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Text of Jones's Appeal

Friday, July 31, 1998

Following is the text of Paula Jones's appeal as released by the Rutherford Institute Friday morning. Because parts of the case are under seal, some material has been redacted.

Preliminary Statement | Argument

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

WILLIAM JEFFERSON CLINTON
and DANNY FERGUSON, Appellees

APPEAL FROM JUDGMENT OF THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS, WESTERN DIVISION

BRIEF FOR APPELLANT

July 30, 1998

SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT

    Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example . . . . If the Government becomes a law-breaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.

Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting).

This is a unique opportunity for the law to fulfill its paramount function to "teach the whole people by its example." This appeal invites the Court to reestablish fundamental principles of decency, humanity and respect for the law. At issue are the limits of power and privilege. At stake are human dignity and equality under the law. The opportunity presented by this case will not likely arise again.

This is a civil rights case seeking redress for serious abuses of power by William Jefferson Clinton, when he was Governor of the State of Arkansas, and by Danny Ferguson, a former member of the Arkansas State Police. We respectfully request 30 minutes of oral argument. Although the underlying facts are relatively simple, the intensity of the litigation below has produced a record that is voluminous and complicated. The applicable law is developing rapidly in response to the escalating problem of sexual harassment. This case is uniquely significant because one of the defendants is the President of the United States and, perhaps more importantly, because the President is currently under investigation for possible criminal activity in opposing our efforts to obtain evidence in this very civil action.

 


   

 

TABLE OF CONTENTS

SUMMARY OF THE CASE AND REQUEST FOR ORAL ARGUMENT i

TABLE OF AUTHORITIES vi

PRELIMINARY STATEMENT xi

STATEMENT OF THE ISSUES xii

STATEMENT OF THE CASE 1

Nature of the Case 1

Course of Proceedings and Disposition Below 1

Statement of the Facts 4

SUMMARY OF THE ARGUMENT 16

ARGUMENT 17

I. THE DISTRICT COURT ERRED BY GRANTING SUMMARY JUDGMENT ON THE EQUAL PROTECTION CLAIM UNDER SECTION 1983 17

A. The Standard of Review Is De Novo 17

B. To Recover Under Section 1983 for Sexual Harassment, It Is Not Necessary To Prove Harassment by Title VII Standards 18

C. Substantial Evidence Proves That Mrs. Jones Was Subjected to a Hostile Work Environment, Even by Title VII Standards 21

II. THE DISTRICT COURT ERRED BY DISMISSING THE DUE PROCESS CLAIM UNDER SECTION 1983 27

A. The Standard of Review Is De Novo 27

B. The Complaint States a Claim of Egregious Sexual Misconduct Violating the Due Process Right to Bodily Integrity 28

 

III. THE DISTRICT COURT ERRED BY GRANTING SUMMARY JUDGMENT ON THE CONSPIRACY CLAIM UNDER SECTION 1985 29

A. The Standard of Review Is De Novo 29

B. The Dismissal of the Section 1985 Claim Was Error Because It Was Based on the Erroneous Dismissal of the Section 1983 Claim 29

C. To Recover Under Section 1985, It Is Not Necessary To Prove Every Element of a Claim Under Section 1983 30

IV. THE DISTRICT COURT ERRED BY GRANTING SUMMARY JUDGMENT ON THE CLAIM OF OUTRAGEOUS CONDUCT 33

A. The Standard of Review Is De Novo 33

B. The District Court Erred in Holding That No Rational Jury Could Find That Mr. Clinton’s Conduct Was Extreme and Outrageous 33

C. The District Court Erred in Holding That No Rational Jury Could Find That Mrs. Jones Suffered Severe Emotional

Distress as a Result of Mr. Clinton’s Conduct 38

V. THE DISTRICT COURT ERRED BY GRANTING SUMMARY JUDGMENT DESPITE THE SUBSTANTIAL EVIDENCE OF OBSTRUCTION OF JUSTICE AND OTHER MISCONDUCT 41

A. Evidence of Obstruction, Subornation of Perjury and the Like Creates an Inference That the Wrongdoer’s Entire Case Is Weak 41

B. The Record Contains Substantial Evidence of Obstruction of Justice, Subornation of Perjury and Other Misconduct by the Defendants 42

VI. THE DISTRICT COURT ERRED BY CUTTING OFF DISCOVERY OF EVIDENCE RELATED TO MONICA LEWINSKY AND BY RULING ALL SUCH EVIDENCE INADMISSIBLE 44

A. The Standard of Review Is Abuse of Discretion 44

B. It Was an Abuse of Discretion To Exclude, Based on a Pending Criminal Investigation and in the Midst of Discovery, the Lewinsky Evidence 45

CONCLUSION 50

CERTIFICATE OF SERVICE 51

ADDENDUM 52

Memorandum Opinion and Order dated August 22, 1997 tab 1

Order dated January 29, 1998 tab 2

Memorandum and Order dated March 9, 1998 tab 3

Judgment dated April 1, 1998 tab 4

Memorandum Opinion and Order dated April 1, 1998 tab 5

Rorie v. United Parcel Service, Inc., No. 97-3678,

1998 WL 410670 (8th Cir. July 23, 1998) tab 6

 

 

TABLE OF AUTHORITIES

Cases Page(s)

Alexander v. Peffer, 993 F.2d 1348 (8th Cir. 1993) 27

Anderson v. Liberty Lobby Inc., 477 U.S. 242 (1986) 18

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

(3d Cir. 1990) xi, 19

Angle v. Alexander, 945 S.W.2d 933 (Ark. 1997) 41

Arlington Heights v. Metropolitan Housing Development Corp.,

429 U.S. 252 (1977) 21

Ascolese v. Southeastern Pennsylvania Transportation Authority,

925 F. Supp. 351 (E.D. Pa. 1996) xi, 19, 20

Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103 (8th Cir. 1998) 25

Beardsley v. Webb, 30 F.3d 524 (4th Cir. 1994) 18, 26

Bieter v. Blomquist, 987 F.2d 1319, 1320 (8th Cir.),

cert. denied, 510 U.S. 823 (1993) 17

Bohen v. City of East Chicago, Indiana, 799 F.2d 1180 (7th Cir. 1986) xi, 19, 20

Burlington Industries, Inc. v. Ellerth, U.S. , 118 S.Ct. 2257 (1998) 21

Burns v. McGregor Electronic Industries, Inc., 955 F.2d 559

(8th Cir. 1992) xi, 24, 26

Clinton v. Jones, 520 U.S. 681 (1997) 2

Crawford v. Runyon, 37 F.3d 1338 (8th Cir. 1994) 17, 18

Crenshaw v. Georgia-Pacific Corp., 915 F. Supp. 93 (W.D. Ark. 1995) 35

Croom v. Younts, 913 S.W.2d 283 (Ark. 1986) 37

Davis v. Passman, 442 U.S. 228, 234-35 (1986) 18

Davis v. Tri-State Mack Distributors, Inc., 981 F.2d 340

(8th Cir. 1992) xiii, 33, 34, 35, 36

Davis v. U.S. Postal Service, 142 F.3d 1334 (10th Cir. 1998) 26

Duckworth v. Rice, 83 F.3d 999 (8th Cir. 1996) xiv, 48

Erickson v. Newmar Corp., 87 F.3d 298 (9th Cir. 1996) 44

Escamilla v. City of Santa Ana, 606 F. Supp. 928 (C.D. Cal. 1985) 31, 32

Estes v. Dick Smith Ford, Inc., 856 F.2d 1097 (8th Cir. 1988) xiv, 45, 48

Faragher v. City of Boca Raton, U.S. ,

118 S.Ct 2275 (1998) 23

Favors v. Fisher, 13 F.3d 1235 (8th Cir. 1994) 42

Garrison v. Burke, No. 91 C 20150, 1997 WL 37909

(N.D. Ill. January 27, 1997) 32

Great Am. Ins. Co. v. Horab, 309 F.2d 262 (8th Cir. l962) xiv, 42

Griffin v. Breckenridge, 403 U.S. 88 (1971) xii, 30

Haberthur v. City of Raymore, Missouri, 119 F.3d 720 (8th Cir. 1997) xii, 27, 28

Hale v. Ladd, 826 S.W.2d 244 (Ark. 1992) 33, 34

Hardin v. Hussmann Corp., 45 F.3d 262 (8th Cir. 1995) 17

Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) xi, 21, 25

Hawkins v. Hennepin Technical Center, 900 F.2d 153 (8th Cir. 1990) xiv, 45, 48

Heyne v. Caruso, 69 F.3d 1475 (9th Cir. 1995) xiv, 47

Hillebrand v. M-Tron Indus., Inc., 827 F.2d 363

(8th Cir. 1987), cert. denied, 488 U.S. 1004 (1988) 18

Hishon v. King & Spalding, 467 U.S. 69 (1984) 27

Hollomon v. Keadle, 931 S.W.2d 413 (Ark. 1996) 33

Johnson v. Minn. Hist. Soc., 931 F.2d 1239 (8th Cir. 1991) 17, 18

Johnson v. Nyack Hospital, 169 F.R.D. 550 (S.D.N.Y. 1996) 48

Jones v. Clinton, 72 F.3d 1354 (8th Cir. 1996) 2

Jones v. Clinton, 869 F. Supp. 690 (E.D. Ark. 1994) 1

Jones v. Clinton, 974 F. Supp. 712 (E.D. Ark. 1997) 2, 27, 28, 38

Jones v. Clinton, 990 F. Supp. 657 (E.D. Ark. 1998) 4, 20, 24, 25, 29, 30, 33, 34, 35, 38, 41, 43

King v. Board of Regents of the University of Wisconsin System,

898 F.2d 533 (7th Cir. 1990) xi, 19

Larson v. Miller, 76 F.3d 1446 (8th Cir. 1996) xii, 30, 31

Leichihman v. Pickwick Int’l, 814 F.2d 1263 (8th Cir.),

cert. denied, 484 U.S. 855 (1987) 17

Lucas v. Brown & Root, Inc., 736 F.2d 1202 (8th Cir. 1984) xiii, 37

Manning v. Metropolitan Life Insurance Company, Inc.,

127 F.3d 686 (8th Cir. 1997) xiii, 36, 41

Martin v. Norris, 82 F.3d 211, 216 (8th Cir. 1996) xiv, 42

M.B.M. Co. v. Counce, 596 S.W.2d 681 (Ark. 1980) 33, 37

McQuay v. Guntharp, 963 S.W.2d 583 (1998) xiii, 35, 37

McQueeney v. Wilmington Trust Co., 779 F.2d 916 (3d Cir. 1985) xiv, 42

McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191 (4th Cir.),

cert. denied, U.S. , 117 S.Ct. 72 (1996) xii, 29

Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986) 21

Migis v. Pearle Vision, Inc., 135 F.3d 1041 (5th Cir. 1998) 32

Milam v. Bank of Cabot, 937 S.W.2d 653 (Ark. 1997) 33

Mullen v. Princess Anne Vol. Fire Co., 853 F.2d 1130 (4th Cir. 1988) 47

Phillip v. ANR Freight Sys., Inc., 945 F.2d 1054 (8th Cir. 1991) 48

Quick v. Donaldson Co., Inc., 90 F.3d 1372 (8th Cir. 1996) 18

Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991) 24

Rorie v. United Parcel Service, Inc., No. 97-3678,

1998 WL 410670 (8th Cir. July 23, 1998) 23

Sepulveda v. Ramirez, 967 F.2d 1413 (9th Cir. 1992),

cert. denied, 510 U.S. 931 (1993) xii, 29

Shortbull v. Looking Elk, 677 F.2d 645 (8th Cir. 1982) 30

Smith v. St. Louis University, 109 F.3d 1261 (8th Cir. 1997) 25

Taylor v. Metzger, 706 A.2d 685 (N.J. 1998) 24

Torres v. Pisano, 116 F.3d 625 (2d Cir. 1997) 24

United Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825 (1983) 30

Wiggins v. Hitchens, 853 F. Supp. 505 (D.D.C. 1994) 31

Statutes Page(s)

