San Filippo v. Bongiovanni

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit
7-21-1994
Filippo v. Bongiovanni, et al.
Precedential or Non-Precedential:
Docket 93-5658
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"Filippo v. Bongiovanni, et al." (1994). 1994 Decisions. Paper 89.
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 93-5658
_______________
JOSEPH SAN FILIPPO, JR.
Appellant
v.
MICHAEL BONGIOVANNI, ANTHONY S. CICATIELLO,
ADREIENNE S. ANDERSON, DONALD M. DICKERSON,
FLOYD H. BRAGG, NORMAN REITMAN, individually
and as members of the Board of Governors of
Rutgers University, RUTGERS UNIVERSITY
Appellees
RUTGERS COUNCIL OF AMERICAN ASSOCIATION OF
UNIVERSITY PROFESSORS
Amicus Curiae
_______________
On Appeal From the United States District Court
for the District of New Jersey
(D.C. Civil No. 88-2575)
_______________
Argued: May 13, 1994
Before: BECKER AND LEWIS, Circuit Judges
and POLLAK, District Judge0.
(Filed July 21, 1994)
LEON FRIEDMAN (Argued)
148 East 78th Street
New York, NY 10021
Attorney for Appellant
0
Honorable Louis H. Pollak, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
1
JOHN J. PEIRANO, JR. (Argued)
LINDA B. CELAURO
Carpenter, Bennett & Morrissey
100 Mulberry Street
Three Gateway Center
Newark, NJ 07102
Attorney for Appellee
2
DENISE REINHARDT
Reinhardt & Schachter
744 Broad Street
Suite 2500
Newark, NJ 07102
Attorney for Amicus Curiae
_______________
OPINION OF THE COURT
_______________
POLLAK, District Judge.
This case, brought under 42 U.S.C. §1983, arises out of the dismissal by
University -- New Jersey's principal state institution of higher education -- of pl
Dr. Joseph San Filippo, who was, until May 13, 1988, a tenured professor of chemist
The defendants named in this case are Rutgers University and six members of the Rut
Board of Governors (hereinafter collectively described as "Rutgers"). The district
granted Rutgers' motion for summary judgment and dismissed Professor San Filippo's
On appeal, San Filippo, with support from the Rutgers Council of American
Association of University Professors Chapters ("Rutgers AAUP") as amicus, challenge
district court's grant of summary judgment in Rutgers' favor: (1) on San Filippo's
that he was dismissed in retaliation for the exercise of his first amendment rights
(2) on San Filippo's claim that Rutgers violated his right to procedural due proces
because the panel that recommended his dismissal had, according to San Filippo, a
financial incentive to recommend dismissal.
Part I of this opinion outlines the factual background and procedural his
this case. Part II analyzes the legal issues posed by San Filippo's first amendmen
claim. Part III addresses San Filippo's due process claim.
3
I. Factual background and procedural history
Because San Filippo appeals from the district court's grant of Rutgers' m
for summary judgment, the following factual recital accepts as true all evidence pr
by non-movant San Filippo, with all reasonable inferences drawn in his favor.
On November 25, 1985, Dean Tilden Edelstein told San Filippo and his Rutg
AAUP counsellor, Wells Keddie,0 of allegations that San Filippo had harassed, explo
and attempted to exploit visiting scholars from the People's Republic of China. On
January 6, 1986, Dean Edelstein sent San Filippo a letter stating the complaints ag
him. As required by one of the University's dismissal regulations, advice about wh
dismissal proceedings should be commenced was sought from two groups of San Filippo
faculty peers and three academic officers of the University. On February 14, 1986,
tenured faculty members of the chemistry department passed a resolution concluding
the charges against San Filippo, if proven, represented grounds for dismissal. Aft
Appointments and Promotion Committee, the University Provost, and the Chief Academi
Officer concurred in the sentiment expressed in that resolution, Rutgers University
President Edward Bloustein wrote a letter to San Filippo, dated October 1, 1986, in
he described the formal charges against San Filippo. President Bloustein further
indicated that, if San Filippo did not make a timely request for a hearing, Preside
Bloustein would recommend to the University's Board of Governors that San Filippo b
dismissed based on the charges outlined in the letter.
San Filippo exercised his right to a hearing before a panel of five facul
peers (the "Senate Panel") which, after a forty-six day hearing, concluded that San
Filippo had committed almost all of the offenses charged. In a forty-four page rep
issued on December 21, 1987, the Senate Panel recommended that San Filippo be strip
0
The Rutgers AAUP is the recognized agent for collective bargaining under state law
Rutgers University faculty members, including Professor San Filippo. The Rutgers A
an affiliate of the national organization, also serves as a professional organizati
the Rutgers University faculty.
4
his tenure and dismissed from the University. The Board of Governors unanimously
concluded in its sixty-page opinion that the Senate Panel's findings were supported
evidence. On May 13, 1988, the Board of Governors voted to dismiss San Filippo on
basis of nine charges of misconduct. One member of the seven-member Board --Walter
Wechsler -- voted against dismissal because he believed that the sanction was too s
Wechsler has not been named as a defendant.
San Filippo filed the instant action on June 13, 1988. He alleges, among
things, that disciplinary proceedings were initiated against him and that he was di
in retaliation for the numerous (1) grievances and lawsuits he had instituted, and
complaints he had voiced, against Rutgers University and various University officia
between 1977 and 1986 -- activities that he contends are protected by the first ame
A. San Filippo's alleged protected activities
In 1977, San Filippo wrote a letter to the then chemistry department chai
Professor Sidney Toby, complaining about dangerous conditions in the chemistry
laboratories, conditions that had been described by the New Jersey Department of He
"generally unsatisfactory." In 1979, in response to a newspaper reporter's questio
concerning a student's collapse due to noxious fumes during a chemistry experiment,
Filippo stated -- as reported by the newspaper on January 30, 1979 --that undergrad
students were being subjected to a "health hazard and an absolute danger" and that
"minimum safety requirements are not being met." San Filippo was berated by the th
department chairman, Professor Joseph Potenza, and by an administrator for making t
comments. San Filippo's comments led to the creation of an American Association of
University Professors - University Safety Committee.
In 1977 and 1978, San Filippo testified before a grand jury regarding an
investigation into the manufacture of illegal drugs in the chemistry laboratories.
5
Potenza criticized San Filippo for his "disloyalty" and for "washing the department
dirty linen in public."
In 1983-84, San Filippo became embroiled in a dispute over what he descri
an effort by members of the chemistry department's instruments committee to obtain
funding for a mass spectrometer by misrepresenting the department's need for such a
instrument. San Filippo threatened to tell the federal funding agency the truth ab
department's needs. The committee members wrote a memorandum to Potenza, as depart
chairman, protesting San Filippo's threats to undermine their efforts to obtain a m
spectrometer. Potenza told San Filippo that he intended to place the memorandum in
Filippo's personnel file. San Filippo contacted the United States Attorney's offic
regarding this action against him, and an Assistant United States Attorney told San
Filippo that such an action would be characterized as an effort to obstruct justice
San Filippo told Potenza what the government lawyer had said, Potenza had the lette
reprimand removed from San Filippo's personnel file.
Between 1979 and 1986, San Filippo complained about certain financial
irregularities in the chemistry department, particularly efforts to divert funds fr
Filippo's federal grants. In October 1985, San Filippo objected to a proposal by t
department chairman, Professor Robert Boikess, to impose a "shop user's fee," which
Filippo characterized as illegal double billing of chemistry department members.
In 1981, the chemistry department declined to recommend San Filippo for
promotion to full professorship. San Filippo filed a grievance in 1982, contending
he had been denied promotion through manipulation of his promotion packet. While t
grievance was pending, the chemistry department recommended that San Filippo be pro
to full professor, effective July 1984. Although the grievance committee ultimatel
agreed with San Filippo that he should have been promoted, the University took the
position that the issue was moot. In September 1985, San Filippo filed a lawsuit i
6
court in which he contended that he was entitled to have his promotion effective Ju
1982. That suit is still pending.
In 1984, San Filippo grieved the fact that he had been denied a merit sal
increase. The University rejected San Filippo's grievance, and he filed for non-bi
arbitration. The first hearings in the arbitration occurred in October 1985. On Sep
10, 1986, Boikess testified for the University. Regarding this event, the arbitrato
commented in his decision dated December 26, 1986:
Little things are often very revealing. A transcript does not conve
full flavor of what transpires in the hearing room. Boikess was called o
last day of the hearing. He brought his own lawyer with him (Mr. Peirano
San Filippo cordially greeted him before he took the stand. Boikess
not acknowledge the greeting and refused to acknowledge grievant's presen
the room.
During his testimony, Boikess kept referring to grievant's "self-
nomination" [for the merit salary award]. His tone of voice was so caust
it sparked an inquiry from me. (The inference to be drawn by the tone of
employed was that a "self-nomination" was somehow less worthy).
I specifically asked Boikess why he emphasized "self-nomination." B
danced around the issue and did not really answer my question. It became
obvious that he would not answer, so I gave up. Further, the tenor and t
his testimony revealed his near-total contempt for San Filippo.
I note in passing that most of the persons being considered were sel
nominated. The [merit salary award procedure] specifically provides for
One would have to be a block of wood to fail to notice Dr. Boikess'
complete distaste for Joe San Filippo.
(A.1155 n.21). The arbitrator sustained San Filippo's complaint. He further noted
opinion:
San Filippo testified, without contradiction, that he was criticized by
administration officials for talking to the school newspaper about unsafe
conditions in the laboratories. [San Filippo] was chairman of the Safety
Committee at the time. A student took ill. [San Filippo] was accused of
"disloyal." Putting aside the serious first amendment issues the episode
(Pickering v. Board of Education, 391 U.S. 563), it seems to me that the
to the health of the students outweighs any possible harm to the reputati
7
those in authority that disclosure of lab conditions might have created.
Further, there is a difference to [sic] loyalty to the institution and th
purposes it is supposed to serve and fealty to the individuals who may, a
given moment, occupy positions of higher authority in the organization.
is more important in the scheme of things: bruised feelings because the
is tough and demanding or personal safety? . . .
While not directly at issue, there was some unsettling evidence that [Dr.
Filippo's] promotion packet had been surreptitiously removed and unfavora
material secretly inserted. [Dr. San Filippo] had to bring successful gr
action to rectify the situation. It would appear that someone was willing
to extra-ordinary lengths to deny [Dr. San Filippo] professional advantag
That kind of conduct is similar to what happened to [Dr. San Filippo] in
[merit salary award] review.
[Dr. San Filippo's] nomination was clearly judged under separate "San Fil
rules" that were applicable to no one else.
