Petition for Writ of Certiorari — Ewald v. Virginia

Supreme Court brief1993

Ask Donna

What actually matters in this document.

Text

Qed « I . “ » FILED

. i WOV 23 i999

VY) OFFICE GF THE CLERK

No. 92 -

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1992

PAULINE M. EWALD,

Petitioner,

Vv.

COMMONWEALTH OF VIRGINIA,

DEPARTMENT OF WASTE MANAGEMENT;

CYNTHIA V. BAILEY; K.C. DAS;

WINSTON B. EVANS,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

LOUIS CLARK

Government Accountability Project

810 First Street, N.W., Suite 630

Washington, D.C. 20002

(202) 408-0034

Counsel of Record

RICHARD E. CONDIT

MICK G. HARRISON

Government Accountability Project

Date: November 23, 1992

QUESTIONS PRESENTED

1. Did the Fourth Circuit Court of

Appeals err by departing from the

mandate of Fed.R.Civ.P. 56 that genuine

issues of fact be left for the jury to

decide, when it affirmed the District

Court’s grant of summary judgment

against Petitioner Pauline Ewald, former

Director of the Commonwealth of

Virginia’s Superfund hazardous waste

site investigation program, on her First

Amendment and Due process claims, where

material facts were clearly in dispute

regarding the cause of Ms. Ewald’s

termination by the Commonwealth and the

pre-termination process afforded Ms.

Ewald, as evidenced by findings plainly

stated in both the District Court and

Fourth Circuit opinions, including

findings that the reasons alleged by the

Commonwealth in its required pre-

termination Notices to Ms. Ewald were

not the actual reasons for her

termination?

2. Did the Fourth Circuit Court of

Appeals err by departing from the

mandates of Fed.R.Civ.P. 5 and 77(d) and

the guarantees of procedural due process

of the Fifth and Fourteenth Amendments

of the Constitution, when it affirmed

the District Court’s denial of Ms.

Ewald’s Motion for Relief from the

District Court’s pre-trial order

limiting the time for and scope of

discovery, where the District Court’s

failure to notify pro se plaintiff Ewald

of entry of the pre-trial order severely

prejudiced her effort to defend against

the Commonwealth’s Summary Judgment

Motion?

3. Did the Fourth Circuit fundamentally

misapply this Court’s standard for pre-

termination procedural due process

established in Cleveland Board of

Education v. Loudermill where the Fourth

Circuit affirmed summary judgment

against Ms. Ewald on her due process

Claim while finding that the

Department’s reasons for terminating her

employment were reasons different than

any stated in the required official

disciplinary notices issued to Ms.

Ewald?

PARTIES TO THE PROCEEDING

Rs Petitioner:

Pauline M. Ewald.

2. Respondents:

Commonwealth of Virginia,

Department of Waste Management,

Cynthia V. Bailey,

K.C. Das, and

Winston B. Evans.

= eal

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .....--cccccvccece 1

LIGT OF PARTIBG .ccccccccccescccesces iv

TABLE OF AUTHORITIES ......cccccccece vil

GCPRENITONS BRO 2c ce cesenciecsevasenes 2

PUM EGEEON cece ences eeacesessenseen 3

CONSTITUTIONAL AND STATUTORY feceedieasipaaiing™

STATEMENT OF THE CASE ..ccccccssccces 7

REASONS FOR ISSUING THE WRIT ........ 20

I. The Fourth Circuit, in deciding

genuine issues of material fact and

granting summary judgment against Ms.

Ewald, an environmental whistleblower

exercising her First Amendment rights

concerning violations of environmental

laws and threats to public health, has

usurped the responsibility of the jury,

abdicated its duty to follow the federal

rules, and so departed from the accepted

course of judicial proceedings and

established decisions of this Court that

this Court should exercise its

CUPSEVLGOTY DOMOE 2. cc ccccecvisesesess 20

II. The Fourth Circuit’s failure to

enforce Fed.R.Civ.P. 5 and 77 also calls

for the exercise of this Court’s power

WEEEULTLIELECUPEETELELET TTL LETT 48

III. The Fourth Circuit has abandoned

this Court’s decision in Cleveland Board

of Education v. Loudermill .......... 56

COE LOM cece es eceseceesseseccecese 66

BEE EILR ced eseeseceesestesesssens la-77a

vil

TABLE OF AUTHORITIES

CASES

Aetna Insurance Company v. Hartshorn,

477 F.2@ 97 (Sth Cir. 1973) wcoccecses 52

American Fidelity & Casualty v. London &

Edinburgh, 354 F.2d 214 (4th Cir. 1965)

(en eek ks ee eae aoe 20, 24

Associated Press v. U.S., 326 U.S. 1

(| | Rea ere 20, 24

Cleveland Board of Education v.

Loudermill, 470 U.S. 532 (1985)

eeeeee#ee#eeeee#e#e#e#s35qHee#eee#e#ee#ee#e#e#e#e#e#fee#e#e#enfejee#n#fe#fe#rfe#e#fe#rt#se#stfet#s#e# @ passim

Donahue v. Windsor Locks Board, 834 F.2d

SG C2 City ASST) kw eiha ckeecwesas 43, 44

Eichman v. Indiana State University, 597

F.2d 1104 (7th Cir. 1979)

Gordon v. Leeke, 574 F.2d 1147 (4th Cir.

eee A a grees ack Si. 33; 02

Greear v. Loving, 538 F.2d 578 (4th Cir.

ee ie ace eke bile ee 21, 40, 47

Greene v. Lindsey, 456 U.S. 444 (1982)

Haines v. Kerner, 404 U.S. 519 (1972)

wey it’

In the Matter of The Complaint of

Bankers Trust Company, 752 F.2d 874 (3rd

See en Cece ee eee elites eeke tekken ses 52

vill

Linton v. Frederick County, 964 F.2d

S458 COGN Che. BOGGS Sec cccdaceecs 44, 67

Memphis Light, Gas and Water Division v.

Geers. £56 G.8. & CESTS) icc caxcccntes 49

Mennonite Board of Missions v. Adams,

SG awe FOR CRESS cecesevesiecieec aa 49

Miera v. First Security Bank of Utah,

776 F.2d 902 (10th Cir. 1985)

TLTrTc reece ee Pe Te LT Tee YS CE Tee eee 52

Mullane v. Central Hanover Bank, 339

= ee 6” area reat eee 49

Ottensmeyer v. C&P Tel. Co., 756 F.2d

en ge ee Eee ee 38

Roseboro v. Garrison, 528 F.2d 309 ‘4th

CAb« BOVEl sh ehenes eT ere eee ee » «SO

Sartor v. Arkansas Natural Gas £1 U.S.

S20 CEPOG) 6 60h 4 0 de eweceaccunecs pe con®, 24

U.S. v. Diebold, Inc., 369 U.S. 654

RENEE (42-44 aa da ee kaka kee 21, 24, 40

CONSTITUTION, STATUTES, AND RULES

Constitution of the United States:

U.S. CONSE. GONE. | ibs visanedaces passim

ec COC «Ce. F ws wwe Cee wares 3% Da

V7.8. CORGE. Oe: BEV, & 2B cv cue wcecws 4

Federal

Fed. R.

Rules of Civil Procedure:

Civ. P. RUSS S wssvcessosseves 48

Civ. BP. BRUiS SE cccvvcnes passim

Caw. BP. Bele FTG). 20s ovcaswns 48

MISCELLANEOUS

Virginia Department of Personnel and

Training Policies and Procedures Manual

ti gw | Se rrr ee ee ee ee aay “2

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

No. 92-

Pauline M. Ewald,

Petitioner,

Vv.

Commonwealth of Virginia, Department of

Waste Management; Cynthia V. Bailey;

K.C. Das; and Winston B. Evans,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

To the Honorable, the Chief Justice

and Associate Justices of the Supreme

Court of the United States:

Pauline M. Ewald petitions this

Court for a writ of certiorari to review

the judgments of the United States Court

of Appeals for the Fourth Circuit in

this matter entered on July 22, 1992 and

August 25, 1992.

OPINIONS BELOW

The opinion of the United States

Court of Appeals for the Fourth Circuit,

affirming the summary judgment decision

by the United States District Court for

the Eastern District of Virginia,

Richmond Division, (Case No. CA-90-494-

R) is unreported, reported as a Table

case at 972 F.2d 339, with full text of

slip opinion 91-1583 (4th Cir. 1992)

reported at 1992 U.S. App. LEXIS 16863.

The decision of the Court of Appeals is

printed in the Appendix hereto, infra,

page 2(a). The decision of the Court of

Appeals denying rehearing is printed in

the Appendix hereto, infra, page i(a).

The opinion of the District Court is

reported at 1991 U.S. Dist. LEXIS 15828

(E.D.Va.). The decision of the District

Court is printed in the Appendix hereto,

infra, page 29(a).

JURISDICTION

The judgment of the Court of

Appeals (Appendix, infra, page 2(a)) was

entered on July 22, 1992. A timely

petition for rehearing with suggestion

for rehearing in banc was denied on

August 25, 1992 (Appendix, infra, page

1(a)). The jurisdiction of the Supreme

Court is invoked under 28 U.S.C. §

1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

- THE UNITED STATES CONSTITUTION -

AMENDMENT I

Congress shall make no law

respecting an establishment of religion,

or prohibiting the free exercise

thereof; or abridging the freedom of

speech, or of the press; or the right of

the people to peaceably assemble, and to

petition the Government for a redress of

grievances.

AMENDMENT V

No person shall ... be deprived of

life, liberty, or property, without due

process of law

AMENDMENT XIV

Section 1. Citizens of the United States

All persons born or naturalized in

the United States, and subject to the

jurisdiction thereof, are citizens of

the United States and of the State

wherein they reside. No State shall

make or enforce any law which shall

abridge the privileges or immunities of

citizens of the United States; nor shall

any State deprive any person of life,

liberty, or property, without due

process of law; nor deny to any person

within its jurisdiction the equal

protection of the laws.

- Federal Rules of Civil Procedure -

Rule 5. Service and Filing of

Pleadings and Other Papers

(b) Same: How Made. Whenever under

these rules service is required or

permitted to be made upon a party

represented by an attorney the service

shall be made upon the attorney unless

service upon the party is ordered by the

court. Service upon the attorney or

upon a party shall be made by delivering

a copy to the attorney or party or by

mailing it to the attorney or party at

the attorney’s or party’s last known

address or, if no address is known, by

leaving it with the clerk of the court.

