Opposition Brief — Bey v. Bisbee

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APR 18 1996 |

OFFGE-ORIHE CLERK

No. 94-1541

In The

Supreme Court of the United States

October Term, 1994

JOHN BEY, JAMES JOHNSON, AND E. E. VANBUSKIRK,

in their individual capacities,

Petitioners,

KENNETH L. BISBEE,

Respondent.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

RESPONDENT'S BRIEF IN OPPOSITION

JANE A. VILLEMEZ

408 W. 23rd Street, Suite One

Cheyenne, WY 82001

(307) 638-8885

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether this Court is the appropriate forum to

resolve factual disputes as to an employer's motive for

discharging an employee?

PARTIES TO THE PROCEEDING

Petitioner John Bey is the Sheriff, Petitioner James

Johnson is the Undersherift, and Petitioner E. E. Van-

Buskirk was a Sergeant in the Converse County, Wyo-

ming, Sheriff’s Office.

Respondent Kenneth L. Bisbee is a former Deputy

Sheriff with the Converse County Sheriff's Office.

Defendant Board of County Commissioners of Con-

verse County was a party to a related cross-appeal in the

United States Court of Appeals for the Tenth Circuit.

iil

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ...........2-.secececeeees i

PARTIES TO THE PROCEEDING ...............-.. ii

TABLE OF CASES AND AUTHORITIES..........-. iV

COPTNIOINS BELOW ... oo ccc ccc cece cena serenaens 1

PUP THIN. cnc cc cca v et ecnreeeeeracenaes 2

CONSTITUTIONAL AND STATUTORY PROVI-

| LE te eet eee er eT eer eT eT e Leer eT Eee 2

STATEMENT OF THE CASE.............6---+-05-. 3

SUMMARY OF THE ARGUMENT ............----: 6

REASONS FOR DENYING THE WRIT............. 7

I. THE TENTH CIRCUIT DECISION RESERVES

DISPUTES AS TO MOTIVE FOR THE JURY,

CONSISTENT WITH MCKENNON ov.

NASHVILLE BANNER PUBLISHING COM-

il. THE TENTH CIRCUIT DECISION REQUIRES

PETITIONERS TO PROVE A LAWFUL

MOTIVE, CONSISTENT WITH MT. HEALTHY

CITY SCHOOL DISTRICT BOARD OF EDU-

ehcp 8 EU: 3.’ rrr ere ree 9

Ill. THE TENTH CIRCUIT’S RECOGNITION OF

A MATERIAL FACTUAL DISPUTE IS NOT

8 8 Le ee ee eee 10

a ewkhasenvedecdstan eres sonane ws 12

TABLE OF CASES AND AUTHORITIES

Page

CASES

Bushman Construction Company v. Conner, 307 F.2d

ee CO, BOD ov ae o5 8 Ghd ae evn Sun eee bee y os 12

Goodman v. Lukens Steel Company, 482 U.S. 656, 107

> 8. eeas, DOL. BE. 20 Se CBSE). os oe cans es 10

McKennon v. Nashville Banner Publishing Co., 115 S.

Co eet ie ota ue eo eet 7, 8,9

Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806

SOW kd FEARS ANREOREE OTe Sa eke 44s eae cue hs 2

Mt. Healthy City School District Board of Education

v. Doyle, 429 U.S. 273, 97 S. Ct. 568, 50 L. Ed. 2d

Ed POE EE TOL E OCT TEC OES TEN ETT CLT CCE 9, 10

Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S. Ct.

Lf F Dy SM SG. A BOO CIF os cn rcv scien eo

Workman v. Jordan, 958 F.2d 332 (10th Cir. 1992)...... 2

STATUTES

Se Sn SERRE Gs ovo aaswn aso sad4 eevee eeenea i

Bk Oe Pe TT ee Tere T Terre Tere Te 2

RTRs Oe NS cin be ae oa ce aes Bon eae ee 2

BP hie SIE oo es bo he ces ee Ad new cet ves 2

ek ae Ds Se re pike egatcmeeeieuns 2

ee aye A as oh oa ee 2

No. 94-1541

— +

In The

Supreme Court of the United States

October Term, 1994

+

JOHN BEY, JAMES JOHNSON, AND E. E. VANBUSKIRK,

in their individual capacities, -

Petitioners,

KENNETH L. BISBEE,

Respondent.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

¢

RESPONDENT’S BRIEF IN OPPOSITION

4

TO THE HONORABLE SUPREME COURT:

Respondent Kenneth L. Bisbee respectfully requests

that this Court deny the Petition for Writ of Certiorari

submitted by Petitioners, John Bey, James Johnson and

E.E. VanBuskirk.

