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The Jones team: Donovan Cambpell with John Whitehead (AP photo)

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Opposing Summary Judgement

Released on Friday, March 13, 1998

Following is the full text of the motion filed on March 13 by Paula Jones's legal team in opposition to the Clinton legal team's Feb. 17 motion for summary judgement.

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

PAULA JONES,
Plaintiff,

V.

WILLIAM JEFFERSON CLINTON and DANNY FERGUSON,
Defendants.

CIVIL ACTION NO. LR-C-94-290
Judge Susan Webber Wright


PLAINTIFF'S OPPOSITION TO DEFENDANT CLINTON'S
MOTION FOR SUMMARY JUDGMENT

According to President Clinton's Motion for Summary Judgment, Paula Jones has no legal right to sue him even if he did exactly what she has testified he did at the Excelsior Hotel on May 8, 1991. Thus, the President – our President – says that a state governor may, with complete impunity, direct a state policeman to summon a female employee of an agency controlled by the governor to leave her workplace in order to meet the governor in a room where, unbeknownst to her, he is alone and waiting to sexually assault her; and there the governor may, with complete impunity, expose and fondle his erect penis in front of the woman, and even command her to perform oral sex; and the governor may, with complete impunity, threaten the woman by telling her to keep quiet about the incident, while reminding her that he is a "good friend" of the director of the agency employing her. Our President says that a governor who has done such things has not violated the woman's constitutional right to equal protection from discrimination. Our President says that the woman is not entitled to sue for sexual harassment. Our President says that a governor who is guilty of such conduct did not do anything "outrageous." Our President is wrong.

A public official who does these things is subject to civil liability under Sections 1983 and 1985 of Title 42, United States Code, as well as Title VII of the Civil Rights Act of 1964, as amended. In Arkansas, he is also subject to civil liability under state law.

Competent evidence-- indeed, compelling evidence-- supports every element of Paula Jones' claims against Mr. Clinton. Paula Jones has demonstrated the extraordinary courage to endure four long years of public ridicule and vicious attacks on her character, and through it all she has never recanted, never retreated from, her testimony about Governor Bill Clinton's despicable conduct on May 8, 1991. All she asks of this Court is a fair, public trial by jury, as is her right.

Now, in a desperate attempt to prevent that trial from ever taking place, Mr. Clinton has asked the Court to summarily dispose of this case, precluding the jury from ever hearing the testimony, judging the credibility of the witnesses, weighing the evidence and deciding what really happened at the Excelsior Hotel. Summary judgment is a harsh remedy, and rarely appropriate in employment-discrimination cases, but Mr. Clinton is seeking it anyway. To justify an extraordinary summary disposition of this discrimination case, Mr. Clinton's motion and supporting memorandum indulge in a veritable orgy of false and misleading statements of the law and inaccurate characterizations of the evidence.(1) Here we set the record straight.

TABLE OF CONTENTS

STATEMENT OF MATERIAL FACTS

I. DEFENDANT CLINTON IS NOT ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S CLAIM UNDER SECTION 1983

II. DEFENDANT CLINTON IS NOT ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S CLAIM UNDER SECTION 1985

1. There is Evidence of a Conspiracy

2. There Is Evidence of Unlawful Intent
III. DEFENDANT CLINTON IS NOT ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S CLAIM OF OUTRAGEOUS CONDUCT


IV. SUMMARY JUDGMENT IS PRECLUDED BY SUBSTANTIAL EVIDENCE OF OBSTRUCTION OF JUSTICE AND OTHER IMPROPER CONDUCT
CONCLUSION

FOOTNOTES

PLAINTIFF'S OPPOSITION TO DEFENDANT CLINTON'S MOTION FOR SUMMARY JUDGMENT

Paula Jones respectfully submits that President Clinton's Motion for Summary Judgment is without merit and should be denied for the following reasons.

STATEMENT OF MATERIAL FACTS

The following facts are proven by competent evidence in the record:

On or about March 11, 1991, Paula Jones ("Plaintiff" or "Mrs. Jones") began work as an employee of the State of Arkansas, working for the Arkansas Industrial Development Commission (the "AIDC"). JONES DECL. ¶ 4.(2) On May 8, 1991, the AIDC sponsored the Third Annual Governor's Quality Conference (the "Conference") at the Excelsior Hotel in Little Rock, Arkansas. JONES DECL. ¶ 5. On that day, Mrs. Jones worked at the registration desk at the Conference. Pamela Blackard, another employee of the AIDC, worked with Mrs. Jones at the registration desk. Id ¶ 6.

A man approached the registration desk and told Ms. Blackard and Mrs. Jones that he was Trooper Danny Ferguson ("Trooper Ferguson"), Governor Clinton's bodyguard. JONES DECL. ¶ 7. He made small talk with Ms. Blackard and Mrs. Jones, during which he showed Mrs. Jones that he was carrying a pistol. Id. He then returned to Governor Clinton.

Next, Trooper Ferguson spoke to Mr. Clinton and 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," a term Mr. Clinton used frequently, and always in connection with women. FERGUSON DEP. at 56-57. "That come hither look" according to Mr. Clinton, "means either in look or dress a sort of a [sexually] suggestive appearance from the look or dress." CLINTON DEP. at 108-09. (3)

Some time later," (i.e. after the "come-hither look" comment) Mr. Clinton told Trooper Ferguson that he needed a hotel room so that he could receive a telephone call from the White House. FERGUSON DEP. at 66-67. Even though Trooper Ferguson had a copy of Mr. Clinton's schedule for the day, this was the first he had heard about the call from the White House. FERGUSON DEP. at 66-69. Trooper Ferguson procured the hotel room for Mr. Clinton and took him there. Id at 50. After arriving at the room, Mr. Clinton immediately asked that Mr. Ferguson go get Mrs. Jones. Id at 66.

If Mr. Clinton had merely wanted to meet Mrs. Jones, or if Trooper Ferguson had merely intended to introduce Mrs. Jones to Mr. Clinton, there is no reason that the meeting could not have occurred in the lobby of the hotel as opposed to a private hotel room. FERGUSON DEP. 57-58. Mr. Clinton had been talking to the press and other conference attendees in the hotel lobby only a few yards from where Mrs. Jones was working. Id at 49, 52.

Trooper Ferguson returned to Mrs. Jones, gave her a slip of paper with a hotel room number on it and said "the Governor would like to meet you." JONES DECL. ¶ 11; FERGUSON DEP. 50-5 1. Ms. Blackard, Trooper Ferguson and Mrs. Jones then talked about what the Governor could want JONES DECL. ¶ 9. Mrs. Jones thought it was an honor to be asked to meet the Governor. Id. Among other things, Trooper Ferguson stated: "We do this all the time." Id. Mrs. Jones decided to go meet Mr. Clinton. Id 110. Ms. Blackard told Mrs. Jones that she would take over her duties at the registration desk. Id. He then escorted Mrs. Jones to the hotel room where Mr. Clinton was waiting. JONES DECL. ¶ 11; FERGUSON DEP. at 5 1.

When Mrs. Jones arrived at the suite, the door was slightly ajar. JONES DECL. ¶ 11. Mrs. Jones knocked on the door frame, and Mr. Clinton answered. Id. Mrs. Jones went into the suite, while Trooper Ferguson remained outside.(4) Id.

Mr. Clinton shook Mrs. Jones's hand, invited her in, and closed the door. JONES DECL. ¶ 12. Mr. Clinton and Plaintiff talked for a few minutes. Id. ¶ 13. Mr. Clinton asked Mrs. Jones about her job. Id. He told Mrs. Jones 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. JONES DECL. ¶ 14. Mrs. Jones removed her hand from his and retreated several feet. Id.

