Petition for Writ of Certiorari — Bongiovanni v. San Filippo

Supreme Court, us.

No. \7 FILE p

94 872 NOV 1 499

IN THE QEFICE OE ThE

Supreme Court of the Hnited ‘States

OCTOBER TERM, 1994

>_>

MICHAEL BONGIOVANNI, ANTHONY S. CICATIELLO,

ADRIENNE S. ANDERSON, DONALD M. DICKERSON,

FLOYD H. BRAGG, NORMAN REITMAN, individually and as

members of the Board of Governors, and RUTGERS, THE

STATE UNIVERSITY, ne

Petitioners,

Vo

JOSEPH SAN FILIPPO, JR.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

JOHN J. PEIRANO*

LINDA B. CELAURO

VIMAL K. SHAH

CARPENTER, BENNETT & MORRISSEY

Three Gateway Center

100 Mulberry Street

Newark, New Jersey 07102

(201) 622-7711

* Counsel of Record for Petitioners

November 1994

7 ot

i

QUESTIONS PRESENTED

1. Whether a public employee’s petition, like speech, must

involve a matter of public concern to invoke First Amend-

ment protection against discharge from public employment.

2. Whether the failure to “tread with a certain amount of

care” is an insufficient degree of culpability to make a gov-

ernmental entity liable under 42 U.S.C. § 1983 for the uncon-

stitutional act of its nondecisionmaking subordinate.

3. Whether a First Amendment retaliatory discharge claim

under 42 U.S.C. § 1983 requires a public employee to show

that a public employer decisionmaker acted with purposeful

intent to retaliate against him for his exercise of First Amend-

ment rights.

ii

PARTIES TO THE PROCEEDING

All parties to the proceedings below are parties before this

Court and the names of all parties appear in the caption of

this case.

Pursuant to Rule 29.1 of the Rules of this Court, petitioner

Rutgers, The State University of New Jersey, states that it is

a body both corporate and politic, pursuant to N.J. Stat. Ann.

18A:65-2 (West 1989), and that it has no parent or subsidiary

corporations.

ili

TABLE OF CONTENTS

PAGE

Fk gy eG 6. yy |) i

PARTIES TO THE PROCEEDING ..................:. il

pr Be Nags 6s 59) Snr Vili

PETITION FOR WRIT OF CERTIORARI............. l

ace hase oaseca Kaen sos seadecnseee 2

SR er 2

CONSTITUTIONAL AND STATUTORY

hp Sue oD 8 a | > ES 2

prey i 6 vale ley | 9 oe \. | Sn 3

REASONS FOR GRANTING THE WRIT............. 10

I. The Third Circuit holding that a public

employee’s petition, unlike speech, need not

involve a matter of public concern to invoke

First Amendment protection against

discharge from employment is in direct

conflict with the decisions of seven other

courts of appeals, is plainly inconsistent with

the Court’s controlling principles established

by Connick v. Myers, 461 U.S. 138 (1983),

and McDonald v. Smith, 472 U.S. 479

(1985), involves an important First Amend-

ment question, and involves an important

issue affecting the public interest ........... 10

iV

PAGE

II. The Third Circuit holding that a govern-

mental decisionmaker’s failure to “tread

with a certain amount of care” is a sufficient

degree of culpability to hold a governmental

entity liable under 42 U.S.C. § 1983 for the

isolated unconstitutional acts of its non-

decisionmaking subordinate conflicts with

the Court’s precedent established in Monell

v. Department of Social Services, 436 U.S.

658 (1978), St. Louis v. Praprotnik, 485 US.

112 (1988), and Canton v. Harris, 489 U.S.

378 (1989), involves an important constitu-

tional question, and involves an important

issue affecting the public interest ........... 15

III. The Third Circuit holding that a First Amend-

ment retaliatory discharge claim under 42

U.S.C. § 1983 does not require a public

employee to show that a public employer

decisionmaker acted with purposeful intent

to retaliate against him for his exercise of

First Amendment rights conflicts with the

Court’s precedent established in Pickering v.

Board of Education, 391 U.S. 563 (1968),

Mount Healthy Board of Education v. Doyle,

429 U.S. 274 (1977), and Connick v. Myers,

461 U.S. 138 (1983), involves an important

constitutional question, and involves an

important issue affecting the public interest 21

CE ys in is eisai kta cea penee ches ten caens es 27

APPENDIX (separate volume)

