Opposition Brief — Scallet v. Rosenblum

No. 96-1725

In The

Supreme Court of the United States

October Term, 1996

——__———_—__—_—- @ —______—_—_-

ROBERT J. SCALLET,

Petitioner,

JOHN R. ROSENBLUM, et al.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

— ¢

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

e

Eart C. Dub ey, Jr.

(Counsel of Record)

Paut J. Forcu

University of Virginia

Charlottesville, Virginia 22903

(804) 924-3586

Counsel for Respondents

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

OR CALL COLLECT (402) 342-2831

OS Ee SOF A OE es +. ee LS

QUESTION PRESENTED

Whether the two courts below erred in concluding

that no reasonable juror could “find that [respondents]

retaliated against [petitioner] for his in-class speech, his

advocacy in faculty meetings, or because of the posted

articles and cartoons outside his office.” Pet. App. 4a.

il

TABLE OF CONTENTS

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Material from Pages 7-22 of Appellees’ Brief in

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TABLE OF AUTHORITIES

Page

CASES

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..... 5

Board of Regents v. Roth, 408 U.S. 564 (1972).......... 4

Celotex Corp. v. Catrett, 477 U.S. 317 (1986)........... 5

Houston Oil Co. v. Goodrich, 245 U.S. 440 (1918) ...... 5

Southern Power Co. v. North Carolina Pub. Serv. Co.,

er NE eg Sra wala soa aS bcle poke ck ieken 5

Tiffany Fine Arts, Inc. v. United States, 469 U.S. 310

ere et aE GL Whe kaw AMA Sheed KEK ous 5

United States v. Doe, 465 U.S. 605 (1984).............. 5

United States v. Reliable Transfer Co., 421 U.S. 397

SRRGUAR SSSR SSF Re NN a ae ee ene 5

OTHER AUTHORITIES

I i eS ae 2. 4

STATEMENT OF THE CASE!

Petitioner was a non-tenure-track instructor

employed on a series of annual contracts by the Darden

Graduate School of Business Administration at the Uni-

versity of Virginia to teach in its required first-year writ-

ing and speech course (“Analysis and Communications,”

known as “A & C”). From the fall of 1988 to the spring of

1991 petitioner served as “Course Head” of A & C, with

general administrative responsibility for the development

of curricular proposals and the delivery of instruction.

In the spring of 1991 respondent Robert Harris, then

the Associate Dean of Faculty at Darden, demoted peti-

tioner and relieved him of his “Course Head” duties in

response to numerous complaints from colleagues, espe-

cially those he supervised in A & C, concerning his

confrontational style of management and dysfunctional

interpersonal relations. Even after his demotion, com-

plaints about petitioner’s divisive and bullying manner

continued unabated. In all, respondents, then the Dean

and two Associate Deans of Darden, received more than

forty complaints from other faculty about petitioner’s

volatile and harassing behavior over a four-year period.

Finally, in May of 1992, respondents informed petitioner

that, while he would be retained for one more year, he

' The cover sheet to the petition incorrectly identifies the

court below as the United States Court of Appeals for the

Second Circuit. The decision sought to be reviewed was

rendered by the United States Court of Appeals for the Fourth

Circuit.

would be given no teaching responsibilities, and his con-

tract would not be renewed beyond the spring semester

of 1993.

Petitioner grieved the non-renewal of his contract

unsuccessfully with the Faculty Senate of the University

of Virginia and then brought suit in the United States

District Court for the Western District of Virginia against

respondents, the University of Virginia, and a number of

other Darden faculty members, asserting a wide variety

of claims under both state and federal law.

All of petitioner’s claims were dismissed by the dis-

trict court, some under Fed. R. Civ. P. 12(b)(6) and some

on summary judgment. Petitioner appealed only the

grant of summary judgment on his claim that respon-

dents’ failure to renew his contract violated his right of

free speech under the First Amendment. See 911 F. Supp.

999, Pet. App. 6a. The United States Court of Appeals for

the Fourth Circuit unanimously affirmed the district

court’s grant of summary judgment in an unpublished per

curiam opinion. Pet. App. la.

After reviewing petitioner’s various First Amend-

ment arguments and the extensive undisputed record of

his misconduct, the district court found:

As discussed at length above, the record

indicates that Scallet’s conduct was disruptive

and that the entire A & C faculty had severe

problems working with him. Indeed, some of his

conduct bordered on sexual harassment.