Mr. Clinton approached Mrs. Jones again, saying "I love the way your hair flows down your back" and "I love your curves." JONES DECL. ¶ 15. Mr. Clinton put his hand on Mrs. Jones's leg and started sliding his hand toward her pelvic area. Id. Mrs. Jones did not consent to him doing this. Id Mr. Clinton also bent down 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. JONES DECL. € 16. Mrs. Jones was extremely upset and confused and did not know what to do. Id. Mrs. Jones tried to distract Mr. Clinton by asking him about his wife and her activities, and Mrs. Jones 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 told Mrs. Jones to "kiss it." Id.

Mrs. Jones was horrified by this. JONES DECL. ¶ 17. Mrs. Jones 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. 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." 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. JONES DECL. ¶ 18. From that point Mrs. Jones was very fearful that her refusal to submit to Mr. Clinton's advances could damage her career and even jeopardize her employment. Id.

Mr. Clinton's advances to Mrs. Jones were unwelcome. JONES DECL. ¶ 19. Mrs. Jones 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, Mrs. Jones resisted his advances although she was stunned by them and intimidated by who he was. Id.

When Mrs. Jones left the hotel suite, she was in shock and upset but she tried to maintain her composure. JONES DECL. ¶ 20. Mrs. Jones saw Trooper Ferguson waiting outside the suite. Id. He did not escort Mrs. Jones back to the registration desk. Id. Mrs. Jones said nothing to him and he said nothing to her. Id.

After Mrs. Jones left the hotel room, Mr. Clinton told Trooper Ferguson, without being asked, "She came up here, and nothing happened." FERGUSON DEP. at 63.

As Mrs. Jones returned to the registration desk Ms. Blackard could tell "from far off" that "she just looked different." BLACKARD DEP. at 68. As she got closer, Ms. Blackard could tell that Mrs. Jones was shaking. Id. Blackard immediately asked Mrs. Jones what was wrong. JONES DECL. ¶ 21; BLACKARD DEP. at 68. After attempting to collect herself, Mrs. Jones told Blackard much of what had happened, but Mrs. Jones was too upset to tell her everything. JONES DECL. ¶ 21; BLACKARD DEP. at 70. Jones said that she felt embarrassed by what had happened. BLACKARD DEP. at 69. Blackard attempted to comfort Mrs. Jones. JONES DECL. ¶ 21. Then Mrs. Jones became "real quiet." BLACKARD DEP. at 77.

Mrs. Jones left the Conference and went to the workplace of a friend named Debra Ballentine. JONES DECL. ¶ 22; BALLENTINE DEP. at 42-44. Mrs. Jones was still very upset emotionally distraught and nervous. Id. Ms. Ballentine knew something was wrong immediately. BALLENTINE DEP. at 44. Mrs. Jones told her that she wanted to talk to her immediately about something that had just happened and wanted to discuss it someplace privately. JONES DECL. ¶ 22; BALLENTINE DEP. at 44. Ms. Ballentine and Mrs. Jones went to a private area in the office and talked for awhile, and then they went outside and talked for awhile. BALLENTINE DEP. at 44. Mrs. Jones had trouble telling Ms. Ballentine what had happened because she was upset and crying. Id. at 46. She spoke in a whisper. Id. Eventually, Mrs. Jones told Ms. Ballentine what had happened with Mr. Clinton in the hotel suite. Id. at 46-5 1. Mrs. Jones was "shaking" and "crying" and "beside herself." BALLENTINE DEP. at 13.

Ms. Ballentine urged Mrs. Jones to report the incident to the police or to her superiors at the AMC. JONES DECL. ¶ 23; BALLENTINE DEP. at 50. Mrs. Jones was afraid to do so because it was the State Police themselves who had just helped Mr. Clinton assault her, and because Mr. Clinton had just told her that the head of the AIDC was his "good friend." JONES DECL. 12-3. What Mr. Clinton and Trooper Ferguson had said and done made Mrs. Jones afraid to file charges. Id. Mrs. Jones begged Ballentine not to tell anyone what had happened. BALLENTINE DEP. at 50.

Later that same day, Mrs. Jones told her sister, Charlotte Corbin Brown, about Mr. Clinton's sexual advances to her. JONES DECL. ¶ 24. Within the next two days, Mrs. Jones told her other sister, Lydia Corbin Cathey, what Mr. Clinton had done to her. Id. 125. Ms. Cathey observed that Mrs. Jones was crying and upset. CATHEY DEP. at 52. Cathey observed that Mrs. Jones was "scared," "embarrassed," and "ashamed." Id. at 52.

Mrs. Jones also told Mr. Stephen Jones, who was then her fiancé , that Mr. Clinton had made a pass at her but that she had said no. JONES DECL. ¶ 26. Mrs. Jones did not at that time, tell him all the details of her encounter with Mr. Clinton in the hotel suite. Id.

Mrs. Jones continued to work at the AIDC because she needed the job. JONES DECL. ¶ 27. 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: "Bill wants your phone number. Hillary's out of town often and Bill would like to see you." Id. Mrs. Jones refused to give her telephone number to Trooper Ferguson. Id.

Trooper Ferguson also asked Mrs. Jones: "How's Steve?" JONES DECL. 28. Considering what had happened previously, this frightened Mrs. Jones and made her feel as if she was being watched and was not safe, causing her to be fearful and to worry. Id. Mrs. Jones had never told Trooper Ferguson or Mr. Clinton the name of her fiancé . Id.

On one occasion, Mrs. Jones was accosted by Mr. Clinton in the Rotunda of the Arkansas State Capitol. JONES DECL. ¶ 29. Mr. Clinton draped his arm over her, pulled her close to him and held her tightly to his body, and said: "Don't we make a beautiful couple: Beauty and the Beast?" Id. Defendant Clinton directed this remark to his bodyguard. Id. This incident was not only embarrassing, it reminded Mrs. Jones of the incident with Mr. Clinton at the Excelsior Hotel and made her feel even more fearful and worried. Id.

After Plaintiff married Mr. Jones, she gave birth to her first child and took a maternity leave. JONES DECL. ¶ 30. 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 again worry that her activities were being monitored. Id.

Plaintiff's encounters with Mr. Clinton has caused her to suffer severe emotional distress. CARNES DECL. 14. She suffers from "extreme anxiety, intrusive thoughts and memories, and consequent sexual aversion." Id. "The impact of the trauma is severe and long term." Id.

Plaintiff continued to work at the AIDC even though she was in constant fear that Mr. Clinton would retaliate against her because she had refused to have sex with him. JONES DECL. ¶ 31. This fear prevented Mrs. Jones from enjoying her job. Id. In addition, Mrs. Jones was treated very rudely by certain superiors in AIDC, including her direct supervisor, Clydine Pennington. Id. This rude treatment had not happened before May 8, 1991, when Mrs. Jones met Mr. Clinton at the Excelsior Hotel. Id.

Furthermore, after Mrs. Jones' maternity leave, she was transferred to a position which had much less responsibility. JONES DECL. ¶ 32. Much of the time Mrs. Jones had nothing to do. Id. Mrs. Jones was not learning anything and her work could not be fairly evaluated. Id. As a result, Mrs. Jones could not be fairly considered for advancement and other opportunities. Id. Mrs. Jones' supervisor, Clydine Pennington told her that the reason for the transfer was that her prior position had been eliminated. Id. Mrs. Jones later learned that this was untrue, as her former position was being occupied by another employee. Id.