Delivery of a copy within this rule

means: handing it to the attorney or to

the party; or leaving it at the

attorney’s or party’s office with a

clerk or other person in charge thereof;

or, if there is no one in charge,

leaving it in a conspicuous place

therein; or, if the office is closed or

the person to be served has no office,

leaving it at the person’s dwelling

house or usual place of abcde with some

person of suitable age and discretion

then residing therein. Service by mail

is complete upon mailing.

Rule 56 Summary Judgment

(a) For Claimant. A party seeking to

recover upon a claim, counterclaim, or

cross-claim or to obtain a declaratory

judgment may, at any time after the

expiration of 20 days from the

commencement of the action or after

service of a motion for summary judgment

by the adverse party, move with or

without supporting affidavits for a

summary judgment in the party’s favor

upon all or any part thereof.

(b) For Defending Party. A party

against whom a claim, counterclaim, or

cross-claim is asserted or a declaratory

judgment is sought may, at any time,

move with or without supporting

affidavits for a summary judgment in

party’s favor upon all or any part

thereof.

motion shall be served at least 10 days

before the time fixed for the hearing.

The adverse party prior to the day of

hearing may serve opposing affidavits.

The judgment sought shall be rendered

forthwith if the pleading, depositions,

answers to interrogatories, and

admissions on file, together with the

affidavits, if any, show that there is

no genuine issue as to any material fact

and that the moving party is entitled to

a judgment as a matter of law. A

summary judgment, interlocutory in

character, may be rendered on the issue

of liability alone although there is a

genuine issue as to the amount of

damages.

(e) Form of Affidavits; Further

Testimony; Defense Required. Supporting

and opposing affidavits shall be made on

personal knowledge, shall set forth such

facts as would be admissible in

evidence, and shall show affirmatively

that the affiant is competent to testify

to the matters stated therein. Sworn or

certified copies of all copies of all

papers or parts thereof referred to in

an affidavit shall be attached thereto

or served therewith. The court may

permit affidavits to be supplemented or

opposed by depositions, answers to

interrogatories, or further affidavits.

When a motion for summary judgment is

made and supported as provided in this

rule, an adverse party may not rest upon

the mere allegations or denials of the

adverse party’s pleading, but the

adverse party’s response, by affidavits

or as otherwise provided in this rule,

must set forth specific facts showing

that there is a genuine issue for trial.

If the adverse party does not so

respond, summary judgment, if

appropriate, shall be entered against

the adverse party.

Rule 77. District Courts and Clerks

(d) Notice of Orders or Judgments.

Immediately upon the entry of an order

or judgment the clerk shall serve a

notice of the entry by mail in the

manner provided for in Rule 5 upon each

party who is not in default for failure

to appear, and shall make a note in the

docket of the mailing. Such mailing is

sufficient notice for all purposes for

which notice of the entry of an order is

required by these rules; but any party

may in addition serve a notice of such

entry in the manner provided in Rule 5

for the service of papers. Lack of

notice of the entry by the clerk does

not affect the time to appeal or relieve

or authorize the court to relieve a

party for failure to appeal within the

time allowed, except as permitted in

Rule 4(a) of the Federal Rules of

Appellate Procedure.

STATEMENT OF THE CASE

Appellant Pauline Ewald began her

public service in environmental

protection as an employee of the

Commonwealth of Virginia’s Department of

Public Health in 1985. Joint Appendix

(J.A.) at 47-48. When the

responsibilities for environmental

protection were largely transferred to a

new agency, the Department of Waste

Management (DWM), Ms. Ewald went along.

J.A. at 145. Prior to beginning her

employment with the Commonwealth of

Virginia (Virginia) Ms. Ewald received a

Bachelor’s degree in Biochemistry from

Cornell University and later received a

Juris Doctor specializing in government

regulation from Syracuse University.

J.A. at 47.

At the DWM, Ms. Ewald was assigned

the responsibility to develop and

supervise the beginnings of Virginia’s

federally funded Superfund hazardous

waste program. As the position evolved,

Ms. Ewald was referred to as the

Superfund Pre-remedial Program Manager.

J.A. at 145. In this role Ms. Ewald

took on the responsibilities of

preparing the programmatic portions of

grant applications submitted to the U.S.

Environmental Protection Agency (EPA)

and supervising the work to be done on

waste sites that were hazardous or

otherwise deemed a possible endangerment

to public health or the environment.

Her supervisory role covered

activities such as 1) preliminary

assessments, 2) site investigations, 3)

environmental testing, 4) communicating

with concerned members of the public and

the press, and 5) ranking hazardous

waste sites for the purpose of

determining if they should be placed on

the Superfund National Priorities List

(NPL). J.A. at 144-145. Ms. Ewald

served the DWM loyally and with

distinction. She received only

satisfactory or above satisfactory

performance evaluations until the day

she was terminated on August 29, 1988.

J.A. at 5, 145-146.

Ms. Ewald was well respected by her

staff who looked to her for leadership

and guidance on the important work they

performed for Virginia and the EPA. Id.

Despite earning nothing but satisfactory

performance evaluations throughout her

tenure as a public servant, Ms. Ewald

received six disciplinary notices

(written notices) for alleged poor

performance during a ten month period

beginning in November 1987 and

centinuing through her termination in

August 1988. J.A. 147-149. These

notices, which were generated by her

immediate supervisor K.C. Das, began

only after Ms. Ewald raised concerns to

her management and EPA about: 1)

mischarging/misappropriation of EPA

grant monies, 2) gross mismanagement of

the DWM’s Superfund program by her

immediate supervisor, 3) failure to

properly enforce environmental laws and

regulations at several hazardous waste

sites throughout Virginia, and 4) lack

of concern or prompt action on waste

sites that negatively impacted public

health or the environment. J.A. at 2-7,

125. A mamber of these written notices

and other forms of harassment followed

Closely on the heels of Ms. Ewald’s

reports to EPA or her management. Id.

During her ten month personnel

ordeal, Ms. Ewald contested the actions

taken against her by Mr. Das both

formally and informally. J.A. at 146-

149. In either instance her efforts to

understand the evidence and bases for

the charges being lodged against her

were met with vague resistance and a

clear reluctance to provide specific

information. J.A. at 129-132, 147-148.

Ms. Ewald attempted to rectify or

conciliate the alleged deficiencies

raised in the written notices but was

unable to have any substantive

discussions with Mr. Das or the DWM’s

Executive Director Cynthia Bailey, Mr.

Das’ immediate supervisor, about the

escalating problem. J.A. at 146-149.

On August 29, 1988, Mr. Das

requested that Ms. Ewald meet with him

at 2:00 p.m. He did not specify the

reason for the meeting. Ms. Ewald

arrived for the meeting and was

presented with her final written notice

which contained a list of new offenses

and specified that she was to be

immediately terminated. These offenses

were untrue on their face. J.A. at 149.

Mr. Das did not engage in any

meaningful discussion with Ms. Ewald

concerning her termination notice. He

did not discuss the charges stated in

the notice. He did not even hint at the

evidence he had to support his

allegations. Mr. Das did not provide

Ms. Ewald with any opportunity to

respond to the allegations. Id.

Because of Mr. Das’ cryptic behavior,

Ms. Ewald sought a meeting with the head

of the agency, her second line

supervisor, Cynthia Bailey. Ms. Bailey,

through her secretary refused to meet

with Ms. Ewald. Das specified that Ms.

Ewald was to be out of her office by

5:00 p.m. or she would be arrested by

the Capitol Police. Id.

Given the high level of hostility

generated against Ms. Ewald by Mr. Das,

presumably with Ms. Bailey’s approval,

Ms. Ewald thought it fruitless to

challenge her termination through the

full state grievance procedure. The

panel hearing portion of the grievance

procedure appeared ineffective because

it did not require persons to testify

under oath, did not provide for

reasonable discovery of documents and

other information, and did not appear to

require the agency to abide by the

panel’s decision. Id.

Consequently, Ms. Ewald first

sought a remedy through a process

provided for in Superfund and other

environmental statutes which is

administered by the U.S. Department of

Labor (DOL). J.A. at 80-82, 150. Then

with no resolution of her DOL complaint

in sight, Ms. Ewald filed a pro se

complaint in the U.S. District Court for

the Eastern District of Virginia,

Richmond Division, on August 29, 1990.

J.A. at 1-17.

The District Court’s first action

in the case was a November 29, 1990 pre-

trial conference which established a

date for trial and dealt with at least

one speaking motion by counsel for

Virginia. A five page "Jury Pretrial

Order" was entered by the district judge

on the same day. As is discussed below,

this order setting detailed time limits

and procedural requirements was not

provided to Ms. Ewald until March 1991.

J.A. at 25-29, 210. As a result the

Commonwealth was able to refuse to

respond to Ms. Ewald’s discovery

requests. J.A. at 161-171. The

docketing sheet from the district court

file notes the entry and filing of a

pre-trial order (PTO) on November 29,

1990. Conspicuously absent from this

entry is any reference to the PTO having

been mailed or otherwise served on

Plaintiff. All other docket entries

where mailing or some other form of

service was accomplished appear to be

noted on the docketing sheets. This

evidence supports Ms. Ewald’s claim that

she was not timely served with a copy of

the PTO.

Ms. Ewald brought the unfairness of

the situation immediately to the

attention of the District Judge in three

filings. First, in her response to the

Commonwealth’s motion for dismissal and

sanctions filed March 25, 1991. J.A. at

118-120. Second, in her response to the

Commonwealth’s motion for summary

judgment filed on April 8, 1991. J.A.

at 139-141. Third, in a special

"Emergency Motion for Relief from Pre-

Trial Order" filed on April 9, 1991 Ms.

Ewald very specifically detailed the

improper burden that had been placed on

her because she was not timely advised

of the court’s pre-trial order.

The District Court responded to Ms.

Ewald’s plea for fairness by stating in

a footnote to the memorandum decision on

summary judgment that "the [emergency ]

motion and brief demonstrate Ewald’s

awareness of the very rules and time

limits she complains of." District

Court opinion at 14, J.A. at 201. Ms.

Ewald of course was complaining not of

the Rules of Civil procedure but of the

lack of timely notice of the pre-trial

order. The court failed to address the

substantive issues raised in Ms. Ewald’s

emergency motion and failed to

specifically rule on the motion.

On April 10, 1991, at a hearing on

Virginia’s motion for summary judgment,

the District Judge virtually dismissed

all Ms. Ewald’s claims. He reserved

judgment on the Due Process claim, but

stated "that it is likely that the due

process issue will be dismissed as

well." J.A. at 187.

On April 22, 1991 a memorandum and

final order were issued by the District

Judge dismissing all of Ms. Ewald’s

Claims. J.A. at 188-209. Ms. Ewald

timely appealed. The judgment of the

Court of Appeals (Appendix, infra, page

2(a)) affirming the District Court

decision was entered on July 22, 1992.