Although Scallet maintains that these proffered

reasons for his non-renewal are pretextual, he

simply has not mustered sufficient evidence to

demonstrate to a jury that defendants retaliated

against him either for his advocacy in faculty

meetings or because he posted articles and car-

toons outside his office. In light of the wealth of

evidence supporting defendants’ non-retaliatory

motivation for failing to renew Scallet’s con-

tract, the court concludes that defendants have

carried their burden for summary judgment.

911 F. Supp. at 1020-21, Pet. App. 48a-49a.

The court of appeals, after conducting a de novo

review of the record, agreed:

The record is clear that the speech which

Scallet contends is protected was not the cause

of Appellees’ failure to renew his contract. Spec-

ifically, answers to interrogatories and deposi-

tions of faculty members establish that

numerous complaints were made to each Appel-

lee during the years leading up to the non-

renewal decision. These complaints described a

confrontational style that made other writing

teachers feel physically and emotionally threat-

ened, and that in some cases did, as the district

court said, border on sexual harassment. The

record reveals that some of these complaints led

to Scallet’s removal from the course head posi-

tion a year before the nonrenewal decision.

After his demotion, faculty members continued

to complain about the same conduct and Appel-

lees personally observed strained relations in

the writing department. Based on the numerous

complaints and personal observations, Appel-

lees made the decision not to renew Scallet’s

contract.

We agree with the district court that Scallet

has failed to raise genuine issues as to the actual

reasons for his non-renewal which require reso-

lution by the trier of fact. A reasonable juror could

not find that Appellees retaliated against Scallet for

his in-class speech, his advocacy in faculty meetings,

or because of the posted articles and cartoons outside

his office.

Pet. App. 3a-4a (emphasis added).

+

REASONS TO DENY THE WRIT

This Case Presents No Issues of National Significance,

but Turns Solely Upon the Factual Determinations of

the Two Courts Below.

This is not a case about academic freedom. It is a case

about a university’s right to refuse to renew the contract

of a disruptive faculty member and course supervisor

who bullied and threatened each colleague he was

assigned to supervise and who continued his confronta-

tional ways even after being demoted from his super-

visory position and given a last chance to prove he could

work with others.2 The district court and the court of

appeals both found that the evidence of petitioner’s mis-

conduct was so overwhelming that no reasonable juror

2 Petitioner speaks of his “termination,” Pet. 3, and his

“firing,” Pet. 15 n.5, but this glosses over a crucial distinction. In

fact, petitioner was paid for the entire term of his contract with

the University. This, coupled with his non-tenured status, meant

that he had no property interest in continued employment,

Board of Regents v. Roth, 408 U.S. 564 (1972), as the district court

held in dismissing petitioner’s due process claim under Fed. R.

Civ. P. 12(b)(6). Thus petitioner’s only potential constitutional

claim was that he was retaliated against for protected speech in

violation of the First Amendment.

could find that the Darden administration had retaliated

against him for any arguably protected speech.

It is well established that this Court does not sit to

review the sufficiency of factual determinations, partic-

ularly where they have been agreed upon by two lower

courts. E.g., Tiffany Fine Arts, Inc. v. United States, 469 U.S.

310, 318 n.5 (1985); United States v. Doe, 465 U.S. 605, 614

(1984); United States v. Reliable Transfer Co., 421 U.S. 397,

401 n.2 (1975). See also, e.g., Southern Power Co. v. North

Carolina Pub. Serv. Co., 263 U.S. 508 (1924); Houston Oil Co.

v. Goodrich, 245 U.S. 440 (1918). This case presents nothing

more than an intensely fact-bound issue resolved by the

courts below under summary judgment standards that

are quite clear. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

Despite its lengthy discussion of academic freedom,

the petition is at bottom an extended quarrel with the

findings of the courts below. See Pet. 11-15, 23-28. And

while petitioner seeks to belittle the evidence of his mis-

conduct, that evidence was cogently and powerfully sum-

marized by the district court.? See 911 F. Supp. at 1006-07,

Pet. App. 14a-16a. Particularly disingenuous is peti-

- tioner’s expression of puzzlement at the conclusion of the

two courts below that his conduct at least “bordered” on

sexual harassment. Pet. 26-28. The district court pointed

to undisputed evidence that petitioner engaged in a

> A somewhat fuller summary of the undisputed evidence

of petitioner’s misconduct appears at pages 1la-17a of the

Appendix to this Brief, where we have reproduced material

from pages 7-22 of respondents’ brief as appellees in the court of

appeals.