OPINIONS BELOW

The Tenth Circuit Court of Appeals affirmed the

Wyoming District Court’s denial of Petitioners’ Motion

ho

for Summary Judgment on grounds of qualified immu-

nity. The Court of Appeals’ Opinion is reported at 39 F.3d

1096 and is reproduced in the Appendix to the Petition

For Writ Of Certiorari. (App. 1-14).

Following issuance of the Tenth Circuit’s decision,

Bey, Johnson and VanBuskirk petitioned for rehearing

and suggested rehearing en banc. The Court of Appeals’

Order denying Petitioners’ request is reproduced in the

Appendix to the Petition for Certiorari. (App. 15-164).

-_—-——_____—_-—_—— @ —

JURISDICTION

Petitioners invoke the jurisdiction of this Court pur-

suant to 28 U.S.C. § 1254(1).

The jurisdiction of the Tenth Circuit Court of Appeals

was invoked under 28 U.S.C. § 1291, pursuant to the

collateral order doctrine which permits review of the trial

court’s denial of the defense of qualified immunity. Mit-

chell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806 (1985); Work-

man v. Jordan, 958 F.2d 332 (10th Cir. 1992).

The United States District Court for the District of

Wyoming held original jurisdiction under 28 U.S.C.

§§ 1331, 1343(a)(3) and 42 U.S.C. §§ 1983, 1985 and 1988.

ean TS = sees ERI

CONSTITUTIONAL AND STATUTORY PROVISIONS

In addition to the statutory provision cited by Peti-

tioners, this case involves the freedom of speech clause of

the First Amendment to the United States Constitution.

—— e ESAS

STATEMENT OF THE CASE

Bisbee’s Exercise of Right of Free Expression.

On July 6, 1991, Respondent Deputy Sheriff Bisbee

discovered evidence strongly indicating that his immedi-

ate supervisor, Petitioner Sergeant VanBuskirk, had falsi-

fied official, departmental records and had wrongfully

converted to his own use a rifle, which had been found

by a citizen. VanBuskirk’s conduct, if proven, directly

violated the Sheriff Department's operating policy. Bisbee

compiled this information about VanBuskirk into a formal

incident report.

Petitioners’ Knowledge of Bisbee’s Report of Official

Misconduct.

Bisbee showed his report to the Sheriff Department

dispatcher and gave a copy to the supervisor on duty,

Sergeant Greg Way. Sergeant Way read the report and

directed the dispatcher to assign a case number to it. The

report’s case number was then entered into the Depart-

ment’s computerized Daily Bulletin, with the identifying

information “sensitive material, see [Petitioner Under-

sheriff Johnson] for details.”

At Sergeant Way’s direction, Bisbee sealed the origi-

nal report in an envelope, which Way placed in the lower

tier of a two-tier basket on Undersheriff Johnson’s desk.

Sergeant Way assured Bisbee that he would advise Peti-

tioner Sheriff Bey that night of the findings in the report.

As promised, Sergeant Way contacted Sheriff Bey that

evening and told him that Bisbee had filed a report

regarding the possible mishandling of found property.

The following morning Sheriff Bey read Bisbee’s

entry in the Daily Bulletin about the “sensitive material”

in the hands of Undersheriff Johnson. According to Sher-

iff Bey, Way advised him at this time that the Bulletin

entry referred to information that Bisbee had about dis-

posed property. Sheriff Bey was sufficiently concerned

about Bisbee’s “sensitive material” that he directed

Undersheriff Johnson to investigate the matter upon

Johnson's return to work from vacation on July 10, 1991.