Civil Rights Act of 1871 18

Civil Rights Act of 1964 19

28 U.S.C. § 41 x

28 U.S.C. § 1291 x

28 U.S.C. § 1294(1) x

28 U.S.C. § 1331 x

28 U.S.C. § 1332 x

28 U.S.C. § 1343 x

42 U.S.C. § 1983 i, xiii, x, xi, xii, 1, 18, 19, 20, 21, 28, 29, 30, 31, 35, 50

42 U.S.C.§ 1985 i, x,, xi, xii, 1, 16, 29, 30, 31, 32, 50

42 U.S.C. 1985(3) viii, 29, 30, 31, 32

42 U.S.C. § 2000e et seq. xi, 19

Ark. Code Ann. § 5-14-108 25

Ark. Code Ann. § 5-14-112 34

Rules Page(s)

8th Cir. R. 28A 1

Fed. R. App. P. 28 1

Fed. R. Civ. P. 26 17

Fed. R. Civ. P. 26(b)(1) 49

Fed. R. Civ. P. 26(c) 49

Fed. R. Civ. P. 56(f) 4

Fed. R. Evid. 403 3, 17, 45, 47, 48, 49

Fed. R. Evid. 404(b) 47

Fed. R. Evid. 406 47

Fed. R. Evid. 413 48

Fed. R. Evid. 415 48

Treatises Page(s)

2 John Henry Wigmore, Evidence in Trials at Common Law

§ 278(2) (Chadbourne Rev. 1979) 42, 44

McCormick on Evidence § 273 (3d ed. 1984) 42

W. Page Keeton, et al., Prosser and Keaton on Torts § 12 (5th ed. 1984) 41

 


   

 

 

PRELIMINARY STATEMENT

This is an appeal from a final judgment of the United States District Court for the Eastern District of Arkansas, Western Division ("the District Court"). App. I at 25. The Honorable Susan Weber Wright, United States District Judge, presided over the proceedings below. The District Court had subject-matter jurisdiction under 28 U.S.C. § 1331, as the complaint stated claims under two federal statutes: 42 U.S.C. § 1983 ("Section 1983") and 42 U.S.C. § 1985 ("Section 1985"). App. I at 26. Because the action was brought to redress the deprivation, under color of state law, of rights, privileges and immunities secured by the Constitution of the United States, and to recover damages for injuries by acts done in furtherance of a conspiracy mentioned in Section 1985, the District Court had jurisdiction under 42 U.S.C. § 1343 as well. Jurisdiction was also conferred by 28 U.S.C. § 1332, as the action is between citizens of different states and the matter in controversy exceeds the sum or value of $50,000, exclusive of interest and costs.

By judgment entered on April 1, 1998, the District Court dismissed all pending claims and denied all relief. App. I at 25. The judgment was accompanied by a Memorandum Opinion and Order. App. I at 24. It is reported at 990 F. Supp. 657.

Appellant timely filed a notice of appeal on April 29, 1998. App. I at 25. See Fed. R. App. P. 4(a). Under 28 U.S.C. § 1291, the Court of Appeals has jurisdiction over this appeal from a final judgment of the District Court. See also 28 U.S.C. §§ 41, 1294(1).

STATEMENT OF THE ISSUES

I. Did the District Court err by granting summary judgment on the Section 1983 claim of gender-based discrimination?

A. In order to maintain an action under Section 1983 for violations of her equal protection rights, was Mrs. Jones required to prove that she had been subjected to a "hostile work environment" within the meaning of Title VII?

    Most Apposite Cases and Statutes:

      Bohen v. City of East Chicago, 799 F.2d 1180 (7th Cir. 1986)

      King v. Board of Regents of the University of Wisconsin System,

      898 F.2d 533 (7th Cir. 1990)

      Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir. 1990)

      Ascolese v. Southeastern Pennsylvania Transportation Authority,

      925 F. Supp. 351 (E.D. Pa. 1996)

      42 U.S.C. § 1983

B. Based on the evidence in the record, could a rational jury find that Mrs. Jones had been subjected to a "hostile work environment" within the meaning of Title VII?

    Most Apposite Cases and Statutes:

      Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993)

      Rorie v. United Parcel Service, Inc., No. 97-3678, 1998 WL 410670 (8th Cir. July 23, 1998)

      Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103 (8th Cir. 1998)

      Burns v. McGregor Electronic Industries, Inc., 955 F.2d 559

      (8th Cir. 1992)

42 U.S.C. § 2000e et seq.

II. Did the District Court err by dismissing, based on the pleadings alone, Mrs. Jones’s claim under Section 1983 for deprivation of the substantive due process rights to bodily integrity and privacy?

    Most Apposite Cases and Statutes:

      Haberthur v. City of Raymore, Missouri, 119 F.3d 720 (8th Cir. 1997)

      Sepulveda v. Ramirez, 967 F.2d 1413 (9th Cir. 1992),

      cert. denied, 510 U.S. 931 (1993)

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

      (4th Cir.), cert. denied, U.S. , 117 S.Ct. 72 (1996)

      42 U.S.C. § 1983

III. Did the District Court err by granting summary judgment on the Section 1985 claim, based on the proposition that a Section 1985 claim cannot be maintained unless every element of a Section 1983 claim is proven, including an actual deprivation of a right, privilege or immunity of a citizen of the United States?

Most Apposite Cases and Statutes:

    Griffin v. Breckenridge, 403 U.S. 88 (1971)

    Larson v. Miller, 76 F.3d 1446 (8th Cir. 1996)

    42 U.S.C. § 1985(3)

     

IV. Did the District Court err by granting summary judgment on the claim of intentional infliction of emotional distress?

A. Based on the evidence in the record, could a rational jury find that Mr. Clinton’s conduct was "extreme and outrageous?"

Most Apposite Cases and Statutes:

    Manning v. Metropolitan Life Insurance Company, Inc.,

    127 F.3d 686 (8th Cir. 1997)

    Lucas v. Brown & Root Inc., 736 F.2d 1202 (8th Cir. 1984)

    Davis v. Tri-State Mack Distributors, Inc., 981 F.2d 340

    (8th Cir. 1992)

    McQuay v. Guntharp, 963 S.W.2d 583 (1998)

B. Based on the evidence in the record, could a rational jury find that Mrs. Jones suffered severe emotional distress?

Most Apposite Cases and Statutes:

    Manning v. Metropolitan Life Insurance Company, Inc.,

127 F.3d 686 (8th Cir. 1997)

    Lucas v. Brown & Root Inc., 736 F.2d 1202 (8th Cir. 1984)

    Davis v. Tri-State Mack Distributors, Inc., 981 F.2d 340

    (8th Cir. 1992)

    McQuay v. Guntharp, 963 S.W.2d 583 (1998)

     

V. Did the District Court err by granting summary judgment despite the evidence of obstruction of justice, subornation of perjury and other misconduct on the part of Mr. Clinton and his agents, giving rise to an inference that Mr. Clinton’s entire case is weak and unfounded?

Most Apposite Cases and Statutes:

    Martin v. Norris, 82 F.3d 211 (8th Cir. 1996)

    McQueeney v. Wilmington Trust Co., 779 F.2d 916

    (3d Cir. 1985)

    Great Am. Ins. Co. v. Horab, 309 F.2d 262 (8th Cir. l962)

VI. Did the District Court err by cutting off discovery of Mr. Clinton’s relationship with Monica Lewinsky and his efforts to influence improperly her testimony and that of Linda Tripp, and by ruling in the midst of discovery that all evidence related to Monica Lewinsky (including evidence of obstruction of justice, perjury and subornation of perjury) would be inadmissible at trial?

Most Apposite Cases and Statutes:

    Hawkins v. Hennepin Technical Center, 900 F.2d 153

    (8th Cir. 1990)

    Duckworth v. Rice, 83 F.3d 999 (8th Cir. 1996)

    Estes v. Dick Smith Ford, Inc., 856 F.2d 1097 (8th Cir. 1988)

    Heyne v. Caruso, 69 F.3d 1475 (9th Cir. 1995)



   

BRIEF FOR APPELLANT

Pursuant to Fed. R. App. P. 28 and 8th Cir. R. 28A, Appellant Paula Jones respectfully submits this brief in support of her appeal.

 

STATEMENT OF THE CASE

Nature of the Case

This is a civil rights action under Sections 1983 and 1985 of Title 42, United States Code, with supplemental claims under Arkansas law.

 

Course of Proceedings and Disposition Below

Appellant Paula Jones commenced this action on May 6, 1994. App. I at 7. Her complaint named two defendants, William Jefferson Clinton and Danny Ferguson, asserting claims against Mr. Clinton under Section 1983 for deprivation of due process and equal protection rights; claims against both defendants under Section 1985 for conspiracy to violate such rights; claims against both defendants for defamation; and a claim against Mr. Clinton for intentional infliction of emotional distress. App. I at 39-43.

Mr. Clinton filed a motion to dismiss the complaint, asserting that as President he enjoys absolute immunity from suit. App. I at 8. The District Court rejected the assertion of absolute immunity and, on December 28, 1994, denied the motion to dismiss. Jones v. Clinton, 869 F. Supp. 690, 692-97 (E.D. Ark. 1994). The District Court did find, however, that Mr. Clinton was entitled to "temporary or limited immunity from trial" and granted his request to stay the trial for the duration of his tenure as President. 869 F. Supp. at 698-99.

Mr. Clinton appealed the denial of his motion to dismiss. He also filed in the District Court a motion to stay discovery pending the appeal. On February 24, 1995, the District Court granted the motion to stay discovery -- thereby precluding Mrs. Jones from conducting discovery for the next two and a half years. App. I at 9. Mrs. Jones cross-appealed, contesting both the stay of trial and the stay of discovery. App. I at 10. On January 9, 1996, this Court affirmed the denial of immunity but, with one judge dissenting, reversed the stay of trial and remanded the case for discovery and trial on the merits. Jones v. Clinton, 72 F.3d 1354 (8th Cir. 1996).

Mr. Clinton forestalled discovery again by petitioning to the United States Supreme Court for certiorari. The Supreme Court granted certiorari, Clinton v. Jones, 518 U.S. 1016 (1996), relying heavily on the fact that the Solicitor General of the United States had supported Mr. Clinton’s request for review by the Court. See Clinton v. Jones, 520 U.S. 681, 137 L.Ed.2d 945, 117 S.Ct. 1636, 1642 (1997). Upon consideration of the merits, however, the Supreme Court unanimously affirmed the judgment of this Court, rejecting Mr. Clinton’s claim of immunity and holding that the District Court had abused its discretion by postponing the trial until after Mr. Clinton leaves office. 117 S.Ct. at 1642-51.

Upon remand to the District Court, Mr. Clinton filed a motion for judgment on the pleadings and dismissal of the complaint. App. I at 83-145. The motion was opposed. App. I at 146-236. On August 22, 1997, the District Court issued a Memorandum Opinion and Order granting the motion only with respect to Mrs. Jones’s due process claims and her defamation claim against Mr. Clinton, while allowing the remainder of the claims to proceed. Jones v. Clinton, 974 F. Supp. 712 (E.D. Ark. 1997).

