Appendix — Bongiovanni v. San Filippo
Supreme Court brief1995
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IN THE OFFICE OF THE CLERK
Supreme Court of the United 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, ae
Petitioners,
—V.—
JOSEPH SAN FILIPPO, JR..,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD CIRCUIT
APPENDIX TO PETITION
FOR WRIT OF CERTIORARI
OHN J. PEIRANO*
INDA B. CELAURO
IMAL K. SHAH
ee Gateway Center
100 Mulberry Street
Newark, New Jersey 07102
(201) 622-7711
* Counsel of Record for Petitioners
November 1994
CH?
TABLE OF CONTENTS
PAGE
Appendix A—
Judgment, United States Court of Appeals for
the Third Circuit (July 21, 1994).................. la
Appendix B—
Opinion, United States Court of Appeals for the
Third Circuit (July 21, 1994)....00.00.000......... 3a
Appendix C—
Order, United States District Court for the District
of New Jersey (September 28, 1993).............. 54a
Appendix D—
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
oS PRR RS citintrs seins See a Aa em 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 Filippo, Jr. (May 13, 1988) ................... 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
li
PAGE
Appendix H—
Rutgers’ President’s Dismissal Charges Against
Professor San Filippo (October 1, 1986).......... 178a
Appendix I—
Faculty Committee's Recommendation for
Dismissal Proceedings for Professor San Filippo
GSOQRSRIREE BS, UPGOD cvccctiesevesavsncadsweasesss 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
PUD CUTS Be DOOD dd ddcdvccateccadstdcisecsons 189a
Appendix L—
Rutgers’ Dean’s Recommendation for Dismissal
Proceedings for Professor San Filippo (February
Bh, DED wedcccccseccerancdinvcadal dakebenmaeiebiass 192a
Appendix M—
Chemistry Professors’ Recommendation for
Dismissal Proceedings for Professor San Filippo
CHUSRY BG, FIED oxo ndscecdsitbasadsudcidiebecias 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).................
Appendix P—
Complaint of Research Scholar Changhe Xiao
(translation) (December 5, 1985).................
Appendix Q—
Complaint of Visiting Professor Yaru Zang
(translation) (November 23, 1985) .............. ie
Appendix R—
Complaint of Visiting Professor Yaru Zang
i a cir ui pee ben ecionseneees
Appendix S—
Complaint of Research Scholar Changhe Xiao
EE cies Vedecdsuaieesaioexensseees
Appendix T—
Rutgers University Dismissal Regulations
Ei Nakhee bake dcdes shed dUNdEE OD cence
PAGE
227a
See
la
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 93-5658
JOSEPH SAN FILIPPO, Jr.
Appellant
7,
MICHAEL BONGIOVANNI, ANTHONY S. CICATIELLO,
ADREIENNE S. ANDERSON, DONALD M. DICKERSON,
FLOYD H. BRAGG, NORMAN REITMAN, individually and
as members of the Board of Governors of Rutgers Uni-
versity, RUTGERS UNIVERSITY
Appellees
RUTGERS COUNCIL OF AMERICAN ASSOCIATION OF
UNIVERSITY PROFESSORS
Amicus Curiae
On Appeal From the United States District Court
for the District of New Jersey
(D.C. Civil No. 88-2575)
Present: BECKER AND LEwIsS, Circuit Judges
and POLLAK, District Judge*.
° Honorable Louis H. Pollak, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
2a
JUDGMENT
This cause came on to be heard on the record from the
United States District Court for the District of New Jersey
and was argued by counsel on May 13, 1994.
On consideration whereof, it is now here ordered and
adjudged by this Court that the judgment of the said District
Court entered September 30, 1993, be, and the same is hereby
affirmed with respect to the District Court’s grant of summary
judgment in Rutgers University’s favor on Joseph San
Filippo, Jr.’s due process claim. The District Court’s grant of
summary judgment in Rutgers University’s favor on Joseph
San Filippo, Jr.’s first amendment claim is vacated. The cause
is remanded to the District Court for proceedings consistent
with the opinion of this Court. All of the above in accordance
with the opinion of this Court.
ATTEST:
/s/ P. DOUGLAS Sisk
Clerk
Dated: July 21, 1994
Certified as a true copy and issued in lieu of
a formal amndate [sic] on August 26, 1994.
Teste: /s/ P. DOUGLAS Sisk
Clerk, U.S. Court of Appeals for the Third Circuit.
OR (on ate a
3a
APPENDIX B
Filed July 21, 1994
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 93-5658
JOSEPH SAN FILIPPO, JR.
Appeilant
v
MICHAEL BONGIOVANNI, ANTHONY S. CICATIELLO,
ADREIENNE S. ANDERSON, DONALD M. DICKERSON,
FLOYD H. BRAGG, NORMAN REITMAN, individually and
as members of the Board of Governors of Rutgers
University, RUTGERS UNIVERSITY
Appellees
RUTGERS COUNCIL OF AMERICAN ASSOCIATION OF
UNIVERSITY PROFESSORS
Amicus Curlae
On Appeal From the United States District Court
for the District of New Jersey
(D.C. Civil No. 88-2575)
Argued: May 13, 1994
Before: BECKER AND LEWIS, Circuit Judges
and POLLAK, District Judge’.
(Filed July 21, 1994)
*Honorable Louis H. Pollak. United States District Judge for the Eastern
District of Pennsylvania. sitting by designation.
4a
LEON FRIEDMAN (Argued)
148 East 78th Street
New York, NY 10021
Attorney for Appellant
JOHN J. PEIRANO, JR. (Argued)
LINDA B. CELAURO
Carpenter, Bennett & Morrissey
100 Mulberry Street
Three Gateway Center
Newark, NJ 07102
Attorneys for Appellees
DENISE REINHARDT
Reinhardt & Schachter
744 Broad Street
Suite 2500
Newark, NJ 07102
Attorney for Amicus Curiae
OPINION OF THE COURT
POLLAK, District Judge.
This case, brought under 42 U.S.C. §1983, arises out of
the dismissal by Rutgers University — New Jersey's
principal state institution of higher education — of plaintiff
Dr. Joseph San Filippo, who was, until May 13, 1988, a
tenured professor of chemistry. The defendants named in
this case are Rutgers University and six members of the
Rutgers Board of Governors (hereinafter collectively
Chapters (“Rutgers AAUP”) as amicus, challenges the
district court's grant of summary judgment in Rutgers’
favor: (1) on San Filippo's claim that he was dismissed in
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retaliation for the exercise of his first amendment rights,
and (2) on San Filippo’s claim that Rutgers violated his
right to procedural due process, because the panel that
recommended his dismissal had, according to San Filippo,
a financial incentive to recommend dismissal.
Part I of this opinion outlines the factual background and
procedural history of this case. Part II analyzes the legal
issues posed by San Filippo's first amendment claim. Part
II] addresses San Filippo’s due process claim.
I. Factual background and procedural history
Because San Filippo appeals from the district court's
grant of Rutgers’ motion for summary judgment, the
following factual recital accepts as true all evidence
proffered by non-movant San Filippo, with all reasonable
inferences drawn in his favor.
On November 25, 1985, Dean Tilden Edelstein told San
Filippo and his Rutgers AAUP counsellor, Wells Keddie,’ of
allegations that San Filippo had harassed, exploited and
attempted to exploit visiting scholars from the People’s
Republic of China. On January 6, 1986, Dean Edelstein
sent San Filippo a letter stating the complaints against
him. As required by one of the University’s dismissal
regulations, advice about whether dismissal proceedings
should be commenced was: sought from two groups of San
Filippo’s faculty peers and three academic officers of the
University. On February 14, 1986, the tenured faculty
members of the chemistry department passed a resolution
concluding that the charges against San Filippo, if proven,
represented grounds for dismissal. After the Appointments
and Promotion Committee, the University Provost, and the
Chief Academic Officer concurred in the _ sentiment
expressed in that resolution, Rutgers University President
Edward Bloustein wrote a letter to San Filippo, dated
October 1, 1986. in which he described the formal charges
1. The Rutgers AAUP is the recognized agent for collective bargaining
under state law for Rutgers University faculty members. including
Professor San Filippo. The Rutgers AAUP. as an affiliate of the national
organization. also serves as a professional organization for the Rutgers
University faculty.
6a
against San Filippo. President Bloustein further indicated
that, if San Filippo did not make a timely request for a
hearing, President Bloustein would recommend to the
University’s Board of Governors that San. Filippo be
dismissed based on the charges outlined in the letter.
San Filippo exercised his right to a hearing before a panel
of five faculty peers (the “Senate Panel”) which, after a forty-
six day hearing, concluded that San Filippo had committed
almost all of the offenses charged. In a forty-four page
report, issued on December 21, 1987, the Senate Panel
recommended that San Filippo be stripped of his tenure
and dismissed from the University. The Board of Governors
unanimously concluded in its sixty-page opinion that the
Senate Panel's findings were supported by the evidence. On
May 13, 1988, the Board of Governors voted to dismiss San
Filippo on the basis of nine charges of misconduct. One
member of the seven-member Board — Walter Wechsler —
voted against dismissal because he believed that the
sanction was too severe; Wechsler has not been named as
a defendant.
San Filippo filed the instant action on June 13, 1988. He
alleges, among other things, that disciplinary proceedings
were initiated against him and that he was dismissed in
retaliation for the numerous (1) grievances and lawsuits he
had instituted, and (2) complaints he had voiced, against
Rutgers University and various University officials between
1977 and 1986 — activities that he contends are protected
by the first amendment.
A. San Filippo's alleged protected activities
In 1977, San Filippo wrote a letter to the then chemistry
department chairman, Professor Sidney Toby, complaining
about dangerous conditions in the chemistry iaboratories,
conditions that had been described by the New Jersey
Department of Health as “generally unsatisfactory.” In
1979, in response to a newspaper reporter's questions
concerning a student's collapse due to noxious fumes
during a chemistry experiment, San Filippo stated — as
reported by the newspaper on January 30, 1979 — that
undergraduate students were being subjected to a “health
nazard and an absolute danger” and that “minimum safety
Ta
requirements are not being met.” San Filippo was berated
by the then department chairman, Professor Joseph
Potenza, and by an administrator for making these
comments. San Filippo’s comments led to the creation of an
American Association of University Professors — University
Safety Committee.
In 1977 and 1978, San Filippo testified before a grand
Jury regarding an investigation into the manufacture of
illegal drugs in the chemistry laboratories. Potenza
criticized San Filippo for his “disloyalty” and for “washing
the department's dirty linen in public.”
In 1983-84, San Filippo became embroiled in a dispute
over what he describes as an effort by members of the
chemistry department's instruments committee to obtain
federal funding for a mass spectrometer by misrepresenting
the department's need for such an instrument. San Filippo
threatened to tell the federal funding agency the truth
about the department's needs. The committee members
wrote a memorandum to Potenza, as department chairman.
protesting San Filippo’s threats to undermine their efforts
to obtain a mass spectrometer. Potenza told San Filippo
that he intended to place the memorandum in San Filippo's
personnel file. San Filippo contacted the United States
Attorney's office regarding this action against him, and an
Assistant United States Attorney told San Filippo that such
an action would be characterized as an effort to obstruct
justice. After San Filippo told Potenza what the government
lawyer had said, Potenza had the letter of reprimand
removed from San Filippo's personnel file.
Between 1979 and 1986, San Filippo complained about
certain financial irregularities in the chemistry department,
particularly efforts to divert funds from San Filippo's federal
grants. In October 1985, San Filippo objected to a proposal
by the new department chairman, Professor Robert Boikess.
to impose a “shop-user's fee.” which San _ Filippo
characterized as illegal double billing of chemistry
department members.
In 1981, the chemistry department declined to
recommend San Filippo for promotion to full professorship.
San Filippo filed a grievance in 1982, contending that he
8a
had been denied promotion through manipulation of his
promotion packet. While this grievance was pending, the
chemistry department recommended that San Filippo be
promoted to full professor, effective July 1984. Although
the grievance committee ultimately agreed with San Filippo
that he should have been promoted, the University took the
position that the issue was moot. In September 1985, San
Filippo filed a lawsuit in state court in which he contended
that he was entitled to have his promotion effective July
1982. That suit is still pending.
In 1984, San Filippo grieved the fact that he had been
denied a merit salary increase. The University rejected San
Filippo’s grievance, and he filed for non-binding arbitration.
The first hearings in the arbitration occurred in October
1985. On September 10, 1986, Boikess testified for the
University. Regarding this event, the arbitrator commented
in his decision dated December 26, 1986:
Little things are often very revealing. A transcript
does not convey the full flavor of what transpires in the
hearing room. Boikess was called on the last day of the
hearing. He brought his own lawyer with him (Mr.
Peirano).
San Filippo cordially greeted him before he took the
stand. Boikess would not acknowledge the greeting and
refused to acknowledge grievant's presence in the room.
During his testimony, Boikess kept referring to
grievant's “self-nomination” [for the merit salary award].
His tone of voice was so caustic that it sparked an
inquiry from me. (The inference to be drawn by the tone
of voice employed was that a “self-nomination” was
somehow less worthy).
I specifically asked Boikess why he emphasized “self-
nomination.” Boikess danced around the issue and did
not really answer my question. It became obvious that
he would not answer, so I gave up. Further, the tenor
and tone of his testimony revealed his near-total
contempt for San Filippo.
I note in passing that most of the persons being
considered were self-nominated. The [merit salary
award procedure] specifically provides for same.
94a
One would have to be a block of wood to fail to notice
Dr. Boikess’ complete distaste for Joe San Filippo.
(A.1155 n.21). The arbitrator sustained San Filippo's
complaint. He further noted in his opinion:
San Filippo testified, without contradiction, that he was
criticized by administration officials for talking to the
school newspaper about unsafe conditions in the
laboratories. [San Filippo] was chairman of the Safety
Committee at the time. A student took ill. [San Filippo]
was accused of being “disloyal.” Putting aside the
serious first amendment issues the episode raises
(Pickering v. Board of Education, 391 U.S. 563), it
seems to me that the danger to the health of the
students outweighs any possible harm to the
reputation of those in authority that disclosure of lab
conditions might have created. Further, there is a
difference to |sic] loyalty to the institution and the
purposes it is supposed to serve and fealty to the
individuals who may, at any given moment, occupy
positions of higher authority in the organization. Which
is more important in the scheme of things: bruised
feelings because the teacher is tough and demanding
or personal safety? . . .
While not directly at issue, there was some unsettling
evidence that [Dr. San Filippo’s] promotion packet had
been surreptitiously removed and unfavorable material
secretly inserted. [Dr. San Filippo] had to bring
successful grievance action to rectify the situation. It
would appear that someone was willing to go to extra-
ordinary lengths to deny [Dr. San Filippo] professional
advantage. That kind of conduct is similar to what
happened to [Dr. San Filippo] in the [merit salary
award] review.
[Dr. San Filippo’s} nomination was clearly judged
under separate “San Filippo rules” that were applicable
to no one else.
.... 1 know a pipe job when I see one.
(A.1161 n.29).
Free ee ee eile
ee
10a
In November 1985, Dr. San Filippo brought a libel action
in state court against three administrators who accused
San Filippo of deliberately falsifying time reports relating to
one of his technical assistants.
Finally, San Filippo brought a lawsuit in state court
against the University in March 1986 complaining about,
among other things, the University’s decision to prohibit —
without a hearing of any kind — graduate student
assistance in San Filippo’s research program, because of
the accusations against San Filippo.
B. The charges and proceedings against San Filippo
As explained above, on October 1, 1986, President
Bloustein brought formal written charges against San
Filippo. After a hearing before the Senate Panel, which
recommended dismissal, the Board of Governors, which
reviewed the findings of the Senate Panel for sufficiency of
the evidence, concurred in the Senate Panel's findings
sustaining the following charges:
Charge 1: Your treatment of scholars visiting from the
People’s Republic of China and a Chinese Teaching
Assistant violated the standards of professional ethics
required by all faculty members. More specifically, your
treatment with respect to these individuals, as set forth
more fully in the attached documents, is as follows:
a. You took advantage of your professorial position and
exploited Mr. Hetian Gao and Mr. Changhe Xiao, both
visiting scholars from the People’s Republic of China,
by directing them or leading them to believe that they
had no choice but to perform domestic work for you,
such as garden work and indoor and outdoor cleaning
work during the period May through July 1985.”
c. You exploited Messrs. Gao and Xiao by representing
that they would be provided health benefits coverage
and that you would deduct $700.00 from the salary to
be paid each of them in order to cover the costs of such
benefits. Despite deducting such sums, you did not
provide coverage to either Mr. Gao or Mr. Xiao.