Appendix A—

Judgment, United States Court of Appeals for

the Third Circuit (uly 21, 1996) «oo. ccnecscccccee. la

PAGE

Appendix B—

Opinion, United States Court of Appeals for the

Faire Corcunt (aly 21, 1994) cc cccsccccicccvisses: 3a

Appendix C—

Order, United States District Court for the District

of New Jersey (September 28, 1993).............. 54a

Appendix p—

Opinion, United States District Court for the

District of New Jersey (September 28, 1993) ..... 56a

Appendix E—

Order on Petition for Rehearing, United States

Court of Appeals for the Third Circuit (August

PP re er ney rrr ye hae PpOr eure 93a

Appendix F—

Opinion of the Board of Governors [of Rutgers,

The State University of New Jersey] in the Matter

of the Proceedings to Dismiss Professor Joseph

San Pipe, at. (lay 13, 19S) acs ic ccccccceceess 95a

Appendix G—

Report of the Hearing Before the Panel Selected

from the Rutgers University Senate in the Matter

of the Proceedings to Dismiss Professor Joseph

San Filippo, Jr. (December 21, 1987) ............. 149a

Appendix H—

Rutgers’ President’s Dismissal Charges Against

Professor San Filippo (October 1, 1986).......... 178a

vi

PAGE

Appendix I—

Faculty Committee’s Recommendation for

Dismissal Proceedings for Professor San Filippo

COCR as CIE aa ivndcdbeetcacncnanctentaneny 183a

Appendix J—

Rutgers’ Executive Vice President’s Recommen-

dation for Dismissal Proceedings for Professor

San Filippo (September 9, 1986) .................. 184a

Appendix K—

Rutgers’ Provost’s Recommendation for

Dismissal Proceedings for Professor San

a Ee ee eee 189a

Appendix L—

Rutgers’ Dean’s Recommendation for Dismissal

Proceedings for Professor San Filippo (February

Dy FEE 806 ss eT ea ca 192a

Appendix M—

Chemistry Professors’ Recommendation for

Dismissal Proceedings for Professor San Filippo

Crema SS, Te ailins caharneveicknbeceeinddets 193a

Appendix N—

Rutgers’ Dean’s Advice of Complaints to

Professor San Filippo (January 6, 1986) .......... 194a

Appendix O—

Complaint of Research Scholar Hetian Gao

(translation) (December 5, 1985).................. 199a

Vil

PAGE

Appendix P—

Complaint of Research Scholar Changhe Xiao

(translation) (December 5, 1985)..............-..- 212a

Appendix Q—

Complaint of Visiting Professor Yaru Zang

(translation) (November 23, 1985) ...............- 227a

Appendix R—

Complaint of Visiting Professor Yaru Zang

CPUS PROT BE, TOGO woes ccccssceccacewsssecccecss 23la

Appendix S—

Complaint of Research Scholar Changhe Xiao

(Cootober 27, 19BS) .....ccsccccccccscceccsescsecess 232a

Appendix T—

Rutgers University Dismissal Regulations

a hoo chad dea kanecs ndeectecsceidensecese’ 234a

Vill

TABLE OF AUTHORITIES

Cases PAGE

Altman v. Hurst, 734 F.2d 1240 (7th Cir.) cert. denied,

GOP Ui aes Pe Ce hb ndnvn sn Cadiecedinsctinesionns 12

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

DE bce hadackes cubetnhe ceive sendelsaiunesiben nates 12

Boyle v. Burke, 925 F.2d 497 (1st Cir. 1991) .......... 12

Canton v. Harris, 489 U.S. 378 (1989) ............ 15, 18-20

Connick v. Myers, 461 U.S. 138 (1983) .10, 11, 14, 21, 23, 24

Day v. South Park Independent School District, 768

F.2d 696 (Sth Cir. 1985), cert. denied, 474 U.S.

Se SE cs ka ahc cakes canedawawsaieeeeer eaenenks 12

Gearhart v. Thorne, 768 F.2d 1072 (9th Cir. 1985).... 12

Gray v. Lacke, 885 F.2d 399 (7th Cir. 1989) cert.

denied, 494 U.S. 1029 (1990)..................06- 12

Langley v. Adams County, 987 F.2d 1473 (10th Cir.

DED 6 66c duds sesnucteaveeskelaedietheneeaeen: 14

Martinez v. City of Opa-Locke, 971 F.2d 708 (11th

Ree: CN eGcckesavcebavcaGbauens anetinees nese 14

McDonald v. Smith, 472 U.S. 479 (1985) ........... 4, 10-13

Monell v. Department of Social Services, 436 U.S.

ee dioica andanivaows canna ereuns sees 15-17, 20, 21

Mount Healthy Board of Education v. Doyle, 429

Rae eee ROPE ER wae cin eue suas e8ass sb Vkbsnses saevks 21, 23

Oklahoma City v. Tuttle, 471 U.S. 808 (1985)..... 16, 17, 20

Patteson v. Johnson, 721 F.2d 228 (8th Cir. 1983) .... 14

——

ix

PAGE

Perry v. Sindermann, 408 U.S. 593 (1972) .....-.-.+++ 14

Phares v. Gustafsson, 856 F. 2d 1003 (7th Cir. 1988) . 12

Pickering v. Board of Education, 391 U.S. 563

COBY. ns kvcnccrdestcdvdvesscapnadsincendecesssees 10, 21-23

Piesco v. City of New York,, 933 F.2d 1149 (2d Cir.),

cert. denied, 112 ee. lS ere 14

Rathjen v. Litchfield, 878 F.2d 836 (Sth Cir. 1989).... 11

Reeves v. Claiborne County Bd. of Ed., 828 F.2d 1096

bt, A” Se f2 Beer ee EEE EE Eee 14

Renfroe v. Kirkpatrick, 722 F.2d 714 (11th Cir.), cert.

denied, 469 U.S. 823 (1984) .........-. cece ee eee 12

Rice v. Ohio Dept. of Transportation, 887 F.2d 716

(6th Cir. 1989), vacated on other grounds, 497

of & 22. eer rer re rr rr rrr 12

Rizzo v. Goode, 423 U.S. 362 (1976) .........-.2eee0e- 20

Schalk v. Gallemore, 906 F.2d 491 (10th Cir. 1990)... 12

St. Louis v. Praprotnik, 485 U.S. 112 (1988)...... 15. 37, 18

Waters v. Churchill, _ U.S. __, ___ S. Ct. ___, 128

ee: Se) eeerrrrrrre rere rrr rieee 13, 24, 25

Wayte v. United States, 470 if Be €¢. |) ee 22, 23

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

1049 (2d Cir.), cert. denied, 114 S. Ct. 185

CRD Tih os ons Sd ewe ercerensnnesetanncducessncersusss 1]

Yatvin v. Madison Metropolitan School District, 840

F.2d 412 (7th Cir. 1988) ............ eee ee rece nee: 12

Constitutional Provisions

First Amendment to United States Constitution ...... passim

Fourteenth Amendment to United States Constitution 3

Statutes

y RR A whe Be |) nee ere oo irulne Mooi ate anes 2

ee i EE os dnces dues dcewsaveses 3-5, 15-17, 19, 20, 26

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

No.

ie

MICHAEL BONGIOVANNI, ANTHONY S. CICATIELLO,

ADRIENNE S. ANDERSON, DONALD M. DICKERSON,

FLOYD H. BRAGG, NORMAN REITMAN, individually and as

members of the Board of Governors, and RUTGERS, THE

STATE UNIVERSITY,

Petitioners,

pene

JOSEPH SAN FILIPPO, JR.,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_

PETITION FOR WRIT OF CERTIORARI

Petitioners, Michael Bongiovanni, Anthony S. Cicatiello,

Adrienne S. Anderson, Donald M. Dickerson, Floyd H. Bragg,

and Norman Reitman, individually and as members of the

Board of Governors of Rutgers, The State University, and

Rutgers, The State University of New Jersey, respectfully

request that the Court issue a writ of certiorari to review the

judgment of the United States Court of Appeals for the Third

Circuit entered on July 21, 1994.

OPINIONS BELOW

The opinion of the United States District Court for the Dis-

trict of New Jersey is not reported (App. 56).' The opinion of

the United States Court of Appeals for the Third Circuit,

issued July 21, 1994, is reported at 30 F.3d 424 (App. 3). The

order of the United States Court of Appeals for the Third Cir-

cuit, entered August 18, 1994, denying a petition for rehear-

ing and suggestion for rehearing in banc, but which three

Circuit Judges would have granted, is not reported (App. 93).

JURISDICTION

The judgment of the United States Court of Appeals for the

Third Circuit sought to be reviewed was entered July 21,

1994, the same date its opinion was issued (App. 1, 3).

A timely petition for rehearing and suggestion for rehear-

ing in banc, filed August 3, 1994, was denied by the United

States Court of Appeals for the Third Circuit by an order

entered August 18, 1994 (App. 93).

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States Constitution

provides:

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

“App.” refers to the Appendix to the Petition. “A” refers to the

Appendix filed with the Third Circuit. “SA” refers to the Supplemental

Appendix filed with the Third Circuit.

right of the people peaceably to assemble, and to petition

the Government for a redress of grievances.

The Fourteenth Amendment to the United States Constitu-

tion provides, in relevant part:

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 pro-

tection of the laws.

The Congress shall have power to enforce, by appro-

priate legislation, the provisions of this article.