Bisbee, by this time, had discussed the report with

Sheriff's Deputy Macormic and had given him a complete

copy. By July 10, 1991, at least three members of the

Sheriff's Department, in addition to Bisbee, had read

Bisbee’s entire report of VanBuskirk’s wrongdoing. In

fact, it was common knowledge and freely discussed

among the Department employees that Bisbee had filed

the incident report about VanBuskirk. “[E]verybody was

talking about it... . the dispatchers were talking about it;

the deputies were talking about it.” (Deposition of Dep-

uty Keith Lind). Nevertheless, the three Petitioners — top

ofticials in the County’s law enforcement and investiga-

tive agency — claim total ignorance of the report’s con-

tents.

Retaliatory Discharge.

In the midst of speculation about his conduct, Van-

Buskirk, on July 13, 1991, initiated a confrontation with

Bisbee on Interstate Highway 25, where Bisbee and Dep-

uty Macormic were operating radar to apprehend sus-

pected drug dealers. VanBuskirk knew that Bisbee was

there to provide back-up assistance to Deputy Lind, who

had organized the drug investigation. Nevertheless, Van-

Buskirk angrily approached Bisbee, berated him for par-

ticipating in the drug investigation and ordered him to

stop. VanBuskirk gave no similar order to Deputy Macor-

mic or to Deputy Lind, who was stationed approximately

one mile down the interstate. VanBuskirk accelerated the

confrontation, suspended Bisbee from his duties, and

directed Bisbee to get in VanBuskirk’s vehicle. At that

point, when Bisbee was under suspension and in fear of

his personal safety, he directed a derogatory retort to

VanBuskirk and refused to enter VanBuskirk’s vehicle.

Two days later, on Monday, July 15, 1991, Petitioners

Bey, Johnson and VanBuskirk agreed to terminate

Bisbee’s employment on the basis of VanBuskirk’s uncor-

roborated allegations of insubordination. Bey, Johnson

and VanBuskirk decided to dismiss Bisbee without talk-

ing to him or offering him any opportunity to respond,

without any investigation, and without a hearing of any

kind, either before or after the termination. No one con-

tacted Deputy Macormic, the only eye witness to the

confrontation other than Bisbee and VanBuskirk, until

several days after agreeing to and approving of Bisbee’s

dismissal. Petitioners agreed to this summary dismissal

of Bisbee, even though the Sheriff’s Office Personnel Poli-

cies require a complete investigation of a contemplated

termination and a hearing before the Board of County

Commissioners.

It rs undisputed that when Sheriff Bey, Undersheriff

Johnson and Sergeant VanBuskirk met on July 15, 1991,

and agreed to summarily remove Bisbee as Deputy Sher-

iff, they knew that Bisbee, on July 6, 1991, had filed

Report 1404 containing sensitive material. Furthermore,

they knew that his report concerned the possible mishan-

dling of found property. VanBuskirk, without question,

knew that he had appropriated for his own use property

found by a citizen in the Spring of 1991.

In accordance with United States Supreme Court

Rule 15, Respondent advises the Court that the Petition

For Writ Of Certiorari contains the following misstate-

ments of fact:

(1) Sergeant Way did not divulge the information

that Bisbee had assembled to any of the Petitioners. (Peti-

tion 8).

(2) No one ever told Sheriff Bey, Undersheriff John-

son or Sergeant VanBuskirk of Bisbee’s report until after

Bisbee’s termination. (Petition 8).

In fact, Sheriff Bey himself and Sergeant Way testified

that Way advised the Sheriff, within hours after the filing

of the report, that Deputy Bisbee had filed a report con-

cerning the possible mishandling of found property. Five

(5) days before deciding to terminate Bisbee’s employ-

ment, Sheriff Bey directed Undersheriff Johnson to inves-

tigate Report 1404, characterized in the Department's

Daily Bulletin as “sensitive material.” Petitioners’ claims

of complete ignorance of Bisbee’s incident report at the

time of his termination are not supported by the record.