2. The Senate Panel found that charge 1(b) was unproven, and the Board
concurred in this determination.
lla
d. During the period of time that the above-named
visiting Chinese scholars were at Rutgers, you
threatened and harassed those individuals by
repeatedly stating that you would send them back to
China and by directing abusive language toward them.
e. On or about March 31, 1986, you interrupted
without sufficient cause a laboratory class being
conducted by Teaching Assistant, Zong Ping Chen. You
continued that incident by treating her in an
unprofessional, threatening and abusive manner,
within the hearing of other individuals, including her
students.
Charge 2: On or about July 8, 1985, you directed Mr.
Changhe Xiao, who had injured himself while doing
maintenance work at your house, to identify himself as
Mr. Peng Zhou in Middlesex Hospital in order to have
Mr. Xiao covered by Mr. Peng Zhou's_ medical
insurance.
Charge 3: You encouraged and permitted individuals
working under your direction and supervision to
submit false time reports and to make inappropriate
charges against certain University accounts.
Specifically:*
b. Ms. Marilyn Brownawell, who works directly under
your supervision, submitted time reports for the week
ending August 17, 1984. She reported and was paid for
40 hours of work for thai period, charged against the
Chemistry Department's mass spectrometer account,
even though you knew that she did not perform any
work related to the mass spectrometer or indeed any
compensable work for Rutgers of any kind during that
period.‘
Charge 4: You violated professional and academic
standards and exploited foreign visitors to the
University by bringing to the University as post-
3. The Senate Panel did not sustain charge 3(a). and the Board
concurred in this determination.
4. Charge 3(c) was not sustained by the Panel. and the Board concurred
in this determination.
12a
doctoral fellows Chinese scholars you knew did not
have appropriate credentials and by charging stipends
of such individuals, who did not possess doctoral
degrees, to your NSF grant as post-doctoral fellows.
Subsequently you supported these individuals for
admission to the graduate program in Chemistry, a fact
which clearly established that they did not have the
credentials to be post-doctoral fellows.°
Charge 5: During Fall 1985, you submitted an
application for admission to the graduate program,
including letters of reference, on behalf of Mr. Peng
Zhou, one of the individuals referred to in #4 above.
One of the letters of reference submiited by you
purportedly was written and signed by Liu Guozhi. In
fact, that letter was not prepared by Liu Guozhi, and
you had knowledge of the fact and did not make it
known when you submitted the letter.
Charge 6: On December 16, 1985, Professor Robert
Boikess, Chair of your department, specifically
instructed you not to permit Mr. Peng Zhou, Mr. Cong-
Yuan Guo, or any other graduate student except those
already associated with your research group, to work
in your laboratory, pending investigation of allegations
of exploitation and harassment lodged against you by
visiting Chinese scholars. Despite these _ specific
instructions, you subsequently permitted Cong-Yuan
Guo, Zhen-min He, and Peng Zhou to perform work in
your laboratory.
In the Board's opinion, the Board specifically found that the:
conduct described in sustained charges l(a), 1(d) and 1l(e)
was a serious enough breach of the role of faculty member
that, even if those were the only sustained charges, there
would be sufficient cause for dismissal. Accordingly, on
May 13, 1988, the Board directed that San Filippo be
dismissed from the University.
5. The Senate Panel sustained this charge in regard to Mr. Peng Zhou.
but not in regard to Mr. Cong-Yuan Guo. The Board concurred in both
determinations.
13a
Board member Wechsler agreed with his colleagues’
findings but felt that dismissal was too severe a sanction:
“Because this punishment is clearly out of proportion to his
alleged wrongdoing, and quite possibly tainted by a long
history of animus, I respectfully dissent.” (A.322).
C. The procedural history of this case
On June 13, 1988, San Filippo filed this suit against the
University and the six Board members who voted in favor
of his dismissal. San Filippo sued under §1983 and state
law, alleging that 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.
Following the parties’ cross-motions for summary
judgment on a number of issues, the district court granted
San Filippo’s motion for partial summary judgment on his
claim that the regulations pursuant to which he was
dismissed were void for vagueness. San Filippo v.
Bongiovanni, 743 F. Supp. 327 (D.N.J. 1990). The void-for-
vagueness issue was certified for interlocutory appeal to
this court; we reversed and remanded the case for further
proceedings. San Filippo v. Bongiovanni, 961 F.2d 1125,
1139-40 (3d Cir. 1992). After the Supreme Court denied
San Filippo’s petition for certiorari, San Filippo uv.
Bongiovanni, 113 S.Ct. 305 (1992), the district court
referred the remaining summary judgment motions to a
magistrate judge.
In his Report and Recommendation, the magistrate judge
recommended that summary judgment be granted in
defendants’ favor on San Filippo’s procedural due process
claim and on his state law claims, but that summary
judgment be denied on San _ Filippo's first
amendment/equal protection claim.® Regarding the first
amendment claim, the magistrate judge first explained that
this circuit uses a three-part test to assess a public
employee's claim of retaliation for having engaged in a
6. 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.
14a
protected activity. First, plaintiff must show that he
engaged in a protected activity. Second, plaintiff must show
that the protected activity was a _ substantial factor
motivating the dismissal decision. Finally, defendant may
defeat plaintiffs claim by demonstrating that the same
action would have taken place even in the absence of the
protected conduct.’ See Holder v. City of Allentown, 987
F.2d 188, 194 (3d. Cir. 1993); Czurlanis v. Albanese, 721
F.2d 98, 103 (3d Cir. 1983) (citing Mt Healthy City School
Dist. v. Doyle, 429 U.S. 274, 283-87 (1977)).
With respect to the first prong of this test, the magistrate
judge concluded that, unlike speech generally — which is
protected under the first amendment only if it addresses a
matter of public concern — San Filippo’s lawsuits and
grievances were activities protected under the petition
clause of the first amendment regardless of whether they
addressed matters of public concern. The magistrate judge
then noted that a fact-finder could reasonably infer that
San Filippo’s protected conduct was a substantial factor
motivating the decision to dismiss him from the University.
Finally, the magistrate judge recommended that San Filippo
be given the chance to conduct additional discovery in
order to rebut Rutgers’ claim that San Filippo would have
been dismissed even in the absence of his protected
activities. Because the magistrate judge believed that the
defendants had not yet made relevant discovery material
available to San Filippo, the magistrate judge recommended
that summary judgment be denied under Rule 56(f) of the
Federal Rules of Civil Procedure.®
7. The burden of persuasion shifts to Rutgers with respect to the third
prong of this test. In this respect. the retaliatory discharge test differs
from the Title VII rule established in Texas Dep't of Community Affairs v.
Burdine. 450 U.S. 248 (1981). and reaffirmed in St. Mary's Honor Center
v. Hicks. 113 S.Ct. 2742 (1993). where the burden of persuasion
remains on the plaintiff even after he or she has proved a prima facie
case. and the employer need only articulate — not prove — a non-
discriminatory reason for its actions.
8. Rule 56(f) states in relevant part:
Should it appear from the affidavit of a party opposing the motion
that the party cannot for reasons stated present by affidavit facts
essential to justify the party's opposition, the court may refuse the
application for judgment or may order a continuance to permit. . .
discovery to be had or may make such other order as is just.
1Sa
San Filippo did not object to the magistrate judge's
recommendation that Rutgers be granted summary
judgment on the state law claims. Accordingly, in an
opinion dated September 28, 1993, the district court
accepted those recommendations and granted Rutgers
summary judgment on those claims. San Filippo objected to
the magistrate judge’s recommendation that Rutgers be
granted summary judgment on his due process claim, and
argued that he was entitled to summary judgment on that
claim or at least to further discovery. Rutgers objected to
the magistrate judge’s recommendation that summary
judgment on San Filippo’s first amendment claim be
denied.
The district court adopted the magistrate judge's
recommendation that summary judgment be granted on
San Filippo’s due process claim, but rejected the magistrate
judge’s recommendation that summary judgment be denied
on San Filippo’s first amendment claim. With respect to the
first amendment claim, the district court first disagreed
with the magistrate judge’s conclusion that San Filippo’s
lawsuits and grievances were activities protected under the
first amendment petition clause regardless of whether they
addressed a matter of public concern. Instead, the district
court held that lawsuits and grievances, like speech
generally, are protected activities under the first
amendment only if they address matters of public concern.
The district court concluded that some of San Filippo's
speech addressed matters of public concern and was
therefore protected under the first amendment. The district
court also concluded that a fact-finder could reasonably
infer that San Filippo’s protected conduct was a substantial
factor motivating his dismissal. However, the district court
held that there was no basis in the record from which a
fact-finder could reasonably conclude that San Filippo was
dismissed because of his protected conduct, rather than
because of the misconduct described in the charges
brought against him. Moreover, the district court rejected
the magistrate judge’s recommendation that a ruling on the
summary judgment motion be delayed until after San
Filippo had had an opportunity to conduct additional
discovery, and instead held that San Filippo had received
16a
all discovery to which he was entitled. Accordingly, the
district court held that Rutgers was entitled to summary
judgment on San Filippo’s first amendment claim as well as
on his due process and state law claims, and dismissed
San Filippo’s complaint in its entirety.
On appeal, San Filippo argues that the district court's
order granting Rutgers summary judgment on his first
amendment claim should be vacated because the district
court erred, (a) in granting Rutgers’ motion for summary
judgment without affording him an opportunity to take
additional discovery, and (b) on the merits. San Filippo also
contends that the district court's order granting Rutgers
summary judgment on his due process claim should be
vacated because there remains a material issue of fact
regarding the question whether the Senate Panel had a
pecuniary interest in the outcome of the proceedings
against San Filippo, and because he was entitled to
additional discovery.
II. San Filippo's first amendment claim
San Filippo first contends that the district court erred in
denying his request, made pursuant to Rule 56(f) of the
Federal Rules of Civil Procedure,’ that the district court
delay its ruling on Rutgers’ summary judgment motion
until after he had time to conduct further discovery. San
Filippo made various discovery requests on September 7,
1989; Rutgers asked to have until November 7 to respond.
On November 24, San Filippo wrote a 20-page letter to
Rutgers pointing out inadequacies in Rutgers’ response. On
November 29, Rutgers moved for summary judgment and
the requested information was never supplied. San Filippo
submitted a Rule 56(f) affidavit in support of its opposition
to Rutgers’ motion for summary judgment. The magistrate
judge recommended that the ruling on the summary
judgment motion be deferred until after San Filippo had an
opportunity to take additional discovery.
The district court rejected the magistrate judge's
conclusion that summary judgment should not be granted
until San Filippo had an opportunity to discover additional
9. The text of this rule is quoted at note 8, supra
17a
information. The court explained that San Filippo argued
that “he must see the records of other faculty persons
similarly situated (ie., persons who have been known to
commit, or were accused of committing. similar offenses,
but against whom no sanctions, or not as severe a sanction
was imposed).” Opinion at 42 (internal quotation omitted).
The court rejected San Filippo’s argument for two reasons.
First, the court concluded that “faculty members ‘similarly
situated’ to plaintiff are those faculty members against
whom formal charges have been filed as to conduct which
could lead to dismissal under the University's regulations.”
Opinion at 42-43. The court explained that San Filippo
received all such information on June 9, 1989, pursuant to
Rutgers’ compliance with section I.1 of a Stipulation dated
May 19, 1989. Second, the court concluded:
These [nine] charges together caused plaintiffs
dismissal and it is only that tenured faculty member
who had “been known to commit” or was “accused of
committing” offenses of the kind, number, and scope
taken together with whom plaintiff is truly “similarly
situated.” No one suggests that such a person exists.
Opinion at 44-45 (emphasis in original). For these two
reasons, the court concluded that San Filippo had received
all of the discovery to which he was entitled. See Opinion at
46.
San Filippo, with support from the Rutgers AAUP, argues
that the district court abused its discretion in denying San
Filippo’s request for a Rule 56(f) continuance. Under
Contractors Assoc. v. City of Philadelphia, 945 F.2d 1260
(3d Cir. 1991), whether a Rule 56(f) motion should be
granted “depends, in part, on ‘what particular information
is sought: how, if uncovered, it would preclude summary
judgment; and why it has not been previously obtained.”
Id. at 1266 (quoting Lunderstadt v. Colafella, 885 F.2d 66,
71 (3d Cir. 1989)). A district court has discretion in acting
on Rule 56(f) motions. See id. at 1267. However, where
relevant information sought is in the hands of the moving
party, “a district court should grant a Rule 56(f) motion
almost as a matter of course unless the information is
otherwise available to the non-movant.” Id.
18a
In Contractors Assoc., the district court granted
Contractors Association of Eastern Philadelphia and other
trade associations summary judgment on their claim that
Philadelphia's public contract minority set-aside law
violated the equal protection clause of the fourteenth
amendment. On _ appeal, United Minority Associates
Enterprises argued that the district court — to which
Minority Associates had submitted a Rule 56(f) affidavit
along with their opposition to summary judgment — erred
by granting the summary judgment motion without giving
Minority Associates an opportunity to pursue discovery on
the existence of discrimination in the Philadelphia
construction market that could justify various set-asides.
We held that the district court abused its discretion by not
granting a continuance before ruling on the summary
judgment motion. See Contractors Assoc., 945 F.2d
at 1268.
In addressing the first part of the Contractors Assoc. test
— what information is sought and how it would preclude
summary judgment — San Filippo and the Rutgers AAUP
argue that the district court's definition of “similarly
situated” was too narrow. We agree. Among other things,
San Filippo argues that, but for his protected activity, he
would not have been charged at all. To limit his discovery
to individuals who were in fact brought up on similar
charges is, therefore, not adequately responsive to San
Filippo’s needs. Nor should San Filippo be limited to
discovery of individuals who committed nine charges of
comparable seriousness yet were not disciplined. The
Supreme Court explained in McDonald v. Santa Fe Trail
Transp. Co., 427 U.S. 273, 283 n.11 (1976):
[Plrecise equivalence in culpability between employees
is not the question. As we indicated in [McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 804 (1973)], an
allegation that other “employees involved in acts
against [the employer] of comparable seriousness .. .
were nevertheless retained . . .” is adequate to plead an
inferential case that the employer's reliance on his
discharged employee's misconduct as grounds for
terminating him was merely a pretext.
19a
Santa Fe, 427 U.S. at 283 n.11 (emphasis and omissions in
Santa Fe).
In analogous fashion, this court, in Bennun v. Rutgers
State University, 941 F.2d 154 (3d Cir. 1991), rejected a
contention that the district court had erred in comparing
the defendant University’s decision not to tenure the
plaintiff professor with the University’s decision to tenure
another professor who had higher ratings than the plaintiff
in two categories — teaching effectiveness and general
usefulness. See id. at 178. We reasoned that to preclude
such a comparison “would change ‘similarly situated’ to
‘identically situated.’” Id. Although “[t}he propriety of such
a comparison is case specific,” there is a “broad sweep of
relevancy.” Id. Admittedly, the district court may and
should impose limits on discovery that is calculated to lead
to the unearthing of only marginally relevant evidence.
Nonetheless, the limits imposed here were too severe.
The Board indicated in its opinion that it viewed charges
l(a), 1(d) and 1(e) as the most serious charges against San
Filippo, meriting his dismissal even if the other charges
were not sustained. San Filippo accordingly should be
permitted to discover whether the University knew of other
employees who committed one or more offenses of
comparable or greater seriousness yet did not discipline
these employees, or imposed sanctions far less severe than
dismissal. Although the district court’s suggestion that San
Filippo was disciplined because of a combination of
misdeeds rather than for any single misdeed is plausible,
this type of evaluation is one that should generally be left
to the fact-finder. Because the information San Filippo
sought in discovery was of the sort that might prevent the
entry of summary judgment and was under the control of
Rutgers, we conclude that it was an abuse of discretion to
deny San Filippo’s Rule 56(f) motion. Accordingly. we will
vacate the district court's grant of summary judgment on
San Filippo’s first amendment claim and remand for further
discovery.”
10. With respect to the second part of the Contractors Assoc. test — why
the information was not previously obtained — Rutgers argues that the
May 19. 1989 Stipulation precluded further discovery. This argument is
unpersuasive. We agree with the district court's conclusion that the
Stipulation did not necessarily foreclose additional discovery.