. . . . I know a pipe job when I see one.
(A.1161 n.29).
In November 1985, Dr. San Filippo brought a libel action in state court a
three administrators who accused San Filippo of deliberately falsifying time report
relating to one of his technical assistants.
Finally, San Filippo brought a lawsuit in state court against the Univers
March 1986 complaining about, among other things, the University's decision to proh
without a hearing of any kind -- graduate student assistance in San Filippo's resea
program, because of the accusations against San Filippo.
B. The charges and proceedings against San Filippo
As explained above, on October 1, 1986, President Bloustein brought forma
written charges against San Filippo. After a hearing before the Senate Panel, which
recommended dismissal,
the Board of Governors, which reviewed the findings of the Senate Panel for suffici
the evidence, concurred in the Senate Panel's findings sustaining the following cha
8
Charge 1: Your treatment of scholars visiting from the People's Republic
China and a Chinese Teaching Assistant violated the standards of professi
ethics required by all faculty members. More specifically, your treatmen
respect to these individuals, as set forth more fully in the attached doc
is as follows:
a. You took advantage of your professorial position and exploited Mr. He
Gao and Mr. Changhe Xiao, both visiting scholars from the People's Republ
China, by directing them or leading them to believe that they had no choi
to perform domestic work for you, such as garden work and indoor and outd
cleaning work during the period May through July 1985.0
c. You exploited Messrs. Gao and Xiao by representing that they would be
provided health benefits coverage and that you would deduct $700.00 from
salary to be paid each of them in order to cover the costs of such benefi
Despite deducting such sums, you did not provide coverage to either Mr. G
Mr. Xiao.
d. During the period of time that the above-named visiting Chinese schol
were at Rutgers, you threatened and harassed those individuals by repeate
stating that you would send them back to China and by directing abusive l
toward them.
e. On or about March 31, 1986, you interrupted without sufficient cause
laboratory class being conducted by Teaching Assistant, Zong Ping Chen.
continued that incident by treating her in an unprofessional, threatening
abusive manner, within the hearing of other individuals, including her st
Charge 2: On or about July 8, 1985, you directed Mr. Changhe Xiao, who h
injured himself while doing maintenance work at your house, to identify h
as Mr. Peng Zhou in Middlesex Hospital in order to have Mr. Xiao covered
Peng Zhou's medical insurance.
Charge 3: You encouraged and permitted individuals working under your di
and supervision to submit false time reports and to make inappropriate ch
against certain University accounts. Specifically:0
b. Ms. Marilyn Brownawell, who works directly under your supervision, su
time reports for the week ending August 17, 1984. She reported and was p
40 hours of work for that period, charged against the Chemistry Departmen
mass spectrometer account, even though you knew that she did not perform
work related to the mass spectrometer or indeed any compensable work for
of any kind during that period.0
0
The Senate Panel found that charge 1(b) was unproven, and the Board concurred in t
determination.
0
The Senate Panel did not sustain charge 3(a), and the Board concurred in this
determination.
0
Charge 3(c) was not sustained by the Panel, and the Board concurred in this
determination.
9
Charge 4: You violated professional and academic standards and exploited
foreign visitors to the University by bringing to the University as post-
doctoral fellows Chinese scholars you knew did not have appropriate crede
and by charging stipends of such individuals, who did not possess doctora
degrees, to your NSF grant as post-doctoral fellows. Subsequently you sup
these individuals for admission to the graduate program in Chemistry, a f
which clearly established that they did not have the credentials to be po
doctoral fellows.0
Charge 5: During Fall 1985, you submitted an application for admission t
graduate program, including letters of reference, on behalf of Mr. Peng Z
one of the individuals referred to in #4 above. One of the letters of ref
submitted by you purportedly was written and signed by Liu Guozhi. In fa
that letter was not prepared by Liu Guozhi, and you had knowledge of the
and did not make it known when you submitted the letter.
Charge 6: On December 16, 1985, Professor Robert Boikess, Chair of your
department, specifically instructed you not to permit Mr. Peng Zhou, Mr.
Yuan Guo, or any other graduate student except those already associated w
your research group, to work in your laboratory, pending investigation of
allegations of exploitation and harassment lodged against you by visiting
Chinese scholars. Despite these specific instructions, you subsequently
permitted Cong-Yuan Guo, Zhen-min He, and Peng Zhou to perform work in yo
laboratory.
In the Board's opinion, the Board specifically found that the conduct described in
sustained charges 1(a), 1(d) and 1(e) was a serious enough breach of the role of fa
member that, even if those were the only sustained charges, there would be sufficie
cause for dismissal. Accordingly, on May 13, 1988, the Board directed that San Fil
dismissed from the University.
Board member Wechsler agreed with his colleagues' findings but felt that
dismissal was too severe a sanction: "Because this punishment is clearly out of pro
to his alleged wrongdoing, and quite possibly tainted by a long history of animus,
respectfully dissent." (A.322).
C. The procedural history of this case
0
The Senate Panel sustained this charge in regard to Mr. Peng Zhou, but not in rega
Mr. Cong-Yuan Guo. The Board concurred in both determinations.
10
On June 13, 1988, San Filippo filed this suit against the University and
Board members who voted in favor of his dismissal. San Filippo sued under §1983 an
law, alleging that the dismissal violated his speech, petition, equal protection, a
process rights under the United States and New Jersey Constitutions, and violated h
common law contract rights.
Following the parties' cross-motions for summary judgment on a number of
the district court granted San Filippo's motion for partial summary judgment on his
that the regulations pursuant to which he was dismissed were void for vagueness. S
Filippo v. Bongiovanni, 743 F. Supp. 327 (D.N.J. 1990). The void-for-vagueness iss
certified for interlocutory appeal to this court; we reversed and remanded the case
further proceedings. San Filippo v. Bongiovanni, 961 F.2d 1125, 1139-40 (3d Cir. 1
After the Supreme Court denied San Filippo's petition for certiorari, San Filippo v
Bongiovanni, 113 S. Ct. 305 (1992), the district court referred the remaining summa
judgment motions to a magistrate judge.
In his Report and Recommendation, the magistrate judge recommended that s
judgment be granted in defendants' favor on San Filippo's procedural due process cl
on his state law claims, but that summary judgment be denied on San Filippo's first
amendment/equal protection claim.0 Regarding the first amendment claim, the magist
judge first explained that this circuit uses a three-part test to assess a public
employee's claim of retaliation for having engaged in a protected activity. First,
plaintiff must show that he engaged in a protected activity. Second, plaintiff mus
that the protected activity was a substantial factor motivating the dismissal decis
Finally, defendant may defeat plaintiff's claim by demonstrating that the same acti
0
The parties agree that the analysis is the same under the first amendment and equa
protection claims. From this point, we refer to these claims as the first amendmen
claim.
11
would have taken place even in the absence of the protected conduct.0 See Holder v
of Allentown, 987 F.2d 188, 194 (3d. Cir. 1993); Czurlanis v. Albanese, 721 F.2d 98(3d Cir. 1983) (citing Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 283-87
(1977)).
With respect to the first prong of this test, the magistrate judge conclu
that, unlike speech generally -- which is protected under the first amendment only
addresses a matter of public concern -- San Filippo's lawsuits and grievances were
activities protected under the petition clause of the first amendment regardless of
whether they addressed matters of public concern. The magistrate judge then noted
fact-finder could reasonably infer that San Filippo's protected conduct was a subst
factor motivating the decision to dismiss him from the University. Finally, the
magistrate judge recommended that San Filippo be given the chance to conduct additi
discovery in order to rebut Rutgers' claim that San Filippo would have been dismiss
in the absence of his protected activities. Because the magistrate judge believed t
defendants had not yet made relevant discovery material available to San Filippo, t
magistrate judge recommended that summary judgment be denied under Rule 56(f) of th
Federal Rules of Civil Procedure.0
0
The burden of persuasion shifts to Rutgers with respect to the third prong of this
In this respect, the retaliatory discharge test differs from the Title VII rule
established in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981), an
reaffirmed in St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742 (1993), where the b
of persuasion remains on the plaintiff even after he or she has proved a prima faci
and the employer need only articulate -- not prove -- a non-discriminatory reason f
actions.
0
Rule 56(f) states in relevant part:
Should it appear from the affidavit of a party opposing the motion that t
party cannot for reasons stated present by affidavit facts essential to j
the party's opposition, the court may refuse the application for judgment
order a continuance to permit . . . discovery to be had or may make such
order as is just.
12
San Filippo did not object to the magistrate judge's recommendation that
be granted summary judgment on the state law claims. Accordingly, in an opinion da
September 28, 1993, the district court accepted those recommendations and granted R
summary judgment on those claims. San Filippo objected to the magistrate judge's
recommendation that Rutgers be granted summary judgment on his due process claim, a
argued that he was entitled to summary judgment on that claim or at least to furthe
discovery. Rutgers objected to the magistrate judge's recommendation that summary
judgment on San Filippo's first amendment claim be denied.
The district court adopted the magistrate judge's recommendation that sum
judgment be granted on San Filippo's due process claim, but rejected the magistrate
judge's recommendation that summary judgment be denied on San Filippo's first amend
claim. With respect to the first amendment claim, the district court first disagre
the magistrate judge's conclusion that San Filippo's lawsuits and grievances were
activities protected under the first amendment petition clause regardless of whethe
addressed a matter of public concern. Instead, the district court held that lawsui
grievances, like speech generally, are protected activities under the first amendme
if they address matters of public concern.
The district court concluded that some of San Filippo's speech addressed
of public concern and was therefore protected under the first amendment. The distr
court also concluded that a fact-finder could reasonably infer that San Filippo's
protected conduct was a substantial factor motivating his dismissal. However, the
district court held that there was no basis in the record from which a fact-finder
reasonably conclude that San Filippo was dismissed because of his protected conduct
rather than because of the misconduct described in the charges brought against him.
Moreover, the district court rejected the magistrate judge's recommendation that a
on the summary judgment motion be delayed until after San Filippo had had an opport
to conduct additional discovery, and instead held that San Filippo had received all
13
discovery to which he was entitled. Accordingly, the district court held that Rutg
entitled to summary judgment on San Filippo's first amendment claim as well as on h
process and state law claims, and dismissed San Filippo's complaint in its entirety
On appeal, San Filippo argues that the district court's order granting Ru
summary judgment on his first amendment claim should be vacated because the distric
erred, (a) in granting Rutgers' motion for summary judgment without affording him a
opportunity to take additional discovery, and (b) on the merits. San Filippo also
contends that the district court's order granting Rutgers summary judgment on his d
process claim should be vacated because there remains a material issue of fact rega
the question whether the Senate Panel had a pecuniary interest in the outcome of th
proceedings against San Filippo, and because he was entitled to additional discover
II. San Filippo's first amendment claim
San Filippo first contends that the district court erred in denying his r
made pursuant to Rule 56(f) of the Federal Rules of Civil Procedure,0 that the dist
court delay its ruling on Rutgers' summary judgment motion until after he had time
conduct further discovery. San Filippo made various discovery requests on Septembe
1989; Rutgers asked to have until November 7 to respond. On November 24, San Filip
wrote a 20-page letter to Rutgers pointing out inadequacies in Rutgers' response.