+

SUMMARY OF THE ARGUMENT

Questions of material fact abound as to whether

Sheriff Bey, Undersheriff Johnson and Sergeant Van-

Buskirk discharged Deputy Sheriff Bisbee in retaliation

for his reporting of serious misconduct by his supervisor.

The Tenth Circuit Court of Appeals and the Wyoming

District Court reserved these factual issues for trial, in

accordance with United States Supreme Court authority.

*

REASONS FOR DENYING THE WRIT

I.

THE TENTH CIRCUIT DECISION RESERVES DIS-

PUTES AS TO MOTIVE FOR THE JURY, CONSISTENT

WITH MCKENNON v. NASHVILLE BANNER PUBLISH-

ING COMPANY.

The Tenth Circuit Court of Appeals concluded that

Deputy Bisbee put forth sufficient evidence to create a

circumstantial case that he was fired in retaliation for

exercising his First Amendment rights. (App. 8). Ques-

tions concerning motive and witness credibility, accord-

ing to the Tenth Circuit, are reserved for the jury. (App.

8).

The Court of Appeals’ holding, that the factfinder

necessarily determines the employer’s motives for dis-

charge, comports with this Court’s decision in McKennon

v. Nashville Banner Publishing Co., 115 S. Ct. 879 (1995). In

McKennon, this Court held that after-acquired evidence,

which would have resulted in an employee’s immediate

discharge in any event, does not bar all relief for the

employee’s actual discharge solely in violation of the Age

Discrimination in Employment Act. The later discovery of

evidence, which indisputably would have led to the

employee’s termination on lawful grounds, limits the

employee’s remedies for her earlier discharge in violation

of the federal antidiscrimination law. This analysis as to

damages, however, is premature when the employer's

real reasons for ordering discharge have yet to be deter-

mined by the factfinder. Id. at 885.

Petitioners contend that Bisbee’s alleged insubordi-

nate conduct alone suffices to support termination,

thereby preventing him from any relief for a wrongful

termination. An employer's legitimate reason for dis-

charge, however, will not suffice if that reason did not

motivate the employment decision. McKennon, supra, 115

S. Ct. at 885, citing Price Waterhouse v. Hopkins, 490 U.S.

228, 252, 109 S. Ct. 1775, 1791, 104 L.Ed.2d 268 (1989)

(plurality opinion). Proving that a termination decision

would have been justified is not the same as proving that

a termination decision would have been made. Id.

The factual record supports Deputy Bisbee’s position

that Sheriff Bey, Undersheriff Johnson and Sergeant Van-

Buskirk discharged him for filing the stolen property

report. At least three (3) members of the Sheriff’s Depart-

ment — Sergeant Way, Deputy Macormic and the dis-

patcher — read Bisbee’s report and knew of his complaint

against VanBuskirk prior to the termination decision. The

dispatcher assigned the report an identification number,

which appeared in the computerized Daily Bulletin. Sher-

iff Bey acknowledges that Sergeant Way told him that the

Daily Bulletin entry referred to Bisbee’s information

about the mishandling of found property. Bisbee’s

reported charges of official misconduct by VanBuskirk

were common knowledge and freely discussed among

departmental employees. Furthermore, no one in the

Sheriff's Department questioned Bisbee or eye witnesses

about the encounter with Sergeant VanBuskirk on the

ee

Interstate, belying Petitoners’ contention that they dis-

missed Bisbee in good faith for insubordination.

Petitioners ask this Court to adopt their proffered

reasons for terminating Bisbee’s employment and then to

remand for reconsideration in light of the rule for mea-

surement of damages announced in McKennon. Since the

Writ of Certiorari does not confer a factfinding function

upon this Court, the Petition for the Writ should be

denied.

Il.

THE TENTH CIRCUIT DECISION REQUIRES PETI-

TIONERS TO PROVE A LAWFUL MOTIVE, CONSIS-

TENT WITH MT. HEALTHY CITY SCHOOL DISTRICT

BOARD OF EDUCATION v. DOYLE.

