# Petition for Writ of Certiorari — Ewald v. Virginia

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 961

## 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

vi

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.
Fed. R.
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.

(c) Motion and Proceeding Thereon. The
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.

3
:

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.

10

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

11

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.

12

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

13

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

14

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

ee

15

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

16

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

17

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

18

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

19

(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.

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

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

ae

29

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

30

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

32

"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

33

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

34

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

35

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.

36

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

37

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"

38

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-

39

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

40

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

41

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

42

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.

a

43

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

45

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

46

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

47

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

48

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

49

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

50

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

51

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

52

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

53

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

54

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

55

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-

56

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.

57

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

58

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

59

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

60

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

61

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

a

62

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,

63

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

a

64

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

65

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

66

(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

67

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

68

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

a

1(a)

“United States Court of Appeals
For the Fourth Circuit
No. 91-1583
PAULINE M. EWALD,
Plaintiff-Appellant,
v.

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)

I.

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.
n3

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.

Other documents relate to the Labor
Department’s investigation of Ewald’s
administrative complaint that she was
discharged in retaliation for reporting
DWM mismanagement and misconduct.

The Labor investigation concluded
that Ewald’s allegations were not
provable because:

Your termination was based on issues
which were in existence prior to your
reporting your concerns to the EPA. Your
termination was based on problems with
your performance, attendance, and
behavior, all of which were documented
both before and after you contacted
EPA. These issues are unrelated to areas

which fall within the scope of the EPA
statute.

The Labor Department also advised

42(a)
Ewald of her right to appeal its
findings to an administrative law judge
("ALI").

Dr. K.C. Das was responsible for
supervision and oversight of the
program Ewald managed. He was appointed
to his position as DWM Director of
Administration and Special Programs on
April 16, 1987. He set out to establish
a “full Superfund" program, consisting
of pre-remedial, remedial, and state
clean-up components.

His efforts met with "minimum
support and cooperation" from Ewald.
Ewald’s job required her to manage
people and work, prepare grant request
packages and amendments, and account
for her staff’s time in a formal
time-keeping system. She was also
required to make financial projections
for the program.

From April 1987 to October 1987,

EEE

43 (a)
Ewald failed to respond or untimely
fashion to numerous directions and
instructions Das gave her. In August
1987, Das gave her a performance rating
of 23 out of 50, which he characterizes
as “only marginally satisfactory."

His evaluation also recommends,
"Training in the area of management
development skills is highly desirable."
His evaluation report includes a

"Performance Planning" sheet,
‘mateo his views of proficient
standards for a program manager such as
Ewald.

By mid-October 1987, “It became
obvious that Ms. Ewald’s lack of support
and uncooperative attitude was a
distinct detriment to our organization’s
goals and the program objectives of DWM
and that Ms. Ewald was unwilling to

improve her attitude or performance,"

Das states.

44(a)

After conferring with the state
Department of Personnel and Training and
with the Attorney General’s office, he
continued to counsel Ewald but also
began recording unsatisfactory
performance or unacceptable behavior.

After this, Das gave Ewald the
following formal reprimands:

1) a Group I notice on November 5,
1987 for disrupting and leaving a
Superfund staff meeting which included
new members of her own staff;

2) a Group II notice on April 13,
1988 for her habitual failure to perform
required duties or give Das "timely and
adequate notice" of her absences during
work hours;

3) a Group I notice on July 11,
1988 for continuing to report to work
late and leave the office without
notice to others; n4

4) a Group I notice on July 22,

Ones ee ee ee cy ane

45(a)
1988 for again disrupting and storming
out of a meeting before its conclusion;
and

5) a final Group I notice on August
29, 1988, citing her continued
unsatisfactory performance and resulting
discharge.

The July 22 notice prompted
Ewald’s threat to erase a federal grant
application package from her computers.
Scheduled to return August 1, 1988,
Ewald did not return until August 12,
and never gave "adequate or satisfactory
reasons" for her absence.

The final notice responded to
continued performance problems. Das
states that Ewald had, among other
things, failed to submit EPA grant
amendment applications on time,
resulting in the loss of EPA grant

money. She had also failed to produce a

number of weekly reports, and had not

46 (a)
responded to Das’s requests to develop
an annual program plan.