A timely petition for rehearing with

suggestion for rehearing in banc was

denied on August 25, 1992 (Appendix,

infra, page 1(a)).

Ms. Ewald, as noted above, filed a

complaint with the U.S. Department of

Labor in September 1988 pursuant to the

whistleblower protection provision of

the federal Superfund Act. See, 42

U.S.C. § 9610; 29 C.F.R. Part 24

(regarding federal employee protection

provisions). The case is currently

before the Secretary of Labor on the

recommended decision of an

administrative law judge recommending

summary judgment against Ms. Ewald on

the basis of, via the doctrine of

collateral estoppel, the Fourth Circuit

decision regarding the reasons for Ms.

Ewald’s termination. Ms. Ewald has been

represented by the counsel representing

her in this Petition throughout the

Department’s process.

REASONS FOR GRANTING THE WRIT

I. The Fourth Circuit, in Deciding

Genuine Issues of Material Fact and

Granting Summary Judgment Against

Ms. Ewald, an Environmental

Whistleblower Exercising Her First

Amendment Rights Concerning Violations

of Environmental Laws and Threats to

Public Health, has Usurped the

Responsibility of the Jury, Abdicated

its Duty Under the Federal Rules, and

Departed from the Accepted Course of

Judicial Proceedings and Established

Precedent Such that this Court Should

Exercise Its Supervisory Power

It is well settled that a motion

for summary judgment should be granted

only if there are no material facts in

dispute. Sartor v. Arkansas Natural

Gas, 321 U.S. 620 (1944); Associated

Press v. U.S., 326 U.S. 1 (1945);

American Fidelity & Casualty v. London &

Edinburgh, 354 F.2d 214 (4th Cir. 1965).

It is also clear that in summary

judgment proceedings pleadings and

supporting information must be read in

the light most favorable to the party

opposing the motion. U.S. v. Diebold,

Inc., 369 U.S. 654 (1962); Greear Vv.

Lovina, 538 F.2d 578 (4th Cir. 1976).

Even when the opposing papers are

unartfully drawn, such as in the case of

a pro se litigant, the court must

interpret them in the most liberal

context favorable to the opposing party.

Greear, 538 F.2d at 580; Gordon v.

Leeke, 574 F.2d 1147, 1151 (4th Cir.

1978); cf. Haines v. Kerner, 404 U.S.

519 (1972).

There is abundant and blatant

evidence of genuine disputes as to

material facts in the record of this

case, as is summarized immediately

below. This evidence in and of itself

establishes that the Fourth Circuit

abdicated its duty under Rule 56.

However, the best evidence of the need

for this Court’s exercise of its

supervisory power in this case comes

from the face of the Fourth Circuit

Opinion itself.

On pages three and four of the

Opinion the Court of Appeals lists the

formal disciplinary Notices issued

against Ms. Ewald by her employer, the

Commonwealth of Virginia and summarizes

the subject matter of eacn. App. at 7a-

8a. Also see District Court opinion at

ai, hae at 45a-47a. On page 3 of its

Opinion, the Court of Appeals properly

notes that "DWM had a standing policy

that an employee could only be

terminated if that employee received

four group I disciplinary notices, or

one Group II disciplinary notice

combined with three Group I disciplinary

notices." App. at 7a. Also see

District Court Opinion at 4, App. at

35a-36a. Then, on page 7 and 8 of its

Opinion, the Court of Appeals explains

the examples of poor performance or

misconduct that the District Court

relied on in finding that Ms. Ewald’s

protected speech was not the "but for"

cause of her termination, and that form

the basis for the Court of Appeals’

affirmance of that decision. App. at

16a-18a. Also see District Court

Opinion at 25-26, App. at 65a-66a. The

only problem with this rationale by the

Court of Appeals and the District Court,

apart from the fact that all of these

reasons were disputed in the record, is

that the two sets of reasons for

termination listed in both Courts’

opinions -- one set presented prior to

termination in the formal notices issued

per the Commonwealth’s personnel policy,

and the other set presented post hoc by

the Commonwealth in litigation and

adopted by the Court of Appeals and

District Court -- are different.

This simple fact is of profound

importance. Where First Amendment Free

Speech employment discrimination and due

process claims are involved, a court

cannot conceivably be in compliance with

the rules established by this Court in

Sartor v. Arkansas Natural Gas;

Associated Press v. U.S.; American

Fidelity & Casualty v. London &

Edinburgh; and U.S. v. Diebold, Inc.

(which rules require that summary

judgment not issue if material facts are

genuinely in dispute after reading the

pleadings and supporting information in

the light most favorable to the non-

moving party) if the court grants

summary judgment for the employer while

at the same time finding that the

employer’s post hoc stated reasons for

the termination are different than the

employer’s stated reasons at the time of

termination.

With regard to the pre-termination

due process claim, if the court finds

that the employer has stated a different

set of reasons after the termination

than were stated to the employee prior

to termination, a genuine issue is

created regarding whether or not the

employee was ever told the real reasons

she was being terminated as required

under Cleveland Board of Education v.

Loudermill, 470 U.S. 532 (1985), so that

she might obtain an explanation of the

evidence supporting the [real] charges

against her and have an opportunity to

present her side of the story as to why

she should not be terminated based on

those [real] charges. If the court

finds, as the Fourth Circuit and the

District Court have in Ms. Ewald’s case,

that not only were different reasons

stated post hoc but the post hoc

reasons, rather than the reasons stated

in the formal pre-termination notices,

were actually the real reasons for the

employee’s termination, then not only is

there a genuine issue preventing summary

decision for the employer, but there is

adequate basis for summary judgment for

the employee. The employee, as a matter

of law, would not have had the pre-

termination opportunity for some kind of

hearing to tell her side of the story

and meet the charges and evidence

against her when the real charges and

evidence was never disclosed and a set

of false charges were presented instead.

Under these circumstances, the

circumstances of this case, the

Constitution and Loudermill not only

require that the employee at least be

given her day in court before a jury on

the genuine issues in dispute, but

actually support summary judgment for

the employee.

With regards to the First Amendment

Claim, again if the court finds that the

employer has stated a different set of

reasons after the termination than were

stated to the employee prior to

termination, a genuine issue is created

regarding whether pretext exists, that

is whether retaliation for protected

speech was the real reason for the

termination and whether the original

reasons stated by the employer prior to

termination were just a ruse to hide the

discriminatory intent.

Both the District Court and the

Court of Appeals decisions find on their

face that the reasons for the

Commonwealth’s termination of Ms. Ewald

were specific reasons none of which are

among the reasons both courts

acknowledge as having been stated in the

formal pre-termination notices. See

Fourth Circuit Opinion at 3-4 and 7-8,

App. at 7a-9a and 15a-18a; District

Court Opinion at 11 and 25-26, App. at

65a-66a. All of the reasons relied on

by both courts are shown in the record

to have been post hoc rationalizations

presented to the courts during the

litigation.

Apart from the tindings in the

opinions of the courts below that the

reasons stated by the Commonwealth for

Ms. Ewald’s termination after her

termination were different than the

reasons they presented her before her

termination, in viewing the record in

Ms. Ewald’s case there is no doubt that

there are material facts in dispute.

When cast in a light most favorable to

her, Ms. Ewald’s pleadings and

opposition papers clearly establish the

necessary disputed facts.

The District Court’s most

Significant error concerns the

"undisputed" facts that demonstrate that

Ms. Ewald’s speech was not the but for

cause of her discharge. District Court

opinion at 18, J.A. at 205, App. at 65a-

66a. Although the District Court’s

reasoning is unclear, and the Court

failed to make adequate findings of fact

and conclusions of law, it appears,

giving the Court the full benefit of the

doubt, that the Court found not only the

following facts, but held that these

facts establish, as a matter of law,

that Ms. Ewald was terminated for

legitimate reasons. These apparent

"findings" are:

eMs. Ewald’s "supervisors had

problems with her as early as the fall

of 1986." (Ms. Ewald directly refuted

this issue in her affidavit. Ewald

affidavit 4’s 15-16, J.A. at 144-51.

Interestingly, Ms. Ewald’s performance

appraisals do not reflect that there

were any "problems" as early as 1986.

~The mention of such problems, even if

they existed, are clearly post hoc

rationalizations by DWM management. )

e"There is no dispute that Ewald

resisted and resented the actions of her

new supervisor, Das, from the moment he

got the job. Many of her complaints were

about personal employment differences

she had with Das’ management style."

(There is simply no evidence that Ms.

Ewald “resisted and resented the actions

of her new supervisor, Das..." Such a

subjective judgment hinges on the

credibility of witness testimony about

relations between Ms. Ewald and Mr. Das

at the time. Credibility and demeanor

assessments of this type are simply

absent from the summary judgment process

in this case. Moreover, Ms. Ewald

directly refuted these issues in her

affidavit at 4’s 18-21, 31-32, 38-39,

43-45, 48-50, 53-54. J.A. at 144-51.)

e"Ewald does not deny that she

threatened to erase a federal grant

package after one of her disciplinary

notices."

_e"She offers no support for her

contention that her extended absence in

August 1988 was for sick leave." (Mr.

Das states that Ms. Ewald’s reasons for

her absence during the period of August

1, 1988 through August 12, 1988 were not

"adequate or satisfactory." Ms. Ewald

in her affidavit stated that she called

in during this period and utilized her

sick leave. In this instance the

District Court chose to believe Mr. Das

over Ms. Ewald even though it had no

objective reason for doing so. Clearly,

without more than countering. statements

Ms. Ewald’s version of the facts would

have to be accepted over Mr. Das’ for

the purposes of summary judgment.

Gordon v. Leeke, 574 F.2d 1147, 1152

(4th Cir. 1978). District Court opinion

at 18, J.A. at 205, App. at 66a.)

Of critical importance is the fact

that none of the bases asserted by the

District Court to support Ms. Ewald’s

legitimate termination are in fact the

bases relied upon by Virginia in making

the termination decision. There is no

dispute on this point as the official

disciplinary notices including the

termination notice state, and must state

under law and policy, the specific

reasons for the discipline and eventual

termination. None of the written

notices lodged against Ms. Ewald which

form the purported legal justification

for her discharge contain the above-

mentioned facts. Wot one.