And so, over three years after this action was commenced, Mrs. Jones was finally permitted to begin formal discovery. After six months of intensive discovery efforts, [MATERIAL REDACTED], a motion was filed on January 28, 1998, by the United States, through the Office of the Independent Counsel ("OIC"), seeking leave to intervene and a temporary stay of discovery in this case. App. II at 1053-63. The basis of OIC’s motion to stay was an ongoing investigation into possible perjury, subornation of perjury and obstruction of justice in response to Mrs. Jones’s efforts to obtain the testimony of witnesses named Monica Lewinsky and Linda Tripp. Id.

[MATERIAL REDACTED]

On that we agreed. Because the order excluding the evidence about Ms. Lewinsky reversed rulings previously made by the District Court, and because it was issued without the benefit of briefing or even notice that the District Court would consider excluding the evidence, Mrs. Jones filed on February 10, 1998, a motion for reconsideration. App. III at 1071-75. The motion was denied on March 9, 1998. App. V at 1676-88.

Meanwhile, on February 17, 1998, Mr. Clinton filed a motion for summary judgment. App. III at 1100-08. Trooper Ferguson then filed his own summary judgment motion, generally incorporating the arguments that had been presented on behalf of Mr. Clinton. App. V at 1645-46. Mrs. Jones opposed both motions and presented extensive evidence in support of her claims. App. V at 1689-1948; VI at 1949-2327; VII at 2328-2447. Pursuant to Fed. R. Civ. P. 56(f), Mrs. Jones also asked the District Court to deny the motion or to defer ruling until discovery of the possible obstruction of justice and other misconduct could be completed. App. VI at 1994-95. Ignoring this request, the District Court on April 1, 1998 granted both motions for summary judgment and entered a judgment dismissing all remaining claims. Jones v. Clinton, 990 F. Supp. 657 (E.D. Ark. 1998).

 

Statement of the Facts

On or about March 11, 1991, Mrs. Jones (then known as Paula Corbin) was hired by the Arkansas Industrial Development Commission (the "AIDC"). App. V at 1794. On May 8, 1991, the AIDC sponsored the Third Annual Governor’s Quality Conference at the Excelsior Hotel in Little Rock, Arkansas. App. V at 1794. During the conference, Mrs. Jones and Ms. Pamela Blackard, another employee of the AIDC, worked at a registration desk. Id. Mr. Clinton, then the Governor of Arkansas, spoke at the conference.

A man approached the registration desk and told Ms. Blackard and Mrs. Jones that he was Trooper Danny Ferguson, Governor Clinton’s bodyguard. App. V at 1794. He made small talk with Ms. Blackard and Mrs. Jones, during which he showed Mrs. Jones that he was carrying a pistol. Id.

Trooper Ferguson then returned to Mr. Clinton. They discussed the possibility of a meeting between Mrs. Jones and Mr. Clinton. During this conversation, Mr. Clinton said that Mrs. Jones had "that come-hither look." This was an expression that Mr. Clinton used frequently, and always in connection with women. App. VI at 2263-64. Mr. Clinton later testified that to him the expression, "that come hither look," means "either in look or dress a sort of a [sexually] suggestive appearance from the look or dress." App. V at 1820-21.

After making his observation about the "come-hither look," Mr. Clinton asked Trooper Ferguson to obtain a hotel room, supposedly so that Mr. Clinton could receive a telephone call from the White House. App. VI at 2266. Although Ferguson had received a copy of Mr. Clinton’s schedule for the day, this was the first time he had heard about a call from the White House. App. VI at 2266-67. (Before requesting the private room, Mr. Clinton had been talking to reporters and other attendees in the hotel lobby, only a few yards from where Mrs. Jones was working. App. VI at 2262. If Mr. Clinton had merely intended to meet Mrs. Jones, or if Trooper Ferguson had merely intended to introduce Mrs. Jones to Mr. Clinton, the meeting and introduction could easily have taken place in the lobby. App. VI at 2264.) Trooper Ferguson procured a business suite for Mr. Clinton and escorted him there. App. VI at 2262. After arriving at the room, Mr. Clinton immediately directed Ferguson to bring Mrs. Jones to the room. App. VI at 2266.

Trooper Ferguson was aware that other troopers assigned to the security detail had, on numerous occasions, made arrangements for Mr. Clinton to meet women for the purpose of having sexual relations with them, and had participated in the concealment of such activity. Ferguson had been assigned to the Governor’s security detail since April 1988. App. VI at 2251. In that capacity he had traveled with Governor Clinton, and had observed him in many circumstances. App. VI at 2251-52. State Troopers Larry Patterson, Roger Perry, and L. D. Brown had observed numerous sexual advances by Mr. Clinton, App. VI at 2189-2200, 2212-23; 2235-39. These troopers had related their experiences to Ferguson before May 8, 1991. App. VI at 2258-59, 2272.

Trooper Ferguson complied with Mr. Clinton’s command to bring Mrs. Jones to the private room where he was waiting for her. Ferguson returned to Mrs. Jones and said, "the Governor would like to meet you." App. V at 1795; VI at 2262. Ms. Blackard, Mrs. Jones and Trooper Ferguson then discussed what the Governor could want. Ferguson stated: "We do this all the time." App. V at 1795. Mrs. Jones thought that it was an honor to be asked to meet the Governor, and thought that it might lead to a job opportunity, so she decided to go and meet him. Id. Ms. Blackard told Mrs. Jones that she would take over her duties at the registration desk. Id. Ferguson then took Mrs. Jones to the hotel room, a business suite, where Mr. Clinton was waiting for her. App. V at 1795; VI at 2262.

When Mrs. Jones and Trooper Ferguson arrived at the suite, the door was slightly ajar. App. V at 1795. Mrs. Jones knocked on the door frame, and Mr. Clinton answered. Id. Trooper Ferguson remained outside as Mr. Clinton shook Mrs. Jones’s hand, invited her in, and closed the door. App. V at 1795. Mr. Clinton and Mrs. Jones talked for a few minutes. Mr. Clinton asked Mrs. Jones about her job, and told her that Dave Harrington, who at that time was in charge of the AIDC, was his "good friend." Id.

Mr. Clinton then unexpectedly reached over to Mrs. Jones, took her hand, and pulled her toward him, so that their bodies were close to each other. App. V at 1795. Mrs. Jones removed her hand from his and retreated several feet. Id.

Mr. Clinton approached Mrs. Jones a second time, saying "I love the way your hair flows down your back" and "I love your curves." App. V at 1795. Mr. Clinton put his hand on her leg and, without her consent, started sliding his hand toward her pelvic area. Id. Mr. Clinton also bent down and started to kiss Mrs. Jones on the neck, but she would not let him do so. Id.

Mrs. Jones exclaimed, "What are you doing?" and escaped from Mr. Clinton’s reach by walking away from him. App. V at 1796. She was extremely upset and confused and did not know what to do. Id. She tried to distract Mr. Clinton by asking him about his wife and her activities, and sat down at the end of the sofa nearest the door. Id.

Mr. Clinton then walked over to the sofa, lowered his trousers and underwear, exposed his penis, which was erect, and asked Mrs. Jones to "kiss it." App. V at 1796. Mrs. Jones was horrified by this. Id. She jumped up from the couch and told Mr. Clinton that she had to go, saying something to the effect that she had to get back to the registration desk. Id. Mr. Clinton, while fondling his penis, said: "Well, I don’t want to make you do anything you don’t want to do." Id. Mr. Clinton then stood up, pulled up his pants and said: "If you get in trouble for leaving work, have Dave call me immediately and I’ll take care of it." Id.

When Mr. Clinton referred to Dave Harrington, Mrs. Jones understood that he was telling her that he had control over Mr. Harrington and over her job, and that he was willing to use that power. App. V at 1796. From then on, Mrs. Jones was very fearful that her refusal to submit to Mr. Clinton’s advances could jeopardize her employment. Id.

As Mrs. Jones left the room, Mr. Clinton detained Mrs. Jones momentarily, looked sternly at her and said: "You are smart. Let’s keep this between ourselves." App. V at 1796.

Mr. Clinton’s advances to Mrs. Jones were unwelcome. App. V at 1796. She never said or did anything to suggest to Mr. Clinton that she was willing to have sex with him. Id. During the time they were together in the hotel suite, she resisted his advances although she was stunned by them and intimidated by who he was. Id.

After Mr. Clinton permitted her to leave, Mrs. Jones saw Trooper Ferguson waiting outside the suite, but he did not escort her back to the registration desk. App. V at 1797. They said nothing to each other. Id. Trooper Ferguson later testified that, after Mrs. Jones left the hotel room, Mr. Clinton told him, without being asked, "She came up here, and nothing happened." App. VI at 2265.

When Mrs. Jones left the hotel suite, she was in shock and upset, but she tried to maintain her composure. App. V at 1797. As she returned to the registration desk, Ms. Blackard could tell "from far off" that she "looked different." App. VI at 2282. As Mrs. Jones got closer, Ms. Blackard could tell that she was shaking. Id. Ms. Blackard immediately asked Mrs. Jones what was wrong. App. V at 1797; VI at 2282. After attempting to collect herself, Mrs. Jones told Blackard much of what had happened, but Mrs. Jones was still too upset to tell her everything. App. V at 1797; VI at 2283. Jones said that she felt embarrassed by what had happened. App. VI at 2282. Ms. Blackard attempted to comfort Mrs. Jones, who became "real quiet." App. VI at 2284.

Mrs. Jones left the conference and went to the workplace of a friend named Debra Ballentine. App. V at 1797; VII at 2425. Mrs. Jones was still very upset, emotionally distraught and nervous. App. V at 1797. Ms. Ballentine could see readily that something was wrong. App. VII at 2425. Mrs. Jones told her that she wanted to talk to her immediately about something that had just happened and wanted to do so privately. Id. Ms. Ballentine and Mrs. Jones went to a private area in the office and talked for awhile, and then they went outside and talked. Id. Mrs. Jones had trouble telling Ms. Ballentine what had happened because she was upset and crying. App. VII at 2426. She spoke in a whisper. Id. Eventually, she managed to relate what Mr. Clinton had done in the hotel suite. App. VII at 2426-27. Mrs. Jones was "shaking" and "crying" and "beside herself." App. VII at 2425-27.

Ms. Ballentine urged Mrs. Jones to report the incident to the police or to her superiors at the AIDC. App. VII at 2427. Mrs. Jones was afraid to do so because it was the state police themselves who had just helped Mr. Clinton harass her, and because Mr. Clinton had just told her that the head of the AIDC, her employer, was Mr. Clinton’s "good friend." App. V at 1797. What Mr. Clinton and Trooper Ferguson had said and done made Mrs. Jones afraid to file charges. Id. Mrs. Jones begged Ms. Ballentine not to tell anyone what had happened. App. VII at 2427.

Within the next two days, Mrs. Jones told her sisters, Charlotte Corbin Brown and Lydia Corbin Cathey, about Mr. Clinton’s sexual advances to her. App. V at 1797-98. Ms. Cathey observed that Mrs. Jones was crying and upset. App. VI at 2290. Ms. Cathey described Mrs. Jones’s appearance as "scared," "embarrassed," and "ashamed." Id.

After the events at the Excelsior Hotel, Mrs. Jones was in constant fear that Mr. Clinton would retaliate against her because she had refused to have sex with him. App. V at 1799. Nevertheless, she continued to work at the AIDC because she needed the job. App. V at 1798. Unfortunately, one of her duties was to deliver documents to and from the Office of the Governor, as well as other offices around the Arkansas State Capitol. Id. In or around June 1991, while Mrs. Jones was performing this duty, Trooper Ferguson saw Mrs. Jones at the Governor’s office and said to her: "Bill wants your phone number. Hillary’s out of town often and Bill would like to see you." Id. Mrs. Jones refused. Id.

