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180,

79 S.Ct. 710, 3 L.Ed.2d 723 (1959); Beaulieu v. United States.

497 U.S. 1038, 110 S.Ct. 3302, 111 L.Ed.2d 811 (1990)

(White, dissenting); Stuckett v. United States Postal Service,

469 U.S. 898, 105 S.Ct. 274, 83 L.Ed.2d 210 (1984) (White,

dissenting); Greco v. Orange Memorial Hospital Corp., 423

U.S. 1000, 96 S.Ct. 433, 46 L.Ed.2d 376 (1975).

A careful analysis of the cases from the several Cir-

cuits does not disclose a conflict of the dimensions sug-

gested in the Petitioner’s argument. C'nly one Circuit, in

one decision, has held that the “public concern” test

enunciated in Connick v. Myers, 461 U.S. 138, 103 S.Ct.

1684, 75 L.Ed.2d 708 (1983) does not apply to claims of

’ retaliation in connection with a governmental employee’s

exercise of his right to petition under the First Amend-

ment. A split panel of the Third Circuit in San Filippo v.

Bongiovanni, 30 F.3d_424 (3d Cir. 1994), cert. denied, 513

U.S. 1082, 115 S.Ct. 735, 130 L.Ed.2d 638 (1995), has held

that a governmental employee’s civil rights claim alleging

retaliation by his employer for the employee’s exercise of

his right to petition is not subject to the “public concern”

requirement of Connick. The other cases cited by the

14

Petitioner as being in conflict upon this issue do not in

fact conflict with the decision below - nor with the over-

whelming majority of Circuits which have ruled upon

this matter.

Gable v. Lewis, 201 F.3d 769 (6th Cir. 2000), the first

case cited by the Petitioner to be in conflict with the

present case, did not involve a governmental employer/

employee relationship. The plaintiff in that case received

tow referrals from the State Police. Since an employer/

employee relationship did not exist, the Court’s discus-

sion of governmental employment cases by analogy is

merely dicta. The status of this issue in public employ-

ment cases in the Sixth Circuit appears unsettled. See Rice

v. Ohio Dept. of Transp., 887 F.2d 716 (6th Cir. 1989), cert.

denied, 512 U.S. 1207, 114 S.Ct. 2678, 129 L.Ed.2d 812

(1994) and Valot v. Southeast Local School Dist. Bd. of Educa-

tion, 107 F.3d 1220 (6th Cir. 1997), cert. denied, 522 U.S.

861, 118 S.Ct. 164, 139 L.Ed.2d 108 (1997).

In Schalk v. Gallemore, 906 F.2d 491 (10th Cir. 1990),

the Tenth Circuit held that the plaintiff’s petition claim

was subject to the “public concern” analysis. Prior to its |

discussion of the petition claim, the Court considered the

plaintiff’s related freedom of association claim. Finding

this claim to be one involving the matter of “expressive

association”, the Court held it to be subject to the “public

concern” analysis, but, in a footnote, suggested that “inti-

mate association” claims might not be subject to the

“public concern” analysis. See Strauss, Note: Public

Employees’ Freedom of Association: Should Connick v. Myers’

Speech-Based Public-Concern Rule Apply, 61 Fordham

L.Rev. 473, 476-482 (1992). Turning then to the petition

claim, the Court held that “ . . . we see no reason to

sincentememennneninsieititiaiiaiaasiaiaiiiiaiiiiasassisiiesn

15

subject this claim to a different sort of analysis.” Schalk at

498. The analysis to which the Court subjected the peti-

tion claim was the same to which it subjected the “expres-

sive association” claim —- one which includes a “public

concern” element. There is no suggestion in the Schalk

opinion that petition claims are analogous to the “inti-

mate association” claims — a category in which it suggests

that a “public concern” element might not apply.

The case of Harrison v. Springdale Water & Sewer

Com’n, 780 F.2d 1422 (8th Cir. 1986), next cited by the

Petitioner, involved a dispute arising out of an inverse

condemnation matter rather than a public employer/

employee relationship.