The Court of Appeals and the

District Court failed to decide whether

any one or more of the four specific

alleged reasons for termination

mentioned by the District Court and

relied on and referenced by the Court of

Appeals were actually reasons cited in

any of the disciplinary notices upon

which Ewald’s termination was based

(which they were not). Both courts

failed to decide whether any of these

four alleged reasons for discharge were

adequate grounds for the issuance of a

disciplinary notice under Commonwealth

policy (which they were not). Both

Courts also failed to define the alleged

reasons for discharge with enough

clarity and specificity to enable a

determination as to the seriousness of

the alleged offense, or even what the

offense was.

As a matter of law ina First

Amendment case, a defendant employer

should not prevail in a summary judgment

motion by putting forth any set of

purported reasons for terminating an

employee, even if true, if they are

substantially different from those

reasons placed on the record and given

to the employee at the time of

termination. To hold otherwise would

stand the concept of pretext and due

process on their heads and allow the

employer to prevail by putting forth

entirely new reasons for the termination

after the fact. This is unfortunately,

exactly what the Court of Appeals and

the District Court have allowed.

Ms. Ewald clearly delineated in her

affidavit that her alleged personnel

infractions were pretextual and that she

was denied any alleged pre-termination

opportunity for her to meaningfully

present her side of the story. These

central issues are strongly contested

and clearly in dispute. See, Ewald

affidavit §’s 28-29, 32, 35, 39-50, J.A.

at 147-49.

The Court of Appeals articulated

the standards of review for

determinations via summary judgment in

its opinion. wald v. Department of

Waste Management, 91-1583 (4th Cir.

1992) (slip op. at 5), App. at 9a-10a.

Ms. Ewald generally agrees with the

Court’s articulation of the standards

for summary judgment and review of

summary judgment decisions. The

standards articulated by the courts

below in their opinions represent well-

settled principles of law established by

both the U.S. Supreme Court and the

various Circuits.

In its opinion the Court of Appeals

refers to and relies upon the statements

of Ms. Ewald’s former supervisors

(Cynthia Bailey and K.C. Das) in

concluding that "[i]Jt is apparent that

Ewald’s job performance problems began

at least one year before her first

contact with the EPA." Ewald, 91-1583

(slip op. at 7-8), App. at 18a. The

Court’s erroneous and disputed factual

conclusion played an important role in

its "but for" analysis of Ms. Ewald’s

First Amendment claim.

Ms. Bailey, the former Executive

Director of the Department of Waste

Management, alleged in her affidavit

that 1) Ms. Ewald’s performance problems

began in 1986, 2) EPA had complained

about Ms. Ewald, and 3) that "she had

counselled Ms. Ewald about her

performance." Ewald, 91-1583 (slip op.

at 7), App. at 17a. Ms. Ewald directly

disputed these unsubstantiated

allegations.

In her affidavit opposing summary

judgment, Ms. Ewald challenged any

notion that she had performance problems

or was advised by Ms. Bailey of any

areas of concern. Joint Appendix (J.A.)

at 144-146 (Ewald’s affidavit 4 1-16).

Specifically, Ms. Ewald testified in her

affidavit that through the 1985 to 1986

period she received "excellent"

performance reviews. J.A. at 145-146

(Ewald Aff. § 11, 15). Moreover, she

testified that "[a]t no time during this

period was I counseled, warned or

disciplined by either Bailey or Wickline

{[Ms. Ewald’s first supervisor] regarding

any aspect of my conduct or

performance." J.A. at 146 (Ewald Aff.

16). The appellate court must search

the record for facts in dispute and draw

all inferences in favor of a plaintiff

who opposes summary judgment.

Ottensmeyer v. C&P Tel. Co., 756 F.2d

986, 992 (4th Cir. 1985). The Court of

Appeals did not do that here.

The Court of Appeals also relies on

the unsubstantiated statements of Mr.

Das (the person accused by Ms. Ewald of

wrongdoing) and his evaluation that Ms.

Ewald “failed to provide the support and

cooperation he expected." Ewald, 91-

1583 (slip op. at 7-8), App. at 17a.

However, Ms. Ewald directly disputed the

nature of the relationship between

herself and Mr. Das in her affidavit.

Ms. Ewald testified in her affidavit

that Mr. Das’ actions "controverted

federal and state policies and laws,"

and he improperly charged work on non-

EPA grant tasks "to that grant,"

"engaged in the hiring of employees who

were unqualified," and excluded her from

"hiring selections even for positions

under [her] supervision." J.A. at 146

(Ewald Aff. § 18-21). Perhaps Mr. Das

was expecting cooperation in activities

that were not proper and objection to

which would be protected. This is a

matter to be left to the jury.

Neither Mr. Das nor Ms. Bailey

offered anything other than their direct

testimony through affidavit on these

contested issues of fact. In essence,

it is their word against Ms. Ewald’s.

Consequently, Ms. Ewald’s version of

these events must prevail for summary

judgment purposes. ee Fed.R.Civ.P. 56;

U.S. v. Diebold, Inc., 369 U.S. 654

(1962); Greear v. Loving, 538 F.2d 578

(4th Cir. 1976). By relying on the

statements of Das and Bailey which Ewald

refutes, the Court of Appeals and the

District Court have failed to examine

the record in the light most favorable

to Ms. Ewald.

One of the most fundamental issues

before the District Court and the Court

of Appeals was whether or not the

written notices provided by the

Department of Waste Management (DWM)

could be relied upon as a basis for

deciding, as a matter of law, that Ms.

Ewald was justifiably terminated both in

terms of her First Amendment and Due

Process claims. The Court of Appeals

concluded that "Ewald’s employment

history with the DWM was replete with

written disciplinary notices detailing

her deficiencies. Ewald surpassed the

minimum of three Group I disciplinary

notices and one Group II disciplinary

notice that were sufficient to terminate

her under DWM policy prior to the August

29, 1988, disciplinary notice." Ewald,

91-1583 (slip op. at 9), App. at 23a.

Here the Court of Appeals is accepting

the written notices as if they are true

and uncontested.

Nothing could be further from the

truth. The Court of Appeals goes on to

reason that "(t]he relevant objective

fact in this case is that Ewald had

accumulated adequate notices of

sufficient severity to warrant

termination under DWM policy." Id. at

10; App. at 26a-27a. This reasoning

simply ignores, without explanation or

legal justification, Ewald’s direct

dispute of the validity of the written

notices.

Concerning the written notice dated

November 5, 1987 Ms. Ewald testified in

her affidavit: "I asked Das for evidence

supporting his charges in the 11/5/87

written notice. No evidence was

provided. I grieved the written notice,

gave an accounting of the facts and

offered testimony from witnesses which

refuted the charges, but was summarily

denied relief or explanation by Das and

Bailey." J.A. at 147 (Ewald Aff. § 28-

29). This notice followed the day after

Ms. Ewald met with EPA officials to

complain about Mr. Das’ mismanagement of

the Superfund program. Id. (Ewald Aff.

9 25). An act of retaliation that

follows a protected act, such as

communicating with the EPA, raises a

genuine issue of material fact in the

summary judgment context. Donahue v.

Windsor Locks Board, 834 F.2d 54, 57-59

(2nd Cir. 1987); Eichman v. Indiana

State University, 597 F.2d 1104, 1108-

1109 (7th Cir. 1979).

With regard to the written notices

dated April 13, 1988 and July 11, 1988

Ms. Ewald provided the following

testimony: "I continued to air my

complaints ... I was subjected to

escalating harassment and retaliation

... During this period, I received a

number of written notices, making vague

and incorrect allegations against me.

In each and every instance I demanded

the basis or evidence for such notices,

but received no response. To the extent

possible due to the vagueness of the

charges stated, I provided refuting

documentation in every instance. J.A.

at 147-148 (Ewald Aff. § 30-32). The

Fourth Circuit has held that vague

notices which give only general or

categorical allegations ("catch all"

allegations such as “other incidents")

are not sufficient to satisfy due

process. Linton v. Frederick County,

964 F.2d 1436, 1441 (4th Cir. 1992).

The July 22, 1988 written notice

was issued following Ms. Ewaid’s dispute

with Ms. Bailey about the condition of

the Commonwealth’s hazardous waste site

Known as Cheatham Annex. J.A. at 148

(Ewald Aff. 33-34). This timing again

raises a genuine issue for trial. See,

Donahue and Eichman, supra. Ms. Ewald

testified: "On the afternoon of July 22,

1988, I received a written notice

alleging disruptive behavior at a

meeting, which in fact, never took

place. I was suspended for a one week

period beginning July 25, 1988. The

suspension was taken in lieu of

termination, which I construed, along

with the non-existence of the alleged

incident, to mean that although, I was

being harassed in retaliation for my

opposition to improper actions of DWM

officials, those officials realized that

they could not justifiably, and

therefore would not, terminate my

employment." J.A. at 148 (Ewald Aff. 4

35-36).

Finally, concerning the terminating

written notice dated August 29, 1988,

Ms. Ewald was first able to contest the

notice through the post-termination

grievance process. J.A. at 149 (Ewald

Aff. 46-50). However, disgusted with

the one-sided nature of the grievance

process as implemented by Bailey and

Das, Ms. Ewald chose to challenge this

notice and her termination before the

U.S. Department of Labor. J.A. at 150

(Ewald Aff. § 51, 53). That

adjudication is still in process.

Undoubtedly, had Ms. Ewald been

permitted an opportunity for discovery

prior to preparing her opposition to

summary judgment, she would have

submitted additional evidence to support

her pant ion. However, such evidence is

not necessary for the purposes of

summary judgment because Ms. Ewald’s

affidavit adequately takes issue with

the validity of each of the written

notices. In fact, as a pro se litigant,

who does not practice law, Ms. Ewald is

permitted some flexibility in drafting

her documents. The court must interpret

them in a liberal context most favorable

to her. Greear, 538 F.2d at 580; Gordon

v. Leeke, 574 F.2d 1147, 1151 (4th Cir.

1978). Consequently, and as a matter of

law, the lower courts should not have

relied on the written notices as

uncontested facts, as they did in their

opinions. The issues involving the

written notices are clearly material

issues in dispute and cannot provide a

supportive basis for summary judgment on

Ms. Ewald’s First Amendment claims.

Neither can the “objective fact"

that five written notices were filed

against Ewald support summary judgment

on her Due Process claim. Ms. Ewald

disputed in her affidavit that any of

the written notices were valid. She

also disputed that she had been informed

of the specific charges at the time of

each notice. She disputed that she had

been given an explanation of the

evidence against her at the time of each

written notice. J.A. at 144-51 (Ewald

Aff. ¥ 28, 29, 32, 39).