“heated confrontation in a basement classroom . . . [with

a female colleague] who was eight months pregnant at

the time,” which left her “absolutely white and shak-

ing . . . [so that] she could hardly speak,” and who

“thereafter feared Scallet, refusing to work with Scallet

alone, or even to be in the building with him at the same

time.” 911 F. Supp. at 1007, Pet. App. 14a. The district

court also detailed evidence of petitioner’s “altercations

with other female A & C instructors” and his subjection

of one woman “to unwelcome details of his sex life.” Id.,

Pet. App. 15a.

Petitioner sought to minimize or explain some of the

details of this evidence in his deposition, but the question

before the courts below was not whether each event

occurred exactly as described by the complainant, but

whether in deciding not to renew his contract, respon-

dents acted in response to these complaints and not in

retaliation for any protected speech. The findings of the

two courts below were plainly correct.

¢

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

Eart C. Dub ey, Jr.

(Counsel of Record)

Pau J. Forcu

University of Virginia

Charlottesville, Virginia 22903

Counsel for Respondents

APPENDIX

la

(a)

Complaints To Darden Administrators Abvout

Appellant’s Poor Management Of A&C

During the four years Mr. Scallet served as the course

head of A&C his behavior was the subject of serious

complaints to the Darden administration from at least

thirteen of his colleagues, including all of the A&C

instructors he was assigned to manage.? Mr. Scallet now

claims that these complaints were but pretexts to punish

him for his efforts to inject unwanted issues of gender

and ethnic diversity and business ethics into the A&C

curriculum. For purposes of review in this Court, how-

ever, it is important to emphasize that, while appellant

now quarrels with the accuracy of some, but not all, of

the complaints (many of which are not susceptible of

“objective” verification because they involved his style of

personal interaction with others), he does not and cannot

dispute that the complaints were made, as the deans and

his colleagues have all sworn without contradiction.

3 This number does not include the appellees themselves,

each of whom observed unacceptable behavior on appellant’s

part and reported it contemporaneously to the other two. See

infra notes 4-6. Thus counting the deans, a total of sixteen

individuals reported adversely on appellant’s conduct.

2a

Thus between May 1989 and May 1992, Dean Rosen-

blum received specific complaints about appellant’s

unprofessional and dysfunctional behavior from at least

eleven Darden deans and faculty members.* During aca-

demic years 1990-91 and 1991-92 Associate Dean Robert

Harris received approximately twenty-five complaints

about appellant from at least fourteen faculty members.5

And Associate Dean Ray Smith received complaints

about Mr. Scallet’s behavior from six faculty between

March and May of 1992 alone.®

4# App. 104-107 & 891-894. The complaints were from A&C

instructors Elizabeth Denton (App. 230-231), Paula Wenger

(App. 404-405 & 425), Virginia Germino (App. 256 & 977 & 988),

Thomas Helscher (App. 279-278), John Howard (App. 235-236),

James Rubin (App. 256), and Robert Vaughan (App. 243), as well

as tenured faculty member Melissa Birch (App. 285-286 & 373),

and Associate Deans Edward Freeman (App. 264-265 &

875-878), Charles Meiburg (App. 878), Robert Harris (App. 125

& 834-835), and Ray Smith (App. 137).

5 App. 121-125 & 430-434 & 769-779. The complaints were

from former Associate Dean Ed Freeman (App. 264-266), Dean

John Rosenblum (App. 121), Paula Wenger (App. 404-405 &

941-942), Virginia Germino (App. 256 & 956-957 & 978-979 &

982), William Rotch (App. 431), Alan Beckenstein (App.

289-290), Robert Vaughan (App. 242-243), William Lyne (App.

1036-1040), Thomas Helscher (App. 279-280), Elizabeth Denton

(App. 231), John Howard (App. 235-236 & 239), Warren

Arbogast (App. 248), James Rubin (App. 252-256), and Ray

Smith (App. 137 & 918 & 940-942).

© App. 135-137 & 918-925. The complaints were from

Melissa Birch (App. 285), John Howard (App. 235-236), Thomas

Helscher (App. 279-280), Robert Vaughan (App. 243), Virginia

Germino (App. 256 & 982), James Rubin (App. 256), as well as

his two fellow administrators, Dean Rosenblum and Associate

Dean Harris (App. 107 & 125).

