Opposition Brief — Harel v. Lawrence

— of S

re upreme Court, U.S. |

No.99-741 J- Frye p

IN THE 3 ne

Supreme Court of the United States ERK

DR. ARIE HAREL,

Petitioner,

v.

DR. FRANCIS LAWRENCE and JOSEPH SENECA,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UnitTep STATES CourRT OF APPEALS FOR THE THIRD CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

JOHN J. PEIRANO

Counsel of Record

JAMES P. LIDON

CARPENTER, BENNETT & MorrISSEY

Attorneys for Respondents

Three Gateway Center

100 Mulberry Street

Newark, New Jersey 07102-4082

(973) 622-7711

156712 @J Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

eengrerray a a et

i

COUNTERSTATEMENT TO

QUESTION PRESENTED

Did the Court of Appeals err by analyzing petitioner’s

personal liability claims under § 1983 against the individual

respondents under an actual knowledge and acquiescence

standard?

il

LIST OF PARTIES TO THIS PROCEEDING’

Petitioner:

DR. ARIE HAREL

Respondents:

DR. FRANCIS LAWRENCE

DR. JOSEPH SENECA

* Rutgers, The State University was a party defendant in the

proceedings below. The United States District Court for the District

of New Jersey granted Rutgers, The State University’s motion for

summary judgment on all counts. The Third Circuit affirmed and

Petitioner Dr. Arie Harel has not sought to challenge that ruling in

his petition to this Court. Thus, Rutgers is not a respondent herein.

lil

TABLE OF CONTENTS

Page

Counterstatement of Question Presented ......... i

List of Parties to this Proceeding ............... li

DUE bo i Meee ee oe lil

tapes OF Cited Authorities... 0.0... cece cciccs Vv

I IPE oe oo Te l

2 a ea l

ER LAE SEE Sa a eee ae 4

Tenure Process at Rutgers .............. 5

1993 Evaluation for Tenure ............. 6

centhteecioctgs ce SEE eee Pee re ree ere 7

1995 Evaluation for Tenure ............. 9

OP I Se a oa oy oo ou sks oa 10

Reasons for Denying the Writ ................. 12

The Lower Courts’ Decision That Harel’s

§ 1983 Ciaim Against Respondents Lawrence

And Seneca Failed For Lack Of Evidence

That They Had Actual Knowledge Of Any

iv

Contents

Page

Discriminatory Conduct Against Him Or

Acquiesced In Any Such Conduct Is A

Correct Application Of The Decisions Of

This Court To The Specific Facts Of This

Case And Is Consistent With The Decisions

Of The Other Courts Of MORONS. 65a 12

1. The Third Circuit’s Decision Below Is

Consistent With This Court’s Decisions

Concerning Personal Liability Under

PPO oss ieee eae ane 15

2. The Third Circuit’s Decision Below Is

Consistent With The Decisions of the

Other Courts of Appeals. ........... 17

3. The Petition Must Be Denied For Other

crtsainin of EE ae 23

IIE si sage es ae eee ee Pe f

TABLE OF CITED AUTHORITIES

Page

Cases:

Arlington Heights v. Metropolitan Housing Dey.

Lorp., S29 US: 2520097) 24

Andrews v. City of Philadelphia, 895 F.2d 1469 (3d

ely FANON Ss Gad ca kita eo 18

Baker v. Monroe Township, 50 F.3d 1186 (3d Cir.

as | SOU ERO RIE Fee RC SEE Ch aunt cn Mic 19, 22

Barreto-Rivera v. Medina- Vargas, 168 F.3d 42 (1st

Gt: RO es ANS EO Oe 19

Black v. Indiana Area School Dist., 985 F.2d 707

Oe Meee 85 eee 18

Braddy v. Florida Dept. of Labor & Employment

Sec., 133 F.3d 797 (11th Cir. | eS ay 21

Brown v. Grabowski, 922 F.2d 1097 (3d Cir. 1990),

cert. denied, 501 U.S. 1218 (1991) ........... 19

Canton v. Harris, 489 U.S. 378 (1989) . 13, 14, 15, 16, 18

Carter v. City of Philadelphia, 181 F.3d 339 (3d Cir.

1999), cert denied, __ U.S. __ No. 99-481, 1999

U.S. LExis 7545 (Nov. 15, 1999) ............. 18, 22

Daniels v. Williams, 474 U.S. 327 CROWOE 6 ck neds 23, 24

vi

Cited Authorities

Page

Duignan v. United States, 274 U.S. 195 (1927) ... 14

Gossmeyer v. McDonald, 128 F.3d 481 (7th Cir.

RDS T) 0s senes. oss 0d ar caceae meted iren: euienenr 20

Green v. Branson, 108 F.3d 1296 (10th Cir. 1997)

oo nee thw ah Beas be Nea mee nee 21

Hafer v. Melo, 302°U.8. 21 (9ST os 15

Jojola v. Chavez, 55 F.3d 488 (10th Cir. 1995) ... 21

Kentucky v. Graham, 473 U.S. 159 (1985) ....... 15

McDonnell Douglas Corp. v. Green, 411 U.S. 792

CESS) o 0052200055 cave cee bn eee 24

McWilliams v. Fairfax County Bd. of Supervisors,

72 F.3d 1191 (4th Cir. 1996), cert. denied, 519

U.S. S49 CIOS) ois es svccnucci pea 19, 20

Monell v. Department of Social Services, 436 U.S.

OSG (ESF): in SS iw ae eee eee 16

NLRB vy. Pittsburgh Steamship Co., 340 U.S. 498

CIDFA) |. 6s ice ew de buniebuaebua ene receee 23

Parratt v. Taylor, 451 U.S. 527 (1981) .......... 16

Ripson vy. Alles, 21 F.3d 805 (8th Cir. 1994), reh'g

denied, No. 93-1972SIDM 1994 U.S. App. Lexis

12756 (8th Cir. June 1, 1994) ............... 20

Vil

Cited Authorities

Rizzo v. Goode, 423 U.S. 362 (1976) ............

Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir.

DOD cane 10d os Ee ch 2 RR ere

Salehpour v. University of Tennessee, 159 F.3d 199

(6th Cir. 1998), reh'g en banc denied, 1998 No.