Ewald refused to place her
acknowledging signature on any of the
last three notices.

Das offers the same denials of
wrongdoing which Bailey does. He also
attaches more detailed Labor Department
findings regarding Ewald’s complaint to
Labor. This report includes one or more
levels of hearsay, n5 but is
illuminating, and is summarized below.

Ewald was hired as a temporary
Site investigator in June 1985, and
appointed to her director/manager
position in September 1986. Her former
Supervisor, Bob Wickline, witnessed her
disrupting a meeting once before Das
replaced him.

A Superfund grant for the period

ended February 1987 was “overspent" by

$60,000. Numerous memoranda from June

47 (a)
1987 until Ewald’s termination
explicitly describe Das’s expectations
and Ewald’s apparent failure to respond
to them. Ewald made apparently three
allegations regarding misappropriation
of EPA grant funds, all of which were
investigated and corrected or found to
be insubstantial.

The Labor report concluded that
Ewald did contact EPA about her grant
misappropriation concerns by November 9,
1987, and that Das knew about this. It
found her discipline was not a result of
these complaints, however, but because
of her inability to cooperate with Das’
management style, which was much more
aggressive and involved than Wickline’s.
It emphasized that numerous instances
of Das’ dissatisfaction with Ewald,
including the first discipline notice,

: preceded Das’ apparent knowledge of

Ewald’s mismanagement complaints. See

48 (a)
Attachment X to Das Aff. at 2-4
(describing language of over 30 DWM
memoranda authored by Ewald or Das).

Finally, defendant Winston Evans
states by affidavit that he never had
any authority over Ewald. He states he
did not participate in any discipline of
her, except perhaps for typing the
discipline notices, in his capacity as
executive secretary to the DWM director
Since July 1986.

Ewald’s response is a legal brief,
her own affidavit, and copies of
memoranda she wrote while at DWM. By
affidavit, she states that Das
repeatedly refused to address staff
complaints and problems, and undermined
the technical work which Ewald
supervised.

Das frequently pulled staff from

scheduled grant work and ordered them to

perform alternate tasks, Ewald states.

49 (a)
Das also allegedly hired unqualified
persons for jobs. After Ewald once
objected to this practice, she was
excluded from further hiring
selections, even for positions under her
supervision.

Ewald states that she first
contacted the EPA by phone on October
19, 1987, about her concerns over
misappropriation of EPA grant funds. She
states that she met on November 4, 1987
with EPA officials in Philadelphia. She
states that Das had a "representative"
at that meeting, who reported her
complaints to Das. The next day, she
received her first written notice of
poor performance. Her attempts to
grieve the notice were unsuccessful.

She describes her July 22 notice as
alleging disruptive behavior "at a

meeting, which in fact, never took

place." She says her extended absence

50 (a)
after this notice included sick leave,
when she called her absences into the
office each morning.

Most of the remainder of her
affidavit adds little more detail. All
allegations of defamation and conspiracy
remain just that -- allegations. See
Ewald Aff. at paras. 54-63. She states
that she did not appeal her termination
through the state grievance procedure
because it did not provide for
discovery, statements under oath, or
binding effect on the appellee agency.
She adds that she did not understand
the procedure to be her exclusive forum
for redressing employment grievances,
and commenced instead her Labor
Department complaint.

Her response discusses the work
involving the VEFSF site at length.

Based on her attachments, it appears

that Das asked persons she supervised to

51(a)

give him a_ report on testing at the
site, also known as "Cheatham Annex,"
which they did on August 21, 1987. This
offers little new information beyond
that contained in a May 21, 1987 report
Ewald submitted to Das. According to a
July 22, 1988 memorandum Ewald wrote to
Bailey, Das asked the staff to produce
the August report because he had never
received the information from Ewald.

Ewald also submits a copy of an
August 24, 1987 memorandum to Das,
pointing out this duplication of
information and further expressing
concern that Das had appointed an
inexperienced person to write the grant
proposal for further testing and
clean-up of the facility.

