Opposition Brief — Clark v. Burns

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i

No. 96-1588 ( i |

In The

Supreme Court of the United States

October Term, 1996

¢

KIMBERLY CLARK

KATHY BURNS and THE ELECTRIC POWER

BOARD OF CHATTANOOGA

oa

On Petition For A Writ Of Certiorari

lo The United States Court Of Appeals

For The Sixth Circuit

e

RESPONDENTS’ BRIEF IN OPPOSITION

rO PETITION FOR WRIT OF CERTIORARI

¢

Caritos C. Soiri,

Counsel of Record

CuristinE Masry Scort

J. Rosin Rocers

Attorneys for Respondents

STRANG, FLETCHER, CARR!

Waker, Hopcre & Smitn, PLLC

400 Krystal Building

One Union Square

Chattanooga, Tennessee

(423) 265-2000

74

LIST OF INTERESTED PARTIES

The Petitioner is Kimberly Clark.

The Respondents are Kathy Burns and the Electrix

Power Board of Chattanooga, an official board of the Cit

\

y

of Chattanooga, Tennessee. Counsel for Ms. Burns and

the Electric Board of Chattanooga are counsel of record

Carlos C. Smith, and Christine Mabe Scott and J. Robin

Rogers.

This response brief is filed on behalf of all Respon

dents.

TABLE OF CONTENTS

Page

LIST OF INTERESTED PARTIES ................... i

TABLE OF COMTEINED « cenccscnsavessecteceusnires ii

TABLE OF ALTRI occ vcivscetcessousaxepoue iv

PRIOR COURT OF TONG, 65 i i vccncecsdscsdwaseces 1

STATEMENT OF JURISDICTION................... 1

STATEMENT OF THE CASE. oo cuss cccccccsseneveds 1

A. Course of Proceedings and Disposition of the

Case Babee. 266 cs décicedatasseeseetee 2

B. Correction of Misstatements in the Petition... 4

REASONS FOR DENYING THE WRIT............. 8

I. THERE IS NO REASON FOR THIS COURT

TO CONSIDER THE CONSTITUTIONAL

ISSUES RAISED BECAUSE THE PETITION

DOES NOT RAISE AS ERROR THE FINDING

THAT PETITIONER HAD NO CONSTITU-

TIONALLY PROTECTED PROPERTY INTER-

EST IN HER EMPLOYMENT................ 8

Il. EVEN IF THIS COURT CONSIDERS THAT

THE PETITIONER WAS ENTITLED TO DUE

PROCESS PROTECTION, THE QUESTIONS

ASSERTED BY PETITIONER, CONCERNING

ALLEGED PROCEDURAL DEFECTS, ARE

NOT SUPPORTED BY THE FACTS OF

RANG? oa csntccesansndstaatadbdebaaskonsern 9

Ill. THE PETITION DOES NOT ASK THIS

COURT TO SETTLE ISSUES OF LAW....... 11

TABLE OF CONTENTS —- Continued

Page

<

IV. RESPONDENT KATHY BURNS IS NOT A

PROPER PARTY BECAUSE THE PETITION

DOES NOT ASK THIS COURT TO REVIEW

THE LOWER COURT’S DISMISSAL OF ALI

eee Oe eM BOE POI. S.C a eke eae dws 12

CONCLUSION ..... 13

APPENDICES

Opinion of the United States Court of Appeals for

| . PI

the Sixth Circuit (filed January 9, 1997).......App. 1

Memorandum of the United States District Court

for the Eastern District of Tennessee at Chat

tanooga (filed August 24, 1995).... en App.

iV

TABLE OF AUTHORITIES

Cases CITED:

Board of Regents v. Roth, 408 U.S. 564 (1972)......

Bunger v. University of Oklahoma Bd. of Regents, 95

Pie eee SE AAS: BO ber ke sca bebe i ces eass

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532

Dy) FRACS Re erp nr re anes Sten belie gt CaS

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) ..

Graver Tank & Mfg. Co. v. Linde Air Prod. Co., 336

U.S. 271 (1949), adhered to, 339 U.S. 605 (1950),

and superseded by statute on other grounds as

stated in Haney v. Timesavers, Inc., 1993 U.S. Dist.

Lee 44s Te oe es

Leis 0. Figet, 499 U.5. S98 (i979) ois vas cees cy sas

Travitz v. Northeast Dep't ILGWU Health and Welfare

Fund, 13 F.3d 704 (3rd Cir.), cert. denied, 114 S.Ct.

SOE FIONN Ss os Sire ee

United States v. Tracy, 989 F.2d 1279 (1st Cir.), cert.

denied, SOB US. G29 (19GD) «5 oac cc sek en ccccencs

Ruves CItep:

Supreme Comst Bie 86.8 oa cs cca ce Sec wees

United States Supreme Court Rule 15.2 ..........

United States District Court for the Eastern Dis-

trict of Tennessee Local Rule 26.2..............

ae

re

Ae

RESPONDENTS’ BRIEF IN OPPOSITION

PRIOR COURT OPINIONS

Respondents request that the Court deny the Petition

for Writ of Certiorari seeking review of an opinion of the

United States Court of Appeals for the Sixth Circuit

(hereinafter “Sixth Circuit”). The opinion of the United

States Court of Appeals for the Sixth Circuit has not been

reported and is not recommended for full text publication

pursuant to the rules of that court. The unpublished

Memorandum of the Sixth Circuit is reproduced at

Appendix pp.1-8. The decision of the United States Dis-

trict Court for the Eastern District of Tennessee (hereinaf-

ter “District Court”) also has not been published. The

unpublished Memorandum of the District Court is repro-

duced at Appendix pp.9-20.

STATEMENT OF JURISDICTION

The Electric Power Board of Chattanooga does not

contest this Court’s jurisdiction over the claims asserted

against it. The jurisdiction of this Court over the Respon-

dent Kathy Burns is disputed, because the Petition does

not raise as error the appellate court’s decision dismiss-

ing all claims against her.

2

STATEMENT OF THE CASE

The Respondents respectfully oppose the petition for

Writ of Certiorari (hereinafter “the Petition”) which is

based upon numerous misstatements of both the facts

and of applicable law in this case.

A. Course of Proceedings and Disposition of the

Case Below.

The Petitioner Kimberly Clark (hereinafter “Ms.