97-5468 U.S. App. Lexis 31335 (6th Cir. Oct. 29,

1998), cert. denied, U.S. __, 143 L. Ed. 2d 793

hs ER ra En MEN POM RE Ge Eee el ta ae

Sample v. Diecks, 885 F.2d 1099 (3d Cir. 1989) ..18, 22

Sanders v. English, 950 F.2d 1152 (5th Cir. 1992)

S Sa a NANG Sor Ra eacck s olaee rel ee ed ee 20

Sealey v. Giltner, 116 F.3d 47 (2d Cir. 1997) ..... 19

Stoneking v. Bradford Area School District, 882 F.2d

720 (3d Cir. 1989), cert. denied, 493 U.S. 1044

3. . ARPA POSE iron ah peyote Op Ree a ST 18, 22

Watkins v. City of Oakland, Cal., 145 F.3d 1087 (9th

OR: RRC ree ere Spins penn aeaD 20

Youakim v. Miller, 425 U.S. 231 (1976) ......... 14

United States Constitution:

Fourteenth Amendment .....................2. l

Statute:

Me RA SD oon Ss ek cad cae passim

l

Respondents Francis Lawrence and Joseph Seneca

respectfully request that this Court deny the petition for a writ

of certiorari. This is a garden variety employment case and the

petition raises no “compelling reasons” for granting a writ of

certiorari. Rather, it simply challenges the lower courts’ correct

application, to the particular facts of this case, of well-settled

Supreme Court and Courts of Appeals decisions governing the

personal liability of individual Supervisors under 42 U.S.C.

§ 1983. As shown herein, the decision of the Third Circuit below

follows those of this Court, is consistent with the standard

applied by other Courts of Appeals and should be left

undisturbed.

STATEMENT OF THE CASE

A. Proceedings Below

Petitioner, Dr. Arie Harel, instituted this action on October

6, 1995 against Rutgers, The State University; its President,

Dr. Francis Lawrence; and its Executive Vice President, Dr.

Joseph Seneca. In his Amended Complaint (JA698)', filed on

August 19, 1996, Harel alleged, inter alia, that respondents

violated 42 U.S.C. § 1983 by denying him equal protection of

the laws on the basis of his national origin as guaranteed by the

Fourteenth Amendment to the United States Constitution. More

specifically, Harel alleged that he was denied tenure and

promotion to the position of Associate Professor in 1993 and

again in 1995 because of his Israeli national origin. Further,

1. “JA” refers to the Joint Appendix filed with the United States

Court of Appeals for the Third Circuit; “Pet. App.” refers to the

Appendix to the Petition; “PW” refers to the Petition for a Writ of

Certiorari filed herein; and “PB” and “PRB,” respectively, refer to

Harel’s Appellant’s Brief and Appellant's Reply Brief filed with the

Third Circuit.

2

Harel alleged that this denial was part of a practice and custom

by respondents of applying more stringent standards to the

consideration of Israeli candidates for promotion and tenure

than to other candidates. In addition, Harel alleged that the

actions of respondents Seneca and Lawrence in recommending

against Harel’s candidacy for promotion and tenure “were

intentionally discriminatory”, “{ntentionally carried forward the

documented and known effects of discrimination on the basis

of national origin which occurred at earlier stages of the review

process” and were motivated by “malice and prejudice.” (JA698,

702 at 4933, 34 and 37).

Respondents denied all material allegations, and

specifically denied that Harel was treated differently on the basis

of his national origin when he was evaluated for promotion.

Instead, as respondents demonstrated in their motion for

summary judgment, Harel was not promoted because the

quantity and impact of his scholarship did not satisfy the

University’s promotion standards (Pet. App. C-39).

In its April 24, 1998 Opinion and Order, the district

court granted summary judgment to Rutgers and respondents

Seneca and Lawrence dismissing all of Harel’s claims

(Pet. App. B-1).? With respect to Harel’s § 1983 claim against

Rutgers, the district court concluded that Harel had failed to

produce evidence sufficient to support a rational inference that

a policy or custom of anti-Israeli discrimination existed at

Rutgers, or that he was denied tenure as the result of such a

policy or custom and, therefore, dismissed Harel’s claim against

the University (Pet. App. C-34 - C-36). Consistent with the

explicit allegations of the Amended Complaint, the district court

treated Harel’s claim that respondents Lawrence and Seneca’s

2. The decision of the district court is reported at 5 F. Supp. 2d

246 (D.N.J. 1998).

a ge

3

actions were intentionally discriminatory not as a claim of

supervisory liability, but as an assertion that

they personally committed a constitutional tort by

recommending against Harel’s promotion due to anti-Israeli

animus (Pet. App. C-36). The district court considered Harel’s

allegations that procedural deviations at the lower levels of the

evaluation process evidenced anti-Israeli animus and concluded

that Harel had failed to produce any evidence linking

respondents Lawrence or Seneca to “alleged deviations

from the standard consideration procedures.” (Pet. App. C-40 -

C-41). Rejecting Harel’s contention that Lawrence and Seneca

recommended against his promotion as a result of anti-Israeli

bias, the court concluded that “Harel has failed to produce

evidence to allow a reasonable fact finder to discredit the

defendants’ proffered reason for again denying him tenure in

1995.” (Pet. App. C-43).3 Further, the court concluded that there

was “no evidence in the record from which a reasonable juror

could build the bridge to the circumstantial conclusion that the

acts of the individual defendants were a pretext to discriminate

against Harel because of his nationality” and, therefore, granted

summary judgment dismissing Harel’s § 1983 claim against

respondents Lawrence and Seneca (Pet. App. C-44),.

Harel appealed to the United States Court of Appeals for

the Third Circuit from the April 24, 1998 decision. Consistent

with the allegations of his Amended Complaint that respondents

Lawrence and Seneca had themselves intentionally

discriminated against him, Harel did not contend on appeal that

the district court erred by treating his § 1983 claims against

respondents as being premised upon a theory of direct, rather

than supervisory, liability. Nor did Harel contend that the

3. The district court dismissed Harel’s § 1983 claim relating to

the 1993 promotion evaluation on the ground that it was barred by the

Statute of limitations (Pet. App. C-33).

ma —s

4

individual liability under § 1983 of those respondents should

be measured under a deliberate indifference standard

(PB27 and PRB17-20).