Mrs. Jones repeatedly expressed to her supervisor, Ms. Pennington, an interest in transferring to particular positions involving more challenging duties and more potential for advancement. JONES DECL. ¶ 32. The jobs sought were at a higher "grade" and would have led to more compensation. JONES DEP. at 37. Mrs. Jones sought those positions not only because they would have entitled her to higher pay, but also because she believed that they would "broaden [her] skills" and "help [her] grow." Id. Ms. Pennington always discouraged Mrs. Jones from doing so and told her that she should not bother to apply for those positions. JONES DECL. ¶ 32.

Mrs. Jones' superiors exhibited hostility toward her by moving her work location [JONES DEP. at 53], refusing to give her meaningful work [Id.], and watching her constantly. Id. Another tangible manifestation of hostility toward Mrs. Jones occurred on Secretaries Day in 1992. JONES DEP. at 72. All of the other women in the office received flowers, but Mrs. Jones received none. Id.

As a result of Defendants' conduct, Mrs. Jones was afraid to pursue established grievance procedures. JONES DEP. at 62.

Mrs. Jones resigned from her position at the AIDC on or about February 20, 1993. JONES DECL. ¶ 33. On or about May 4, 1993, Mrs. Jones' husband and she (and their son) moved to California. Id.

In January 1994, Mrs. Jones visited her family and friends in Arkansas. JONES DECL. ¶ 34. While Mrs. Jones was there, she had a conversation with Ms. Ballentine on the telephone. Id. During the telephone conversation, Ms. Ballentine read to Mrs. Jones a paragraph from an article published in The American Spectator magazine. Id. The article made a reference to a meeting at the Excelsior Hotel between Mr. Clinton and a woman named "Paula," which seemed like a very clear reference to Mrs. Jones, but the article incorrectly suggested that "Paula" had engaged in sexual relations with Mr. Clinton. Id.

Mrs. Jones was afraid that people who read the article in The American Spectator might believe that she had an affair with Mr. Clinton. JONES DECL. ¶ 35. Mrs. Jones realized that those people whom she had told about the meeting in the hotel room could identify Mrs. Jones as the "Paula" mentioned in The American Spectator article. Id. Mrs. Jones was extremely upset by this, because she feared that the statements in the magazine would harm her relationships with her husband, her sisters, her mother, and her friends. Id. Mrs. Jones also realized that someone - probably Trooper Ferguson - had told other people about the incident on May 8, 1991, may have told them her last name, and may have falsely suggested that Mrs. Jones had sexual relations with Mr. Clinton. Id.

On January 8, 1994, at about noon, Ms. Ballentine and Mrs. Jones were dining at the Golden Corral Steakhouse in North Little Rock, Arkansas. JONES DECL. ¶ 37. Trooper Ferguson, who happened to be dining at this restaurant, first called to Mrs. Jones in a loud voice and later came over to her table to talk to her. Id; FERGUSON DEP. 61-62. Since Mrs. Jones believed that Trooper Ferguson was the source of the reference to "Paula" in The American Spectator, she confronted him about that. JONES DECL. ¶ 37. Trooper Ferguson stated that he was very sorry that her first name had appeared in the magazine article but that he had purposely concealed her last name and place of employment from those to whom he had told the story. Id. Trooper Ferguson also said that he knew Mrs. Jones had refused Mr. Clinton's sexual advances because, he said, "Clinton told me you wouldn't do anything anyway, Paula." Id Trooper Ferguson also suggested to Mrs. Jones that she could make over a million dollars by selling her story to some publication such as the National Enquirer. Id.

Trooper Ferguson's denial that he had any idea what would occur in the Excelsior Hotel between Mr. Clinton and Mrs. Jones is contradicted by the fact he had been informed of many similar experiences of other troopers. Danny Ferguson had been on the Governor's security detail since April 1988. FERGUSON DEP. at 6. He had been on trips with Governor Clinton outside of Little Rock. Id. at 9-10. He had the opportunity to observe Governor Clinton in many circumstances.

In the same circumstances, Troopers Larry Patterson, Roger Perry, and L.D. Brown observed numerous sexual encounters and sexual advances by Mr. Clinton. PATTERSON DEP. at 10-56; PERRY DEP. at 5-23; BROWN DEP. at 15-60. Mr. Ferguson has admitted that Troopers Patterson and Perry, among others, had related their experiences to him prior to the incident on May 8, 1991. FERGUSON DEP. at 35-40, 92

Mr. Clinton's testimony, and the testimony of his agents, must be given little or no weight in deciding the motion before the Court in light of a prolonged attempt to suppress, alter, or distort evidence relating to the matters at issue in the case. There are many examples of this effort. Dolly Kyle Browning had testified that she had a long sexual affair with Mr. Clinton, and that she was contacted by agents of Mr. Clinton, including Bruce Lindsey, threatening to "destroy her" if she told the truth, and later promising not to spread vicious lies about her in order to get her to downplay her disclosures. BROWNING DECL., passim.

Attorneys at Mr. Clinton's law firm, Wright, Lindsey & Jennings, have worked to suppress stories of anyone claiming to have had sexual relations with Mr. Clinton, including paying such witnesses money, if necessary. THOMPSON DECL., passim.

Similarly, Gennifer Flowers has sworn to a twelve-year affair with Mr. Clinton, FLOWERS DECL. ¶ 1, and, despite repeated public statements to the contrary, Mr. Clinton now admits that he had sexual relations with Ms. Flowers. CLINTON DEP. at 190-91. Mr. Clinton told her to deny their affair. FLOWERS DECL. ¶ 6. Mr. Clinton not only advised Ms. Flowers to lie to the press and to the voting public, he advised her to lie in a government investigation concerning how she got her job. "He told me to tell them I found out about it [the state job] through the newspaper, and that's exactly what I told them." FLOWERS DEP. at 126-27. To the contrary, Ms. Flowers got her job with the assistance of Mr. Clinton. FLOWERS DEP. at 51.

Ms. Flowers testified that Mr. Clinton told her that "he would get me a job, and this [job with the Arkansas Appeal Tribunal] is the job he ultimately got me." FLOWERS DEP. at 52. Mr. Clinton, as Governor of Arkansas, asked his Governor's Assistant, Ms. Judy Gaddy to help Ms. Flowers fill out the state job application, and during their meeting to do so Ms. Gaddy admitted to Ms. Flowers that "given the sensitivity of [your] relationship with the governor's office, that we needed to be very careful that we did it correctly and somewhat discreet." Id. at 53, CLINTON DEP. at 178-79.

Mr. Clinton, however, was not careful or discreet because, in the presence of Trooper Patterson, he placed calls to get Ms. Flowers a state job. PATTERSON DEP. at 26.

Likewise, Mr. Clinton and his agents have feverishly sought to suppress the testimony of Kathleen Willey, who very reluctantly testified to unwanted sexual advances by Mr. Clinton just outside the Oval Office. WILLEY DEP. at 45-63; CLINTON DEP. at 29-31. Although an unpaid White House volunteer before the encounter, [WILLEY DEP. at 21-22; CLINTON DEP. at 28] shortly afterwards, in March of 1994, Ms. Willey was given paid employment in the Office of the White House Counsel, where she worked through November of 1994. WILLEY DEP. at 21-22; CLINTON DEP. at 37-38. Later, she was also appointed to attend two World Summits on behalf of the United States and was appointed by Mr. Clinton to serve on the Board of Governors of the U.S.O. WILLEY DEP. at 81-84; CLINTON DEP. At 40-41.