20a
Even without further discovery, there is_ sufficient
evidence in the record from which a fact-finder could
conclude that, in the absence of his protected activities,
San Filippo would not have been dismissed based on the
conduct described in the charges against him. First, Dean
Edelstein was interviewed by the local New Brunswick
newspaper, The Home News, shortly after San Filippo was
dismissed. The paper reported: “‘If [San Filippo] had
behaved better earlier in terms of his relations with his
colleagues,’ said Tilden Edelstein, Dean of the Faculty of
Arts and Sciences, San Filippo might have been treated
differently. . . . ‘But San Filippo persisted in being “Joe the
Warrior,”’ Edelstein said.” (A.606). A fact-finder could
reasonably infer that the “war” to which Dean Edelstein
referred encompassed the protected complaints San Filippo
had made over the years. In addition, Walter Wechsler, the
member of the Board of Governors who dissented from the
decision to dismiss San Filippo, stated that “the
punishment is clearly out of proportion to his alleged
wrongdoing, and quite possibly tainted by a long history of
animus.” (A.322).
San Filippo also has presented evidence that other
faculty members had committed infractions of comparable
seriousness yet had not been punished. For example,
Professor Richard Hartwick of the chemistry department
testified before the Senate Panel that he had had two
students pitch hay for him on his farm. Another professor,
George Muha, testified that, as a student, he had helped
his faculty advisor move from one place to another.
Professor Muha also testified that he had some of his own
students work with him in his photography lab, and that
foreign students he had invited to his house at
Thanksgiving did domestic chores including yard work for
him. Based on this evidence, a fact-finder could reasonably
find that San Filippo would not have been dismissed in the
absence of his protected activities. Accordingly, even if the
denial of the Rule 56(f) motion were not erroneous, we
would vacate the grant of summary judgment.
In light of our decision to vacate the district court's grant
of summary judgment on San Filippo’s first amendment
claim, we need to address certain other issues that are
relevant to the course of proceedings on remand.
A. Protected activity
As explained above, one who aileges retaliatory discharge
from governmental employment must establish that the
conduct which triggered the discharge was protected under
the first amendment. Where the alleged retaliation is based
on expressive conduct constituting speech, a court must
first determine whether or not the speech can be fairly
characterized as addressing a “matter of public concern,”
for a governmental employee who makes public complaints
about problems not of “public concern” has no first
amendment immunity against employer discipline. Connick
v. Myers, 461 U.S. 138, 147 (1983).'’ But San Filippo’s
expressive conduct was not limited to speech. It included
the filing both of lawsuits, and also of grievances under a
collective bargaining agreement, against the University and
University officials — activities that implicate the petition
clause, rather than the free speech clause, of the first
amendment. '”
11.A public employer is not precluded altogether from dismissing an
employer for speech addressing a matter of public concern. Rather. a
public employer may dismiss an employee for speech addressing a
matter of public concern if the state’s interest. as an employer. in
promoting the efficiency of its operations outweighs the employee's
interest. as a citizen. in commenting upon matters of public concern.
Connick, 461 U.S. at 142. This balancing test comes into play only if the
public employer concedes that it dismissed an employee because of the
employee's protected speech but contends that it was justified in doing
so. Rutgers denies that it dismissed San Filippo for his protected
activities: accordingly. the balancing test has no application in the case
at bar.
The court decides. as a matter of law. whether the speech at issue
addressed a matter of public concern and whether the state's interest in
efficiency outweighed the employee's interest in commenting on matters
of public concern. See Holder v. City of Allentown. 987 F.2d 188. 195 n.2
(3d Cir. 1993).
12. The first amendment states in relevant part:
Congress shall make no law . . . abridging the freedom of speech. or
of the press. or of the right of the people peaceably to assemble. and
to petition the Government for a redress of grievances.
United States Constitution. Amend. 1.
224
The magistrate judge concluded that San Filippo's
activilies implicating the petition clause were protected by
the first amendment regardless of whether the “petition” at
issue addressed a matter of public concern. The district
court disagreed, and held that, to qualify for first
amendment protection, San Filippo’s “petition” activities
must meet the Connick “public concern” threshold.
Although the district court concluded that some of San
Filippo’s speech addressed matters of public concern,” the
court concluded that his lawsuits and grievances did not
meet that threshold.
On appeal, San Filippo and the Rutgers AAUP recognize
that the right to petition, like freedom of speech, is not
absolute. They argue that San Filippo’s lawsuits and
grievances were protected first amendment activities,
regardless of content, unless they were baseless. Rutgers
contends that the district court correctly held that San
Filippo’s lawsuits and grievances were protected under the
petition clause only if they addressed matters of public
concern. '*
In Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064 (3d
Cir. 1990), we expressly declined to reach the question
whether a public employee is protected under the petition
clause against retaliation for having filed a _ petition
13. The district court concluded that the following items of speech
addressed matters of public concern: (1) San Filippo’s 1979 statement in
a school newspaper criticizing Rutgers for inadequate ventilation in the
chemistry labs: (2) San Filippo's testimony. in 1977 and 1978, before a
grand jury. regarding an investigation into the manufacture of illegal
drugs in Rutgers’ laboratories: (3) San Filippo's criticisms, in 1983-84, of
his faculty peers’ attempt to secure funding for a mass spectrometer by
deceiving federal funding agencies: and (4) San Filippo'’s disputes
between 1979 and 1986 with senior members of his department over
their efforts to obtain “inappropriate percentages” of his federal grants.
14. The district court's conclusion that San Filippo engaged in some
protected activity does not make this dispute academic. San Filippo
wants, (a) the fact-finder to be instructed that dismissal in retaliation for
any or all of his lawsuits and grievances constitutes a first amendment
violation. and (b) to argue to the fact-finder that the close proximity in
time between his 1985 lawsuits and the decision to file formal charges
against him supports an inference of retaliation.
4 a
A:
{
23a
addressing solely a matter of private concern. See id. at
1076. We now will address that question.
Although the Supreme Court has not discussed the scope
of the constitutional right to petition in the context of an
allegedly retaliatory discharge of a public employee. the
Court has had occasion to consider the scope of that right
in other contexts.
In Eastern RR. Presidents Conference v. Noerr Motor
Freight, Inc., 365 U.S. 127 (1961), the Court addressed the
question whether a publicity campaign by railroads
intended to encourage legislation and law enforcement
practices disadvantageous to the trucking industry violated
the Sherman Act. First, the Court took note of the
established principle that, if a restraint of trade is caused
by otherwise valid governmental action, there is no
Sherman Act violation. See id. at 135-36. Then, the Court
went on to hold that the Sherman Act does not prohibit two
or more persons from working together in an attempt to
persuade the government to take a particular action that
would restrain trade. See id. at 136. The Court based its
decision upon two grounds. First, the Court reasoned that
nothing in the legislative history of the Sherman Act
indicated an intent to regulate political activity by
narrowing the channels’ through which citizens
communicate with their governing officials. See id. at 137.
The Court then added:
Secondly, and of at least equal significance, such a
construction of the Sherman Act would raise important
constitutional questions. The right of petition is one of
the freedoms protected by the Bill of Rights. and we
cannot, of course, lightly impute to Congress an intent
to invade these freedoms.
Id. at 138. Moreover, the Court rejected the contention that
there was a Sherman Act violation because the railroads’
purpose was to destroy the truckers as competitors:
There may be situations in which a publicity campaign.
ostensibly directed toward influencing governmental
action, is a mere sham to cover what is actually
nothing more than an attempt to interfere directly with
the business relationships of a competitor and the
24a
application of the Sherman Act would be justified. But
this is certainly not the case here. No one denied that
the railroads were making a genuine effort to influence
legislation and law enforcement practices.
Id. at 144. Accord, United Mine Workers v. Pennington, 381
U.S. 657, 670 (1965).
In California Motor Transport Co. v. Trucking Unlimited,
404 U.S. 508 (1972), the Court developed the “mere sham”
exception to petition clause protection suggested in the
Noerr dictum. Competitors of highway carriers regularly
brought administrative and judicial proceedings to
challenge the carriers’ applications for operating rights. The
highway carriers filed a complaint alleging that their
competitors conspired to monopolize trade by instituting
actions before administrative agencies and courts to defeat
the carriers’ applications to acquire operating rights. See id.
at 509. The complaint further alleged that the competitors
instituted the proceedings to oppose the _ carriers’
applications without regard to the merits of the cases, in an
effort to prevent the carriers from having meaningful access
to the agencies and courts. See id. at 511. The Supreme
Court held that the district court improperly dismissed the
complaint for failure to state a claim under the antitrust
laws. The Court first reiterated the holding in Noerr that “no
cause of action [is] alleged insofar as it [is] predicated upon
mere attempts to influence the Legislative Branch for the
passage of laws or the Executive Branch for their
enforcement.” Id. at 510. The Court further stated:
The same philosophy governs the approach of citizens
or groups of them to administrative agencies (which are
both creatures of the legislature, and arms of the
executive) and to courts, the third branch of
Government. The right of access to the courts is indeed
but one aspect of the right of petition.
15. In Pennington. coal operators and a labor union had approached the
Secretary of Labor and the Tennessee Valley Association regarding the
minimum wage for contractors selling coal to the TVA. The Court
reaffirmed the holding of Noerr that “[jjoint efforts to influence public
officials do not violate the antitrust laws even though intended to
eliminate competition.” 381 U.S. at 670.
25a
We conclude that it would be destructive of rights of
association and of petition to hold that groups with
common interests may not, without violating the
antitrust laws, use the channels and procedures of
state and federal agencies and courts to advocate their
causes and points of view respecting resolution of their
business and economic interests’ vis-a-vis their
competitors.
Id. at 510-11 (citations omitted). Nonetheless, the Court
held that the conduct described in the carriers’ complaint
fell within the “sham” litigation exception described in Noerr
and thus stated a claim under the antitrust laws.
The unprotected status of “sham litigation” was again
recognized in Bill Johnson's Restaurants Inc. v. NLRB, 461
U.S. 731 (1983), in which the Court announced that
“paseless litigation is mot immunized by the First
Amendment right to petition.” Id at 743. In Bill Johnson's
Restaurants, a waitress who was fired filed an unfair labor
practice charge. She and other waitresses also picketed the
restaurant, which in turn filed a complaint in state court
seeking both damages and an injunction against the
picketing. The waitress then filed a second charge with the
Board, alleging that the restaurant had filed the state
action in retaliation for her exercise of rights under the
National Labor Relations Act and seeking to have the
restaurant's state action enjoined. The Board issued a
cease-and-desist order to halt the allegedly retaliatory state
court lawsuit, and the Ninth Circuit affirmed.
The issue before the Supreme Court was whether, under
section 8 of the NLRA, the Board may issue a cease-and-
desist order to halt a state court suit solely upon a showing
that the suit was filed for a retaliatory purpose, or whether
the suit must also lack merit. The Court recognized that the
Board's position — that the suit need only be filed for a
retaliatory purpose — found support in the broad remedial
provisions of the Act. However, the Court concluded:
There are weighty countervailing considerations . . .
that militate against allowing the Board to condemn
the filing of a suit as an unfair labor practice and to
enjoin its prosecution. In California Motor Transport, we
26a
recognized that the right of access to the courts is an
aspect of the First Amendment right to petition the
Government for redress of grievances. Accordingly, we
construed the antitrust laws as not prohibiting the
filing of a lawsuit, regardless of the plaintiffs
anticompetitive intent or purpose in doing so, unless
the suit was a “mere sham” filed for harassment
purposes. We should be sensitive to these First
Amendment values in construing the NLRA in the
present context.
Id. at 741 (citations omitted). The Court held that suits
lacking a reasonable basis do not fall within the scope of
first amendment protection. The Court explained:
The first amendment interests involved in private
litigation — compensation for violated rights and
interests, the psychological benefits of vindication,
public airing of disputed facts — are not advanced
when the litigation is based on intentional falsehoods
or on knowingly frivolous claims. Furthermore, since
sham litigation by definition does not involve a bona
fide grievance, it does not come within the first
amendment right to petition.
Id. at 743 (internal quotation omitted). Accordingly, the
Court concluded that it is an enjoinable labor practice
under §8 of the NLRA to file a baseless lawsuit with the
intent of retaliating against an employee for the exercise of
rights protected by the NLRA. See id."®
In both Smith v. Arkansas State Highway Employees, 441
U.S. 463 (1979) (per curiam) and Minnesota State Bd. for
Community Colleges v. Knight, 465 U.S. 284 (1984), the
Court held that the petition clause does not require the
government to respond to every communication that the
16. Following Bil Johnson's Restaurants in Hoeber on behalf of the NLRB
v. Local 30. 939 F.2d 118 (3d Cir. 1991). this court held that the district
court properly denied the NLRB's request that the court enjoin a pending
lawsuit brought by a labor union for breach of contract. We explained
that two factors must be present before an injunction against a civil
lawsuit may issue: the plaintiff must have an improper motive for
bringing the suit. and the suit must have no reasonable basis. See
Hoeber. 939 F.2d at 126.
27a
communicator may denominate a petition. In Smith, the
Arkansas State Highway Commission refused to consider
grievances filed by a union on behalf of employees, and
would respond only to grievances filed by individual
employees themselves. In Knight, a state statute required
public employers to respond to union representatives, but
not to individual employees. In both cases, the Court held
that there was no petition clause violation. The Knight
Court, which described the challenged conduct as the
converse of conduct challenged in Smith. rejected the
employees’ claim that “they have a right to force officers of
the State acting in an official policy-making capacity to
listen to them in a particular formal setting.” Knight. 465
U.S. at 282.
Most recently, in McDonald v. Smith, 472 U.S. 479
(1985), the Court addressed the question whether the
petition clause provides absolute immunity to a defendant
charged with defaming the plaintiff in a letter about the
plaintiff written to the President of the United States.
Smith, an unsuccessful aspirant for appointment as United
States Attorney, brought a libel suit against McDonald,
alleging that McDonald had written two letters to Ronald
Reagan — the first when Mr. Reagan was President-elect.
the second a month after his inauguration — accusing
Smith of, among other things, fraud, extortion, and civil
rights violations. The Court held that the petition clause
does not provide absolute immunity in that context: rather,
a petitioner whose communications are defamatory may be
answerable in libel if he is shown to have acted with malice,
as defined in New York Times Co. v. Sullivan, 376 U.S. 254
(1964). In reaching this conclusion, the Court observed:
The right to petition is cut from the same cloth as the
other guarantees of [the First] Amendment, and is an
assurance of a particular freedom of expression... .
To accept petitioner's claim of absolute immunity
would elevate the Petition Clause to special First
Amendment status. The Petition Clause, however, was
inspired by the same ideals of liberty and democracy
that gave us the freedoms to speak, publish. and
assemble. These First Amendment rights. are
inseparable, and there is no sound basis for granting
28a
greater constitutional protection to statements made in
a petition to the President than other First Amendment
expressions.
McDonald, 472 U.S. at 482, 485 (citations omitted).
As the arguments advanced in the briefs in the case at
bar make clear, the Supreme Court cases we have just
canvassed, while long on nuance, do not yield an easily
identified single common denominator.
San Filippo and the Rutgers AAUP would have us regard
San Filippo’s petitions as activities protected under the first
amendment unless those petitions were “mere shams” or
“baseless litigation.” They stress that none of the very
narrow limitations the Supreme Court has placed on the
right to petition inve'ves an examination of the content of
the petition. They also argue that the petitions at issue in
Noerr and Pennington did not address matters of public
concern, and therefore those cases implicitly rejected the
proposition that petitioning is protected under the first
amendment only if the petition addresses a matter of public
concern. The Rutgers AAUP contends that “there is every
reason that the lines drawn around the right to petition in
public employment be the same as those drawn for selfish
petitioners everywhere.” That is, the Rutgers AAUP would
have us define the contours of the right to petition without
consideration of the context in which that right is exercised.
In contrast, Rutgers argues — we think persuasively —
that “[t}he nature of the limitation upon the petition right
depends upon context.” Rutgers contends that the Supreme
Court cases analyzing the extent of the petition right in the
antitrust, labor law and libel contexts are not necessarily
instructive in the case at bar, which concerns the ability of
a government employer to dismiss an employee for filing
lawsuits and grievances against the employer. This
argument that the scope of the petition right depends upon
the context in which the right is exercised is particularly
persuasive because the scope of the free speech right — a
right that. like the petition right. is stated in unqualified
29a
terms in the first amendment — depends on the context in
which that right is exercised.”