Finally, the case of Thaddeus-X v. Blatter, 175 F.3d 378

(6th Cir. 1999) was a claim by a prisoner who alleged that

he suffered retribution by prison officials as a result of

the exercise of his petition right. It, too, did not involve

the governmental employer/employee relationship.

This Court found the “public concern” element enun-

ciated in Connick to be necessitated by the public

employer/employee relationship and the need to protect

the interests pertaining to each party in such a relation-

ship. Whether the “public concern” test is appropriately

applied in non-public employment situations is an issue

irrelevant to the holding by the Court below.

The decision of the Eleventh Circuit, herein, is in

accord with the rule adopted by the vast majority of

Circuits: White Plains Towing Corp. v. Patterson, 991 F.2d

1049, 1059 (2d Cir. 1993), cert. denied, 510 U.S. 865, 114

S.Ct. 185, 126 L.Ed.2d 144 (1993); Rathjen v. Litchfield, 878

F.2d 836 (5th Cir. 1989); Day v. South Park Indep. Sch. Dist.,

16

768 F.2d 696, 700 (5th Cir. 1985), cert. denied, 474 U.S. 1101,

106 S.Ct. 883, 88 L.Ed.2d 918 (1986); Zorzi v. County of

Putnam, 30 F.3d 885 (7th Cir. 1994); Belk v. Town of Minoc-

qua, 858 F.2d 1258, 1261 (7th Cir. 1988); Altman v. Hurst,

734 F.2d 1240, 1244 (7th Cir. 1984); Hoffman v. Mayor,

Councilmen and Citizens of Liberty, 905 F.2d 229, 233 (8th

Cir. 1990); Rendish v. City of Tacoma, 123 F.3d 1216 (9th Cir.

1997), cert. denied, 524 U.S. 952, 118 S.Ct. 2368, 141

L.Ed.2d 737 (1998); Gearhart v. Thorne, 768 F.2d 1072 (9th

Cir. 1985); Martin v. City of Del City, 179 F.3d 882 (10th Cir.

1999); Grigley v. City of Atlanta, 136 F.3d 752 (11th Cir.

1998), cert. denied, 525 U.S. 819, 119 S.Ct. 59, 142 L.Ed.2d

47 (1998). In addition to those cases applying the “public

concern” element where the plaintiff's claim was charac-

terized as one implicating the petition right, the same

result has been reached in a number of cases in the

Circuits where actions such as the filing of claims or

lawsuits were characterized as exercises of free speech.

See e.g. Morgan v. Ford, 6 F.3d 750 (11th Cir. 1993), cert.

denied, 512 U.S. 1221, 114 S.Ct. 2708, 129 L.Ed.2d 836

(1994).

With the exception of the Third Circuit’s solitary

decision in San Filippo and some uncertainty within the

Sixth Circuit - in view of the dicta in Gable v. Lewis, supra,

the holding in Rice v. Ohio Dept. of Transp., supra, and the

questionable holding in Valot v. Southeast Local Sch. Dist.,

supra — the Circuits which have addressed this issue are

otherwise in unanimous accord. The status of the law

upon this issue is no more unsettled today than it was

when this Court denied certiorari in the Rendish and

Grigley cases. No greater imperative for review lies in the

present circumstance.

eas

17

A second basis exists for the refusal to accept cer-

tiorari review upon this issue: no matter how the issue is

determined, a decision by this Court upon the foregoing

issue cannot result in an outcome different from that

which presently exists. Consequently a ruling upon this

issue would serve only a theoretical purpose.

In their motions to dismiss, each Defendant below

raised the issue of qualified immunity, a defense properly

raised in a motion to dismiss. See Ansley v. Heinrich, 925

F.2d 1339, 1347 (11th Cir. 1991). —

At the time of the actions alleged to have been taken

by the Defendants, the established law in the Eleventh

Circuit clearly held that such actions taken by an

employer or its agents in a public employment situation

were not unlawful. See Badia v. City of Miami, 133 F.3d

1443, 1446 (11th Cir. 1998) and Morgan v. Ford, 6 F.3d 750

(11th Cir. 1993), cert. denied, 512 U.S. 1221, 114 S.Ct. 2708,

129 L.Ed.2d 836 (1994). In view of his ruling upon the

issue of liability vel non, the District Judge held that the »

issues of qualified immunity raised by the Defendants

was moot, and he declined to rule upon them. A reversal

of the decision upon liability below would then require

the District Court to address the issue of immunity. It is

apparent that, even if the rule of the Eleventh Circuit

applying the “public concern” element to petition cases

were reversed, that rule, existing at the time of the

actions taken, would nonetheless require a dismissal of

all Defendants upon the ground of qualified immunity.