November 29, Rutgers moved for summary judgment and the requested information was n
supplied. San Filippo submitted a Rule 56(f) affidavit in support of its oppositio
Rutgers' motion for summary judgment. The magistrate judge recommended that the ru
the summary judgment motion be deferred until after San Filippo had an opportunity
additional discovery.
0
The text of this rule is quoted at note 8, supra.
14
The district court rejected the magistrate judge's conclusion that summar
judgment should not be granted until San Filippo had an opportunity to discover add
information. The court explained that San Filippo argued that "he must see the reco
other faculty persons similarly situated (i.e., persons who have been known to comm
were accused of committing, similar offenses, but against whom no sanctions, or not
severe a sanction was imposed)." Opinion at 42 (internal quotation omitted). The
rejected San Filippo's argument for two reasons. First, the court concluded that "
members 'similarly situated' to plaintiff are those faculty members against whom fo
charges have been filed as to conduct which could lead to dismissal under the Unive
regulations." Opinion at 42-43. The court explained that San Filippo received all
information on June 9, 1989, pursuant to Rutgers' compliance with section I.1 of a
Stipulation dated May 19, 1989. Second, the court concluded:
These [nine] charges together caused plaintiff's dismissal and it is only
tenured faculty member who had "been known to commit" or was "accused of
committing" offenses of the kind, number, and scope taken together with w
plaintiff is truly "similarly situated." No one suggests that such a per
exists.
Opinion at 44-45 (emphasis in original). For these two reasons, the court conclude
San Filippo had received all of the discovery to which he was entitled. See Opinio
46.
San Filippo, with support from the Rutgers AAUP, argues that the district
abused its discretion in denying San Filippo's request for a Rule 56(f) continuance
Under Contractors Assoc. v. City of Philadelphia, 945 F.2d 1260 (3d Cir. 1991), whe
Rule 56(f) motion should be granted "depends, in part, on 'what particular informat
sought; how, if uncovered, it would preclude summary judgment; and why it has not b
previously obtained.'" Id. at 1266 (quoting Lunderstadt v. Colafella, 885 F.2d 66,
Cir. 1989)). A district court has discretion in acting on Rule 56(f) motions. See
15
1267. However, where relevant information sought is in the hands of the moving par
district court should grant a Rule 56(f) motion almost as a matter of course unless
information is otherwise available to the non-movant." Id.In Contractors Assoc., the district court granted Contractors Association
Eastern Philadelphia and other trade associations summary judgment on their claim t
Philadelphia's public contract minority set-aside law violated the equal protection
of the fourteenth amendment. On appeal, United Minority Associates Enterprises arg
that the district court --to which Minority Associates had submitted a Rule 56(f)
affidavit along with their opposition to summary judgment -- erred by granting the
judgment motion without giving Minority Associates an opportunity to pursue discove
the existence of discrimination in the Philadelphia construction market that could
various set-asides. We held that the district court abused its discretion by not g
a continuance before ruling on the summary judgment motion. See Contractors Assoc.
F.2d at 1268.
In addressing the first part of the Contractors Assoc. test -- what infor
is sought and how it would preclude summary judgment -- San Filippo and the Rutgers
argue that the district court's definition of "similarly situated" was too narrow.
agree. Among other things, San Filippo argues that, but for his protected activity
would not have been charged at all. To limit his discovery to individuals who were
fact brought up on similar charges is, therefore, not adequately responsive to San
Filippo's needs. Nor should San Filippo be limited to discovery of individuals who
committed nine charges of comparable seriousness yet were not disciplined. The Sup
Court explained in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11 (
[P]recise equivalence in culpability between employees is not the questio
we indicated in [McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (197
allegation that other "employees involved in acts against [the employer]
comparable seriousness . . . were nevertheless retained . . ." is adequat
16
plead an inferential case that the employer's reliance on his discharged
employee's misconduct as grounds for terminating him was merely a pretext
Santa Fe, 427 U.S. at 283 n.11 (emphasis and omissions in Santa Fe).
In analogous fashion, this court, in Bennun v. Rutgers State University,
F.2d 154 (3d Cir. 1991), rejected a contention that the district court had erred in
comparing the defendant University's decision not to tenure the plaintiff professor
the University's decision to tenure another professor who had higher ratings than t
plaintiff in two categories -- teaching effectiveness and general usefulness. See
178. We reasoned that to preclude such a comparison "would change 'similarly situa
'identically situated.'" Id. Although "[t]he propriety of such a comparison is cas
specific," there is a "broad sweep of relevancy." Id. Admittedly, the district cou
and should impose limits on discovery that is calculated to lead to the unearthing
marginally relevant evidence. Nonetheless, the limits imposed here were too severe
The Board indicated in its opinion that it viewed charges 1(a), 1(d) and
the most serious charges against San Filippo, meriting his dismissal even if the ot
charges were not sustained. San Filippo accordingly should be permitted to discove
whether the University knew of other employees who committed one or more offenses o
comparable or greater seriousness yet did not discipline these employees, or impose
sanctions far less severe than dismissal. Although the district court's suggestion
San Filippo was disciplined because of a combination of misdeeds rather than for an
single misdeed is plausible, this type of evaluation is one that should generally b
to the fact-finder. Because the information San Filippo sought in discovery was of
sort that might prevent the entry of summary judgment and was under the control of
Rutgers, we conclude that it was an abuse of discretion to deny San Filippo's Rule
17
motion. Accordingly, we will vacate the district court's grant of summary judgment
Filippo's first amendment claim and remand for further discovery.0
Even without further discovery, there is sufficient evidence in the recor
which a fact-finder could conclude that, in the absence of his protected activities
Filippo would not have been dismissed based on the conduct described in the charges
against him. First, Dean Edelstein was interviewed by the local New Brunswick news
The Home News, shortly after San Filippo was dismissed. The paper reported: "'If
Filippo] had behaved better earlier in terms of his relations with his colleagues,'
Tilden Edelstein, Dean of the Faculty of Arts and Sciences, San Filippo might have
treated differently. . . . 'But San Filippo persisted in being "Joe the Warrior,"'
Edelstein said." (A.606). A fact-finder could reasonably infer that the "war" to w
Dean Edelstein referred encompassed the protected complaints San Filippo had made o
years. In addition, Walter Wechsler, the member of the Board of Governors who diss
from the decision to dismiss San Filippo, stated that "the punishment is clearly ou
proportion to his alleged wrongdoing, and quite possibly tainted by a long history
animus." (A.322).
San Filippo also has presented evidence that other faculty members had co
infractions of comparable seriousness yet had not been punished. For example, Prof
Richard Hartwick of the chemistry department testified before the Senate Panel that
had two students pitch hay for him on his farm. Another professor, George Muha, te
that, as a student, he had helped his faculty advisor move from one place to anothe
Professor Muha also testified that he had some of his own students work with him in
photography lab, and that foreign students he had invited to his house at Thanksgiv
0
With respect to the second part of the Contractors Assoc. test -- why the informat
not previously obtained --Rutgers argues that the May 19, 1989 Stipulation preclude
further discovery. This argument is unpersuasive. We agree with the district cour
conclusion that the Stipulation did not necessarily foreclose additional discovery.
18
domestic chores including yard work for him. Based on this evidence, a fact-finder
reasonably find that San Filippo would not have been dismissed in the absence of hi
protected activities. Accordingly, even if the denial of the Rule 56(f) motion wer
erroneous, we would vacate the grant of summary judgment.
In light of our decision to vacate the district court's grant of summary
judgment on San Filippo's first amendment claim, we need to address certain other i
that are relevant to the course of proceedings on remand.
A. Protected activity
As explained above, one who alleges retaliatory discharge from government
employment must establish that the conduct which triggered the discharge was protec
under the first amendment. Where the alleged retaliation is based on expressive co
constituting speech, a court must first determine whether or not the speech can be
characterized as addressing a "matter of public concern," for a governmental employ
makes public complaints about problems not of "public concern" has no first amendme
immunity against employer discipline. Connick v. Myers, 461 U.S. 138, 147 (1983).0
San Filippo's expressive conduct was not limited to speech. It included the filing
of lawsuits, and also of grievances under a collective bargaining agreement, agains
0
A public employer is not precluded altogether from dismissing an employer for spee
addressing a matter of public concern. Rather, a public employer may dismiss an em
for speech addressing a matter of public concern if the state's interest, as an emp
in promoting the efficiency of its operations outweighs the employee's interest, as
citizen, in commenting upon matters of public concern. Connick, 461 U.S. at 142.
balancing test comes into play only if the public employer concedes that it dismiss
employee because of the employee's protected speech but contends that it was justif
doing so. Rutgers denies that it dismissed San Filippo for his protected activitie
accordingly, the balancing test has no application in the case at bar.
The court decides, as a matter of law, whether the speech at issue addres
matter of public concern and whether the state's interest in efficiency outweighed
employee's interest in commenting on matters of public concern. See Holder v. City
Allentown, 987 F.2d 188, 195 n.2 (3d Cir. 1993).
19
University and University officials -- activities that implicate the petition claus
rather than the free speech clause, of the first amendment.0
The magistrate judge concluded that San Filippo's activities implicating
petition clause were protected by the first amendment regardless of whether the "pe
at issue addressed a matter of public concern. The district court disagreed, and h
that, to qualify for first amendment protection, San Filippo's "petition" activitie
meet the Connick "public concern" threshold. Although the district court concluded
some of San Filippo's speech addressed matters of public concern,0 the court conclu
that his lawsuits and grievances did not meet that threshold.
On appeal, San Filippo and the Rutgers AAUP recognize that the right to
petition, like freedom of speech, is not absolute. They argue that San Filippo's l
and grievances were protected first amendment activities, regardless of content, un
they were baseless. Rutgers contends that the district court correctly held that S
Filippo's lawsuits and grievances were protected under the petition clause only if
addressed matters of public concern.0
0
The first amendment states in relevant part:
Congress shall make no law . . . abridging the freedom of speech, or of t
press, or of the right of the people peaceably to assemble, and to petiti
Government for a redress of grievances.
United States Constitution, Amend. 1.
