San Filippo v. Bongiovanni

Group, Inc. v. Amoco Chem. Continental (3d Cir.1980). Corp., 614 F.2d 356-57 we find that NJDEPE must fail on

Because case, injunction no can

the merits of its issue. discussed, NJDEPE

As we have had sev- present its claims other than

eral avenues to injunction. It

as a for an could have request

petitioned regula- of the NRC rescission to, 2.802(a), § objected

tion it C.F.R. application exception to the of that rule 2.758(b),

here, § or for a id. modification or

suspension of PECo’s license that allowed fuel, §

transportation id. 2.206. Some options

of these are still viable.

YI. stated,

For the reasons we will affirm the

district court’s dismissal of NJDEPE’s claim NEPA, grant the NRC and its summary judgment to the Coast Guard on

the CZMA claim. We will also instruct the

district court to dismiss NJDEPE’s claim PECo, NRC,

against the and LIPA under

the CZMA.

Joseph FILIPPO, Jr., Appellant, SAN BONGIOVANNI, Anthony

Michael S. Ci

catiello, Anderson, Adreienne S. Donald Dickerson, Floyd Bragg,

M. H. Norman

Reitman, individually and as members Rutgers

of the Board of Governors of

University, Rutgers University, Appel

lees,

Rutgers Council of American Association University Professors, Amicus

Curiae.

No. 93-5658. Appeals,

United Court of States

Third Circuit.

Argued May 1994. July

Decided 1994. Rehearing Aug.

Sur Petition for Filippo’s first amendment claim.

Part III process addresses San due claim. City, (argued), New York Leon Friedman background procedural I. Factual and appellant.

for history Peirano, (argued), Linda B. John J. Jr. Filippo appeals Because San from the dis- Celauro, Carpenter, Morrissey, Bennett & grant Rutgers’ trict court’s motion for Newark, NJ, appellees. summary judgment, following factual re- Reinhardt, Schaehter, Denise Reinhardt & accepts proffered cital as true all evidence Newark, NJ, for amicus curiae. Filippo, non-movant San with all reasonable inferences drawn in his favor. LEWIS, and Before: BECKER Circuit POLLAK, Judges Judge District *. On November Dean Tilden Edel- Filippo Rutgers

stein told San and his AAUP counsellor, Keddie,1 allegations Wells THE OPINION OF COURT harassed, Filippo exploited San and at- POLLAK, Judge. LOUIS H. District tempted exploit visiting scholars from the case, brought § This under U.S.C. People’s Republic January of China. On by Rutgers arises out the dismissal Uni- 1986, Dean Filippo Edelstein sent San a let- versity Jersey’s principal state institu- stating complaints against —New ter him. As higher plaintiff tion of education —of Dr. Jo- required by University’s one of the dismissal was, seph Filippo, May who until San regulations, advice about whether dismissal professor chemistry. a tenured The proceedings should be commenced was Rutgers named in this defendants case are sought groups Filippo’s from two of San fac- University Rutgers and six members of the ulty peers and three academic officers of the (hereinafter collectively Board of Governors 14, 1986, University. February On the ten- “Rutgers”). described as The district court faculty ured chemistry members of the de- granted Rutgers’ summary judg- motion for partment passed a concluding resolution Filippo’s ment and dismissed Professor San charges against Filippo, proven, San case. represented grounds for dismissal. After Appointments Committee, and Promotion appeal, Filippo, support On from San University Provost, and the Chief Aca- Rutgers of American Council Association demic Officer concurred in the sentiment ex- University Chapters (“Rutgers Professors pressed resolution, Rutgers in that Universi- AAUP”) amicus, challenges the district ty President Edward Bloustein wrote letter grant summary judgment court’s in Rut- 1, 1986, Filippo, to San dated October (1) gers’ Filippo’s on San claim that favor: he charges which he described the formal in retaliation for dismissed the exercise Filippo. San President Bloustein (2) rights, of his first amendment on San that, farther Filippo indicated if San did not Rutgers right claim that violated his timely request make a hearing, for a Presi- procedural process, panel due because the dent Bloustein would recommend to the Uni- had, that recommended his dismissal accord- versity’s Filippo Board of Governors that San ing Filippo, a financial incentive to charges be dismissed based on the outlined recommend dismissal. in the letter. opinion Part I of this outlines the factual background procedural history of this exercised his to a hear- (the analyzes legal posed ease. Part II ing panel faculty issues before a peers five * Poliak, members, University faculty including Honorable Louis H. United States District Professor Judge Pennsylvania, AAUP, for the Eastern District of Filippo. Rutgers as an affiliate sitting by designation. organization, of the national also as a serves Rutgers professional organization Rutgers recognized agent for the Univer- AAUP is the bargaining Rutgers sity faculty. collective state law for Panel”) which, forty-six day In 1977 and testified after a “Senate grand jury regarding investiga- before Filippo had com- that San hearing, concluded illegal drugs in into the manufacture of tion charged. In almost all of the offenses mitted chemistry criti- laboratories. Potenza report, issued on December forty-four page “disloyalty” Filippo for his and for cized San 21,1987, Panel recommended the Senate “washing dirty pub- department’s linen stripped of his tenure Filippo be lic.” University. The Board from the dismissed unanimously concluded its of Governors became embroiled opinion that the Senate Panel’s sixty-page dispute over what he describes as an supported by the evidence.

findings were chemistry depart- effort members of the Board of May Governors On committee to obtain fed- ment’s instruments Filippo on the basis of San voted dismiss spectrometer by funding for a mass eral member of charges of misconduct. One nine misrepresenting department’s need for Board—-Walter Wech- seven-member Filippo an instrument. threatened such San against because he be- dismissal sler —voted funding agency the truth to tell the federal severe; was too the sanction lieved department’s The commit- about the needs. as a defen- has not been named Wechsler tee members wrote a memorandum Poten- dant. chairman, za, department protesting San Filippo’s their efforts threats to undermine action on June Filippo filed the instant San spectrometer. a Potenza told to obtain mass 13, among things, alleges, other 1988. He place Filippo that he intended to San initiated disciplinary proceedings were Filippo’s personnel memorandum in file. San him and that he was dismissed against At- Filippo contacted the United States San (1) grievances for the numerous retaliation torney’s regarding office this action (2) instituted, and com- had and lawsuits he him, and an Assistant United States Attor- voiced, against Rutgers had Uni- plaints he Filippo an action ney told San that such University be- versity various officials an effort to ob- would be characterized as that he con- and 1986—activities tween 1977 justice. Filippo told Poten- After San struct by first amendment. tends are said, lawyer government za what reprimand removed Potenza had the letter of alleged protected activities Filippo’s A. San Filippo’s personnel file. from San 1977, a letter to the Filippo In San wrote 1986, Filippo com- Between 1979 and San chairman, Pro- chemistry department then irregularities financial plained about certain Sidney Toby, complaining about dan- fessor particularly chemistry department, ef- chemistry laborato- gerous conditions Filippo’s fed- to divert funds from San forts ries, by that had been described conditions Filippo In San grants. October eral Jersey Department of Health as the New by depart- objected proposal a the new 1979, in unsatisfactory.” In re- “generally Boikess, chairman, Robert Professor ment questions newspaper reporter’s a sponse to fee,” Filippo which impose “shop-user’s San collapse due to nox- concerning a student’s billing of illegal double characterized as chemistry experiment, during fumes ious chemistry department members. reported by the news- Filippo stated —as chemistry department de- undergrad- In January paper on 1979—that Filippo pro- subjected clined to recommend San being uate students were Filippo professorship. to full danger” and motion hazard and an absolute “health 1982, contending grievance in that he safety requirements are not filed that “minimum through manipu- promotion had been denied being Filippo was berated met.” San promotion packet. While this chairman, Joseph lation of his Professor department then chemistry depart- pending, the Potenza, making grievance was by an administrator for pro- recommended that San Filippo’s comments ment comments. San these July 1984. professor, effective moted to full Associa- to the creation of an American led ultimately Although grievance committee University University tion of Professors — have Filippo that he should agreed with San Safety Committee. testified, contradiction, University posi- without took the promoted, been September In issue was moot. that he was criticized administration tion that the talking filed lawsuit state newspa- officials for to the school contended that he was he per which about unsafe conditions in the labora- July promotion effective have his entitled to Filippo] tories. was chairman of the [San pending. suit is still 1982. That Safety Committee at the time. A student Filippo] took ill. [San was accused of be- Filippo grieved the fact that ing “disloyal.” Putting aside the serious salary a merit increase. he had been denied episode first amendment issues the raises griev- University rejected Education, (Pickering v. Board ance, non-binding arbitration. and he filed for 811]), it [88 hearings in occurred first the arbitration danger seems to me that the to the health September 1985. On October outweighs any possible of the students University. for the Re- Boikess testified reputation harm to in authori- of those event, garding this the arbitrator commented ty might that disclosure of lab conditions December 1986: in his decision dated Further, have created. there is a differ- very revealing. things are often Little loyalty to [sic] ence to the institution and convey full flavor transcript A does not purposes supposed it is serve transpires hearing in room. of what fealty may, any to the individuals who at day of Boikess was called on the last moment, given occupy positions higher brought lawyer with hearing. He his own authority organization. in the Which is (Mr. Peirano). him important things: more the scheme of cordially greeted him Filippo before San feelings bruised because teacher the stand. Boikess would not he took tough demanding personal safety? and acknowledge greeting and refused to presence acknowledge grievant’s issue,