Clark”, “Petitioner”, or “Plaintiff”) filed her Complaint

against her former employer, the Respondent Electric

Power Board of Chattanooga (hereinafter “EPB”) and her

former supervisor, the Respondent Kathy Burns, (here-

inafter “Ms. Burns”) following Ms. Clark’s dismissal from

employment with EPB. (JA 9-13)!. This case was then

removed from the Circuit Court of Hamilton County,

Tennessee, to the District Court. (JA 14-15). Ms. Clark

admitted in her Complaint that she was provided a hear-

ing at the time of her dismissal from her employment, but

argued that this hearing was procedurally defective and

in violation of her alleged due process rights. Ms. Clark

asserted a Section 1983 claim against EPB. (JA 10-11). Ms.

Clark alse claimed that she had been defamed by state-

ments allegedly made by Ms. Burns, and asserted a state

law claim for defamation against Ms. Burns. (JA 11-12).

EPB and Ms. Burns filed separate motions for sum-

mary judgment on all claims against them. (JA 33-56,

119-44). In support of their motions, EPB and Ms. Burns

filed portions of the deposition testimony of Kimberly

Clark (JA 57-100);? the Affidavit of Kathy Burns (JA

' References are to the Joint Appendix as submitted to the

United States Court of Appeals for the Sixth Circuit, designated

“JA” and the appropriate page number.

2 Under Local Rule 26.2 of the United States District Court

for the Eastern District of Tennessee, only those portions of the

deposition testimony to be relied upon in support of a motion

for summary judgment are to be filed with the Court.

146-51); the Affidavit of Alice Glenn (JA 157-61); and the

Affidavit of Ron Earl (JA 152-56). In response to these

Motions, Ms. Clark filed only the deposition transcript of

Ron Earl as opposing evidence. (JA 165-231). The District

Court granted the motions of EPB and Ms. Burns, and

dismissed all claims against them with prejudice. Speci-

fically, the District Court found that the Plaintiff had

failed to provide any evidence establishing a protected

property interest in her employment, and that Ms. Clark

had been provided with all the due process protection to

which she would have been entitled even if such a prop-

erty interest had been present. (Appendix pp.14-18). The

District Court also dismissed the defamation claim

against Ms. Burns.

The Petitioner then appealed this decision to the

Sixth Circuit. The Sixth Circuit subsequently affirmed the

District Court’s decision to dismiss all claims against EPB

and Ms. Burns. In reaching its decision, the Sixth Circuit

first noted that Ms. Clark’s failure to offer any proof of a

constitutionally protected property interest in her

employment was fatal to her due process claim, and that

she had waived this issue on appeal by failing to present

evidence on this essential element of her prima facie case

below. (Appendix pp.5-6). Additionally, the Sixth Circuit

reviewed and found that Ms. Clark’s unchallenged status

as an at-will public employee left her no constitutionally

* Petitioner does not raise as error in the Petition the

District Court or Court of Appeals rulings dismissing the

defamation claim against Ms. Burns, and accordingly this claim

is not addressed further in this response to the Petition

protected property interest in her employment. (Appen-

dix p.6).

B. Correction of Misstatements in the Petition.

The opinions of the Sixth Circuit and the District

Court correctly set forth the facts of this case and Respon-

dents respectfully direct the Court’s attention to the

lower courts’ opinions. Pursuant to United States

Supreme Court Rule 15.2, however, Respondents bring to

the Court’s attention the following misstatements of facts

contained in the Petition.

In the Questions Presented for Review, and again in

the Argument, the Petitioner incorrectly asserts that EPB

had adopted procedures requiring “cause” be found for

an employee’s termination. (Petition, pp.i, 4). There is

nothing in the record supporting this assertion. Con-

versely, the evidence in the record establishes that Ms.

Clark was an “at will” employee and could be dismissed

at any time for any or no cause.*

The Petitioner also incorrectly asserts that EPB had

adopted a policy providing its employees with a “right”

4 The employment application signed by Ms. Clark states

that she could be terminated at any time at the will of EPB. (JA

104). Ms. Clark acknowledges in her deposition that she could

be dismissed at any time with or without cause. Ms. Clark

testified that she knew that she could be dismissed from her

employment with EPB even “if they don’t like the color of your

eyes.” (JA 65-66). The Plaintiff had no contract of employment

with EPB, nor was she given any expectation of employment for

a specific period or a permanent basis. EPB employees are not

subject to any civil service or tenure system. (JA 152).

to a hearing. (Petition, p.4). The uncontroverted deposi-

tion testimony of Ron Earl was that it was his practice to

make a hearing available to those employees in his

department when he felt that the discipline taken against

them made such a hearing appropriate, or when a hear-

ing was recommended by the supervisor. (JA 190-91).

Nowhere in the record is there any evidence of the exis-

tence of any policy providing EPB employees with a

“right” to such a hearing.°

In the Questions Presented for Review and the Argu-

ment, the Petitioner also incorrectly states that Ron Earl,

the hearing officer, had “admittedly” made up his mind

to discharge the Plaintiff prior to the hearing and that he

had based this decision on information not received at

the hearing. (Petition, pp.i, 3, 5). The Plaintiff has pre-

sented absolutely no evidence to support this contention,

and the deposition of Ron Earl, the only evidence submit-

ted by the Plaintiff in opposition to the motion for sum-

mary judgment, specifically contradicts this assertion. Mr.

Earl’s unchallenged testimony states that he maintained

> Although not presented as error for review, the Petitioner

incorrectly asserts that this alleged EPB policy was sufficient to

create a constitutionally protected property interest in the

Petitioner’s employment. (Petition, p.4). This is simply a

misstatement of the law. In Cleveland Bd. of Educ. v. Loudermill,

470 U.S. 532, 541 (1985), a case cited by the Petitioner, this Court

stated, “The categories of substance and procedure are

distinct . . . ‘Property’ cannot be defined by the procedures

provided for its deprivation any more than can life or liberty.”

As another court stated, the petitioner’s argument “attempts to

construct a property interest out of procedural timber. 7

Bunger v. University of Oklahoma Bd. of Regents, 95 F.3d 987,

990-91 (10th Cir. 1996).

an open mind prior to the hearing and based his decision

upon the evidence presented at the hearing. (JA 154-55,

209-10).