II. The Fourth Circuit’s Failure to

Enforce Fed.R.Civ.P. 5 And 77 Also Calls

for the Exercise of this Court’s Power

Fed.R.Civ.P. Rule 77(d) requires

that immediately upon entry of an order

or judgment the clerk shall serve a

notice of the entry by mail in the

manner provided by Rule 5 upon each

party. Fed.R.Civ.P. Rule 5(b) requires

that service to a party or her attorney

be made by delivery or mail. Ms. Ewald

did not receive notice of the District

Court’s pre-trial Order until after time

limits under the Order for some types of

discovery and other procedural

requirements had already lapsed. Ms.

Ewald did not receive proper notice of

the District Court’s order until the

first week of March 1991, a full three

months after it was entered.

The Supreme Court, in cases dealing

with the question of notice, has

uniformly held that notice must be

provided at a meaningful time and in a

meaningful manner so parties can raise

their objections. Mullane v. Central

anove ank, 339 U.S. 306, 314 (1950);

Mennonite Board of Missions v. Adams,

462 U.S. 791, 799 - 800 (1983)

(specifically noting "that particularly

extensive efforts to provide notice may

often be required when the state is

aware of a party’s inexperience or

incompetence."); Greene v. Lindsey, 456

U.S. 444, 449-454 (1982). Further, in

Memphis Light, Gas and Water Division v.

Craft, 436 U.S. 1 (1978) the court held

that a person must have proper notice

and an opportunity to contest a matter

before her/his interests are affected.

Ms. Ewald brought her case to the

District Court pro se. She has never

done any work in the legal field that

exposed her to the District Court’s

particular form of practice and

procedure. In fact, prior to her

experience in this case, Ms. Ewald had

never appeared in court. She could not

be expected to know that the District

Court had a standardized pre-trial order

that is provided in most every civil

case. See, also, Roseboro v. Garrison,

528 F.2d 309 (4th Cir. 1975) (holding

that summary judgment was not

appropriate where pro se litigant was

not advised that he had a right to file

‘counteraffidavits).

The fact that Ms. Ewald received

the District Court’s pre-trial order at

a point in time when it was too late to

obtain the same discovery. opportunities

her opponents had utilized implicates

fundamental questions of fairness beyond

the issue of proper notification. It is

the effect of the failure to provide

proper notification that must be closely

examined. As clearly explained in her

Emergency Motion, Ms. Ewald’s pre-trial

strategy was completely overwhelmed by

the interjection of a pre-trial order

that was designed to provide a measured

and prompt pace to the litigation. By

the time she received the order the

process was so set in stone and she was

so pressured by defendants litigation

agenda that it was impossible for her to

obtain discovery regarding any of the

causes of action in her complaint.

Such gross inequities do not

normally occur when parties are

represented by counsel. However, a few

courts have dealt with similar

situations, and their analyses make

clear the validity of Ms. Ewald’s

arguments. See e.g., In the Matter of

The Complaint of Bankers Trust Company,

752 F.2d 874, 890-91 (3rd Cir. 1984).

Moreover, in cases where parties

have not been party to the preparation

of a pre-trial order, or were not fully

informed about the nature and agenda of

a pre-trial hearing the courts have

uniformly held that their Fifth

Amendment rights have been violated.

Miera v. First Security Bank of Utah,

776 F.2d 902, 906-907 (10th Cir. 1985)

(party was not given a fair opportunity

to resist a pre-trial order which was

the basis for partial summary judgment) ;

Aetna Insurance Company v. Hartshorn,

477 F.2d 97, 100 (5th Cir. 1973) (party

that chose not to attend hearing was

denied due process when hearing decided

merits of case, but party was not

informed that merits would be argued at

hearing). Like the party in Miera, Ms.

Ewald did not have a fair opportunity to

contest or seek to modify the contents a

pre-trial order.

In assessing Ms. Ewald’s right to

notice of a pre-trial order and adequate

opportunity for pre-trial discovery, the

Appellate Court concluded that

"(ajlthough we find that Ewald was

originally entitled to notice by mail of

the pretrial order, we do not find that

the district court abused its discretion

in its denial of Ewald’s emergency

motion after consideration of all the

factors involved in this case." Ewald,

91-1583 (slip op. at 6), App. at 1l4a.

Specifically, the Court of Appeals

refers to the timing of Ms. Ewald’s

emergency motion, and some of the

factors the District Court cited in

denying her motion. Id. These

references demonstrate a

misunderstanding of the facts.

Concerning the timing of her

emergency motion, the Court of Appeals

raises the concern that the motion was

not filed by Ms. Ewald "until the day

before the summary judgment hearing."

Id. The Court’s concern seems to be

that Ms. Ewald slept on her rights,

implying that earlier action may have

been better received. Several facts

make clear that Ms. Ewald acted as

promptly as the circumstances would

allow.

First, prior to actually receiving

the pre-trial order, during the week of

March 4, 1991, Ms. Ewald contacted a

Clerk of the District Court on several

occasions to determine if a discovery

schedule had been set by the District

Judge. J.A. at 118.

Second, Ms. Ewald’s first formal

notification to the District Court that

her rights had been seriously affected

by the Court’s failure to serve the pre-

trial order was presented orally and ir

writing on March 25, 1991. J.A. at 120.

This notification was approximately two

weeks after Ms. Ewald actually received

the pre-trial order, and over two weeks

before the hearing on summary judgment.

Next, the lower courts’ observation

that Ewald was aware of the rules and

time limitations is, with all due

respect, meaningless and demonstrates a

basic misunderstanding of Ms. Ewald’s

Situation. Of course, she was able to

discuss the requirements of the pre-

trial order once it was in her

possession.

Ms. Ewald was entitled to notice of

the District Court’s pre-trial order and

the Court of Appeals for the Fourth

Circuit should be required to direct the

District Court to adhere to the federal

rules of procedure and the requirements

of due process.

III. The Fourth Circuit Has Abandoned

this Court’s Decision in Cleveland Board

° c on v. Loude

The District Court and Court of

Appeals correctly acknowledge the

controlling rule on pre-termination

procedural Due Process in Cleveland

Board of Education v. Loudermill, 470

U.S. 532 (1985), and acknowledge that

Virginia law gives non-probationary

public employees such as Ms. Ewald a

protected property right in employment.

Both lower courts also acknowledge that

Loudermill requires “some kind of

hearing" before discharge, and requires

notice of the charges, a summary of the

employer’s evidence, and an opportunity

for the employee to present her side of

the story prior to termination. Court

of Appeals Opinion at 8, App. at 18a-

20a; District Court Opinion at 26-27,

App. at 66a-68a.

The District Court notes

erroneously, however, that the

termination notice "contained several

specific recitations of Ewald’s most

recent shortcomings. It also referred

back to the past notices and other

informal requests for improved

performance." District Court Opinion at

20, App. at 69a-70a. This holding is

fundamentally erroneous because only one

of the allegations in the termination

notice was specific and that one was

entirely new -- regarding fiscal

mismanagement. The remaining

allegations were vague. It is unclear

whether the District Court relied on the

attachment to the termination notice but

that attachment had been previously

submitted with a prior notice which was

found to be false and was rescinded in

toto. Its renewed submission did not

add clarity to the notice but rather

confusion.

- The District Court erred in finding

that the first two prongs of the due

process test were met because the

termination notice was extremely vague

for all allegations but the fiscal, and

even the fiscal was still too vague to

understand. Further, the fiscal

allegation was presented to Ms. Ewald

for the first time only a few hours

prior to her forced removal from the

building under threat of arrest --

hardly adequate notice. The second

prong was clearly not met because no

evidence supporting the charges was

presented to Ms. Ewald and neither was

any evidence explained to her, as

required by Loudermill.

Due Process requires more than a

mere momentary encounter with a hostile

supervisor who hands over a vague

termination notice with a one page

attachment that was removed from a prior

reprimand that had been completely

rescinded, having been found to be

factually false. See, Cleveland Board

of Education v. Loudermill, 470 U.S.

532, 544-547 (1985). Due process

requires more than a momentary

"opportunity" for the employee to appeal

to the supervisor who has just decided

to terminate the employee after the

employee has brought charges of

wrongdoing against the very same

supervisor. Id.

The District Court finds the third

prong of the Loudermill test problematic

when actually it clearly weighs in Ms.

Ewald’s favor because the opportunity to

give her side of the story required by

Loudermill was non-existent in

Ms.Ewald’s case, as she explained in her

affidavit. The District Court, and the

Court of Appeals through its affirmance

of the District Court’s decision,

misread Loudermill to hold that "even

the briefest face-to-face encounters

satisfies due process" when prior

disciplinary notices have been issued to

the employee and when the employee has

post-termination grievance procedures

available to her. App. at 7la. The

rule in Loudermill however, is different

and clear: The pretermination hearing

"should be an initial check against

mistaken decisions -- essentially a

determination of whether there are

reasonable grounds to believe that the

charges against the employee are true

and support the proposed action."

Loudermill, 470 U.S. at 545-46

(citations omitted). "The opportunity

to present reasons, either in person or

in writing, why proposed action should

not be taken is a fundamental due

process requirement." Id at 546.

Both lower courts here make a

fundamental error of logic in holding on

the one hand that the actual reasons for

Ewald’s termination were specific

reasons offered post hoc by the

Commonwealth and not found in the pre-

termination notices and on the other

hand holding that due process has been

provided by providing Ms. Ewald a chance

to respond to the charges stated in the

notices. Justice and due process do not

allow the Commonwealth or the courts to

have it both ways.

Cleveland Board of Education v.

Loudermill, 479 U.S. 532 (1985), also

requires an opportunity to respond when

the termination notice is provided, not

just at the time of each prior offense.

Even assuming, argquendo, that the

issuance of the four pre-termination

notices were all that Loudermill and

state policy required, Ewald still had

the right to present arguments opposing

termination that might have convinced

DWM not to terminate her. Ms. Ewald, if

given the opportunity, would have argued

that the prior written notices were

false, and that the new charges

a8 8 witetinNe,

regarding her causing an alleged budget

deficit in the Superfund program were

likewise false. Similarly, she would

have rebutted the post hoc reasons had

they been made available at the time.

"Neither can we say that a fully

informed decisionmaker might not have

exercised its discretion and decided not

to dismiss [her], notwithstanding its

authority to do so." lLoudermill, 470

U.S. at 544.

The Court of Appeals failed to

understand the importance of and focus

upon the new charge leveled against Ms.

Ewald in the final (August 29, 1988)

written notice. She did not receive, as

her affidavit demonstrates, any pre-

termination opportunity to review

evidence concerning this charge or even

discuss it with her supervisors. J.A.

at 149 (Ewald Aff. | 42-46). Loudermill

requires such a pre-termination process

that provides an opportunity to respond

to all the actual reasons for

termination. 470 U.S. at 544.