room. directly While not at there was some unsettling Filippo’s] evidence that During testimony, kept [Dr. Boikess re- San promotion packet surreptitiously ferring grievant’s to “self-nomination” been [for salary secretly tone removed and unfavorable material award]. the merit His of voice inquiry sparked Filippo] bring [Dr. was caustic that it inserted. had to so (The grievance rectify to drawn from me. inference successful action to employed appear voice was that a situation. It the tone of would that someone willing go extraordinary lengths was somehow less wor- “self-nomination” deny thy). Filippo] professional [Dr. San ad- vantage. That kind of conduct is similar to why specifically I asked Boikess he em- happened Filippo] what [Dr. San phasized Boikess “self-nomination.” salary [merit award] review. really the issue and did not danced around my question. answer It became obvious Filippo’s] clearly [Dr. San nomination was answer, gave I up. would not so he judged separate under “San rules” Further, and of his the tenor tone testimo- applicable that were to no one else. ny contempt his near-total revealed pipe job - I I know a when see one. Filippo. (A.1161 29). n. per- I passing note in that most of the In November Dr. San being sons considered were self-nominated. brought against a libel action in state court salary procedure] specif- The [merit award Filip- three administrators who accused San ically provides for same. deliberately po falsifying reports time re- One would have to be block wood to lating to one of his technical assistants. complete fail to Dr. Boikess’ distaste notice Filippo. for Joe San Finally, Filippo brought a lawsuit in (A.1155 21). University against n. arbitrator state court in March sustained San about, complaining things, complaint. among noted in his other He further opinion: University’s prohibit decision to —without by directing language abusive graduate student as- China hearing any kind — program, Filippo’s research toward them. sistance against Filip- of the accusations because 31,1986, you e.On or about March inter- po. rupted without sufficient cause a laborato- ry being by Teaching class conducted As- against charges proceedings B. The sistant, Zong Ping Chen. You continued by treating unpro- that incident her in an above, explained on October As fessional, manner, threatening and abusive brought formal Bloustein written President individuals, hearing in- within the of other hearing Filippo. After a charges against San cluding her students. Panel, recommended the Senate which before July 8, you Charge 2: or about On Governors, dismissal, which re- the Board of Xiao, Changhe Mr. had in- directed who findings of Panel for viewed the the Senate jured doing himself while maintenance evidence, sufficiency concurred house, your identify work himself findings sustaining the Panel’s follow- Senate Peng Hospital Zhou in Middlesex Mr. charges: ing Xiao Mr. order to have Mr. covered visit- Charge 1: Your treatment of scholars Peng Zhou’s medical insurance. People’s Republic of ing from the China Charge encouraged permitted S: You Teaching Assistant violated and a Chinese working your individuals direction professional ethics re- the standards of supervision time re- to submit false spe- quired by faculty members. More all ports inappropriate charges and to make respect cifically, your treatment with University Spe- accounts. certain individuals, fully in forth more these as set cifically: documents, attached is as follows: Brownawell, Marilyn works b. Ms. who advantage your professori- a. You took directly your supervision, submitted exploited Mr. Hetian Gao position al and ending August reports for the week time Xiao, visiting Changhe both schol- and Mr. paid for reported 1984. She and was China, People’s Republic of ars from the charged period, for that 40 hours work leading them to be- by directing them or Chemistry Department’s mass against the they per- had no choice but to lieve that account, you spectrometer though even you, gar- work for such as form domestic perform any that she did not work knew cleaning indoor and outdoor den work and spectrometer or indeed related to mass July during period May through work any Rutgers of any compensable work for 1985.2 during period.4 that kind by and Xiao exploited c. You Messrs. Gao representing they provided would be that professional Charge You violated and J: you coverage and that health benefits foreign exploited and academic standards salary be from the by bringing would deduct University $700.00 visitors to the to cover the paid each of them order University post-doctoral fellows Chi- as deducting Despite costs of such benefits. you ap- have knew did not nese scholars sums, coverage you provide did not such by charging sti- propriate credentials and individuals, Mr. Gao or Mr. Xiao. pos- either who did not pends of such your grant degrees, to NSF sess doctoral During period of time that d. Subsequently post-doctoral fellows. visiting Chinese scholars above-named for admis- you supported these individuals Rutgers, you and ha- were at threatened graduate program Chemis- by repeatedly sion to the those individuals rassed clearly try, established a fact which stating you would send them back Panel, 3(c) 1(b) by Charge charge was not sustained found that was 2. The Senate Panel unproven, the Board concurred in this deter- in this determination. and and the Board concurred mination. 3(a), charge did not sustain 3. The Senate Panel concurred in this determination. and the Board not have the credentials to be members who

they did voted favor of his dismissal. post-doctoral law, fellows.5 § sued under 1983 and state During you alleging Fall Charge submitted the dismissal violated his 5: gradu- for admission to the application speech, petition, equal protection, and due reference, including program, letters of ate process rights under the United States and Zhou, Peng Mr. one of the behalf Constitutions, Jersey New and violated his to in # 4 referred above. One individuals rights. common law contract of reference submitted of the letters Following parties’ cross-motions for signed by you purportedly was written and summary issues, judgment on a number of fact, In that letter was not Liu Guozhi. granted Filippo’s the district court mo Guozhi, you Liu prepared partial summary judgment tion for on his knowledge of the fact and did not make it regulations pursuant claim that the to which you known when submitted the letter. vagueness. he was dismissed were void for December Charge 6: On Profes- Filippo Bongiovanni, F.Supp. v. Boikess, your depart- Robert Chair of sor (D.N.J.1990). void-for-vagueness ment, issue specifically you instructed Zhou, permit Peng Cong-Yuan interlocutory appeal Mr. Mr. certified for to this Guo, court; any graduate except other student we reversed and remanded the case already your those associated with re- proceedings. further v. your group, laboratory, to work in search (3d 1125, 1139-40 Bongiovanni, 961 F.2d Cir. investigation pending allegations of ex- 1992). After the Court denied San ploitation lodged against and harassment certiorari, Filippo’s petition you by visiting Despite Chinese scholars. — U.S. -, Bongiovanni, instructions, specific you subsequent- these (1992), the district court Guo, ly Cong-Yuan permitted Zhen-min remaining summary judgment referred the He, Peng perform Zhou to work in magistrate judge. motions to a laboratory. your Recommendation, Report In his opinion, specifically the Board the Board’s magistrate judge recommended that sum- found that the conduct described in sustained mary judgment granted in defendants’ 1(d) 1(e) 1(a), charges was a serious favor procedural pro- on San due enough faculty of the role of breach member claims, cess claim and on that, his state law but if those were the even sustained summary judgment that charges, there would be sufficient be denied on San cause for 13,1988, Accordingly, May Filippo’s dismissal. on amendment/equal protection first Filippo Board directed that San be dismissed Regarding claim.6 the first amendment University. from the claim, magistrate judge explained first that three-part this circuit uses a test agreed Board member Wechsler with his public employee’s assess claim colleagues’ findings that of retaliation but felt dismissal having engaged protected activity. too severe a sanction: “Because this in a punishment clearly proportion First, plaintiff out of to his engaged must that show he alleged wrongdoing, quite possibly and taint- protected Second, activity. plaintiff must animus, history ed I long respectfully protected activity show that the was a sub- (A.322). dissent.” motivating stantial factor the dismissal deci- Finally, plain- sion. defendant defeat procedural history C. The this case by demonstrating tiffs claim that the same Filippo place On June filed action would have this taken even University suit and the six protected Board absence of the conduct.7 See charge 5. The point, Senate Panel sustained this in re- claims. From this we refer to these claims Zhou, gard Peng regard to Mr. but not in to Mr. as the first amendment claim. Cong-Yuan Guo. The Board concurred in both determinations. persuasion Rutgers 7.The burden of shifts to respect prong to the third of this test. In this parties agree analysis is the same respect, retaliatory discharge test differs from equal protection under the first amendment and Allentown, discovery. Rutgers objected least to further 987 F.2d City Holder v. Albanese, (3d Cir.1993); magistrate judge’s to the recommendation Czurlanis Cir.1983) (3d Healthy summary judgment Filippo’s that 98, 103 (citing Mt. F.2d amendment claim be denied. Doyle, 429 283- first City Dist. v. U.S. School adopted magistrate The district court (1977)). judge’s summary judg- recommendation that test, granted Filippo’s pro- prong of this ment be on San due respect to the first With claim, that, rejected magistrate unlike cess but magistrate judge concluded judge’s summary judg- under recommendation that generally protected speech —which Filippo’s only if a ment be denied on San first amend- it addresses the first amendment respect Filippo’s ment claim. With to the first amend- public law- matter of concern—San claim, disagreed court first protected activities ment district grievances were suits magistrate judge’s conclusion that the first amend- with the petition clause of under Filippo’s grievances were they addressed lawsuits regardless of whether ment protected magistrate activities under the first amend- public concern. The matters of regardless could ment clause of whether judge noted that a fact-finder then they public Filippo’s protected addressed a matter of concern. reasonably infer that San Instead, motivating court that the district held lawsuits a substantial factor conduct was grievances, speech generally, him the Univer- like are to dismiss from the decision n protected under the first amend- Finally, magistrate judge recom- activities sity. they public ment address matters of Filippo given be the chance that San mended discovery in order to concern. conduct additional Rutgers’ that San would claim rebut that The district court concluded some even the absence have been dismissed Filippo’s speech addressed matters of activities, magis- protected 'because protected concern and was therefore judge believed that the defendants trate the first amendment. The district discovery material yet made relevant not also concluded that a fact-finder could court judge Filippo, magistrate to San available protected reasonably infer that San summary judgment be recommended motivating was a factor conduct substantial 56(f) of the Federal Rules denied under Rule However, the district court his dismissal. Procedure.8 of Civil no in the record held that there was basis reasonably could object magis- from which a fact-finder did Rutgers was dismissed be- conclude judge’s trate recommendation conduct, rather than of his summary judgment on the state cause granted of the misconduct described Accordingly, opinion in an dated because law claims. Moreover, 28,1993, charges brought against him. accept- September the district judge’s rejected magistrate Rut- district court granted ed those recommendations ruling on the sum- recommendation that a gers summary judgment on those claims. delayed mary judgment be until after objected magistrate motion Filippo San Filippo opportunity an to con- Rutgers had had judge’s recommendation that be San discovery, held pro- additional and instead granted summary judgment on his due duct discovery Filippo all claim, argued entitled that San had received that he was cess Accordingly, the dis- claim or at which he was entitled. summary judgment on that 56(f) part: Dep’t 8. Rule states in relevant the Title VII rule established in Texas Burdine, Community v. Affairs party appear affidavit of a Should it from the (1981), and 67 L.Ed.2d 207 reaffirm opposing party the motion that the cannot Hicks, -U.S. Mary's ed in St. Honor Center v. present by affidavit facts essen- reasons stated -, (1993), justify party's opposition, the court tial to persuasion remains on the where the burden plaintiff judgment may application or refuse proved prima even after he or she has permit may ... discov- order a continuance case, only employer and the need articu facie ery other order as to be had or make such non-discriminatory prove reason for late—not —a just. is its actions. (i.e., similarly Rutgers faculty persons was entitled to other held that situated trict court judgment Filippo’s on first summary commit, San persons who have been known to pro- due claim as well as on his amendment offenses, committing, were accused of similar claims, and dismissed San law cess and state sanctions, against but whom no or not as entirety. complaint in its Filippo’s imposed).” Opinion severe a sanction was (internal omitted). quotation Filippo argues that The court appeal, On San granting Rutgers rejected Filippo’s argument court’s order sum- district San for two rea- mary judgment on his first amendment claim First, that “facul- sons. the court concluded be vacated because the district court should ty ‘similarly plaintiff members situated’ to (a) erred, granting Rutgers’ in motion for faculty are those members whom for- summary judgment affording him without charges mal have been filed as to conduct discovery, take additional opportunity to which could lead to dismissal under the Uni- (b) Filippo San also contends on merits. versity’s regulations.” Opinion at 42-43. granting Rut- that the district court’s order explained Filippo The court that re- San process gers summary judgment on his due all ceived such information on June claim be because there re- should vacated pursuant Rutgers’ compliance with section regarding a material issue of fact mains 19,1989. Stipulation May 1.1 of a dated Sec- question Senate Panel had a whether the ond, the court concluded: pro- pecuniary interest in the outcome of the ceedings against Filippo, and because he San charges together plain- [nine] These caused discovery. was entitled to additional tiffs dismissal and it that tenured faculty member who had “been known to Filippo’s II. first amendment claim San committing” commit” or was “accused Filippo first contends that the district San kind, number, scope offenses of the denying request, made erred together plaintiff truly taken with whom 56(f) pursuant to Rule of the Federal Rules “similarly suggests situated.” No one Procedure,9 the district court Civil person such a exists. delay ruling Rutgers’ summary judg- on its Opinion (emphasis original). at 44-45 For until after he had time to ment motion con- reasons, these two the court concluded that discovery. Filippo duct further San made discovery requests September Filippo discovery various received all of the 1989; until Rutgers asked to have November Opinion to which he was entitled. See at 46. respond. 7 to On November Filippo, support from the Rutgers 20-page pointing letter to wrote AAUP, Rutgers argues that the district court inadequacies Rutgers’ response. out On denying abused its discretion in 29, Rutgers summary November moved for 56(f) request for a Rule continuance. Under judgment requested information was City Philadelphia, Contractors Assoc. v. supplied. never submitted a (3d Cir.1991), 945 F.2d 1260 whether a 56(f) Rule support opposi- Rule affidavit of its 56(f) granted “depends, motion should summary Rutgers’ judg- tion to motion for part, judge particular on ‘what magistrate ment. The information is recommended how, uncovered, ruling summary judgment sought; preclude on the it would motion until after be deferred summary judgment; why it and ” has not been opportunity had an to take additional discov- previously (quoting obtained.’ Id. at 1266 ery. (3d Colafella, Lunderstadt 885 F.2d Cir.1989)). A district court has discretion rejected magistrate The district court 56(f) acting on Rule motions. See id. at 1267. judge’s summary judgment that conclusion However, sought where relevant information granted until should not be San moving party, is in the hands of the “a opportunity an to discover additional infor- 56(f) grant district court explained Filip- mation. The court that should a Rule mo San po argued that “he must see the records of tion almost as a matter of course unless the 8, quoted supra. 9. The text of this rule is at note

