# Opposition Brief — Clark v. Burns

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1264

## Text

;
'
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0534%3A2. Public record. Not legal advice.