Once Trooper Ferguson asked Mrs. Jones: "How’s Steve?" App. V at 1798. Considering what had happened previously, this frightened Mrs. Jones and made her feel as if she was being watched, causing her to be fearful and to worry. Id. Mrs. Jones had never told Trooper Ferguson or Mr. Clinton the name of her fiancé, Stephen Jones. Id.

On one occasion Mrs. Jones was stopped by Mr. Clinton in the Rotunda of the Capitol Building. App. V at 1798. Mr. Clinton draped his arm over her, pulled her close to him, held her tightly to his body, and said: "Don’t we make a beautiful couple -- Beauty and the Beast?" Id. Mr. Clinton directed this remark to a member of his security detail. Id. This incident was not only humiliating, it reminded Mrs. Jones of the events at the Excelsior Hotel and made her feel even more fearful and worried. Id. On another occasion, while she was delivering something to the Governor’s office, Governor Clinton saw her, patted her and asked, "How are you doing, Paula?" App. V at 1799.

Mrs. Jones eventually married Stephen Jones, to whom she had been engaged at the time of Mr. Clinton’s advances to her at the Excelsior Hotel. App. V at 1799. Later she gave birth to their first child and took a maternity leave. Id. Upon returning to work, Mrs. Jones encountered Trooper Ferguson again while delivering papers to the Governor’s Office. Id. Trooper Ferguson then said to her: "I’ve told Bill how good looking you are since you’ve had the baby." Id. In light of what had already happened, this frightened Mrs. Jones and made her worry that her activities were being monitored. Id.

Mrs. Jones continued to work at the AIDC despite her constant fear that Mr. Clinton would retaliate against her because she had refused to submit to his sexual demands. App. V at 1799. This fear prevented Mrs. Jones from enjoying her job. Id. She was afraid to pursue established grievance procedures. App. V at 1847. Mrs. Jones resigned from her position at the AIDC in February 1993, and in May 1993, moved with her husband and son to another state.

In January 1994, Mrs. Jones visited her family and friends in Arkansas. App. V at 1799-1800. While there, she had a conversation with Ms. Ballentine on the telephone, during which Ms. Ballentine read to her a paragraph from an article published in The American Spectator magazine. Id. The article discussed numerous instances in which Mr. Clinton had used his authority and resources as Governor to procure women for sex. The article included a reference to a meeting at the Excelsior Hotel between Mr. Clinton and a woman named "Paula," incorrectly asserting that "Paula" had engaged in sexual relations with Mr. Clinton. Id.

A few days later, on January 8, 1994, Ms. Ballentine and Mrs. Jones were dining at a restaurant in North Little Rock when, by chance, Trooper Ferguson happened to be there. App. V at 1801; VI at 2265. Believing that Trooper Ferguson was the source of the reference to "Paula" in The American Spectator, she confronted him with her suspicion. App. V at 1801. He was well aware of the article and stated that he was sorry that her first name had appeared in it, but assured her that he had withheld her last name and place of employment from those to whom he had told the story. Id. He also said: "Clinton told me you wouldn’t do anything anyway, Paula." Id. Trooper Ferguson warned Mrs. Jones not to disclose publicly what Clinton had done to her, saying that she should "think about [her] family." He added: "I’ve been through it, and they was (sic) starting to dig up dirt." App. VI at 2265.

This admission by Trooper Ferguson that he had himself "been through it" and that by "it" he meant "they was (sic) starting to dig up dirt" is part of a substantial body of evidence of improper activity designed to conceal or to eliminate evidence supporting Mrs. Jones’s case.

[MATERIAL REDACTED]

In her response to the motions for summary judgment, Mrs. Jones specifically informed the District Court that additional discovery into these areas was needed, and specifically asked that she be allowed to secure the evidence through discovery before the motions for summary judgment were considered. App. VI at 1994. The District Court denied the request and proceeded to grant the summary judgment motions. App. VIII at 2738-2776.


   

 

 

SUMMARY OF THE ARGUMENT

I. A sexual harassment claim under Section 1983, unlike a claim under Title VII, does not require proof that the terms or conditions of employment were altered. Mrs. Jones adduced sufficient evidence of discrimination in violation of the Equal Protection Clause to support a jury verdict. Summary judgment should not have been granted on that claim.

Even under Title VII standards (which the District Court erroneously held to be controlling), Mrs. Jones adduced more than enough evidence of a hostile work environment to support a finding of sexual harassment.

II. The District Court erred by dismissing, based on the pleadings alone, Mrs. Jones’s Section 1983 claim based on deprivation of the substantive due process right to bodily integrity. The complaint alleges egregious sexual misconduct violating that right.

III. A claim of conspiracy under Section 1985(3) does not require proof that a constitutional right was actually violated, but only that an injury to person or property was caused by an overt act in furtherance of a conspiracy to violate a constitutional right. The District Court erred by holding that its (erroneous) dismissal of the Section 1983 claims automatically precluded recovery under Section 1985(3).

IV. In granting summary judgment on the claim of outrageous conduct, the District Court erred by failing to consider critical evidence and by failing to view the evidence in the light most favorable to Mrs. Jones. A rational jury could readily find that Mr. Clinton’s behavior was "extreme and outrageous" under Arkansas law, and that Mrs. Jones suffered severe emotional distress as a result of that behavior.

V. The extensive evidence of perjury, subornation of perjury, witness tampering and obstruction of justice by Mr. Clinton and his agents entitled Mrs. Jones to an inference that Mr. Clinton had, in effect, admitted that his case is weak on every factual element of every claim and defense. This inference precludes summary judgment on any claim.

VI. The order excluding all evidence relating to Monica Lewinsky, issued before the content of that evidence was fully known and in response to a motion of OIC to temporarily stay discovery, was not justified under Fed. R. Evid. 403 or Fed. R. Civ. P. 26 and was a clear abuse of discretion.

 

ARGUMENT

I. THE DISTRICT COURT ERRED BY GRANTING SUMMARY JUDGMENT ON THE EQUAL PROTECTION CLAIM UNDER SECTION 1983

A. The Standard of Review Is De Novo

Summary judgments are reviewed de novo in the courts of appeals. Hardin v. Hussman Corp., 45 F.3d 262, 264 (8th Cir. 1995). In other words, in reviewing a summary judgment the court of appeals applies the same standard as the district court. Crawford v. Runyon, 37 F.3d 1338, 1340-41 (8th Cir. 1994) (citing Bieter v. Blomquist, 987 F.2d 1319, 1320 (8th Cir.), cert. denied, 510 U.S. 823 (1993)).

That standard is rigorous. "Summary judgment is appropriate only if, when viewing the facts in the light most favorable to the Plaintiff and giving [her] the benefit of all reasonable factual inferences, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Johnson v. Minn. Hist. Soc., 931 F.2d 1239, 1244 (8th Cir. 1991) (citing Leichihman v. Pickwick Int’l, 814 F.2d 1263, 1268 (8th Cir.), cert. denied, 484 U.S. 855 (1987)). "Summary judgment is appropriate only in ‘those rare instances when there is no dispute of fact and where there exists only one conclusion.’" Crawford v. Runyon, 37 F.3d at 1341 (quoting Johnson, 931 F.2d at 1244). This is because "[s]ummary rulings are the direct antithesis of the full and fair process found in an adversary proceeding." Hillebrand v. M-Tron Indus., Inc., 827 F.2d 363, 364 (8th Cir. 1987), cert. denied, 488 U.S. 1004 (1988) (citing numerous cases).

"At the summary judgment stage, the court should not weigh the evidence, make credibility determinations, or attempt to determine the truth of the matter." Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77 (8th Cir. 1996) (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249 (1986)). The court’s function is to determine whether a reasonable jury could return a verdict for the nonmoving party based on the evidence. Quick, 90 F.3d at 1377.

B. To Recover Under Section 1983 for Sexual Harassment, It Is Not Necessary To Prove Harassment by Title VII Standards

Count I of Mrs. Jones’s complaint is founded on the Civil Rights Act of 1871, as amended and codified in 42 U.S.C. § 1983 ("Section 1983"). App. I at 39-41. Mrs. Jones alleges that Mr. Clinton discriminated against her on the basis of her gender, and in so doing violated her constitutional rights under the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Id. The Equal Protection Clause confers a right to be free from gender discrimination that is not substantially related to important governmental objectives. Beardsley v. Webb, 30 F.3d 524, 529 (4th Cir. 1994) (citing Davis v. Passman, 442 U.S. 228, 234-35 (1986)). Sexual harassment is a violation of equal protection. King v. Bd. of Regents of the Univ. of Wisconsin Sys., 898 F.2d 533, 537 (7th Cir. 1990).

Count I is not based on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). Nevertheless, the District Court held that Mrs. Jones cannot prevail unless she proves sexual harassment within the meaning of Title VII. 990 F. Supp. at 668-69. Thus, the District Court erred in the first step of its analysis.

In Bohen v. City of East Chicago, Indiana, 799 F.2d 1180 (7th Cir. 1986), the court contrasted a claim of sexual harassment under the equal protection clause with a claim of sexual harassment under Title VII. In an equal protection case, the court said, "[t]he ultimate inquiry is whether sexual harassment constitutes intentional discrimination." 799 F.2d at 1187. "This differs from the inquiry under Title VII as to whether or not the sexual harassment altered the conditions of the victim’s employment." Id. (emphasis supplied).

See also Andrews v. City of Philadelphia, Pa., 895 F.2d 1469, 1482, 1483 & n.4 (3d Cir. 1990) ("Section 1983 and Title VII claims are complex actions with different elements").

Correct application of these principles is illustrated in Ascolese v. Southeastern Pennsylvania Transportation Authority, 925 F. Supp. 351 (E.D. Pa. 1996). Ascolese involved a claim by a female police officer who alleged three different forms of gender-based discrimination, one of which was sexual harassment. The harassment allegedly occurred during a medical examination by a male physician employed by the same agency. 925 F. Supp. at 354, 358-59. The physician, who was named as a defendant, moved for summary judgment on the ground that the single medical examination could not have constituted a "hostile work environment" as defined by Title VII jurisprudence. The court rejected the defendant’s argument, specifically holding that "[t]he focus of the analysis under section 1983 is on whether the sexual harassment constitutes intentional discrimination, not on whether the sexual harassment altered the conditions of the victim’s employment, the standard under Title VII." 925 F. Supp. at 325. In terms that apply equally here, the court reasoned that "the sex discrimination at issue in this case is discrimination by a public official in the course of performing his duties (in this case, a medical examination), rather than discrimination at [the plaintiff’s] workplace generally," so "there is no need to consider the alleged discrimination in the context of [the plaintiff’s] entire work experience, as there would be under Title VII . . . ; the relevant context is only that of the examination itself."

925 F. Supp. at 359-60 (citations omitted). Thus, the plaintiff in Ascolese was not required to prove that the acts of harassment had "altered the conditions of [her] employment," 925 F. Supp. at 359, but only that her one encounter with the defendant physician was "hostile" or "abusive." Id. at 360.

The same principles apply here. The District Court should not have required Mrs. Jones to prove that Mr. Clinton’s behavior altered the conditions of her employment, but only that Mr. Clinton, in the limited context of his own interaction with her, intentionally discriminated against her because of her gender and under color of state law. The District Court incorrectly required a showing that the behavior of Mr. Clinton and Trooper Ferguson toward Mrs. Jones was so severe or pervasive that it "interfered with her work." 990 F. Supp. at 675. No such showing is required under Section 1983.