In a July 22, 1988 memorandum to
Bailey, however, Ewald concedes having

"no first hand knowledge of actions

related to Cheatham Annex since ..

52 (a)
May 21, 1987."
III.

As discussed below, the Court finds
summary judgment for defendants
appropriate on the constitutional
claims. It would therefore dismiss those
claims, and then exercise its discretion
to dismiss the pendent state law

claims. See United Mine Workers of

America v. Gibbs, 383 U.S. 715 (1966).

Nonetheless, there are alternative
reasons advanced for dismissing one or
more parties and claims. These arguments
deserve brief consideration.

First, there is no proof that
defendant Winston had anything to do
with any alleged misconduct, other than
the role he concedes he may have had:
typing up memoranda or disciplinary
notices. He must be dismissed.

Second, conspiracy is not even

adequately pled. There certainly is not

53 (a)
the sort of persuasive and specific
information of conspiracy which would
take the conspiracy allegations beyond
summary judgment. See, e.g., Lombard’s

Inc. v. Prince Mfg., Inc., 753 F.2d 974

(11th Cir. 1985), cert. denied, 474 U.S.

1082 (1985); Davis v. Sprouse, 405 F.
Supp. 45, 46 (E.D. Va. 1975); Spidle v.

Commonwealth of Pa., 660 F. Supp. 941,

945-46 (M.D. Pa. 1987), aff’d, 888 F.2d
1385 (3d Cir. 1989); see also First

Nat’l Bank of Ariz. v. Cities Serv. Co.,

391 U.S. 253, 287-88 (1968) (summary
judgment proper where plaintiff fails to

offer probative evidence of

conspiracy); Coverdell v. Department of
Social & Health Servs., 834 F.2d 758,

769 (9th Cir. 1987) ("Even in a civil
rights action, plaintiff may not
survive a motion for summary judgment

without offering some evidence in

support of her claim.") (citations

54 (a)
omitted). Furthermore, the

intracorporate conspiracy doctrine

applies here. E.g., Saigh v. Matsushita

Elec. Corp. of America, 676 F. Supp.

1332, 1341-43 (E.D. Va. 1987).
Third, the parties’ dispute about
the applicability of Bivens to this case
is unwarranted. Bivens stands for the
proposition that parties may bring
Claims for damages directly under the
constitution for injuries caused by
federal actors, absent certain "special
factors counselling hesitation." See
Bivens, 403 U.S. at 389, 396.
Defendants argue for dismissal
based on the alleged presence of
"Special factors," but concentrate in
any case on the merits of the
constitutional claims. Construing this
complaint as one under 42 U.S.C. §§
1983, 1985 and 1988 would not prejudice

their argument, would not prejudice

55 (a)
plaintiff, and would comport with the
general policy of reading pro se n6
complaints liberally. This action
certainly falls within the parameters of
the civil rights laws. n7

Fourth, even if the Court were not
to dismiss both federal claims, the
pendent emotional distress claim is
barred by the Worker’s Compensation Act.
Haigh, 676 F. Supp. at 1354; cf. Va.
Code Ann. @ 65.1-3 (Commonwealth an
employer for purposes of act).

Fifth, Virginia has consistently
applied the one-year "catchall" statute
of limitations of Virginia Code §
8.01-248 to defamation actions.
Morrissey v. William Morrow & Co., 739
F.2d 962, 967 (4th Cir. 1984), cert.
denied, 469 U.S. 1216 (1985). There is
no evidence that the defendants

republished any allegedly defamatory

statements after Ewald was fired in

56 (a)
August 1988, except perhaps in the

context of this litigation. See Watt v.

McKelvie, 219 Va. 645, 248 S.E.2d 826
(1978). Any defamation claims are thus
barred by the statute of limitations. n8
Finally, the DWM is clearly immune
under the eleventh amendment to the
constitution from liability for money
damages, as are its agents sued in

their official capacity. E.g., Will v.

Michigan Dep’t of State Police, 109 S.