3a

Beginning in 1989, A&C instructor Elizabeth Denton

reported what she perceived as Mr. Scallet’s abusive and

unfounded assertion of the authority to fire her to then

Associate Dean of Faculty Charles Meiburg. App. 228.

Ms. Denton reported in an exit interview to Dean Rosen-

blum that appellant’s unremitting hostility to her was the

principal reason for her decision to leave Darden alto-

gether in May 1989. App. 230-231 & 846.

Ed Freeman, head of the Ethics Course, who has been

an outspoken advocate of diversity and ethics issues at

the Darden School for many years and whom appellant

described as “Darden’s conscience,” succeeded Mr.

Meiburg as Associate Dean of Faculty in the Fall of 1989.

App. 261. He quickly detected serious problems with

plaintiff’s personal interactions. App. 263-265. He heard

complaints from other faculty that plaintiff was confron-

tational and that he excluded other faculty from decision-

making about the A&C course. App. 263-264. One

instructor, William Lyne, a friend of Mr. Scallet, made

clear to Mr. Freeman that he did not want to associate

himself with appellant’s aggressive, confrontational style.

App. 263-264 & 1041-1043.7 Mr. Freeman attempted to

counsel appellant on his personal interactions, but the

latter rebuffed him, saying “That’s the way I do things.”

App. 265.

When appellee Robert Harris succeeded Ed Freeman

as Associate Dean of Faculty the following year

7 Mr. Lyne testified that appellant used to brag about

arguments he had in faculty meetings and how “he'd gotten the

best of them in there.” App. 1045.

4a

(1990-91),8 Mr. Freeman informed deans Harris and Rose-

nblum that appellant was difficult to work with and was

not managing the A&C course well. App. 264-265 & 769 &

875-876. Mr. Rosenblum instructed Mr. Harris to monitor

appellant’s performance closely. App. 104-105.

During his first year as Associate Dean, however, Mr.

Harris heard recurrent complaints about appellant’s man-

agement style and interpersonal difficulties from his co-

faculty in A&C, including Paula Wenger, John Howard,

and Virginia Germino. App. 121-125. Near the end of that

academic year, in May 1991, Paula Wenger reported to

Mr. Harris her disagreement with appellant over a hiring

issue. App. 1106-1107 & 822-823. At this point Mr. Harris,

who, despite his busy schedule, had already been consid-

ering stepping into the management of the A&C course

because of plaintiff’s interpersonal difficulties, decided to

take a more aggressive role in managing the course and

explained his decision to plaintiff. App. 649-650 &

773-774.

Plaintiff admitted that there had been “historical

fractiousness in the course” and that he was upset with

Ms. Wenger for reporting a disagreement to the Associate

Dean because he did not want his managment problems

exposed:

[W]e might not all get along great, we might

have our disagreements, our problems; but let’s

keep it in-house. . . . Let’s not get, you know, the

8 The rapid turnover in Associate Deans of the Faculty

coinciding with plaintiff’s tenure as A&C Course Head may

help to explain the delay in realizing and focusing on plaintiff’s

interolerably uncollegial behavior. App. 880-881.

5a

institution all in a lather about us. And I was, I

was particularly disturbed when Paula went to

Mr. Harris because of that.

App. 703-704.

Feeling thus “particulary disturbed,” appellant initi-

ated a confrontation in a small, remote basement class-

room with Ms. Wenger, who was then eight-and-a-half

months pregnant. App. 283-285 & 684-695 & 1032-1036.

William Lyne, an A&C instructor who witnessed Ms.

Wenger’s acute physical state of shock when she emerged

from the confrontation, went immediately to Associate

Dean Harris to tell him what had happened. App.

1036-1038. Ms. Wenger filed a written complaint with

Associate Dean Harris and Dean Rosenblum in which she

recounted her ordeal and requested that appellant be

fired. She wrote:

At around one o’clock on Thursday, May 2, Cid

Scallet entered the Sponsors Hall dining room

and approached me at the salad bar. Obviously

angry, he said that he needed to talk to me right

away, before I sat down. He led me out into the

lobby, then down the stairs to the Sponsors Hall

classroom, where he ordered me to shut the

door. I didn’t realize his anger was directed at

me until he sat me down and demanded to

know whether I had an appointment with you

[Associate Dean Harris] at 10:30 on Tuesday

morning to sabotage the hiring of Steven Brown

and to discredit him as the manager of his

ee

He then launched a verbal assault that began

with an insulting construction of how I had

‘betrayed’ him by not talking to him first... . In

an irrational diatribe I could barely understand,

6a

he insisted that, based on my conversation with

you, you intended to take over the hiring pro-

cess, sit in on meetings, pry into the activities of

all A&C instructors, curtail his respon-

sibilities. .. .