42 U.S.C. § 1983 provides, in relevant part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory or

the District of Columbia, subjects, or causes to be sub-

jected, any citizen of the United States or other person

within the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the Consti-

tution and the laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper pro-

ceedings forredress. .. .

STATEMENT OF THE CASE

A. Proceedings Below

Respondent Joseph San Filippo, Jr. (“Dr. San Filippo”) was

a tenured chemistry professor at petitioner Rutgers, The State

University of New Jersey (“Rutgers”), until he was dismissed

for cause on May 13, 1988 by Rutgers’ Board of Governors

(the “Board”), six former members of which are petitioners

herein (A33 to 35 99 2 to 9; A45 to 46 ¥ 22). Dr. San Filippo

instituted this suit in the United States District Court for the

District of New Jersey against Rutgers and the Board mem-

bers who voted in favor of his dismissal, under 42 U.S.C.

§ 1983 and state law, alleging the dismissal violated his

speech, petition, equal protection, and due process rights

under the United States and New Jersey Constitutions, and

violated his common law contract rights (A33 to 51).

The district court granted complete summary judgment to

Rutgers and the Board members, determining as to the First

Amendment speech and petition claims: (1) Dr. San Filippo’s

grievances and lawsuits did not involve matters of public con-

cern and, thus, were not protected activity under the First

Amendment petition clause (App. 73-83); (2) Dr. San Fil-

ippo’s alleged speech involved matters of public concern and,

thus, was protected activity under the First Amendment

speech clause (App. 83-84); (3) Dr. San Filippo could estab-

lish a causal nexus between his protected speech and the

Board’s dismissal of him by a mere showing of a temporal

proximity between the speech and the dismissal (App. 84-87);

and (4) Rutgers showed that Dr. San Filippo was dismissed

for the nine incidents of misconduct, detailed in the Board’s

decision, which were completely unrelated to speech, and Dr.

San Filippo could not establish that the articulated reasons

were pretextual (App. 87-91).

The Court of Appeals for the Third Circuit vacated the dis-

trict court’s summary judgment grant on the First Amendment

petition and speech claims and remanded for further pro-

ceedings. First, contrary to seven other courts of appeals, two

members of the panel determined that a public employee’s

petition need not involve a matter of public concern to state

a First Amendment retaliatory discharge claim under 42

U.S.C. § 1983 (App. 21-39). Circuit Judge Becker, dissenting

on this issue, would have followed “the reasoning of the other

circuits. . . and the inexorable logic of McDonald v. Smith,

472 U.S. 479 (1985)” (App. 50-53). Second, the court of

appeals held that “deliberate indifference” sufficient to

impose 42 U.S.C. § 1983 entity liability upon Rutgers could

be established by a showing that the decisionmaking Board,

even though it made its own dismissal decision on the basis of

independent fact hearings and findings, failed to “tread with

a certain amount of care” as to Dr. San Filippo’s assertions

that his nondecisionmaking chemistry professor colleagues

were motivated by his First Amendment activities in their rec-

ommendation that dismissal proceedings be instituted

(App. 6, 43-44, 44n.26). Third, the court of appeals held that

the degree of culpability necessary to establish a First

Amendment retaliatory discharge claim against the deci-

sionmaking Board under 42 U.S.C. § 1983 is deliberate indif-

ference, defined as a failure to “tread with a certain amount of

care” —which could be established by a showing that the deci-

sionmaking Board, even though it made its own dismissal

decision on the basis of independent fact hearings and find-

ings, failed to “tread with a certain amount of care” as to Dr.

San Filippo’s assertions that his nondecisionmaking chemistry

department colleagues were motivated by his First Amend-

ment activities in their recommendation that dismissal pro-

ceedings bc instituted (App. 6, 43-44, 44n.26).

Following the issuance of the Third Circuit's panel deci-

sion, Rutgers and the Board members filed a petition for

rehearing and suggestion for rehearing in banc, regarding the

novel legal determinations made by the panel, which are con-

trary to this Court’s precedent, the Third Circuit's precedent,

and to the law established in the majority of the other circuits.

Although the petition for rehearing was denied, Circuit

Judges Becker, Hutchinson, and Scirica would have granted

a rehearing (App. 94).

B. Facts

In the Fall of 1985, a janitor at Rutgers expressed grave

concern to a Rutgers officer that Dr. San Filippo was mis-

treating visiting Chinese scholars (A129). A preliminary

investigation to determine whether there was any basis for the

janitor’s report and any cause for concern resulted in two

research scholars, Changhe Xiao and Hetian Gao, and one

professor, Yaru Zang, all visiting from the People’s Republic

of China at Dr. San Filippo’s invitation and working in Dr.

San Filippo’s laboratories at Rutgers, coming forward with

their complaints about mistreatment by Dr. San Filippo

(App. 199-233, A129-130, 345-360). They had not come for-

ward until the janitor’s report prompted them, due to their

fear of Dr. San Filippo (App. 231; A359-360).

The authenticity of a letter of recommendation purportedly

emanating from a Chinese university, and the propriety of Dr.

San Filippo’s having hired Peng Zhou in 1984, as a “post-

doctoral” fellow funded by an NSF grant, were already under

review in early 1985, by a Rutgers graduate program and Dr.

San Filippo’s department, upon Dr. San Filippo’s submission

of application materials for Peng Zhou for admission to grad-

uate school to pursue a doctoral degree (A338-342, 388-399,

422-428, 451-452, 486, 496-500, 502, 569, 578).

After the complaints of the visiting Chinese scholars and

professor were brought to Rutgers’ attention in the Fall of

1985, other questionable conduct of Dr. San Filippo was

brought to Rutgers’ attention: (1) a Rutgers stockroom clerk

informed Rutgers of Dr. San Filippo’s abusive treatment of

Zong Ping Chen, a graduate student and Dr. San Filippo’s

research advisee, while Ms. Chen was teaching a class in

March 1986 (A369-387, 401-404, 571, 573, 575-576; SA3-5);

(2) a Rutgers technician informed Rutgers, in February 1986,

through testimony in a lawsuit, that Dr. San Filippo had

authorized payment of wages for time not worked (A165-167,

169-174); (3) Rutgers was informed, by the submission of

time reports for the payment of wages by Cong Yuan Guo,

Zhen-min He, and Peng Zhou in January 1986, that Dr. San

Filippo had permitted unauthorized persons to work in his

Rutgers laboratories (A361-364, 405-411, 548, 550).

7

After the initial allegations of Dr. San Filippo’s mistreat-

ment of visiting Chinese scholars came to light, Dr. San Fil-

ippo’s dean told him and his union counsellor of the

allegations at a meeting in November 1985 (A471). Dr. San

Filippo generally denied everything, but demanded the alle-

gations be reduced to writing (A126, 178 to 181, 471). The

dean obliged with a January 1986 letter to which Dr. San Fil-

ippo responded in writing, admitting many of the facts, but

denying that what he had done was wrong (App. 194; A475-

488).