"As a general matter, a single discriminatory act against one individual can amount to intentional discrimination for equal protection purposes." Bohen v. City of East Chicago, Ind., 799 F.2d at 1186-87 (citing Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266 n.14 (1977)). Viewing the evidence in the light most favorable to Mrs. Jones (as is required at this juncture), a rational jury could find that Mr. Clinton’s conduct was intentional, that it is was based on Mrs. Jones’s gender, and that it was both "hostile" and "abusive." Accordingly, summary dismissal of the Section 1983 claim was improper.

C. Substantial Evidence Proves That Mrs. Jones Was Subjected to a Hostile Work Environment, Even by Title VII Standards

Mrs. Jones adduced more than enough evidence to support a finding of sexual harassment, even assuming arguendo that the standard under Title VII is controlling. Sexual harassment gives rise to a claim of discrimination under Title VII when it creates a hostile or abusive atmosphere in the workplace. Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 66 (1986). The existence vel non of a "hostile environment" under Title VII "can be determined only by looking at all the circumstances, [including] the frequency of the discriminatory conduct; its severity; whether it was physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Harassment is actionable if it is either "severe" or "pervasive." See Burlington Industries, Inc. v. Ellerth, U.S. , 118 S.Ct. 2257, 2264 (1998) ("a hostile environment claim . . . requires a showing of severe or pervasive conduct"); Harris, 510 U.S. 17, 21 (1993).

The harassment by Mr. Clinton was both severe and pervasive. The particular facts (and pinpoint citations to the corresponding evidence) are set forth in the Statement of the Case, and will only will be summarized here. Less than two months after she was hired by the AIDC, a state agency under the supervision of then-Governor Clinton, Mrs. Jones was working at an official state conference attended by Mr. Clinton. After he gave a speech, he saw Mrs. Jones performing her duties at a registration desk and he directed his bodyguard, Trooper Ferguson, to procure a private suite in the hotel and to persuade Mrs. Jones to go there to meet the Governor. Mr. Clinton had never met Mrs. Jones before. Trooper Ferguson escorted her to the suite and she entered, finding Mr. Clinton there alone. Mr. Clinton mentioned Dave Harrington, the director of the agency employing Mrs. Jones, and referred to Harrington as his "good friend." Mr. Clinton then took Mrs. Jones’s hand and pulled her toward him. She removed her hand and unmistakably communicated her unwillingness to participate in sexual relations. Undeterred, Mr. Clinton made suggestive remarks to her, including "I love your curves." He attempted to kiss her on the neck, but she would not let him. He placed his hand on her leg and began moving his hand toward her pelvis. She again broke away from him and again made it clear that his advances were unwelcome. Then Mr. Clinton lowered his trousers, exposing his erect penis, and asked Mrs. Jones to "kiss it." When she refused, he fondled his penis in front of her. As she tried to leave, he detained her momentarily, while he made another reference to Mr. Harrington, indicating that he had the ability to manipulate Mr. Harrington’s treatment of Mrs. Jones at the AIDC. Finally, Mr. Clinton sternly told Mrs. Jones to keep quiet about what had happened in the room. When he permitted her to leave, she found Trooper Ferguson waiting outside the suite.

Thereafter, Mr. Clinton or Trooper Ferguson made suggestive or threatening remarks to and physical contacts of Mrs. Jones on at least four more occasions. All of these events took place within a period of only 20 months, during part of which Mrs. Jones was away on maternity leave.

This obviously is not a case about "a mere offensive remark" or "simple teasing." See Faragher v. City of Boca Raton, U.S. , 118 S.Ct 2275, 2283 (1998). The complaint here does not merely attack "the ordinary tribulations of the workplace, such as sporadic use of abusive language, gender-related jokes, and occasional teasing." Id. There can be no concern that a ruling in favor of Mrs. Jones would reduce Title VII to a "general civility code." Id. A rational jury could easily find that Mr. Clinton’s harassment of Mrs. Jones was "severe."

This Court’s recent decision in Rorie v. United Parcel Service, Inc., No. 97-3678, 1998 WL 410670 (8th Cir. July 23, 1998) is instructive. In Rorie, the Court reversed a summary judgment dismissing a hostile environment claim under Title VII, holding "we cannot say that a supervisor who pats a female employee on the back, brushes up against her, and tells her she smells good does not constitute sexual harassment as a matter of law." 1998 WL 410670 at 3-4. The Court held that, on such facts, a jury could properly render a verdict that the plaintiff was subjected to a hostile work environment. Id.

Although Mrs. Jones’s claim is clearly based on a series of incidents, and not merely on a single incident, the District Court apparently assigned no weight to any of the incidents after the events at the Excelsior Hotel because Mrs. Jones supposedly "has not shown how [the comments] interfered with her work" and because Mr. Clinton’s statements to her were made "in a light vein." 990 F. Supp. at 675. This was error.

It is well established that in considering a claim of hostile environment, "the district court should not carve the work environment into a series of discrete incidents and then measure the harm occurring in each episode." Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559, 564 (8th Cir. 1992). "Instead, the trier of fact must keep in mind that ‘each successive episode has its predecessors, that the impact of the separate incidents may accumulate, and that the work environment created may exceed the sum of the individual episodes.’" Id. (quoting Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1524 (M.D. Fla. 1991)).

These precepts should have been applied here. A reasonable person in Mrs. Jones’s position would not forget what happened on May 8, 1991, but would interpret everything that Mr. Clinton and Trooper Ferguson later said or did through the prism of their abusive conduct on that day. A reasonable person in Mr. Clinton’s position would know this, so his subsequent "come-ons" could be viewed by a rational jury not as the charming excesses of an affable rogue (apparently the District Court’s view) but as the systematic posturing of a predator.

Moreover, the events at the Excelsior Hotel by themselves are sufficient to support a claim for sexual harassment. "Even a single incident of sexual harassment can in some circumstances suffice to state a claim of hostile work environment sexual harassment." Torres v. Pisano, 116 F.3d 625, 631 n.4 (2d. Cir. 1997). Accord Taylor v. Metzger, 706 A.2d 685 (N.J. 1998) (citing numerous cases). The District Court recognized that this is the law, but proceeded to invent a requirement that the incident involve a felony on the part of the harasser before it can be deemed sufficiently "severe" to create a hostile work environment. 990 F. Supp. at 675. The District Court first concluded that Mr. Clinton’s conduct did not constitute the crime of "sexual abuse in the first degree," Ark. Code Ann. § 5-14-108, (a conclusion with which we disagree) and on that basis held that the events at the Excelsior Hotel were not sufficiently "severe" to create a hostile work environment. 990 F. Supp. at 675. Neither the District Court nor Mr. Clinton cited a case holding that conduct must constitute a felony in order to be sufficiently severe to create a hostile work environment. "There is no bright line between sexual harassment and merely unpleasant conduct so a jury’s decision must generally stand unless there is trial error." Bales v. Wal-Mart Stores, Inc., 143 F.3d 1103, 1109 (8th Cir. 1998) (upholding jury finding of hostile work environment).

"Title VII comes into play before the harassing conduct leads to a nervous breakdown. A discriminatory abusive work environment, even one that does not seriously affect employees’ psychological well being, can and often will detract from remaining on the job, or keep them from advancing in their careers." Harris, 510 U.S. at 22. To succeed on her claim, it is not necessary for the victim of harassment to show that the harasser’s words or actions caused a "tangible psychological injury." Smith v. St. Louis Univ., 109 F.3d 1261, 1264 (8th Cir. 1998) (quoting Harris, 510 U.S. at 22). The District Court ignored these clear pronouncements from both the Supreme Court and this Circuit, and placed heavy reliance on the facts that Mrs. Jones continued to report to work, continued to make deliveries to the Governor’s Office, never saw a psychiatrist or a psychologist, and never incurred any medical bills as a result of Mr. Clinton’s conduct. 990 F. Supp. at 675. None of those facts precludes the existence of a hostile work environment. "[T]he law does not require a plaintiff to show that the discriminatory work environment seriously affected her psychological well-being or that it tangibly affected her work performance. Likewise it does not require that she quit or want to quit the employment in question." Davis v. U.S. Postal Service, 142 F.3d 1334, 1341 (10th Cir. 1998). The fact that Mrs. Jones was not incapacitated by Mr. Clinton does not mean that Title VII would afford no relief.

Equally misplaced was the District Court’s reliance on the facts that Mrs. Jones did not file a complaint with her superiors or ask to be relieved of the duty to make deliveries to the governor’s office. The District Court failed to consider the obvious: To whom was Mrs. Jones supposed to complain? Dave Harrington? The state police? A reasonable person could have believed that to do so would be futile -- or worse. Moreover, there is no requirement that an employee report sexual harassment where the harasser is in charge of the organization, as in such cases the "employer" is unquestionably aware of the harassment. See Burns, 955 F.2d at 564.

Therein lies another flaw in the District Court’s analysis: It wholly fails to attribute any significance to Mr. Clinton’s position as Governor. His status and power amplified the degree of coercion and with it the severity of the humiliation, intimidation, fear and other emotional harm. And his supreme authority over every function and facet of the agency for which Mrs. Jones worked made the influence of his conduct pervasive.

The question whether alleged harassment is sufficiently severe or pervasive to constitute a hostile work environment is "quintessentially a question of fact." Beardsley v. Webb, 30 F.3d at 530. Mr. Clinton may not consider it to be "severe" harassment for a male leader of a large organization to expose his erect penis to a female clerk whom he had met only a few minutes earlier, and then to ask her to "kiss it" -- but a rational jury might disagree. Mrs. Jones has proffered evidence of facts sufficient to support a jury finding of "hostile environment" sexual harassment. To grant summary judgment was error.


   

 

II. THE DISTRICT COURT ERRED BY DISMISSING THE DUE PROCESS CLAIM UNDER SECTION 1983

 

A. The Standard of Review Is De Novo

In response to a motion for judgment on the pleadings, the District Court entered an order dismissing Mrs. Jones’s claim under Section 1983 for violation of due process rights. Jones v. Clinton, 974 F. Supp. 712 (E.D. Ark. 1994). On appeal, the issue "[w]hether a complaint states a claim is a question of law reviewed de novo." Haberthur v. City of Raymore, Mo., 119 F.3d 720, 723 (8th Cir. 1997) (citing Alexander v. Peffer, 993 F.2d 1348, 1349 (8th Cir. 1993)).

This Circuit has repeatedly held that a complaint should not be dismissed under Fed. R. Civ. P. 12(b)(6) unless "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Haberthur, 119 F.3d at 723 (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). In conducting this inquiry, the complaint should be "construed most favorably to the nonmoving party." Haberthur, 119 F.3d at 723. All factual allegations in the complaint must be accepted as true. Id. Application of this standard to the complaint filed by Mrs. Jones leaves no doubt that the District Court erred in its order of August 22, 1997, by dismissing Mrs. Jones’s claim under Section 1983 for violation of her substantive due process rights.

B. The Complaint States a Claim of Egregious Sexual Misconduct Violating the Due Process Right to Bodily Integrity

In this Circuit, it is well established that a person’s substantive due process right to bodily integrity and privacy can be violated by "sexual fondling and touching or other egregious conduct." Haberthur v. City of Raymore, Missouri, 119 F.3d at 723. The District Court recognized this principle, but failed to apply it. The District Court simply ignored the salient allegations in the complaint, and then declared that no sexual fondling, or touching or other egregious sexual conduct "is alleged here." 974 F. Supp. at 725.

It is easy to identify the allegations that were missed by the District Court, because immediately after announcing its holding the District Court restated what it understood the allegations to be:

    The conduct that plaintiff does allege in support of this claim [is] that the Governor asked plaintiff to go to a place where sex would be possible, that he exposed himself, and that he possessed ongoing authority over her.