433 discharged employee’s misconduct the non- is otherwise available information terminating merely him was grounds for Id. movant.” pretext. Assoc., court the district In Contractors of Eastern Association granted Contractors Fe, 427 U.S. at 283 n. 96 S.Ct. at Santa other trade associations

Philadelphia and (emphasis n. 11 and omissions in Santa claim that Phila- summary judgment on their Fe). minority set-aside public contract delphia’s fashion, court, in analogous In this Bennun clause of equal protection violated the law (3d appeal, Rutgers University, Unit- 941 F.2d 154 amendment. On v. State fourteenth argued Minority Enterprises Cir.1991), rejected Associates ed dis- contention Minority court —to which that the district comparing trict court had erred in the defen- 56(f) a Rule affida- had submitted Associates University’s not to tenure the dant decision summary opposition along with their vit University’s deci- plaintiff professor with the summary by granting the judgment professor who had sion to tenure another —erred Minority giving As- judgment motion without ratings plaintiff in two cate- higher than the discovery pursue opportunity to an sociates general gories teaching effectiveness and — Phil- of discrimination on the existence id. 178. We reasoned usefulness. See justi- that could adelphia construction market preclude comparison “would such held that the dis- fy set-asides. We various ‘identically change ‘similarly situ- situated’ ” grant- not its court abused discretion trict Although propriety of “[t]he ated.’ Id. ruling the sum- before a continuance ing comparison specific,” is there is a such a ease As- mary judgment motion. See Contractors relevancy.” Id. Admitted- sweep “broad soc., at 1268. 945 F.2d impose ly, and should the district discovery is calculated to lead part of the limits on addressing the first Assoc, unearthing only marginally is relevant information test —what Contractors Nonetheless, summary imposed preclude it the limits sought and how would evidence. Rutgers Filippo and the judgment too severe. here were —San defini the district court’s argue that AAUP opinion that it its The Board indicated narrow. “similarly situated” was too tion 1(e) 1(d) 1(a), as the charges viewed things, Among other San agree. We against Filippo, charges most serious that, activity, he for his argues but meriting even the other his dismissal charged at all. To limit have been not would charges were not sustained. in fact discovery who were to individuals permitted to discover accordingly should therefore, is, charges brought up on similar University knew of other em- whether the responsive to adequately not or offenses ployees one more who committed Filippo be limited Nor should San needs. yet did comparable greater or seriousness committed nine discovery of individuals who employees, imposed discipline these not yet were charges comparable seriousness Al- than dismissal. sanctions far less severe Supreme Court ex disciplined. The not suggestion that though the district court’s Trail Santa Fe plained McDonald v. disciplined because of a com- Filippo was Co., n. Transp. U.S. any than for rather bination of misdeeds (1976): 2580 n. type this of eval- single plausible, misdeed [Pjrecise culpability be equivalence generally be left to uation is one that should question. As employees is tween information Because the the fact-finder. Douglas Corp. in [McDonnell we indicated discovery was of the sort Filippo sought Green, 411 U.S. summary entry of might prevent (1973)], allegation of Rut- the control judgment and was under “employees in acts involved that other an abuse of it was gers, we conclude that comparable seri employer] of [the 56(f) Filippo’s Rule deny discretion to ... retained were nevertheless ousness vacate the dis- Accordingly, will motion. we an inferential adequate plead ...” summary on judgment grant of trict court’s employer’s reliance on his the case 434 faculty place claim first amendment and re- advisor move from one to anoth- Filippo’s

San discovery.10 further er. Professor Muha also testified that he mand for had some of his own students work with him discovery, further there is Even without lab, photography foreign in his and that stu- in the record from a which sufficient evidence dents he had invited to his house at Thanks- that, conclude in the could ab- fact-finder giving including yard did domestic chores activities, Filippo protected his sence of evidence, work for him. Based on this a been dismissed based on the would not have reasonably fact-finder could find that San charges against him. conduct described Filippo would not have been dismissed in the First, was the Edelstein interviewed Dean protected absence of his activities. Accord- newspaper, The Home Brunswick local New 56(f) ingly, even if the denial of the Rule News, shortly after San was dis- erroneous, “ motion were not we would vacate reported: ‘If Fi- paper [San missed. grant summary judgment. of earlier in terms of lippo] had behaved better light In colleagues,’ of our decision to vacate the dis- his said Tilden his relations with Edelstein, grant summary judgment trict court’s of Faculty on Dean of Arts and claim, Sciences, Filippo might first amendment we need have been treat- to address differently_ Filippo persist- ‘But certain other issues that are rele- ed Warrior,”’ proceedings vant to the course of being Edelstein remand. ed “Joe A 606]. said.” fact-finder could reason- [A.

ably the “war” to which Dean activity infer A. Protected encompassed protect- Edelstein referred above, explained alleg As one who Filippo had over complaints ed made retaliatory discharge governmental es from addition, Wechsler, years. Walter employment must establish that the conduct Board of Governors member of the who dis- triggered discharge which protected decision to Fi- sented from the dismiss San under the first amendment. Where the al lippo, punishment clearly that “the stated leged expressive retaliation is based on con proportion alleged wrongdoing, to his out of constituting speech, duct a court must first quite possibly long history tainted speech determine whether or not the can be 322). (A. of animus.” fairly addressing characterized as a “matter presented concern,” public governmental also has evidence for em faculty ployee members public complaints that other had committed who makes about comparable yet problems “public infractions seriousness not of concern” has no first punished. example, immunity against For Professor employer been amendment disci chemistry depart- pline. Myers, Richard Hartwick of the Connick v. (1983).11

ment testified before Senate Panel that L.Ed.2d 708 pitch hay him Filippo’s expressive he had had two students for on But San conduct was not Muha, professor, George speech. his farm. Another limited to It filing included the both that, student, lawsuits, helped grievances testified as a he had and also of Connick, respect part public to the second of the Con- With matters of concern. 461 U.S. at Assoc, why the tractors information was not balancing 103 S.Ct. at 1687. This test test— Rutgers argues previously play only public employer comes into if the con- obtained— May Stipulation precluded further dis- employee cedes that it dismissed an because of argument covery. unpersuasive. This We employee's protected speech but contends agree district court’s with the conclusion that the justified doing Rutgers that it was so. denies Stipulation necessarily did not foreclose addi- that it dismissed San for his discovery. tional activities; accordingly, balancing test has no application in the case at bar. public precluded employer altogether 11. A is not decides, law, The court as a dismissing employee speech matter whether from address- Rather, speech public ing public public at issue addressed a matter of a matter of concern. employer may employee speech concern and whether the state's interest in dismiss an effi- ciency outweighed addressing public employee’s interest matter concern if the interest, commenting employer, promoting state's as an on matters of concern. See Allentown, efficiency operations outweighs employ- City of its Holder v. F.2d 195 n. interest, citizen, (3d Cir.1993). commenting upon ee's as a

435 against Although bargaining agreement, Court has not dis- collective University University scope right and officials—activities of the cussed constitutional to clause, than implicate petition rather petition allegedly the context of an retalia- clause, speech of the first amend- the free tory discharge public employee, of a ment.12 scope Court has had occasion to consider the right of that in other contexts. magistrate judge concluded that San