This Court’s statement in The Monrosa v. Carbon Black

Export, Inc., supra, is fully applicable here:

18

While this Court decides questions of public

importance, it decides them in the context of

meaningful litigation. Its function in resolving

conflicts among the Courts of Appeals is judi-

cial, not simply administrative or managerial.

Resolution here of the extent to which these bill

of lading provisions may be given effect by our

courts can await a day when the issue is posed

less abstractly.

359 U.S. at 184

Since a decision by this Court, even if adverse to the

decision of the Court below cannot affect the outcome of

this litigation, the Respondents would urge that this court

decline the invitation to enter into the realm of deciding.

abstract questions of law.

II

THE PETITIONER’S SECOND ARGUMENT FOR CER-

TIORARI REVIEW SHOULD BE REJECTED SINCE

THE CONFLICT AMONG THE CIRCUITS IDENTI-

FIED BY THE PETITIONER IS ILLUSORY AND SINCE

THE FACTS ALLEGED BELOW CLEARLY ESTABLISH

THE PROPRIETY OF APPLYING THE “PUBLIC CON-

CERN” RULE AS WAS DONE BY THE COURTS

BELOW.

The Petitioner also seeks certiorari review arguing

that the Circuits are split upon the issue of whether the

Connick rule applies in cases where the public employee

has expressed himself or petitioned upon a matter of

personal interest rather than of “public concern”. She

contends that the court below held that the presence of

any “personal intent” element deprives expression or

19

petition from constitutional protection. Her argument

misconstrues the facts of this case, the holding of the

Court below and the status of the law among the Circuits.

Norton’s Second Amended Complaint identified two

sets of actions which she characterized as acts of petition

and for which she alleged that she sustained retaliation

by the Defendants: the first consisted of her seeking

documents upon a public records request for the speci-

fied purpose of supporting her position in a personal

employment dispute with the University and, subse-

quently, in her filing of a Mandamus action in State Court

to compel production of those records not voluntarily

produced; the second set of actions consisted of her

bringing and maintaining the current lawsuit prior to the

time of her discharge. These actions, on account of which

Norton alleges that the Defendants retaliated against her,

were, however, focused solely upon her long-running

personal employment dispute with the University and

were devoid of any element of “public concern”.

In Paragraph 48 of the Second Amended Complaint,

Norton alleged the purpose for which she sought to

obtain the documents through the document request and

subsequent Mandamus proceeding. In her Petition, Nor-

ton is understandably reticent in identifying this allega-

tion which clearly and directly establishes that the focus

of her action was in seeking support for her position in an

employment dispute regarding whether she was the

proper holder of an endowed chair. Paragraphs 25 and 26

of the Second Amended Complaint further establish the

background to this employment dispute in furtherance of

which she sought evidence to support her claims. The

dispute as alleged was an essentially personal one

20

between Norton and the University. This was the allega-

tion of the Second Amended Complaint and the findings

of the District Court and Court of Appeals below.

Just as Norton’s document quest was in pursuit of an

essentially personal employment dispute, so too the pre-

sent action through the time of her discharge involved

issues which were no more than a continuation and out-

growth of that same employment dispute. The claims

brought against the individual Defendants under 42

U.S.C. § 1983 simply sought relief for what Norton

claimed was retaliation for those actions taken in support

of her employment dispute. The claim against the Univer-

sity for alleged violation of the Equal Pay Act alleged that

the University had discriminated only against Norton in

respect to matters of employment compensation on

account of her sex — it did not allege a general course of

discrimination impacting other women at the school. The

state law claims sought direct relief for the alleged breach

of an employment contract. Since all of these claims, as

alleged, involved an essentially personal dispute between

Norton and the University, the “public concern” element

was clearly lacking.