Equally in dispute as the facts and

issues ecntaad. ai are the facts

concerning Ms. Ewald’s opportunities to

contest the charges against her that led

to her termination. The Court of

Appeals concluded "Ewald had no fewer

than four pretermination opportunities

to respond to the charges. These

opportunities provided Ewald with an

adequate means of contesting such

notices ..." Ewald, 91-1583 (slip op.

at 10), App. at 24a. Particularly

troubling is the Court of Appeals’

determination that the four

pretermination opportunities were

adequate. These so-called opportunities

were clearly deficient and their

ee A ee eee

ae She: Aiwa Rb a aly Moca Gd 4

adequacy was directly disputed by Ms.

Ewald. See J.A. at 144-51.

Specifically, Ewald challenged the

process provided for each and every

written notice. Regarding the November

5, 1987 notice, Ms. Ewald stated that

she was not provided any evidence to

support the charge against her and that

her evidence to counter the charge was

summarily refused. J.A. at 147 (Ewald

Aff. § 28-29). Concerning the April 13

and July 11, 1988 written notices, Ms.

Ewald demanded to know the basis or

evidence to support the notices, but

received none. J.A. at 148 ( Ewald Aff.

§ 32).

Similarly, Ms. Ewald challenged

that the incident alleged to be the

basis for the July 22, 1988 notice,

never occurred. Id. (Ewald Aff. § 35-

36). And with regard to the final

(August 29, 1988) written notice, Ms.

Ewald testified that the allegations

were “untrue on the face." She further

describes how she was summarily, and

without explanation of any evidence

against her, forced to leave. J.A. at

149 (Ewald Aff. § 42-48).

CONCLUSION

The Commonwealth and both lower

courts have relied on post hoc reasons

for Ms. Ewald’s termination that were

not stated in any pre-termination

notice. This is evidence of pretext

which, rather than disproving that Ewald

would not have been discharged "but for"

her protected speech, actually provides

evidence of the required "but for"

relationship, certainly enough to

survive summary judgment, even if the

specifics were not otherwise placed in

dispute by Ms. Ewald’s affidavit. The

Fourth Circuit has held that when such

evidence of pretext is present, summary

judgment is inappropriate. Linton v.

Frederick County, 964 F.2d 1436, 1441

(4th Cir. 1992). The Ewald decision is

in conflict with Linton.

Because the Fourth Circuit, like

the District Court below it, has relied

on reasons for termination that were not

presented to Ms. Ewald prior to

termination, both courts have totally

abandoned Loudermill. The Fourth

Circuit has further abandoned Loudermill

in following a rule that allows pre-

termination notice requirements to be

satisfied by a series of leisurely

notices of deficiency none of which put

the employee on notice that she is about

to be terminated and then allow abrupt

termination without any opportunity for

her to make her case when the reality of

termination is apparent.

This is not the process

contemplated by Loudermiltl, and it is a

process that is easily abused to silence

free speech and environmental

whistleblowing. The Fourth Circuit rule

is a dangerous one that deserves review

by this Court. For all the reasons

stated herein, Petitioner Pauline Ewald

respectfully requests this Court to

grant her Petition for Certiorari.

LOUIS CLARK

Government Accountability Project

810 First Street, N.W., Suite 630

Washington, D.C. 20002

(202) 408-0034

Counsel of Record

RICHARD E. CONDIT

MICK G. HARRISON

Government Accountability Project

Of Counsel

Dated: November 23, 1992

1(a)

“United States Court of Appeals

For the Fourth Circuit

No. 91-1583

PAULINE M. EWALD,

Plaintiff-Appellant,

COMMONWEALTH OF VIRGINIA,

DEPARTMENT OF WASTE MANAGEMENT;

CYNTHIA V. BAILEY; K.C. DAS;

WINSTON B. EVANS,

Defendants-~Appellees.

On Petition for Rehearing

with Suggestion for Rehearing In Banc

Appellant filed a petition for

rehearing with suggestion for rehearing

in banc. No member of the Court has

requested a poll on the suggestion for

rehearing in banc and the original

judicial panel has voted to deny the

petition for rehearing. Therefore, the

petition for rehearing with suggestion

for rehearing in banc is hereby denied.

Sol Blatt, Jr.

Senior United States District Judge

August 25, 1992

2 (a)

United States Court of Appeals,

Fourth Circuit

PAULINE M. EWALD,

Plaintiff-Appellant,

Vv.

No. 91-1583

DEPT. OF WASTE MANAGEMENT,

Commonwealth of Virginia;

Cynthia V. Bailey;

K.C. Das; Winston Evans,

Defendants~-Appellees.

meee ee ee ee ee ee ee ee

Appeal from the United States District

Court for the Eastern District of

Virginia, at Richmond.

James R. Spencer, District Judge.

(CA-90-494-R)

Argued: March 3, 1992

Decided: July 22, 1992

Before SPROUSE, Circuit Judge, KISER,

United States District Judge for the

Western District of Virginia, sitting by

designation, and BLATT, Senior United

States District Judge for the District

of South Carolina, sitting by

designation.

Affirmed by unpublished per curiam

opinion.

hae 0 aw an Braet

3 (a)

OPINION

PER CURIAM:

Pauline M. Ewald (herein “Ewald"),

plaintiff below, appeals from the entry

of summary judgment in favor of the

Commonwealth of Virginia, Department of

Waste Management (herein"DWM"), Cynthia

V. Bailey (Director), K.C. Das

(Supervisor), and Winston B. Evans

(Bailey’s secretary), by the United

States District Court for the Eastern

District of Virginia. Ewald also

appeals from the denial of her motion

for relief from the time constraints of

the pretrial order. Ewald alleged below

that the District Court denied her Fifth

Amendment right to engage in pretrial

discovery. Ewald also alleged that her

rights of free speech and due process

were violated when she was terminated

from her employment. Additionally, Ewald

4(a)

set forth various state law claims in

relation to her termination. Ewald

contends that her termination was

prompted by her complaints of agency

mismanagement, while the defendants

assert that she was terminated for poor

job performance. We affirm the judgment

of the District Court in all respects.

On October 16, 1990, the district

court issued a notice scheduling a

pretrial conference for October 25,

1990. The pretrial conference was

rescheduled at Ewald’s request to permit

her to obtain counsel, and on November

8, 1990, a second notice was issued

scheduling the pretrial conference for

“November 29, 1990. Ewald appeared

without counsel at this rescheduled

pretrial conference and the court issued

a pretrial order. One day prior to a

hearing set on defendant’s motion for

summary judgment, and fifteen days

5 (a)

before the trial date, Ewald filed an

emergency motion for relief from the

writes telehetese

pretrial order, claiming that she was

denied adequate opportunity for

discovery, but the district court denied

her motion.

From September, 1986, to August,

1988, Ewald was employed by DWM as

Manager of the Superfund Pre-Remedial

Program. Her responsibilities included

sth A, OBE tt ih A thai AP

supervision of site investigation,

environmental testing, preliminary

assessment, and ranking of hazardous

waste sites in Virginia. Ms. Cynthia

Bailey was the Director of DWM in 1986 :

when Ewald began her employment. In her

ie ID PRT atl aR ches EN aA A teks 9 te eae

affidavit, filed with the summary

judgment motion, Bailey stated that she

6 a aR tases atone

became concerned with Ewald’s job

performance as early as the fall of

1986, and that on at least two occasions

she had counselled Ewald about her poor

SE RES a

6 (a)

job performance.

In late 1987, Ewald first contacted

the EPA to report alleged acts of grant

misappropriation within the DWM. In

April, 1987, Dr. K.C. Das became Ewald’s

direct supervisor. In his affidavit,

filed with the summary judgment motion,

Das stated that, from the day of his

arrival, he received only minimal

support and cooperation from Ewald. He

further stated that on numerous

occasions he instructed Ewald to

accomplish program directives and that

she either did not respond or responded

in an untimely manner. In August, 1987,

Das evaluated Ewald and gave her a

rating of 23, which he stated was only

marginally satisfactory.

DWM had a standing policy that an

employee could be terminated if that

employee received four Group I

disciplinary notices, or one Group II

7 (a)

disciplinary notice combined with three

Group I disciplinary notices. During

the period from November 5, 1987, to

August 29, 1988, Das issued six

disciplinary notices to Ewald which are

listed as follows:

1.November 5, 1987 -Group I notice

issued for disruptive behavior at a

meeting.

| 2.April 13, 1988 -Group II notice

issued for consistently failing to

perform duties and provide notice of

absences during office hours.

3.July 11, 1988 -Group I notice

issued for failure to be at work, i.e.,

arriving late and leaving early without .

informing staff.

4.July 22, 1988 -Group I notice

issued for disruptive behavior at a

meeting.

5.August 25, 1988 -Group I notice for

unsatisfactory attendance. [FN1]}

8 (a)

6.August 29, 1988 -Group I notice

issued for failure to produce weekly

activity reports for several weeks and

to respond to an outstanding request to

develop an annual program plan. Ewald

was previously reminded on both July 25,

1988, and April 16, 1988, of the request

to develop the annual program plan.

[FN2]

On August 29, 1988, Dr. Das

requested a meeting with Ewald. During

the meeting, Ewald was given the August

29, 1988, termination notice described

above. Ewald refused to sign this

notice to acknowledge its receipt. In

his affidavit, Dr. Das stated that he

told Ewald that she was being terminated

when he gave her the notice. The

substantive conversation between Ewald

and Das seems to have ended at that

point. In her affidavit, Ewald stated

9(a)

that she then attempted to discuss the

charges and the termination action with

her Director, Ms. Bailey, but that Ms.

Bailey’s secretary had informed Ewald

that Ms. Bailey was unavailable to meet

with her.

! In reviewing the district court’s

grant of summary judgment, we apply the

same standard applied by the district

court under Federal Rule of Civil

Procedure 56(c). Ottensmeyer v.

Chesapeake & Potomac Tel. Co., 756 F.2d

986, 992 n.12 (4th Cir. 1985). Summary

judgment is appropriate "if there is no

genuine_issue of material fact and the

moving party is entitled to judgment as

a matter of law." Fed. R. Civ. P.

56(c). “Rule 56(c) mandates the entry

of summary judgment ... against a party

who fails to make a sufficient showing

to establish the existence of an element

essential to that party’s case, and on

10 (a)

which that party will bear the burden of

proof at trial." Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). In

assessing the correctness of the court’s

grant of summary judgment, we must

examine the record in a light most

favorable to the party opposing the

motion. Smith v. University of North

Carolina, 632 F.2d 316, 338 (4th Cir.

1980).