The Filippo’s impheating petition activities In Eastern R.R. Presidents v. Conference protected by the first amend- clause were Inc., Freight, Noerr Motor regardless “petition” at ment of whether (1961), S.Ct. the Court public issue addressed a matter of concern. question addressed publicity whether a that, disagreed, to district court and held campaign encourage railroads intended to qualify protection, first amendment San legislation practices and law enforcement dis- Filippo’s “petition” activities must meet the advantageous trucking industry violat- Al- “public concern” threshold. Connick First, ed the Sherman Act. the Court took though the district court concluded some that, principle note of the established if a of Filippo’s speech of addressed matters San restraint of trade is caused otherwise concern,13 public the court concluded that his action, governmental valid there is no Sher- grievances and did not meet that lawsuits 135-36, man Act violation. See id. at threshold. Then, at 528-29. S.Ct. the Court went to Rutgers and the appeal, On prohibit hold that the Sherman Act does not recognize right petition, AAUP that the persons working together two or more from They speech, is not absolute. like freedom attempt persuade government in an griev- argue Filippo’s and lawsuits particular action take that would restrain protected ances first amendment activi- were trade. See id. at 81 S.Ct. at 528-29. ties, content, regardless they unless were upon The Court based its decision two Rutgers contends that the district baseless. First, grounds. the Court reasoned that correctly Filippo’s held that San law- nothing legislative history the Sher- protected grievances suits and were under regulate polit- man Act indicated an intent to petition they addressed clause activity by narrowing ical the channels public matters of concern.14 through which citizens communicate Educ., Bradley Pittsburgh Bd. governing their officials. See id. at (3d Cir.1990), expressly we de- F.2d 1064 then 529-30. Court added: question public clined to reach the whether a Secondly, equal significance, of at least employee protected petition such a construction of the Sherman Act against having clause retaliation filed important ques- addressing solely private would raise constitutional petition a matter of right petition now will ad- tions. The is one of the concern. See id. at 1076. We protected by Rights, Bill question. dress that freedoms part: faculty peers’ attempt funding to secure for a The first amendment states relevant by deceiving funding spectrometer mass federal Congress abridging shall make no law ... (4) agencies; Filippo’s disputes between speech, press, freedom of or of the or of the 1979 and 1986 with senior members of his de- assemble, people peaceably partment “inappropri- over their efforts to obtain the Government for a redress of percentages” grants. ate of his federal grievances. Constitution, United States Amend. 1. Filip- that San 14.The district court’s conclusion activity po engaged in some does not 13. The district court concluded that the follow- wants, dispute make this academic. San ing speech items of addressed matters of (a) that dismissal the fact-finder to be instructed (1) Filippo's concern: 1979 statement in a any all of his lawsuits and in retaliation for newspaper criticizing Rutgers school for inade- grievances amendment viola- labs; (2) constitutes a first quate chemistry ventilation in the tion, (b) argue to the fact-finder Filippo’s testimony, in 1977 and before proximity in time between his 1985 law- grand jury, regarding investigation close into the charges illegal drugs Rutgers’ suits and the decision to file formal manufacture of ries; (3) laborato- criticisms, supports him an inference of retaliation. course, cannot, impute The Court first reiterated lightly to antitrust laws. and we holding these free- an intent to invade Noerr that “no cause of action Congress alleged predicated upon doms. insofar as it [is] [is] attempts Legislative mere to influence the Moreover, 138, S.Ct. at 529-30. Id. at 81 passage Branch for the of laws or the Execu- that there was rejected the contention Court Branch for their enforcement.” Id. at tive rail- Act violation because the a Sherman 510, 92 S.Ct. at 911. The Court further destroy the trackers as purpose was to roads’ stated: competitors: publici- a may situations which There approach philosophy governs The same ostensibly ty campaign, directed toward groups to of citizens or of them administra- action, influencing governmental is mere (which agencies tive are both creatures of actually nothing sham to cover what executive) legislature, and arms of the directly attempt to interfere than an more courts, and to the third branch of Govern- relationships of a com- with the business right to courts ment. The of access of the petitor application and the Sherman right aspect peti- indeed but one justified. But this is certain- Act would be tion. one denied that ly not the case here. No We conclude that it would be destructive making genuine effort the railroads were rights petition of association and of to legislation and law enforce- to influence groups hold that with common interests practices. ment not, violating without the antitrust Accord, 144, 533. Id. at 81 S.Ct. at United laws, procedures use the channels 657, Pennington, 381 U.S. Mine Workers v. agencies state and federal and courts to 1593, 670, 1585, 14 L.Ed.2d 626 85 S.Ct. points advocate their causes and of view (1965).15 respecting resolution of their business and Transport Motor Co. v. California competi- economic interests vis-a-vis their Unlimited, 508, Trucking 92 S.Ct. tors. (1972), 609, L.Ed.2d 642 the Court devel- 30 (citations Id. at 92 S.Ct. at 612 omit- exception oped sham” the “mere ted). Nonetheless, the held that the Court suggested in the Noerr dic- protection clause complaint conduct described in the carriers’ highway regu- carriers Competitors tum. litigation exception fell within the “sham” judicial pro- larly brought administrative and described Noerr and thus stated a claim challenge applica- earners’ ceedings to under the antitrust laws. highway operating rights. The car- tions for unprotected litigation” status of “sham complaint alleging that

riers filed a their again recognized in Bill Johnson’s Res- competitors conspired monopolize trade NLRB, Inc. taurants U.S. instituting actions before administrative (1983), in which S.Ct. agencies and courts to defeat the carriers’ litigation Court announced “baseless acquire operating rights. applications to See is not immunized the First Amendment complaint id. at 611. The right petition.” Id. at 103 S.Ct. at alleged competitors institut- further that the Restaurants, In Bill Johnson’s wait- oppose the proceedings ed carriers’ prac- who unfair ress was fired filed an labor applications regard to the merits of without charge. tice She and other waitresses also cases, prevent the carriers in an effort restaurant, picketed which turn filed a meaningful agen- having from access complaint seeking court both state dam- See id. at 92 S.Ct. at cies and courts. ages injunction against picketing. and an 612. The Court held dis- charge improperly dismissed the com- waitress then filed second trict court Board, alleging plaint failure to state claim under the that the restaurant had operators ''[j]oint Pennington, and a influence 15. In coal labor Noerr efforts to offi- approached Secretary of Labor union had cials do not violate the antitrust laws even Valley regarding and the Tennessee Association competition.” though intended to eliminate selling wage coal to the minimum for contractors U.S. at 85 S.Ct. at 1593. holding the TVA. The Court reaffirmed the thermore, litigation by since sham defini- in retaliation for her state action filed the grievance, National Labor tion a bona rights under the does involve fide exercise seeking to have the restau- Act and it does not come within the first amend- Relations enjoined. The Board is- petition. action ment rant’s state to halt order a cease-and-desist sued (internal quota Id. at at 2170 lawsuit, retaliatory state allegedly omitted). Accordingly, tion the Court con affirmed. the Ninth Circuit enjoinable practice cluded that it is an labor Supreme Court was issue before the § 8 of the NLRA to file a baseless NLRA, whether, of the the under section 8 retaliating against lawsuit with the intent’ of order to may issue a cease-and-desist Board employee rights pro an for the exercise of solely upon showing a court suit halt a state by NLRA. id.16 tected See retaliatory pur- filed for a that the suit was In Highway both Smith v. Arkansas State lack the suit must also pose, or whether 463, 1826, Employees, 441 U.S. 99 S.Ct. 60 recognized that The Court merit. (1979) curiam) (per L.Ed.2d 360 and Minne- only position the suit need Board’s —that Community Colleges sota State Bd. v. sup- retaliatory purpose filed for a —found 1058, Knight, 465 104 S.Ct. 79 U.S. provisions of the port in the broad remedial (1984), L.Ed.2d 299 the Court held that the However, concluded: Act. the Court petition require govern- clause does not weighty countervailing consider- There are every respond ment to communication that allowing against ... that militate ations may peti- the communicator denominate a filing of a suit as the Board to condemn Smith, Highway tion. In the Arkansas State enjoin practice and to its an unfair labor grievances refused to consider Commission In Motor Trans- prosecution. California employees, filed a union on behalf of right recognized that the of access port, we grievances respond would filed aspect an of the First to the courts is Knight, employees individual themselves. petition the Govern- Amendment required public employers a state statute grievances. Accord- ment for redress representatives, not to respond to union but ingly, the antitrust laws as we construed cases, employees. In both individual lawsuit, filing re- prohibiting petition there no clause Court held that was anticompetitive gardless plaintiffs Court, Knight which de- violation. so, doing in unless the purpose intent challenged conduct as the con- scribed for harass- was a “mere sham” filed suit Smith, reject- challenged in verse of conduct be sensitive to purposes. We should ment “they employees’ claim that have ed values in constru- these First Amendment acting in right to force officers of the State present context. ing the NLRA the policy-making capacity official to listen an (citations omit- Id. at 103 S.Ct. at 2169 Knight, setting.” formal particular them a ted). lacking a The Court held that suits at 1065. 465 U.S. scope basis do not fall within the reasonable Smith, protection. The Court recently, of first amendment 472 Most in McDonald v. explained: L.Ed.2d 384 U.S. S.Ct. (1985), question the Court addressed the