Pursuant to Rutgers’ regulations (App. 236-237), recom-

mendations as to whether dismissal proceedings should be

commenced was obtained from two separate groups of Dr.

San Filippo’s faculty peers and three academic officers of the

University (App. 183-193) before formal charges were made

by Rutgers’ President (App. 178-182). The regulations

expressly provide that such recommendations are to be made

“without discrimination because of . . . views on any sub-

ject” (App. 237). The regulations also provide: “[T]he faculty

member, as a private citizen, enjoys the same freedoms of

speech and expression as any private citizen and shall be free

from institutional discipline in the exercise of those rights.”

(App. 236).

Pursuant to Rutgers’ regulations, Dr. San Filippo was

afforded a hearing, which lasted 46 days, before a hearing

panel of five tenured faculty peers, selected by lot and subject

to challenges for cause and peremptory challenges (App. 237-

238). No member of the hearing panel was from the chemistry

department and no member of the hearing panel is alleged by

Dr. San Filippo in this lawsuit to have retaliatory motives

(App. 44, 100). Dr. San Filippo was represented at the hear-

ing by attorneys of his own choosing, whose fees were paid

by Rutgers (App. 238). Thereafter, the hearing panel rendered

a 44-page written decision setting forth its fact-findings and

recommending Dr. San Filippo’s dismissal (App. 149-177).

The decisionmaking Board considered, in rendering its 60-

page decision: (1) the record of 46 days of hearings before the

hearing panel, which consisted of 5800 transcript pages of

testimony of 33 witnesses and over 400 exhibits; (2) the hear-

ing panel report; (3) a 417-page written brief and oral argu-

ment by Dr. San Filippo’s attorneys; and (4) an “amicus” brief

by Dr. San Filippo’s union (App. 101-106).

Not one of the recommendations for the institution of dis-

missal proceedings, the President’s charges, or the hearing

panel decision, nor the Board’s opinion itself, stated or

implied that dismissal proceedings should be commenced, or

Dr. San Filippo should be dismissed, for anything other than

the misconduct expressly alleged, charged, and proven (i.e.,

not one reference was made to Dr. San Filippo’s alleged First

Amendment activities) (App. 95-193).

As stated by the Board in its 60-page decision, the Board

decided to dismiss Dr. San Filippo for the misconduct alleged,

charged, and proven, as found by the five-member faculty

hearing panel after 46 days of hearing: (1) compelling visit-

ing Chinese research scholars, Mr. Xiao and Mr. Gao, to per-

form gardening and cleaning work at his home; (2) failing to

arrange for health benefits for Mr. Xiao despite his promise to

do so and his deduction of money from Mr. Xiao’s salary for

the express purpose of purchasing health benefits; (3) threat-

ening and harassing Mr. Xiao, Mr. Gao, and other visiting

Chinese scholars; (4) treating a Chinese teaching assistant and

graduate student, Ms. Chen, in an unprofessional, threatening,

and abusive manner; (5) directing the uninsured Mr. Xiao,

injured when he fell from a ladder while cleaning windows at

Dr. San Filippo’s house, to permit himself to be identified as

the insured Mr. Zhou to obtain treatment at a hospital; (6)

authorizing a false time report by a subordinate employee to

permit wage payment for time not worked; (7) hiring Mr.

Zhou as a postdoctoral fellow to be paid on a National Sci-

ence Foundation grant while knowing Mr. Zhou did not have

a doctoral degree; (8) submitting to a graduate school admis-

9

sions office, on behalf of Mr. Zhou, a letter appearing to be,

but which Dr. San Filippo knew in fact was not, prepared and

signed by one Liu Guozhi of Changchun Institute; and (9)

permitting three Chinese graduate students, who were not

authorized to do so, to work in his Rutgers laboratories

(App. 95-148).

During the hearings, Dr. San Filippo introduced evidence of

his alleged First Amendment activities (speech, grievance,

lawsuits), evidence that two other faculty members had had

students help at their homes, and evidence of his department

colleagues’ alleged personal vendetta against him. Dr. San

Filippo’s attorney argued to the Board that such evidence

demonstrated that his department colleagues’ recommendation

of dismissal proceedings (App. 193) was improperly moti-

vated. This contention was addressed by the Board’s decision

as involving “factual issues which involve. . . determina-

tions of credibility (including motives for testifying) and rel-

evance,” which “determinations are the responsibility of the

[hearing] Panel,” and the “Panel neither shirked its respon-

sibility in this regard nor made findings which lacked the nec-

essary factual predicates” (App. 132).

Dr. San Filippo’s First Amendment claim in this lawsuit is

that the recommendation by his chemistry department col-

leagues that dismissal proceedings be instituted was moti-

vated by his alleged First Amendment activities (speech,

grievance, lawsuits) and that this alleged unconstitutional

motivation should be imputed to both Rutgers and the deci-

sionmaking Board in its decision to dismiss him.

10

REASONS FOR GRANTING THE WRIT

I. The Third Circuit holding that a public employee’s

petition, unlike speech, need not involve a matter of

public concern to invoke First Amendment protection

against discharge from employment is in direct con-

flict with the decisions of seven other courts of

appeals, is plainly inconsistent with the Court’s con-

trolling principles established by Connick v. Myers,

461 U.S. 138 (1983), and McDonald v. Smith, 472 U.S.

479 (1985), involves an important First Amendment

question, and involves an important issue affecting

the public interest.

The Court has long held that a public employee cannot state

a First Amendment retaliatory discharge claim on the basis of

speech that does not involve a matter of public concern. Con-

nick v. Myers, 461 U.S. 138, 143-147 (1983), citing Pickering

v. Board of Education, 391 U.S. 563 (1968), its antecedents,

and its progeny. Only when a public employee speaks as a cit-

izen on matters of public concern and not as an employee on

matters of personal interest does his or her activity rise to the

level of protected First Amendment activity. Connick, 461

U.S. at 147.

The repeated emphasis in Pickering [v. Board of Edu-

cation, 391 U.S. 563 (1968)] on the right of a public

employee “as a citizen, in commenting upon matters of

public concern,” was not accidental. This language reit-

erated in all of Pickering’s progeny, reflects both the his-

torical evolvement of the rights of public employees, and

the common-sense realization that government offices

could not function if every employment decision became

a constitutional matter.

461 U.S. at 143.

Our responsibility is to ensure that citizens are not

deprived of fundamental rights by virtue of working for

11

the government. This does not require a grant of immu-

nity for employee grievances not afforded by the First

Amendment to those who do not work for the State.

461 U.S. at 147.

When employee expression cannot be fairly considered

as relating to any matter of political, social, or other con-

cern to the community, government officials should

enjoy wide latitude in managing their offices, without

intrusive oversight by the judiciary in the name of the

First Amendment.

461 US. at 146.

The Court held, in McDonald v. Smith, 472 U.S. 479, 485

(1985), that unprotected speech is not transformed into pro-

tected First Amendment activity under the Petition Clause

simply by clothing the speech in a petition to the government.