In reviewing the district court’s

denial of Ewald’s emergency motion for

relief fron pretrial order, the standard

to be applied is whether the district

court abused its discretion in applying

Federal Rule of Civil Procedure 16

governing pretrial conferences.

Sadowski v. Bombardier, Ltd., 539 F.2d

615 (7th Cir. 1976).

Ewald first argues that the

FA RTE NRA eR tah nal

11(a)

district court erred in its denial of

her emergency motion for relief from the

court’s pretrial order. The pretrial

conference had been delayed

approximately one month at Ewald’s

request. Ewald appeared at the pretrial

conference, but alleged that she did not

receive a copy of the pretrial order

until a full three months after it was

entered. DWM does not argue that Ewald

received proper notice of the order by

mail, but DWM argues instead that Ewald

was not entitled to notice by mail. We

find DWM’s argument unpersuasive on that

point. Pursuant to Federal Rule of

Civil Procedure 77(d), the clerk of

court must immediately serve a Woke tinns of

entry of an order upon each party not in

default.

In footnote six of its order, [FN3]

the district court cited some of the

factors it considered in denying Ewald’s

12 (a)

emergency motion. One factor was that

Ewald possessed a law degree and

demonstrated competence in both oral

advocacy and legal writing and analysis.

The court also stated that Ewald’s

motion and brief indicated Ewald’s

awareness of the rules and time

limitations of which she complains. In

addition, the court noted that Ewald had

repeatedly attempted to delay this case,

and that she was reminded in court of

her obligations to prosecute her case

and to respond to the motions filed by

the defendants. The court indicated

that Ewald’s only response to

defendants’ motions was to seek further

delay, and that Ewald had approximately

eight months since filing her complaint

to offer any deposition testimony or

affidavits to corroborate her material

allegations, but she had not done any of

this.

Ne ee Re

Se eae

13 (a)

From the record, it appears that

Ewald knew about the pretrial order at

least one month before the motion for

summary judgment was heard, but did not

file her emergency motion until the day

before the summary judgment hearing.

The determination as to whether or not

parties should be held to pretrial

orders is a matter left generally to the

discretion of the district court.

Sadowski v. Bombardier, Ltd., 539 F.2d

615 (7th Cir. 1976); e Lav urbine

Inc. v. West India Industries, Inc., 502

F.2d 259, 263 (3rd Cir. 1974). Although

we find that Ewald was originally

entitled to notice by mail of the

pretrial order, we do not -find that the

district court abused its discretion in

its denial of Ewald’s emergency motion

after consideration of all the factors

involved in this case.

14 (a)

Il.

Next, Ewald asserts that, in

response to defendant’s summary judgment

motion, she raised material issues of

fact, concerning her First Amendment

claim that she was terminated because

she engaged in protected speech as a

"whistle-blower." The district court

rejected Ewald’s argument, employing the

analysis outlined in Huang v. Board of

Governors of University of North

Carolina, 902 F.2d 1134 (4th Cir. 1990).

In Huang, this Court held that, in order

to prevail on a First Amendment

whistle-blower claim, the plaintiff must

satisfy a three-prong test: (1)

plaintiff’s expressions must have

involved a matter of public concern;

(2) plaintiff must have been deprived of

some valuable benefit; and (3) "but

for" the protected expression, the

employer would not have taken the

rs eS ee

15 (a)

alleged retaliatory action.

We find that the district court

properly rejected Ewald’s protected

speech claim because she failed to meet

the third prong of this test. This

court has described the causation factor

as a rigorous requirement:

{[I}t is not enough that the protected

expression played a role or was a

motivating factor in the retaliation;

claimant must show that "but for" the

protected expression, the employer would

not have taken the alleged retaliatory

action.

Id., citing Givhan v. Western Line

Consol. School Dist., 439 U.S. 410, 417

(1979).

For summary judgment purposes, the

district court found that Ewald had made

statements of public concern prior to

her discharge, but that these statements

were not the "but for" cause of her

discharge. We agree with the district

court’s finding that Ewald met only the

first two prongs of the Huang test, and

16 (a)

that her claim failed to meet the "but

for" prong of that test.

In her affidavit, Ewald stated that

her first report to the EPA of alleged

wrongdoing concerning grant mismanage-

ment occurred on October 19, 1987.

However, it appears from the record that

Ewald’s job performance problems began

in the fall of 1986 while her contact

with the EPA admittedly did not begin

until the fall of 1987.

Ms. Bailey, Ewald’s Director,

stated in her affidavit that she became

concerned with Ewald’s job performance

as early as the fall of 1986, and that

on at least two occasions she had

counselled Ewald about her performance.

Specifically, Ms. Bailey stated that EPA

had complained about Ewald’s failure to

achieve grant commitments that Ewald had

made to EPA and, also, about the

difficulty of working with Ewald.

17 (a)

Additionally, as previously set forth

herein, in April, 1987, Dr. K.C. Das

became Ewald’s supervisor and it was his

view that she failed to provide the

support and cooperation he expected of

her.

These facts support the district

court’s finding that the "but for" prong

of Huang was not met. It is apparent

that Ewald’s job performance problems

began at least one year before her first

contact with the EPA. Under these

circumstances, we affirm the district

court’s finding that Ewald did not meet

the rigorous causation standard of

Huang.

Iti.

Finally, Ewald asserted that her

rights of procedural due process were

violated because she did not receive a

pretermination opportunity to respond to

the charges listed on her termination

18 (a)

notice. In Cleveland Board of Education

v. Loudermill, 470 U.S. 532, 546 (1985),

the Supreme Court held that a public

employee with a property interest in

continued employment who is offered post

termination administrative procedures

must, nevertheless, before

termination be given "oral or written

notice of the charges against him, an

explanation of the employer’s evidence,

and an opportunity to present his or her

side of the story." Loudermill, 470

U.S. at 546. A pre-termination hearing

is necessary in order to balance the

competing interests at stake: "the

private interest in retaining

employment, the governmental interest in

the expeditious removal of

unsatisfactory employees and the

avoidance of administrative burdens, and

the risk of erroneous termination." Id.

at 542-543.

19 (a)

When post-termination

administrative procedures are afforded,

such pretermination procedure functions

only as “an initial check against

mistaken decisions-essentially, a

determination of whether there are

reasonable grounds to believe that the

charges against the employee are true

and support the proposed action." Id.

at 545-46. The pretermination process

need not resolve the propriety of the

discharge. Id. at 545. See Gniotek v.

City of Philadelphia, 808 F.2d 241, 244

(3d Cir. 1986) ("Notice is sufficient,

1) if it apprises the vulnerable party

of the nature of the charges and general

evidence against him, and 2) if it is

timely under the particular circumstance

of the case."), cert. denied, 481 U.S.

1050 (1987). In this regard, the Tenth

Circuit has observed: "The

pretermination hearing is merely the

20(a)

employee’s chance to clarify the most

basic misunderstanding or to convince

the employer that termination is

unwarranted. The pretermination hearing

is intended to supplement, not

duplicate, the more elaborate

post-termination hearing." Powell v.

Mikulecky, 891 F.2d 1454, 1458 (10th

Cir. 1989).

Tne Fourth Circuit itself has

indicated that the requirements to

comply with Loudermill are minimal. See

e.g., Garraghty v. Jordan, 830 F.2d

1295, 1302 (4th Cir. 1987) (holding that

Loudermill requires neither a full

evidentiary hearing with witnesses nor a

neutral decisionmaker). Very recently

in Linton v. Frederick County, No.

912189 (4th Cir. May 22, 1992), this

court adopted the analysis employed in

Seibert v. Oklahoma ex. rel. Univ. of

Oklahoma Health Sciences Center, 867

21(a)

F.2d 591 (10th Cir. 1989), in that the

court considered the employment history

of the plaintiff in determining whether

the plaintiff had received a

pretermination hearing. Similar to the

facts of this case, the court in Seibert

faced a plaintiff with "an extensive

history of warnings," Id. at 598.

Examining the last several months

preceding Seibert’s termination, the

court concluded: "We believe that the

totality of the procedures and

opportunities which the University

afforded the plaintiff were sufficient

to satisfy constitutional requirements.

Plaintiff was not fired out of the blue.

Plaintiff was not fired for reasons he

did not know." Id. at 599. In the same

vein, a recent published decision

involving several warnings over a

two-month period found that due process

requirements were satisfied when

22 (a)

examining the process as a whole. See

Aronson v. Gressly, 921 F.2d 907 (10th

Cir. 1992). These cases are

illustrative of problems in employment

relationships that develop over time.

The procedures available to an employee

in responding should, therefore, also be

examined over time.

When applying Loudermill to the

events of August 29, 1988, and to

Ewald’s employment history as a whole,

the record establishes that Ewald had an

opportunity to respond that met or

exceeded the minimal requirements of

Loudermill. Ewald’s employment history

with the DWM was replete with written

disciplinary notices detailing her

deficiencies. Ewald surpassed the

minimum of three Group I disciplinary

notices and one Group II disciplinary

notice that were sufficient to terminate

her under DWM policy prior to the August

23 (a)

29, 1988, disciplinary notice. In

connection with these disciplinary

notices, Ewald had no fewer than four

pretermination opportunities to respond

to the charges. These opportunities

provided Ewald with an adequate means of

contesting such notices, as shown by her

success in removing one charge that she

failed to report to work in a timely

manner. Ewald was aware that she had an

opportunity to respond to each of these

notices; she initiated action

contesting the very first notice. While

our decision does not turn on this

factor, it is interesting to note that

Ewald refused to even sign for the

receipt of the notice of July 22, 1988,

and the final notice of August 29, 1988.

Due process requirements are not

violated merely because the plaintiff

fails to take advantage of available

procedures. See, e.g., Bohn v. County

24 (a)

of Dakota, 772 F.2d 1433, 1441 (8th Cir.

1985), cert. denied, 475 U.S. 1014

(1986); Dusanek v. Hannon, 677 F.2d

538, 543 (7th Cir. 1982), cert. denied,

459 U.S. 1017 (1982).

It is clear that these notices

detailing disruptive behavior and a

failure to perform her duties made Ewald

liable to discharge even in the absence

of the additional charges detailed in

the August 29, 1988 notice. This was

stated directly to Ewald in the notice

she received on July 22, 1988: "The

fact that [Ewald] now has three active

Group I offenses and one active Group II

offense are grounds for automatic

dism({issjal."

When the state has exceeded the

requirements of due process by providing

the employee with an opportunity to

respond to each of the violations that,

taken together, can lead to termination,

25(a)

the pretermination requirements of

Loudermill are fully satisfied. Due

process does not require further

interference with the state’s recognized

interest in ridding itself of

incompetent and disruptive employees.