The first amendment interests involved provides absolute petition whether the clause private litigation compensation for violat- — interests, charged de- psychological immunity to a defendant rights and ed vindication, faming plaintiff in a letter about the public airing of dis- benefits of plaintiff to the President of the Unit- not advanced when the written puted facts —are Smith, aspirant ed an unsuccessful litigation is based on intentional falsehoods States. Attorney, appointment claims. Fur- as United States knowingly or on frivolous present before Following plained two factors must be Restaurants in Hoe that Bill Johnson’s against on behalf of the NLRB v. Local 939 F.2d injunction ber a civil lawsuit issue: Cir.1991), (3d court held that the district this plaintiff improper motive for must have an request properly the NLRB’s denied suit, bringing no and the suit must have brought by enjoin pending lawsuit the court labor union for breach Hoeber, at 126. basis. See 939 F.2d reasonable of contract. We ex- McDonald, alleg- Rutgers and the AAUP would libel suit brought a regard petitions have us had written two letters to ing that McDonald activities under the first amend- Reagan first when Mr. Reagan Ronald —the petitions ment unless those were “mere President-elect, the second a month af- litigation.” They shams” or “baseless stress of, inauguration accusing Smith ter his — very that none of the narrow limitations the fraud, extortion, things, among other placed right to Court has on the The Court held that rights civil violations. petition involves an examination of the con- provide clause does not absolute They argue petition. tent of the also context; rather, petitioner immunity in that petitions Penning- at issue Noerr and defamatory may are whose communications ton did not address matters of con- in libel he is shown to have be answerable cern, implicitly and therefore those cases re- malice, as defined New York acted with jected proposition petitioning pro- Sullivan, Times Co. only tected under first amendment if the the (1964). reaching In this petition public a of addresses matter concern. conclusion, the Court observed: Rutgers The AAUP contends that “there is petition is cut from the same right The every reason that the lines drawn around the guarantees right petition public employment [the First] cloth the other in be the Amendment, par- petitioners an assurance of a same as those drawn for selfish and is is, everywhere.” Rutgers That the AAUP expression.... ticular freedom of would have us define the contours of the accept petitioner’s claim of absolute To right petition without consideration the immunity elevate the Petition would in right context which that is exercised. special First Amendment status. Clause to contrast, Rutgers argues think —we however, Clause, inspired The Petition persuasively limi- nature of the “[t]he —that liberty by and democra- the same ideals upon petition right upon depends tation speak, cy gave us the freedoms to Rutgers context.” contends that the Su- publish, assemble. These First preme analyzing Court cases the extent of rights inseparable, are Amendment antitrust, petition right labor law granting great- no sound basis for there is necessarily and libel contexts are not instruc- protection to statements er constitutional bar, tive in the at case which concerns the petition to the President than made in a ability government employer aof to dismiss expressions. First Amendment other employee filing griev- an lawsuits and employer. argument ances This McDonald, 472 U.S. at 105 S.Ct. at scope petition right depends of the omitted). (citations upon right the context in which the is exer- in in arguments As the advanced the briefs particularly persuasive cised is because the clear, the case at bar make that, scope speech right right of the free —a canvassed, just Court cases we have while petition right, unqualified like the is stated in nuance, long yield easily depends on do not identi- in terms the first on amendment — single right fied denominator. the context in which that common exercised.17 Hoeber, Rutgers rely upon Filippo argues and the AAUP 939 F.2d at 126. San that, public employ- cases contexts other than because breach of contract lawsuit at from ment/retaliatory discharge support argu- appeared only issue in Hoeber to address of the matters concern, private supports argu- protected regardless the case ment that a lawsuit is — grievances addressing significantly, ment that his lawsuits and it is baseless. Most content—unless private protected matters of concern are contends that our decision in Hoeber petition disagree. under the clause. We Be- on the NLRB v. Local 939 F.2d 118 behalf of (3d Cir.1991) cause this case does not arise in the em- Rutgers’ position. forecloses As context, ployment/retaliatory discharge held, it is not supra, explained in Hoeber we in note point. Restaurants, on following Johnson's Inc. v. Bill NLRB, Many by U.S. other cases cited and the (1983), enjoin similarly inapposite they pend- a court a AAUPare because arise See, Carlson, ing practice e.g., an unfair unless the in other contexts. Milhouse v. lawsuit as labor (3d Cir.1981) plaintiff bringing (disciplinary improper 652 F.2d had an motive for allegedly brought against prisoner proceedings a suit and the suit had no reasonable basis. See right petition difficulty drawing scope meaning- That The same not, however, ful speech distinction between the found depends upon context does Gallemore, petition at issue in Schalk v. further conclusion that mandate the (10th Cir.1990) curiam) (per 906 F.2d 491 should “public concern” threshold Connick speech employee holding other underlies the petition limit in the context of a Schalk, hospital of that employee, ease. employer’s ability discipline a government hospital had hand-delivered to the board general public employee. question four-page describing members a letter her by posed the case at bar is whether —not- management concerns about practic- various withstanding quot- dicta from McDonald hospital. formally rep- es Schalk was ed above—there are contexts which the complaining rimanded for about un- matters petition protects clause values additional to responsibility. related to her area of speech protected those clause. reprimand indicated Schalk would be petition is a ease in which the McDonald discharged if complaints she made further protects clause no value that is not this nature. After Schalk told a board mem- speech clause. The at issue ber that she wanted to meet with the board to discuss concerns akin to in McDonald was letter to the President. those described letter, her she was terminated. Schalk then Knight every that not Smith instruct alleging filed lawsuit that she was fired for communication which the writer denominates to, with, writing speaking a letter and later “petition” imposes government management practices, board members about agency obligation or official addressed an to in speech violation of her first amendment respond. Knight, at See 465 U.S. 104 petition rights. Smith, 1066; at 441 U.S. at 99 S.Ct. Accordingly, at 1828. it is difficult to S.Ct. The Tenth Circuit first held that Schalk’s distinguish any meaningful way between letter and her comments to the board mem- public words contained a letter to the President a ber addressed matter concern. in, analysis example, Id. at 496. In a brief and words contained for an ad- Schalk’s claim, petition clause the court “In stated: appearing vertisement the New York case, right petition the instant to is Schalk’s difficulty presumably Times. This was the inseparable speak. from her As underpinning of the McDonald Court’s hold- such, subject we see no reason to this claim ing public that McDonald’s words about a analysis.” to a different sort of Id. at 498 figure simply should not be immunized be- McDonald). McDonald, (citing inAs be- they appeared cause in a letter characterized “petition” simply a cause the at issue was “petition.” Moreover, as a the reasons for imposing government letter on the no obli- holding that the first amendment does not analyzable gation respond, properly it was maliciously defamatory immunize falsehoods appli- rubric under the conventional Connick newspaper contained in a advertisement speech. cable to equally justify holding that the first amend- maliciously ment does not immunize defama- The case at bar is unlike in the Schalk tory contained in a letter to falsehoods sense that what San characterizes as petition President. There is no in a value “petitions” government- are letters to by that seeks to influence the President employer, grievances but lawsuits and direct- means of false statements. government-employer As context ed at the or its offi- speech, requirement additional purport cials. Submissions of this sort liability malice be shown before im- invoke formal mechanisms for the redress of posed grievances.18 Notwithstanding avoids overdeterrence. this distinc- Lawsuits, compensation having rights grievances,

in retaliation for suit); filed a civil law workers Burton, (8th claims, v. 7 invoking F.3d 736 Cir. a for- etc. share this feature of Goff Maschner, 1993) (same); Smith v. 899 F.2d 940 grievances against mal for redress of mechanism (10th Cir.1990) (same); Newsome, Wright v. occasionally government. the term We use (11th Cir.1986) (same); F.2d 964 Sharp, Duvall v. any invoking encompass a “lawsuit” to device (8th Cir.1990) (arrest alleg 905 F.2d 1188 against grievances mechanism for redress of edly filing rights made in retaliation for a civil government. lawsuit). Button, 415, 429 v. to consider the issue See NAACP tion, court circuit each 328, 335-36, alleges A employee [83 405]. S.Ct. public who held that has clearly disciplined reading in retaliation of these cases shows close that he or she politi- against his or her was concerned about having a lawsuit Court filed § 1983 expression general right state a claim under not the does not cal employer See, a matter of bring lawsuit addressed in a federal court of law. unless the suit ques- Button, Recognizing that the public e.g., concern.19 371 U.S. at 429 S.Ct. [83 one, (“In find ourselves un- we tion is a difficult the context of NAACP ob- 335-36]. reasoning of our jectives, litigation technique able to subscribe is not a differences; circuits. sister it a means resolving private objectives equali- achieving the lawful circuits, has the Seventh Circuit Of these federal, ty government, all of treatment most detail. the issue addressed local, state and for the members (7th Hurst, F.2d 1240 Cir. v. Altman community county. It Negro this 1984) curiam), Mc (per decided before political expression.”). thus a form of This Donald, po held that the Seventh Circuit formulation dovetails with the Connick alleged that he was reas who lice officer pro- first amendment rule that limits the opportunities signed, overtime denied given public employees pro- tection filing in retaliation for otherwise harassed Thus, nouncements on issues. addressing mat employer lawsuit private dispute cannot be constitu- office private concern did not state a claim ters of legal merely filing a action. tionalized explained: § 1983. The omitted).20 (some Id. at 1244 n. 10 citations Supreme Court cases indicate Several is, reject- explicitly That the Seventh Circuit protects person’s the first amendment proposition judicial grievances. ed the clause right to redress of seek Patterson, Towing Corp. [83 Plains 429-31 L.Ed.2d 19. See White (1963), (2d Cir.1993); Day advancing seeking ideas and 405] v. South 991 F.2d Dist., grievances; against Independent 768 F.2d 703 one Sch. redress of retaliation Park denied, 1101, (5th Cir.1985), (or litigation prece- 106 cert. 474 U.S. who institutes its condition 883, (1986); Rathjen litigation, lodging L.Ed.2d 918 v. 88 dent in Title VII of 836, (5th Cir.1989); Litchfield, 842 Rice discourages 878 F.2d charges rights agencies) with civil 716, Transportation, Dep’t 887 F.2d v. Ohio litigation; therefore such retaliation invades a of Cir.1989), (6th grounds, vacated other 720-21 right. First Amendment The weakness is 1001, 3232, 744 110 S.Ct. 497 U.S. premise, broadly. first which is stated too Hurst, 1240, (1990); 734 1244 n. Altman v. F.2d litigation political Some seeks to advance or Cir.1984) curiam); (7th (per Belk v. Town 10 ideas; seeking litigation other the NAACP to 1258, (7th Minocqua, 1261-62 Cir. 858 F.2d public segregation eliminate school is an ex- Thorne, 1072, 1988); F.2d 1073 Gearhart v. 768 ample. litigation private And even when has v, (9th Cir.1985) curiam); (per Kirkpat Renfroe public objectives, than communications rather rick, (11th Cir.) curiam), (per 722 F.2d 715 designed acquaint le- to individuals with their denied, 469 U.S. cert. gal rights scope within the of the First are Burke, (1984). Boyle v. 925 F.2d L.Ed.2d 44 497, Cf. every legal gesture But not Amendment. —not Cir.1991) (1st (dicta). Fu But see 505-06 every pleading protected by legal the First —is (D.N.J. F.Supp. Prockop, chilla v. against litiga- Amendment. Remedies baseless 1987), (reading Transport Motor to California right Amendment's tion do not violate First may support holding public employee that a deterring petition; to nor do laws aimed at 'far against filing a lawsuit re not be retaliated for by requiring pay the loser to out' suits gardless the lawsuit addressed a mat of whether legal winner's fees. concern). public ter of omitted). (citations Id. at 83 S.Ct. at 330-31 Yatvin's sex Because the court concluded that 20. The Circuit reiterated this sentiment Seventh against employer discrimination claim her Dist., Metropolitan School in Yatvin v. Madison rejected purely private objectives, the court Yat- (7th Cir.1988): 840 F.2d 412 employer's vin’s claim that her retaliation violat- petition ed the clause. Id. at 83 S.Ct. at every act of retaliation The contention that however, may, re- 330-31. This conclusion charges wrongdo- against person a who files garded as dictum because the court also held ing public agency a denies freedom of amendment claim was foreclos- right petition that Yatvin's first speech for redress of or the to by her failure to raise the claim below with grievances following syllogism: ed on the rests particularity. S.Ct. at litigation See id. at recognized the Su- sufficient is a method Button, Court, preme as in NAACP protects any for employer access courts reason ment as to power broader exercise than that other the courts serve as fora in regulating speech employees its expression. In Belk v. for Town Minoc government than the as sovereign may exer- (7th Cir.1988), qua, 858 F.2d 1261-62 in regulating cise speech general the Seventh Circuit relied on McDonald as public: support holding public further for its that a power [T]he extra government has employee may be terminated in retaliation in this area comes from the nature of the filing grievance grievance a unless the government’s employer. mission as Gov- public addressed a matter of concern. The agencies ernment charged by are law with