Although Norton now contends that her personal

interest in the Mandamus action was secondary to some

greater interest in seeking to bring into the public arena

documents - primarily correspondence - relating to the

benefactor’s intent as to the person who was to hold the

endowed chair, the fact remains uncontroverted that she

sought them in the course of a personal employment

dispute for the purpose of hopefully supporting her right

to be seated as holder of the endowed chair. Essentially

21

she seeks to constitutionalize what was, and has been, a

personal contract dispute.

Petitioner contends that the Circuits are split upon

the effect of the element of a public employee’s personal

interest in First Amendment cases. A careful reading of

the cases cited by the Petitioner demonstrates that the

conflict is illusory, and that each case appropriately fol-

lows the rule laid down in Connick v. Myers, supra, that

where the content, form and context of a public

employee’s speech establishes that its dominant focus is

upon the employee’s personal employment interest rather

than upon matters of public concern, then the Federal

Courts are not the appropriate forum for the review of

the issues involved in such an employment dispute. 461

U.S. at 147-148.

In the line of cases that Petitioner groups with Tao v.

Freeh, 27 F.3d 635 (D.C. Cir. 1994), it can be seen that each

claim involved a significant element of public concern.

Thus, in Tao, the court noted that the speech in issue

raised issues of widespread racial discrimination against

Chinese-Americans in the FBI. Id. at 640. In Auriemma v.

Rice, 910 F.2d 1449 (7th Cir. 1990), cert. denied, 501 U-S.

1204, 111 S.Ct. 2796, 115 L.Ed.2d 970 (1991), the issue

raised by the charges filed related to pervasive and sys-

tematic racial discrimination in the Chicago police

department. In Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir.

1988), the issue raised by the speech involved - a press

interview — was pervasive racial animus within the Penn-

sylvania state patrol. In Cromer v. Brown, 88 F.3d 1315 (4th

Cir. 1996) the speech involved - an anonymous letter -

raised the concerns of an informal association of some 30

black officers to widespread racial discrimination in the

22

Greenville County Sheriff’s office. In each case, the

speech clearly addressed matters which extended well

beyond the immediate, personal employment dispute

which the individual plaintiff had with his governmental

employer and addressed matters of such scope and con- ~

tent as to fall within the purview of “public concern”.

By contrast, in Grigley v. City of Atlanta, supra, the

plaintiff's action - pursuing criminal charges against

another officer arising out of a personal, physical con-

frontation in another jurisdiction - was found to have no

implication for public concern. In Holbrook v. City of

Alpharetta, Ga., 112 F.3d 1522 (11th Cir. 1997) the plain-

tiff’s action was the filing of an ante litem claim in pursuit

of an action claiming that the plaintiff had been discrimi-

nated against due to a disability. There was no indication

of discriminatory conduct extending beyond the plaintiff,

himself. Finally, in Badia v. City of Miami, supra, the

plaintiff claimed that she was discharged after filing a

complaint with the EEOC regarding a personal employ-

ment discrimination claim and, subsequently, filing a suit

on the claim. The Court ruled only on the issue of quali-

fied immunity, noting that in the absence of clear prior

authority in the Circuit finding a discharge upon this

basis to be a violation of rights, qualified immunity

would apply.

In each of the cases identified by the Plaintiff in this

second line of cases, the speech or petition action con-

cerned only a claim of discrimination personal to the

plaintiff/employee. The two lines of cases thus do not

establish the clear conflict contended by the Petitioner,

nor do the facts of this case and the rulings below demon-

strate conflict with either line of cases.

¢

23

CONCLUSION

For the reasons set forth above, the Respondents

respectfully request that this Honorable Court deny the

Petition.

Respectfully submitted,

MicnHaet B. Davis

PAaxTON & Smitn, P.A.

Barristers Building, Suite 500

1615 Forum Place

West Palm Beach, FL 33401

Phone: (561) 684-2121

Fax: (561) 684-6855

FL Bar No. 118140

Counsel for Respondents