By Memorandum Opinion dated August 4, 1999, the Third

Circuit affirmed the judgment of the district court in its entirety

(Pet. App. A-1 - A-9).* The Third Circuit held:

... Harel did not produce evidence to indicate that

his deprivation of tenure was a direct result of an

official Rutgers policy or custom against persons of

Israeli national origin and he did not produce

evidence that President Francis Lawrence and Vice-

President Joseph Seneca, the individual defendants,

had actual knowledge of any discriminatory conduct

against him or that they acquiesced in any such

conduct and as a result Harel failed to establish his ;

§ 1983 claim. |

(Pet. App. A-4 n.2).

Harel’s new argument that the Third Circuit erred by failing

to assess the § 1983 personal liability of respondents Lawrence

and Seneca under a deliberate indifference standard is the sole

issue which he asks this Court to consider.

B. Facts

Harel was born in Czechoslovakia and became an Israeli

citizen in 1948 (Pet. App. C-2). He was hired by Rutgers in

September 1985 as an Adjunct Assistant Professor (Pet. App.

4. Since Harel has not petitioned this Court for review of the lower

courts’ rejection of his claims against Rutgers, the University no longer

is a party to this action. Drs. Lawrence and Seneca are the only remaining

respondents.

=

5

C-2) and was appointed to the position of Assistant Professor

in July 1987 (Pet. App. C-2).

Tenure Process at Rutgers

Rutgers utilizes a multi-level evaluation process to

determine whether to award tenure to members of its faculty.

The University Policy with Respect to Academic Promotions

(“Policy”) recognizes that great care must be exercised in

promoting faculty to the tenured ranks because the grant of

tenure is the most critical step in the promotion process (JA110).

The Policy provides that only “those faculty members who have

made the most important contributions to the University and

have discharged their duties with the greatest distinction will

be considered for [tenure]... . Advancement to a higher rank

is not automatic.” (Pet. App. C-2). Further, the Policy provides

that teaching, scholarship, and service should be considered in

deciding whether to grant tenure (Pet. App. C-2). Under the

Policy, the research and scholarly accomplishments of a

candidate for promotion to the rank of Associate Professor with

tenure should have a national impact upon the candidate’s

discipline (JA106). The Policy explicitly directs evaluators to

utilize subjective judgment in assessing the qualifications of

candidates for promotion (JA108-09).

The first evaluation is conducted by tenured faculty from

the candidate’s academic department (Pet. App. C-4).° A

positive departmental recommendation requires a positive vote

by a minimum of two-thirds of those voting (Pet. App. C-5).

The candidate’s promotion packet, including the departmental

5. In the discretion of the candidate’s department, a reading

committee may be appointed to review the candidate’s scholarly work

and prepare a written assessment thereof for the department’s

consideration (JA139).

6

report, is then submitted to the dean’s Advisory Committee on

Appointments and Promotions (“A&P”) (Pet. App. C-5). After

receiving the advice of the A&P Committee, the dean evaluates

the candidate and makes an independent recommendation

concerning the candidate’s promotion (Pet. App. C-5). If the

recommendations from the dean and the departmental

committee both are negative, the candidate’s promotion packet

is not further evaluated and the candidacy fails (JA126,

141, 374).

If either the dean’s or the departmental committee’s

evaluation is positive, the candidate’s promotion packet

advances to the next level, the Promotion Review Committee

(“PRC”) (Pet. App. C-5). The PRC evaluates candidates from

a University-wide perspective (Pet. App. C-5). The members

of the PRC exercise independent judgment as to the candidate’s

qualifications and then make a collective recommendation to

the University President on whether to grant tenure and/or

promotion (Pet. App. C-5 - C-6).

The University President engages in an independent review

of each candidate, and then makes a recommendation whether

to grant tenure and/or promotion to the University’s Board of

Govemors, which by statute has the sole authority to grant tenure

and promotion within the tenured ranks (Pet. App. C-6).

1993 Evaluation for Tenure

Harel was evaluated for tenure in the 1992-93 academic

year (Pet. App. C-6). Since his prior unsuccessful candidacy in

1991°, Harel produced only two refereed journal articles, one

6. Harel did not receive tenure after an evaluation in 1991, but

never grieved the denial, filed an administrative charge or lawsuit, or

otherwise contended that the denial was unlawful or discriminatory

(Pet. App. C-6).

7

of which was co-authored. Together, these articles totaled Six

pages (compare JA70 at 149 with JA594 at 49). Harel’s

promotion packet included fourteen letters from external

evaluators, some of which Supported promotion and others

expressed concern with Harel’s relatively small number of

publications (Pet. App. C-7).

Dr. Nabil Adam, the chair of Harel’s academic department,

appointed two tenured faculty members from Harel’s

department, Dr. Michael Katehakis and Dr. Ted Szatrowski, to

serve as Harel’s reading committee (Pet. App. C-7). The

department voted in favor of tenure; however, the departmental

report rated Harel’s scholarship as only “average to above

average” (Pet. App. C-7 - C-8). While the A&P Committee

and the Dean supported tenure, the PRC recommended against

tenure, concluding that: “Professor Harel’s record since being

appointed as Assistant Professor indicates only a moderate

publication level and there is some concern about the long term

Significance and impact of his work... .” (Pet. App. C-8).

President Lawrence concurred (Pet. App. C-8). Harel was

informed on April 6, 1993 that he had not been granted tenure

(Pet. App. C-8).

1993 Grievance

On August 18, 1993, Harel filed a grievance pursuant to

the University’s collectively-negotiated agreement with the local

chapter of his union, the American Association of University

Professors (“AAUP agreement”), concerning the 1993 tenure

denial (Pet. App. C-8 - C-9).’ He complained that a rigorous

7. Harel’s petition does not seek review of the lower courts’ ruling

that his claims concerning the 1993 evaluation are time-barred

(See Pet. App. A-4 n.2 and C-33). However, because Harel asserts that

his 1993 evaluation and grievance are relevant to the assessment of the

respondents’§ 1983 liability for his 1995 tenure denial, we include a

brief discussion here.

8

and fair review of his work had not occurred and that there

were procedural errors in the handling of certain materials that

he deemed favorable. Nowhere in his grievance did Harel charge

that the tenure denial was motivated by national origin

discrimination (Pet. App. C-9).

The validity of all but three of Harel’s grievance allegations

never was determined by the faculty grievance committee

because Harel voluntarily withdrew them as part of a remand

agreement with the University before findings were made

(Pet. App. C-9; JAA186). In its findings concerning the three

remaining allegations, the grievance committee concluded that

Harel had failed to prove all but one, i.e., that a single member

of Harel’s department, Professor Szatrowski, had acted with

enmity during Harel’s 1993 review (JA190, 195).