0
The district court concluded that the following items of speech addressed matters
public concern: (1) San Filippo's 1979 statement in a school newspaper criticizing
Rutgers for inadequate ventilation in the chemistry labs; (2) San Filippo's testimo
1977 and 1978, before a grand jury, regarding an investigation into the manufacture
illegal drugs in Rutgers' laboratories; (3) San Filippo's criticisms, in 1983-84, o
faculty peers' attempt to secure funding for a mass spectrometer by deceiving feder
funding agencies; and (4) San Filippo's disputes between 1979 and 1986 with senior
of his department over their efforts to obtain "inappropriate percentages" of his f
grants.
0
The district court's conclusion that San Filippo engaged in some protected activit
not make this dispute academic. San Filippo wants, (a) the fact-finder to be instr
that dismissal in retaliation for any or all of his lawsuits and grievances constit
first amendment violation, and (b) to argue to the fact-finder that the close proxi
20
In Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064 (3d Cir. 1990), we
expressly declined to reach the question whether a public employee is protected und
petition clause against retaliation for having filed a petition addressing solely a
of private concern. See id. at 1076. We now will address that question.
Although the Supreme Court has not discussed the scope of the constitutio
right to petition in the context of an allegedly retaliatory discharge of a public
employee, the Court has had occasion to consider the scope of that right in other
contexts.
In Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U
(1961), the Court addressed the question whether a publicity campaign by railroads
intended to encourage legislation and law enforcement practices disadvantageous to
trucking industry violated the Sherman Act. First, the Court took note of the esta
principle that, if a restraint of trade is caused by otherwise valid governmental a
there is no Sherman Act violation. See id. at 135-36. Then, the Court went on to
that the Sherman Act does not prohibit two or more persons from working together in
attempt to persuade the government to take a particular action that would restrain
See id. at 136. The Court based its decision upon two grounds. First, the Court r
that nothing in the legislative history of the Sherman Act indicated an intent to r
political activity by narrowing the channels through which citizens communicate wit
governing officials. See id. at 137. The Court then added:
Secondly, and of at least equal significance, such a construction of the
Act would raise important constitutional questions. The right of petitio
one of the freedoms protected by the Bill of Rights, and we cannot, of co
lightly impute to Congress an intent to invade these freedoms.
time between his 1985 lawsuits and the decision to file formal charges against him
supports an inference of retaliation.
21
Id. at 138. Moreover, the Court rejected the contention that there was a Sherman A
violation because the railroads' purpose was to destroy the truckers as competitors
There may be situations in which a publicity campaign, ostensibly directe
toward influencing governmental action, is a mere sham to cover what is a
nothing more than an attempt to interfere directly with the business
relationships of a competitor and the application of the Sherman Act woul
justified. But this is certainly not the case here. No one denied that
railroads were making a genuine effort to influence legislation and law
enforcement practices.
Id. at 144. Accord, United Mine Workers v. Pennington, 381 U.S. 657, 670 (1965).0
In California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (19
the Court developed the "mere sham" exception to petition clause protection suggest
the Noerr dictum. Competitors of highway carriers regularly brought administrative
judicial proceedings to challenge the carriers' applications for operating rights.
highway carriers filed a complaint alleging that their competitors conspired to mon
trade by instituting actions before administrative agencies and courts to defeat th
carriers' applications to acquire operating rights. See id. at 509. The complaint
further alleged that the competitors instituted the proceedings to oppose the carri
applications without regard to the merits of the cases, in an effort to prevent the
carriers from having meaningful access to the agencies and courts. See id. at 511.
Supreme Court held that the district court improperly dismissed the complaint for f
to state a claim under the antitrust laws. The Court first reiterated the holding
Noerr that "no cause of action [is] alleged insofar as it [is] predicated upon mere
attempts to influence the Legislative Branch for the passage of laws or the Executi
Branch for their enforcement." Id. at 510. The Court further stated:
0
In Pennington, coal operators and a labor union had approached the Secretary of La
the Tennessee Valley Association regarding the minimum wage for contractors selling
to the TVA. The Court reaffirmed the holding of Noerr that "[j]oint efforts to inf
public officials do not violate the antitrust laws even though intended to eliminat
competition." 381 U.S. at 670.
22
The same philosophy governs the approach of citizens or groups of them to
administrative agencies (which are both creatures of the legislature, and
of the executive) and to courts, the third branch of Government. The rig
access to the courts is indeed but one aspect of the right of petition.
We conclude that it would be destructive of rights of association an
petition to hold that groups with common interests may not, without viola
the antitrust laws, use the channels and procedures of state and federal
agencies and courts to advocate their causes and points of view respectin
resolution of their business and economic interests vis-a-vis their compe
Id. at 510-11 (citations omitted). Nonetheless, the Court held that the conduct de
in the carriers' complaint fell within the "sham" litigation exception described in
and thus stated a claim under the antitrust laws.
The unprotected status of "sham litigation" was again recognized in Bill
Johnson's Restaurants Inc. v. NLRB, 461 U.S. 731 (1983), in which the Court announc
"baseless litigation is not immunized by the First Amendment right to petition." I
743. In Bill Johnson's Restaurants, a waitress who was fired filed an unfair labor
practice charge. She and other waitresses also picketed the restaurant, which in tu
filed a complaint in state court seeking both damages and an injunction against the
picketing. The waitress then filed a second charge with the Board, alleging that t
restaurant had filed the state action in retaliation for her exercise of rights und
National Labor Relations Act and seeking to have the restaurant's state action enjo
The Board issued a cease-and-desist order to halt the allegedly retaliatory state c
lawsuit, and the Ninth Circuit affirmed.
The issue before the Supreme Court was whether, under section 8 of the NL
Board may issue a cease-and-desist order to halt a state court suit solely upon a s
that the suit was filed for a retaliatory purpose, or whether the suit must also la
merit. The Court recognized that the Board's position -- that the suit need only b
for a retaliatory purpose -- found support in the broad remedial provisions of the
However, the Court concluded:
23
There are weighty countervailing considerations . . . that militate again
allowing the Board to condemn the filing of a suit as an unfair labor pra
and to enjoin its prosecution. In California Motor Transport, we recogni
that the right of access to the courts is an aspect of the First Amendmen
to petition the Government for redress of grievances. Accordingly, we co
the antitrust laws as not prohibiting the filing of a lawsuit, regardless
plaintiff's anticompetitive intent or purpose in doing so, unless the sui
"mere sham" filed for harassment purposes. We should be sensitive to the
First Amendment values in construing the NLRA in the present context.
Id. at 741 (citations omitted). The Court held that suits lacking a reasonable bas
not fall within the scope of first amendment protection. The Court explained:
The first amendment interests involved in private litigation -- compensat
violated rights and interests, the psychological benefits of vindication,
airing of disputed facts -- are not advanced when the litigation is based
intentional falsehoods or on knowingly frivolous claims. Furthermore, si
sham litigation by definition does not involve a bona fide grievance, it
not come within the first amendment right to petition.
Id. at 743 (internal quotation omitted). Accordingly, the Court concluded that it
enjoinable labor practice under §8 of the NLRA to file a baseless lawsuit with the
of retaliating against an employee for the exercise of rights protected by the NLRA
id.0
In both Smith v. Arkansas State Highway Employees, 441 U.S. 463 (1979) (p
curiam) and Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 284 (198
Court held that the petition clause does not require the government to respond to e
communication that the communicator may denominate a petition. In Smith, the Arkan
State Highway Commission refused to consider grievances filed by a union on behalf
employees, and would respond only to grievances filed by individual employees thems
0
Following Bill Johnson's Restaurants in Hoeber on behalf of the NLRB v. Local 30,
F.2d 118 (3d Cir. 1991), this court held that the district court properly denied th
NLRB's request that the court enjoin a pending lawsuit brought by a labor union for
of contract. We explained that two factors must be present before an injunction ag
civil lawsuit may issue: the plaintiff must have an improper motive for bringing th
and the suit must have no reasonable basis. See Hoeber, 939 F.2d at 126.
24
In Knight, a state statute required public employers to respond to union representa
but not to individual employees. In both cases, the Court held that there was no p
clause violation. The Knight Court, which described the challenged conduct as the
converse of conduct challenged in Smith, rejected the employees' claim that "they h
right to force officers of the State acting in an official policy-making capacity t
listen to them in a particular formal setting." Knight, 465 U.S. at 282.
Most recently, in McDonald v. Smith, 472 U.S. 479 (1985), the Court addre
the question whether the petition clause provides absolute immunity to a defendant
with defaming the plaintiff in a letter about the plaintiff written to the Presiden
the United States. Smith, an unsuccessful aspirant for appointment as United State
Attorney, brought a libel suit against McDonald, alleging that McDonald had written
letters to Ronald Reagan -- the first when Mr. Reagan was President-elect, the seco
month after his inauguration --accusing Smith of, among other things, fraud, extort
and civil rights violations. The Court held that the petition clause does not prov
absolute immunity in that context; rather, a petitioner whose communications are
defamatory may be answerable in libel if he is shown to have acted with malice, as
in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). In reaching this conclusio
Court observed:
The right to petition is cut from the same cloth as the other guarantees
First] Amendment, and is an assurance of a particular freedom of expressi
. .
To accept petitioner's claim of absolute immunity would elevate the Petit
Clause to special First Amendment status. The Petition Clause, however,
inspired by the same ideals of liberty and democracy that gave us the fre
to speak, publish, and assemble. These First Amendment rights are insepa
and there is no sound basis for granting greater constitutional protectio
statements made in a petition to the President than other First Amendment
expressions.
McDonald, 472 U.S. at 482, 485 (citations omitted).
25
As the arguments advanced in the briefs in the case at bar make clear, th
Supreme Court cases we have just canvassed, while long on nuance, do not yield an e
identified single common denominator.
San Filippo and the Rutgers AAUP would have us regard San Filippo's petit
activities protected under the first amendment unless those petitions were "mere sh
"baseless litigation." They stress that none of the very narrow limitations the Su
Court has placed on the right to petition involves an examination of the content of
petition. They also argue that the petitions at issue in Noerr and Pennington did
address matters of public concern, and therefore those cases implicitly rejected th
proposition that petitioning is protected under the first amendment only if the pet
addresses a matter of public concern. The Rutgers AAUP contends that "there is eve
reason that the lines drawn around the right to petition in public employment be th
as those drawn for selfish petitioners everywhere." That is, the Rutgers AAUP woul
us define the contours of the right to petition without consideration of the contex
which that right is exercised.