974 F. Supp. at 725 (emphasis in original). This summary omits the critical allegations that Mr. Clinton started to kiss Mrs. Jones on the neck; that he touched her hair; and that he placed his hand on her thigh and ran it up her leg, past the bottom of her culottes, toward her genitals. App. V at 1795, 1850. The District Court’s ruling was not that this touching was not sufficiently egregious, because this touching was ignored.

This error requires reversal because the touching alleged (and now proven) by Mrs. Jones clearly does violate substantive due process as enunciated by this Court in Haberthur. There was sexual fondling and touching, and there was egregious sexual misconduct. Indeed, the due process right to bodily privacy has been held violated where a (minor) state official entered a bathroom stall and watched a woman urinate. Sepulveda v. Ramirez, 967 F.2d 1413, 1415-16 (9th Cir. 1992), cert. denied, 510 U.S. 931 (1993). See also McWilliams v. Fairfax County Bd. of Supervisors, 72 F.3d 1191, 1197 (4th Cir.) (substantive due process rights violated where, inter alia, employee was forced to his knees, a finger was inserted in his mouth, and a broomstick was placed next to his clothed buttocks), cert. denied, U.S. , 117 S.Ct. 72 (1996). The dismissal of the due process claim was error that cries out for reversal.

III. THE DISTRICT COURT ERRED BY GRANTING SUMMARY JUDGMENT ON THE CONSPIRACY CLAIM UNDER SECTION 1985

A. The Standard of Review Is De Novo

In reviewing the summary dismissal of the claim under Section 1985, the Court should employ the de novo standard of review. Please refer to Section I.A. above.

B. Dismissal of the Section 1985 Claim Was Error Because It Was Based on the Erroneous Dismissal of the Section 1983 Claim

Count II of the complaint seeks recovery under Section 1985(3). The District Court granted summary judgment on this claim based on the fact that it had previously granted summary judgment on the claim under Section 1983. 990 F. Supp. at 676. As demonstrated above, it was error to dismiss the Section 1983 claims for violation of Mrs. Jones’s equal protection and due process rights. (Please refer to Sections I and II above.) Accordingly, the sole basis for the District Court’s ruling on the Section 1985 claim is invalid, and the summary judgment on that claim should also be reversed.

C. To Recover Under Section 1985, It Is Not Necessary To Prove Every Element of a Claim Under Section 1983

Even if one assumes for the sake of argument that Mrs. Jones has no claim under Section 1983, she has nevertheless pleaded and proved facts constituting a prima facie case under Section 1985(3). The essential elements of an action under Section 1985(3) are well established: "To come within the legislation [Section 1985(3)] a complaint must allege that the defendants did (1) ‘conspire . . .’ (2) ‘for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.’ It must then assert that one or more of the conspirators (3) did, or caused to be done, ‘any act in furtherance of the object of the conspiracy,’ whereby another was (4a) ‘injured in his person or property’ or (4b) ‘deprived of any right or privilege of a citizen of the United States.’" Griffin v. Breckenridge, 403 U.S. 88, 102-03 (1971). Accord United Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825, 828-29 (1983); Larson v. Miller, 76 F.3d 1446, 1454 (8th Cir. 1996); Shortbull v. Looking Elk, 677 F.2d 645, 648 (8th Cir. 1982).

The District Court ruled that Mrs. Jones did not adduce sufficient evidence to carry her burden to prove the fourth element, but failed to recognize that the fourth element has two alternative prongs. See 990 F. Supp. at 676. A Section 1985 plaintiff may prove either element "(4a)" or element "(4b)". A plaintiff who shows that he was "injured in his person or property," Larson, 76 F.3d at 1454, does not have to show that he was "deprived of having and exercising any right or privilege of a citizen of the United States." Id. Proof of either one will satisfy the fourth element. The District Court incorrectly ruled that a Section 1985(3) plaintiff must prove an actual deprivation of a right or privilege before she can recover under Section 1985(3). 990 F. Supp. at 676.

The cases cited by the District Court on this point actually refute its holding. In Larson, this Court affirmed dismissal of a Section 1985(3) claim because "there was simply inadequate evidence, either direct or circumstantial, of a conspiracy." 76 F.3d at 1455. In dictum, the Court went on to state: "Absent some evidence of a conspiracy and absent some evidence that the actions of these defendants either caused injury to the plaintiffs or intentionally prevented the plaintiffs from exercising some right or privilege granted them as United States citizens, there can be no liability under § 1985." 76 F.3d at 1456 (emphasis added). Larson is therefore consistent with Griffin and allows a Section 1985(3) plaintiff to prove either element 4(a) or element 4(b).

The District Court’s reliance on Wiggins v. Hitchens, 853 F. Supp. 505 (D.D.C. 1994) is similarly misplaced. The court in Wiggins held that a violation of the Fair Credit Reporting Act does not "equate to a deprivation of the equal protection of the laws, or of equal privileges and immunities under the laws within the meaning of § 1985." Id. Thus, the plaintiffs’ Section 1985 claim was dismissed "for failure to successfully plead an underlying, federally protected right required under section 1985(3)." Id. (emphasis added). Wiggins does not stand for the proposition that there must be a completed violation of a federally protected right in order to recover under Section 1985(3).

In Escamilla v. City of Santa Ana, 606 F. Supp. 928 (C.D. Cal. 1985), the court relied on the defense of "good faith immunity" to grant summary judgment on Section 1983 and 1985(3) claims against two police officers. Any suggestion in Escamilla that a Section 1985 plaintiff must prove both elements 4(a) and 4(b) is dictum and simply wrong.

Finally, the District Court cited the unreported decision in Garrison v. Burke, No. 91 C 20150, 1997 WL 37909 (N.D. Ill. January 27, 1997), but it also undercuts the holding below. In Garrison the court ruled that "the fact that this court has found no underlying deprivation of equal protection precludes plaintiff from establishing the fourth element [of a Section 1985 claim], as she has not shown any other injury to her property or person." Id., at *10 (emphasis added). The opinion in Garrison thus confirms that proof of either element 4(a) or 4(b) is sufficient.

Mrs. Jones has demonstrated that she suffered an injury in her person -- emotional distress -- caused by Mr. Clinton’s "overt acts" after he and Trooper Ferguson arranged to "set her up" in a coercive environment. A claim of emotional distress may be based solely on the claimant’s own testimony. Migis v. Pearle Vision, Inc., 135 F.3d 1041,1047 (5th Cir. 1998). "Mental anguish damages may be appropriate where the plaintiff suffers sleeplessness, anxiety, stress, marital problems, and humiliation, and does not always require that the plaintiff offer medical evidence or corroborating testimony in addition to her own testimony." Id. Because element 4(b) is established, it was not necessary for Mrs. Jones to produce evidence of element 4(a) (although she has done so, as demonstrated in Sections I and II above). Thus fails the single ground on which the District Court based its summary judgment on the Section 1985 claim.

IV. THE DISTRICT COURT ERRED BY GRANTING SUMMARY JUDGMENT ON THE CLAIM OF OUTRAGEOUS CONDUCT

A. The Standard of Review Is De Novo

In reviewing the summary dismissal of the claim of outrageous conduct, the Court should employ the de novo standard of review. Please refer to Section I.A. above.

Count III of the complaint alleges intentional infliction of emotional distress or the "tort of outrage." Under Arkansas law, the elements of this tort are: (1) the defendant intended to inflict emotional distress or knew or should have known that emotional distress was the likely result of his conduct; (2) the conduct was extreme and outrageous and utterly intolerable in a civilized community; (3) the defendant’s conduct was the cause of the plaintiff’s distress; and (4) the plaintiff’s emotional distress was so severe in nature that no reasonable person could be expected to endure it. Milam v. Bank of Cabot, 937 S.W.2d 653, 658 (Ark. 1997); Hollomon v. Keadle, 931 S.W.2d 413, 415 (Ark. 1996). The District Court ruled that, as to the second and fourth elements, the evidence proffered by Mrs. Jones was insufficient as a matter of law. 990 F. Supp. at 677-78. On both points, the District Court erred.

B. The District Court Erred in Holding That No Rational Jury CouldFind That Mr. Clinton’s Conduct Was Extreme and Outrageous

Outrageous conduct is "conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society." M.B.M. Co. v. Counce, 596 S.W.2d 681, 687 (Ark. 1980). Arkansas law recognizes a claim of intentional infliction of emotional distress based on sexual harassment. Davis v. Tri-State Mack Distrib., Inc., 981 F.2d 340, 342 (8th Cir. 1992) (citing Hale v. Ladd, 826 S.W.2d 244 (Ark. 1992)).

On this point the District Court erred because it simply overlooked critical facts and apposite cases. The District Court found that "the conduct as alleged by plaintiff describes a mere sexual proposition or encounter," that it "did not involve any coercion or threats of reprisal," and that it "was abandoned as soon as [Mrs. Jones] made clear that the advance was not welcome." 990 F. Supp. at 677. Wrong on all counts!

Was it a "mere sexual proposition or encounter"? The man exposed himself! He fondled his penis in front of her and asked her to "kiss it." Given his position the request could reasonably have been construed as an instruction to "kiss it." And this he did to a subordinate employee in her early twenties, whom he had met for the first time only a few minutes earlier. If Mr. Clinton was making a "mere sexual proposition," he certainly chose an extreme and outrageous way to do so.

Was it "was abandoned as soon as [Mrs. Jones] made clear that the advance was not welcome"? To the contrary, the evidence shows that after she realized she had been brought to the room by false pretenses, Mrs. Jones twice broke away from him and twice made it clear that she was not interested in having sex with him. App. V at 1795-98. Then he exposed himself and directed her to "kiss it." After she refused, he continued to fondle himself in front of her. This obviously went "beyond all bounds of decency" because it was, quite literally, an "indecent exposure." See Ark. Code Ann. § 5-14-112.

Did it "not involve any coercion or threats of reprisal"? The District Court failed to take into account the facts that Mr. Clinton was the Governor; that he controlled the Arkansas Industrial Development Commission; that Mrs. Jones was a low-level clerk working for the AIDC; that she was in her early twenties; that he twice made a point of reminding her of his authority over and close relationship with Dave Harrington, the Director of the AIDC; that he even made a statement indicating that he could control how Harrington treated Mrs. Jones; that he detained her briefly before she left the room and sternly told her not to tell anyone what had happened; that an armed state trooper was waiting outside the door and met her with silence when she left; and so on. There is an abundance of evidence of coercion and thinly veiled threats of reprisal. The District Court simply neglected its duty to view the evidence in the light most favorable to Mrs. Jones.

The District Court also attributed undue significance to the fact that the "encounter" with Mr. Clinton in the hotel room was "relatively brief in duration." 990 F. Supp. at 677. This punishes Mrs. Jones for having had the strength of character to reject Mr. Clinton’s advances, to defy his (badly abused) authority, and to leave his presence. Had she performed oral sex, as he attempted to coerce her to do, then the harm would have been greatly multiplied, not only on that particular occasion but later as he might have attempted to take advantage of her -- or someone else -- again and again. The length of time that the conduct persists is merely one factor that may be considered in deciding whether the conduct is outrageous. Crenshaw v. Georgia-Pacific Corp., 915 F. Supp. 93, 99 (W.D. Ark. 1995). A rational jury could readily conclude that a single sexual assault, or a single attempted sexual assault, or even a serious episode of sexual harassment, qualifies as outrageous conduct, even if it is perpetrated in only a few minutes.