The entire barrage led up to his declaration that,

because I had betrayed his trust, he refused to

work with me from now on, he wanted to have

nothing to do with me, he didn’t want me “in

his face.”

... His parting shot, looking down from the top

of the stairs, was, “And I also want you to think

hard about how you would explain to my wife

why she shouldn’t hate you.”

The tone of the entire episode was dictatorial,

abusive, and irrational. The threat was com-

pounded by the fact that he chose to stage it

behind closed doors, far removed from anyone

else in the building. I’ll also point out the

obvious facts that I am smaller than he is,

female, and eight months pregnant.

Although this episode was harsher and more

threatening than any I have so far experienced

with Cid, it was driven by the distortions and

aggression that have characterized confronta-

tions with him that I, as well as many others on

the A&C staff, have endured over the past three

years. ...

. . . Thursday’s episode was only the latest in

several over the past three years that demon-

strate Cid’s ability to create a hostile work envi-

ronment and his habitual attempts to

7a

manipulate and intimidate other members of the

A&C staff.

App. 404-405.

Apparently aware that he had crossed the line of

acceptable behavior, appellant wrote his own account of

the confrontation to Mr. Harris, in which he admitted to

having been “deliberately harsh” and “scolding” toward

Ms. Wenger:

On Friday, May 3, I met with Paula and, in a

conversation that lasted no more than ten min-

utes, told her some things in no uncertain

terms. . . . In my conversation with Paula on

Friday, May 3, I had some tough things to say to

her and I said them in a tough way: I was somewhat

harsh. and I intended to be somewhat harsh, because

I felt that her actions warranted a harsh repri-

mand. ... This was not my first intense discus-

sion with Paula about her performance.

App. 406-413. The same day he acknowledged to another

colleague that “the air is a touch thick between Harris

and me right now.” App. 414.

In a follow-up memo to Mr. Harris appellant again

admitted that he had “scold[ed]” and “chastiz[ed]” Ms.

Wenger and that this abusive encounter was part of “the

larger context of my managerial difficulties with the A&C

staff.” App. 415.

Dean Rosenblum instructed Mr. Harris to investigate

appellant’s behavior. App. 773-774 & 819-820 & 889-891.

The Dean was concerned that Mr. Scallet’s harsh treat-

ment of a woman in an advanced state of pregnancy

could be deemed “sexual harassment.” App. 820 &

890-891. Mr. Harris interviewed nine faculty members

8a

about appellant. App. 431.9 Based on those interviews,

Mr. Harris made the following contemporaneous note to

his file:

To varying degrees I got the impression of ,

someone who was quite paranoid about threats

to his ‘power’ and who was quite volatile. He is

apparently not working as a successful manager

in A&C.

App. 431.

Eventually Mr. Harris concluded that while Mr. Scal-

let’s actions bordered on “sexual harassment,” a sounder

description was simply “harassment” of a colleague.

Harris Dep. at 401-404.!° Mr. Harris then met with appel-

lant and told him that his behavior toward Ms. Wenger

was unacceptable and that he must improve. App. 415.

Mr. Scallet acknowledged his problems and committed to

improving:

But above all else, I want to resolve the current

problem. . . . I am not interested in having the

current enmity between Paula and me weaken

our efforts in A&C, nor do I want to remain in

conflict with someone whom I still like person-

ally. I truly want to work this matter out... . But

° Seven of those interviewed testified to their conversations

with Mr. Harris: Ed Freeman (App. 265-266), Elizabeth Denton

(App. 231), Thomas Helscher (App. 279), Robert Vaughan (App.

242), William Lyne (App. 1037-1038), Alan Beckenstein (App.

290), and John Howard (App. 239).

10 Designated by appellees for inclusion in the Joint

Appendix but excluded by appellant.

9a

again, I am willing to keep working at it... . I

await your advice and counsel.

App. 413.11

Following the investigation, Mr. Harris demoted

appellant from all management responsibilities over

other A&C faculty for academic year 1991-92. App.