Under the remand agreement (JA186), Harel’s promotion

packet would be returned to his department for another

evaluation in which Professor Szatrowski would not participate

(Pet. App. C-9 - C10). The remand agreement further provided

that the decision on remand would be based on the materials

submitted in the 1993 promotion packet, a letter submitted by

Harel to update the status of the listed works in progress, and a

personal statement. Pursuant to the remand agreement, Harel’s

promotion packet for the remanded evaluation also contained a

copy of the grievance committee’s findings (Pet. App. C-10).

Thus, with respect to Harel’s 1993 grievance allegations, his

promotion packet for the remanded evaluation showed only that

a single allegation had been sustained against one department

member who was recused from participation in the 1995

remanded evaluation.

2 a tae a

9

1995 Evaluation for Tenure

Harel received a remanded evaluation during the 1994-95

academic year in accordance with the remand agreement. In a

memorandum updating his scholarship since the 1993

evaluation, Harel listed only one new publication and the

acceptance for publication of one previously-listed paper (Pet.

App. C-10). Dr. Hannoch Levy, an Israeli, and Dr. Ronald

Armstrong, a non-Israeli, were appointed to serve on Harel’s

reading committee (Pet. App. C-11). Both are Harel’s friends

and “close colleagues” (JA326-27). In the departmental vote

taken in December 1994, four members of the department voted

to recommend Harel for tenure and promotion, three voted

against and one abstained (Pet. App. C-11). Pursuant to the

University’s Academic Reappointment/Promotion Instructions,

two-thirds of the department’s members must vote in favor of a

candidate for the department to recommend promotion and

tenure (Pet. App. C-5). Since fewer than two-thirds of Harel’s

department voted in favor of promotion, the department did

not recommend that Harel be awarded tenure and promotion

(Pet. App. C-11). The A&P Committee and the Dean, P. George

Benson, recommended promotion (Pet. App. C-11 - C-12).

By memorandum to University President Lawrence dated

March 23, 1995, the PRC, through its non-voting Chair, Dr.

Joseph Seneca, advised that it did not recommend that Harel be

promoted with tenure (Pet. App. C-12). In that memorandum,

the PRC stated that:

Professor Harel’s record over this period does not

demonstrate sufficiently substantial productivity

and, although his contributions are respected by

external peers, it is not apparent from the record that

his work has had a significant national impact on

developments in his field.

(Pet. App. C-12).

10

President Lawrence also declined to support Harel for

promotion and tenure (Pet. App. C-12). The University notified

Harel that he had not been granted tenure on April 14, 1995

(Pet. App. C-12).

1995 Grievance

On May 19, 1995, Harel filed a grievance under the AAUP

agreement concerning the results of the remanded evaluation

(Pet. App. C-12). He charged that the PRC had evaluated the

materials submitted in support of his candidacy in an arbitrary

and capricious manner and that the PRC’s conclusion that his

scholarship lacked sufficient productivity and significant impact

contradicted the findings reached at other levels of the evaluation

process (Pet. App. C-12). He also alleged that certain members

of his department had acted in an arbitrary and capricious

manner by changing from a positive vote in 1993 to a negative

vote in 1995 (Pet. App. C-13). In addition, he accused the

University of not taking proper steps to locate two “missing”

letters in support of his 1990-91 candidacy (Pet. App. C-13).

Finally, Harel charged that Department Chair Adam had omitted

from his promotion packet on remand a positive internal letter

and, instead, had placed it in supplementary materials not

available to the PRC for review (Pet. App. C-13). Once again,

Harel nowhere stated in this second grievance that the tenure

denial was motivated by national origin discrimination (Pet.

App. C-13).

As provided in the AAUP agreement, Harel’s grievance

was heard by the Faculty Appeals Board (“FAB”), a body of

appointed faculty members charged with hearing grievances

from remanded evaluations (Pet. App. C-13). Whether or not

the FAB finds that there was error in a remanded evaluation, it

may either order another evaluation or recommend to the

President that the candidate receive tenure (Pet. App. C-13).

11

In its recommendations issued on June 22, 1995, the FAB

rejected Harel’s allegation that the PRC acted in an “arbitrary

and capricious” manner in denying tenure (Pet. App. C-13).

While asking the President to consider its ultimate

recommendation, the FAB concluded that:

There is no evidence that the PRC did not carefully

consider the materials provided in Prof. Harel’s

promotion packet in making its decision.

‘

(JA212).

The FAB also rejected Harel’s allegation that “some”

members of his department acted in an arbitrary and Capricious

manner because they did not vote to support him for tenure

(Pet. App. C-13). As to Harel’s allegation that the University

did not take “sufficient steps” to obtain two “missing” outside

reference letters, the FAB noted that one of the letters was

obtained by the University, and included in the remand packet

(JA214). The FAB also rejected Harel’s belated claim of

“Enmity by an evaluator during 1990-1991 [sic] tenure review”

(JA216).

The FAB found that an internal letter of evaluation (i.e.,

one from Benjamin Avi-Itzak, Harel’s friend and colleague)

was placed in “supplementary materials” (Pet. App. C-14).

However, Harel conceded that “supplementary” packet material

is available to, and reviewed by, the PRC (JA307-08). After

rejecting Harel’s key allegations (i.e., alleged arbitrary action

and the charge of “enmity”), the FAB nevertheless

recommended that Harel be awarded tenure (Pet. App. C-14).

Thereafter, Harel’s tenure candidacy was submitted to

President Lawrence for review, as provided for in the AAUP

Agreement (Pet. App. C-14). By correspondence to Harel dated

12

July 26, 1995, President Lawrence disagreed with the FAB’s

recommendation, stating, inter alia, that “the record of

accomplishments presented is not sufficient to support

[promotion]” (Pet. App. C-14). The Board of Governors

accepted President Lawrence’s recommendation not to award

Harel tenure or promotion (JA334).

On September 13, 1995, Harel filed a Charge of

Discrimination with the Equal Employment Opportunity

Commission (“EEOC”) alleging for the first time, inter alia,

that he was denied tenure in 1995 on account of his national

origin (Pet. App. C-15).