Ct. 2304 (1989). But Ewald’s complaint
is against Bailey and Das in their
personal capacity. The eleventh
amendment is no bar to 42 U.S.C. § 1983
damages against officials in their
individual capacity for violations of
federal law. See Scheuer v. Rhodes, 416
U.S. 232, 238 (1974).

In sum, simple analysis makes clear

that: 1) DWM must be dismissed from this

action as immune from suit; 2) any

57 (a)
Claims based on a conspiracy theory
Should be dismissed; 3) defendant
Winston Evans should be dismissed
because there is no evidence that he
took part in any wrongdoing; 4) no claim
for intentional infliction of emotional
distress exists, because of the worker’s
compensation bar; and 5) any defamation

Claim is barred as untimely.

IV.
The constitutional claims deserve
Closer analysis.
First amendment claim
Ewald’s first amendment claim is

grounded on her reported allegations of

mismanagement. Nothing in the record
indicates she was disciplined or
terminated for her "association" with
any person, group, or set of ideas.

The first amendment protects the

right of public employees to comment as

58 (a)
citizens on matters of public concern.
See Connick v. Myers, 461 U.S. 138, 143

(1983); Pickering v. Board of Educ., 391
U.S. 563, 568 (1968).

Whether employee speech addresses
public concern is a matter of law, but
is determined by the "content, forn,
and context of a given statement, as
revealed by the whole record." Connick,
461 U.S. at 147-48 & n.7; accord Huang
Vv. ard _o overnors of the Univ. of
N.C., 902 F.2d 1134, 1140 & n.7 (4th
Cir. 1990).

Factors relevant to the inquiry
include: the motive and intended meaning
of the speaker, see Rankin v. McPherson,
107 S. Ct. 2891, 2895 n.4 (1987);
Connick, 461 U.S. at 147-48; public
interest in the subject of the speech,
which is presumed to be minimal where
the speech concerns only internal

employment practices, Rode v.

59 (a)
Dellarciprete, 845 F.2d 1195, 1201 (3a
Cir. 1988) (citing Connick, 461 U.S. at
148-49); and the general factual
background in which the statement
arose, including what prompted the
statement, see, e.g., Rankin, 107 S.
| Ct. at 2897-98 & nn.10-12; Rode, 845
F.2d at 1201-02.

The Fourth Circuit succinctly
stated the burdens and applicable law in
this area in Huang, supra.

First, Ewald bears the burden of
proving that she made statements related
to a matter of public concern. Huang,
902 F.2d at 1140. Her statements are not
a matter of public concern, to the
extent they reflect merely personal

complaints about her own employment

conditions. Id.; see, e.g., Johnson v.
Town of Elizabethtown, 800 F.2d 404,

406 (4th Cir. 1986) (long hours, length

of lunch breaks, and monitoring of

60 (a)
lunch breaks and vacation days not
matters of public concern).

Even if Ewald meets that burden,
first amendment protection attaches only
if her interest in the speech
“outweighs the employer’s interest in
effective and efficient fulfillment of
its responsibilities to the eubaie.*
Huang, 902 F.2d at 1140 n.7 (quoting
Connick, 461 U.S. at 150).

Second, Ewald must show deprivation
of some valuable benefit. Id. at 1140
“(citations omitted).

Third, the Fourth Circuit imposes a
"rigorous" causal relationship test:

It 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, inter alia, Givhan v.

W Cc ist., 439

U.S. 410, 417 (1979)).

61(a)

In reviewing a Summary judgment
adverse to the Plaintiff, then, the
Huang court stated that summary judgment
was improper only if the record reflects
that he made a statement On a matter of
public concern, that this expression was
the “but for" cause of his (allegedly
adverse] transfer, and that the transfer

deprived him of a valuable
benefit. Id.

The court affirmed the summary
judgment against pr. Huang where: 1) the
record contained little to support
Huang’s assertion that he made
allegations of misuse of funds; 2) much
time passed between his alleged
protected speech and his transfer; 3)
defendants had a substantial record of
Huang’s professional performance
difficulties and the deterioration in
his professional relations with peers,

culminating in a physical altercation

62 (a)
with another faculty member. Id. at
1140-41; see also Johnson, 800 F.2d at
406-07 (affirming JNOV on first
amendment jury verdict for plaintiff,
where defendant town commissioners
"testified uniformly that
incompatibility, which interfered with
smooth town administration, was the
reason for the discharge," and
overwhelming evidence was’ that
plaintiff was combative and difficult to
work with, despite officials’ knowledge
of plaintiff’s complaints about some
issues of public concern).