The rights and guarantees under the Free Speech Clause and

the Petition Clause of the First Amendment are “cut from the

same cloth” and “are inseparable,” the Petition Clause con-

ferring no “special First Amendment status.” 472 U.S. at 482,

485. Thus, “there is no sound basis” for granting greater First

Amendment protection to a petition—whether a letter to the

President, as in McDonald, or a lawsuit complaint, as here—

than to “other First Amendment expressions.” 472 U:S. at

484-85.

The eight other courts of appeals that have addressed the

issue—seven by decision, one by dictum—have linked the

controlling principles of Connick and McDonald to conclude

that, like speech, a petition to the government, be it a letter or

grievance to the government employer or a lawsuit, must

involve a matter of public concern to constitute the protected

First Amendment activity necessary to establish a First

Amendment retaliatory discharge claim. White Plains Towing

Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir.), cert.

denied, 114S. Ct. 185 (1993); Rathjen v. Litchfield, 878 F.2d

12

836, 841-42 (Sth Cir. 1989); Day v. South Park Independent

School District, 768 F.2d 696, 699-703 (Sth Cir. 1985), cert.

denied, 474 U.S. 1101 (1986); Rice v. Ohio Dept. of Trans-

portation, 887 F.2d 716, 720-21 (6th Cir. 1989), vacated on

other grounds, 497 U.S. 1001 (1990); Gray v. Lacke, 885 F.2d

399, 442 (7th Cir. 1989), cert. denied, 494 U.S. 1029 (1990);

Beik v. Town of Minocqua, 858 F.2d 1258, 1261 (7th Cir.

1988);Phares v. Gustafsson, 856 F. 2d 1003, 1009 (7th Cir.

1988); Yatvin v. Madison Metropolitan School District, 840

F.2d 412, 418-20 (7th Cir. 1988); Altman v. Hurst, 734 F.2d

1240, 1243-44 and 1244n.10 (7th Cir.), cert. denied, 469 U.S.

982 (1984); Gearhart v. Thorne, 768 F.2d 1072, 1073 (9th Cir.

1985); Schalk v. Gallemore, 906 F.2d 491, 498 (10th Cir.

1990); Renfroe v. Kirkpatrick, 722 F.2d 714, 715 (11th Cir.),

cert. denied, 469 U.S. 823 (1984); and see Boyle v. Burke,

925 F.2d 497, 505-06 (1st Cir. 1991).

The Third Circuit heid that a public employee’s petition,

unlike speech, need not involve a matter of public concern to

invoke First Amendment protection against discharge from

employment. Thus, its decision stands directly in conflict

with these seven other courts of appeals as expressly stated by

the majority in the court’s opinion: “Recognizing that the

question is a difficult one, we find ourselves unable to sub-

scribe to the reasoning of our sister circuits” (App. 31). Fur-

ther, the majority made the unprecedented distinction between

a petition to the government that contemplates a response,

e.g., a lawsuit or a grievance, and one that does not, holding

the former a protected First Amendment activity, even if it

does not involve a matter of public concern, as long as it is

“non-sham” (App. 35-39). This distinction is contrary to the

Court’s consideration, in McDonald, 472 U.S. at 484-485, of .

lawsuits and letters to the President on equal footing as peti-

tions to the government.

Judge Becker’s dissenting opinion on this issue provides

good reason as to why this Court should review the decision

below:

13

I need not offer extended justification for my position,

for the majority has already done so when describing

these other circuits’ views at pages 19 to 33 of its opin-

ion. Although the majority then arrives at a conclusion in

contradistinction to its preceding analysis, the majority’s

rationale supporting its conclusion pales by comparison

with the reasoning of the other circuits and with the

inexorable logic of McDonald v. Smith, 472 U.S. 479

(1985).

In my view, the Supreme Court would be surprised to

learn that, although, as a result of “the nature of the gov-

ernment’s mission as employer,” a public employer (such

as Rutgers) can fire someone who “begins to say or do

things that detract from the agency’s effective operation”

so long as the speech is on a matter of private concern,

Waters v. Churchill, 62 U.S.L.W. 4397, 4401 (May 31,

1994) (quoted in Majority Typescript at 33), the gov-

ernment cannot fire the same individual if he or she

speaks after invoking a formal mechanism for the redress

of grievances (or speaks through that forum). Such an

interpretation of the Petition Clause, rather than making

that clause a “trap for the unwary” as the majority con-

tends would be the consequence of my interpretation of

the Clause, Majority Typescript at 35, is an invitation to

the wary to formulate their speech on matters of private

concern as a lawsuit or grievance in order to avoid being

disciplined. This would undermine the government’s

special role as an employer.

(App. 50-51).

The decision of a majority of the panel below also produces

the anomaly that lawsuits and grievances which do not

involve matters of public concern are protected First Amend-

ment activity sufficient to establish a First Amendment retal-

iatory discharge claim, but testimony given in connection

14

with such lawsuits and grievances is not protected First

Amendment activity unless such testimony involves matters

of public concern. Under the decisions of the Court and sev-

eral courts of appeals, testimony before a government fact-

finding body is a form of speech and, thus, protected First

Amendment activity for the purposes of a public employee’s

retaliatory discharge claim, only when it involves matters of

public concern. Perry v. Sindermann, 408 U.S. 593, 598

(1972) (holding that a teacher’s testimony before legislative

committees concerning the state’s education policies was pro-

tected speech under the First Amendment where it involved

matter of public concern). Accord Piesco v. City of New York,

933 F.2d 1149, 1156-57 (2d Cir.), cert. denied, 112 S. Ct. 331

(1991); Reeves v. Claiborne County Bd. of Ed., 828 F.2d

1096, 1100-01 (Sth Cir. 1987); Patteson v. Johnson, 721 F.2d

228, 232-33 (8th Cir. 1983); Langley v. Adams County, 987

F.2d 1473, 1478-79 (10th Cir. 1993); Martinez v. City of Opa-

Locke, 971 F.2d 708, 712 (11th Cir. 1992).

Left unreviewed, the Third Circuit decision is a harkening

bell to every public employee within the purview of the Third

Circuit—especially those whose employment performance is

questionable—to formulate every private concern as a

grievance or lawsuit in order to provide a First Amendment

shield against adverse employment action in the future. Nor

is this fear unjustified in view of the unprecedented statement

of the majority of the panel below: “The First Amendment’s

petition clause imposes upon the United States an obligation

to have at least some channel open for those who seek redress

for perceived grievances” (App. 35). Thus, the Third Circuit

decision ignores Connick’s warning that “one employee’s dis-

satisfaction” with an adverse personnel decision should not

“plant the seed of a constitutional case.” 461 U.S. at 148-49.