That the scope of the right to petition depends upon
context does not, however, mandate the further conclusion
that the “public concern” threshold of Connick should limit
the right to petition in the context of a government
employer's ability to discipline a public employee. The
general question posed by the case at bar is whether —
notwithstanding the dicta from McDonald quoted above —
there are contexts in which the petition clause protects
values additional to those protected by the speech clause.
McDonald is a case in which the petition clause protects
no value that is not protected by the speech clause. The
petition at issue in McDonald was a letter to the President.
Smith and Knight instruct that not every communication
which the writer denominates a “petition” imposes on the
government agency or official addressed an obligation to
17.San Filippo and the Rutgers AAUP rely upon cases from contexts
other than public employment/retaliatory discharge in support of the
argument that a lawsuit is protected — regardless of content — unless
it is baseless. Most signilicantly. San Filippo contends that our decision
in Hoeber on behalf of the NLRB v. Local 30, 939 F.2d 118 (3d Cir. 1991)
forecloses Rutgers’ position. As explained in note 16, supra, in Hoeber we
held. following Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731
(1983), that a court may not enjoin a pending lawsuit as an unfair labor
practice unless the plaintiff had an improper motive for bringing the suit
and the suit had no reasonable basis. See Hoeber. 939 F.2d at 126. San
Filippo argues that, because the breach of contract lawsuit at issue in
Hoeber appeared to address only matters of private concern, the case
supports his argument that his lawsuits and grievances addressing only
matters of private concern are protected under the petition clause. We
disagree. Because this case does mot arise in the public
employment/retaliatory discharge context. it is not on point.
Many other cases cited by San Filippo and the AAUP are similarly
inapposite because they arise in other contexts. See. e.g.. Milhouse v.
Carlson, 652 F.2d 371. 373 (3d Cir. 1981) (disciplinary proceedings
allegedly brought against a prisoner in retaliation for having filed a civil
rights lawsuit); Goff v. Burton. 7 F.3d 734. 736 (8th Cir. 1993) (same):
Smith v. Maschner. 899 F.2d 940 (10th Cir. 1990) (same): Wright v.
Newsome. 795 F.2d 964 (llth Cir. 1986) (same); Duvall v. Sharp. 905
F.2d 1188 (8th Cir. 1990) (arrest allegedly made in retaliation for filing
a civil rights lawsuit).
ary ee ee eee
30a
respond. See Knight, 465 U.S. at 285; Smith, 441 U.S. at
465. Accordingly, it is difficult to distinguish in any
meaningful way between words contained in a letter to the
President and words contained in, for example, an
advertisement appearing in the New York Times. This
difficulty presumably was the underpinning of the
McDonald Court's holding that McDonald's words about a
public figure should not be immunized simply because they
appeared in a letter characterized as a “petition.” Moreover,
the reasons for holding that the first amendment does not
immunize maliciously defamatory falsehoods contained in a
newspaper advertisement equally justify holding that the
first amendment does not immunize maliciously defamatory
falsehoods contained in a letter to the President. There is
no value in a petition that seeks to influence the President
by means of false statements. As in the context of speech,
the additional requirement that malice be shown before
liability may be imposed avoids overdeterrence.
The same difficulty in drawing a meaningful distinction
between the speech found in the petition at issue in Schalk
vu. Gallemore, 906 F.2d 491 (10th Cir. 1990) (per curiam)
and other employee speech underlies the holding of that
case. Schalk, a hospital employee, had hand-delivered to
the hospital board members a four-page letter describing
her concerns aboul various management practices at the
hospital. Schalk was formally reprimanded for complaining
about matters unrelated to her area of responsibility. The
reprimand indicated that Schalk would be discharged if she
made further complaints of this nature. After Schalk told a
board member that she wanted to meet with the board to
discuss concerns akin to those described in her letter, she
was terminated. Schalk then filed a lawsuit alleging that
she was fired for writing a letter to, and later speaking with,
board members about management practices, in violation of
her first amendment speech and petition rights.
The Tenth Circuit first held that Schalk’s letter and her
comments to the board member addressed a matter of
public concern. Id. at 496. In a brief analysis of Schalk’s
petition clause claim, the court stated: “In the instant case.
Schalk’s right to petition is inseparable from her right to
speak. As such, we see no reason to subject this claim to
EO ee a ae ee og ee ee
3la
a different sort of analysis.” Id. at 498 (citing McDonald). As
in McDonald, because the “petition” at issue was simply a
letter imposing on the government no obligation to respond,
it was properly analyzable under the conventional Connick
rubric applicable to speech.
The case at bar is unlike Schalk in the sense that what
San Filippo characterizes as “petitions” are not letters to
the government-em»loyer, but lawsuits and grievances
directed at the government-employer or its officials.
Submissions of this sort purport to invoke formal
mechanisms for the redress of grievances.”
Notwithstanding this distinction, each circuit court to
consider the issue has held that a public employee who
alleges that he or she was disciplined in retaliation for
having filed a lawsuit against his or her employer does not
state a claim under §1983 unless the lawsuit addressed a
matter of public concern.'® Recognizing that the question is
a difficult one, we find ourselves unable to subscribe to the
reasoning of our sister circuits.
Of these circuits, the Seventh Circuit has addressed the
issue in the most detail. In Altman v. Hurst, 734 F.2d 1240
18. Lawsuits, grievances, workers compensation claims. etc. share this
feature of invoking a formal mechanism for redress of grievances against
the government. We occasionally use the term “lawsuit” to encompass
any device invoking a mechanism for redress of grievances against the
fovernment.
19. See White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d
Cir. 1993): Day v. South Park Independent Sch. Dist.. 768 F.2d 696, 703
(5th Cir. 1985). cert. denied. 474 U.S. 1101 (1986): Rathjen v. Litchfield.
878 F.2d 836. 842 (5th Cir. 1989); Rice v. Ohio Dep't of Transportation.
887 F.2d 716. 720-21 (6th Cir. 1989). vacated on other grounds, 497
U.S. 1001 (1990); Altman v. Hurst. 734 F.2d 1240. 1244 n.10 (7th Cir.
1984) (per curiam): Belk v. Town of Minocqua. 858 F.2d 1258. 1261-62
(7th Cir. 1988); Gearhart v. Thome. 768 F.2d 1072. 1073 (9th Cir. 1985)
(per curiam): Renfroe v. Kirkpatrick, 722 F.2d 714. 715 (11th Cir.) (per
curiam). cert. denied. 469 U.S. 823 (1984). Cf, Boyle v. Burke, 925 F.2d
497. 505-06 (Ist Cir. 1991) (dicta). But see Fuchilla v. Prockop. 682 F.
Supp. 247. 262 (D.N.J' 1987). (reading California Motor Transport to
support the holding that a public employee may not be retaliated against
for filing a lawsuit regardless of whether the lawsuit addressed a matter
of public concern).
32a
(7th Cir. 1984) (per curiam), decided before McDonald, the
Seventh Circuit held that a police officer who alleged that
_ he was reassigned, denied overtime opportunities and
otherwise harassed in retaliation for filing a lawsuit against
his employer addressing matters of private concern did not
state a claim under §1983. The court explained:
Several Supreme Court cases indicate that the first
amendment protects a person's right to seek judicial
redress of grievances. See NAACP v. Button, 371 U.S.
415, 429. A close reading of these cases clearly shows
that the Court was concerned about political
expression and not the general right to bring suit in a
federal court of law. See, e.g., Button, 371 U.S. at 429.
(“In the context of NAACP objectives, litigation is not a
technique of resolving private differences; it is a means
of achieving the lawful objectives of equality of
treatment by all government, federal, state and local,
for the members of the Negro community in this
county. It is thus a form of political expression.”). This
formulation dovetails with the Connick rule that limits
the first amendment protection given public employees
to pronouncements on public issues. Thus, a private
oflice dispute cannot be constitutionalized merely by
filing a legal action.
Id. at 1244 n.10 (some citations omitted). That is, the
20. The Seventh Circuit reiterated this sentiment in Yatvin v. Madison
Metropolitan School Dist.. 840 F.2d 412 (7th Cir. 1988):
The contention that every act of retaliation against a person who
files charges of wrongdoing with a public agency denies freedom of
speech or the right to petition for redress of grievances rests on the
following syllogism: litigation is a method recognized by the Supreme
Court. as in NAACP v. Button. 371 U.S. 415. 429-31 (1963). for
advancing ideas and seeking redress of grievances: retaliation
against one who institutes litigation (or its condition precedent in
Title VII litigation, the lodging of charges with civil rights agencies)
discourages litigation: therefore such retaliation invades a First
Amendment right. The weakness is the first premise. which is stated
too broadly. Some litigation seeks to advance political or other ideas:
litigation by the NAACP seeking to eliminate public school
segregation is an example. And even when litigation has private
33a
Seventh Circuit explicitly rejected the proposition that the
petition clause protects access to the courts for any reason
other than that the courts may serve as fora for expression.
In Belk v. Town of Minocqua, 858 F.2d 1258, 1261-62 (7th
Cir. 1988), the Seventh Circuit relied on McDonald as
further support for its holding that a public employee may
be terminated in retaliation for filing a grievance unless the
grievance addressed a matter of public concern. The Belk
court stated:
Notwithstanding the central importance Connick
attaches to the content of a public employee's speech,
Belk asks us to accord absolute first amendment
protection, without regard to content, to any grievance
a public employee files or threatens to file. Not only is
there no legal or historical precedent for such a
Stratification of first amendment freedoms, as
McDonald suggests, but such special treatment of the
right to petition would unjustly favor those who
through foresight or mere fortuity present their speech
as a grievance rather than in some other form.
Id. at 1262 (emphasis in original). Again, affording special
treatment to speech found in a grievance is “unjust” only if
no independent reason exists for affording special
protection to a mechanism for redress of grievances against
the government.
rather than public objectives. communications designed to acquaint
individuals with their legal rights are within the scope of the First
Amendment. But not every legal gesture — not every legal pleading
— is protected by the First Amendment. Remedies against baseless
litigation do not violate the First Amendment's right to petition: nor
do laws aimed at deterring ‘far out’ suits by requiring the loser to
pay the winner's legal fees.
Id. at 419 (citations omitted). Because the court concluded that Yatvin's
sex discrimination claim against her employer had purely private
objectives. the court rejected Yatvin's claim that her employer's
retaliation violated the petition clause. Id. at 419-20. This conclusion
may. however, be regarded as dictum because the court also held that
Yatvin's first amendment claim was foreclosed by her failure to raise the
claim below with sufficient particularity. See id. at 420.
————————~ma
34a
There is an additional argument for testing a public
employee's lawsuits against his or her employer by the
Connick public concern threshold not made in the Seventh
Circuit cases: namely, that the governmental interests
which led the Court to impose the public concern threshold
on employee speech would appear to justify imposing a
similar threshold on employee lawsuits and grievances.
Under Connick, employers are able to discipline their
employees for speech unless the speech addresses a matter
of public concern. The rationale for this distinction is that
it represents an effort to seek “a balance between the
interests of the [employee], as a citizen, in commenting
upon matters of public concern and the interest of the
State, as an employer, in promoting the efficiency of the
public services it performs through its employees.” Connick,
461 U.S. at 142. The Supreme Court recently elaborated on
the basis for authorizing the government as employer to
exercise broader power in regulating the speech of its
employees than the government as sovereign may exercise
in regulating the speech of the general public:
[T]he extra power the government has in this area
comes from the nature of the government's mission as
employer. Government agencies are charged by law
with doing particular tasks. Agencies hire employees to
help do those tasks as effectively and efficiently as
possible. When someone who is paid a salary so that
she will contribute to an agency's effective operation
begins to say or do things that detract from the
agency's effective operation, the government employer
must have some power to restrain her. The reason the
government may, in the example given above, fire the
{high-ranking} deputy [who criticizes her _ state
governor's legislative program] is not that this dismissal
would somehow be narrowly tailored to a compelling
government interest. It is that the governor and the
governor's staff have a job to do, and the governor
justifiably feels that a quieter subordinate would allow
them to do this job more efficiently.
The key to First Amendment analysis of government
employment decisions, then, is this: The government's
interest in achieving its goals as eflectively and
3Sa
efficiently as possible is elevated from a relatively
subordinate interest when it acts as sovereign to a
relatively significant one when it acts as employer. The
government cannot restrict speech of the public at large
just in the name of efficiency. But where the
government is employing someone for the very purpose
of effectively achieving its goals, such restrictions may
well be appropriate.
Waters v. Churchill, 62 U.S.L.W. 4397, 4401 (May 31,
1994).
We recognize that employee lawsuits and grievances
against a public employer can, on occasion, be divisive in
much the same way that employee speech can be.
Nonetheless, we believe that there is an independent reason
— a reason of constitutional dimension — to protect an
employee lawsuit or grievance if it is of the sort that
constitutes a “petition” within the meaning of the first
amendment.
The first amendment's petition clause imposes on the
United States an obligation to have at least some channel
open for those who seek redress for perceived grievances.
Through its incorporation of the first amendment, the
fourteenth amendment’s guarantee of “liberty” imposes the
same obligation on the states. Smith and Knight stand only
for that proposition that neither the United States nor the
several states are required to recognize as a “petition”
whatever particular communication is so characterized by
one who chooses to protest governmental acts or omissions.
But when government — federal or state — formally adopts
a mechanism for redress of those grievances for which
government is allegedly accountable, it would seem to
undermine the Constitution's vital purposes to hold that
one who in good faith files an arguably meritorious
“petition” invoking that mechanism may be disciplined for
such invocation by the very government that in compliance
with the petition clause has given the particular
mechanism its constitutional imprimatur. We do not share
the Seventh Circuit's apprehension that not applying the
Connick “public concern” standard to retaliatory dismissal
of a public employee who files a “petition” would constitute
“special treatment of the right to petition [that] would
36a
unjustly favor those who through foresight or mere fortuity
present their speech as a grievance rather than in some
other form.” Balk, 858 F.2d at 1262. As applied to
communications that are not petitions, the Connick rule
means that a public employee who goes public — e.g., by
writing to The New York Times — with an employment
dispute that is not of “public concern” runs the risk of
being disciplined by her public employer for undertaking to
draw public attention to a private dispute. But when one
files a “petition” one is not appealing over government's
head to the general citizenry: when one files a “petition” one
is addressing government and asking government to fix
what, allegedly, government has broken or has failed in its
duty to repair.”'
21. Like the Seventh Circuit in Belk. our dissenting colleague draws
comfort from the Supreme Court's observation in McDonald that the first
amendment right to petition and the first amendment “freedoms to
speak. publish and assemble . . . are inseparable” and hence “there is no
sound basis for granting greater constitutional protection to statements
made in a petition to the President than other First Amendment
expressions.” 472 U.S. at 485. But it is important to note that the
Court's language in McDonald was addressed to a question very different
from the question presented in Helk and the case at bar. In McDonald
the question was whether one who was defamed in a letter was disabled
from suing the letter-writer by virtue of the fact that the letter was
written to the President and thus could be characterized as a “petition”
within the meaning of the first armendment. In holding that the letter-
writer was amenable to suit at the hands of the person defamed. under
the same state law standards. compatible with New York Times v.
Sullivan. 376 U.S. 254 (1964). that would have applied had the letter
been written to a newspaper. the Court was not called upon the consider
the question presented in the case at bar — namely. whether the
addressee of a “petition” (in McDonald. the President) could sanction the
letter-writer for pursuing a constitutionally charted pathway of
communication with government.
It is also worthy of note that the letter-writer in McDonald apparently
did not limit the audience for his defamatory efforts to President Reagan.
The letter-writer allegedly also saw fit to send copies of one or both of the
letters to Senator Jesse Helms. three members of the House of
Representatives. and the then Director of the Federal Bureau of
investigation. William Webster. as well as then Presidential Adviser
Edwin Meese. 472 U.S. at 481.
37a
One example of formal governmental adoption of a
mechanism for redress of grievances is entry into a
collective bargaining agreement that provides for a
grievance procedure. Another example of formal government
adoption of such a mechanism is waiver of sovereign
immunity from suit in the courts of that sovereign. If
government could, qua employer, freely discharge an
employee for the reason that the employee, in order to
present a non-sham claim against the government-
employer, invoked such a mechanism, the petition clause of
the first amendment would, for public employees seeking to
vindicate their employee interests, be a trap for the unwary
— and a dead letter.