In contrast, Rutgers argues -- we think persuasively --that "[t]he nature
limitation upon the petition right depends upon context." Rutgers contends that th
Supreme Court cases analyzing the extent of the petition right in the antitrust, la
and libel contexts are not necessarily instructive in the case at bar, which concer
ability of a government employer to dismiss an employee for filing lawsuits and gri
against the employer. This argument that the scope of the petition right depends u
context in which the right is exercised is particularly persuasive because the scop
the free speech right -- a right that, like the petition right, is stated in unqual
terms in the first amendment --depends on the context in which that right is exerci
0
San Filippo and the Rutgers AAUP rely upon cases from contexts other than public
employment/retaliatory discharge in support of the argument that a lawsuit is prote
regardless of content -- unless it is baseless. Most significantly, San Filippo co
that our decision in Hoeber on behalf of the NLRB v. Local 30, 939 F.2d 118 (3d Cir
26
That the scope of the right to petition depends upon context does not, ho
mandate the further conclusion that the "public concern" threshold of Connick shoul
the right to petition in the context of a government employer's ability to discipli
public employee. The general question posed by the case at bar is whether --
notwithstanding the dicta from McDonald quoted above -- there are contexts in which
petition clause protects values additional to those protected by the speech clause.
McDonald is a case in which the petition clause protects no value that is
protected by the speech clause. The petition at issue in McDonald was a letter to t
President. Smith and Knight instruct that not every communication which the writer
denominates a "petition" imposes on the government agency or official addressed an
obligation to respond. See Knight, 465 U.S. at 285; Smith, 441 U.S. at 465. Accor
it is difficult to distinguish in any meaningful way between words contained in a l
to the President and words contained in, for example, an advertisement appearing in
New York Times.
This difficulty presumably was the underpinning of the McDonald Court's holding tha
McDonald's words about a public figure should not be immunized simply because they
appeared in a letter characterized as a "petition." Moreover, the reasons for hold
forecloses Rutgers' position. As explained in note 16, supra, in Hoeber we held,
following Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731 (1983), that a cou
not enjoin a pending lawsuit as an unfair labor practice unless the plaintiff had a
improper motive for bringing the suit and the suit had no reasonable basis. See Ho
939 F.2d at 126. San Filippo argues that, because the breach of contract lawsuit a
in Hoeber appeared to address only matters of private concern, the case supports hi
argument that his lawsuits and grievances addressing only matters of private concer
protected under the petition clause. We disagree. Because this case does not aris
the public employment/retaliatory discharge context, it is not on point.
Many other cases cited by San Filippo and the AAUP are similarly inapposi
because they arise in other contexts. See, e.g., Milhouse v. Carlson, 652 F.2d 371(3d Cir. 1981) (disciplinary proceedings allegedly brought against a prisoner in
retaliation for having filed a civil rights lawsuit); Goff v. Burton, 7 F.3d 734, 7
Cir. 1993) (same); Smith v. Maschner, 899 F.2d 940 (10th Cir. 1990) (same); Wright
Newsome, 795 F.2d 964 (11th Cir. 1986) (same); Duvall v. Sharp, 905 F.2d 1188 (8th
1990) (arrest allegedly made in retaliation for filing a civil rights lawsuit).
27
that the first amendment does not immunize maliciously defamatory falsehoods contai
a newspaper advertisement equally justify holding that the first amendment does not
immunize maliciously defamatory falsehoods contained in a letter to the President.
is no value in a petition that seeks to influence the President by means of false
statements. As in the context of speech, the additional requirement that malice be
before liability may be imposed avoids overdeterrence.
The same difficulty in drawing a meaningful distinction between the speec
in the petition at issue in Schalk v. Gallemore, 906 F.2d 491 (10th Cir. 1990) (per
curiam) and other employee speech underlies the holding of that case. Schalk, a ho
employee, had hand-delivered to the hospital board members a four-page letter descr
her concerns about various management practices at the hospital. Schalk was formal
reprimanded for complaining about matters unrelated to her area of responsibility.
reprimand indicated that Schalk would be discharged if she made further complaints
nature. After Schalk told a board member that she wanted to meet with the board to
discuss concerns akin to those described in her letter, she was terminated. Schalk
filed a lawsuit alleging that she was fired for writing a letter to, and later spea
with, board members about management practices, in violation of her first amendment
and petition rights.
The Tenth Circuit first held that Schalk's letter and her comments to the
member addressed a matter of public concern. Id. at 496. In a brief analysis of S
petition clause claim, the court stated: "In the instant case, Schalk's right to p
is inseparable from her right to speak. As such, we see no reason to subject this
to a different sort of analysis." Id. at 498 (citing McDonald). As in McDonald, b
the "petition" at issue was simply a letter imposing on the government no obligatio
respond, it was properly analyzable under the conventional Connick rubric applicabl
speech.
28
The case at bar is unlike Schalk in the sense that what San Filippo
characterizes as "petitions" are not letters to the government-employer, but lawsui
grievances directed at the government-employer or its officials. Submissions of th
purport to invoke formal mechanisms for the redress of grievances.0 Notwithstandin
distinction, each circuit court to consider the issue has held that a public employ
alleges that he or she was disciplined in retaliation for having filed a lawsuit ag
his or her employer does not state a claim under §1983 unless the lawsuit addressed
matter of public concern.0 Recognizing that the question is a difficult one, we fi
ourselves unable to subscribe to the reasoning of our sister circuits.
Of these circuits, the Seventh Circuit has addressed the issue in the mos
detail. In Altman v. Hurst, 734 F.2d 1240 (7th Cir. 1984) (per curiam), decided be
McDonald, the Seventh Circuit held that a police officer who alleged that he was
reassigned, denied overtime opportunities and otherwise harassed in retaliation for
a lawsuit against his employer addressing matters of private concern did not state
under §1983. The court explained:
Several Supreme Court cases indicate that the first amendment protects a
person's right to seek judicial redress of grievances. See NAACP v. Butt
U.S. 415, 429. A close reading of these cases clearly shows that the Cou
0
Lawsuits, grievances, workers compensation claims, etc. share this feature of invo
formal mechanism for redress of grievances against the government. We occasionally
the term "lawsuit" to encompass any device invoking a mechanism for redress of grie
against the government.
0
See White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir. 1993); Da
South Park Independent Sch. Dist., 768 F.2d 696, 703 (5th Cir. 1985), cert. denied,
U.S. 1101 (1986); Rathjen v. Litchfield, 878 F.2d 836, 842 (5th Cir. 1989);
Rice v. Ohio Dep't of Transportation, 887 F.2d 716, 720-21 (6th Cir. 1989), vacated
other grounds, 497 U.S. 1001 (1990); Altman v. Hurst, 734 F.2d 1240, 1244 n.10 (7th
1984) (per curiam); Belk v. Town of Minocqua, 858 F.2d 1258, 1261-62 (7th Cir. 1988
Gearhart v. Thorne, 768 F.2d 1072, 1073 (9th Cir. 1985) (per curiam); Renfroe v.
Kirkpatrick, 722 F.2d 714, 715 (11th Cir.) (per curiam), cert. denied, 469 U.S. 823(1984). Cf. Boyle v. Burke, 925 F.2d 497, 505-06 (1st Cir. 1991) (dicta). But see
Fuchilla v. Prockop, 682 F. Supp. 247, 262 (D.N.J. 1987), (reading California Motor
Transport to support the holding that a public employee may not be retaliated again
filing a lawsuit regardless of whether the lawsuit addressed a matter of public con
29
concerned about political expression and not the general right to bring s
a federal court of law. See, e.g., Button, 371 U.S. at 429. ("In the con
NAACP objectives, litigation is not a technique of resolving private
differences; it is a means of achieving the lawful objectives of equality
treatment by all government, federal, state and local, for the members of
Negro community in this county. It is thus a form of political expression
This formulation dovetails with the Connick rule that limits the first am
protection given public employees to pronouncements on public issues. Th
private office dispute cannot be constitutionalized merely by filing a le
action.
Id. at 1244 n.10 (some citations omitted).0 That is, the Seventh Circuit explicitl
rejected the proposition that the petition clause protects access to the courts for
reason other than that the courts may serve as fora for expression. In Belk v. Tow
Minocqua, 858 F.2d 1258, 1261-62 (7th Cir. 1988), the Seventh Circuit relied on McD
as further support for its holding that a public employee may be terminated in reta
0
The Seventh Circuit reiterated this sentiment in Yatvin v. Madison Metropolitan Sc
Dist., 840 F.2d 412 (7th Cir. 1988):
The contention that every act of retaliation against a person who files c
of wrongdoing with a public agency denies freedom of speech or the right
petition for redress of grievances rests on the following syllogism: lit
is a method recognized by the Supreme Court, as in NAACP v. Button, 371 U
415, 429-31 (1963), for advancing ideas and seeking redress of grievances
retaliation against one who institutes litigation (or its condition prece
Title VII litigation, the lodging of charges with civil rights agencies)
discourages litigation; therefore such retaliation invades a First Amendm
right. The weakness is the first premise, which is stated too broadly.
litigation seeks to advance political or other ideas; litigation by the N
seeking to eliminate public school segregation is an example. And even w
litigation has private rather than public objectives, communications desi
acquaint individuals with their legal rights are within the scope of the
Amendment. But not every legal gesture -- not every legal pleading -- is
protected by the First Amendment. Remedies against baseless litigation d
violate the First Amendment's right to petition; nor do laws aimed at det
'far out' suits by requiring the loser to pay the winner's legal fees.
Id. at 419 (citations omitted). Because the court concluded that Yatvin's sex
discrimination claim against her employer had purely private objectives, the court
rejected Yatvin's claim that her employer's retaliation violated the petition claus
at 419-20. This conclusion may, however, be regarded as dictum because the court a
held that Yatvin's first amendment claim was foreclosed by her failure to raise the
below with sufficient particularity. See id. at 420.
30
for filing a grievance unless the grievance addressed a matter of public concern.
Belk court stated:
Notwithstanding the central importance Connick attaches to the content of
public employee's speech, Belk asks us to accord absolute first amendment
protection, without regard to content, to any grievance a public employee
or threatens to file. Not only is there no legal or historical precedent
such a stratification of first amendment freedoms, as McDonald suggests,
such special treatment of the right to petition would unjustly favor thos
through foresight or mere fortuity present their speech as a grievance ra
than in some other form.
Id. at 1262 (emphasis in original). Again, affording special treatment to speech f
a grievance is "unjust" only if no independent reason exists for affording special
protection to a mechanism for redress of grievances against the government.