If this reasoning is permitted to stand, every public

employer in the Third Circuit contemplating the discharge of

a public employee who has previously filed a grievance or

lawsuit regarding any conceivable matter of private concern

15

will now have to balance the monetary cost to the public of a

costly, full-scale defense of the First Amendment retaliatory

discharge claim that almost certainly will follow against the

monetary cost and disservice to the public of retaining an

employee whose nonprotected misconduct or employment

performance warrants termination, even in cases where that

misconduct has been found to cause harm to others.

II. The Third Circuit holding that a governmental deci-

sionmaker’s failure to “tread with a certain amount

of care” is a sufficient degree of culpability to hold a

governmental entity liable under 42 U.S.C. § 1983 for

the isolated unconstitutional acts of its nondecision-

making subordinate conflicts with the Court’s prece-

dent established in Monell v. Department of Social

Services, 436 U.S. 658 (1978), St. Louis v. Praprotnik,

485 U.S. 112 (1988), and Canton v. Harris, 489 U.S.

378 (1989), involves an important constitutional ques-

tion, and involves an important issue affecting the

public interest.

The Third Circuit decision holds that Rutgers is liable

under 42 U.S.C. § 1983 if its policymaking, decisionmaking

Board failed to “tread with a certain amount of care” as to Dr.

San Filippo’s assertions that his department colleagues—non-

policymaking and nondecisionmaking subordinates—were

motivated by his First Amendment activities in recommend-

ing that dismissal proceedings be commenced (App. 6, 43-44,

44n.26). Although the Third Circuit purported to apply the

“deliberate indifference” standard of fault established by the

Court in Canton v. Harris, 489 U.S. 378 (1989), its use of the

phrase failure to “tread with a certain amount of care”

describes instead a simple negligence standard.

The Third Circuit decision both removes the causation and

lessens the degree of fault necessary to hold a public entity

liable for the alleged unconstitutional acts of its subordinates,

contrary to the Court’s precedent.

eee

16

In Monell v. Department of Social Services, 436 U.S. 658

(1978), the Court held that a governmental entity can be

found liable under 42 U.S.C. § 1983 only when that entity

itself causes the constitutional violation at issue.

[I]t is when “execution of a government’s policy or cus-

tom. . . inflicts the injury” that the government as an

entity is responsible under § 1983.

436 U.S. at 694. In so holding, the Court expressly rejected the

respondeat superior theory of liability for holding govern-

mental entities liable for the unconstitutional actions of its non-

policymaking employees. 436 U.S. at 694-95.

In developing the contours of governmental liability under

§ 1983 in subsequent cases, the Court consistently has

adhered to Monell’s fundamental premise—that liability may

be imposed on a governmental entity only for injuries caused

by a government policy or custom. Oklahoma City v. Tuttle,

471 U.S. 808 (1985). In Tuttle, the Court held that a munici-

pality could not be held liable for a single isolated incident of

excessive force by a city police officer because there was no

proof that the incident was caused by a municipal policy or

custom.’ 471 U.S. at 823-25. In so holding, the Court rejected

2

In Tuttle, the Court distinguished cases where a governmental

entity could be held liable under § 1983 for an isolated unconstitutional

act. In those cases, the unconstitutional act was an application of an

unconstitutional policy which clearly mandated that application. 471 U.S.

at 822. As examples, the Court compared Monell, where the policy at

issue, by its terms, unconstitutionally compelled pregnant employees to

take mandatory leaves of absence before such leaves were required for

medical reasons, with Tuttle, where the policy at issue was the training

of police officers which did not mandate the use of excessive force. 471

U.S. at 822-23. The Court stated that the causal link between the policy

and the unconstitutional act in Tuttle (a shooting by a police officer) was

far more nebulous and much further removed than the policy and act in

Monell, and thus, the governmental entity in Tuttle could not be held

liable for the single act, like the governmental entity in Monell. 471 U.S.

at 822-24.

Here as in Tuttle, there is no express policy that mandates retaliation

against persons who exercise First Amendment rights. To the contrary,

17

the trial court’s jury instruction from which the jury could

infer from the single use of excessive force that the action

was attributable to inadequate training or supervision amount-

ing to deliberate indifference chargeable to the entity.

We think this inference unwarranted; first in its assump-

tion that the act at issue arose from inadequate training,

and second, in its further assumption concerning that

state of mind of the municipal policymakers. . . . Proof

of a single incident of unconstitutional activity is not

sufficient to impose liability under Monell, unless proof

of the incident includes proof that it was caused by an

existing, unconstitutional, policy which policy can be

attributed to a municipal policymaker.

471 U.S. at 821, 824. Thus, only from a series of past uncon-

stitutional acts by nonpolicymaking subordinates is it per-

missible to infer that the entity was aware of such conduct and,

through deliberate indifference, condoned and authorized

future unconstitutional acts by its subordinates.

In St. Louis v. Praprotnik, 485 U.S. 112 (1988), the Court

applied Monell to a 42 U.S.C. § 1983 action where the plain-

tiff alleged that his supervisors effected a job transfer and lay-

off in retaliation for his exercise of First Amendment rights.

The Court held that, even if the plaintiff’s allegations were

true, the municipality could not be held liable under § 1983

unless its policy or custom caused the retaliatory actions

through either (1) having a promulgated or articulated policy

of retaliation or a practice of such retaliation, (2) authorizing

the supervisors who transferred him to establish city policy

Rutgers’ regulations prohibit those making recommendations for the

institution of dismissal proceedings from discriminating on the basis of

“views on any subject,” and further expressly provide that: “[T]he fac-

ulty member, as a private citizen, enjoys the same freedoms of speech

and expression as any private citizen and shall be free from institutional

discipline in the exercise of those rights.” (App. 236-237). Thus, like the

government entity in Turtle, Rutgers cannot be held liable for an isolated

unconstitutional act allegedly committed by its nonpolicymaking sub-

ordinates.

18

with respect to transfers and layoffs, (3) expressly approving

a policy statement of retaliation in which the supervisors cast

their decision regarding the plaintiff, or (4) a series of past

retaliatory actions by the supervisors which manifested an

unconstitutional “custom or usage.” 485 U.S. at 127-30. The

plaintiff, having proved none of these, could not prevail in

holding the city liable under § 1983. 485 U.S. at 129-30. The

Praprotnik Court held that only if the authorized policymaker

approved both the subordinate’s decision and the unconsti-

tutional basis for it could the entity be held liable. 485 U:S. at

127.

In Canton v. Harris, 489 U.S. 378, 385 (1989), the Court

continued to adhere to the view that a governmental entity is

only liable under § 1983 for unconstitutional acts it causes.

The “deliberate indifference” standard of causation that this

Court established in Canton provides that a governmental

entity may be held liable under § 1983 only if it is deliber-

ately indifferent to the constitutional rights of persons with

whom its employees come into contact and the deliberate

indifference actually causes the injury to those constitutional

rights. 489 U.S. at 388-90. To make clear the narrow scope of

governmental liability under this standard, the Court provided

two examples which illustrate that a governmental entity is

liable only when injury results because it ignored either a

widespread pattern of unconstitutional violations committed

by its employees or an obvious need to train its employees not

to violate constitutional rights at the outset:

For example, city policymakers know to a moral cer-

tainty that their police officers will be required to arrest

fleeing felons. The city has armed its officers with

firearms, in part to allow them to accomplish this task.