419-423 & 773-774. Mr. Harris, a busy Associate Dean,

assumed appellant’s former responsibility for running

A&C faculty meetings and facilitating curriculum devel-

opment, and Mr. Scallet was relegated to teaching his

section, making logistical arrangements, and suggesting

curriculum ideas along with all other A&C faculty. App.

419-423 & 654-655 & 773-774.

Mr. Harris tried hard to salvage appellant's career at

Darden because he valued Mr. Scallet’s classroom skills,

trusted his expressed commitment to working harmo-

niously with Ms. Wenger, and thought he could make it

clear to the A&C faculty that appellant did not have

reappointment authority over them, and because appel-

lant’s wife taught one of Mr. Harris’s children that year in

high school. App. 771-774 & 834-837. Dean Rosenblum

concurred with that assessment. App. 879-881.

However, despite appellant’s apparently contrite

commitment to improve, complaints about him to Mr.

Harris persisted during the following school year

(1991-92), and Mr. Harris had the opportunity for closer

observation of plaintiff’s interactions with his colleagues.

App. 774-779. In A&C meetings, he noted that the faculty

' See also Harris Dep. at 381 (designated by appellees for

inclusion in the Joint Appendix but excluded by appellant).

10a

interacted dysfunctionally and that appellant bullied

other instructors. App. 774 & 793-795 & 877. Moreover,

during that academic year, James Rubin, a new A&C

faculty member, reported to Mr. Harris confusion about

the degree of plaintiff’s authority over him and related

plaintiff’s departures from an agreed class assignment.

App. 252-255 & 775-776.

Warren Arbogast, a technician in Darden’s Audio &

Visual Department, reported in the Fall of 1991 to Mr.

Harris that Mr. Scallet had sabotaged his lecture to the

A&C class by telling Mr. Arbogast to do one thing while

the students were prepared for something entirely differ-

ent. App. 245-248 & 774-775. When Mr. Arbogast con-

fronted appellant about the switch, the latter “chuckled”

and said “it will show up in Paula [Wenger]’s numbers,”

referring to Ms. Wenger’s student evaluations. App.

247-248. Mr. Arbogast told Mr. Harris that he would

never work with appellant again. App. 248 & 775.

Ms. Wenger reported to deans Rosenblum and Harris

that the result of Mr. Harris’ decision to relegate appel-

lant to teaching “was not changing [his] behaviors; it was

just driving them underground.” App. 1161-1162. In Feb-

ruary 1992, Ms. Wenger decided to leave the school in

large measure because of the continuing abuse she had

suffered from appellant. App. 425 & 1158-1159. She

explained her decision to deans Harris and Rosenblum.

App. 775 & 847 & 894. Thus she became the second

woman in three years to tell the deans she was leaving

Darden because of appellant’s uncollegial and abusive

behavior toward her. App. 230-231 & 846.

lla

On the heels of Ms. Wenger’s mid-semester depar-

ture, Professor Melissa Birch, a tenured Darden faculty

member, lodged a complaint with Dean Rosenblum about

Mr. Scallet in about March of 1992. App. 286 & 373 & 892.

Professor Birch informed Dean Rosenblum that appellant

had offended a female student by taking his shoes off in

class, standing on a desk, and shouting obscenities, and

that a female colleague had been subjected by plaintiff to

graphic descriptions of his sex life. App. 286 & 373. Dean

Rosenblum invited the unnamed female colleague to

come forward, but Professor Birch told him that the

woman was afraid of retaliation by appellant and would

not come forward.!? App. 286 & 374-375. Dean Rosen-

blum summoned Mr. Scallet to his office and relayed this

information to him in the presence of Mr. Harris. App.

426-427. The dean said that he took the charges seriously.

App. 426-427.

Shortly thereafter, Professor Birch went to inform

Associate Dean Ray Smith separately about Mr. Scallet’s

sexual harassment of a colleague and to tell him that

Paula Wenger had left Darden altogether because of

appellant’s behavior. App. 135 & 285. Before then, Mr.

Smith had not been alerted to appellant’s behavior prob-

lems. App. 135. Shortly thereafter, A&C instructor John

Howard came to Mr. Smith’s house on a weekend day to

tell him about on-going problems in A&C attributable to

Mr. Scallet and to say that low morale was affecting

delivery of the course. App. 135 & 235 & 918-925.

2 Testimony in this case has revealed that the unnamed

female colleague was Virginia Germino.