There is an additional argument for testing a public employee's lawsuits
his or her employer by the Connick public concern threshold not made in the Seventh
Circuit cases: namely, that the governmental interests which led the Court to impos
public concern threshold on employee speech would appear to justify imposing a simi
threshold on employee lawsuits and grievances. Under Connick, employers are able t
discipline their employees for speech unless the speech addresses a matter of publi
concern. The rationale for this distinction is that it represents an effort to see
balance between the interests of the [employee], as a citizen, in commenting upon m
of public concern and the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its employees." Connick, 461
at 142. The Supreme Court recently elaborated on the basis for authorizing the gov
as employer to exercise broader power in regulating the speech of its employees tha
government as sovereign may exercise in regulating the speech of the general public
[T]he extra power the government has in this area comes from the nat
the government's mission as employer. Government agencies are charged by
with doing particular tasks. Agencies hire employees to help do those ta
effectively and efficiently as possible. When someone who is paid a sala
31
that she will contribute to an agency's effective operation begins to say
things that detract from the agency's effective operation, the government
employer must have some power to restrain her. The reason the government
in the example given above, fire the [high-ranking] deputy [who criticize
state governor's legislative program] is not that this dismissal would so
be narrowly tailored to a compelling government interest. It is that the
governor and the governor's staff have a job to do, and the governor just
feels that a quieter subordinate would allow them to do this job more
efficiently.
The key to First Amendment analysis of government employment decisio
then, is this: The government's interest in achieving its goals as effec
and efficiently as possible is elevated from a relatively subordinate int
when it acts as sovereign to a relatively significant one when it acts as
employer. The government cannot restrict speech of the public at large ju
the name of efficiency. But where the government is employing someone fo
very purpose of effectively achieving its goals, such restrictions may we
appropriate.
Waters v. Churchill, 62 U.S.L.W. 4397, 4401 (May 31, 1994).
We recognize that employee lawsuits and grievances against a public emplo
can, on occasion, be divisive in much the same way that employee speech can be.
Nonetheless, we believe that there is an independent reason -- a reason of constitu
dimension -- to protect an employee lawsuit or grievance if it is of the sort that
constitutes a "petition" within the meaning of the first amendment.
The first amendment's petition clause imposes on the United States an obl
to have at least some channel open for those who seek redress for perceived grievan
Through its incorporation of the first amendment, the fourteenth amendment's guaran
"liberty" imposes the same obligation on the states. Smith and Knight stand only fo
proposition that neither the United States nor the several states are required to
recognize as a "petition" whatever particular communication is so characterized by
chooses to protest governmental acts or omissions. But when government -- federal
state -- formally adopts a mechanism for redress of those grievances for which gove
is allegedly accountable, it would seem to undermine the Constitution's vital purpo
hold that one who in good faith files an arguably meritorious "petition" invoking t
32
mechanism may be disciplined for such invocation by the very government that in com
with the petition clause has given the particular mechanism its constitutional impr
We do not share the Seventh Circuit's apprehension that not applying the Connick "p
concern" standard to retaliatory dismissal of a public employee who files a "petiti
would constitute "special treatment of the right to petition [that] would unjustly
those who through foresight or mere fortuity present their speech as a grievance ra
than in some other form." Balk, 858 F.2d at 1262. As applied to communications th
not petitions, the Connick rule means that a public employee who goes public -- e.g
writing to The New York Times -- with an employment dispute that is not of "public
concern" runs the risk of being disciplined by her public employer for undertaking
public attention to a private dispute. But when one files a "petition" one is not
appealing over government's head to the general citizenry: when one files a "petit
one is addressing government and asking government to fix what, allegedly, governme
broken or has failed in its duty to repair.0
0
Like the Seventh Circuit in Belk, our dissenting colleague draws comfort from the
Court's observation in McDonald that the first amendment right to petition and the
amendment "freedoms to speak, publish and assemble . . . are inseparable" and hence
is no sound basis for granting greater constitutional protection to statements made
petition to the President than other First Amendment expressions." 472 U.S. at 485
it is important to note that the Court's language in McDonald was addressed to a qu
very different from the question presented in Belk and the case at bar. In McDonal
question was whether one who was defamed in a letter was disabled from suing the le
writer by virtue of the fact that the letter was written to the President and thus
be characterized as a "petition" within the meaning of the first amendment. In hol
that the letter-writer was amenable to suit at the hands of the person defamed, und
same state law standards, compatible with New York Times v. Sullivan, 376 U.S. 254that would have applied had the letter been written to a newspaper, the Court was n
called upon the consider the question presented in the case at bar -- namely, wheth
addressee of a "petition" (in McDonald, the President) could sanction the letter-wr
for pursuing a constitutionally charted pathway of communication with government.
It is also worthy of note that the letter-writer in McDonald apparently did not
the audience for his defamatory efforts to President Reagan. The letter-writer all
also saw fit to send copies of one or both of the letters to Senator Jesse Helms, t
members of the House of Representatives, and the then Director of the Federal Burea
Investigation, William Webster, as well as then Presidential Adviser Edwin Meese.
U.S. at 481.
33
One example of formal governmental adoption of a mechanism for redress of
grievances is entry into a collective bargaining agreement that provides for a grie
procedure. Another example of formal government adoption of such a mechanism is wai
sovereign immunity from suit in the courts of that sovereign. If government could,
employer, freely discharge an employee for the reason that the employee, in order t
present a non-sham claim against the government-employer, invoked such a mechanism,
petition clause of the first amendment would, for public employees seeking to vindi
their employee interests, be a trap for the unwary -- and a dead letter.
The petition clause of the first amendment was not intended to be a dead
-- or a graceful but redundant appendage of the clauses guaranteeing freedom of spe
press. To be sure, "the right to petition," as the Court noted in McDonald, "is cu
the same cloth as the other guarantees of that Amendment. . . ." 472 U.S. at 482.
the Court in McDonald also stressed that the right to petition "is an assurance of
particular freedom of expression." Ibid. More to the point, the right to petition
pedigree independent of --and substantially more ancient -- than the freedoms of sp
and press. The Court pointed out in McDonald that "[T]he historical roots of the P
Clause long antedate the Constitution. In 1689, the Bill of Rights exacted of Will
Mary stated: '[I]t is the Right of the Subjects to petition the King.' 1 Wm. & Mar
0
Sess. 2, ch. 2." Ibid. But of particular moment for the issue before us is that
0
The remote antecedents of the right of petition trace back to Magna Carta, chapte
which provides:
. . . if we or our justiciar, or our bailiffs, or any of our servants
shall have done wrong in any way toward any one, or shall have
transgressed any of the articles of peace or security; and the wrong
shall have been shown to four barons of the aforesaid twenty-five
barons, let those four barons come to us or to our justiciar, if we
are out of the kingdom, laying before us the transgression, and let
them ask that we cause that transgression to be corrected without
delay.
34
Parliament, in the Bill of Rights, not only declared the right of subjects "to peti
the King," but went on to provide that "all committments [sic] and prosecutions for
petitioning are illegal." 1 W. & M., 2d Sess., c. 2, § 5, 16 Dec. 1689. The right
petition and its attendant, and indispensable, immunity from "committments and
prosecutions"0 were, in the Court's felicitous phrase, "exacted of William and Mary
McDonald, 472 U.S. at 482, in 1689. That was precisely one hundred years before the
But of course the right lukewarmly acknowledged by King John was exercisable only b
barons.
0
The critical importance of Parliament's declaration that it was "illegal" to penal
subject "for such petitioning" was made plain by Blackstone in his celebrated
Commentaries, the series of law books best known to American lawyers of the late
eighteenth and early nineteenth centuries:
If there should happen any uncommon injury, or infringement of the
rights before mentioned, which the ordinary course of law is too
defective to reach, there still remains a fourth subordinate right,
appertaining to every individual, namely, the right of petitioning the
king, or either house of parliament, for the redress of grievances.
In Russia we are told that the czar Peter established a law, that no
subject might petition the throne till he had first petitioned two
different ministers of state. In case he obtained justice from
neither, he might then present a third petition to the prince; but
upon pain of death, if found to be in the wrong: the consequence of
which was, that no one dared to offer such third petition; and
grievances seldom falling under the notice of the sovereign, he had
little opportunity to redress them. The restrictions, for some there
are, which are laid upon petitioning in England, are of a nature
extremely different; and, while they promote the spirit of peace, they
are no check upon that of liberty. Care only must be taken, lest,
under the pretence of petitioning, the subject be guilty of any riot
or tumult, as happened in the opening of the memorable parliament in
1640: and, to prevent this, it is provided by the statute 13 Car. II.
st. I, C. 5, that no petition to the king, or either house of
parliament, for any alteration in church or state, shall be signed by
above twenty persons, unless the matter thereof be approved by three
justices of the peace, or the major part of the grand jury in the
country; and in London by the lord mayor, aldermen, and common
council: nor shall any petition be presented by more than ten persons
at a time. But, under these regulations, it is declared by the
statute I W. and M. st. 2, c. 2, that the subject hath a right to
petition; and that all commitments and prosecutions for such
petitioning are illegal.
1 William Blackstone, Commentaries *143.
35
Congress charged with implementing America's new Constitution submitted to the stat
ratification, proposed amendments to that Constitution permanently establishing in
American law the right of petition and other fundamental rights. There is no persu
reason for the right of petition to mean less today than it was intended to mean in
England three centuries ago.
On remand, the district court should consider which, if any, of San Filip
grievances and lawsuits constituted a "petition," and whether any such "petition" w
sham. The mere act of filing a non-sham petition is not a constitutionally permiss
ground for discharge of a public employee.
B. Substantial factor
Our decision to vacate the grant of summary judgment on San Filippo's fir
amendment claim also requires us to consider Rutgers' argument that, contrary to th
district court's conclusion, it was entitled to summary judgment because San Filipp
cannot show that his protected conduct "was a substantial factor in the alleged
retaliatory action." Czurlanis v. Albanese, 721 F.2d 98, 103 (3d Cir. 1983).
The district court explained that courts have drawn an inference of retal
based on the nearness in time between the protected activity and a discharge. Alth
the district court believed that no fact-finder could reasonably infer that San Fil
protected activities in 1977-1979 and 1983-84 were a substantial factor motivating
dismissal, the court concluded that San Filippo was brought up on charges and dismi
36
sufficiently soon after he made protected statements in or around 19860 to raise an
inference of retaliation.0
At the outset, we disagree with the district court's view that San Filipp
protected activities in 1977-79 and 1983-84 were too far removed in time to support
inference of retaliation. Although a dismissal that occurs years after protected a
might not ordinarily support an inference of retaliation, where, as here, a plainti
engages in subsequent protected activity and the plaintiff is dismissed shortly aft
final episode of such protected activity, a fact-finder may reasonably infer that i
the aggregate of the protected activities that led to retaliatory dismissal. This
inference would be particularly strong if the plaintiff can show that the decisionm
lacked a pretext on which to dismiss the plaintiff until shortly before the time of
dismissal.