The petition clause of the first amendment was not
intended to be a dead letter — or a graceful but redundant
appendage of the clauses guaranteeing freedom of speech
and press. To be sure, “the right to petition,” as the Court
noted in McDonald, “is cut from the same cloth as the other
guarantees of that Amendment... .” 472 U.S. at 482. But
the Court in McDonald also stressed that the right to
petition “is an assurance of a particular freedom of
expression.” Ibid. More to the point, the right to petition
has a pedigree independent of — and substantially more
ancient — than the freedoms of speech and press. The
Court pointed out in McDonald that “[T}he historical roots
of the Petition Clause long antedate the Constitution. In
1689, the Bill of Rights exacted of William and Mary stated:
‘[I|t is the Right of the Subjects to petition the King.’ 1 Wm.
& Mary, Sess. 2, ch. 2.” Ibid.™ But of particular moment for
22. The remote antecedents of the right of petition trace back to Magna
Carta, chapter 61 of which provides:
. . » if we or our justiciar. or our bailiffs, or any of our servants shall
have done wrong in any way toward any one. or shall have
transgressed any of the articles of peace or security: and the wrong
shall have been shown to four barons of the aforesaid twenty-five
barons, let those four barons corre to us or to our justiciar, if we are
out of the kingdom. laying before us the transgression, and let them
ask that we cause that transgression to be corrected without delay.
But of course the right lukewarmiy acknowledged by King John was
exercisable only by his barons.
PE RE Te EC EE Yee ee ST ee eT Ta bs ee ed
38a
the issue before us is that Parliament, in the Bill of Rights,
not only declared the right of subjects “to petition the King,”
but went on to provide that “all committments [sic] and
prosecutions for such petitioning are illegal.” 1 W. & M., 2d
Sess., c. 2, §5, 16 Dec. 1689. The right to petition and its
attendant, and indispensable, immunity from
“committments and prosecutions” were, in the Court's
felicitous phrase, “exacted of William and Mary,” McDonald,
472 U.S. at 482, in 1689. That was precisely one hundred
23. The critical importance of Parliament's declaration that it wae
“illegal” to penalize a subject “for such petitioning’ was made plain by
Blackstone in his celebrated Commentaries, the series of law books best
known to American lawyers of the late eighteenth and early nineteenth
centuries:
If there should happen any uncommon injury. or infringement of
the rights before mentioned. which the ordinary course of law is too
defective to reach, there still rermains a fourth subordinate right.
appertaining to every individual. namely. the right of petitioning the
king. or either house of parliament, for the redress of grievances. In
Russia we are told that the czar Peter established a law. that no
subject might petition the throne till he had first petitioned two
different ministers of state. In case he obtained justice from neither.
he might then present a third petition to the prince: but upon pain
of death. if found to be in the wrong: the consequence of which was.
that no one dared to offer such third petition: and grievances seldom
falling under the notice of the sovereign. he had little opportunity to
redress them. The restrictions. for some there are. which are laid
upon petitioning in England. are of a nature extremely different:
and. while they promote the spirit of peace. they are no check upon
that of liberty. Care only must be taken, lest. under the pretence of
petitioning. the subject be guilty of any riot or tumult. as happened
in the opening of the memorable parliament in 1640: and. to prevent
this. it is provided by the statute 13 Car. Il. st. 1. C. 5, that no
petition to the king. or either house of parliament. for any alteration
in church or state. shall be signed by above twenty persons. unless
the matter thereof be approved by three justices of the peace. or the
major part of the grand jury in the country: and in London by the
lord mayor. aldermen. and common council: nor shall any petition
be presented by more than ten persons at a time. But. under these
regulations, it is declared by the statute | W. and M. st. 2. c. 2. that
the subject hath a right to petition: and that all commitments and
prosecutions for such petitioning are illegal.
1 William Blackstone. Commentaries *1 43.
39a
years before the first Congress charged with implementing
America’s new Constitution submitted to the states, for
ratification, proposed amendments to that Constitution
permanently establishing in American law the right of
petition and other fundamental rights. There is no
persuasive reason for the right of petition to mean less
today than it was intended to mean in England three
centuries ago.
On remand, the district court should consider which, if
any, of San Filippo’s grievances and lawsuits constituted a
“petition,” and Sheth any such “petition” was non-sham.
The mere act of filing a non-sham petition is not a
constitutionally permissible ground for discharge of a
public employee.
B. Substantial factor
Our decision to vacate the grant of summary judgment
on San Filippo's first amendment claim also requires us to
consider Rutgers’ argument that, contrary to the district
court's conclusion, it was entitied to summary judgment
because San Filippo cannot show that his protected
conduct “was a pebainetiol factor in the alleged retaliatory
a Czurlanis v. Albanese, 721 F.2d 98, 103 (3d Cir.
] ).
The district court explained that courts have drawn an
inference of retaliation based on the nearness in time
between the protected activity and a discharge. Although
the district court believed that no fact-finder could
reasonably infer that San Filippo’s protected activities in
1977-1979 and 1983-84 were a_ substantial factor
motivating his dismissal, the court concluded that San
phe was brought up on charges and dismissed
sufficiently soon after he made protected statements in or
around 1986” to raise an inference of retaliation.”
24. The court presumably was referring to San Filippo’s disputes with
senior members of his department over their efforts to obtain
“inappropriate percentages” of his federal grants. and particularly his
complaint to the University in October, 1985 about the chemistry
department's attempts to divert funds improperly from his federal grants
under the guise of a “shop-user's fee.” See page 5. supra San Filippo
was orally informed of the charges against him in November. 1985.
25. The activities found by the district court to address matters of public
concern are described briefly at note 13, supra
40a
At the outset, we disagree with the district court's view
that San Filippo’s protected activities in 1977-79 and
1983-84 were too far removed in time to support any
inference of retaliation. Although a dismissal that occurs
years after protected activity might not ordinarily support
an inference of retaliation, where, as here, a plaintiff
engages in subsequent protected activity and the plaintiff is
dismissed shortly after the final episode of such protected
activity, a fact-finder may reasonably infer that it was the
aggregate of the protected activities that led to retaliatory
dismissal. This inference would be particularly strong if the
plaintiff can show that the decisionmaker lacked a pretext
on which to dismiss the plaintiff until shortly before the
time of dismissal.
Rutgers argues that the temporal proximity between San .
Filippo’s protected activities and the _ disciplinary
proceedings against him cannot, by itself, support an
inference that the protected activity was a substantial
factor in the alleged retaliatory action. We need not address
this argument, however, because San Filippo has additional
evidence to support his allegation that he was dismissed in
retaliation for his protected activity. The evidence described
above as support for San Filippo's position that he would
not have been dismissed absent his protected activities —
the statements of Dean Edelstein and Board of Governors
member Wechsler and the evidence that other faculty
members committed infractions of comparable seriousness
yet went unpunished — equally support his position that
his protected conduct was a substantial factor motivating
his dismissal. On the basis of this evidence, we conclude
that a fact-finder could reasonably find that San Filippo's
protected conduct was a substantial factor motivating his
dismissal.
Rutgers next argues that San Filippo is inappropriately
seeking to impute to the members of the Board of
Governors the improper motives of those responsible for
bringing charges against him. Rutgers contends that, under
Monell v. Department of Social Services. 436 U.S. 658 (1978)
and St. Louis v. Praprotnik, 485 U.S. 112. 123 (1988), the
University can only be held liable if the Board members
personally determined to dismiss San Filippo on the basis
4la
of his first amendment activities or knowingly acquiesced in
the decision to do so by approving both the decision and
the allegedly improper basis for it. But this, according to
San Filippo, is too narrow a standard of liability: in San
Filippo’s view, the University should be held liable if the
fact-finder concludes that (a) the charges against San
Filippo were initiated in retaliation for the exercise of his
first amendment rights and (b) the Board members were
“deliberately indifferent” to that fact.
In Monell, the Supreme Court held that, although
municipalities and other local governing bodies can be sued
under 42 U.S.C. §1983, liability cannot be imposed on such
an entity on a theory of vicarious liability for the torts of the
entity's employees. Rather, a local governing body can be
held liable only for an official policy or custom. See Monell,
436 U.S. at 694. A single decision by a final policy-maker,
as defined by state law, may constitute official policy. See
Pembaur v. City of Cincinnati, 475 U.S. 469, 480-81 (1986).
Rutgers argues that the Board of Governors is the only final
policy-maker in this case, and that the Board did not have
a retaliatory motive when it voted to dismiss San Filippo.
San Filippo contends that he need only show that the
Board members were “deliberately indifferent” to the fact
that he had been brought up on charges in retaliation for
the exercise of his first amendment rights. He relies on City
of Canton, Ohio v. Harris, 489 U.S. 378 (1989), in which the
Supreme Court held that Canton's failure to train police
officers to give medical attention could be a basis for
imposing §1983 liability if “the failure to train amount(ed]
to deliberate indifference to the rights of persons with
whom the police [came] into contact.” Id. at 388. The
Canton Court explained that the use of the deliberate
indifference standard was most consistent with the Court's
“admonition in Monell that a municipality can be liable
under §1983 only where its policies are the ‘moving force
[behind] the constitutional violation."” id at 388-89
(citations omitted).
The Tenth Circuit extended Canton to a situation
analogous to the case at bar in Ware v. Unified School Dist.
No. 492, 902 F.2d 815 (10th Cir. 1990). The plaintiff in
Ware served as clerk to a school board and secretary to the
ERR RO A TET ET? ye. ORT ee Ore eT MEE eta Ss
ih a i Tg ik MN a rd De ea tal GE eed All a tt i Pil Ze
mn vee” Pee a an
42a
superintendent of the school district. She alleged that her
superintendent had recommended to the board that she be
dismissed in retaliation for her protected speech, and that
the board had acted with deliberate indifference to her first
amendment rights in approving the termination. The Ware
court rejected the board's argument that Canton be limited
to its facts, and held:
There is evidence in the record to support Ware's
claim that the Board acted with deliberate indifference
to her First Amendment rights in approving her
termination. . . . The record contains evidence that
board members knew about Ware's public stand on the
bond issue and were informed of her belief that her
termination was in retaliation for that stand. . .
Notwithstanding the above indications that the board
knew [the superintendent's] recommendation was in
retaliation for Ware's position on the bond issue, the
board made no independent investigation, asked [the
superintendent] no questions about the reasons for his
decision. . . . The evidence is sufficient to create a jury
question on whether the board acted with deliberate
indifference to Ware's First Amendment rights in
approving [the superintendent's] recommendation.
Id. at 819-20.
We agree with the Tenth Circuit that its application of the
deliberate indifference standard of Canton is_ most
consistent with the “‘admonition in Monell that a
municipality can be Hable under §1983 only where its
policies are the moving force [behind] the constitutional
violation.’” Ware, 902 F.2d at 819 (quoting Canton, 489
U.S. at 388-89) (citations omitted). Nor is this use of the
deliberate indifference standard inconsistent with City of St
Louis v. Praprotnik, 485 U.S. 112, 124 (1988) (plurality
opinion). Praprotnik recognized that final decision-making
power may be delegated, and that a local governing body
may be held liable based upon the exercise of this delegated
power. See id. at 124. But the Court added:
Simply going along with discretionary decisions made
by one’s subordinates, however, is not a delegation to
them of the authority to make policy. It is equally
43a
consistent with a presumption that the subordinates
are faithfully attempting to comply with the policies
that are supposed to guide them. It would be a
different matter if a particular decision by a
subordinate was cast in the form of a policy statement
and expressly approved by the _ supervising
policymaker. It would also be a different matter if a
series of decisions by a subordinate official manifested
a “custom or usage” of which the supervisor must have
been aware. . . . But the mere failure to investigate the
basis of a subordinate’s discretionary decisions does
not amount to a delegation of policymaking authority,
especially where (as here) the wrongfulness of the
subordinate's decision arises from a retaliatory motive
or other unstated rationale.
Id. at 130. In addition to holding that the “mere failure to
investigate the basis of a subordinate’s discretionary
decisions” does not make the subordinate a final policy-
maker, the Praprotnik Court also implicitly held that the
local governing body is not liable for the mere failure to
investigate by the final policy-maker.
Our use of a “deliberate indifference” standard does not
make the University liable for the Board's mere failure to
investigate — that is, the University would not be liable if,
oblivious to the motivation behind the decision to charge
San Filippo and to initiate dismissal proceedings, the Board
had decided to dismiss San Filippo for wholly legitimate
reasons. Such a scenario would not amount to deliberate
indifference of the Board to San Filippo's first amendment
rights. The scenario described by San Filippo, however.
goes beyond that of an oblivious Board failing to
investigate.
San Filippo presented to the district court evidence that
the Board had reason to suspect that San Filippo’s prior
protected activities had been a substantial motivating factor
in the decision to initiate dismissal proceedings. As the
magistrate judge noted, “the record is replete with evidence
which indicates that the information regarding San Filippo's
protected activities was well known to the individual
members of the Board.” (A.2152 n.15). Moreover, Wechsler's
dissenting opinion discloses awareness at the level of the
44a
Board of San Filippo’s contention before the Senate Panel
that other faculty members had had students perform
uncompensated work for them, yet were not disciplined.
(A.325). Finally, the Board's opinion ‘recognizes that San
Filippo’s attorney. Ira Goldberg, had argued that “the
charges brought against Professor San Filippo were
fabrications based on a personal ‘vendetta’ against him by
members of his Department.” (A.304). As in Ware, this
evidence suffices to create a question for the fact-finder
——- whether the ultimate decision-maker acted with
deliberate indifference to the plaintiffs first amendment
rights by approving the recommendation that the plaintiff
be dismissed.”
26. The Supreme Court's recent decision in Waters v. Churchill 62
U.S.L.W. 4397 (May 31. 1994) provides additional support for our use of
the Canton “deliberate indifference” standard in the case at bar. In
Waters, the Court addressed the question whether the Connick test
should be applied to what the government employer thought the
employee said. or to what the fact-finder ultimately determines was said.
The Court took an intermediate position. holding that a court should
accept the employer's factual conclusions, but only if the employer was
reasonable in arriving at those conclusions. Id. at 4401-02. In
elaborating on what would constitute reasonable conduct by an
employer. the Court explained:
If an employment action is based upon what an employee
supposedly said. and a reasonable supervisor would recognize that
there is a substantial likelihood that what was actually said was
protected, the manager must tread with a certain amount of care.
This need not be the care with which trials. with their rules of
evidence and procedure. are conducted. It should. however. be the
care that a reasonable manager would use before making an
employment decision — discharge. suspension. reprimand. or
whatever else — of the sort involved in the particular case. Justice
Scalia correctly points out that such care is not normally
constitutionally required unless the employee has a protected
property interest in her job. but we believe that the possibility of
inadvertently punishing someone for exercising her First
Amendment rights makes such care necessary.
Id. at 4402. By holding that the University may be held liable if a fact-
finder finds that the Board of Governors was deliberately indifferent to
the possibility that dismissal proceedings were initiated against San
Filippo in retaliation for the exercise of his first amendment rights. we
similarly require his employer to “tread with a certain amount of care” to
avoid “the possibility of inadvertently punishing someone for exercising
{his} First Amendment rights.”
45a
Il. San Filippo's procedural due process claim
San Filippo also asks us to vacate the district court's
grant of summary judgment on his procedural due process
claim. San Filippo argues that his due process rights were
violated because the five members of the Senate Panel that
conducted the hearings and recommended that he be
dismissed were not impartial decision-makers and because
the proceeding was tainted by the appearance of
impropriety. Specifically, San Filippo alleges in his Third
Amended Complaint:
[The] members of the panel were negotiating with the
Rutgers Administrator chiefly responsible for
supervising the prosecution of the case for additional
compensation, thus giving them a financial incentive in
the outcome of the proceedings, in that they
reasonably would believe that they would get additional
compensation only if their final decision was favorable
to the Administrator. Furthermore, all the contacts for
such additional compensation were held in secret, thus
leading to the appearance of impropriety on the part of
the Panel.
Both the magistrate judge and the district court rejected
San Filippo’s argument that a fact-finder could reasonably
infer that the panel members believed they were more likely
to be compensated if they recommended that San Filippo be
dismissed. In addition, the magistrate judge and district
court rejected San Filippo’s argument that the “secret”
negotiations about compensation created an appearance of
impropriety. We agree with the conclusions reached by the
magistrate judge and district court.
The Senate Panel was composed of five faculty members,
chosen by lot after for-cause and peremptory challenges,
whose responsibility was to hold hearings and determine
whether the charges brought against San Filippo were true
and constituted grounds for his dismissal. The panel had
twelve meetings after it convened on December 5, 1986 and
before the evidentiary hearings began. Between March 24,
1987 and Sept. mber 22, 1987, the panel devoted forty-six
days to evidentiary hearings. After closing arguments, the
panel held another twelve meetings before it produced a
" Die CSc arti il iS agi as
46a
forty-four page report on December 21, 1987. Throughout
the hearings, San Filippo was represented by two attorneys,
Ira and Pamela Goldberg, and a union counsellor provided
by the Rutgers AAUP, Dr. Wells Keddie.