Belk court stated: doing particular Agencies tasks. hire em- Notwithstanding importance the central ployees help to do those tasks as effective- public Connick attaches to the content of a ly efficiently possible. as When some- employee’s speech, Belk asks tous accord paid one salary who is so that she will protection, absolute first amendment with- agency’s contribute to an opera- effective content, regard out any grievance begins tion say things do that detract public employee files or threatens to file. from agency’s operation, effective only legal Not is there no or historical government employer must have some precedent for such a stratification of first power to restrain her. The reason the freedoms, amendment as sug- McDonald government may, in example given gests, special but such treatment above, o£ [high-ranking] fire the deputy [who unjustly would favor those governor’s criticizes her state legislative through foresight who fortuity or mere program] is not that this dismissal would present speech grievance their aas rather narrowly somehow be compel- tailored to a than in some other form. ling government interest. It is that governor (emphasis governor’s Id. at 1262 in original). Again, and the staff have a do, affording job special speech governor treatment justifiably found and the feels grievance “unjust” in a indepen- quieter no subordinate would allow affording special job dent reason exists for them to pro- efficiently. do this more griev- tection to mechanism for redress key to First analysis Amendment against government. ances government decisions, employment then, is argument There is an testing additional government’s this: The interest achiev- public employee’s lawsuits his or ing goals effectively its as efficiently employer by her the Connick concern possible is elevated relatively from a sub- threshold not made in the Seventh Circuit ordinate interest when it sovereign acts as namely, governmental cases: inter relatively a significant to one when it acts ests which led impose public the Court to the employer. government as The cannot re- employee speech concern threshold on would speech strict public large just of the at in appear justify to imposing a similar threshold efficiency.' the of name But where the employee grievances. on lawsuits and Under government employing is someone for the Connick, employers discipline are able to very purpose effectively of achieving its employees speech their speech for unless the goals, may appro- such restrictions well be a public addresses matter of concern. The priate. rationale for this repre distinction is that it — Churchill, U.S.-,-, Waters sents an effort to seek “a balance between (1994). S.Ct. citizen, [employee], the interests of the as a in commenting upon public recognize matters of con employee We that lawsuits and State, cern and the grievances interest of the as an against public can, a employer employer, promoting occasion, efficiency the of the way be divisive much the same public performs through Nonetheless, services it employee speech its em that can be. Connick, ployees.” 142, 103 461 U.S. at independent S.Ct. we believe that there is an rea- Supreme at 1687. recently The Court elabo son —a reason of constitutional dimension— rated on the authorizing govern- basis for protect employee the to an grievance lawsuit or applied 1262. As to communica- at “petition” a F.2d constitutes that sort if it of the is rule petitions, the Connick tions that are first amendment. meaning of the

within goes pub- public employee who that a means im- petition clause first amendment’s New York e.g., by writing to The lic— obligation to an States United poses on dispute is employment that an Times —with those open for channel some at least have being runs the risk “public not of concern” grievances. perceived for redress who seek employer for under- disciplined by public her first amend- of the incorporation Through its private to a taking public to attention draw guarantee amendment’s ment, the fourteenth “petition” one files a dispute. But when one obligation on same “liberty” imposes government’s to appealing over head is not only for Knight stand Smith the states. “peti- citizenry: one files a when general United neither that proposition ask- government and addressing one is tion” required to states are the several nor States what, gov- allegedly, ing to fix government particular whatever “petition” a recognize as duty in its or has failed has broken ernment by one characterized so is communication repair.21 to acts or governmental protest to who chooses adop- governmental example of formal One government But when omissions. —federal grievances for redress tion of a mechanism formally adopts a mechanism or state — bargaining agree- entry a into collective govern- for which grievances those redress proce- grievance for a provides ment accountable, seem it would allegedly isment govern- example Another of formal dure. pur- vital Constitution’s to undermine a adoption of such mechanism waiv- mental good faith files who in one poses to hold that sovereign immunity from suit in the er invoking “petition” arguably meritorious government If sovereign. of that courts disciplined for such be that mechanism could, employer, freely discharge an em- qua very government employee, invocation ployee reason that the for the given petition clause has compliance present with the a claim non-sham order its constitutional invoked such a government-employer, particular mechanism mechanism, the first petition clause of not share the Seventh do imprimatur. We would, employees public amendment applying that not apprehension Circuit’s interests, employee seeking to vindicate their standard retalia- “public concern” Connick unwary trap for the dead letter. be a employee files who of a —and tory dismissal “special treat- constitute would “petition” petition the first amendment clause of petition [that] would right ment a dead letter —or was not intended be through foresight or appendage those who unjustly graceful favor but redundant griev- speech and speech guaranteeing fortuity present their as freedom clauses mere sure, Belk, right petition,” press. To “the other form.” than some ance rather standards, Belk, compatible with law dissent- the same state Circuit in our 21. Like the Seventh Sullivan, 376 U.S. York Times v. from New ing colleague comfort draws (1964), that would the first in McDonald that observation Court's applied letter been written to had the have and the amend- first amendment upon newspaper, was not called the Court speak, publish assemble ment “freedoms to presented question case consider inseparable” hence is no and "there ... are "peti- namely, whether the addressee of greater constitutional granting bar— sound basis McDonald, President) (in could sanc- tion” the petition to the made in a protection to statements pursuing a constitution- the letter-writer for tion expres- First Amendment President than other ally pathway charted of communication 485, at 2791. But at 105 S.Ct. sions." government. language that the Court’s important to note it is very question to a worthy addressed in McDonald was of that the letter-writer is also note It presented and question in Belk apparently the not limit the different from did audience McDonald question Reagan. was defamatory the bar. In McDonald to President the case at for his efforts allegedly was defamed in letter also saw fit to send letter-writer whether one who suing copies virtue of to the letter-writer one or both of the letters Senator disabled of from Helms, of the Presi- three of the House was written to members the fact that the letter Jesse “peti- the and then Director of Representatives, as the thus be characterized dent and could Investigation, Web- William meaning Bureau of the first amendment. Federal ster, tion” of within Edwin well as then Adviser to as Presidential holding was amenable In letter-writer 481, defamed, S.Ct. at 2789. 472 U.S. at Meese. person at of the suit the hands McDonald, prosecutions”23 were, noted in the Court “is cut from and in the Court’s fe- guarantees phrase, the same cloth as the other of licitous “exacted of William and Amendment_” McDonald, Mary,” 472 U.S. at 472 U.S. at in 1689. That was precisely But S.Ct. at 2789. the Court in McDonald one years hundred before the first Congress right petition also to stressed “is an charged with implementing America’s new particular expres- assurance of a freedom of states, Constitution submitted to the for rati- point, right sion.” Ibid. More to the to fication, proposed amendments to that Con- petition pedigree independent has of—and permanently stitution establishing in Ameri- substantially more ancient —-than the free- can right petition law the of and other funda- speech press. doms of point- and The Court rights. mental persuasive There is no reason ed out in McDonald that “[T]he historical right petition for the of to today mean less of long roots the Petition Clause antedate the than it was intended England to mean in Constitution. Bill Rights of ago. three centuries Mary exacted of William and ‘[I]t stated: Right Subjects of petition to remand, On the district court should King.’ Mary, Wm. & Sess. ch. 2.” which, consider any, if of Filippo’s griev particular But Ibid.22 of moment for the ances and “petition,” lawsuits constituted a Parliament, issue before us is that in the Bill and any “petition” whether such was non- Rights, only of right declared sham. fifing of The mere act of a non-sham subjects petition petition King,” constitutionally permissible “to but went on not a ground provide for discharge that “all of a employee. committments [sic ] prosecutions petitioning illegal.” for such are B. Substantial M., Sess., 5,§ factor W. & 2d e. 16 Dec. 1689. right petition attendant, and its Our decision grant to vacate the of indispensable, immunity from summary judgment “committments first petition subject 22. The remote might petition antecedents of the the throne till he had Carta, Magna chapter trace back to petitioned 61 of which first two different ministers of state. provides: neither, justice In case he obtained from he might present petition then a third to the bailiffs, justiciar, ... we any if or our or our or death, prince; upon pain but if found to be wrong any of our servants shall have done was, wrong: consequence in the of which one, way any toward or shall have trans- petition; that no one dared to offer such third gressed any peace security; of the articles of or grievances falling seldom under the notice wrong and the shall have been shown four sovereign, opportunity of the he had little barons, twenty-five barons of the aforesaid let restrictions, redress them. The for some there justic- those four barons come to us or to our are, upon petitioning Eng- iar, which are laid kingdom, laying we are out of the before land, different; and, extremely are of a nature transgression, us the and let them ask that we they promote spirit peace, they while are transgression cause that to be corrected with- upon liberty. no check that of Care must delay. out taken, lest, pretence petition- be under the right lukewarmly But of course acknowl- tumult, ing, subject edged by King guilty any only by be John was exercisable riot or happened opening barons. in the of the memorable and, this, parliament prevent in 1640: it is importance

23. The critical of Parliament’s decla- I, provided by the statute 13 Car. II. st. C. “illegal” penalize subject ration that it was king, that no or either house of petitioning” plain by "for such was made Black- parliament, any alteration in church or Commentaries, stone in his celebrated the series state, signed by twenty persons, shall be above lawyers of law books best known to American approved by unless the matter thereof be three eighteenth early the late nineteenth centu- justices peace, major part or the of the ries: grand jury country; and in London aldermen, mayor, the lord and common coun- happen any inju- If there should uncommon any petition presented by cil: nor shall ry, infringement rights before men- But, tioned, persons more than ten at a time. ordinary under which the course of law is too reach, regulations, by these it is declared the statute I defective to there still remains a fourth 2, right, appertaining subject W. and M. st. c. every subordinate that the hath a indi- vidual, namely, right petitioning petition; and that all commitments king, parliament, prosecutions petitioning or either house of for the and for such are ille- grievances. gal. redress of In Russia we are told law, Blackstone, that the czar Peter established a that no 1 William Commentaries *143. 444 however, argument, this because requires us to consid- address also claim

amendment sup- evidence to that, Filippo has additional contrary to the San argument Rutgers’ er was dismissed in port allegation that he conclusion, his it was entitled to court’s district activity. protected for his Filippo can- retaliation judgment because summary support above as for San described “was a evidence protected conduct his not show position that would not have retaliatory Filippo’s he alleged in the factor substantial activi- protected Albanese, been dismissed absent his F.2d v. action.” Czurlanis Edelstein and Cir.1983). statements of Dean (3d ties —the Wechsler and of Governors member Board explained that courts court The district faculty members the evidence that other based inference retaliation have drawn comparable serious- infractions of committed protect- in time between the nearness on the support unpunished equally yet ness went — discharge. Although the activity ed and protected conduct was position that his his that no fact-finder court believed district motivating factor his dismissal. substantial Filippo’s pro- reasonably that San infer could evidence, we basis of this conclude On the 1983-84 in 1977-1979 and tected activities reasonably find fact-finder could that a motivating his dis- factor were a substantial conduct was a sub- Filippo’s protected Filippo missal, concluded the court dismissal. motivating factor his stantial charges and dismissed up brought on was protected made sufficiently after he soon Filippo argues Rutgers next that San is raise an around 198624 to or statements impute seeking to to the inappropriately inference of retaliation.25 the im of the Board of Governors members responsible proper motives of those outset, disagree with the district we At the Rutgers con bringing charges against him. Filippo’s protected ac- that San court’s view that, Department tends under Monell far 1983-84 too in 1977-79 and were tivities Services, 98 S.Ct. U.S. Social any support inference in time removed (1978) Pra St. Louis v. 56 L.Ed.2d 611 and Although a occurs dismissal that retaliation. protnik, 485 U.S. activity might not ordi- protected years after (1988), University retaliation, inference of narily support an if can held hable the Board members be here, engages in where, plaintiff subse- personally to dismiss San determined activity plaintiff and quent protected on basis of his first amendment activities shortly episode after the final dismissed knowingly acquiesced the decision to do activity, a fact-finder protected such by approving both the decision so aggregate reasonably infer that it was this, allegedly improper for it. But basis retaliatory protected that led activities Filippo, too narrow according to San particu- would inference be dismissal. This liability: Filippo’s view, in San standard can that the larly strong plaintiff if show University should held hable pretext which to lacked a decisionmaker (a) charges concludes that fact-finder shortly until before plaintiff dismiss the initiated in retalia against San were time of dismissal. first tion the exercise of his amendment temporal proximi- Rutgers argues (b) “de rights the Board members were protected activities ty between San liberately to that fact. indifferent” against him proceedings disciplinary and the Monell, that, itself, Court held cannot, inference that support an gov- although municipalities other local activity factor was substantial bodies can be U.S.C. retaliatory erning action. We need sued alleged page supra. referring See was to San fee." presumably 24. The court disputes charges against of his Filippo's department orally November, with senior members him informed "inappro- their efforts to obtain over 1985. grants, priate percentages" of his federal University complaint particularly found the district activities October, chemistry department's about the public concern are described matters of address attempts improperly from his funds to divert briefly supra. at note guise "shop-user's grants of a federal under the