The Petitioner further mistakenly asserts that the

Plaintiff was not informed of the evidence being consid-

ered against her and was discharged over matters of

which she was not notified. (Petition, pp.i, 3, 5). Again,

not only has the Petitioner presented no evidence in

support of this contention, the evidence in the record

directly contradicts it. The Plaintiff was informed by the

memorandum from EPB supervisor Alice Glenn of the

reasons that Ms. Glenn was recommending that the Plain-

tiff be dismissed. (JA 105). At the heai.ng held by Ron

Earl, the Plaintiff admitted that she secretly attempted to

tape record her meeting with the supervisors, and the

Plaintiff’s attorney introduced the personnel evaluations

in her file as evidence of her past performance record. (JA

154). On the basis of this evidence, Mr. Earl affirmed the

decision to dismiss the Plaintiff from her employment.

(JA 107, 155, 229).

The Petitioner also incorrectly asserts that she was

not allowed to review her personnel file, nor was she

shown its contents. (Petition, pp.i, 3, 5). Again, the Plain-

tiff has introduced no evidence that she ever made, or

was denied, a request to review her personnel file or any

other documents presented at the hearing. Indeed, it was

the Petitioner’s attorney who introduced the Petitioner's

personnel evaluations as evidence at the hearing and they

were considered by the hearing officer. (JA 154-55,

159-60). Furthermore, the Petitioner was specifically

invited to present evidence on her behalf, and she and

her attorney did so. (JA 105, 154, 159-60).

a |

Additionaliy, in the Statement of the Case, the Peti-

tioner incorrectly asserts that Ms. Clark was told by Ms.

Burns that EPB might be reassigning some customer rela-

tions personnel to other shifts. (Petition, p. 2). What the

record shows is that Ms. Burns told Ms. Clark that the

shifts would not be permanently assigned in the depart-

ment, and that customer relations personnel should be

thankful that the personnel did not have to work seven

(7) days a week or twenty-four (24) hours a day. (JA

147-48).

Also, Petitioner’s statements in the Statement of the

Case concerning Alice Glenn’s recommendation of the

Petitioner's dismissal are not an appropriate or correct

characterization of the evidence. (Petition, p. 2). It was

Ms. Clark who requested to meet with Mr. Earl to discuss

problems that she denied having in the department. In

this meeting, Ms. Clark admitted to Mr. Earl that she had

attempted surreptitiously to tape record her meeting with

her supervisor. (JA 153). It was Ms. Glenn who made the

recommendation of dismissal and then prepared a writ-

ten notice to Ms. Clark of her recommendation, informing

Ms. Clark of the reasons for her recommendation, and

notifying Ms. Clark of the availability of a hearing with

Mr. Earl. (JA 159).

REASONS FOR DENYING THE WRIT

I. THERE IS NO REASON FOR THIS COURT TO

CONSIDER THE CONSTITUTIONAL ISSUES

RAISED BECAUSE THE PETITION DOES NOT

RAISE AS ERROR THE FINDING THAT PETI-

TIONER HAD NO CONSTITUTIONALLY PRO-

TECTED PROPERTY INTEREST IN HER

EMPLOYMENT.

This Court has held previously that a plaintiff is

required to have “an enforceable claim to an entitlement”

in order to assert a Section 1983 claim. Leis v. Flynt, 439

U.S. 438 (1979). Also, in Board of Regents v. Roth, 408 U.S.

564, 569 (1972), this Court held that a plaintiff must

establish the existence of a constitutionally protected

property interest in employment in order to sustain a

claim under Section 1983 for alleged violation of due

process rights.

The Sixth Circuit in the present case found that the

Petitioner’s “total failure to proffer any proof of a consti-

tutionally protected property interest was fatal to her

Section 1983 action. By failing to present evidence on this

essential element of her prima facie case below, Clark has

waived that issue on appeal.” (Appendix p.6). See Travitz

v. Northeast Dep't ILGWU Health and Welfare Fund, 13 F.3d

704, 711 (3rd Cir.), cert. denied, 114 S.Ct. 2165 (1994);

United States v. Tracy, 989 F.2d 1279, 1286 (1st Cir.), cert.

denied, 508 U.S. 929 (1993). The Sixth Circuit nonetheless

evaluated the Plaintiff's employment status under appli-

cable Tennessee state law, and determined that the Plain-

tiff had no constitutionally protected interest in her

employment because she was an employee at-will under

Tennessee law, and her employment could be terminated

by either party at any time with or without cause

(Appendix p.6).

The Petitioner does not even raise as error this find-

ing by the lower court on this essential element of Ms.

Clark’s claim; instead, the Petitioner asks this Court to

assume that such a protected property interest existed.

There is no evidence in the record to support the Peti-

tion’s assumed prima facie case, nor is there any basis for

this Court to continue to the next step of its analysis of

the case, in determining whether the hearing provided to

the Petitioner complied with constitutional requirements.

The Petition should be denied. It does not raise as

error the lower courts’ finding that the Plaintiff had no

constitutionally protected property interest in employ-

ment. Therefore, the Court need not consider the issues

presented for review.

Ii. EVEN IF THIS COURT CONSIDERS THAT THE

PETITIONER WAS ENTITLED TO DUE PROCESS

PROTECTION, THE QUESTIONS ASSERTED BY

PETITIONER, CONCERNING ALLEGED PRO-

CEDURAL DEFECTS, ARE NOT SUPPORTED BY

THE FACTS OF RECORD.

As questions presented for review to this Court, the

Petitioner asserts that the hearing provided to her had

procedural defects which violated her due process rights.

However, none of the alleged defects asserted by the

Petitioner are supported in the record, and, where they

are addressed at all by the evidence, they are contra-

dicted by it.

10

The first question presented for review asserts that

the hearing officer had “admittedly made up his mind to

discharge Plaintiff prior to the hearing.” Not only is the

record in this case devoid of any evidence supporting this

assertion, the record directly contradicts it. The only evi-

dence ever submitted by the Plaintiff was the transcript

of the deposition testimony of the hearing officer, Ron

Earl. In his deposition, Mr. Earl specifically denied that

he had made a decision prior to the hearing and asserted

that he entered the hearing with a open mind. (JA

209-10). The uncontroverted statements in Mr. Earl’s affi-

davit establish that he made his decision based upon the

evidence provided at the hearing. (JA 154-55).

The second question asserts that the Plaintiff was not

apprised of the evidence considered against her and that

she was discharged over matters of which she was not

notified. Again, there is no evidence supporting this

assertion. The Plaintiff was notified of the reasons for her

dismissal prior to the hearing in the memorandum given

to her by her supervisor, Alice Glenn. (JA 105). Ron Earl

testified that he based his decision on the information

received at the hearing and primarily on Ms. Clark’s

admission that she attempted to covertly tape record a

meeting with her supervisors. (JA 154-55, 209-10, 229). It

should be noted that the Plaintiff’s attorney introduced

into evidence the Plaintiff's personnel file evaluations

and this evidence was considered. (JA 154-55).