Linda Tripp talked to Ms. Willey immediately following the Oval Office encounter, thus Ms. Tripp was an eyewitness to her appearance and demeanor at that time. This crucial witness was later contacted by Bruce Lindsey on two occasions. He tried, in those conversations, to convince Ms. Tripp to change her account and, if necessary, her testimony concerning Ms. Willey and the events of and following November 29, 1993 concerning Ms. Willey and Bill Clinton. WILLEY/LANDOW REPLY; FISHER DECL.

Later, Monica Lewinsky, then under subpoena in this case, delivered to Ms. Tripp a document entitled "talking points" which advised her how she could change her testimony concerning Ms. Willey to be more favorable to the President. Ms. Lewinsky advised Ms. Tripp to lie if necessary to conceal the sexual relationship between Mr. Clinton and Ms. Lewinsky. WILLEY/LANDOW REPLY; FISHER DECL.

Shortly before her deposition, Ms. Willey was contacted by a prominent Democrat Nate Landow, who encouraged her not to talk about the Oval Office incident. WILLEY DEP. at 86-87 (as revised by "Statement Pursuant to FRCP 30(e)").

Most notoriously, there were numerous attempts to suppress the testimony of Monica Lewinsky. On December 17, 1997, Plaintiff issued a subpoena duces tecum for the deposition of Monica Lewinsky which was served on her on December 19, 1997. WILLEY/LANDOW REPLY, Exhibit 5; FISHER DECL. That subpoena sparked an enormous quantity of questionable activity on the part of Mr. Clinton, Ms. Lewinsky, Vernon Jordan, Betty Currie, and others. This activity was aimed at suppressing the potential testimony of Ms. Lewinsky that she had repeated sexual encounters with Mr. Clinton in the White House beginning in November, 1995, and thereafter received two attractive jobs in the federal government.

It is known that Ms. Lewinsky, originally an unpaid intern, received first a paying White House job, then a higher-paying Pentagon job, and then with the assistance of Vernon Jordan a private sector job offer. CLINTON DEP. at 48-50, 72-74, 78-82. These job promotions and assistance appear tied to Ms. Lewinsky's sexual relationship with Mr. Clinton. WILLEY/LANDOW REPLY; FISHER DECL. Furthermore, there is a strong indication that on December 28, 1997, Ms. Lewinsky met with Mr. Clinton privately in the White House and discussed her subpoena in this case at length with him, with Mr. Clinton apparently suggesting that Ms. Lewinsky could avoid producing subpoenaed gifts by giving them to his secretary Betty Currie and suggesting that she might avoid testifying altogether if she went to New York. Id. CLINTON DEP. at 68.

After that conversation and Mr. Jordan's attempts to get her a private-sector job, Ms. Lewinsky then filed an Affidavit in this case dated January 7, 1998 denying any sexual relationship with Mr. Clinton. Ex. 5 to WILLEY/LANDOW REPLY.

Mr. Clinton also granted a judicial appointment to Jane Doe No.2 whom Mr. Clinton characterizes as a "good friend and supporter of mine." CLINTON DEP. at 138. Mr. Clinton and Jane Doe No. 2 had several private meetings at her home when her husband was absent. Ms. Doe described these meetings as "social," and they occurred prior to her judicial appointment. CLINTON DEP. at 135-41; JANE DOE No. 2 DEP. at 58-60. Mr. Clinton admitted to Trooper L.D. Brown that Mr. Clinton had a sexual relationship with Jane Doe No. 2. BROWN DEP. at 29-30.

To suppress stories that troopers witnessed Mr. Clinton in many encounters with women, Mr. Clinton dispatched Buddy Young to improperly influence the troopers. PATTERSON DEP. at 56-58; PERRY DEP. at 52-78; CLINTON DEP. at 128-30. Buddy Young had been the troopers' supervisor while they worked Governor Security during Mr. Clinton's gubernatorial terms, but at the time of the conversations, Mr. Young was a federal employee. Mr. Young called Ferguson, Perry, and Patterson, purported to represent the President and threatened to "destroy them." PERRY DEP. at 76.

   


Similarly, at various times, Trooper L.D. Brown was offered jobs, followed, intimidated, and harassed by Mr. Clinton's agents including his former chief of staff Betsey Wright. BROWN DEP. at 61-67, 102; CLINTON DEP. 163.

Defendant Ferguson, also a trooper, approached Perry and relayed to him conversations with then-President Clinton concerning the possibility of offering jobs to Mr. Perry. "You tell Roger" Mr. Clinton instructed Mr. Ferguson, "he can have anything he wants." PERRY DEP. at 54; CLINTON DEP. at 113-125 and Dep. Exs. 8,9.

Mr. Clinton also spoke directly to Mr. Ferguson and in the same conversation discussed his "trooper problems" and the prospect of a federal job for Mr. Ferguson. CLINTON DEP. at 113-25 and Exs. 8-9 thereto. Nonetheless, Mr. Clinton shamelessly had his aide, Betsey Wright, and his attorney, Steve Engstrom, contact Mr. Ferguson to get him to sign an affidavit denying, that Mr. Clinton ever offered him a federal job. FERGUSON DEP. at 85-89; CLINTON DEP. at 194. Mr. Young also approached Ferguson to offer him a federal job. FERGUSON DEP. at 84, 90. Mr. Ferguson cautioned Mrs. Jones that if she came forward she should "think about [her] family" because "I've been through it and they was (sic) starting to dig up dirt." Id. at 62.

I. DEFENDANT CLINTON IS NOT ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S CLAIM UNDER SECTION 1983.

A. In Discrimination Cases, Summary Judgment Is a Disfavored Remedy.

Mr. Clinton is seeking a remedy that is disfavored in the law, although his counsel's memorandum to the Court fails to acknowledge same. "Summary 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).

For this reason, the prerequisites for summary judgment are 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 1338, 1341 (8th Cir. 1994)(quoting Johnson, 93 1 F.2d at 1244).

Summary judgment proceedings are particularly ill suited for adjudication of cases involving allegations of discrimination in employment. The United States Court of Appeals for the Eighth Circuit has recognized many times that "summary judgments should only be used sparingly in employment discrimination cases." Hardin v. Hussmann Corp. , 45 F.3d 262, 264 (8th Cir. 1995) (citing Haglof v. Northwest Rehabilitation, Inc. , 910 F.2d 492, 495 (8th Cir. 1990), and Hillebrand, 827F.2d at 364). Accord Crawford v. Runyon, 37F.3d at 1341 ("summary judgment should seldom be used in employment-discrimination cases"); Johnston v. Minn. Hist. Soc., 931 F.2d at 1244 (same).

Despite this oft-repeated pronouncement the Eighth Circuit has frequently found it necessary to reverse a summary judgment granted by a district court in favor of a defendant in an employment-discrimination case. See, e.g., Smith v. St. Louis Univ. , 109 F.3d 1261,1264-65 (8th Cir. 1997); Crawford v. Runyon, 37 F.3d at 1341-42; Hardin v. Hussman Corp., 45 F.3d at 264-66; Johnson v. Minn. Hist. Soc., 931 F.2d at 1244-45; Hagloff v. Northwest Rehabilitation; Inc. , 910 F.2d at 493-95; Hillebrand v. M-Tron Indus., Inc., 827 F.2d at 366-68. Mr. Clinton's motion would lead the Court 'into perilous territory.