REASONS FOR DENYING THE WRIT

The Lower Courts’ Decision That Harel’s § 1983 Claim

Against Respondents Lawrence And Seneca Failed For Lack

Of Evidence That They Had Actual Knowledge Of Any

Discriminatory Conduct Against Him Or Acquiesced In Any

Such Conduct Is A Correct Application Of The Decisions

Of This Court To The Specific Facts Of This Case And Is

Consistent With The Decisions Of The Other Courts Of

Appeals.

Harel’s petition contends that the Third Circuit’s ruling

below — that his § 1983 claim against respondents Lawrence

and Seneca failed for lack of evidence that they had actual :

knowledge of alleged discriminatory conduct against him or

acquiesced in such conduct (Pet. App. A-4 n.2) — “ignores

well-settled Supreme Court and inter-circuit authority governing

supervisory liability under § 1983” and marks a split among

the Circuits that should be resolved by a grant of certiorari in

this case (PW14-15).

The sole identified basis for Harel’s contention that the

Third Circuit’s decision ignores the decisions of this Court is

—

13

his assertion that Canton v. Harris, 489 U.S. 378, 388 (1989),

held and, thus, required the Third Circuit to hold below, that

individual governmental officials may be personally liable under

§ 1983 for “deliberate indifference” to constitutional rights

(PW15). Harel’s contention that the Third Circuit’s decision

conflicts with those of other Courts of Appeals concerning the

scope of “Canton’s deliberate indifference test” appears to be

based upon the argument that the Third Circuit failed to apply

a deliberate indifference test in this case and, in its other

decisions, has declined to apply a deliberate indifference

analysis in as broad a range of circumstances as have other

Courts of Appeals. As shown below, Harel’s petition must be

denied because both of these contentions are wrong.

At the outset, however, Harel’s petition must be denied for

another reason: he never presented to the courts below his

contention that his personal liability claims against respondents

Lawrence and Seneca should be evaluated under a “deliberate

indifference” standard. Harel’s Amended Complaint expressly

alleges that respondents Lawrence and Seneca directly

participated in intentional misconduct against him (JA702 at

133, 34 and 37). Following the district court’s dismissal of his

§ 1983 claim on summary judgment, on appeal Harel did not

further press his direct tort theory against respondents, but

instead, urged a supervisory liability theory. In his brief before

the Third Circuit, Harel did not ask the court to evaluate his

claims against respondents Lawrence and Seneca under a

deliberate indifference standard. Instead, Harel made the

following argument regarding the personal liability of

respondents Lawrence and Seneca:

To sustain constitutional claims against individual

State actors, Dr. Harel must show that they

intentionally acted in derogation of a ciearly

established right of which a reasonable person in

14

their position would have had knowledge. Dr. Harel

may also prevail against these defendants by

establishing that they knowingly failed to act in a

manner which permitted others, under their

supervision or direction, to violate such rights. Rode

v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)

(requiring allegations of individual involvement or

acquiescence to be made with reasonable

particularity).*

(PB27). Moreover, Harel’s reliance on Rode cannot be viewed

as urging the Third Circuit to apply a deliberate indifference

standard because Rode, 845 F.2d at 1207, expressly requires a

showing of “actual knowledge and acquiescence” to make out

a supervisory liability claim. Accordingly, it is clear that Harel

did not raise his deliberate indifference theory below. Plainly,

Harel twice has sought to shift the theory of his § 1983 claim in

order to obtain another bite at the apple.

Harel’s failure to raise his “deliberate indifference”

argument before the lower courts requires that the petition be

denied. It is well-settled that this Court will not consider issues

which were not presented or resolved in the courts below.

Youakim v. Miller, 425 U.S. 231, 234 (1976) (“[O}rdinarily this

Court does not decide questions not raised or resolved in the

lower court.”); Duignan v. United States, 274 U.S. 195, 200

(1927) (same). Harel should not be permitted to argue for the

first time in his petition that the Third Circuit should have

applied a “deliberate indifference” standard for supervisor

8. Contrary to Harel’s reading of Rode, the Third Circuit held in

that pre-Canton decision that the personal involvement necessary to

hold a defendant liable in a § 1983 action may be shown “through

allegations of personal direction or of actual knowledge and

acquiescence.” 845 F.2d 1195, 1207 (3d Cir. 1988).

15

liability, rather than the standard that Harel himself urged that

court to apply.

Accordingly, the petition must be denied.

1. The Third Circuit’s Decision Below Is Consistent With

This Court’s Decisions Concerning Personal Liability

Under § 1983.

If this Court proceeds to consider the new argument raised

in Harel’s petition, his assertion that the Third Circuit’s ruling

below conflicts with Canton v. Harris is wrong. Contrary to

Harel’s contention, Canton did not address the liability under

§ 1983 of individual governmental Supervisors. Rather, the

Canton Court was presented with, and decided in the affirmative,

the question whether a municipality may be held liable under

§1983 for its failure to train municipal employees where that

failure both causes a constitutional deprivation and reflects a

deliberate indifference to the constitutional rights of its

inhabitants. 489 U.S. at 392. No decision of this Court has held

that the “deliberate indifference” standard is the sole test which

must be applied regardless of the factual circumstances

presented in considering the personal liability of a governmental

supervisor under § 1983. Therefore, the decisions of this Court

did not require the Third Circuit to apply a deliberate

indifference test.

Contrary to Harel’s contention, the decision below is fully

consistent with the decisions of this Court. To establish personal

liability in a § 1983 action, it must be shown that “the official,

acting under color of state law, caused the deprivation of a

federal right.” Kentucky v. Graham, 473 U.S.'159, 166 ( 1985);

Hafer v. Melo, 502 U.S. 21, 25 (1991). In considering the

circumstances under which a governmental supervisor may be

16

held personally liable under 42 U.S.C. § 1983, the starting point

must be the statute itself, which provides, in relevant part:

[e]very person who under color of [law] subjects,

or causes to be subjected, any . . . person within the

jurisdiction [of the United States] to the deprivation

of any rights ... secured by the Constitution and

laws, shall be liable to the party injured in an action

at law [or] suit in equity...

As this Court explained in Rizzo v. Goode, 423 U.S. 362,

370-371 (1976): “[t}he plain words of the statute impose liability

... only for conduct which ‘subjects, or causes to be subjected’

the complainant to a deprivation of a right secured by the

Constitution and the laws.” Thus, this Court has rejected § 1983

claims premised on theories of respondeat superior and held

that a defendant in a civil rights action must have personal

involvement in the alleged wrongs in order to be held liable.