12a

Still hopeful that things would work out, Mr. Harris

had lunch with appellant in late April or early May of

1992 and told him he needed to work on his professional

relationships with other A&C faculty, but that he (Mr.

Harris) would recommend renewal of appellant’s con-

tract for the following year. App. 838-839.

At about the same time, appellant had an altercation

with Mr. Smith in the latter’s office.15 App. 429 & 926-940.

The altercation was reported to Mr. Harris. Unable to

ignore any longer the powerful cumulative evidence of

appellant’s behavior and its effect on both his colleagues

and the A&C course, Mr. Harris called a meeting of all

A&C faculty (except Mr. Scallet) in early May to discuss

the on-going problems in A&C. App. 777-778. What tran-

spired at that meeting is not in dispute. In attendance

13 Concededly, what transpired on this occasion is in

dispute. Mr. Scallet, for example, denied that he raised his voice

at any point during the conversation, but in a contemporaneous

apology he wrote to Mr. Smith he admitted that “conversations

like one that we had earlier today are never pleasant,” and

added that “Yes, we were sharp with each other.” Compare App.

621 (Scallet Dep. at 223:18-20) and App. 429 (Scallet May 1, 1991

Memo to Ray Smith and Robert Harris). Mr. Scallet further

alleged that Mr. Smith said he did not like the “minority

material” plaintiff had infused in the A&C curriculum and

specifically referenced two cases Mr. Scallet had developed for

the course. App. 611-612. Mr. Scallet also alleged that Mr. Smith

said he “had been trying to get me fired for two years.” App.

611-612. Mr. Smith testified that it was appellant who made

these assertions about him and that he denied them. App.

926-931. Mr. Smith added that appellant physically confronted

him and said “I don’t like your attitude.” App. 932. Mr. Scallet

and Mr. Smith went swiftly but separately to Associate Dean

Harris to tell him of the confrontation. App. 940.

13a

were Tom Helscher, Robert Vaughan, Virginia Germino,

John Howard, James Rubin, and appellees Rosenblum,

Harris, and Smith. App. 256 & 777-778. The deans asked

open-ended questions about how the A&C faculty was

operating. App. 235-236 & 243 & 256. The members of the

A&C faculty spoke at the meeting about problems they

had encountered individually and as a group with appel-

lant. App. 235-236 & 243 & 279-280 & 982.

At that meeting, Tom Helscher, appellant’s closest

friend at Darden, told the deans that “Cid had become

increasingly difficult to work with and [the rest of the

A&C faculty] had to teach a separate course from

Cid . . . [which] created intolerable tension among

[them].” App. 279-280. John Howard said that “Cid had

undermined my reputation by telling Alan Beckenstein

that I had missed classes when, in fact, I had not.” App.

235-236. Robert Vaughan “spoke about the problems

caused by Cid.” App. 243. James Rubin told the deans

that “A&C did not function professionally the way I

thought a faculty unit should; we should not have to deal

with so many tensions.” App. 256. Virginia Germino

spoke about Mr. Scallet’s volatility and said she feared

him. App. 256. As Tom Helscher put it, “Cid [Scallet] did

not have a defender in the group because it was obvious

he was responsible for much of the tension and diffi-

culties described.” App. 279-280. Appellant’s abusive

treatment of Paula Wenger was also discussed at the

meeting. App. 238.

The three deans left that meeting and discussed the

situation among themselves. App. 107 & 125 & 137. Dean

Rosenblum concluded that despite appellant’s demotion

14a

ten months earlier, his behavior was not only unim-

proved, but the disruption in A&C was worse. App.

893-894. Mr. Harris, who weeks earlier had told plaintiff

he would recommend renewal and who had remained

hopeful for improvement, changed his mind after hearing

about the persistent problems described by all five of his

A&C colleagues. App. 837-840. In light of the May meet-

ing, the three deans concluded that appellant lacked col-

legiality, had mismanaged the A&C faculty, and even

though he had been stripped of most administrative

duties a year earlier, was undermining the educational

mission of the A&C course and Darden. App. 837-840 &

893-894. They decided that his behavior around his col-

leagues was too disruptive, had not improved, and that

he should not teach at Darden any more. App. 107 & 125

& 137.

Mindful that he had told appellant he would recom-

mend a renewal of his contract for the following year, Mr.

Harris arranged for a turn-around year in which Mr.