For summary judgment purposes, the
Court accepts that Ewald spoke on
matters of public concern at some time
before her discharge. The Court
nevertheless finds no material dispute
that such speech was not the "but for"

cause of the discharge.

Considering the record as a whole,

63 (a)
it is apparent that Ewald’s supervisors
had problems with her as early as the
fall of 1986. This was long before Ewald
even contends that she began complaining
about mismanagement of state and
federal funds.

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. Most notably, Ewald does not
deny that she threatened to erase a
federal grant package after one of her
disciplinary notices. She offers no
support for her contention that her
extended absence in August 1988 was for

sick leave.

Due Process

Defendants contend that the due

64 (a)
process claim is "frivolous" because the
state employee grievance procedure has
been held to afford constitutional due

process. Detweiler v. Virginia Dep’t of

Rehab. Servs., 705 F.2d 557, 560 (4th
Cir. 1983).

But Ewald correctly points out that
Detweiler has been limited since
Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532 (1985), as discussed in
Buschi v. Kirven, 775 F.2d 1240 (4th
Cir. 1985).

Detweiler remains valid as far as
it holds that Virginia’s statutes and
regulations regarding nonprobationary
public employees give those employees a
protected property right in employment.
Buschi, 775 F.2d at 1255 & n.7;
Detweiler, 705 F.2d at 559-60. But it is
abrogated in part by Loudermill’s
holding that such an employee is

entitled to "some kind of hearing"

65 (a)
before discharge. Buschi, 775 F.2d at
1255 (quoting Loudermill, 470 U.S. at
542-44).

The Fourth Circuit has emphasized,
however, that Loudermill requires
nothing more than: 1) an oral or written
notice of the charges, 2) a summary of
the employer’s evidence, and 3) an
opportunity to present her side of the
story. Id. (quoting Loudermill, 470
U.S. at 546).

The court held in Buschi that all
three requirements were met where the
defendant offered the discharged
employees an opportunity for individual
interviews, which they rejected, even
though he had also told them their
responses would not change his mind. See
id. at 1255-56.

The court later upheld against due
process challenge a dismissal where

defendant offered plaintiff several

66 (a)
previous chances to respond to
allegations of misconduct, even though
plaintiff never received a written
notice of all the charges against him
until after his meeting with the
defendant. Riccio v. County of Fairfax,
Va., 907 F.2d 1459, 1463-65 (4th Cir.
1990); see also Smith v. Wythe-Grayson
Reg’l]l Library Bd., 657 F. Supp. 1216,
1221 (W.D. Va. 1987) (Loudermill

satisfied where plaintiff refused to
discuss discharge in person but left
work in middle of day after leaving
written response, and previous
complaints had given her substantial
notice of charges, and opportunity to
respond); Leftwich v. Bevilacqua, 635 F.
Supp. 238, 241 (W.D. Va. 1986)
(defendant saw plaintiff, advised him of
decision based on prior complaints, and
plaintiff offered no explanation or

evidence on his behalf).

67 (a)

Here, the final termination notice
and attachment 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.

Ewald claims, however, that Das
immediately walked away after showing
her the written notice. Das’ affidavit
does not state that he asked Ewald for a
response, or waited any particular time
for a response.

In short, the first two prongs of
Loudermill seem clearly satisfied. The
third prong -- opportunity to explain or
question charges -- is more
problematic.

Based on the record and Fourth
Circuit law, however, the Court finds
that this prong is also satisfied. Ewald

received repeated disciplinary notices

68 (a)

and informal reminders of defendants’
expectations for her She refused to
give her acknowledging signature to any
of the last three formal notices,
although she concedes that each one was
presented to her.