Monell v. Department of Social Services, 436 U.S. 658, 691-

693 (1978); Rizzo v. Goode, 423 U.S. at 370-371; Parratt v.

Taylor, 451 U.S. 527, 537 n.3 (1981). It follows that a §1983

plaintiff seeking to attach liability to a supervisor for the acts

of one of his or her subordinates “may not rest on the

[supervisory] relationship alone; both fault and causation as to

the acts or omissions of the [supervisor himself] must be

proved.” Canton, 489 U.S. at 394 (O’Connor, J., concurring in

part and dissenting in part) (emphasis in original).

Thus, the Third Circuit’s ruling that Harel’s § 1983 claim

is deficient because he failed to produce evidence that

respondents Lawrence and Seneca had actual knowledge of or

acquiesced in alleged discriminatory conduct purportedly

perpetrated by lower level evaluators is fully consistent with

this Court’s conclusion in Rizzo v. Goode that personal

Eh eet OE iN he %

SLE A al NS aie RA 8 ee TRAN cS Laskin le cer hat

17

involvement of governmental officials must be shown to support

individual liability under § 1983.

2. The Third Circuit’s Decision Below Is Consistent With

The Decisions of the Other Courts of Appeals.

Moreover, Harel’s contention that a split exists between

the Third Circuit and the other Courts of Appeals concerning

the supervisory liability standards under § 1983 simply is wrong.

As shown above, the Third Circuit did not reject or refuse to

apply a deliberate indifference standard in this case. The court

had no occasion to consider the appropriateness of such a

standard because, from the filing of his Amended Complaint

and throughout the proceedings before the Third Circuit, Harel

never pursued his § 1983 claim against respondents on a

deliberate indifference theory. Instead, he first asserted that

respondents intentionally overlooked the alleged misconduct

of lower level evaluators and recommended against Harel’s

promotion because of their own intentional discriminatory

animus, and later contended that they knew of and acquiesced

in subordinates’ misconduct. To debate whether the Third

Circuit would have deemed it appropriate to apply a deliberate

indifference standard had Harel presented such a theory of

liability is an exercise in conjecture that does not warrant a

grant of certiorari.

As should be expected given the widely-varying factual

patterns and theories of liability presented, the decisions of the

Third Circuit analyzing the nature and extent of personal

involvement necessary to support the personal liability of

supervisors under § 1983 have defined a range of circumstances

in which the necessary involvement may be shown. The Third

Circuit has held that personal involvement may be shown

“through allegations of personal direction or of actual

18

knowledge and acquiescence,” Rode v. Dellarciprete, 845 F.2d

at 1207, “or through direct discrimination by the supervisor.”

Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir.

1990). Further, the Third Circuit has applied a deliberate

indifference standard in assessing the individual liability of

government supervisors in appropriate §1983 cases. See e.g.,

Sample v. Diecks, 885 F.2d 1099, 1116-18 (3d Cir. 1989) (In

the context of a §1983 action against prison officials for

unconstitutional detention, applying the “deliberate

indifference” standard as established in Canton to the

assessment of the individual liability of supervisory public

officials.); Stoneking v. Bradford Area School District, 882 F.2d

720, 725 (3d Cir. 1989) (Holding, under Canton, that a school

official may be held liable in an individual, as well as an official,

capacity when the official, with deliberate indifference to the

consequences, establishes or maintains a policy, practice or

custom that plays an affirmative role in causing a deprivation

of the constitutional rights of a student.), cert. denied, 493 U.S.

1044 (1990); Black v. Indiana Area School Dist., 985 F.2d 707,

711-13 (3d Cir. 1993) (Holding that plaintiffs had failed to

establish the individual §1983 liability of the supervisor

defendant under deliberate indifference standard.); Carter v.

City of Philadelphia, 181 F.3d 339 (3d Cir. 1999) (Holding, in

the context of a claim against policymakers in the District

Attomey’s Office in their personal capacities for failure to train

or supervise municipal employees, that liability under § 1983

requires a showing that the failure amounts to “deliberate

indifference” to the rights of persons with whom these

employees will come into contact.), cert denied, _ US. eas

No. 99-481, 1999 U.S. Lexis 7545 (Nov. 15, 1999).

In other decisions, although recognizing the continued

viability of the deliberate indifference standard, the Third Circuit

has held that theory inapplicable where the absence of evidence

19

showing a pattern of subordinate misconduct made it

inappropriate to impute constructive knowledge thereof to the

supervisor. See Brown y. Grabowski, 922 F.2d 1097, 1120n.16

(3d Cir. 1990), cert. denied, 501 US. 1218 (1991); Baker v.

Monroe Township, 50 F.3d 1186, 1191 n.3 (3d Cir. 1995).

Fully consistent with the Third Circuit, depending on the

facts presented, other Courts of Appeals have concluded that

personal involvement sufficient to support individual liability

of a supervisor under § 1983 may be established through

involvement ranging from direct participation to deliberate

indifference. See Barreto-Rivera y. Medina-Vargas, 168 F.3d

42 (Ist Cir. 1999) (Holding that § 1983 claim against individual

supervisory official may be proved upon a showing that the

official directly participated in the actions complained of, knew

of subordinates’ unconstitutional behavior and condoned or

tacitly authorized such conduct, or had a basis for knowing of

subordinates’ misconduct and acted with deliberate indifference

to the consequences.); Sealey v. Giltner, 116 F.3d 47, 51

(2d Cir. 1997) (“A Supervisory official is liable for a

constitutional violation if he or she (1) directly participated in

the violation; (2) failed to remedy the violation after learning

of it through a report or appeal; (3) created a custom or policy

fostering the violation or allowed the custom or policy to

continue after learning of it; or (4) was grossly negligent in

supervising subordinates who caused the violation.”);

McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191

(4th Cir. 1996) (Holding that supervisors will be liable under

§ 1983 only upon proof of their direct culpability in causing

injury to the plaintiff which may be shown by evidence that the

supervisor either: (1) directly authorized subordinates’ conduct,

(2) expressly condoned by inaction a known pattern of

comparable conduct, or (3) knew or reasonably should have

known of a comparable pattern of misconduct and in the face

20

of that knowledge took no action to stop it but remained

deliberately indifferent to it.), cert. denied, 519 U.S. 819 (1996);

Sanders v. English, 950 F.2d 1152, 1159-60 (5th Cir. 1992)

(Supervisory official may be held liable under § 1983 for

wrongful acts of subordinates if he or she knew about the

conduct and facilitated it, approved it, condoned it, or turned a

blind eye for fear of what he or she might see.); Salehpour v.