445 1983, liability imposed on in sup- § cannot be such There is evidence the record to theory liability port entity on a of vicarious Ware’s claim that the Board acted Rather, entity’s employees. with deliberate the torts indifference to her First body only governing rights approving can be held hable Amendment in a local her termi- Monell, policy official or custom. See nation. ... The record for an contains evidence at 98 at 2037-38. A that board S.Ct. members knew about Ware’s by policy-maker, single decision a final stand on the bond issue and were law, by may defined state constitute official informed of her belief that her termination Cincinnati, City policy. Pembaur v. was in retaliation for that See stand.... Not- 469, 480-81, 106 1292, 1298-99, withstanding 475 S.Ct. U.S. above indications that the (1986). Rutgers argues superintendent’s] L.Ed.2d 452 that board knew [the 89 recom- only the Board of Governors is the final mendation was in retaliation for Ware’s case, issue, policy-maker position in this and that the Board on the bond the board made retaliatory independent motive it no investigation, did not have when asked [the Filippo. superintendent] questions voted dismiss San no about reasons for his decision.... The evidence only that he contends need jury question is sufficient to create a on show that the Board members were “deliber whether the board acted with deliberate ately fact that indifferent” he had been indifference to Ware’s First Amendment brought up charges in retaliation for the rights approving superintendent’s] in [the rights. exercise of his first amendment He recommendation. Canton, Harris, City relies on Ohio 489 Id. at 819-20. 412 U.S. (1989), in which Court held agree We with the Tenth Circuit its police Canton’s failure to train officers to application of the deliberate indifference give medical attention could be a basis for standard of Canton is most consistent with “ liability § imposing 1983 “the failure to the in municipali- ‘admonition Monell that a train to deliberate indifference to amounted] ty only § can be liable under 1983 where its rights persons police with whom the policies moving are the force [behind] ” into contact.” Id. at 109 [came] S.Ct. Ware, constitutional violation.’ 902 F.2d at explained 1204. The Canton Court Canton, 388-89, (quoting 819 489 U.S. at 109 use of the deliberate indifference standard 1204U05)(citations omitted). S.Ct. at Nor is was most consistent with the Court’s “admo this use of the deliberate indifference stan- municipality nition Monell that a can be City dard Louis v. inconsistent with St. § policies liable under 1983 where its Praprotnik, U.S. S.Ct. ‘moving are the force the constitu [behind] (1988) (plurality opin- L.Ed.2d 107 ” 388-89, 109 tional violation.’ Id. at S.Ct. at ion). Praprotnik recognized that final deci- omitted). (citations 1204-05 sion-making power delegated, be governing body may that a local be held The Tenth Circuit extended Canton to a upon delegat- the exercise of this liable based analogous situation to the case at bar power. ed id. at at 924- See v.Ware School Dist. No. Unified 25. But the Court added: (10th Cir.1990). plaintiff F.2d 815 Simply going along discretionary served deci- Ware as clerk to school board and subordinates, secretary superintendent by sions made one’s howev- the school er, alleged superintendent delegation district. She that her is not a to them of the authority policy. equally had recommended to the board that to make It she presumption dismissed retaliation for her consistent with a speech, faithfully attempting and that the board had acted with subordinates are policies supposed comply deliberate indifference to her first amend- with the that are rights approving guide ment the termination. them. It would be different rejected argu- particular if a decision a subor- Ware the board’s matter facts, policy ment that limited to dinate cast in the form of a Canton be its expressly approved held: statement and Filippo presented to district the It would also be San policymaker. supervising reason to that the Board had if a of decisions court evidence matter series a different Filippo’s prior protected suspect a “cus- that San official manifested by a subordinate motivating supervisor which activities had been substantial usage” of the tom or But the mere in the decision to initiate dismissal aware.... factor have been must noted, magistrate judge of a subor- investigate proceedings. the basis As the to failure discretionary replete does not with evidence which decisions “the record is dinate’s regarding policymaking that the information San delegation indicates amount to (as here) the was known authority, especially Filippo’s protected where activities well decision the Board.” the subordinate’s members of wrongfulness of to the individual 15). (A.2152 Moreover, retaliatory or other dis motive Wechsler’s from a n. arises at the senting opinion discloses awareness rationale. unstated Filippo’s contention Board of San level the In addition at 927-28. 108 S.Ct. Id. at faculty Panel that before the Senate other to investi- holding the “mere failure that to perform uncom had had students members discretion- gate of a subordinate’s the basis them, yet not disci pensated work for were make the subordinate ary does not decisions” (A.325). Finally, opinion the Board’s plined. Praprotnik Court policy-maker, the a final attorney, that Ira recognizes San governing implicitly held that local also argued charges “the Goldberg, had that failure to for the body not liable mere brought against Filippo Professor were by policy-maker. final investigate personal based on a ‘vendetta’ fabrications stan- indifference” use of a “deliberate Our by Department.” against members of his him University liable for make the dard not does Ware, (A.304). to this evidence suffices As investigate failure to Board’s mere —that regard create a for the fact-finder question if, liable is, University would be act ing whether the ultimate decision-maker the deci- to the motivation behind oblivious plain to ed with indifference deliberate to initiate charge San sion to rights by approving amendment tiff’s first had decided proceedings, Board dismissal plaintiff be dism recommendation wholly legitimate for to dismiss issed.26 amount a scenario would not reasons. Such to of the Board indifference deliberate Filippo’s procedural process III. due rights. The sce- amendment Filippo’s first claim however, Filippo, by San nario described Filippo also asks us vacate fail- goes that of an oblivious Board beyond summary judg- grant court’s investigate. the district ing to procedure, It are recent in Wa- dence should, conducted. Court's decision -, Churchill, however, -U.S. ters be the care that a reasonable (1994) provides sup- additional making employ- manager would use before an port Canton indif- our use of the "deliberate discharge, suspension, repri- ment decision— Waters, in the case at In standard bar. ference” mand, or whatever else—of the sort involved question whether the the Court addressed correctly particular case. Justice Scalia gov- applied what the test should Connick normally points out that such care is not con- said, thought employee employer ernment required stitutionally has employee unless the ultimately was the fact-finder determines what property job, in her but we interest position, Court took an intermediate said. The holding inadvertently possibility believe accept employer's should that a court exercising punishing her First someone for conclusions, employer was but if the factual rights necessary. makes such care Amendment arriving Id. at those conclusions. reasonable in at-, By holding that Id. S.Ct. at 1881. -, elaborating at 1881. University may liable if a fact-finder be held reasonable conduct an would constitute what finds the Board of Governors was deliberate- explained: employer, the Court ly possibility pro- dismissal indifferent upon employment action is what based If an ceedings were initiated said, supposedly employee a reasonable for the exercise of his first retaliation amendment recognize supervisor would that there is sub- similarly require employer rights, we actually said likelihood that what was stantial of care” to avoid "tread a certain amount protected, manager tread with must inadvertently punishing some- possibility of “the care. This not be the certain amount of need rights.” trials, exercising [his] First Amendment rules of evi- one with which with their care process claim. procedural represented attorneys, ment on his due two Ira and Pame- la Filippo argues process Goldberg, that his due and a union provided counsellor AAUP, by Rutgers rights were violated because the five mem- the Dr. Wells Keddie. bers of the Senate Panel that conducted the knowledge With the and consent of San hearings and recommended that he be dis- Filippo’s Keddie, attorneys, 5; Dr. on March impartial were not missed decision-makers panel chair, sent memorandum to the proceeding by the was because tainted Szatrowski, copied Dr. Filippo to San and his appearance impropriety. Specifically, the attorneys. The memorandum suggested var- Filippo alleges in his Third Amended ways ious to deal with time scheduling Complaint: problems: panel negotiat- members of the [The] were I single don’t have a original good or idea ing Rutgers chiefly with the Administrator bind, as to how to resolve the time but

responsible supervising prosecution for the things there are some which might miti- compensation, of the case for additional gate impact upon the committee mem- giving thus them financial incentive bers. One of you them is the course are proceedings, the outcome of the in that already pursuing, seeking of some re- they reasonably they would believe that lief from normal duties while this demand- get compensation only would additional if ing activity proceeds. It seems to me that their final decision to the was favorable if the proceedings cannot by be concluded Furthermore, May date, Administrator. all the con- entirely ap- it would be compensation propriate tacts for such additional request equivalent secret, leading were held in thus pay you Summer Session for all of appearance impropriety part you (yourself) on released time those of “summer upcoming Panel. vacation” tri- possibility might mester. But another well magistrate judge Both the and the district considering: be worth released time after rejected Filippo’s argument that a this is all over to enable committee mem- reasonably fact-finder could infer that time, up bers to make for considerable lost panel they members believed were more like- energy, opportunity. ly compensated they to be if recommended suggested Dr. Keddie panel also mem- addition, that San be dismissed. provided bers “be meals and accommoda- magistrate judge and district court re- tions.” jected Filippo’s argument that the “se- negotiations compensation cret” about creat- it hearings When became clear that appearance ed an impropriety. agree commencement, We would not conclude before with the magis- conclusions reached Filippo’s attorney, Szatrowski asked San Ira judge trate Goldberg, any objection and district court. if he had to Szatrow- Cole, asking ski Dr. Susan Vice President for composed The Senate Panel was five University Personnel, Administration and members, faculty chosen lot after for- compensation panel summer for the mem- peremptory challenges, eause and whose re- Goldberg bers. Szatrowski and both testi- sponsibility hearings was to hold and deter- Goldberg fied their affidavits that voiced charges brought against mine whether the objection no “good and wished Szatrowski were true and constituted luck.” grounds for panel his dismissal. The meetings twelve after it convened on requested Decem- When first Szatrowski additional evidentiary ber 1986 and before the compensation hear- released time in the and/or ings began. spring Between March request Cole denied the be- 22, 1987, September panel forty- panel devoted cause she believed that the members days evidentiary hearings. six already obligation After clos- partici- were under an ing arguments, panel pate compensation. held another twelve without extra In late meetings produced forty-four it spring, request before Szatrowski renewed the page report light on December length hearings of the and the Throughout hearings, panel fact that certain members were ordi- impermissi- has held that the Court to be in attendance required