B. Plaintiff Is Not Required To Prove "Tangible Job Detriment" To Maintain Her Claim Under Section 1983.

Count I of Paula Jones' complaint is founded on the Civil Rights Act of 1871, as amended and codified 'in 42 U.S.C. § 1983 ("Section 1983"). PLAINTIFF'S FIRST AMENDED COMPLAINT ¶ ¶ 58-65. Plaintiff alleges that Mr. Clinton discriminated against her on the basis of her gender, and in so doing violated her constitution rights under the Equal Protection Clause of the Fourteenth Amendment to the Constitution. Id. 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, Mr. Clinton seeks summary judgment based on the proposition that Count I is a "sexual harassment" suit and that Plaintiff must prove "sexual harassment" within the meaning of Title VII to recover under Section 1983. See MEMORANDUM at 4. (5)

Mr. Clinton's argument has three premises, and all of them are false. The first false premise is the proposition that Plaintiff's claim under Section 1983 is limited to gender-based discrimination in the form of sexual harassment under Title VII, see MEMORANDUM at 4, when in fact her claim has always included other forms of gender-based discrimination in violation of the Equal Protection Clause. The second false premise is the proposition that the essential elements of a sexual harassment suit under Section 1983 include all of the elements of a sexual harassment action under Title VII, Id., when in fact the elements of a case under Section 1983 ) are different (although there is some overlap). The third false premise is the proposition that proof of tangible job detriment is required to maintain an action for quid pro quo sexual harassment under Title VII-- and therefore, according to the first premise, under Section 1983 as well -- when in fact proof of tangible job detriment is required for neither. The facts and authorities invalidating these three premises of Mr. Clinton's argument are presented in the following three sections.

In addition to these fatal flaws in its legal analysis, Mr. Clinton's argument is invalid because it ignores the substantial evidence that Paula Jones did in fact suffer tangible job detriments. That evidence is presented in Section I.C. below. First however, the legal defects in Mr. Clinton's argument will be exposed.

1. Plaintiffs Claim under Section 1983 Is Not Limited to the Sexual Harassment Form of Gender-Based Discrimination.

Sexual harassment in the workplace is one form, but not the only form, of gender-based discrimination proscribed by the Equal Protection Clause and actionable under Section 1983. In seeking summary judgment on Count 1, Mr. Clinton advances arguments (and invalid ones at that) for summary judgment only on Plaintiff's sexual harassment claim, but he does not assert any ground for summary judgment on Plaintiff's claim of gender-based discrimination other than sexual harassment - such as, for example, the illegal sexual assault and other offensive physical contact in violation of the right to equal protection in the application of state law. Thus, even if the Court were to accept Mr. Clinton's argument with respect to Plaintiff's claim of discrimination in the form of sexual harassment -- and, as explained below, (6) it would be error to do so -- Mr. Clinton still would not be entitled to summary judgment on the entirety of Count L for Count I alleges an unlawful denial of equal protection by sexual assault and offensive contact in violation of state law, as well as by sexual harassment, and this suit is based on Section 1983, not on Title VII. (7)

Mr. Clinton cites no authority for the proposition that gender-based discrimination actionable under Section 1983 can only exist in those limited situations in which the discriminatory conduct under color of state law would also be actionable under Title VII. In support of his argument that "plaintiff must prove that she was subjected to conduct that corresponds to sexual harassment under Title VII," MEMORANDUM at 4, his counsel cites a number of cases and even two orders of this Court, but careful analysis demonstrates that the citations are inappropriate.

The first case cited, Trautvetter v. Quick, 916 F.2d 1140, 1149 (7th Cir. 1990), is inapposite because there the plaintiff did not argue that there was gender-based discrimination of a form other than sexual harassment. Thus, the court had no occasion to expound on the elements of any other form of equal protection claim. The court in Trautvetter repeatedly pointed out that it was addressing "a cause of action alleging sexual harassment as a violation of the equal protection clause;" and, again, "an equal protection claim of sexual harassment." 916 F.2d at 1149 (emphasis supplied). The court never said that Title VII sexual harassment is the only form of gender-based discrimination that is actionable under Section 1983). Obviously it is not.

The same is true of King v. Board of Regents of the University of Wisconsin System, 898 F.2d 533, 537 (7th Cir. 1990) ("King also sued under section 1983, claiming that sexual harassment by Sonstein was a violation of the equal protection clause"). No claim of gender-based discrimination other than sexual harassment was presented to the court in King . As in Trautvetter, the court in King never said that sexual harassment is the only form of gender-based discrimination that is actionable under Section 1983.

Mr. Clinton's counsel also represents that "this Court has now twice held, in order to prevail on her Section 1983 claim, plaintiff must prove that she was subjected to conduct that corresponds to sexual harassment under Title II," citing the Court's orders dated August 22, 1997 and January 9, 1998, respectively. While Plaintiff does not presume to declare what the Court meant, Plaintiff respectively submits that Mr. Clinton's memorandum does not accurately reflect what the Court actually held in those two orders.

In the Memorandum Opinion and Order dated August 22, 1997, the Court denied Mr. Clinton's motion to dismiss Plaintiffs claim of gender-based discrimination in violation of the Equal Protection Clause. In so doing, the Court wrote: "As a general matter, a claim of sexual harassment under § 1983 must satisfy the contours of a sexual harassment claim under Title VII." MEMORANDUM OPINION AND ORDER at 16. This statement differs from the proposition advanced by Mr. Clinton in two respects. First, the Court was only making an observation "as a general matter" - not a rigid principle that governs every case or even every claim in this case. Second, the Court carefully specified that it was commenting on "a claim of sexual harassment under § 1983" (emphasis supplied) and did not purport to make a pronouncement applicable to all claims of gender-based discrimination under Section 1983.

As for the Order dated January 9, 1998, Mr. Clinton's counsel is apparently relying on the Court's statement that "[t]he gist of this cause of action, and the theory under which all parties have been proceeding for nearly four years now, is alleged sexual harassment of a state employee by state actors under color of state law." ORDER at 3. That statement may be true, but it is not (and does not purport to be) a complete summary of all of Plaintiff's legal theories. Moreover, it is taken out of context. The Order of January 9, 1998 was merely an interlocutory order on Plaintiffs motion for reconsideration of all earlier order granting in part and denying in part Plaintiff's motion to compel three witnesses to answer certain deposition questions. The Court was certainly not then called upon to strike or to dismiss any of Plaintiff's claims.

Plaintiff's claim of gender-based discrimination has never been limited to "sexual harassment." See COMPLAINT ¶ ¶ 59, 64. In her original complaint, Plaintiff alleged that then-Governor Clinton "discriminated against because of her gender by sexually harassing and assaulting her on May 8, 1991, and thereafter." COMPLAINT ¶ 60 (emphasis supplied). She also alleged specific facts constituting an illegal sexual assault. See, e.g., COMPLAINT ¶ 20. She even identified a state statute, ARK. CODE ANN,. § 5-71-208, that was violated by Governor Clinton. COMPLAINT ¶ 53. From its inception, this case has involved equal protection claims based not only on sexual harassment, but also on sexual assault and offensive contact in violation of laws other than Title VII. (8)

Under the Federal Rules of Civil Procedure, an "offense of sexual assault" includes a crime under the law of a state that involved "contact without consent, between any part of the defendant's body or an object and the genitals or anus of another person," "contact without consent, between the genitals or anus of the defendant and any part of another person's body," or "an attempt or conspiracy to engage in" such conduct. FED. R. CIV. P. 413(d)(2), (3), (5). The Arkansas statutes, of course, criminalize sexual assault. The relevant provision is ARK. CODE ANN. § 5-14-108, proscribing "Sexual Abuse in the First Degree." This provision is violated by a person who engages in sexual conduct with another person by "forcible compulsion" which is defined as any bodily impact, restraint or confinement, or the threat thereof. West v. State, 719 S.W.2d 684 (Ark. 1986).