Thus, the need to train officers in the constitutional lim-

itations on the use of deadly force [citation omitted] can

be said to be “so obvious,” that failure to do so could

properly be characterized as “deliberate indifference” to

constitutional rights.

19

It could also be that the police, in exercising their dis-

cretion, so often violate constitutional rights that the

need for further training must have been plainly obvious

to the city policymakers, who, nevertheless, are “delib-

erately indifferent” to the need.

489 U.S. at 390n.10; see also 489 U.S. at 396-97 (O’Connor, J.,

concurring).

The Third Circuit has rendered a decision that Stands in

clear conflict with the foregoing precedents of the Court. The

Third Circuit has held that if any nondecisionmaking subor-

dinate had an unarticulated retaliatory motive in recom-

mending dismissal, the actual dismissal decision by the

decisionmaking Board, even though based on independent

fact findings after an evidentiary hearing by a separate hear-

ing panel whose members admittedly had no retaliatory

motive, is tainted thereby, if the decisionmaking Board did

not fulfill a duty to “tread with a certain amount of care” as to

Dr. San Filippo’s assertions of isolated unconstitutional acts

by nonpolicymaking subordinates. What is required to find

that a governmental entity did “tread with a certain amount of

care” is left undefined.

By so holding, the Third Circuit has created a new standard

of governmental liability, for which only negligence is

required and a causal relationship between the entity’s policy

or custom and the injury is not required. Its decision is in

direct conflict with this Court’s decisions requiring the

entity’s policy or custom to have caused the injury and requir-

ing a custom to be established by a showing of deliberate

indifference—not negligent indifference—to a@ pattern of con-

duct—not an isolated act—of nonpolicymaking subordinates.

The reasons that the Court stated in Canton for not per-

mitting entity liability under 42 U.S.C. § 1983 absent delib-

erate indifference and causation provide equal reason for not

permitting the Third Circuit decision to stand unreviewed:

20

To adopt lesser standards of fault and causation would

open municipalities to unprecedented liability under

§ 1983. In virtually every instance where a person has

had his or her constitutional rights violated by a city

employee, a § 1983 plaintiff will be able to point to

something the city “could have done” to prevent the

unfortunate incident. See Oklahoma City v. Tuttle, [471

U.S.] at 823 (opinion of Rehnquist, J.). Thus, permitting

cases against cities for their “failure to train” employees

to go forward under § 1983 on a lesser standard of fault

would result in de facto respondeat superior liability on

municipalities—a result we rejected in Monell, 436 U.S.

at 693-694. It would also engage the federal courts in an

endless exercise of second-guessing municipal employee-

training programs. This is an exercise we believe the

federal courts are ill suited to undertake, as well as one

that would implicate serious questions of federalism. Cf.

Rizzo v. Goode, 423 U.S. 362, 378-380 (1976).

489 US. at 391-92.

§ 1983 is not a “federal good government act” for munic-

ipalities. Rather it creates a federal cause of action

against persons, including municipalities, who deprive

citizens of the United States of their constitutional rights.

Sensitive to these concerns, the Court’s opinion cor-

rectly requires a high degree of fault on the part of city

officials before an omission that is not in itself uncon-

stitutional can support liability as a municipal policy

under Monell.

. . As the authors of the Ku Klux Klan Act them-

selves realized, the resources of local government are not

inexhaustible.

489 U.S. at 396, 400 (O’Connor, J., concurring).

21

III. The Third Circuit holding that a First Amendment

retaliatory discharge claim under 42 U.S.C. § 1983

does not require a public employee to show that a

public employer decisionmaker acted with purposeful

intent to retaliate against him for his exercise of First

Amendment rights conflicts with the Court’s prece-

dent established in Pickering v. Board of Education,

391 U.S. 563 (1968), Mount Healthy Board of Educa-

tion v. Doyle, 429 U.S. 274 (1977), and Connick vy.

Myers, 461 U.S. 138 (1983), involves an important

constitutional question, and involves an important

issue affecting the public interest.

The court of appeals below held that Dr. San Filippo could

establish his First Amendment retaliatory discharge claim

against the members of the decisionmaking Board by a show-

ing that the Board, in deciding to dismiss Dr. San Filippo on

the basis of independent fact-findings made after 46 days of

hearings before an independent hearing panel, failed to

“tread with a certain amount of care”’ as to Dr. San Fil-

ippo’s assertions to the Board that his department colleagues’

recommendation that dismissal proceedings commence was

motivated by Dr. San Filippo’s First Amendment activities

(App. 6, 44, 44n.26).

By so holding, the Third Circuit has thereby removed the

purposeful intent element from a First Amendment retaliatory

discharge claim and has substituted a negligence standard as

the degree of culpability. Its decision stands in direct conflict

with the Court’s precedent establishing purposeful intent by

the public employer decisionmaker to retaliate against the

public employee for his exercise of First Amendment rights

as the required degree of culpability.

In Pickering v. Board of Education, 391 U.S. 563 (1968),

the Court held that a public school board which stated that a

school teacher’s speech on matters of public concern was its

express reason for firing him, violated his First Amendment

22

rights. The simple rationale is that a public employee does not

forfeit his First Amendment rights as a citizen to speak on

matters of public concern by virtue of his public employment.

391 U.S. at 568. However, a public school board does not for-

feit its rights and responsibilities, as a government employer,

to promote “the efficiency of the public services it performs

through its employees.” 391 U.S. at 568. Pickering thus pro-

hibits a purposeful intent act: the dismissal of a public

employee as punishment or in retaliation for his exercise of

First Amendment rights. 391 U.S. at 563. Pickering does not

impose upon a public school board, as an employer making

employment decisions, a special duty to refrain from making

adverse employment decisions for reasons other than pro-

tected activity as to its employees who incidentally may have

engaged in First Amendment activities. Pickering does not

provide that employees who engage in First Amendment

activities are entitled to any different treatment or greater pro-

tection, as employees, than employees who have not engaged

in First Amendment activities. No duty of care is created by

Pickering.

Indeed, in a related context, the Court has held that the

government does not violate First Amendment or Equal Pro-

tection guarantees by selectively prosecuting those who have

engaged in wrongful conduct, even though such selective

prosecution may incidentally impact First Amendment free-

doms and the government is aware of that fact. Wayte v.

United States, 470 U.S. 598, 610-12 (1985). The Court held

that purposeful intent to prosecute for engaging in First

Amendment activities is required:

oe

Discriminatory purpose’. . .implies more than. . .

intent as awareness of consequences. It implies that the

decisionmaker. . . selected or reaffirmed a particular

course of action at least in part ‘because of,’ not merely

‘in spite of,’ its adverse effects upon an identifiable

group.” ... In the present case, petitioner has not

shown that the Government prosecuted him because of

23

his protest activities. Absent such a showing, his claim

of selective prosecution fails.