University of Tennessee, 159 F.3d 199 (6th Cir. 1998) (Holding

that plaintiff must prove that supervisors did more than play a

passive role in the alleged violation or showed mere tacit

approval of the events for individual liability under § 1983 to

attach. Plaintiff must show that supervisors otherwise

encouraged or condoned the actions of the other defendants.),

reh'g en banc denied, 1998 No. 97-5468 U.S. App. Lexis 31335

(6th Cir. Oct. 29, 1998), cert. denied, U.S. __, 143 L. Ed. 2d

793 (1999); Gossmeyer v. McDonald, 128 F.3d 481, 495 (7th

Cir. 1997) (Holding that liability of supervisors for conduct of

subordinates under § 1983 must be predicated on personal

involvement which can be shown in a number of ways:

“supervisors must know about the conduct and facilitate it,

approve it, condone it, or turn a blind eye for fear of what they

might see. They must in other words act either knowingly or

with deliberate, reckless indifference.”); Ripson v. Alles, 21 F.3d

805, 809 (8th Cir. 1994) (Holding that for a supervisor to be

held individually liable for the acts of a subordinate, something

more must be shown than merely the existence of the supervisor-

subordinate relationship and mere negligence in failing to detect

and prevent a subordinate’s conduct is not enough for liability

under § 1983 to attach. The supervisor must know about the

conduct and facilitate it, approve it, condone it, or turn a blind

eye for fear of what [he] might see.), reh'g denied,

93-1972SIDM 1994 U.S. App. Lexis 12756 (8th Cir. June 1,

1994); Watkins v. City of Oakland, Cal., 145 F.3d 1087, 1093

(9th Cir. 1998) (Holding that a supervisor can be liable under

§ 1983 in his individual capacity for (1) his own culpable action

21

or inaction in the training, Supervision or control of his

subordinates, (2) for his knowing acquiescence in the

constitutional deprivation, or (3) for conduct that showed a

reckless or callous indifference to the rights of others.); Green

v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997) (To establish

a supervisor’s liability under § 1983, the plaintiff must show

that the supervisor either (1) personally participated in the

constitutional deprivation, (2) controlled or directed

subordinates to commit the constitutional deprivation, or (3)

failed to adequately supervise. ); Jojola v. Chavez, 55 F.3d 488,

490 (10th Cir. 1995) (To impose individual liability on the

defendants under § 1983, plaintiff must allege and prove that

defendants “actually knew of and acquiesced in [the

subordinate’s] behavior.”); Braddy v. Florida Dept. of Labor

& Employment Sec., 133 F.3d 797 (11th Cir. 1998) (Supervisory

liability under § 1983 occurs either when the supervisor

personally participated in the alleged constitutional violation

or when there is a causal connection between actions of the

supervising official and the alleged constitutional deprivation.

The causal connection can be established when a history of

widespread abuse puts the responsible supervisor on notice of

the need to correct the alleged deprivation and he fails to do

SO.).

In sum, decisions of the other Courts of Appeals are entirely

consistent with the decisions of the Third Circuit. All of the

Circuits recognize that the showing of fault and causation

sufficient to justify the imposition of § 1983 liability upon a

supervisor for the conduct of subordinates necessarily varies

based upon the nature of the factual scenario presented. Further,

all of the Circuits apply slightly varying tests depending upon

the facts alleged. Quite simply, there is no split among the

Circuits on this issue.

22

Harel also contends that a footnoted comment by a Third

Circuit panel in Baker v. Monroe Township, 50 F.3d at 1194

n.5, demonstrates that a split exists among the Circuits because

“the Third Circuit has expressly applied a narrower liability

test than other Circuits.” (PW15). This contention is wrong.

Harel correctly notes that the Baker panel stated that “other

circuits have developed broader standards for supervisory

liability under § 1983”, Baker, 50 F.3d at 1194 n.5, than the

actual knowledge and acquiescence standard applied in Baker.

However, earlier in its opinion, 50 F.3d at 1191 n.3, the Baker

Court noted that a supervisor also could be held liable under

the principles applied in Stoneking v. Bradford Area School

District, 882 F.2d at 725 (applying deliberate indifference

standard to §1983 claims against individual supervisor), but

that the facts before the court did “not implicate such a theory.”

Since the Baker Court held that the evidence showed the

supervisor defendant did have actual knowledge of the

subordinates’ conduct, 50 F.3d at 1193-94, and there is no

indication that the court was presented with an argument that a

deliberate indifference standard should be applied to those facts,

the footnoted comment upon which Harel relies is obiter dictum.

Moreover, in its post-Baker decision in Carter v. City of

Philadelphia, 181 F.3d 339 at 356, the Third Circuit reaffirmed

its holding in Sample v. Diecks, 885 F.2d at 1118 (applying

Canton’s deliberate indifference standard to § 1983 personal

liability claim).

In any event, the Third Circuit’s decision below, not the

Baker Court’s dictum, is the subject of Harel’s petition. In this

case, the Third Circuit’s decision is not the product of a split

among the Circuits concerning the personal liability standard

under § 1983. Rather, the Third Circuit evaluated the evidence

of record under the particular theory of liability urged by Harel

23

himself and concluded that his § 1983 claim against respondents

was not supported by the record.

Thus, contrary to Harel’s contention, from the starting

points provided by this Court’s decisions, the case-by-case

evolution of the Third Circuit’s decisional law defining the

relationship that must exist between a Supervisor’s action or

inaction and a subordinate’s constitutional violation to warrant

supervisory liability under § 1983 is consistent with the

decisions of this Court and the other Circuits. Accordingly,

Harel’s petition must be denied.

3. The Petition Must Be Denied For Other Reasons.

Even if the Third Circuit should have applied a “deliberate

indifference” standard, rather than an “actual knowledge and

acquiescence” standard, this case is not worthy of certiorari.