Only a few months ago, this point was made resoundingly by the Supreme Court of Arkansas in McQuay v. Guntharp, 963 S.W.2d 583, 584-87 (1998). In that case five women alleged that a physician, "improperly touched, examined, and otherwise fondled" their breasts during physical examinations. 963 S.W.2d at 584. The trial court dismissed the case, stating that as a matter of law the alleged facts did not constitute outrageous conduct. The state supreme court reversed, holding that a claim of outrage was stated as to each incident, even though the examination could only have lasted a few minutes. 963 S.W.2d at 586-87.

There are more controlling precedent which the District Court failed to follow. In Manning v. Metropolitan Life Ins. Co., Inc., 127 F.3d 686 (8th Cir. 1997), for example, a panel of this Court affirmed a judgment in favor of five employees of an insurance company, based on the theory of outrageous conduct. The employees were subjected to lewd comments, gestures and propositions by an account representative who was essentially their peer. 127 F.3d at 688. Unlike Mr. Clinton, the harasser in Manning did not expose himself to any of the plaintiffs, he did not forcibly pull them to him and embrace them tightly against his body, he did not attempt to kiss them, and he did not place his hand on any plaintiff’s thigh or attempt to touch her genitals. Id. Moreover, the harasser was not, at the time of the harassment, in a position to fire or to demote them, and there was no evidence that the plaintiffs suffered any "tangible job detriment." Id. at 688-89. Nevertheless, the Court held that the plaintiffs had proven their case and that the defendant was not entitled to judgment as a matter of law. Id. at 691. See also Davis v. Tri-State Mack, 981 F.2d at 343-44 (judgment based on theory of outrageous conduct upheld where there was evidence that the supervisor had been "pawing" an employee and "making offensive remarks" to her).

The District Court erred by failing to follow these precedents. The error was compounded by the District Court’s failure to recognize (despite the fact that Mrs. Jones clearly pointed it out in her opposition to the motion for summary judgment, see App. V at 1764-66) the legal significance of Mr. Clinton’s position as Governor. The District Court simply disregarded this critical aspect of the case, see 990 F. Supp. at 677-78, and thereby failed to follow this Court’s directive in Lucas v. Brown & Root Inc., 736 F.2d 1202, 1206-07 (8th Cir. 1984). In Lucas, a panel of this Court reviewed an order dismissing a claim of outrageous conduct. The plaintiff had alleged that she was fired because she would not sleep with her foreman, and that her employer then contested her claim for unemployment compensation by falsely asserting that she was discharged for misconduct. The Court reversed the order of dismissal, holding that "in light of the nature of the employment relationship and the power of the employer," the plaintiff’s allegations were sufficient to state a cause of action for intentional infliction of emotional distress. 736 F.2d at 1206.

For this very reason, the case at bar is more egregious than those discussed above, as it involves not only extreme sexual misconduct but also an egregious misuse of the power conferred upon the chief executive. "[T]he extreme and outrageous nature of the conduct" may "arise not [only] from what is done as from the abuse by the defendant of a relationship with the plaintiff which gives him power to damage the plaintiff’s interest." Lucas, 736 F.2d at 1206 (quoting M.B.M. Co. Inc. v. Counce, 596 S.W.2d 681, 688 (Ark.1980)). See also McQuay v. Guntharp, 963 S.W.2d at 586-87 (influence of physician over patient made brief touching of breast outrageous); Croom v. Younts, 913 S.W.2d 283, 287 (Ark. 1986) (influence of older man over youth rendered consensual sexual conduct outrageous).

Interestingly, when Mr. Clinton moved for judgment on the pleadings, the District Court denied the motion and wrote that Mr. Clinton’s conduct, if true, "could well be regarded as atrocious and utterly intolerable for purposes of establishing a claim for the tort of intentional infliction of emotional distress." 974 F. Supp. at 730. Later, when Mr. Clinton moved for summary judgment, Mrs. Jones adduced competent summary judgment proof of that same conduct, but instead of accepting it as true, the District Court ignored or trivialized the evidence and held that as a matter of law Mr. Clinton’s conduct could not be regarded as atrocious and utterly intolerable. We respectfully submit that the District Court was right the first time. The summary judgment should be reversed.


   

 

C. The District Court Erred in Holding That No Rational Jury Could Find That Mrs. Jones Suffered Severe Emotional Distress as a Result of Mr. Clinton’s Conduct

In much the same way, the District Court erred in holding that Mrs. Jones failed to adduce evidence of severe emotional distress. The District Court essentially weighed the evidence -- which it was not supposed to do at all -- and did so unfairly, omitting critical evidence in support of the claim. See 990 F. Supp. at 678. The District Court’s discussion of the outrage claim does not even mention the following evidence.

When Mr. Clinton made his crude advances in the hotel room, culminating in the exposing of his erect penis, coupled with his request that she "kiss it," Mrs. Jones was horrified, shocked, frightened, and nervous. App. V at 1796, 1850. She was also intimidated by his position as governor. App. V at 1796-97. She was disgusted when Mr. Clinton asked her to "kiss it" and fondled himself. App. V at 1850. Despite wanting desperately to leave the room, she was afraid to do so. Finally, even though she faced the most powerful man in Arkansas, the stress became so overwhelming that she had to leave, and she fled from the room against his obvious wishes. App. V at 1796-97. The very fact that he she was forced by these emotions to leave the room, despite the coercive influences to remain and to submit, proves that the emotional distress was intolerable.

The District Court also failed to note that Mrs. Jones’s emotional distress was readily apparent to those around her and well corroborated. As Mrs. Jones returned to the registration desk, Ms. Blackard could tell "from far off" that something was wrong. App. VI at 2282. As Mrs. Jones approached the desk, Ms. Blackard could tell that Mrs. Jones was "shaking" and "out of breath." Id. Ms. Blackard immediately asked what was wrong. Id. After attempting to collect herself, Mrs. Jones related some of Mr. Clinton’s conduct but could not bring herself to tell about the demand for oral sex. She was too upset to tell Ms. Blackard everything, and she asked her not to tell anyone because she felt so embarrassed by what had happened. Id. Mrs. Jones left the hotel shortly thereafter and went to visit a close friend, Debra Ballentine. Ms. Ballentine knew something was wrong immediately because Mrs. Jones was "upset" and "crying." App. VII at 2426. Through her sobs, Mrs. Jones was finally able to relate the incident to Ms. Ballentine. Id. at 2426-27.

Within the next two days, Mrs. Jones told her sister, Lydia Cathey, about her experience at the Excelsior Hotel. Mrs. Jones was crying so hard that she could barely relate the incident to Ms. Cathey; Ms. Cathey testified that Mrs. Jones was "scared," "embarrassed" and "ashamed." App. VI at 2289-90. Ms. Cathey also observed that Mr. Clinton’s abhorrent conduct had caused Mrs. Jones to feel like "trash," like "dirt." App. VI at 2291. All of this testimony was clearly brought to the attention of the District Court, App. V at 1705, VI at 2289-91, yet the District Court totally ignored it instead of doing what it should have done: accept it as true, and draw from it all reasonable inferences in favor of Mrs. Jones.

The District Court further failed to recognize that Mrs. Jones’s mental anguish was compounded by the fact that all avenues of redress appeared to be closed. Mrs. Jones was afraid to report the incident to her immediate supervisor because Mr. Clinton let it be known in the hotel room that he was "good friends" with the head of the entire agency, and that he had the power to control her treatment at work. Moreover, when she tried to leave the hotel room, detained her and sternly told her to keep the incident to herself. App. V at 1796; VII at 2427. A jury could easily conclude that a remark like that, coming from a state governor who had just exposed himself to a woman he did not know, in a closed room with an armed guard at the door (and with the obvious disparity in physical stature), would frighten and intimidate her. Mrs. Jones was afraid to report the incident to the police because it was the State Police who had just helped Mr. Clinton assault her. App. V at 1797, VII at 2427. What Mr. Clinton and Trooper Ferguson had said and done made Mrs. Jones so fearful that she could not press charges or pursue a grievance. App. V at 1797. Mrs. Jones continues to feel fearful and embarrassed, and is unable to watch Mr. Clinton on television or read an article about the case without experiencing mental anguish. App. V at 1801.

None of this evidence was even mentioned by the District Court in its consideration of the outrageous conduct claim. The District Court apparently only considered evidence unfavorable to Mrs. Jones, such as the fact that she did not consult a physician or incur medical bills. 990 F. Supp. at 678. Perhaps those are things which a jury ought to consider, but they do not preclude recovery as a matter of law.

Most significantly, the District Court failed to apply the principle that "if the enormity of the outrage itself carries conviction that there has in fact been severe and serious mental distress which is neither feigned nor trivial, bodily harm is not required." Angle v. Alexander, 945 S.W.2d 933, 937 (1997) (quoting W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 12 (5th ed. 1984)). Accord Manning v. Metropolitan Life Insurance Co., Inc., 127 F.3d at 691. The fact that Mrs. Jones did not consult a physician is of no moment, simply because Mr. Clinton’s conduct shocks the conscience and it is reasonable to conclude from the nature of the conduct itself that severe emotional harm must have followed.

Whether Mrs. Jones’s emotional distress was "severe" is an issue of fact that should have been submitted to a jury. The District Court failed to consider substantial evidence that would have supported a verdict in favor of Mrs. Jones. Accordingly, the summary judgment on this claim should be reversed and the case remanded for trial.

 

V. THE DISTRICT COURT ERRED BY GRANTING SUMMARY JUDGMENT DESPITE THE SUBSTANTIAL EVIDENCE OF OBSTRUCTION OF JUSTICE AND OTHER MISCONDUCT

A. Evidence of Obstruction, Subornation of Perjury and the Like Creates an Inference That the Wrongdoer’s Entire Case Is Weak

Evidence that a party or his agents have attempted to conceal or corrupt evidence, commit or suborn perjury, tamper with witnesses, or obstruct justice is admissible against that party and gives rise to an inference that his entire case is weak and unfounded. See McQueeney v. Wilmington Trust Co., 779 F.2d 916, 921 (3d Cir. 1985) (subornation of perjury by a party is "strong evidence" that the party’s case is weak).

This rule has been recognized and enforced in the Eighth Circuit. Martin v. Norris, 82 F.3d 211, 216 (8th Cir. 1996) (it is "settled beyond question" that "a party’s attempt to fabricate evidence is admissible . . . as proof relevant to show his own belief that his case is weak"); Great Am. Ins. Co. v. Horab, 309 F.2d 262, 264 (8th Cir. l962) (in a civil case, evidence that a litigant attempted to influence or to suppress a witness’ testimony is an admission that his case is weak). See also Favors v. Fisher, 13 F.3d 1235, 1239 (8th Cir. 1994) (unlawful destruction of documents in a race discrimination suit entitles the plaintiff to a presumption that the suppressed evidence would have bolstered her case). The leading commentators also recognize this rule. See 2 John Henry Wigmore, Evidence in Trials at Common Law § 278(2) (Chadbourne Rev. 1979); McCormick on Evidence § 273 at 808-10 (3d ed. 1984).

B. The Record Contains Substantial Evidence of Obstruction of Justice, Subornation of Perjury, and Other Misconduct by the Defendants

This case is extraordinary, not only because one of the defendants is the President, but also because the Office of Independent Counsel ("OIC") has been authorized to investigate: "whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses, or otherwise violated federal law . . . in dealing with witnesses, potential witnesses, attorneys, or others concerning the civil case Jones v. Clinton." App. V at 1776. Thus, a federal criminal investigation is currently focussed on whether the sorts of misconduct discussed above have in fact occurred in this civil action. There is no suggestion that Mrs. Jones, her attorneys or anyone acting on her behalf has engaged in any wrongdoing. The ongoing criminal investigation concerns corruption or elimination of evidence sought by Mrs. Jones.