narily not realistic and pecuniary interest must be By letters dated ble summer. Rutgers over Jerrico, more than “remote.” Marshall granted the members July Cole Inc., 1610, 1617, compensation and re- extra requested their (1980). find no evidence of this We Filippo was not told time. San lease support in the record to a conclusion decision. they more panel believed that were members increases were the summer Shortly after compensated they recom- likely to be Cole for further asked granted, Szatrowski Filippo’s dismissal.' mended San when it became compensation additional into hearings would continue that the alternatively argues clear Filippo San that when Szatrowski hearings fall. Cole testified participation in the panel members’ matter of further about the approached compensation her negotiating for additional while panel was “told him when payments, impropriety. she appearance an of See created business, that we could dis- its Coatings Corp. finished with v. Continen- Commonwealth similarly again.” Co., 145, 150, Szatrowski cuss the matter Casualty 89 S.Ct. tal (arbitration (1968) 337, 340, testified: unbiased but must grant panel to “not must be refusal [the I asked this When bias”). regardless appearance of Under also avoid compensation] meant more Coatings, prevail on an spent on to time Commonwealth of additional of the amount process carrying “appearance impropriety” due by panelists while this matter duties, claim, Filippo must establish both that there would be no San normal out their question in one to com- the events would cause for additional consideration further impartiality future, reasonably question panel’s Dr. Cole indicated pensation possi- and that the information was concealed from no consideration would be that there Filippo much of the completion Filippo. San makes of the hear- until after ble meetings fact that he was not told about the ings. however, Cole; in between Szatrowski and final panel issued its Ultimately, after suggested that light of the fact that Keddie Filippo recommending that San report subject com- Szatrowski broach the of extra dismissed, panel that the Cole recommended meetings do not have the pensation, these compensation. extra members receive Filippo suggests. invidious character San scenario, San Fi- upon this factual Based Finally, Filippo argues that he should panel members would lippo alleges that opportunity depose an outcome in have had the Szatrow- tempted to reach have been they what was said the conver- would have be- ski determine Rutgers’ favor because likely get sations between Szatrowski and Cole. San they more extra lieved that were that, Filippo although he noticed they agree so. with contends compensation if did We August all deposition judge and district court Szatrowski’s magistrate stayed support discovery after November 1989 evidence to there is insufficient summary judgment motions for faculty members believed when the inference noted, filed. As the district court receipt compensation was tied to were that their explain why Filippo has failed to Szatrowski proceedings. The cases the outcome of deposed August partic- in which the was not before by Filippo are cases cited 1989— during ularly, why deposed adjudicator financial interest in he was had a direct Ohio, See, Tumey and fall of 1989 when San e.g., v. 273 summer the outcome. 437, 444, deposed and former offi- 510, 531, 71 L.Ed. 749 nine other current U.S. Moreover, (1927) Rutgers. employees acting judge shared in the cials (mayor him); expects how he does not indicate Ward Vil- San fees and costs levied Monroeville, 57, 60, testimony deposition of Szatrowski lage U.S. (1972) testimony (mayor respon- differ from the found Szatrow- affidavit, 2,1990. For April dated these not act as ski’s village sible finances could reasons, conclude that the district court provided we judge fines and forfeitures when funds). refusing not abuse its discretion village did portion substantial delay summary lish, judgment decision on the and assemble. These First Amend- until rights inseparable, motions a chance to ment are and there is depose Szatrowski. no sound for granting greater basis consti- protection

tutional to statements made in a petition to the President than other First IV. Conclusion expressions. Amendment reasons, foregoing For we affirm in 472 U.S. at 105 S.Ct. at 2791. The part part and vacate the order of the same holds true when the is ad court. affirm district We the district court’s dressed to the university courts offi grant summary judgment in Rutgers’ fa- cials. Filippo’s process vor on San due claim. We view, my Court would be grant summary vacate the district court’s surprised that, although, to learn as a result judgment Rutgers’ favor government’s of “the nature of the mission as claim, pro- first amendment and remand for (such employer,” employer as Rut- ceedings opinion. consistent this gers) can fire “begins say someone who or things do agency’s that detract from the BECKER, Judge, concurring Circuit and operation” long effective so speech as the is dissenting. concern, on a private matter of Waters v. agree major- While I all with almost — Churchill, -, --, U.S. 114 S.Ct. ity opinion, join I cannot in the conclusion to 1878, 1888, (1994) (quoted in IIA, pages holding Part 33 to that a 441), Majority government at the cannot fire public employee under the Peti- the same individual if speaks he or she after having tion Clause retaliation for invoking a formal mechanism for the redress (in filed the nature of a lawsuit or (or forum). grievances speaks through that grievance) addressing pri- purely a matter of Clause, an interpretation Such of the Petition adopt I position vate concern. would the making rather than “trap that clause a for the seven other circuits which hold that a unwary” majority the as the contends would public employee plaintiff “peti- who has consequence my interpretation, be the Ma- position tioned” is in no better than one who jority at an wary invitation to the merely speech. has exercised free Ma- See speech formulate their private on matters of circuits). jority (listing at 440 n. 19 concern grievance as a lawsuit or in order to being disciplined. avoid justification I This would under- need not offer extended for government’s mine my special position, majority for role as already has employer. describing done so when these other circuits’ pages opinion.

views at 19 to Al- 33 of its majority argues that contrast though majority then arrives at a conclu- concern, speech private on a matter of “when preceding sion contradistinction to its ‘petition’ appealing one files a one is not over analysis, majority’s supporting rationale government’s general citizenry: head to the pales by comparison its conclusion with the ‘petition’ addressing when one files one is reasoning of the other circuits and with the government asking government and to fix Smith, logic of inexorable McDonald v. 472 what, allegedly, government has broken or U.S. 105 S.Ct. duty repair.” Majority has failed in its at (1985). nutshell, simply In a I do not believe 442. But the libelous letter to the President government adopts the fact that the McDonald, 484-85, at issue at U.S. gives formal redress mechanism one who 2790-91, 105 S.Ct. at the form took of an pursues protection person it more than if the government gen- address to than rather written letter to the editor or made a citizenry, yet eral the Court held that speech. explained As the Court greater the letter received no constitutional McDonald: protection as a result. And the fact that San inspired by The Petition Clause ... Filippo’s speech government was addressed did liberty democracy same ideals of any disruptive not make it less of the work- gave speak, pub- place us the freedoms to environment than it had addressed in lieu of indeed, there is a more speech may- “petition,” when public; general Moreover, even if all speech. it still conventional disruptive because more been have speech (given (lawsuits, petitions now example, constitute are public reached record) and, addition, Supreme Court has interpretation the broad public matters why speech), I not see it respond given to do matters university to to the compelled the overlap. There guarantees were grievances. lawsuits certainly petitions that did constitute under- argues that it would majority speech when the First Amendment rati- purposes to allow mine the Constitution’s fied, meaning that the two clauses were not invoking punish someone government to initially adopted. In addi- when redundant given government has to which mechanism tion, guarantees of the First Amendment’s Majority at imprimatur.” “its constitutional press speech and a free also substantial- free However, imprima- constitutional Tribe, H. Ameri- ly overlap. See Laurence applies equally to the Petition Clause tur of Law, § at 971 & can Constitutional in Mc- at issue to the President the letter (2d 1988). Branzburg v. nn. 2-3 ed. Cf. grievances to the lawsuits Donald as 2646, 2658, Hayes, sovereign immunity By waiving issue here. (1972) (“It generally been L.Ed.2d 626 has procedures, adopting grievance to suit does not held that Amendment First statutory/regu- special may give government right of guarantee press a constitutional these mechanisms as latory imprimatur to special information not available petitions such other forms opposed to generally.”). At the Petition Clause least special letters, give them a it does not but emphasizing the function of serves free- Moreover, imprimatur. constitutional directly petition government is an dom to regulatory impri- given its government has speech and important part of freedom of issue in McDonald letter at matur to the deleting petition prevents courts from House that setting up an office in White in right. stated Mc- As the Court respond correspondence. designed to is Donald, petition “is an assurance least, the state’s waiv- Finally, for lawsuits at expression.” particular freedom of immunity specific sovereign is not er of Thus, 105 S.Ct. at 2790-91. U.S. employees and thus by public suits majority’s argument letter” cannot “dead recognition employ- of an as a be at all meant carry day. repeated lawsuits right to file ee’s SLOVITER, Judge, Chief Present: employer. or her BECKER, STAPLETON, MANSMANN, Nor, petition mecha- by adopting such HUTCHINSON, SCIRICA, GREENBERG, nisms, in- government somehow does the COWEN, NYGAARD, ROTH, LEWIS and having in employee’s interest free crease the McKEE, POLLAK, Judges, and Circuit employer’s deci- protest his or her license to Judge.* District example, San would sions. For have protesting fail- interest had the same FOR REHEARING SUR PETITION chemistry department to recom- ure of the professorship if him a full mend for Aug. pro- university adopted grievance had not by appel- petition rehearing filed for that this interest cedure. Connick declares having been in the above case lees entitled university’s outweighed by interest in judges participated in submitted to the who regulating its work environment. court and to all other the decision this judges regular circuit active majority’s suggestion that available ser- Finally, the vice, judge no who concurred the Pe- contrary interpretation would render having rehearing, hyperbolic. asked for decision tition Clause a letter” “dead judges regular alia, majority of the ac- have circuit Inter the clause would still use * nia, Pollack, sitting by designation. Dis- Honorable Louis E. United States Judge Pennsylva- trict for the District Eastern having rehearing tive service not voted for banc, rehearing

the court BECKER, Judges

is denied. HUTCHIN- granted have re-

SON SCIRICA would

hearing.

Joseph WILMER, United States of

America, rel., Appellant, ex JOHNSON, Director,

Nathaniel Pretrial Philadelphia

Services Division of Court Pleas;

of Common The District Attor

ney County; Philadelphia The Attor

ney Pennsylva General State

nia.

No. 93-1283. Appeals,

United States Court of

Third Circuit. 34.1(a)

Submitted LAR Under Third Circuit

April 1994. July

Decided

Case Details

Case Name: San Filippo v. Bongiovanni

Court Name: Court of Appeals for the Third Circuit

Date Published: Jul 21, 1994

Citation: 30 F.3d 424

Docket Number: 93-5658

Court Abbreviation: 3rd Cir.