Rutgers argues that the temporal proximity between San Filippo's protecte
activities and the disciplinary proceedings against him cannot, by itself, support
inference that the protected activity was a substantial factor in the alleged retal
action. We need not address this argument, however, because San Filippo has additi
evidence to support his allegation that he was dismissed in retaliation for his pro
activity. The evidence described above as support for San Filippo's position that
would not have been dismissed absent his protected activities -- the statements of
Edelstein and Board of Governors member Wechsler and the evidence that other facult
members committed infractions of comparable seriousness yet went unpunished -- equa
support his position that his protected conduct was a substantial factor motivating
0
The court presumably was referring to San Filippo's disputes with senior members o
department over their efforts to obtain "inappropriate percentages" of his federal
and particularly his complaint to the University in October, 1985 about the chemist
department's attempts to divert funds improperly from his federal grants under the
of a "shop-user's fee." See page 5, supra. San Filippo was orally informed of the
charges against him in November, 1985.
0
The activities found by the district court to address matters of public concern ar
described briefly at note 13, supra.
37
dismissal. On the basis of this evidence, we conclude that a fact-finder could rea
find that San Filippo's protected conduct was a substantial factor motivating his
dismissal.
Rutgers next argues that San Filippo is inappropriately
seeking to impute to the members of the Board of Governors the improper motives of
responsible for bringing charges against him. Rutgers contends that, under Monell
Department of Social Services, 436 U.S. 658 (1978) and St. Louis v. Praprotnik, 485
112, 123 (1988), the University can only be held liable if the Board members person
determined to dismiss San Filippo on the basis of his first amendment activities or
knowingly acquiesced in the decision to do so by approving both the decision and th
allegedly improper basis for it. But this, according to San Filippo, is too narrow
standard of liability: in San Filippo's view, the University should be held liable
fact-finder concludes that (a) the charges against San Filippo were initiated in
retaliation for the exercise of his first amendment rights and (b) the Board member
"deliberately indifferent" to that fact.
In Monell, the Supreme Court held that, although municipalities and other
governing bodies can be sued under 42 U.S.C. §1983, liability cannot be imposed on
entity on a theory of vicarious liability for the torts of the entity's employees.
Rather, a local governing body can be held liable only for an official policy or cu
See Monell, 436 U.S. at 694. A single decision by a final policy-maker, as defined
state law, may constitute official policy. See Pembaur v. City of Cincinnati, 475
469, 480-81 (1986). Rutgers argues that the Board of Governors is the only final p
maker in this case, and that the Board did not have a retaliatory motive when it vo
dismiss San Filippo.
San Filippo contends that he need only show that the Board members were
"deliberately indifferent" to the fact that he had been brought up on charges in
retaliation for the exercise of his first amendment rights. He relies on City of C
38
Ohio v. Harris, 489 U.S. 378 (1989), in which the Supreme Court held that Canton's
to train police officers to give medical attention could be a basis for imposing §1
liability if "the failure to train amount[ed] to deliberate indifference to the rig
persons with whom the police [came] into contact." Id. at 388. The Canton Court
explained that the use of the deliberate indifference standard was most consistent
the Court's "admonition in Monell that a municipality can be liable under §1983 onl
its policies are the 'moving force [behind] the constitutional violation.'" Id. at
(citations omitted).
The Tenth Circuit extended Canton to a situation analogous to the case at
Ware v. Unified School Dist. No. 492, 902 F.2d 815 (10th Cir. 1990). The plaintiff
Ware served as clerk to a school board and secretary to the superintendent of the s
district. She alleged that her superintendent had recommended to the board that sh
dismissed in retaliation for her protected speech, and that the board had acted wit
deliberate indifference to her first amendment rights in approving the termination.
Ware court rejected the board's argument that Canton be limited to its facts, and h
There is evidence in the record to support Ware's claim that the Boa
acted with deliberate indifference to her First Amendment rights in appro
her termination. . . . The record contains evidence that board members k
about Ware's public stand on the bond issue and were informed of her beli
her termination was in retaliation for that stand. . . . Notwithstanding
above indications that the board knew [the superintendent's] recommendati
in retaliation for Ware's position on the bond issue, the board made no
independent investigation, asked [the superintendent] no questions about
reasons for his decision. . . . The evidence is sufficient to create a j
question on whether the board acted with deliberate indifference to Ware'
Amendment rights in approving [the superintendent's] recommendation.
Id. at 819-20.
We agree with the Tenth Circuit that its application of the deliberate
indifference standard of Canton is most consistent with the "'admonition in Monell
municipality can be liable under §1983 only where its policies are the moving force
39
[behind] the constitutional violation.'" Ware, 902 F.2d at 819 (quoting Canton, 48
at 388-89) (citations omitted). Nor is this use of the deliberate indifference sta
inconsistent with City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988) (plural
opinion). Praprotnik recognized that final decision-making power may be delegated,
that a local governing body may be held liable based upon the exercise of this dele
power. See id. at 124. But the Court added:
Simply going along with discretionary decisions made by one's subordinate
however, is not a delegation to them of the authority to make policy. It
equally consistent with a presumption that the subordinates are faithfull
attempting to comply with the policies that are supposed to guide them.
would be a different matter if a particular decision by a subordinate was
in the form of a policy statement and expressly approved by the supervisi
policymaker. It would also be a different matter if a series of decision
subordinate official manifested a "custom or usage" of which the supervis
have been aware. . . . But the mere failure to investigate the basis of
subordinate's discretionary decisions does not amount to a delegation of
policymaking authority, especially where (as here) the wrongfulness of th
subordinate's decision arises from a retaliatory motive or other unstated
rationale.
Id. at 130. In addition to holding that the "mere failure to investigate the basis
subordinate's discretionary decisions" does not make the subordinate a final policy
the
Praprotnik Court also implicitly held that the local governing body is not liable f
mere failure to investigate by the final policy-maker.
Our use of a "deliberate indifference" standard does not make the Univers
liable for the Board's mere failure to investigate -- that is, the University would
liable if, oblivious to the motivation behind the decision to charge San Filippo an
initiate dismissal proceedings, the Board had decided to dismiss San Filippo for wh
legitimate reasons. Such a scenario would not amount to deliberate indifference of
Board to San Filippo's first amendment rights. The scenario described by San Filip
however, goes beyond that of an oblivious Board failing to investigate.
40
San Filippo presented to the district court evidence that the Board had r
to suspect that San Filippo's prior protected activities had been a substantial mot
factor in the decision to initiate dismissal proceedings. As the magistrate judge
"the record is replete with evidence which indicates that the information regarding
Filippo's protected activities was well known to the individual members of the Boar
(A.2152 n.15). Moreover, Wechsler's dissenting opinion discloses awareness at the
of the Board of San Filippo's contention before the Senate Panel that other faculty
members had had students perform uncompensated work for them, yet were not discipli
(A.325). Finally, the Board's opinion recognizes that San Filippo's attorney, Ira
Goldberg, had argued that "the charges brought against Professor San Filippo were
fabrications based on a personal 'vendetta' against him by members of his Departmen
(A.304). As in Ware, this evidence suffices to create a question for the fact-find
regarding whether the ultimate decision-maker acted with deliberate indifference to
plaintiff's first amendment rights by approving the recommendation that the plainti
dismissed.0
0
The Supreme Court's recent decision in Waters v. Churchill, 62 U.S.L.W. 4397 (May
1994) provides additional support for our use of the Canton "deliberate indifferenc
standard in the case at bar. In Waters, the Court addressed the question whether t
Connick test should be applied to what the government employer thought the employee
or to what the fact-finder ultimately determines was said. The Court took an inter
position, holding that a court should accept the employer's factual conclusions, bu
if the employer was reasonable in arriving at those conclusions. Id. at 4401-02.
elaborating on what would constitute reasonable conduct by an employer, the Court
explained:
If an employment action is based upon what an employee supposedly sa
a reasonable supervisor would recognize that there is a substantial likel
that what was actually said was protected, the manager must tread with a
amount of care. This need not be the care with which trials, with their
of evidence and procedure, are conducted. It should, however, be the car
a reasonable manager would use before making an employment decision --
discharge, suspension, reprimand, or whatever else -- of the sort involve
the particular case. Justice Scalia correctly points out that such care
normally constitutionally required unless the employee has a protected pr
interest in her job, but we believe that the possibility of inadvertently
41
III. San Filippo's procedural due process claim
San Filippo also asks us to vacate the district court's grant of summary
judgment on his procedural due process claim. San Filippo argues that his due proce
rights were violated because the five members of the Senate Panel that conducted th
hearings and recommended that he be dismissed were not impartial decision-makers an
because the proceeding was tainted by the appearance of impropriety. Specifically,
Filippo alleges in his Third Amended Complaint:
[The] members of the panel were negotiating with the Rutgers Administrato
chiefly responsible for supervising the prosecution of the case for addit
compensation, thus giving them a financial incentive in the outcome of th
proceedings, in that they reasonably would believe that they would get
additional compensation only if their final decision was favorable to the
Administrator. Furthermore, all the contacts for such additional compens
were held in secret, thus leading to the appearance of impropriety on the
of the Panel.
Both the magistrate judge and the district court rejected San Filippo's argument th
fact-finder could reasonably infer that the panel members believed they were more l
to be compensated if they recommended that San Filippo be dismissed. In addition, t
magistrate judge and district court rejected San Filippo's argument that the "secre
negotiations about compensation created an appearance of impropriety. We agree wit
conclusions reached by the magistrate judge and district court.
The Senate Panel was composed of five faculty members, chosen by lot afte
cause and peremptory challenges, whose responsibility was to hold hearings and dete
punishing someone for exercising her First Amendment rights makes such ca
necessary.
Id. at 4402. By holding that the University may be held liable if a fact-finder fi
that the Board of Governors was deliberately indifferent to the possibility that di
proceedings were initiated against San Filippo in retaliation for the exercise of h
first amendment rights, we similarly require his employer to "tread with a certain
of care" to avoid "the possibility of inadvertently punishing someone for exercisin
First Amendment rights."
42
whether the charges brought against San Filippo were true and constituted grounds f
dismissal. The panel had twelve meetings after it convened on December 5, 1986 and
the evidentiary hearings began. Between March 24, 1987 and September 22, 1987, the
devoted forty-six days to evidentiary hearings. After closing arguments, the panel
another twelve meetings before it produced a forty-four page report on December 21,
Throughout the hearings, San Filippo was represented by two attorneys, Ira and Pame
Goldberg, and a union counsellor provided by the Rutgers AAUP, Dr. Wells Keddie.