With the knowledge and consent of San Filippo’s
attorneys, Dr. Keddie, on March 5, 1987, sent a
memorandum to the panel chair, Dr. Szatrowski, copied to
San Filippo and his attorneys. The memorandum suggested
various ways to deal with time and scheduling problems:
I don’t have a single original or good idea as to how to
resolve the time bind, but there are some things which
might mitigate the impact upon the committee
members. One of them is the course you are already
pursuing, the seeking of some relief from normal duties
while this demanding activity proceeds. It seems to me
that if the proceedings cannot be concluded by the May
15 date, it would be entirely appropriate to request the
equivalent of Summer Session pay for all of you or
released time for those of you (yourself) on “summer
vacation” in the upcoming trimester. But another
possibility might well be worth considering: released
time after this is all over to enable committee members
to make up for considerable lost time, energy, and
opportunity.
Dr. Keddie also suggested that panel members “be provided
meals and accommodations.”
When it became clear that the hearings would not
conclude before commencement, Szatrowski asked San
Filippo's attorney, Ira Goldberg, if he had any objection to
Szatrowski asking Dr. Susan Cole, Vice President for
University Administration and Personnel, for summer
compensation for the panel members. Szatrowski and
Goldberg both testified in their affidavits that Goldberg
voiced no objectiorr-and wished Szatrowski “good luck.”
When Szatrowski first requested additional compensation
and/or released time in the spring of 1987. Cole denied the
request because she believed that the panel members were
already under an obligation to participate without extra
compensation. In late spring, Szatrowski renewed the
request in light of the length of the hearings and the fact
47a
that certain panel members were ordinarily not required to
be in attendance at Rutgers over the summer. By letters
dated July 29, 1987, Cole granted the members their
requested extra compensation and release time. San Filippo
was not told of this decision.
Shortly after the summer increases were granted,
Szatrowski asked Cole for further additional compensation
when it became clear that the hearings would continue into
the fall. Cole testified that when Szatrowski approached her
about the matter of further payments, she “told him when
the panel was finished with its business, that we could
discuss the matter again.” Szatrowski similarly testified:
When I asked if this [the refusal to grant more
compensation] meant that regardless of the amount of
additional time spent on this matter by the panelists
while carrying out their normal duties, there would be
no further consideration for additional compensation in
the future, Dr. Cole indicated that there would be no
consideration possible until after the completion of the
hearings.
Ultimately, after the panel issued its final report
recommending that San Filippo be dismissed, Cole
recommended that the panel members receive extra
compensation.
Based upon this factual scenario, San Filippo alleges that
the panel members would have been tempted to reach an
outcome in Rutgers’ favor because they would have believed
that they were more likely to get extra compensation if they
did so. We agree with the magistrate judge and district
court that there is insufficient evidence to support an
inference that the faculty members believed that their
receipt of compensation was tied to the outcome of the
proceedings. The cases cited by San Filippo are cases in
which the adjudicator had a direct financial interest in the
outcome. See, e.g., Tumey v. Ohio, 273 U.S. 510, 531
(1927) (mayor acting as judge shared in the fees and costs
levied by him): Ward v. Village of Monroeville, 409 U.S. 57.
60 (1972) (mayor responsible for village finances could not
act as judge when fines and forfeitures provided substantial
portion of village funds). The Supreme Court has held that
48a
the impermissible pecuniary interest must be realistic and
more than “remote.” Marshall v. Jerrico, Inc., 446 U.S. 238.
250 (1980). We find no evidence in the record to support a
conclusion that the panel members believed that they were
more likely to be compensated if they recommended San
Filippo’s dismissal.
San Filippo alternatively argues that the panel members’
participation in the hearings while negotiating for additional
compensation created an appearance of impropriety. See
Commonwealth Coatings Corp. v. Continental Casualty Co..,
393 U.S. 145, 150 (1968) (arbitration panel “not only must
be unbiased but must also avoid the appearance of bias”).
Under Commonwealth Coatings, to prevail on an
“appearance of impropriety” due process claim, San Filippo
must establish both that the events in question would
cause one to reasonably question the panel's impartiality
and that the information was concealed from San Filippo.
San Filippo makes much of the fact that he was not told
about the meetings between Szatrowski and Cole; however,
in light of the fact that Keddie suggested that Szatrowski
broach the subject of extra compensation, these meetings
do not have the invidious character San Filippo suggests.
Finally, San Filippo argues that he should have had the
opportunity to depose Szatrowski to determine what was
said in the conversations between Szatrowski and Cole. San
Filippo contends that, although he noticed Szatrowski's
deposition in August 1989, all discovery was stayed after
November 1989 when the motions for summary judgment
were filed. As the district court noted, San Filippo has failed
to explain why Szatrowski was not deposed before August
1989 — particularly, why he was not deposed during the
summer and fall of 1989 when San Filippo deposed wine
other current and former officials and employees of
Rutgers. Moreover, San Filippo does not indicate how he
expects the deposition testimony of Szatrowski to differ
from the testimony found in Szatrowski's affidavit, dated
April 2, 1990. For these reasons, we conclude that the
district court did not abuse its discretion by refusing to
delay decision on the summary judgment motions until San
Filippo had a chance to depose Szatrowski.
49a
IV. Conclusion
For the foregoing reasons, we affirm in part and vacate in
part the order of the district court. We affirm the district
court's grant of summary judgment in Rutgers’ favor on
San Filippo’s due process claim. We vacate the district
court’s grant of summary judgment in Rutgers’ favor on
San Filippo’s first amendment claim, and remand for
proceedings consistent with this opinion.
tn
50a
BECKER, Circuit Judge, concurring and dissenting.
While I agree with almost all of the majority opinion, |
cannot join in the conclusion to Part IIA, pages 33 to 37,
holding that a public employee is protected under the
Petition Clause against retaliation for having filed a petition
(in the nature of a lawsuit or grievance) addressing a matter
of purely private concern. I would adopt the position of the
seven other circuits which hold that a public employee
plaintiff who has “petitioned” is in no better position than
one who has merely exercised free speech. See Majority
Typescript at 29-30 n.19 (listing circuits).
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 opinion.
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 a nutshell, I simply do not believe that the fact that the
government adopts a formal redress mechanism gives one
who pursues it more protection than if the person had
written a letter to the editor or made a speech. As the
Supreme Court explained in McDonald:
The Petition Clause . . . was inspired by the same
ideals of liberty and democracy that gave us the
freedoms to speak, publish, and assemble. These First
Amendment rights are inseparable, and there is no
sound basis for granting greater constitutional
protection to statements made in a petition to the
President than other First Amendment expressions.
472 U.S. at 484-85. The same holds true when the petition
is addressed to the courts or to university officials.
In my view, the Supreme Court would be surprised to
learn that, although, as a result of “the nature of the
government'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)
Sla
(quoted in Majority Typescript at 33), the government
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 contends would be the
consequence of my interpretation of the Clause, Majority
Typescript at 35, is am 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.
The majority argues that in contrast to speech on a
matter of private concern, “when one files a ‘petition’ one is
not appealing over government's head to the general
citizenry: when one files a ‘petition’ one is addressing
government and asking government to fix what, allegedly,
government has broken or has failed in its duty to repair.”
Majority Typescript at 34. But the libelous letter to the
President at issue in McDonald, 472 U.S. at 484-85, took
the fomnn of an address to government rather than the
general citizenry, and yet the Court held that the letter
received no greater constitutional protection as a result.
And the fact that San Filippo’s speech addressed
government did not make it any less disruptive of the
workplace environment than if it had addressed the general
public; indeed, the speech may have been more disruptive
because it still reached the public (lawsuits, for example,
are matters of public record) and, in addition, compelled
the university to respond to the lawsuits and grievances.
The majority argues that it would undermine the
Constitution’s purposes to allow government to punish
someone for invoking a mechanism to which government
has given “its constitutional imprimatur.” Majority
Typescript at 34. However, the constitutional imprimatur of
the Petition Clause applies equally to the letter to the
President at issue in McDonald as to the lawsuits and
grievances at issue here. By waiving sovereign immunity to
suit or adopting grievance procedures, the government may
give special statutory/regulatory imprimatur to these
mechanisms as opposed to other forms of petitions such as
letters, but it does not give them a special constitutional
52a
imprimatur. Moreover, the government has given its
regulatory imprimatur to the letter at issue in McDonald by
setting up an office in the White House that is designed to
respond to correspondence. Finally, for lawsuits at least,
the state’s waiver of sovereign immunity is not specific to
suits by public employees and thus may not be at all meant
as a recognition of an employee's right to file repeated
lawsuits against his or her employer.
Nor, by adopting such petition mechanisms, does the
government somehow increase the employee's interest in
having free license to protest his or her employer's
decisions. For example, San Filippo would have had the
same interest in protesting the failure of the chemistry
department to recommend him for a full professorship if the
university had not adopted a grievance procedure. Connick
declares that this interest is outweighed by the university's
interest in regulating its work environment.
Finally, the majority's suggestion that a _ contrary
interpretation would render the Petition Clause a “dead
letter” is hyperbolic. Inter alia, the clause would still have
use when there is a “petition,” in lieu of more conventional
speech. Moreover, even if all petitions now constitute
speech (given the broad interpretation the Supreme Court
' has given to speech), I do not see why it matters that the
guarantees overlap. There were certainly petitions that did
not constitute speech when the First Amendment was
ratified, meaning that the two clauses were not redundant
when initially adopted. In addition, the First Amendment's
guarantees of free speech and a free press also
substantially overlap. See Laurence H. Tribe. American
Constitutional Law, § 12-22, at 971 & nn. 2-3 (2d ed. 1988).
Cf. Branzburg v. Hayes, 408 U.S. 665, 684 (1972) (“It has
generally been held that the First Amendment does not
guarantee the press a constitutional right of special
information not available to the public generally.”) At least
the Petition Clause serves the function of emphasizing that
freedom to petition the government directly is an important
part of freedom of speech and prevents courts from deleting
the petition right. As the Supreme Court stated in
McDonald, the right to petition “is an assurance of a
particular freedom of expression.” 472 U.S. at 484-85.
ck : ,
53a
Thus, the majority's “dead letter” argument cannot carry
the day.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circult
54a
APPENDIX C
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Filed Sept. 28, 1993
Civil Action No. 88-2575 (MTB)
JOSEPH SAN FILIPPO, JR.,
Plaintiff,
Vv.
MICHAEL BONGIOVANNI, et al.,
Defendants.
ORDER
This matter having come before the court through the May
25, 1993 Report and Recommendation of the Honorable Stan-
ley R. Chesler, U.S. Magistrate Judge, pursuant to 28 U.S.C.
§ 636(b)(1)(B), Fed.R.Civ.P. 72(b), and Rule 40(D)(5) of the
General Rules of this court; and the court having considered
recommendations of the Magistrate Judge and the objections
of the parties;
IT Is on this 28th day of September, 1993,
For the reasons expressed in the court’s Opinion of even
date hereby
5Sa
ORDERED that plaintiff’s motion for partial summary judg-
ment is denied and defendants’ motion for summary judgment
on the Third Amended Complaint is granted.
/s/ MARYANNE TRUMP BARRY
Maryanne Trump Barry
U.S.D.J.
56a
APPENDIX D
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Filed Sept. 28, 1993
Civil Action No. 88-2575 (MTB)
JOSEPH SAN FILIPPO, JR.,
Plaintiff,
Vv.
MICHAEL BONGIOVANNI, et al.,
Defendants.
BEFORE: ,
HON. MARYANNE TRUMP BARRY, U.S.D.J.
OPINION
I. INTRODUCTION
This matter comes before the court upon the objections of
the parties to the May 25, 1993 Report and Recommendation
of the Honorable Stanley R. Chesler, U.S. Magistrate Judge,
pursuant to Fed.R.Civ.P. 72(b) and District of New Jersey
Local Rule 40D(5). The court will decide this matter based on
57a
the submissions of the parties, without oral argument, pur-
suant to Fed.R.Civ.P. 78. For the reasons which follow, this
court accepts in part, and rejects in part, the Magistrate
Judge's Report and Recommendation. More specifically, this
court denies plaintiff's motion for partial summary judgment
and grants defendants’ motion for summary judgment on the
Third Amended Complaint.
Il. BACKGROUND
On June 13, 1988, pursuant to 42 U.S.C. § 1983, plaintiff
commenced this action against those persons who voted in
favor of his dismissal from his tenured faculty position as a
professor at Rutgers, The State University of New Jersey.
Plaintiff alleged various violations of his rights under the
Constitution of the United States, violations of his corre-
sponding rights under the New Jersey State Constitution, and
a pendent breach of contract claim.
Following the parties’ cross-motions for summary judgment
on a host of issues, this court granted plaintiff’s motion for
partial summary judgment on his void for vagueness claim,
holding that, while plaintiff was stripped of his academic
tenure and dismissed from his position as a professor at Rut-
gers because of ethical violations of “a high order”, ethical
standards were not included within the relevant regulations as
dismissable offenses. San Filippo v. Bongiovanni, 743 F.
Supp. 327 (D.N.J. 1990) [“San Filippo I]. Given the court's
disposition, it was unnecessary to decide the remainder of the
motions. The void for vagueness issue was certified for inter-
locutory appeal to the Court of Appeals for the Third Circuit,
and the action before this court was stayed pending appeal.
The Third Circuit reversed the grant of partial summary judg-
ment and the denial of defendants’ motion on the same claim
and remanded the case for further proceedings. San Filippo v.
Bongiovanni, 961 F.2d 1125, 1139-40 (3d Cir. 1992) [“San
Filippo II”]. After the Supreme Court of the United States
denied plaintiff's petition for certiorari, see San Filippo v.
58a
Bongiovanni, ___ U.S. __, 113 S.Ct. 305 (1992), this court
referred the remaining motions to the Magistrate Judge, pur-
suant to 28 U.S.C. § 636(b)(1)(B), Fed.R.Civ.P. 72(b) and
Rule 40(A)(2) of the General Rules of this court.
In his Report and Recommendation, the Magistrate Judge
addressed plaintiff's motion for partial summary judgment on
his procedural due process claim and defendants’ motion for
summary judgment on plaintiff’s Third Amended Complaint.
Specifically, the issues before the Magistrate Judge were: (1)
violation of plaintiff's First Amendment rights and compa-
rable provisions of the New Jersey Constitution in that dis-
missal proceedings were commenced against him and he was
dismissed in retaliation for his filing of lawsuits, grievances
and complaints against the University and its employees,
activity protected under the First Amendment (Third
Amended Complaint at 4 28); (2) violation of his equal pro-
tection rights and comparable provisions of the New Jersey
Constitution in that he was selectively chosen as a target for
disciplinary action (/d. at 9 29); (3) violation of his proce-
dural due process rights resulting from the conduct of the
University Senate Panel hearing and the negotiation for addi-
tional compensation between one or more members of the
Senate Panel and the administration while the hearing was
ongoing (/d. at 9 30); and (4) breach of contract under the
University’s rules and regulations (/d. at 9 31). See San Filippo
I, 743 F.Supp. at 332.
The Magistrate Judge recommended that summary judg-
ment be granted in favor of defendants on (1) the breach of
contract claim; (2) the procedural due process claim; and (3)
the state constitutional claims to the extent that plaintiff seeks
monetary damages, and determined that the cross-motions for
summary judgment should otherwise be denied. Report &
Recommendation at 9. Plaintiff and defendants timely filed
and served objections to the Report and Recommendation. '
With the permission of this court, the parties were given an
extension of time until July 2, 1993 within which to file their objections
to the Magistrate Judge's Report and Recommendation.