The third question presented for review asserts that

the Plaintiff was not allowed to review her personnel file

prior to the hearing. Again, there is no evidence in the

record to suppurt this assertion. There is nothing in the

record showing t «t ‘+e Plaintiff ever requested to review

11

her personnel file, nor that she was ever denied the

opportunity to do so.

The questions presented for review concerning

alleged procedural defects in the hearing before Mr. Earl

do not accurately reflect the facts in the record upon

which they are dependent, and in fact, are largely contra-

dicted by the evidence. Accordingly, further review by

this Court of these questions is not necessary.

Il. THE PETITION DOES NOT ASK THIS COURT

TO SETTLE ISSUES OF LAW.

The questions presented for review in the Petition do

not reflect any issues of law decided by the lower courts.

The appellate court found that the Plaintiff had presented

no evidence of a constitutionally protected property

interest in her employment and affirmed summary judg-

ment on that basis. The Petition does not even assert as

error the entering of summary judgment because of no

constitutionally protected property interest, but instead

attempts to create factual disputes, where none exist,

concerning the propriety of the hearing provided to the

Petitioner. The Sixth Circuit made no such findings of

facts as are assumed and asserted as error by the Peti-

tioner. Instead, it founda that the Plaintiff failed to offer™

any proof of a constitutionally protected property interest

in her employment. The Petition does not ask this Court

to settle issues of law, because the point of law on which

this case was decided is not raised as error.

This Court previously has stated, “A court of law,

such as this Court is, rather than a court for correction of

12

errors in factfinding, cannot undertake to review concur-

rent findings of fact by two courts below in the absence of

a very obvious and exceptional show of error.” Goodman

v. Lukens Steel Co., 482 U.S. 656, 665 (1987), quoting Graver

Tank & Mfg. Co. v. Linde Air Prod. Co., 336 U.S. 271, 275

(1949), adhered to, 339 U.S. 605 (1950), and superseded by

statute on other grounds as stated in Haney v. Timesavers,

Inc., 1993 U.S. Dist. LEXIS 14646 (D. Or. 1993).

Further review is not warranted by this Court

because the Petition seeks review of only unsupported

factual allegations, and not of issues of law.

IV. RESPONDENT KATHY BURNS IS NOT A

PROPER PARTY BECAUSE THE PETITION DOES

NOT ASK THIS COURT TO REVIEW THE

LOWER COURT’S DISMISSAL OF ALL CLAIMS

AGAINST HER.

As previously noted in the Statement of the Case, the

Plaintiff asserted only a state law claim of defamation

against Kathy Burns. The District Court granted sum-

mary judgment in favor of Kathy Burns and dismissed

this claim. The Sixth Circuit then affirmed the dismissal

of this claim because the Plaintiff had failed to raise any

issue that Ms. Burns intended to maliciously harm the

Plaintiff by her alleged statements, or that the statements

constituted a serious threat to the Plaintiff’s reputation.

The Petitioner does not ask this Court to review this

dismissal of the state law claim against Ms. Burns and

there are no other claims pending against her for review.

As the Rules of the Supreme Court state, “Only the

questions set forth in the petition, or fairly included

13

therein, will be considered by the Court.” Rule 14.1(a),

Rules of the Supreme Court of the United States. Conse-

quently, Ms. Burns is not a proper party to this Petition

and it is asked that she be dismissed as a named Respon-

dent.

CONCLUSION

Respondents respectfully submit that this case pre-

sents no issue of law or fact that justifies review by the

United States Supreme Court. Petitioner has had appro-

priate review at both the district and appellate court

levels. The decisions of these courts are proper and the

Petition for Writ of Certiorari should be denied.

Respectfully submitted,

Carztos C. SMITH,

Counsel of Record

CHRISTINE Mase Scort

J. Rosin RoGErs

Attorneys for Respondents

STRANG, FLETCHER, CARRIGER,

WALKER, Hopce & SmitH, PLLC

400 Krystal Building

One Union Square

Chattanooga, Tennessee 37402

(423) 265-2000

App. 1

NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION

No. 95-6196

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Kimberly CLARK,

Plaintiff-Appellant, ON APPEAL FROM

THE UNITED STATES

DISTRICT COURT

FOR THE EASTERN

DISTRICT OF

TENNESSEE

V.

Kathy BURNS and the Electric

Power Board of Chattanooga,

Tennessee,

Defendants-Appellees.

(Filed Jan. 9, 1997)

BEFORE: KRUPANSKY, BOGGS, & SILER, Circuit

Judges.

PER CURIAM. Plaintiff has appealed from a district

court’s grant of summary judgment for defendants on her

complaint, which alleged a federal civil rights violation

and a state law defamation claim. Plaintiff has averred

two errors: (1) the district court improperly concluded

that a hearing afforded by her former employer, defen-

dant Electric Power Board of Chattanooga, Tennessee

(“EPB”), prior to her termination protected and preserved

her right to due process guaranteed by the Constitution;

and (2) the district court erroneously concluded that

plaintiff presented insufficient evidence to sustain a cause

of action for defamation against her former supervisor,

defendant Kathy Burns (“Burns”).

App. 2

Since 1986, plaintiff, Kimberly Clark (“Clark”),

worked for the EPB, a quasi-governmental organization,

as an at-will employee in its Customer Information Cen-

ter (“CIC”). The CIC staggered seven shifts of representa-

tives to respond to customers’ concerns via telephone

between the hours of 7:00 AM and 8:00 PM, Monday

through Friday. To the dissatisfaction of Clark, the shifts

were rotated among employees on a monthly basis. Her

displeasure escalated and during 1992 and 1993 Clark

frequently expressed her objection to her immediate

supervisor, defendant Burns. Clark repeatedly suggested

that Burns assign employees to work particular shifts on

a permanent basis, rather than rotate them. Although

Clark’s proposal was consistently rejected by Burns, her

response on one particular occasion gave rise to the

instant controversies.

Burns related that during a private meeting on May

6, 1993, she dismissed Clark’s complaint as usual and

then explained, “[W]e should all be very thankful that we

do not have to work 24 hours per day, or 7 days a week,

as a lot of companies require their employees to do.”