With the knowledge and consent of San Filippo's attorneys, Dr. Keddie, on
5, 1987, sent a memorandum to the panel chair, Dr. Szatrowski, copied to San Filipp
his attorneys. The memorandum suggested various ways to deal with time and schedul
problems:
I don't have a single original or good idea as to how to resolve the time
but there are some things which might mitigate the impact upon the commit
members. One of them is the course you are already pursuing, the seeking
some relief from normal duties while this demanding activity proceeds. I
to me that if the proceedings cannot be concluded by the May 15 date, it
be entirely appropriate to request the equivalent of Summer Session pay f
of you or released time for those of you (yourself) on "summer vacation"
upcoming trimester. But another possibility might well be worth consider
released time after this is all over to enable committee members to make
considerable lost time, energy, and opportunity.
Dr. Keddie also suggested that panel members "be provided meals and accommodations.
When it became clear that the hearings would not conclude before commence
Szatrowski asked San Filippo's attorney, Ira Goldberg, if he had any objection to
Szatrowski asking Dr. Susan Cole, Vice President for University Administration and
Personnel, for summer compensation for the panel members. Szatrowski and Goldberg
testified in their affidavits that Goldberg voiced no objection and wished Szatrows
"good luck."
When Szatrowski first requested additional compensation and/or released t
the spring of 1987, Cole denied the request because she believed that the panel mem
43
were already under an obligation to participate without extra compensation. In late
spring, Szatrowski renewed the request in light of the length of the hearings and t
that certain panel members were ordinarily not required to be in attendance at Rutg
over the summer. By letters dated July 29, 1987, Cole granted the members their re
extra compensation and release time. San Filippo was not told of this decision.
Shortly after the summer increases were granted, Szatrowski asked Cole fo
further additional compensation when it became clear that the hearings would contin
the fall. Cole testified that when Szatrowski approached her about the matter of fu
payments, she "told him when the panel was finished with its business, that we coul
discuss the matter again." Szatrowski similarly testified:
When I asked if this [the refusal to grant more compensation] meant that
regardless of the amount of additional time spent on this matter by the
panelists while carrying out their normal duties, there would be no furth
consideration for additional compensation in the future, Dr. Cole indicat
there would be no consideration possible until after the completion of th
hearings.
Ultimately, after the panel issued its final report recommending that San Filippo b
dismissed, Cole recommended that the panel members receive extra compensation.
Based upon this factual scenario, San Filippo alleges that the panel memb
would have been tempted to reach an outcome in Rutgers' favor because they would ha
believed that they were more likely to get extra compensation if they did so. We ag
with the magistrate judge and district court that there is insufficient evidence to
support an inference that the faculty members believed that their receipt of compen
was tied to the outcome of the proceedings. The cases cited by San Filippo are cas
which the adjudicator had a direct financial interest in the outcome. See, e.g., T
Ohio, 273 U.S. 510, 531 (1927) (mayor acting as judge shared in the fees and costs
by him); Ward v. Village of Monroeville, 409 U.S. 57, 60 (1972) (mayor responsible
village finances could not act as judge when fines and forfeitures provided substan
44
portion of village funds). The Supreme Court has held that the impermissible pecun
interest must be realistic and more than "remote." Marshall v. Jerrico, Inc., 446
238, 250 (1980). We find no evidence in the record to support a conclusion that the
members believed that they were more likely to be compensated if they recommended S
Filippo's dismissal.
San Filippo alternatively argues that the panel members' participation in
hearings while negotiating for additional compensation created an appearance of
impropriety. See Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S.
150 (1968) (arbitration panel "not only must be unbiased but must also avoid the
appearance of bias"). Under Commonwealth Coatings, to prevail on an "appearance of
impropriety" due process claim, San Filippo must establish both that the events in
question would cause one to reasonably question the panel's impartiality and that t
information was concealed from San Filippo. San Filippo makes much of the fact tha
was not told about the meetings between Szatrowski and Cole; however, in light of t
that Keddie suggested that Szatrowski broach the subject of extra compensation, the
meetings do not have the invidious character San Filippo suggests.
Finally, San Filippo argues that he should have had the opportunity to de
Szatrowski to determine what was said in the conversations between Szatrowski and C
San Filippo contends that, although he noticed Szatrowski's deposition in August 19
discovery was stayed after November 1989 when the motions for summary judgment were
As the district court noted, San Filippo has failed to explain why Szatrowski was n
deposed before August 1989 -- particularly, why he was not deposed during the summe
fall of 1989 when San Filippo deposed nine other current and former officials and
employees of Rutgers. Moreover, San Filippo does not indicate how he expects the
deposition testimony of Szatrowski to differ from the testimony found in Szatrowski
affidavit, dated April 2, 1990. For these reasons, we conclude that the district co
45
not abuse its discretion by refusing to delay decision on the summary judgment moti
until San Filippo had a chance to depose Szatrowski.
IV. Conclusion
For the foregoing reasons, we affirm in part and vacate in part the order
district court. We affirm the district court's grant of summary judgment in Rutger
favor on San Filippo's due process claim. We vacate the district court's grant of
judgment in Rutgers' favor on San Filippo's first amendment claim, and remand for
proceedings consistent with this opinion.
46
Joseph San Filippo, Jr. v. Michael Bongiovanni; Anthony S. Cicatiello; Adrienne S.
Anderson; Donald M. Dickerson; Floyd H. Bragg; Norman Reitman, individually and as
of the Board of Governors of Rutgers University; RUTGERS, THE STATE UNIVERSITY, No.
5658
BECKER, Circuit Judge, concurring and dissenting.
While I agree with almost all of the majority opinion, I cannot join in
conclusion to Part IIA, pages 42 to 47, holding that a public employee is protected
the Petition Clause against retaliation for having filed a petition (in the nature
lawsuit or grievance) addressing a matter of purely private concern. I would adopt
position of the seven other circuits which hold that a public employee plaintiff wh
"petitioned" is in no better position than one who has merely exercised free speech
Majority Typescript at 37 n.19 (listing circuits).
I need not offer extended justification for my position, for the majority
already done so when describing these other circuits' views at pages 24 to 41 of it
opinion. Although the majority then arrives at a conclusion in contradistinction to
preceding analysis, the majority's rationale supporting its conclusion pales by com
with the reasoning of the other circuits and with the inexorable logic of McDonald
Smith. 472 U.S. 479 (1985). In a nutshell, I simply do not believe that the fact
the government adopts a formal redress mechanism gives one who pursues it more prot
than if the person had written a letter to the editor or made a speech. As the Sup
Court explained in McDonald:
The Petition Clause . . . was inspired by the same ideals of liberty
and democracy that gave us the freedoms to speak, publish, and
assemble. These First Amendment rights are inseparable, and there is
no sound basis for granting greater constitutional protection to
statements made in a petition to the President than other First
Amendment expressions.
472 U.S. at 484-85. The same holds true when the petition is addressed to the cour
to university officials.
47
In my view, the Supreme Court would be surprised to learn that, althoug
result of "the nature of the government's mission as employer," a public employer (
Rutgers) can fire someone who "begins to say or do things that detract from the age
effective operation" so long as the speech is on a matter of private concern, Water
Churchill, 62 U.S.L.W. 4397, 4401 (May 31, 1994) (quoted in Majority Typescript at
the government cannot fire the same individual if he or she speaks after invoking a
mechanism for the redress of grievances (or speaks through that forum). Such an
interpretation of the Petition Clause, rather than making that clause a "trap for t
unwary" as the majority contends would be the consequence of my interpretation of t
Clause, Majority Typescript at 44, is an invitation to the wary to formulate their
on matters of private concern as a lawsuit or grievance in order to avoid being
disciplined. This would undermine the government's special role as an employer.
The majority argues that in contrast to speech on a matter of private con
"when one files a ``petition' one is not appealing over government's head to the gen
citizenry: when one files a ``petition' one is addressing government and asking gove
to repair what government has broken, or, at least, has failed to repair." Majorit
Typescript at 43. But the libelous letter to the President at issue in McDonald, 4
at 484-85, took the form of an address to government rather than the general citize
and yet the Court held that the letter received no greater constitutional protectio
result. And the fact that San Filippo's speech addressed government did not make it
less disruptive of the workplace environment than if it had addressed the general p
indeed, the speech may have been more disruptive because it still reached the publi
(lawsuits, for example, are matters of public record) and, in addition, compelled t
university to respond to the lawsuits and grievances.
The majority argues that it would undermine the Constitution's purposes t
government to punish someone for invoking a mechanism to which government has given
constitutional imprimatur." Majority Typescript at 42. However, the constitutiona
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imprimatur of the Petition Clause applies equally to the letter to the President at
in McDonald as to the lawsuits and grievances at issue here. By waiving sovereign
immunity to suit or adopting grievance procedures, the government may give special
statutory/regulatory imprimatur to these mechanisms as opposed to other forms of pe
such as letters, but it does not give them a special constitutional imprimatur. Mo
the government has given its regulatory imprimatur to the letter at issue in McDona
setting up an office in the White House that is designed to respond to corresponden
Finally, for lawsuits at least, the state's waiver of sovereign immunity is not spe
to suits by public employees and thus may not be at all meant as a recognition of a
employee's right to file repeated lawsuits against his or her employer.
Nor, by adopting such petition mechanisms, does the government somehow in
the employee's interest in having free license to protest his or her employer's dec
For example, San Filippo would have had the same interest in protesting the failure
chemistry department to recommend him for a full professorship if the university ha
adopted a grievance procedure. Connick declares that this interest is outweighed b
university's interest in regulating its work environment.
Finally, the majority's suggestion that a contrary interpretation would r
the Petition Clause a "dead letter" is hyperbolic. Inter alia, the clause would st
have use when there is a "petition," in lieu of more conventional speech. Moreover,
if all petitions now constitute speech (given the broad interpretation the Supreme
has given to speech), I do not see why it matters that the guarantees overlap. The
certainly petitions that did not constitute speech when the First Amendment was rat
meaning that the two clauses were not redundant when initially adopted. In additio
First Amendment's guarantees of free speech and a free press also substantially ove
See Laurence H. Tribe, American Constitutional Law, § 12-22, at 971 & nn. 2-3 (2d e
1988). Cf. Branzburg v. Hayes, 408 U.S. 665, 684 (1972) ("It has generally been he
the First Amendment does not guarantee the press a constitutional right of special
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information not available to the public generally.") At least the Petition Clause
the function of emphasizing that freedom to petition the government directly is an
important part of freedom of speech and prevents courts from deleting the petition
As the Supreme Court stated in McDonald, the right to petition "is an assurance of
particular freedom of expression." 472 U.S. at 484-85. Thus, the majority's "dead
letter" argument cannot carry the day.
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