This Court has made clear that “[c]ertiorari is granted only ‘in

cases involving principles the settlement of which is of

importance to the public as distinguished from that of the parties,

and in cases where there is a real and embarrassing conflict of

opinion and authority between the circuit courts of appeal.’ ”

NLRB vy. Pittsburgh Steamship Co., 340 U.S. 498, 502 (1951)

[citations omitted]. This case involves the simple application

of the law to a discrete factual scenario. It does not involve

principles the settlement of which is of public importance, nor

does it involve a “real and embarrassing conflict of authority”

among the Circuits. As has been shown, there is no such conflict

among the Courts of Appeals as to the standard for supervisor

liability under § 1983. Accordingly, the petition must be denied.

In addition, Harel’s petition must be denied because his

contentions concerning application of a deliberate indifference

standard are moot due to his failure to prove an underlying

constitutional violation. This Court held in Daniels vy. Williams,

24

474 U.S. 327, 330 (1986), that “[i]n any given § 1983 suit, the

plaintiff must ... prove a violation of the underlying

constitutional right.... See e.g., Arlington Heights v.

Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977)

(Invidious discriminatory purpose required for claim of racial

discrimination under the Equal Protection Clause.).”

Here, however, Harel has failed to produce competent

evidence to show the existence of the underlying constitutional

violation — that he was discriminatorily denied promotion and

tenure because of his Israeli national origin by respondents’

subordinates. At this stage of these proceedings, Harel’s

contention appears to be that respondents Lawrence and Seneca

are personally liable for alleged intentional discriminatory

conduct by evaluators beneath them in the 1995 evaluation

process which purportedly resulted in the unlawful denial of

his bid for tenure and promotion. In the proceedings below, the

district court applied the three-part test for proving disparate

treatment established by this Court in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973), and correctly concluded that

Harel had not met his burden of producing evidence indicating

that respondents Seneca and Lawrence discriminated against

him on account of his Israeli national origin (Pet. App. C-41).

Further, the district court rejected Harel’s assertions that

irregularities in the evaluation process showed that Rutgers’

non-discriminatory reason for denying Harel promotion and

tenure (the University’s view that the quantity and impact of

his scholarship did not meet its standards for promotion) was a

mere pretext for discrimination or that an invidious

discriminatory reason more likely than not motivated the

University’s decision not to grant tenure (Pet. App. C-39-41).

These determinations were affirmed by the Third Circuit

(Pet. App. A-4), and have not been challenged in Harel’s

petition. Plainly, the lower courts’ decisions dismissing Harel’s

25

§ 1983 discrimination claims against Rutgers prevent him from

establishing that a constitutional tort was committed by Rutgers

for which respondents Lawrence and Seneca may be held

personally liable as supervisors.

Harel’s petition also must be denied because his contentions

are premised upon serious misstatements of fact. Throughout

his petition, Harel asserts either that respondents Lawrence and

Seneca knew or that they should have known that the

proceedings at the lower levels of the 1995 evaluation process

were infected by anti-Israeli bias because of allegedly rampant

irregularities that purportedly occurred in the 1993 and 1995

evaluation processes. The evidence shows, however, that Harel’s

1993 grievance resulted in only a single grievance committee

finding of “enmity” which was remedied by the recusal of the

offending professor from the 1995 evaluation (Pet. App. C-9 -

C-10; JA186, 195). Moreover, the evidence Clearly shows that

Harel never contended that his Israeli national origin had

anything whatever to do with his tenure denial until he filed his

EEOC Charge of Discrimination in September 1995 (Pet. App.

C-9, C-13 and C-15), months after the 1995 evaluation

concluded. Therefore, nothing that occurred prior to the 1995

remanded tenure evaluation reasonably could have led

respondent Lawrence or respondent Seneca to suspect that

national origin discrimination had affected Harel’s evaluation.

With regard to the 1995 evaluation, Harel contends that

respondent Seneca opposed his tenure bid despite the fact that

he “knew that the FAB, the highest-level University grievance

panel, had identified a myriad of procedural and substantive

deficiencies adversely affecting Petitioner’s tenure review

process” (PW 16 -17). The undisputed evidence shows this

allegation to be false. The evidence shows that Dr. Seneca’s

involvement with Harel’s 1995 tenure review ended on March

26

25, 1995 with his memorandum reporting the PRC’s

recommendation to the President (Pet. App. C-12; JA 208,

2006). At that time, in March of 1995, it was impossible for Dr.

Seneca to know that Harel would later file a grievance in May

of 1995 (Pet. App. C-12), or to know the contents of the FAB’s

then non-existent report, which subsequently issued on June

22, 1995 (Pet. App. C-13). Moreover, the evidence shows that

the FAB ultimately rejected Harel’s principal allegations (Pet.

App. C-13 - C-14). Therefore, Harel’s assertion that the FAB’s

findings provided Dr. Seneca with knowledge of alleged

procedural irregularities is false. Further, as the district court’s

rulings amply demonstrate, Harel never produced evidence

sufficient to support a rational inference that national origin

discrimination played a role in the tenure denial.

Similarly, Harel falsely attempts to ascribe to respondent

Lawrence knowledge which he simply could not have had. For

example, Harel contends that respondent Lawrence “rejected

his candidacy and recklessly ratified the discrimination

previously internalized in the process” despite knowledge that

Harel believed that the adverse decisions had been motivated

by illegal discrimination (PW19). Harel has produced no

evidence which establishes that respondent Lawrence knew, or

could have known, that Harel believed his tenure denial was

the result of illegal discrimination. At no time during the tenure

review process or in his grievance to the FAB did Harel make

such an allegation (Pet. App. C-13). The record is absolutely

clear on this point. When respondent Lawrence ended his

involvement in this matter upon notifying Harel on July 26,

1995 that he was not being granted tenure, Harel had yet to

contend that his tenure denial was the product of illegal

discrimination. As shown, it was not until months later, on

September 13, 1995, in his Charge of Discrimination to the

EEOC, that Harel first contended that he had been denied tenure

27

and promotion due to discrimination on the basis of his national

origin (Pet. App. C-15). Thus, Harel’s allegation that respondent

Lawrence recommended against Harel’s promotion candidacy

despite knowledge that Harel claimed to be a victim of illegal

discrimination is contradicted by the evidence.

CONCLUSION

For all of the foregoing reasons, the petition for a writ of

certiorari must be denied.

Respectfully submitted,

JOHN J. PEIRANO

Counsel of Record

JAMES P. Lipon

CARPENTER, BENNETT & Morrissey

Attorneys for Respondents

Three Gateway Center

100 Mulberry Street

Newark, New Jersey 07102-4082

(973) 622-7711

December, 1999