470 U.S. at 610 (emphasis by the Court: internal citations

omitted).3

In Mount Healthy Board of Education v. Doyle, 429 U.S.

274, 285-86 (1977), the Court specifically and expressly

rejected a rule of causation that would accord to employees

who have engaged in protected First Amendment activities

greater protections against legitimately based adverse employ-

ment decisions. Thus, the Mount Healthy Court placed the

burden of proof upon the public employee to establish the

purposeful intent element of a First Amendment retaliatory

discharge claim. 429 U.S. at 287. Under Mount Healthy, a

public employee must prove both that he engaged in protected

First Amendment activity and that the protected First Amend-

ment activity was a “substantial” or “motivating” factor in the

public school board’s adverse employment decision. 429 U.S.

at 287. Motivation bespeaks conscious and purposeful intent,

not negligence.

The Connick Court iterated Pickering’s prohibition of a

public employer’s dismissal of an employee in retaliation for

the employee’s engaging in First Amendment activities. 461

U.S. at 146. Connick further held, in reliance upon Pickering,

that when a public employer’s discharge of a public employee

is not based on that public employee’s engaging in protected

First Amendment activities, it is unnecessary for the courts to

scrutinize the reasons for discharge. 461 U.S. at 146. Other-

. The selective prosecution analysis is directly applicable to this

lawsuit. Dr. San Filippo’s First Amendment claim actually is both a First

Amendment and Equal Protection selective prosecution claim. The Third

Circuit noted:

The parties agree that the analysis is the same under the first

amendment and equal protection claims. From this point, we refer

to these claims as the first amendment claim.

(App. 13n.6).

24

wise stated, absent a discharge based on a public employee’s

engaging in protected First Amendment activities:

[G]overnmental officials should enjoy wide latitude in

managing their offices, without intrusive oversight by

the judiciary in the name of the First Amendment.

461 U.S. at 146.

More recently, the Court’s opinions in Waters v. Chur-

chill, ___ U.S. __, —__ Ss. Ct. ._, 128 L.Bd.2d 686 (1994),

even though sharply divergent in other respects, reaffirmed the

basic principle that purposeful intent is a necessary element

of a First Amendment retaliatory discharge claim. As stated

in the plurality opinion, the question is whether the public

employee was “actually fired because of” protected First

Amendment activities, i.e., whether the public employer’s

“actual motivation” for the discharge was the public

employee’s protected First Amendment activities. 128

L.Ed.2d at 703 (Opinion of O’Connor, J.). Three other mem-

bers of the Waters Court observed that purposeful intent

remains the degree of culpability required to establish a First

Amendment retaliatory discharge claim under the Court’s

precedent. 128 L.Ed.2d at 706 (Opinion of Scalia, J.). Two

other members of the Waters Court stated: “A violation occurs

when a public employee is fired for uttering speech on a mat-

ter of public concern. . . .” 128 L.Ed. 2d at 714 (Opinion of

Stevens, J.) (emphasis added).

The Third Circuit misread, and misapplied to this case,

other aspects of the Waters opinions. In Waters, the public

employer acknowledged the reason for the public employee’s

discharge was her speech; the question was whether the

speech was protected or unprotected under the First Amend-

ment. Thus, in Waters, where speech was the basis of dis-

charge, four members of the Court would impose upon the

employer a duty to make inquiry as to whether the speech was

protected or unprotected. Unlike the Waters case, Rutgers’

Board discharged Dr. San Filippo for the nine acts of mis-

25

conduct articulated in its written decision, none of which

involved First Amendment activities, protected or unpro-

tected. Thus, the Third Circuit has applied the phrase “tread

with a certain amount of care” out of context. The precise use

of the phrase in the plurality opinion of Justice O’Connor in

Waters was:

If an employment action is based on what an employee

supposedly said, and a reasonable supervisor would rec-

ognize that there was a substantial likelihood that what

was actually said was protected, the manager must tread

with a certain amount of care.

128 L.Ed.2d at 70}.

Contrary to the Court’s holdings that a First Amendment

retaliatory discharge claim requires a showing that the public

employer discharged a public employee with the purposeful

intent to retaliate against the public employee because he

engaged in protected First Amendment activities, the Third

Circuit has imposed a special duty of care that the public

employer decisionmaker must fulfill before it can fire an

employee for wrongful conduct that is not constitutionally

protected.

In the Third Circuit’s view, it was not enough that the

Board, which actually decided to fire Dr. San Filippo, stated

its legitimate reasons therefor in a 60-page decision that was

based upon independent fact findings made by an independent

hearing panel after 46 days of hearings. It was also not

enough that formal dismissal charges were not brought by

Rutgers’ President until, pursuant to Rutgers’ regulations, rec-

ommendations for the commencement of dismissal proceed-

ings were made separately by three academic officers and two

faculty groups (only one of which was Dr. San Filippo’s pur-

portedly il!-motivated department). It was also not enough

that not one of the recommendations, charges, or decisions

stated or implied that Dr. San Filippo should be dismissed, or

that dismissal proceedings should be brought, due to his

26

alleged First Amendment activities. Rather, the Third Circuit

held that once Dr. San Filippo asserted that his department

colleagues were motivated by his First Amendment activities

in recommending that dismissal proceedings be commenced,

the decisionmaking Board was required to do more, i.e.,

“tread with a certain amount of care.” Precisely what more

the Board could or should have done remains unspecified.

The decision below provides serious concern to all public

employers in the Third Circuit. The amorphous parameters of

the special duty imposed by the Third Circuit conjures up a

host of potential horrors. A public employer must be prepared

to pay for the costly defense through trial of a 42 U.S.C.

§ 1983 lawsuit whenever it decides, for legitimate reasons, to

dismiss an employee who has incidentally engaged in the past

in First Amendment activities. Or a public employer must

undertake the costly task of leaving no stone unturned in fer-

reting out the possibility that a nondecisionmaking subordi-

nate may have an unarticulated, unconstitutional motive in

seeking a colleague’s dismissal. The Third Circuit decision

effectively accords a public employee, who has ever engaged

in First Amendment activities by design or fortuity, a virtual

shield from an adverse employment decision for legitimate

reasons.

The big loser if the Third Circuit’s decision is allowed to

stand is the public that the public entity serves.

27

CONCLUSION

For the foregoing reasons, the Court should grant a writ of

certiorari on the three questions presented.

November 1994

Respectfully submitted,

JOHN J. PEIRANO*

LINDA B. CELAURO

VIMAL K. SHAH

CARPENTER, BENNETT & MORRISSEY

Three Gateway Center

100 Mulberry Street

Newark, New Jersey 07102

(201) 622-7711

* Counsel of Record for Petitioners