Clark remembered the conversation differently. She has

contended that Burns said there was a “possibility” that

the department would inaugurate 24 hour shifts, week-

end shifts, and monitoring of all telephonic conversa-

tions. Irrespective of what Burns actually said during this

discussion, on the following day two CIC employees

reported to her that Clark had cautioned them about

impending changes in the working shifts. Apparently,

Clark had informed some CIC employees that the EPB

planned to add several additional shifts in order to cover

an extensive schedule of 24 hour days, 7 days a week.

App. 3

(J.A. at 148.) Unhappy with this notion, some employees

contemplated resignation and one promptly submitted a

transfer request.

Burns attempted to quiet unrest in the department by

explaining that the rumor was false. In the course of her

efforts she purportedly denounced Clark as a liar, giving

rise to the instant defamation charge. Burns also con-

tacted her immediate supervisor, Alice Glenn (“Glenn”),

the Superintendent of the Customer Service Department,

to discuss the seminal conversation with Clark, the

alleged misrepresentation by Clark of this conversation to

CIC employees, and the resultant disruption caused by

Clark’s activities. (J.A. at 149.) Consequently, a meeting

among Burns, Glenn, and Clark, to discuss Clark’s

alleged conduct in circulating the misinformation about

the shift changes, was scheduled for May 18, 1993.

Before the meeting, Clark told some CIC employees

that she secretly intended to tape record the confronta-

tion. One of these employees informed Burns of Clark’s

intention. At the meeting, Burns advised Clark that she

knew about the recorder, asked her to remove it, and

ordered her to turn it off. The parties then discussed the

events already related. Within a fortnight, Glenn’s super-

visor, Ronald Earl (“Earl”), also met with Clark to discuss

her behavior. In both meetings, Clark denied having told

the staff that the shifts would be changed and explained

that she had merely indicated that shifts could be

changed. Nevertheless, Clark admitted her surreptitious

attempt to record the meeting with Burns and Glenn.

On May 26, 1993, Glenn prepared a memorandum

advising Clark that she intended to seek her termination

App. 4

from the EPB on June 1, 1993 due to her misrepresenta-

tions to the CIC employees and her covert attempt to

record the May 18, 1993 meeting. Both Glenn and Burns

proceeded to Clark’s work station, requested her to read

the memorandum, gather her belongings, and leave the

premises. However, Clark was permitted to remain on the

payroll until the EPB afforded her an opportunity to

appeal her termination at a hearing before Earl on June 1,

1993. Legal counsel represented Clark at this appellate

hearing. After introductory remarks by Earl, Glenn pre-

sented her reasons for recommending Clark’s termina-

tion, including the dissemination of disruptive

misinformation among CIC employees and the furtive

attempt to tape record a meeting with supervisors. Clark

responded to the first charge by denying that she misin-

formed the other employees because she had purportedly

only told them that shift changes were under consider-

ation. She admitted the second charge. Clark’s attorney

introduced her personnel file into evidence and noted her

history of generally positive evaluations and a seven

percent pay increase on May 1, 1993. Clark presented no

other evidence and called no witnesses. On the next day,

Earl issued a letter to Clark upholding Glenn’s recom-

mendation to dismiss her. He concluded that Clark’s

behavior constituted insubordination and misconduct on

the job.

Clark sought judicial redress in the Circuit Court of

Hamilton County, Tennessee, and the case was removed

to the United States District Court for the Eastern District

of Tennessee. The district court confronted two legal

issues. First, Clark sought to invalidate Earl’s decision of

termination because the EPB appellate process allegedly

App. 5

violated 42 U.S.C. § 1983. Second, Clark sought to recover

damages from Burns because the nature of her announce-

ment that Clark had misstated the truth allegedly consti-

tuted defamation under Tennessee law. The district court

favored both defendants on summary judgment.

This court reviews appeals from grants of summary

judgment under a de novo standard. EEOC v. University of

Detroit, 904 F.2d 331, 334 (6th Cir. 1990). In this context,

such analysis asks the court to assess “whether the evi-

dence presents a sufficient disagreement to require sub-

mission to a jury or whether it is so one-sided that one

party must prevail as a matter of law.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52 (1986). In its pursuit of

this goal, the court must “draw all justifiable inferences

in favor of the non-moving party.” Winningham v. North

American Resources Corp., 42 F.3d 981, 984 (6th Cir. 1994).

Nevertheless, “[t]he mere existence of a scintilla of evi-

dence in support of the [nonmovant’s] position will be

insufficient; there must be evidence on which the jury

could reasonably find for the [nonmovant].” Liberty

Lobby, 477 U.S. at 252 (1986). At least one genuine issue of

material fact must exist. Middleton v. Reynolds Metals Co.,

963 F.2d 881, 882 (6th Cir. 1992). A fact is material if it will

“affect the outcome of the suit under the governing law.

. Factual disputes that are irrelevant or unnecessary

will not be counted.” Liberty Lobby, 477 U.S. at 248.

The district court concluded that Clark was not enti-

tled to recover under her § 1983 claim because she did not

assert a constitutionally protected right to continued

employment, and even assuming that she had, the EPB

had given her all of the due process protection afforded

App. 6

by law. Because a § 1983 plaintiff must prove a constitu-

tionally protected interest as a condition precedent to the

court’s cognizance of the claim, see Ramsey v. Board of

Education, 844 F.2d 1268, 1272-73 (6th Cir. 1988), Clark’s

total failure to proffer any proof of a constitutionally

protected property interest was fatal to her § 1983 action.

By failing to present evidence on this essential element of

her prima facie case below, Clark has waived that issue on

appeal. See Travitz v. Northeast Dept. ILGWU Health and

Welfare Fund, 13 F.3d 794, 711 (3d Cir.), cert. denied, 114 S.

Ct. 2165 (1994); United States v. Tracy, 989 F.2d 1279, 1286

(1st Cir.), cert. denied, 508 U.S. 929 (1993); Fed. R. App. P.

28(a)(3), (5), and (6); cf. John v. Barron, 897 F.2d 1387, 1393

(7th Cir.), cert. denied, 498 U.S. 821 (1990).

Regardless, because the sufficiency of a claim to a.

property interest in employment must be decided by

reference to state law, Clark’s unchallenged status as an

at-will public employee in Tennessee left her no constitu-

tionally protected property interest in continued employ-

ment. See Gregory v. Hunt, 24 F.3d 781, 784-85 (6th Cir.