Petitioners fault the Tenth Circuit Court of Appeals

for refusing to usurp the jury’s function to determine

whether Petitioners would have discharged Deputy

Bisbee even in the absence of his protected conduct. The

Tenth Circuit decision comports with the scheme of proof

for an alleged mixed-motive case announced by this

Court in Mt. Healthy City School District Board of Education

v. Doyle, 429 U.S. 273, 97 S. Ct. 568, 50 L.Ed.2d 471 (1977).

Under Mt. Healthy, the employee bears the initial

burden of showing that his conduct was constitutionally

protected, and that this conduct was a substantial or

motiva ing factor in the adverse employment decision.

Once the employee has carried that burden, the govern-

mental employer can still prevail if it shows “by a prepon-

derance of the evidence that it would have reached the same

[employment] decision . . . even in the absence of the

10

protected conduct.” Id. 429 U.S. at 287, 97 S. Ct. at 576.

(emphasis added).

Petitioners have never shown by a preponderance of

the evidence that they would have discharged Bisbee for

insubordination, because Petitioners have never pre-

sented their case to the factfinder in a trial court. Neither

the Tenth Circuit Court of Appeals nor this Court can

resolve this question of material fact at the summary

judgment stage, as Petitioners request. The defense of

qualified immunity does not shield Petitioners from trial

litigation in this case involving protected speech and

ample evidence of retaliatory discharge.

Ill.

THE TENTH CIRCUIT’S RECOGNITION OF A MA-

TERIAL FACTUAL DISPUTE IS NOT ERRONEOUS.

Petitioners concede that the United States Supreme

Court is not a court for factfinding. See, Goodman v. Lukens

Steel Company, 482 U.S. 656, 107 S. Ct. 2617, 2623, 96

L.Ed.2d 572 (1987). Nevertheless, Petitioners continue to

press in this Court their interpretation of the facts. Peti-

tioners ask this Court to discard, as an impermissible

pyramiding of inferences, specific and substantial evi-

dence of Petitioners’ knowledge of Bisbee’s report of

official misconduct and Petitioners’ decision to discharge

him for this speech.

Petitioners met and agreed to discharge Bisbee on

July 15, 1991, under the following surrounding circum-

stances:

11

1. Bisbee had delivered his report of Van-

Buskirk’s misconduct to the on-duty supervisor

Sergeant Way on July 6, 1991.

2. The on-duty dispatcher read the report and

assigned it a case number.

3. The case number was entered in the Daily

Bulletin with a reference to “sensitive materials”

in Johnson's possession.

4. Sergeant Way read the report and advised

Sheriff Bey that same evening or the following

morning that Bisbee had filed a report concern-

ing the possible mishandling of found property.

5. Sheriff Bey directed Undersheriff Johnson to

investigate the “sensitive materials” entry in the

Daily Bulletin on July 10, 1991.

6. At least four members of the Sheriff's

Department (Bisbee, Way, Macormic, dispatcher)

had read Bisbee’s entire report.

7. Bisbee’s reported charges of official miscon-

duct by VanBuskirk were common knowledge

and freely discussed among departmental

employees.

Petitioners summarily terminated Bisbee’s employ-

ment, based on VanBuskirk’s uncorroborated charges,

without even minimal inquiry of Bisbee or other wit-

nesses. Retaliation and expediency, more likely than

insubordination, motivated Petitioners’ employment

decision under these circumstances.

The present case presents a classic one for decision

by the jury, since it involves a critical factual dispute and

since it depends heavily on the credibility of the wit-

nesses. The question of the real reason for Deputy

12

Bisbee’s termination should not be determined by sum-

mary judgment. The parties are entitled to a trial on this

bona fide factual dispute. Bushman Construction Company

v. Conner, 307 F.2d 888, 892-893 (10th Cir. 1962).

7

CONCLUSION

Kenneth Bisbee requests this Court to deny the Peti-

tion For Writ Of Certiorari, because this case presents

factual issues inappropriate for the Court’s review, and

because the lower courts’ denials of qualified immunity

were not in error. :

Respectfully submitted,

JANE A. VILLEMEZ

408 W. 23rd Street, Suite One

Cheyenne, WY 82001

(307) 638-8885