59a
III. DISCUSSION
Preliminarily, one observation must be made. This is a case
which, at bottom, involves whether a tenured professor was
appropriately dismissed for conduct which this court in its
earlier opinion described as “alien to any concept of how civ-
ilized professionals should comport themselves”, 743 F. Supp.
at 338, a description plaintiff does not even pretend to dis-
pute. Unfortunately, however, this rather straightforward issue
has been all but lost in the controversy over what can only be
described as a deluge of discovery demands (which, with lit-
tle exaggeration, can be measured in feet, not inches) and the
invocation by plaintiff of a potpourri of alleged constitutional
violations, imagined but certainly not real, including the void
for vagueness argument which, in this court’s view, had some
merit but which the Third Circuit has deep-sixed. What is
crystal clear after a review of the extraordinary amount of
paper submitted in this case is that none of plaintiff’s claims
passes muster and that he has not stated or shown that he was
arbitrarily and capriciously deprived of his tenure rights or
that he has otherwise brought a valid § 1983 claim. See San
Filippo 11, 961 F.2d at 1139. What is crystal clear, as well, is
that Rutgers, which afforded plaintiff a hearing which lasted
46 days and culminated in a 44 page report recommending his
dismissal and a 60 page opinion by the Board of Governors
sustaining that recommendation, should now, finally, be rid of
plaintiff.
That having been said, the court must address the parties’
objections to the Report and Recommendation of the Magis-
trate Judge. In reviewing the recommendations of a Magis-
trate Judge, this court must apply the standards set forth in 28
U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rule 40(D)(5)
of the General Rules of the United States District Court for
the District of New Jersey. Under the General Rules of this
court, “[a]ny party may object to the Magistrate’s proposed
findings, recommendations or report issued. . . within ten
60a
days of being served with a copy thereof”. Rule 40(D)(5). The
Rule provides further that the judge “shall make a de novo
determination of those portions to which objection is made
and may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the Magistrate”. /d.
None of the parties objects to the Magistrate Judge’s
recommendation regarding summary judgment in defendants’
favor on the breach of contract claim or the state constitu-
tional claims to the extent that money damages are sought.”
Accordingly, this court accepts the recommendations with
regard to those claims, and summary judgment will be granted
as to them.
Plaintiff, however, objects to the Magistrate Judge’s con-
clusion that defendants are entitled to summary judgment on
plaintiff’s due process claim and that plaintiff is not. Alter-
natively, plaintiff contends that, at the very least, he should be
granted more time for further discovery to develop facts to
support this claim. Defendants object to the Magistrate
Judge’s recommendation that their motion for summary judg-
ment insofar as it address plaintiff’s First Amendment and
equal protection claims be denied.
These objections will be addressed in turn.
A. Due Process Claim
Plaintiff asserts that the Magistrate Judge “gave insufficient
weight” (Plaintiff’s Brief in support of Objections to the
Report and Recommendation, hereinafter “P1.Br.”, at 3) to the
evidence demonstrating that “secret” ongoing “negotiations”
and “ex parte” communications between members of the Sen-
ate Panel and the administration during the disciplinary pro-
ceedings and prior to the panel’s issuance of its report,
violated his procedural due process rights. In a nutshell,
. Given that no federal claim is viable, any relief sought, aside
from money damages, on plaintiff's state constitutional claims will not
be entertained. United Mine Workers of America v. Gibbs, 383 U.S. 715,
725-28 (1966).
6la
plaintiff argues that his due process rights were violated
because the panel members were not impartial decisionmak-
ers and the entire proceeding was tainted by the appearance of
impropriety.’
1. Panel’s Pecuniary Interest:
The Senate Panel was composed of five faculty members,
chosen by lot, and charged with holding a hearing and deter-
mining whether the charges brought against plaintiff were true
and constituted grounds for his dismissal under University
regulations. See Report and Recommendation at 3-4 n.3.4 In
the spring of 1987, when it appeared that the hearing would
continue into the summer, the panel Chair, Professor Ted R.
Szatrowski, asked the Vice President for University Admin-
istration and Personnel, Dr. Susan A. Cole, to consider extra
compensation and/or release time from instructional duties for
the panel members. See Second Cole Aff. at 16. Dr. Cole ini-
tially denied the request because she believed that the panel
members were already under an obligation to participate with-
out extra compensation. Second Cole Aff. at 1 7. However, in
late spring, 1987, the request for extra compensation was
renewed and Dr. Cole reconsidered her initial position in light
, These alleged violations are set forth more particularly in plain-
tiff’s Third Amended Complaint, wherein plaintiff alleges, in pertinent
part:
[the] members of the [Senate] panel were negotiating with the
Rutgers Administrator chiefly responsible for supervising the
prosecution of the case for additional compensation, thus giving
them a financial interest in the outcome of the proceedings, in
that they reasonably believed that they would get additional
compensation only if their final decision was favorable to the
Administrator. Furthermore, all the contacts for such additional
compensation were held in secret, thus leading to the appearance
of impropriety on the part of the Panel.
Third Amended Complaint at 4 20.
» The description of the specifics of the various charges and their
disposition before the panel are set forth more fully in San Filippo I, San
Filippo II, and the Magistrate Judge’s Report and Recommendation.
62a
of the length of the hearing and the fact that certain panel
members were not ordinarily required to be in attendance at
the University over the summer. By letters dated July 29,
1987, she granted the members their requested extra com-
pensation and release time. Second Cole Aff. at 99 11-12.
Shortly thereafter, and as the hearing ground forward, Pro-
fessor Szatrowski asked for additional compensation for the
panel members. Second Cole Aff. at 4 13. The Magistrate
Judge noted a discrepancy in the record with regard to what
next occurred. Dr. Cole either responded to this second
request by stating, “When the Panel was finished with its
business [they] could discuss the matter [of additional com-
pensation] again”, because “[she] didn’t think it was appro-
priate” to discuss the matter while the hearing was still
pending” (Cole Deposition of July 24, 1989 at 92-93), or she
definitively responded that no further compensation would be
granted. Second Cole Aff. at | 13. Ultimately, after the panel
concluded its proceedings and issued its final report recom-
mending that plaintiff be dismissed, Dr. Cole recommended
that panel members receive extra compensation. Second Cole
Aff. at 9 14.
From this factual scenario, and regardless of which state-
ment by Dr. Cole is to be believed, plaintiff alleges that the
panel members had a pecuniary interest in the outcome of the
hearings and, thus, that their participation in the hearings vio-
lated his due process rights. The Magistrate Judge framed the
issue as follows:
the central issue before the Court is whether there was a
“possible temptation” to the “average” Senate Panel
member to not hold the balance “nice, clear and true.” If
so, the Court must determine whether that temptation
was “direct, personal, substantial, and pecuniary” or
whether it was too remote to constitute a violation of due
process.
63a
Report and Recommendation at 39 (quoting Aetna Life Ins.
Co. v. Lavoie, 475 U.S. 813, 824 (1986) and Ward v. Village
of Monroeville, 409 U.S. 57, 60 (1972)). Plaintiff’s statement
of the issue does not differ in any meaningful way. See PI1.Br.
at 18 (“the test is whether to an outside observer, there is a
reasonable possibility that under the circumstances the
decisionmaker might be tempted to decide in favor of one
party in the proceeding because of the possibility of financial
gain to herself or himself.”) (emphasis in original).
Rather, plaintiff, invoking words such as “secret” and “ex
parte” along the way and giving them sinister connotations,
objects to the Magistrate Judge’s conclusion that based on the
fact that panel members received additional compensation
pursuant to their initial request while the hearings were still
ongoing and “without regard to the outcome of the hearings
. could only suggest to [the panel members] that their
renewed plea for relief would likewise be considered without
regard to the results of the hearings”. Report and Recom-
mendation at 40-41. Plaintiff argues that because panel mem-
bers obtained additional compensation from Dr. Susan Cole
after one request, it was reasonable for them to believe and,
in fact, “could only have led them to believe” that, on their
second request for compensation, “they stood a better chance
of loosening the University’s purse strings if they came to a
decision that pleased those with the power to pay [i.e., Dr.
Cole)”. P1.Br. at 20-21.
Stated somewhat differently, plaintiff suggests that because
of the purported interest of Dr. Cole in this matter, and
because Dr. Cole controlled whether or not panel members
received extra compensation, panel members reasonably
believed that they would not get additional compensation in
the future unless they rendered a decision favorable to the
University, i.e., in favor of plaintiff’s dismissal. Thus, plain-
tiff alleges that his procedural due process rights were vio-
lated because the panel members who decided his case
reasonably believed that they had a financial stake in the out-
come.
64a
To support his argument, plaintiff relies on cases in which
the adjudicating official had a direct financial interest which
would be affected by his decisions. See, e.g, Tumey v. Ohio,
273 U.S. 510, 531 (1927) (mayor acting as judge shared in the
fees and costs levied by him); Ward, 409 U.S. at 60 (mayor
responsible for village finances could not act as judge when
fines and forfeitures provided substantial portion of village
funds); Gibson v. Berryhill, 411 U.S. 564 (1973) (court found
that when a Board member has a substantial pecuniary inter-
est in the outcome of the proceedings, a plaintiff is deprived
of his right to an impartial tribunal).° However, the imper-
missible pecuniary interest must be realistic and more than
“remote”. Marshall v. Jerrico, Inc., 446 U.S. 238, 250 (1980).
Indeed, the due process analysis of Tumey, Ward, and their
progeny suggests that the crucial consideration is the remote-
ness of the pecuniary interest alleged to be the biasing influ-
ence. See, e.g., Dugan v. Ohio, 277 US. 61, 65 (1928)
(mayor’s relationship to finances and financial policy of the
village was too remote to warrant a presumption of bias in the
mayor’s role as judge); Aiello v. Wilmington, 426 F.Supp.
1272, 1292 (D.Del. 1976) (allegations that Bureau of Fire’s
Trial Board had a pecuniary interest in penalizing firemen for
infractions was too attenuated as a matter of law because
although Trial Board would assess “penalty hours” against
errant firemen, which they were required to work off without
pay, court rejected claim that Board had direct interest in that
only by receiving such “free labor” could it stay within its
budget).
Here, the burden is—and was—on plaintiff to come forward
with specific facts sufficient to withstand summary judgment,
a burden particularly difficult given the “presumption of hon-
esty and integrity in those serving as adjudicators”. Report
5
In Gibson, the Alabama Board of Optometry intended to revoke
the licenses which were required of all optometrists employed by cor-
porations. Members of the Board were drawn from a group limited to
independent practitioners. The Supreme Court found that this amounted
to a deprivation of due process, holding that “those with substantial pecu-
niary interest in legal proceedings should not adjudicate these disputes”.
411 U.S. at 579.
65a
and Recommendation at 39-40 (quoting Withrow v. Larkin,
421 U.S. 35, 47 (1975)). Plaintiff, however, has presented no
evidence that any panel member reasonably believed that his
or her receipt of additional compensation was tied to the out-
come of the proceedings. As the Magistrate Judge noted:
. . there is nothing in the record to suggest that they
had any reason to believe that it would not be decided
based on any reason other than its merits. Indeed, there
is nothing in the record which indicates that Dr. Cole
intimated in any way that additional compensation would
hinge on the Panel’s decision. Moreover, there is not
even a hint that the proverbial “wink and a nod” was
used to improperly influence the Panel.
Report and Recommendation at 41.
There is nothing in Dr. Cole’s Second Affidavit, in which
she definitively rejected the panel members’ request for addi-
tional compensation, which raises even an inference that
panel members could reasonably have thought it possible that
she would change her mind if they rendered a decision favor-
ing plaintiff's dismissal. Similarly, her deposition testimony
leaves utterly no doubt that she deferred any conversation
regarding additional compensation until the conclusion of the
proceedings and nothing which even suggests that whether or
when she revisited the issue would depend in any way on the
outcome of the proceedings rather than on their termination.
Ironically, it appears, at least to the court, that Dr. Cole was
attempting to avoid any impropriety or any appearance
thereof by declining to engage in negotiations or discussions
until everything was over.® Indeed, plaintiff has presented no
. Carried to its logical—or illogical—extension, plaintiff’s argu-
ment must be that there was no response which Dr. Cole could have made
which would not have implicated plaintiff's due process rights. Accord-
ing to plaintiff, Dr. Cole’s refusal to discuss the matter until after the
proceedings were concluded and/or her flat refusal to grant extra com-
pensation were both improper. If she had immediately acceded to the
panel's request and given them extra compensation, however, plaintiff
would certainly be arguing that she was attempting to influence their
decision.
66a
evidence suggesting that the panel members’ remuneration
would not remain constant, whatever their decision, or that a
decision in favor of plaintiff’s dismissal would work to their
financial advantage.
Thus, plaintiff’s argument is based on sheer speculation, no
more and no less. See DeBlasio v. Zoning Board of Adjust-
ment, 820 F.Supp. 876, 881 (D.N.J. 1993) (quoting Rite Aid
Corp. v. Board of Pharmacy of N.J., 421 F.Supp. 1161, 1169
(D.N.J. 1976), appeal dismissed, 430 U.S. 951 (1977)) (par-
ticipation of zoning board’s secretary in hearings did not vio-
late due process since secretary’s interest in outcome of
proceedings did not rise to level of direct, personal, sub-
stantial pecuniary interest because mere theoretical compe-
tition alone “has never been a sufficient predicate for an
inductive conclusion of probable economic bias.”).’ While, of
course, “the financial stake need not be as direct or positive
as it appeared in Tumey”, Gibson, 411 U.S. at 579, the pecu-
niary interest alleged here is light years removed from that
found in Ward and Tumey, and simply too attenuated even
under the rigorous standard this court must apply on a motion
for summary judgment.® Stated somewhat differently, plain-
tiff has presented no evidence which raises a genuine issue of
material fact regarding the panel members’ partiality. Accord-
; This speculation is evident in the language of plaintiff’s sub-
missions to the court: “. . . [t}his could only bring home to the Panel
members that Susan Cole had total control of their financial futures”.
(PI.Br. at 21); “[seeking additional compensation] from the same party
[Dr. Cole] could only have led them to believe that they had a better
chance. . .” (PI.Br. at 20); and “[oJn the basis of [Cole’s letters to panel
members], how could the panel members have concluded that pleasing
her was totally irrelevant?” P1I.Br. at 19 (emphasis added).
: Summary judgment is appropriate where 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. There is no issue for trial unless the non-
moving party can demonstrate that there is sufficient evidence favoring
the non-moving party so that a reasonable jury could return a verdict in
that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). The role of the court is not “to weigh the evidence and determine
the truth of the matter, but to determine whether there is a genuine issue
for trial”. Anderson, 477 U.S. at 249.
67a
ingly, this court adopts the findings and conclusion of the
Magistrate Judge in this regard.
2. Appearance of Impropriety:
Plaintiff’s second objection is that the panel members’ par-
ticipation in the hearings while “searching for more com-
pensation” created an “appearance of impropriety”. Pl. Br. at
26. See Commonwealth Coatings Corp v. Continental Casu-
alty Co., 393 U.S. 145, 150 (1968) (arbitration panel “not
only must be unbiased but must also avoid the appearance of
bias.”). Plaintiff cites In re Murchison, 349 U.S. 133, 136
(1955), in support of his argument that “justice must satisfy
the appearance of justice”. Jd. at 136 (citing Offutt v. United
States, 348 U.S. 11 (1954)); see also Haines v. Liggett Group,
Inc., 975 F.2d 81 (3d Cir. 1992) (“the polestar” governing dis-
qualification of a judge is “impartiality and the appearance of
impartiality.”). While that proposition is eminently sound, it
is far from clear that it applies in this case to panel members
with no final decision-making authority, although this court
will assume, with no great confidence, that it does.°
" As the Magistrate Judge noted in his analysis, the test articulated
in Commonwealth Coatings may not be applicable to the non-judicial
adjudicators in this case. Under 28 U.S.C. § 455(a), “{aJny justice, judge,
or magistrate of the United States shall disqualify himself in any pro-
ceeding in which his impartiality might reasonably be questioned”. The
judge shall also disqualify him or herself “{w)here he has. . . personal
knowledge of disputed evidentiary facts concerning the proceeding”. /d.
at § 455(b)(1).
Some courts have found that arbitrators are not held to the ethical stan-
dards required of Article III judges articulated in 28 U.S.C. § 455. See
Lavoie, 475 U.S. at 825-26 n.3 (Supreme Court declined to read Tumey
as constitutionalizing any rule that a decision rendered by a judge with
“the slightest pecuniary interest” constitutes violation of Due Process
Clause” and overruled Commonwealth Coatings to the extent that it could
be read to state otherwise); see also Peoples Sec. Life Ins. v. Monumental
Life Ins., 991 F.2d 141, 146 (4th Cir. 1993) (citing Health Servs. Man-
agement Corp. v. Hughes, 975 F.2d 1253, 1254 (7th Cir. 1992) (“it is well
established that a mere appearance of bias is insufficient to demonstrate
evident partiality” on the part of an arbitrator). But see Concrete Pipe &
Products of California Inc. v. Construction Laborers Pension Trust for
68a
As the Magistrate Judge noted, and as plaintiff does not
dispute, in order to prevail on an “appearance of impropriety”
due process claim under the test set forth in Commonwealth
Coatings, 393 U.S. at 151-53, “plaintiff must establish: (i)
that events occurred which would cause one to reasonably
question the hearing Panel’s partiality; and (ii) that the infor-
mation was concealed from plaintiff’. Report and Recom-
mendation at 43-44 (citing Commonwealth Coatings).'° The
alleged partiality must be “direct, definite, and capable of
demonstration rather than remote, uncertain or speculative”.