1994). In Tennessee, an employee hired for an indefinite

period is an employee-at-will, and the employment can

be terminated by either party at any time with or without

cause. See Graves v. Anchor Wire Corp., 692 S.W.2d 420

(Tenn. Ct. App. 1985). Consequently, the district court’s

dismissal of Clark’s § 1983 claim is AFFIRMED.

Clerk’s defamation claim must also fail because even

if this panel were to regard the facts most favorably to

App. 7

her claim,! Tennessee law follows the general rules that

“false statements do not constitute actionable defamation

merely because they are false and that the burden of

proof rest[s] upon the plaintiff to demonstrate that the

[statement] was, in fact, defamatory because it tended to

injure plaintiff in h[er] trade, profession, or community

standing, or lower h[er] in the estimation of the commu-

nity or subject h[er] to scorn, ridicule, shame, contempt,

or embarrassment.” Connaughton v. Harte Hanks Comm.,

Inc., 842 F.2d 825, 840 (6th Cir. 1988), aff'd, 491 U.S. 657

(1989); see Quality Auto Parts Co. v. Bluff City Buick Co.,

876 S.W.2d 818, 820 (Tenn. 1994) (“The basis for an action

for defamation, whether it be slander or libel, is that the

defamation has resulted in an injury to the person’s char-

acter and reputation”); cf. Stones River Motors, Inc. v. Mid-

South Pub. Co., 651 S.W.2d 713, 719 (Tenn. Ct. App. 1983)

(“For a communication to be libelous, it must constitute a

serious threat to the plaintiff’s reputation. A libel does

not occur simply because the subject of a publication

finds the publication annoying, offensive or embarrass-

ing. The words must reasonably be construable as hold-

ing the plaintiff up to public hatred, contempt or ridicule.

They must carry with them an element ‘of disgrace.’ ”)

(quoting W. Prosser, Law of Torts, § 111 (4th ed. 1971)).

Because Clark has failed to raise a genuine issue that

anyone intended to harm her maliciously or that the

1 Clark’s own conflicting renditions of the facts undermine

the credibility of her accounts. In the complaint, Clark alleged

that Burns reported plaintiff’s “lie” about shift changes to the

EPB management. (J.A. at 10 (Vol. I).) In her deposition, Clark

alleged that Burns reported plaintiff’s “lie” to the employees in

the CIC. (J.A. at 43 (Vol. II).)

App. 8

statements constituted a serious threat to her reputation,

the district court’s rejection of Clark’s defamation claim is

AFFIRMED.

Accordingly, the district court’s judgment of August

24, 1995, is hereby AFFIRMED.

App. 9

UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF TENNESSEE

at CHATTANOOGA

KIMBERLY CLARK

Plaintiff,

v.

KATHY BURNS, and

ELECTRIC POWER BOARD

OF CHATTANOOGA,

Defendant.

No. 1:93-CV-356

Collier /Powers

a

MEMORANDUM

Currently before the Court are the defendants’ Kathy

Burns and Electric Power Board of Chattanooga motions

for summary judgment and the plaintiff’s response

thereto.! Both named defendants move for summary

judgment pursuant to Rule 56 of the Federal Rules of

Civil Procedure, as to the complaint of plaintiff Kimberly

Clark for deprivation of due process rights in her dis-

missal from employment at the Electric Power Board.

(Court File No. 1). Defendants’ motions are GRANTED

and all claims against these defendants are DISMISSED

with PREJUDICE for the following reasons:

1 Plaintiff’s motion for response to be timely filed is

GRANTED.

App. 10

I.

BACKGROUND

The following summary of facts is compiled from the

pleadings of the parties and their supporting evidence.

The plaintiff in this matter, Kimberly Clark (hereinaf-

ter Clark) was an employee for the Electric Power Board

(EPB) serving as a customer adviser in the Customer

Information Center (CIC). The CIC is the information

center which receives phone calls from the public regard-

ing various matters concerning the payment, mainte-

nance and other services connected with the EPB’s duties

to the public. As a customer advisor Clark received

approximately 100 phone calls a day from the public and

could receive as many as 300 phone calls a day. (Court

File No. 27, Burns Affidavit; Clark Deposition.).

Clark began working with the EPB as a temporary

employee and was hired as a full time employee in

December of 1986. EPB employees are not subject to any

civil service or tenure system. (Court File No. 27, Earl

Affidavit.). Mrs. Clark was not given a contract of

employment and was hired as an “at will” employee.

(Court File No. 27). Clark was later promoted to her last

position of Customer Adviser. Electric Powér Board

Employees in the CIC work seven hour shifts which are

staggered throughout the week. These shifts were super-

vised by defendant Burns and all decisions concerning

shift assignment were made by Burns.

On May 6, 1993, Clark spoke to Burns about changing

the current shift assignments to permanent shifts assign-

ments. Burns allegedly said that she would not change

App. 11

the shifts. After this discussion, Clark spoke about a

change in the shift rotation to various employees result-

ing in turmoil and unrest within the department. Some

employees contemplated transfers to other departments

to avoid the reported changes that were going to take

place. Burns learned that Clark had made these state-

ments regarding a shift change and held a meeting with

the employees of the department to inform them that the

information was false. On May 18, 1993 Clark met with

Burns to discuss her alleged conduct in spreading this

information. Also present at this meeting was Burns’

immediate supervisor, Ms. Alice Glenn.

In order to record the conversations that took place

during this meeting, Clark entered Burns’ office with a

tape recorder hidden under her clothing. Unknown to

Clark, however, another employee had informed Burns of

Clark’s attempt to secretly record the remarks made dur-

ing the meeting. Burns requested that Clark remove the

recorder and turn it off. After Clark complied with this

request, the parties discussed the statements made by

Clark concerning shift changes. Clark alleges that during

this discussion Burns called her a liar and said that she

intentionally lied to create disorder in the department.

Burns denies that she called Clark a liar. Mr. Ronald D.

Earl, the manager of the division which includes the CIC

and Ms. Glenn’s immediate supervisor, was informed of

Clark’s conduct and met with Clark on May 26, 1993.

(Court File No. 27, Earl Affidavit.). At this conference

2 The motions made by the defendants state that several

employees were concerned about being assigned late shift hours

permanently due to their lack of seniorty.