Scallet would receive full salary but not have an office in

the school or teach any classes. App. 838-839.!4 Mr. Harris

was concerned for Mr. Scallet’s mental stability and con-

sulted a psychological counselor. App. 827-829. He pre-

pared notes for Dean Rosenblum and called a meeting

with Mr. Scallet on May 26, 1992. App. 825-826 & 439.

At that meeting, Dean Rosenblum informed appel-

lant that he and his two Associate Deans had decided to

renew his contract for the 1992-1993 school year but not

14 See also Harris Dep. at 448 & 457-458 (designated by

appellees for Joint Appendix but omitted by appellant).

15a

thereafter. App. 107 & 125 & 137 & 382. During his final

year, he was assigned some curricular duties but no

teaching responsibilities. App. 382. Dean Rosenblum gave

three reasons for appellant’s non-renewal: (1) his uncol-

legial behavior toward his co-instructors in the A&C

course, (2) his poor management of the A&C course and

its staff, and (3) his disruption and undermining of the

educational mission of Darden. App. 718-720.

(b)

Appellant’s Admissions About

His Uncollegial Behavior

While Mr. Scallet disputed the accuracy of some of

the complaints about him, he could not, as noted above,

dispute the fact that the complaints were made, and his

own admissions about his conduct demonstrate the sub-

stantial problems he created for his colleagues and the

administration at Darden. By his own testimony and con-

temporaneous accounts of events in memoranda, Mr.

Scallet confirmed that he was aware of ongoing interper-

sonal problems with his A&C colleagues and others that

made working with him difficult. For example, he admit-

ted that he used obscene language in the classroom,

which provoked student complaints. App. 753-755. He

acknowledged that his disagreements with other A&C

faculty were “personally unpleasant” on occasion. App.

519. He admitted to raising his voice at others at Darden.

App. 749-750. While he denied having many dealings

with Elizabeth Denton, he said he had some “intense

discussions” with her. App. 705. He admitted to having

: |

l6a

less than ideal relationships with Elizabeth Denton, Vir-

ginia Germino, and Paula Wenger. App. 758. He even

admitted that he sometimes expressed himself “strongly”

and that “[i]f that’s regarded as confrontational, then I’m

confrontational.” App. 750. While he said that it was not

his practice to criticize other A&C faculty to one another,

he admitted criticizing John Howard behind his back to

Paula Wenger.'° App. 601.

In March 1991, he sent a memo to all A&C faculty

recommending changes in their schedules without prior

consultation with them, even though Paula Wenger had

told him the recommended schedules were incompatible

with Robert Vaughan’s and John Howard’s other commit-

ments. App. 632-633 & 644-649. He conceded in a later

memorandum to Mr. Harris that the earlier memo

“caused enormous dismay and hostility” among the A&C

faculty. App. 416-418.

Mr. Scallet admitted that Mr. Harris had told him in

April or May 1991 that “he had heard two disturbing

complaints about me, and that he was going to act on

15 Reflecting perhaps unconsciously on his leadership of

the A&C group, appellant remarked that one of the reasons he

avoided criticizing other A&C faculty members was that “[t]he

people in this course were fractious enough among themselves

that, that I wasn’t going to, going to wretch that up.” App. 602.

Nevertheless, he admitted to “express[ing] frustration” about

his colleagues to each other. Scallet Dep. at 579:2-19. Of course,

it was the testimony of every other A&C instructor that plaintiff

regularly criticized each of them behind their backs. Lyne (App.

998-1017); Helscher (App. 278-279); Vaughan (App. 241-242);

Rubin (App. 255); Howard (App. 234); Arbogast (App. 248-249);

Wenger (App. 1088); Germino (App. 967-968).

17a

them by taking, assuming control of the course.” App.

626. Appellant also acknowledged that, at the same time,

Mr. Harris said he had concluded that “my management

style was lacking.” App. 649-650. Mr. Scallet told Mr.

Harris in memoranda that he had a “desire to improve

my management style,” and that “Above all else, I want

to resolve the current problem. . . . I am not interested in

having the current enmity between Paula and me weaken

our efforts in A&C.” App. 413. Appellant also admitted

that Mr. Rosenblum confronted him in the Spring of 1992

about Melissa Birch’s charge of sexual harassment. App.

426-427 & 752-754 & 757-758.

Thus, there is little need for this Court to look

beyond appellant’s own admissions to conclude that the

forty-plus complaints received by Darden’s deans over a

four year period had substantial merit and cumulatively

justified their demotion of him in the Summer of 1991

and his non-renewal ten months later in May 1992.