West explains the degree of compulsion required for the statute to apply, and does so in terms that leave no room for Mr. Clinton to argue that the statute does not apply to his conduct at the Excelsior Hotel. The court described the conduct involved in that case:

He came up behind her, put his arms around her, put his hand over her left breast and kissed the back of her neck. She said he cupped her breast firmly and squeezed it. With some difficulty she removed his arms and ran back to the truck, not knowing where else to go. When they started back, he told her not to tell any of her friends that she had been with him.
719 S.W.2d at 686. These facts, the majority held, satisfied the forcible compulsion requirement. This description will sound familiar to any reader of the Complaint in this case. Here, too, the victim was isolated, but in a closed room instead of a field. (And here the perpetrator was aided by an armed guard who brought the victim to him and who was then posted outside the room.) Both defendants kissed their victim's necks but nothing else. Both defendants placed their hands on the victim and restrained her, but only for a short time. Both relented after the victim resisted; neither actually raped the victim. No such drastic action is required to establish the crime of sexual abuse or attempted sexual abuse. Mr. Clinton's conduct qualifies, and is incorrect to assert that Plaintiff's allegations are limited to claims of sexual "harassment" in violation of Title VII.

Violations of Title VII may often be actionable under Section 1983, but it is fallacious to conclude that all actions under Section 1983 must meet the requirements of Title VII. The point is simply this: In order to be actionable under Section 1983, gender-based discrimination is not required to be "sexual harassment" as that term has been defined in Title VII jurisprudence. Paula Jones' claims have never been limited to discrimination of the "sexual harassment" variety. The first premise of Mr. Clinton's argument is false.

2. The Essential Elements of Plaintiffs Claim Under Section 1983 Are Not the Same as Those of a Claim Under Title VII and Do Not Include Proof of Tangible Job Detriment.

Even as to the "sexual harassment" form of gender-based discrimination, "tangible job detriment" is not an essential element of proof in an action under Section 1983 for denial of equal protection rights. Mr. Clinton's argument incorrectly assumes that every essential element of a sexual-harassment claim under Title VII is also an essential element of a sexual harassment claim under Section 1983. This argument reflects a basic misunderstanding both of equal protection law (as explained in this section) and of Title VII (as explained in the following section).

In Bohen v. City of East Chicago, 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. That standard comes from the regulations promulgated under Title VII." Id. (emphasis supplied). Thus, a finding that the harassment altered the conditions of the victim's employment is not an essential element of an action under Section 1983 for violation of the right to equal protection. See also Andrews v. City of Philadelphia, 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 the standard for actionable sexual harassment under Section 1983 is different from the standard for sexual harassment under Title VII:

The present claim is brought under section 1983 ), and is therefore subject to a different analysis from the Title VII claim at issue in Bedford [v. Southeastern Penn. Transp. Auth, 867 F. Supp. 288 (E.D. Pa. 1994)]. The 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. In order to demonstrate that she has been subjected to sex discrimination under section 1983, Ascolese must show that she was treated differently than a similarly situated person of the opposite sex would have been. Moreover, 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 Ascolese's workplace generally. Thus, there is no need to consider the alleged discrimination in the context of Ascolese'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. Paula Jones is not required to prove that Governor Clinton altered the conditions of her employment (although she can and will do so), but only that, in the context of Plaintiff's public employment, Mr. Clinton, acting under color of state law, intentionally discriminated against Plaintiff because of her gender. Viewing the evidence in the light most favorable to Mrs. Jones (as is the Court's duty at this juncture), a jury might reasonably find - and indeed would likely find -- that Governor Clinton's conduct was intentional, that it is was based on Plaintiff's gender, and that was both "hostile" and "abusive."

As supposed authority for the proposition that Plaintiff absolutely cannot recover under Section 1983 unless she proves every element of "sexual harassment" within the meaning of Title VII, Mr. Clinton's counsel cites two Seventh Circuit cases (and no Eighth Circuit cases), Trautvetter v. Quick and King v. Board of Regents of the University of Wisconsin System. See MEMORANDUM at 4. In fact, these cases make no such definitive pronouncement; to the contrary, they refute Mr. Clinton's suggestion that the essential elements of sexual harassment in a suit under Section 1983 are well defined to be Identical to those in a suit under Title VII. In King , the court wrote: "We have held that sexual harassment is a violation of equal protection, Bohen , 799 F.2d at 1185, although the precise parameters of this cause of action have not been well defined." And in Trautvetter the court wrote: "The parameters of a cause of action alleging sexual harassment as a violation of the equal protection clause have not been precisely defined. We have noted, however, that such a claim generally follows the contours of a Title VII allegation of sexual harassment." 916 F.2d at 1149 (citing King ). Saying that sexual harassment under Section 1983 "generally follows the contours of" sexual harassment under Title VII is a far cry from saying that the required elements of proof are Identical . Thus both cases explicitly note that the requirements for a sexual-harassment action under Section 1983 are not well defined. More importantly, both cases cite with approval Bohen v. City of East Chicago, where in the same circuit court of appeals held that the elements of a sexual harassment suit under Section 1983 are not the same as those in a suit under Title VII. 799 F.2d at 1187.

Based as it is on a misreading of the two Seventh Circuit cases, the second premise of Mr. Clinton's argument is false. Significantly, Mr. Clinton has directed the Court to no Eighth Circuit or Supreme Court cases holding that every element of a quid pro quo harassment claim under Title VII must be proven to maintain an action under Section 1983 for gender-based discrimination in the form of quid pro quo sexual harassment. More specifically, there is no Eighth Circuit or Supreme Court authority for the proposition that "tangible job detriment" is an essential element of a Section 1983 action based on quid pro quo sexual harassment.

3. Even in a Suit for Sexual Harassment Under Title II, Proof of Tangible Job Detriment Is Not Required.

The Court should reject Mr. Clinton's contention that sexual harassment of the quid pro quo variety cannot be actionable under Section 1983 unless there is a "tangible job detriment" as a result of the employee's refusal to submit to the employer's sexual advances. See MEMORANDUM at 5-6. That is not even the law in Title VII cases, let alone in Section 1983 cases where, as demonstrated above, whether the conditions of employment were altered is not even a "relevant inquiry." Bohen , 799 F.2d at 1187.

Mr. Clinton's argument on this issue begins with an egregious misrepresentation of the holding of Davis v. City of Sioux City, 115 F.3d 1365, 1367 (8th Cir. 1997). Defense counsel cites Davis as directly supporting the following proposition: "To establish a prima facie case of quid pro quo sexual harassment plaintiff must put forth evidence to prove, inter alia, that she suffered a tangible job detriment as a result of refusing her employer's advances." MEMORANDUM at 5. Wrong! Davis is not even a quid pro quo case; the only claims were for hostile environment and for retaliation. 115 F.3d at 1366. In dictum only, the court makes the following reference to quid pro quo claims: "In the situation of quid pro quo sexual harassment by a supervisor, where the harassment results in a tangible detriment to the subordinate, liability is imputed to the employer." Id. at 1367. The court is only making an observation concerning the vicarious liability of the employer for the acts of its employee-supervisor. The court does not say "tangible detriment" must be proven in order to have quid pro quo harassment. In fact just the opposite is true. The court's careful choice of words, "where the harassment results in a tangible detriment," clearly implies that there can be quid pro quo harassment that does not result 'in a tangible detriment.

Defense counsel's reliance on Cram v. Lamson & Session Co. , 49 F.3d 466 (8th Cir. 1995), another Title VII (but not Section 1983) case, is similarly misplaced. In Cram the plaintiff was a former employee of the defendant. Ms. Cram had been fired after breaking off a consensual sexual relationship with a foreman in her department. Id. at 469-70. She sued her former employer and the foreman for sexual harassment and retaliation in violation of Title VII. Id. at 470. Thus, the plaintiff in Cram unquestionably suffered a tangible detriment -- termination of employment. The court simply was not faced with the issue whether a victim of a quid pro quo demand for sex can recover for emotional distress caused by the demand, in the absence of any ensuing tangible detriment.