Ewald also refused to resort to the
extensive post-termination procedures

established by Virginia law for state

employees. See Loudermill, 470 U.S. at
547 & n.12 (existence of post-
termination procedures relevant to
necessary scope of pre-termination
procedures).

Even the briefest of face-to-face
encounters satisfies due process in such
circumstances. Such an encounter
undoubtedly occurred here. Requiring
anything more would “intrude to an
unwarranted extent on the
[Commonwealth’s] interest in quickly

removing an unsatisfactory employee."

69 (a)

FINAL ORDER - April 22, 1991, Filed

For the reasons stated in the
accompanying memorandum, defendants’
motion for summary judgment is GRANTED,
plaintiff’s motion for relief is DENIED,
and judgment is ENTERED for defendants.

Plaintiff is reminded that this is

a final order subject to appeal, upon
notice filed within 30 days of the date
of this order as prescribed by the

Federal Rules of Appellate Procedure.

And it is SO ORDERED.

FN1 As discussed infra, the parties
dispute the applicability of Bivens.
The Court finds that irrelevant, when 42

U.S.C. §§ 1983 and 1985(3) clearly

70(a)
apply. Defendants acknowledge the
complaint could be construed to invoke
these statutes, and the arguments on
the merits of the claims remain the
same.

FN2 This discussion excludes
redundant or conclusory allegations
regarding harm and state law claims.

FN3 Several federal environmental
statutes have “employee protection"
clauses which ban discrimination
against or firing of employees for
"“whistleblowing" or filing of suit
regarding administration or enforcement
of the statutes. They authorize the
aggrieved employee to bring an
administrative claim with the Labor
Department, which may order rehiring and
reinstatement plus back pay, if the
claim is upheld. The department’s orders

are subject to judicial review. See,

e.g., 42 U.S.C. § 9610; 42 U.S.C. §

71(a)
6971.

FN4 A later notice for similar
behavior was withdrawn, based on Ewald’s
offer of evidence that she was not late
on the date in question.

FNS But see Fed.R.Evid. 803(8) (C)
(reports of public agencies offering
factual findings from investigation made
pursuant to authority granted by law not
hearsay). The Court finds that the
record in this case supports its ruling,
even if this report is entirely ignored.

FN6 Plaintiff admits to having a
law degree, however, and has
demonstrated competence in oral
advocacy and legal writing and analysis.
These factors are among those that
persuade the Court to deny the
plaintiff’s "Emergency Motion for Relief
from Pretrial Order," filed the day

before hearing on the summary judgment

motion, and 15 days before the scheduled

72 (a)
trial date.

The motion and brief demonstrate
Ewald’s awareness of the very rules and
time limits she complains of. Plaintiff
has repeatedly attempted to delay this
case, and was reminded in Court of her
obligations to prosecute her case, and
to respond to the motions against her.
Her only response has been to seek
further delay. She has had nearly eight
months since filing her complaint to
offer any other person’s testimony or
affidavit to corroborate her material
allegations. She has not done so.

FN7 Defendants’ argument as to
Bivens is not persuasive, in any case.
They state that the federal statutes
described supra note 3 are comparable to
the federal administrative schemes in
Schweiker v. Chilicky, 108 S. Ct. 2460
(1988) and Bush v. Lucas, 462 U.S. 367

(1983). They are not.

73 (a)

Schweiker held that the intricate
administrative scheme for appeal of
Social Security Disability Act decisions
evinced the type of "special factor"
counseling against a Bivens remedy for
alleged due process violations arising
from the wrongful withholding of
benefits. Schweiker, 108 S. Ct. at
2468-71. In Bush, the Court refused to
permit a Bivens action for deprivation
of first amendment rights by a federal
employer, in light of the complex and
comprehensive nature of the federal
civil service system, which had
developed over many years. See Bush,
462 U.S. at 388-90.

The “whistleblower protection" laws
here are fairly new and simple, and do
not permit damages besides back pay. The
Court knows of no other court which has
accepted the argument defendants make

here. -

EEK Ls eee

74 (a)
FN8 Defendants did plead

limitations as an affirmative defense in

their answer.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1956%3A1. Public record. Not legal advice.