App. 12

Clark admitted to secretly attempting to tape record the

Burns meeting. After the meeting, Earl told Clark to

return to her workstation. Later that day, Clark was given

a memorandum informing her that her employment with

EPB was to end June 1, 1993 due to misrepresentations

and attempting to record the meeting with Burns. (Court

File Numbers 27, 29, and 1). Clark was then given an

opportunity to appeal her termination at a June 1 hearing.

Clark attended the meeting with her attorney and contin-

ued to receive her regular pay until the date of the

hearing. (Court File Numbers 27, 29, and 1). At the hear-

ing Clark presented positive evaluations from her person-

nel file and presented no other evidence. However, the

plaintiff argues that she was denied opportunity to be

heard. (Court File No. 1). On June 2, 1993 Clark was fired

by Earl who stated that enough evidence was presented

at the hearing to warrant her dismissal.

Clark sued in the Circuit Court of Hamilton County,

Tennessee and this suit was removed to the United States

District Court on August 26, 1993. The plaintiff claims

that her substantive and procedural due process rights

were violated by EPB when they dismissed her, depriving

her of her property right in her employment. Plaintiff

Clark further alleges that Kathy Burns’ statements about

her lying were improper and constitute defamation under

Tennessee law. (Court File No. 1).

App. 13

II.

DISCUSSION

A. Summary Judgment Standard:

Fed. R. Civ. P. 56(c) provides that summary judgment

will be rendered if there is no genuine issue of material

fact and the moving party is entitled to judgment as a

matter of law. The burden is on the moving party to show

conclusively that no genuine issue of material fact exists,

and the Court must view the facts and all inferences in

the light most favorable to the nonmoving party. Kentucky

Div., Horsemen's Benevolent & Protective Ass‘n, Inc. v. Turf-

way Park Racing Ass‘n, Inc., 20 F.3d 1406 (6th Cir. 1994);

White v. Turfway Park Racing Ass‘n, Inc., 909 F.2d 941, 943

(6th Cir. 1990); 60 Ivy Street Corp. v. Alexander, 822 F.2d

1432, 1435 (6th Cir. 1987).

Once the moving party presents evidence sufficient to

support a motion under Rule 56, the nonmoving party is

not entitled to a trial solely based on allegations. The

nonmoving party must come forward with some signifi-

cant probative evidence which makes it necessary to

resolve the factual dispute at trial. Celotex Corp. v. Catrett,

477 U.S. 317 (1986); Kentucky Horsemen's Ass’n, 20 F.3d at

1411; White, 909 F.2d at 943-44; Ivy Street, 822 F.2d at 1435.

The moving party is entitled to summary judgment if the

nonmoving party fails to make a sufficient showing on an

essential element of the case with respect to which it has

the burden of proof. Celotex, 477 U.S. at 323; Kentucky

Horsemen's Ass‘n, 20 F.3d at 1411.

The trial court’s function at the point of summary

judgment is limited to determining whether sufficient

App. 14

evidence has been presented to make the issue of fact a

proper jury question, and not to weigh the evidence,

judge the credibility of witnesses, or determine the truth

of the matter. Anderson v. Liberty Lobby, Inc., 477 U.S 242,

249 (1986); 60 Ivy Street, 822 F.2d at 1435-36. The standard

for summary judgment mirrors the standard for directed

verdict. The court must decide “whether the evidence

presents a sufficient disagreement to require submission

to a jury as a matter of law.” Anderson, 477 U.S. at 251-52.

There must be some probative evidence from which the

jury could reasonably find for the nonmoving party. If the

Court concludes that a fair-minded jury could not return

a verdict in favor of the nonmoving party based upon the

evidence presented, it may enter summary judgment. Id.

B. Fifth and Fourteenth Amendment Allegations:

The plaintiff in her complaint alleges that EPB vio-

lated her procedural and substantive due process rights

when they dismissed her from her position thereby

depriving her of property and violating the Fifth and

Fourteenth Amendments of The United States Constitu-

tion and 42 U.S.C. § 1983. EPB in its motion for summary

judgment argues that it took all of the necessary steps to

ensure that Clark’s due process rights were maintained

and that her dismissal was justified.

The plaintiffs must establish in its Section 1983 claim

the existence of a constitutionally protected property

interest. Ramsey v. Board of Education, 844 F.2d 1268 (6th

Cir. 1988); Leis v. Flynt, 439 U.S. 438 (1979) (a plaintiff

must have enforceable claim to assert a Section 1983

claim); Riverview Investment Inc. v. Ottawa Community

App. 15

Improvement Corp., 769 F.2d 324, 327 (6th Cir 1995); Gre-

gory v. Hunt, 24 F.3d 781, 785 (6th Cir. 1994); Bennet v.

Steiner-Liff Iron and Metal Co., 826 S.W.2d 119, 121 (Tenn.

1992). Here the plaintiff asserts a property interest claim

resulting from her employment. The sufficiency of the

claim to property interest in employment must be

decided by reference to state law. Bishop v. Wood, 426 U.S.

341 (1976); Perry v. Sinderman, 408 U.S. 593, 601 (1972);

Woosley v. Hunt, 932 F.2d 555 (6th Cir 1991). In Duncan v.

Onida this Court held that “the State of Tennessee does

not grant by statute, or otherwise, a right to continued

public employment.” Duncan v. Onida, 564 F.Supp. 425,

426 (E.D. Tenn. 1983) aff’d, 735 F.2d 998 (7th Cir. 1984).

The Tennessee Supreme Court has held:

“a public employee is not deemed to have a

contract of employment within the meaning of

the ‘impairment of contract’ provisions of the

state and federal constitutions unless the

employee is affected by a tenure or civil service

system.”

Blackwell v. Quarterly County Court, 622 S.W.2d 535, 539

(Tenn. 1981). See also Garvie v. Jackson, 845 F.2d 647 (6th

Cir. 1988); Bush v. Johnson, 602 F.Supp. 96 (E.D. Tenn.

1985).

Applying the above law to the facts, the Court finds

that the plaintiff has not asserted a constitutionally pro-

tected right to continued employment. The affidavits sub-

mitted by the defendants, and uncontested by the

plaintiffs, showed that Clark was not under any form of

durational employment contract while she was employed

with EPB. (Court File No. 27, Earl Affidavit; Clark Depo-

sition, page 33, lines 14-24). All of the evidence presented

App. 16

shows that Clark was an employee at will and that she

understood this. The standard for summary judgment is

to view the evidence in the light most favorable to the

nonmoving party. Kentucky Div., Horsemen's Benevolent &

Protective Ass'n, Inc., 20 F.3d 1411 (6th Cir. 1994); White,

909 F.2d at 943 (6th Cir. 1990); 60 Ivy Street Corp., 822 F.2d

at 1435 (6th Cir. 1987). The nonmoving party must come

forward with some significant probative evidence which

makes it necessary to resolve the factual dispute at trial.

Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Kentucky

Horsemen’s Ass’n, 20 F.3d at 1411; White, 909 F.2d at

943-44; Ivy Street, 822 F.2d at 1435. The plaintiffs have

brought forward no evidence to contest the affidavits of

Earl or Burns. (Court File No. 35, Plaintiffs Response to

Summary Judgment). Further the plaintiff has only sup-

ported the statements of the defense by submitting the

entire uncontested deposition of Mr. Earl which clearly

says that the plaintiff is employed at will. The plaintiff

has failed to come forward with significant probative

evidence which makes it necessary to resolve the factual

dispute at trial. Celotex Corp. v. Catrett, 477 U.S. 317

(1986); Kentucky Horsemen's Ass'n, 20 F.3d at 1411; White,

909 F.2d at 943-44; Ivy Street, 822 F.2d at 1435.

The plaintiff also asserts that her procedural due

process rights were violated by the manner in which the

dismissal took place. The Supreme Court along with the

Sixth Circuit held that the due process clause requires

specific measures in the dismissal of a government

employee. A public employee with a property interest in

her employment must be given oral or written notice of

dismissal, an explanation of the employer’s reasons for

the dismissal, and an opportunity to be heard. Loudermill

App. 17

v. Cleveland Board of Elections, 844 F.2d 304, 310 (6th Cir.

1988) on remand from Loudermill, 470 U.S. 532. Justice

White, writing for the majority in Loudermill held that an

employee is only entitled to these actions because the

purpose of the process is to ensure that the discharge is

not a mistake. Loudermill, 470 U.S. at 546. Due process

demands a pretermination hearing be held to determine

if the termination is being done on reasonable grounds.

Id. This hearing does not have to be elaborate, it need

only provide an opportunity to be heard. Id. To require

more would unnecessarily burden the government when

terminating unsatisfactory employees. Id.

Clark argues that she was denied due process protec-

tion; however, her pleadings state the opposite. Accord-

ing to the complaint, Clark was informed of her habits,

given a letter of discharge and a hearing to appeal her

discharge. (Court File No. 1). Under the ruling of the

Supreme Court and the Sixth Circuit she was given due

process protection. Affidavits and depositions presented

by both sides acknowledge that Clark had an opportunity

to be heard, and this opportunity is all that the law

requires. (Court File No. 27, Earl Affidavit, Burns Affi-

davit, and Memorandum of Recommendation for Termi-

nation). Evidence proffered by the defense shows that

Clark was aware that the appeal was her opportunity to

be heard on the issue of dismissal.* (Court File No. 27).

Thus, Clark was given all of the due process protection

3 According to the evidence proffered by the defense,

uncontested by the plaintiff, Clark brought her attorney with

her to the appeal hearing.

App. 18

afforded by the law; she was given notice (a memoran-

dum) and an opportunity to be heard.

It is for the reasons stated above that the Section 1983

claims alleging a violation of due process must be dis-

missed with prejudice against the named defendants in

this case.

C. Defamation Allegations:

The complaint of Clark alleged that defendant Burns

defamed her character by calling her a liar. To sustain a

defamation suit a plaintiff must show more than mere

statements of a defamatory nature. Dunneburke v.° Wil-

liams, 381 S.W.2d 909 (1964). To prevail in a defamation

suit the plaintiff must show communications that are a

serious threat to her reputation. Stones River Motors, Inc.

v. Mid-South Publishing Co., 651 S.W.2d 713, 719 (Tenn.

App. 1983). To assert defamation the plaintiff must also

show publication of the statements. Applewhite v. Memphis

State Univ., 495 S.W.2d 190 (Tenn. 1973). Clark alleges that

Burns published these statements when Burns stated “she

lied” when asked directly by an employee the validity of

Clark’s statements regarding the shift changes. However,

the defendants have persuasively argued that the alleged

statements do not constitute defamation because they

were based upon disclosed facts. In support of this con-

tention the defendants cite Stones River Motors and Wind-

sor v. Tennessean, 665 S.W.2d 680 (1983). Both authorities

explain the law in Tennessee regarding the publication of

disclosed facts. No matter how derogatory the statements

are, the statements are only an expression of opinion

based upon those facts. Windsor, 654 S.W.2d at 686. See

App. 19

also Connaughton v. Hearte Hanks Communications, Inc., 842

F.2d 825 (6th Cir. 1987) (generally the rule is that false

statements do not form actionable defamation due to the

plaintiff’s burden to show that the statement was made to

injure the plaintiff in his trade, professional or commu-

nity subjecting her to shame, ridicule or contempt).

The defendants argue that Burn’s statements were

based upon information she had received from the facts.

Whether she had actually received these facts is a ques-

tion for a jury; however, due to the weight of authority

asserting that only those statements which are a serious

(emphasis added) threat to an individual’s reputation

may be considered defamation, we find that Burns’

motion for summary judgment should be granted.

Further, the plaintiff must show that the statements

made by Burns were done to defame her reputation.

Viewing the evidence in the light most favorable to Clark,

it appears that the statements, even if true, were said to

explain the statements of Clark. The court must look at

the statements in the context of the situation and sur-

roundings of the event. Connaughton, 842 F.2d at 840.

Burns has presented affidavits and depositions showing

an environment of disorder regarding the shift changes.

(Court File Numbers 25 and 27, Clark Deposition, pages

51-58). These depositions include statements by the plain-

tiff.4 The plaintiff has not brought forth any evidence to

refute the evidence offered by the defense and thus has

failed to raise an issue of fact which must be brought

4 The Clark deposition, on page 57, has the plaintiff stating

that there was a “big blowup” about various employees “getting

bent out of shape” regarding a proposed shift change.

App. 20

before a jury. For the above reasons the motion for sum-

mary judgment regarding the allegations of defamation is

granted.

Ill.

CONCLUSION

The motions for summary judgment pursuant to Rule

56 of the Federal Rules of Civil Procedure from defen-

dants Burns and Electric Power Board are GRANTED and

all claims against these defendants are dismissed with

prejudice.

/s/ Curtis L. Collier

CURTIS L. COLLIER

United States District Judge