Most importantly, in Cram the loss of employment was the harm for which Ms. Cram sought to recover. It was logical to require her to prove a causal link between that harm and the quid pro quo demand for sexual favors. The court in Cram affirmed a judgment for the employer not because the employee had failed to prove tangible detriment to her job, but because she had failed to prove that the employer's decision to terminate her job was caused by her refusal to renew her previously consensual relationship with the foreman, who was merely another employee of the defendant. Id. at 473. The crux of the issue was the agency relationship between the harasser and the employer.

Here, unlike the situation in Cram , Plaintiff is not suing her former employer. Rather, she is suing an individual for emotional distress directly caused by his invidious demand for oral sex coupled with a thinly veiled threat of adverse employment action if she refused, and for loss of income when he himself followed through on his threat. The agency issue addressed in Cram is not present here. The Eighth Circuit's enumeration of the elements of a quid pro quo action under Title VII was made in the context of a case in which it was necessary to establish liability of the employer for an employee's (the foreman's) acts of harassment. See 49 F.3d at 473. That list of elements simply does not apply to the fact pattern here, because there is no issue of vicarious liability. Mrs. Jones is suing the wrongdoer himself.

This distinction is critical in understanding - and reconciling -- the many cases cited by counsel for Mr. Clinton. The issue whether Mr. Clinton is liable for his own acts is a fundamentally different question from the issue whether an employer is liable for quid pro quo harassment by one of its supervisory employees toward another employee. In resolving the latter issue, it is at least arguably sensible to require a "tangible job detriment" as a prerequisite to holding the employer liable. The acts of harassment are likely to be outside the scope of the supervisor's authority, and so traditional principles of agency are inadequate determinants of the employer's liability. Unless there is a tangible, adverse effect on the employment relationship, one might conclude that the employer per se has done nothing to harm the employee and should not be liable. But these considerations do not militate in favor of requiring proof of tangible job detriment in an action directly against the supervisor who makes the quid pro quo demand.

The greatest evil inherent in quid pro quo harassment is that it puts the victim on the horns of a terrible dilemma. The victim must spontaneously and under coercion choose between submitting to unwanted sexual contacts, or resisting and living in fear of reprisals that might jeopardize her entire career. A serious injury is caused as soon as the demand is made, and continues regardless of whether the harasser follows through with his threat.

Contrary to the impression left by Mr. Clinton's brief, see MEMORANDUM at 5 n.2, there is an abundance of authority holding that "tangible job detriment" is not an essential element of an action for quid pro quo sexual harassment under Title VII. Moreover, the trend is indisputably in that direction. The leading case is Jansen v. Packaging Corp. of America, 123 F.3d 490, 499-500 (7th Cir. 1997) (en banc) (plurality), cert. granted sub nom. Burlington India., Inc. v. Ellerth, 66 U.S.L.W. 3283 (U.S. Jan. 23, 1998) (No. 97-569). Mr. Clinton's counsel badly misrepresents the holding of Jansen. See MEMORANDUM at 6 n.2.

In Jansen, two en banc panels of the Seventh Circuit consolidated for decision two cases, "Ellerth" and "Jansen," involving claims of quid pro quo discrimination under Title VII. In each case, the district court had granted summary judgment for the employers on the quid pro quo claim, and in each case the Seventh Circuit reversed. A central issue in both cases was whether the employer should be held vicariously liable for the quid pro quo harassment of a female employee by a male supervisory employee. 123 F3d. at 493-94.

A clear majority of the judges -- not a "plurality" as represented by Mr. Clinton's counsel see MEMORANDUM at 6 n.2 -- held in a per curiam opinion that "liability for quid pro quo harassment is strict even if the supervisor's threat does not result in a company act." 123 F.3d at 495. In both Jansen and Ellerth, the Seventh Circuit held for the employees - reversing summary judgments of the lower courts -- despite the fact that neither of the employee-plaintiffs had proven a "tangible job detriment" in the sense urged by Mr. Clinton. (9)

The Ninth Circuit agrees with that result. In Nichols v. Frank, 42 F.3d 503), 512-13) (9th Cir. 1994), the plaintiff was a postal worker who had been asked to perform oral sex by her supervisor. In the same conversation, the supervisor had mentioned a job benefit (a two-week leave of absence), although not explicitly conditioning receipt of the benefit on submission to his sexual demands. The court upheld a finding of quid pro quo sexual harassment even though the employer had never fired, demoted, or taken other adverse action against the plaintiff-employee. In language particularly apropos here, the court wrote: "In sum, we conclude that a supervisor's intertwining of a request for the performance of sexual favors with a discussion of actual or potential job benefits or detriments in a single conversation constitutes quid pro quo sexual harassment." 42 F.3d at 513.

In his attempt to convince the Court that a majority of the circuits require proof of a "tangible job detriment" in quid pro quo harassment cases, Mr. Clinton's counsel makes several inappropriate citations. For example, defense counsel cites Bryson v. Chicago State University, 96 F.3d 912, 916 (7th Cir. 1996), for the proposition that a "quid pro quo claimant must show that she 'has suffered a materially adverse employment action.'" MEMORANDUM at 5 n.2. That citation is misleading, for the holding represented could not have survived the Seventh Circuit's en banc decision in Jensen, as discussed above.

Similarly misleading is defense counsel's citation to Carrero v. New York Housing Authority, 890 F.2d 569, 579 (2d Cir. 1989). See MEMORANDUM at 6 n.2. In Karibian v. Columbia University, 14 F.3d 773, 777 (2d Cir.), cert. denied, 512 U.S. 1213 (1994), the Second Circuit specifically rejected the contention that "adverse consequences" are an essential element of a quid pro quo claim:

We read Carrero's reference to "adverse consequences," therefore, as descriptive of the facts before the Court, not as establishing a sine qua non that employment decisions be C4 adverse" in order to state a valid claim. Accordingly, there is no inconsistency between Carrero and our conclusion that once an employer conditions any terms of employment upon the employee's submitting to unwelcome sexual advances, a quid pro quo claim is made out regardless of whether the employee (a) rejects the advances and suffers the consequences, or (b) submits to the advances in order to avoid the consequences.
14 F.3d at 778-79. In the Second Circuit, then, a quid pro quo claim exists as soon as the conditional threat is made, regardless of how the scenario plays out. In Karibian, the Second Circuit reversed a summary judgment against an employee who had not suffered any tangible job detriment, holding that "the district court erred when it required [the employee] to present evidence of actual, rather than threatened, economic loss in order to state a valid claim of quid pro quo harassment." Id. at 777. (10)

It bears repeating that all of these cases are Title VII cases. While it remains to be seen what the Supreme Court will do in Burlington Industries, Inc. v. Ellerth, 66 U.S.L.W. 3283 (U.S. Jan. 23, 1998) (No. 97-569), the clear trend in the Title VII case law, and the better-reasoned view, is against requiring proof of "tangible job detriment" in an action for quid pro quo sexual harassment under Title VII -- except as may be necessary to establish an agency relationship between an employer and the individual who committed the acts of harassment against an employee. (11) A fortiorari proof of "tangible job detriment" is not an essential element in Plaintiff's claim under Section 1983 for gender-based discrimination in violation of equal protection rights.

C. Substantial Evidence Proves Every Element of Plaintiffs Quid Pro Quo Claim, Including, If Necessary, Tangible Job Detriment.