Mrs. Jones proffered and specifically explained to the District Court a large volume of evidence of obstruction of justice, witness tampering, subornation of perjury and perjury. App. VII at 2467-73, 2439-45; V at 1773-78. (Some of that evidence is outlined in the Statement of the Facts, above.) Mrs. Jones also repeatedly requested permission to conduct discovery into the Lewinsky matter, which is the subject of the OIC investigation, and asked the District Court not to rule on the motion for summary judgment until such discovery was completed. App. V at 1776-77.

The District Court acknowledged that Mrs. Jones had proffered evidence of misconduct, but deemed it of no consequence because the misconduct did not involve the particular evidence on which the summary judgment was based. 990 F. Supp. at 678-79. Neither the District Court nor Mr. Clinton cited any authority for the proposition that the inference triggered by such misconduct applies only to the particular issue to which the evidence relates. We know of none; indeed, an overwhelming body of law says the opposite:

    It has always been understood -- the inference, indeed, is one of the simplest in human experience -- that a party’s falsehood or other fraud in the presentation of his cause, his fabrication or suppression of evidence by bribery or spoliation, and all similar conduct is receivable against him as an indication that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause’s lack of truth or merit. The inference thus does not necessarily apply to any specific fact in the cause, but operates, indefinitely though strongly, against the whole mass of alleged facts constituting his cause.

2 John Henry Wigmore, Evidence in Trials at Common Law § 278(2) (Chadbourne Rev. 1979) (emphasis supplied). See Erickson v. Newmar Corp., 87 F.3d 298, 304 (9th Cir. 1996) (witness tampering by defense counsel prevents a "fair trial" and such conduct "subvert[s] the entire judicial process"). Thus, it does not matter whether or not the evidence corrupted by Mr. Clinton and his agents relates to the particular facts on which the motion for summary judgment was based. Nor does it matter whether it relates to issues on which Mrs. Jones bears the burden of proof. The inference mandated by the case law is that Mr. Clinton’s case is weak on every issue of fact.

In the context of a motion for summary judgment, the District Court was required to draw every reasonable inference in favor of the non-movant, Mrs. Jones. As a matter of law, Mr. Clinton’s misconduct entitles Mrs. Jones to an inference that Mr. Clinton’s case is weak on every factual element of every claim and every defense. Therefore, summary judgment was precluded by the substantial evidence of wrongdoing by Mr. Clinton and his agents. The entire summary judgment -- including the dismissal of the equal protection claim based on quid pro quo sexual harassment -- should be reversed.

 

VI. THE DISTRICT COURT ERRED BY CUTTING OFF DISCOVERY OF EVIDENCE RELATED TO MONICA LEWINSKY AND BY RULING ALL SUCH EVIDENCE INADMISSIBLE

A. The Standard of Review Is Abuse of Discretion

In reviewing a district court’s decision to exclude evidence, the court of appeals must determine whether the trial court abused its discretion. See Hawkins v. Hennepin Tech. Ctr., 900 F.2d 153, 155-56 (8th Cir. 1990). "A trial court’s exclusion of evidence under Fed.R.Evid. 403 is entitled to substantial deference on review, but the Court’s exercise of its discretion must not unfairly prevent a party from proving his case." Estes v. Dick Smith Ford, Inc., 856 F.2d 1097, 1103 (8th Cir. 1988).

B. It Was an Abuse of Discretion To Exclude, Based on a Pending Criminal Investigation and in the Midst of Discovery, the Lewinsky Evidence

The decision to cut off discovery and to exclude at trial the evidence relating to Monica Lewinsky was indisputably precipitated by the OIC investigation and OIC’s motion to stay discovery. During a hearing convened less than 24 hours after OIC filed its motion, the Lewinsky evidence was declared nondiscoverable and inadmissible at trial. The decision was arbitrary and contrary to settled legal principles.

OIC’s motion sought only a temporary stay of discovery pending OIC’s investigation of felonies possibly committed by Mr. Clinton in connection with this very civil action. App. II at 1053-63. OIC did not request exclusion of any evidence, and most certainly did not request exclusion of Mrs. Jones’s evidence -- after all, the investigation focused on the conduct of a defendant, Mr. Clinton. No party had filed a motion seeking a ruling on the admissibility of the Lewinsky evidence. Mrs. Jones was given no notice that any issue of admissibility or discoverability would even be addressed at the hearing.

The ruling was issued without the benefit of knowing the content (and hence the probative value) of the evidence being excluded.

[MATERIAL REDACTED]

The discovery aborted by the District Court was reasonably calculated to lead to admissible evidence in three categories:

    evidence that, despite Mr. Clinton’s testimony to the contrary, Monica Lewinsky and Mr. Clinton had a sexual relationship in which he insisted on oral sex (just as he had requested of Mrs. Jones) and during which Ms. Lewinsky received paying jobs in the White House and later in the Pentagon;

    evidence that Mr. Clinton, with direct reference to Mrs. Jones’s lawsuit, made admissions to Ms. Lewinsky about his advances to Mrs. Jones; and

    evidence that, in this civil action, Mr. Clinton and his agents committed perjury, suborned perjury, tampered with witnesses and obstructed justice.

Evidence of these facts would be admissible on many grounds:

1. The obvious quid pro quo aspects of the relationship with Ms. Lewinsky are strong evidence of Mr. Clinton’s intent to discriminate based on gender and his intent to harass sexually, and are therefore admissible under Fed. R. Civ. P. 404(b) (making other instances of similar conduct admissible to prove "intent" and "absence of mistake"). In Heyne v. Caruso, 69 F.3d 1475, 1479-81 (9th Cir. 1995), the court held that, notwithstanding the discretion afforded the trial court in making Rule 403 determinations, it was reversible error in a sexual harassment suit to exclude testimony of other female employees about how they were treated by the employer. "The probative value of the employer’s sexual harassment of other female employees is especially high ‘because of the inherent difficulty of proving state of mind.’" 69 F.3d at 1480 (quoting Mullen v. Princess Anne Vol. Fire Co., 853 F.2d 1130, 1133 (4th Cir. 1988)).

2. Mr. Clinton’s relationship with Ms. Lewinsky is persuasive evidence of his motive and objective in conspiring with Trooper Ferguson to arrange a private meeting with Mrs. Jones, the object of which was coercion and sexual harassment of Mrs. Jones. Other instances of similar conduct are admissible under Fed. R. Civ. P. 404(b) to prove "motive."

3. Mr. Clinton’s behavior toward Ms. Lewinsky is evidence of his habit of making aggressive sexual advances to young, low-ranking employees (those who were most vulnerable and easily exploited). Habit evidence is admissible under Fed. R. Civ. P. 406.

4. Mr. Clinton’s admissions to Ms. Lewinsky concerning Mrs. Jones’s lawsuit go directly to the core issue whether he engaged in the conduct alleged by Mrs. Jones.

5. Evidence that Mr. Clinton and his agents suborned perjury or obstructed justice would constitute an admission by Mr. Clinton that his entire case is weak. See Section V.

6. If any aspect of Defendant Clinton’s sexual conduct with respect to Ms. Lewinsky was not consensual, then it is admissible under Fed. R. Evid. 415, making admissible in this case evidence of other sexual conduct constituting "an offense of sexual assault" as defined in Fed. R. Evid. 413. Sexual advances by the President to a 21-year-old intern who is working in the White House are inherently coercive. Mr. Clinton’s characterizations of his conduct have been proven unreliable, as demonstrated by the testimony of Kathleen Willey.

Other grounds of relevance were presented as well. App. III at 1080-84.

But the issue here is not merely whether the Lewinsky evidence would have been relevant, but also whether it was error to rule in midst of discovery that the evidence would be inadmissible under Fed. R. Evid. 403. This Court has held that it is reversible error to exclude similar evidence at trial. See Hawkins v. Hennepin Technical Center, 900 F.2d at 155-56. See also Duckworth v. Rice, 83 F.3d 999, 1001-02 (8th Cir. 1996); Phillip v. ANR Freight Sys., Inc., 945 F.2d 1054, 1056 (8th Cir. 1991); Estes v. Dick Smith Ford, Inc., 856 F.2d at 1103. For several reasons, it was error to declare such evidence inadmissible before its specific content was established through discovery.

First of all, when the ruling was made on January 29, 1998, it was impossible for the District Court to do the balancing required by Rule 403, because for the most part, the evidence being excluded had not yet been discovered. Without knowing the substance of the evidence, the District Court had only conjecture to place on one side of the scale, and it was error to rule the unknown evidence inadmissible under Rule 403. The District Court should have permitted the discovery and then weighed the probative value of the fruit of that discovery, as was done in Johnson v. Nyack Hospital, 169 F.R.D. 550, 554-55 (S.D.N.Y. 1996). There the court described the difficulty associated with a pre-discovery Rule 403 analysis:

    [I]t is difficult to predict with confidence the posture of the case at the time it is ready for trial. It may well be that discovery will yield information that would increase the apparent probative value of such evidence beyond what now appears. Indeed, one cannot confidently rule out the possibility that defendants themselves will open the door.

169 F.R.D. at 554-55. The truth of these observations is manifest.

Second, not a shred of evidence suggested that admission or discovery of the Lewinsky evidence would lengthen the trial of this case. Even assuming arguendo that the District Court was legally required to stay discovery due to the pending OIC investigation, Rule 403 does not authorize exclusion of evidence to prevent a postponement of trial, but only to prevent a lengthening of trial.

Third, even if Rule 403 could properly be invoked to avoid the necessity of postponing a trial in deference to an ongoing criminal investigation of one party, it is an abuse of discretion to solve the problem by excluding the evidence of the other party. Mrs. Jones should not have been punished for the OIC investigation. It is focused on possible felonies by Mr. Clinton and his agents, not by Mrs. Jones. There is no authority for the proposition that a criminal investigation of a defendant justifies excluding a plaintiff’s evidence.

Finally, Fed. R. Civ. P. 26(c) requires a showing of "good cause" before the Court may disallow discovery of information which "appears reasonably calculated to lead to the discovery of admissible evidence" within the meaning of Fed. R. Civ. P. 26(b)(1). As explained above, the District Court’s previous rulings in this case establish that Mrs. Jones’s discovery of the Lewinsky evidence is well within the scope of proper discovery under Rule 26(b)(1). The District Court arbitrarily disallowed that discovery in the absence of any valid demonstration or finding of "good cause" to do so. This ruling was an abuse of discretion.

CONCLUSION

The District Court ignored critical facts, failed to view the facts in the light most favorable to Paula Jones, and failed to give her the benefit of all reasonable factual inferences. As a result of these errors, the District Court incorrectly granted summary judgment on the equal protection claim under Section 1983, the conspiracy claim under Section 1985, and the claim of intentional infliction of emotional distress, and incorrectly dismissed the due process claim under Section 1983. The summary judgment and dismissal should be reversed, the aforementioned claims reinstated, and the case remanded for completion of discovery -- including discovery of evidence relating to Monica Lewinsky --and for trial by jury. Further, Mrs. Jones should be awarded her costs and all other relief to which she is entitled.

Respectfully submitted,

 

Donovan Campbell, Jr.
James A. Fisher
Robert E. Rader, Jr.
David M. Pyke
T. Wesley Holmes
J. McCord Wilson
RADER, CAMPBELL, FISHER & PYKE OF COUNSEL:
(A Professional Corporation) Steven H. Aden
Stemmons Place, Suite 1080 Alexis I. Crow
2777 Stemmons Freeway Participating Attorneys on Behalf of
Dallas, Texas 75207

John W. Whitehead
THE RUTHERFORD INSTITUTE
Post Office Box 7482
1445 East Rio Road
Charlottesville, Virginia 22906-7482

© Copyright 1998 The Washington Post Company

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