As the Supreme Court stated in

Loudermill: "To require more than this

prior to termination would intrude to an

unwarranted extent on the government’s

interest in quickly removing an

unsatisfactory employee." 470 U.S. at

546.

In addition, when discussing the

requirement for a hearing, Loudermill]

distinguishes terminations based on

arguable issues from those based on

objective facts. Id. at 544 & n.9. The

relevant objective fact in this case is

that Ewald had accumulated adequate

notices of sufficient severity to

warrant termination under DWM policy.

26 (a)

She was accorded due process in

connection with each of these notices.

Loudermill does not require an .

additional hearing when the only

remaining issue is the objective fact

that Ewald had accumulated sufficient

notices to be terminated. [FN4]

In sum, upon a thorough review of

Ewald’s extensive history of both oral

and written warnings, this court

concludes that Ewald was afforded an

adequate pretermination hearing under

the standards enunciated in Loudermill

and interpreted by later cases decided

by this court. It is clear that Ewald

was aware of the reasons which formed

the basis for her termination and that

she was not fired out of the blue. She

had many opportunities to respond during

the approximately two year period from

the fall of 1986, to her date of

termination on August 29, 1988. We

27 (a)

conclude that the opportunities for

pretermination hearings provided to

Ewald adequately addressed the

underlying interests outlined by the

Loudermill court. Id. at 542-543.

Consequently, the order of the district

court is

AFFIRMED.

FN1. This notice was rescinded as

noted on the August 29, 1988, notice,

because Ewald made a verbal presentation

of a formal grievance, and was able to

provide proof to refute this charge.

FN2. This notice had an

attachment, dated August 25, 1988,

showing two items. The first item was

the unsatisfactory attendance charge

with a handwritten notation that the

charge was no longer relevant. The

second item contained charges of

unsatisfactory job performance as listed

in number 6 above.

28 (a)

FN3. See page 201 of the Joint

Appendix.

FN4. Reversing the factual

situation found in Loudermill, 470 U.S.

at 544 and n.9, the United States

Supreme Court indicates that where a

termination is based on objective facts,

rather than on subjective facts, an

additional pretermination hearing is not

necessary when earlier pretermination

hearings have been given to the same

employee.

29 (a)

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA,

RICHMOND DIVISION

PAULINE M. EWALD,

Plaintiff,

Vv. Civil Action

No. 3:90V0094

COMMONWEALTH OF VIRGINIA

DEPARTMENT OF

WASTE MANAGEMENT, et al.,

Defendants.

me ee ee ee ee ee ee eee”

OPINION MEMORANDUM

April 22, 1991

April 22, 1991, Filed

James R. Spencer,

United States District Judge.

This matter is before the Court on

defendants’ motion for summary judgment.

For the reasons discussed below, the

motion will be granted, and plaintiff’s

motion for relief from the schedule of

the pretrial order denied.

30(a)

Plaintiff Pauline Ewald complains

that defendants subjected her to "an

ongoing campaign of harassment and

intimidation," culminating in her

discharge, in response to her raising

serious concerns about fraud, waste and

abuse at the Virginia Department of

Waste Management ("DWM"). She claims

these acts violated her rights of free

speech and due process, as well as

assorted state law rights.

She invokes the court’s

jurisdiction under 28 U.S.C. @ 1331

(federal question). She makes her

constitutional claims pursuant to Bivens

Si Ww ed ents ed’

Bureau of Narcotics, 403 U.S. 388

(1971). nil

The remainder of this section

describes the allegations of the

31(a)

complaint as if true.

Ewald was employed by DWM as

director of the Virginia Pre-remedial

Superfund Program ("Pre-remedial

Program"). The program is a state-run

one, operated pursuant to a cooperative

agreement with the United States

Environmental Protection Agency

("EPA") .

As director, Ewald observed

"numerous improprieties" in:

the administration of grant funds, the

application of Federal environmental law

and policy, in the application of

required State and Federal procedures

relating to fair hiring, and in abuse

of due process relating to property

interests in continued public

employment.

Complaint at para. 9.

Ewald expressed her concerns to DWM

supervisors, EPA agents, and co-workers

who had the power to correct the

problems. They did not, and instead

sought to "actively discredit" Ewald.

32 (a)

Id. at paras. 9-10.

Ewald continued her complaints. In

response, the defendants conspired with

each other and others for the purpose of

suppressing her constitutional rights.

Specifically, they conspired to:

1) terminate Ewald’s job without a

"proper show of cause" and without due

process;

2) retaliate against Ewald for her

first amendment activities;

3) “conduct an improper campaign of

harassment and intimidation" against

her;

4) implement a "spying and

surveillance" program against her, using

her friends, associates and co-workers

to gather "derogatory information" about

her so as to "smear and discredit" her;

5) intentionally inflict emotional

distress on her;

6) deprive her of due process by

33 (a)

"rejecting her complaints, punishing her

for bringing them, and requiring her to

engage in fruitless" grievance

procedures; and, finally,

7) deprive her of her reputation

and professional standing by defaming

her through libel and slander.

Id. at para. 12.

After this melodramatic

introduction, Ewald’s complaint offers

more specific factual assertions, as

follows. n2

Ewald directed the Pre-remedial

Program from January 1984 to August

1988, making use of her degrees in

chemistry and law. Id. at paras. 15-16.

Ewald’s responsibilities included

supervision of site investigation,

environmental testing, preliminary

assessment and hazardous ranking of

hazardous waste sites in Virginia, and

bringing those sites to the attention of

34 (a)

the EPA.

Ewald "was instrumental" in

developing the Pre-remedial Program and

in acquiring the first EPA grant for

it. She was "well respected" by staff,

and received at least satisfactory

performance ratings prior to her

termination. She also received

compliments from EPA officials, was

called the Virginia Pre-remedial

Program “one of the best in the

country." Id. at paras. 18-21.

Ewald had "a contractual

understanding and agreement with her

Employer that her employment would not

be terminated except for just cause."

Id. at para. 22. The DWM also had a

"standing official policy" permitting

termination only after:

four valid Group I Notices of policy

violation or poor performance, or one

valid Group II Notice and three valid

35(a)

Group I Notices.

Id. at para. 23.

DWM issued four valid Group I

Notices and one Group II Notice, but

these were "pretextual or simple

error." It discharged her on August 29,

1988, without just cause. Id. at paras.

24-25.

Ewald’s discharge followed 10

months of "unjustified personnel

actions" in retaliation for her

disclosures of agency misconduct. Id. at

para. 32. Her termination was proceeded

by "less than five hours notice," and

threats of arrest for trespassing if

she returned. Id. at para. 31.

Ewald seeks $ 1 million in

compensatory damages for the

constitutional violations, plus another

$ 1 million in punitive damages, and

another $ 2 million for the pendent

state law claims of wrongful discharge,

36 (a)

libel and slander, and intentional

infliction of emotional distress.

Il.

Defendants submit three affidavits

and related attachments on summary

judgment. A description of facts

supported by those items follows.

Defendant Cynthia Bailey was DWM

director from July 1, 1986 to March 1,

1991. She states that Ewald was indeed

the Pre-remedial Program manager until

August 1988. After April 17, 1987, her

direct supervisor was Dr. K.C. Das.

As early as the fall of 1986,

Bailey "became concerned" with Ewald’s

performance and at least twice

"counselled" her about her performance.

Specifically, Bailey states that

the EPA “had complained about her

failure to achieve grant commitments

that she had made and the difficulty of

37 (a)

working with Mr. [sic] Ewald. In

addition, Ewald had misrepresented her

inability to obtain consent [apparently

for testing] from an owner of a possible

site."

These incidents prompted Bailey to

ask Das to closely supervise the

Pre-remedial Program once he arrived.

Ewald became "a management problem"

because of performance and attendance

shortcomings. She was issued four Group

I and one Group II disciplinary notices,

as described in the Virginia Employees’

Standards of Conduct and Performance

Policy, between November 5, 1987 and

August 29, 1988.

Ewald initiated grievance

procedures only in response to her first

and last notices, but pursued neither

of them to conclusion.

Bailey acknowledges she terminated

Ewald’s employment on August 29, 1988,

38 (a)

effective on that date. She made her

decision on that date, based on her

belief that all Ewald’s disciplinary

notices were justified.

Bailey denies Ewald’s allegations,

and states she has never prohibited or

restrained Ewald’s speech or association

with others. She states Ewald was not

discharged for allegations of agency

mismanagement, but for "good cause"

pursuant to the state employees

grievance procedure, and for the reasons

stated in her discipline notices.

Attached to Bailey’s affidavit are

documents purporting to show that the

DWM had engaged in no misconduct, and

that the U.S. Department of Labor had

previously rejected Ewald’s complaints.

First, there is an undated letter

from Thumas Voltaggio, director of the

Hazardous Waste Management Division for

the Philadelphia regional office of the

39 (a)

EPA. It is addressed to persons with the

Government Accountability Project

("GAP"); this appears to be a public

interest group which filed the Labor

Department complaint on Ewald’s behalf.

GAP had raised concerns with a

letter to Voltaggio on October 11, 1990,

about Virginia’s handling of the

Virginia Emergency Fuel Storage Facility

(VEFSF) in Williamsburg.

Voltaggio conferred with various

state environmental and safety officials

in responding to those concerns. His

letter also refers to an article by

Ewald called "Running Amuck."

GAP’s first concern was that the

state failed to report the presence of

leaking petroleum or "PCB" contaminants

after purchasing the VEFSF site from the

Navy in May 1981. Virginia had no duty

to report such things, Voltaggio wrote,

40(a)

based on the applicable regulations and

the results of a preliminary site

investigation.

GAP also expressed concerns about

misappropriation of EPA Pre-remedial

Program grant monies. But the lab cost

of analyzing VEFSF samples was not

charged to EPA, Voltaggio explained. It

was instead paid for by the

Commonwealth, and there was thus no

misappropriation.

The only hint of mismanagement EPA

found involved “incorrect use of four

Pre-Remedial Program Staff members" for

work on the VEFSF in late 1986 and early

1987. EPA informed the DWM in 1987 that

it did not approve of the "intermixing

of programs (State and Federal) ,"

Voltaggio added. K.C. Das followed up

in April 1987 by initiating "separation

of the pre-remedial and remedial

programs." The EPA found this to cure

————————————————— ia

41(a)

the "program intermix problem."

Lastly, Voltaggio wrote, there was

no reason to place the VEFSF on the

Superfund National Priorities List. Even

assuming a "worst-case" scenario for

contamination at the site, it still

would not qualify for NPL listing.