Health Servs. Management, 975 F.2d at 1264 (quoting
Florasynth Inc. v. Pickholz, 750 F.2d 171, 173-74 (2d Cir.
1984)). The Magistrate Judge determined that neither prong
had been satisfied.
Plaintiff attempts to satisfy the first prong of this test by
claiming:
[the] continuous negotiations, secret payments, the
unquestioned control which Susan Cole asserted over the
additional payments and which she conveyed to the
panel members, the continued secret negotiations after
the summer, the promise of Susan Cole that when the
panel was finished with its business, and produced their
report, “that we could discuss the matter again” as she
testified in her deposition, and the actual payments after
a favorable report was produced. . . [are] additional
factors [which] would certainly cause “one” to reason-
ably question the Panel’s partiality.
Southern California, __ U.S. ___, 113 S.Ct. 2264, 2277 (1993) (require-
ment that justice must satisfy the appearance of justice applies where pri-
vate party is given statutory authority to adjudicate a dispute, such as an
arbitrator). Thus, there exists some real doubt as to whether the adjudi-
cating panel members here can even be held to the stringent “appearance
of bias” standard.
10
In Commonwealth Coatings, an award was vacated after it was
revealed that a neutral arbitrator in a construction dispute had an undis-
closed ongoing business relationship with one of the parties, and had
been retained as an engineering consultant for one of the construction
projects involved in the dispute being arbitrated. 393 U.S. at 150.
69a
P1.Br. at 32. As discussed in the previous subsection, these
factors, particularly when stripped of their sinister trappings,
are insufficient to cause a reasonable person to question the
panel’s impartiality. Plaintiff alleges that the July 29, 1987
letters from Dr. Cole (see Second Cole Aff., Exh. B) to the
panel members, advising of the initial grant of summer com-
pensation and release time, were not provided to plaintiff.
Even if plaintiff was not provided with these letters, or with
notice of their contents, the letters clearly state that the rea-
son for granting the panel’s request for extra compensation
was the unexpected length of the hearings.'’ Nothing in those
letters suggests that further compensation would depend on
the decision rendered by pane] members, much less would it
cause a reasonable person to so believe.
As for the second prong, and as the Magistrate Judge cor-
rectly found, the supposed “negotiations” regarding extra
compensation were not “secret”. Not only was plaintiff’s rep-
resentative aware of at least certain of the “negotiations”, but
sanctioned talks in this regard. See Report and Recommen-
dation at 44-45 (citing memo dated March 5, 1987 to Pro-
fessor Szatrowski from Wells Keddie, AAUP" counsel for
se The letters to the panel members stated, in part:
The time you have had to spend on this activity, and will con-
tinue to spend until the panel is prepared to make a report (in
what I hope is the not-too-distant future), has certainly been
significant. .
It is certainly the case that the necessity to extend to a col-
league the opportunity for this kind of hearing is a rare event in
one’s career, but one that is certainly within the obligations a
faculty member has to the profession and to the University. Your
efforts to date provide ample evidence of your acceptance of this
responsibility. Nevertheless, because of the unexpected length
of the proceedings, I have considered it appropriate, in con-
sultation with the Office of the Provost, to change your appoint-
ment. . . . As aresult of this change, your current salary. . .
will be increased. . .
Second Cole Aff., Exh. B-1 to B-5 (emphasis added).
t2 “AAUP” is the abbreviation for American Association of
University Professors.
e
3
,
3
70a
plaintiff, attached as Exh. A to Second Cole Aff.). In the same
March 5, 1987 memo, counsel stated that, in addition to seek-
ing summer compensation:
. . . [aJnother possibility might well be worth consid-
ering: released time after this is all over to enable com-
mittee members to make up for considerable lost time,
energy, and opportunity.
Second Cole Aff., Exh. A at 3. As the Magistrate Judge noted,
this document indicates that plaintiff’s personal attorney at
the time, Ira M. Goldberg, was copied on the document. See
Report and Recommendation at 45 n.22. Thus, plaintiff
cannot complain that he was unaware that there might be
“negotiations” regarding compensation for post-summer par-
ticipation, given that his own representative suggested it as an
option. Moreover, as the Magistrate Judge also noted, the affi-
davits of Professor Szatrowski and Mr. Goldberg, plaintiff’s
then-attorney, support the conclusion that it was no secret that
the panel was attempting to get additional compensation. /d.
In In re School Asbestos Litigation, 977 F.2d 764 (3d Cir.
1992), a case on which plaintiff relies, the Third Circuit
ordered a district judge to disqualify himself because of a
combination of factors which taken together created an
appearance of partiality mandating disqualification.’ These
factors included attending “a predominantly pro-plaintiff con-
ference on a key merits issue”, which was indirectly spon-
sored by plaintiffs, largely with funding that the judge himself
had approved and with the judge’s expenses largely defrayed
by the conference sponsors with those same court-approved
funds. Moreover, at the conference the judge was exposed to
a “preview” of plaintiff’s case: thirteen of the eighteen wit-
nesses plaintiffs were intending to call gave presentations
13
Plaintiffs had moved to disqualify the judge under 28 U.S.C.
§ 455(a) because “his partiality might reasonably be questioned,” and 28
U.S.C. § 455(b)(1) because he had “personal knowledge of disputed evi-
dentiary facts concerning the proceeding”. /n re School Asbestos Liti-
gation, 977 F.2d at 781.
Tla
very similar to that to which they were expected to testify at
trial. /d., 987 F.2d at 782 (a reasonable person might question
partiality of judge who attended “a predominantly pro-plain-
tiff conference on a key merits issue” that was funded by
plaintiff and a reasonable person might suspect that a judge
who has an opportunity to “preview” plaintiff’s case is pre-
disposed to plaintiff’s position). Here, by contrast, plaintiff
has raised no genuine issue of fact demonstrating that either
the panel’s impartiality could reasonably be questioned, or
that any “negotiations” regarding extra compensation were
concealed from plaintiff. Thus, assuming that an “appearance
of impropriety” due process claim can even be raised here,
the Magistrate Judge’s finding of no appearance of impro-
priety was eminently correct.
3. Further Discovery:
Plaintiff argues that “[a]t the least, plaintiff should have
been afforded the opportunity to question Professor Sza-
trowski in a deposition and determine exactly what was said
between himself and Dr. Cole” regarding the request for extra
compensation. P1.Br. at 34. Plaintiff contends that although he
noticed Professor Szatrowski’s deposition in August, 1989, all
discovery was stayed after November 1989 when these
motions for summary judgment were filed. Plaintiff fails to
explain why in this case in which there was massive discov-
ery before the stay, Professor Szatrowski was not deposed at
any time prior to August 1989 or why he was not one of those
plaintiff chose to be deposed during the summer and fall of
1989 when he deposed nine other current and former officials
and employees of Rutgers. Beyond that, of course, ample evi-
dence makes clear that the “negotiations” were not “secret”,
and no further discovery is necessary in this regard. Accord-
ingly, the court adopts the Magistrate Judge’s findings and
conclusions on plaintiff’s due process claim.
a OTE ere ee Ne LG ak SAGAR epee! A Be end
72a
B. First Amendment Speech and Petition Rights
Plaintiff alleges that the disciplinary proceedings and his
subsequent dismissal were initiated against him in retaliation
for the host of grievances and lawsuits he had instituted and
complaints he had voiced against the University, activities
protected under the First Amendment."* Parenthetically, there
is some irony in the fact that plaintiff is able to raise this
issue and require the University to defend only because he has
been, to put it charitably, an extraordinarily squeaky wheel or,
to put it uncharitably, a thorn if not a total pain in the side of
the University.
The Magistrate Judge properly noted that, “[t]his circuit
abides by a straightforward three step process in examining a
public employee’s claim of retaliation for engaging in pro-
tected activity”. Holder v. City of Allentown, 987 F.2d 188,
14
These lawsuits, grievances, and verbal complaints brought
against the administrators and/or the University by plaintiff are as follows:
(1) a 1983 grievance regarding the denial of a merit salary
increase;
(2) a 1985 lawsuit against Rutgers regarding the retroactivity of
a promotion;
(3) a 1985 defamation lawsuit against certain officials of the
University;
(4) a 1986 lawsuit against the University and certain of its offi-
cials regarding the investigation and commencement of dis-
missal proceedings;
(5) plaintiff's 1977 statements in a school newspaper criticiz-
ing the University for inadequate ventilation in the Chemistry
laboratories;
(6) plaintiff’s testimony before a grand jury, in 1977 and 1978,
regarding an investigation into the manufacture of illegal drugs
in Rutgers’ laboratories;
(7) plaintiff’s disputes, between 1979 and 1986, with senior
members of his department over their efforts to wrongfully
obtain “inappropriate” percentages of his federal grants; and
(8) plaintiff's criticisms, in 1983-84, regarding a possible
obstruction of justice by his faculty peers in their attempt to
secure funding for a mass spectrometer.
Report and Recommendation at 19-20.
73a
194 (3d Cir. 1993). The three step process is as follows: (1)
plaintiff must show that the activity in question is one that
was constitutionally protected; (2) plaintiff must then show
that the protected activity “was a substantial factor in the
alleged retaliatory action”; and (3) the burden then shifts to
defendants who may defeat the claim by “demonstrating that
the same action would have taken place even in the absence
of the protected conduct”. Czurlanis v. Albanese, 721 F.2d 98,
103 (3d Cir. 1983) (emphasis added). Defendants contend that
plaintiff's claim of retaliation fails at each step: plaintiff’s
“speech” at issue did not address matters of public concern;
plaintiff failed to show that his “speech” was a substantial
factor motivating his dismissal; and defendants have shown
that plaintiff would have been dismissed in any event. More-
over, defendants contend that plaintiff is not entitled to fur-
ther discovery on this issue. The court will address these
objections in turn.
1. Public Concern Analysis:
The Magistrate Judge noted that ordinarily in a case of First
Amendment retaliation in which the alleged retaliation is
based on a plaintiff’s expression through speech, the court
must determine if that speech is protected under the First
Amendment based on whether or not the speech can be fairly
characterized as addressing a “matter of public concern”.
Connick v. Myers, 461 U.S. 138, 147 (1983). This threshold
issue is to be decided by the court as a matter of law. The
Magistrate Judge found, however, that plaintiff’s conduct at
issue involved not only speech, but the filing of grievances
and lawsuits, activities which implicate the right to petition
clause, rather than the free speech clause, of the First Amend-
ment'* and, under the right to petition clause, a plaintiff need
i The First Amendment, in relevant part, states:
Congress shall make no law . . . abridging the freedom of
speech, or of the press, or of the right of the people peaceably
to assemble, and to petition the Government for a redress of
grievances.
U.S. Constitution, Amend. I (emphasis added).
74a
not satisfy the Connick public concern test. Because in his
view plaintiff’s claim involved the petition clause, the Mag-
istrate Judge held that it should be analyzed under different
principles than those customarily employed in cases involv-
ing public employees who are allegedly terminated for exer-
cising their right to free speech. He concluded that because
two Supreme Court cases did not apply the Connick analysis
to claims based on First Amendment violations arising from
the right to petition
. . insofar as plaintiff’s First Amendment retaliation
claim is based on his right to petition by filing a lawsuit,
plaintiff has engaged in constitutionally protected activ-
ity as a matter of law. Thus. . . plaintiff has met his
threshold burden in pursuing his First Amendment claim.
Report and Recommendation at 24. Defendants object, claim-
ing that the filing of a grievance or a lawsuit must still be
subjected to the Connick “public concern” analysis, and that
plaintiff fails to meet that test.
The First Amendment right to petition is “an assurance of
a particular freedom of expression,” McDonald v. Smith, 472
U.S. 479, 482 (1985), which is “generally subject to the same
constitutional analysis” as the right to free speech. Wayte v.
United States, 470 U.S. 598, 610 n.11 (1985) (citing NAACP
v. Claiborne Hardware Co., 458 U.S. 886, 911-15 (1982)). In
McDonald, 472 U.S. at 484-85, the Supreme Court declined
to accept the position that the petition clause provided abso-
lute immunity from damages from libel. The McDonald Court
refused to read the petition clause in isolation and cautioned
against elevating one First Amendment freedom over another:
To accept petitioner’s claim of absolute immunity
would elevate the Petition Clause to special First
Amendment status. The Petition Clause, however, was
inspired by the same ideals of liberty and democracy that
gave us the freedom to speak, publish, and assemble.
These First Amendment rights are inseparable, and there
is no sound basis for granting greater constitutional pro-
75a
tection to statements made in a petition. . . than other
First Amendment expressions.
Id. at 485 (citations omitted). See also McDonald, 472 U:S. at
489-90 (Brennan, J., concurring).'®
In Belk v. Town of Minocqua, 858 F.2d 1258 (7th Cir.
1988), the Seventh Circuit refused to accept an employee’s
argument that the First Amendment establishes an absolute
right, divorced from any consideration of content, to file a
grievance and thus petition the government for redress. That
court concluded that, “[w]ere we to adopt [the] position that
the right to petition is absolute, we would be guilty of imple-
menting precisely the sort of hierarchy of first amendment
rights forbidden by McDonald”. Id., 858 F.2d at 1261. The
court continued, “such special treatment of the right to peti-
tion would unjustly favor those who through foresight or mere
fortuity present their speech as a grievance rather than in
some other form”. /d., 858 F.2d at 1262. Similarly, in Gray v.
Lacke, 885 F.2d 399 (7th Cir. 1989), cert. denied, 494 U.S.
16 As Justice Brennan commented:
[{t}he Court previously has emphasized the essential unity for the
First Amendment guarantees:
“It was not by accident or coincidence that the rights to free-
dom in speech and press were coupled in a single guaranty with
the rights of the people peaceably to assemble and to petition for
redress of grievances. All these, though not identical, are insep-
arable. They are cognate rights,. . . and therefore are united in
the First Article’s assurance.” Thomas v. Collins, 323 U.S. 516,
530 (1945).
. . . we have recurrently treated the right to petition similarly
to, and frequently as overlapping with, the First Amendment’s
other guarantees of free expression. [citations omitted].
There is no persuasive reason for according greater or lesser
protection to expression on matters of public importance
depending on whether the expression consists of speaking to
neighbors across the backyard fence, publishing an editorial in
the local newspaper, or sending a letter to the President of the
United States.
McDonald, 472 U.S. at 489-90 (Brennan, J., concurring).
76a
1029 (1990), the Seventh Circuit held that, “in deciding
whether a public employer has wrongfully deprived an
employee of his right to petition the government, our inquiry
must begin with whether the petition touched upon a matter of
public concern. . . .” Id., 885 F.2d at 412. Indeed, many
courts have found that right-to-petition claims are governed
by the same interest-balancing principles as right to free
speech claims. See White Plains Towing Corp. v. Patterson,
991 F.2d 1049, 1059 (2d Cir. 1993); Schalk v. Gallemore, 906
F.2d 491, 498 (10th Cir. 1990) (per curiam); Day v. South
Park Independent School District, 768 F.2d 696, 701-03 (Sth
Cir. 1985), cert. denied, 474 U.S. 1101 (1986) (“we are hes-
itant to elevate such an employee’s complaint to the level of
constitutional protection merely because she has asserted it in
the form of a grievance”);'’ Rathjen v. Litchfield, 878 F.2d
836, 842 (Sth Cir. 1989) (“[t]he question in this case is
whether [plaintiff’s] opposition to her demotion or her filing
of this lawsuit are ‘matters of public concern’. . . . The law
is no different where the act which allegedly gave rise to the
retaliation claim is the filing of a grievance or a lawsuit.”);
Altman v. Hurst, 734 F.2d 1240, 1244 n.10 (7th Cir. 1984) (a
private office dispute cannot be constitutionalized merely by
filing a legal action). Accord Boyle v. Burke, 925 F.2d 497,
505 (ist Cir. 1991) (“absolute First Amendment protection is
not accorded to any grievance a pu
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