With respect to Plaintiff's claim of quid pro quo sexual harassment in violation of her equal protection rights, Mr. Clinton argues that Plaintiff's proof "falls" on two points that are supposedly "essential elements" of Plaintiff's case: (1) a tangible job detriment, and (2) a link of causation between Plaintiff's refusal to submit to Mr. Clinton's sexual demands and the tangible job detriment. MEMORANDUM at 5. To the contrary, the evidence tendered by Plaintiff is more than sufficient to prove both points, although the issue is moot because, as explained above, proof of tangible job detriment is not an essential element of an action under Section 1983.

1. Tangible Job Detriment Is Proven.

Ample evidence of tangible job detriments is presented herewith. That evidence proves that after Plaintiff resisted Mr. Clinton's advances on May 8, 1991, the following occurred:

Before examining the evidence of these tangible detriments in detail, it will be helpful to consider the case law, because the exposition by Mr. Clinton's counsel is specious. Defense counsel cites Bryson v. Chicago State University, 96 F.3d 912 (7th Cir. 1996) for an abstract proposition (i.e., that the concept of "tangible job detriment a quid pro quo harassment case corresponds to the-concept of "adverse employment action" 'in a Title VII retaliation case), but conveniently ignores the very significant holding "in Bryson. See MEMORANDUM at 12. In Bryson, a tenured professor brought a Title VII action against a state university and her supervisor, alleging quid pro quo sexual harassment. The district court granted summary judgment on the ground that the professor had supposedly failed to demonstrate that she had lost any tangible employment benefit as a result of her rejection of her supervisor's sexual advances. 96 F.3d at 913. The Seventh Circuit reversed the summary judgement, finding that there were disputed issues of fact to wit, whether a change of title and a removal from certain committees qualified as tangible job detriments. The professor had experienced no loss of compensation, benefits or rank, but the court nevertheless held that the change of title and loss of committee appointments could be tangible job detriments because the title and the committee work arguably "conferred prestige" and were "important to important professional advancement." Id. at 916. "Depriving someone of the building blocks for a promotion," the court noted, "is just as serious as depriving her of the job itself," id. at 917, an observation of particular relevance here.

Mr. Clinton's argument fails to recognize that "a wide variety of actions, some blatant and some subtle, can qualify" as tangible job detriments (or, in the context of retaliation claims, adverse employment actions). Bryson, 96 F.3d at 916. In McCabe v. Sharrett, 12 F.3d 1558, 1564 (11th Cir. 1994), for example, an employee was held to have suffered adverse job action where her job responsibilities were reduced, she was made to perform more menial tasks, and she had a lesser opportunity for salary increases in her new position.

And in Collins v. State of Illinois 830 F.2d 256, 258-60 (7th Cir. 1987), adverse employment action was found where the employer had transferred a library employee to a new department where the supervisors were unsure of her new duties, she had been largely relegated to reference rather than consulting work, and she had lost her private office and telephone.

The court in Collins observed that "adverse job action is not limited solely to loss or reduction of pay or monetary benefits. It can encompass other forms of adversity as well."

Collins, 830 F.2d at 703. Then the court cited with approval cases in which (a) moving an employee's office to an undesirable location, (b) transferring an employee to an isolated corner of the workplace, and (c) requiring an employee to relocate her personal files while forbidding her to use the firm's stationary and support services, were each held to be a materially adverse employment action. Id.

Application of these precedents to the evidence before the Court leaves no doubt that Plaintiff has adduced more than sufficient proof of tangible job detriments to preclude summary judgment

Opportunities for Advancement Denied. On two occasions Plaintiff informed her immediate supervisor, Ms. Clydine Pennington, that Plaintiff was interested in transferring to other departments at the AIDC where higher-grade jobs were available.(12) JONES DEP. at 35, lines 13-18; 37, lines 19. Because these jobs sought by Plaintiff were at a higher "grade," Plaintiff would have received more compensation. JONES DEP. at 37, lines 16-19. See AIDC "Employee Salary Changes" record. Plaintiff sought those positions not only because they would have entitled her to higher pay, but also because she believed that they would "broaden [her] skills" and "help [her] grow." JONES DEP. at 37.

Nevertheless, Ms. Pennington's response was to insist that Plaintiff stay where she was and to deter her from applying for the other jobs by assuring her that she would "grow" in that department. JONES DEP. at 39. In fact, Plaintiff's responsibilities were reduced, even though she consistently received positive ratings in her formal performance reviews. JONES DEP. at 38, lines 1-2; Jones Performance Evaluations.

Responsibilities Reduced. Plaintiff's job responsibilities were changed. JONES DEP. at 5-7 lines 5-7; 55, lines 4-19. Her duties as a "purchasing assistant," involved in preparing purchase orders used by the agency, were taken away, and she was given the tedious task of putting applications for employment into a database. Id. at 55, lines 4-19. She was no longer dealing with the purchasing department. Id. at 56, lines 7-8. Much of the time she "didn't have any work to do." JONES DEP. 53, line 22. These significant changes were made without discussing the move with her and in the absence of any request by her that she be moved. Id. at 56, lines 8-10. A jury could reasonably find that the removal of plaintiff's responsibilities impaired her potential for promotion. Like the plaintiff in Bryson v. Chicago State University, 96 F.3d at 916, Paula Jones was denied the "building blocks" of career advancement.

Another case cited by Mr. Clinton's counsel, Williams v. Bristol-Myers Squibb Co., 85 F.3d 270 (7th Cir. 1996), also undercuts Mr. Clinton's position. The court in Williams held that a "purely lateral transfer, that is, a transfer that does not involve a demotion in form or substance, cannot rise to the level of a materially adverse employment action." Id. at 274 (emphasis in original). This statement was quoted by the Eighth Circuit with approval in Ledergerber v. Stangler, 122 F.3d 1142, 1144 (8th Cir. 1997). It does not matter whether Plaintiff was demoted in form, because she was certainly demoted in substance. Such a de facto demotion constitutes a materially adverse job action, according to the courts in Williams and Ledergerber.

Denial of Right to Invoke Grievance Procedure. By Executive Order No. 86- 1, every agency of the State of Arkansas, including the AIDC, was required to have a formal grievance procedure. See Executive Order 86-01 (signed by Governor Clinton). A Uniform Grievance Procedure was issued the agencies. See Memorandum dated July 16, 1985 from Artee Williams, Administrator, Office of Personnel Management, with attached procedure. The AIDC eventually developed a Grievance Procedure closely following the Uniform Grievance Procedure. See AIDC Grievance Procedure. Both the AIDC Grievance Procedure and the Uniform Grievance Procedure state that "[i]t is the policy of this agency that all employees be given the opportunity, through established steps and procedures, to resolve in a timely manner complaints or grievances they believe adversely affect their employment or working conditions."

In these policies, the definition of "grievance" determines for what matters the procedure may be invoked. "Grievance" is defined to include a complaint by an employee "regarding an aspect of his or her employment: including, but not limited to, ... promotion, demotion, ... discrimination or any other work related problem except compensation and conditions that are beyond the control of agency management or are mandated by law." AIDC Grievance Procedure at 6.2. The meaning of the term "discrimination" is clarified thus: "Discrimination is on the basis of race, color, sex, age, national origin, religion or disability." Id. (emphasis supplied).

Mr. Clinton's conduct toward Plaintiff, and his threat to Plaintiff, caused a tangible job detriment in that they effectively denied Plaintiff her right to invoke the grievance procedure to seek redress for gender-based discrimination, including Mr. Clinton's own unwelcome sexual advances and sexual assault of Plaintiff, as well as the ensuing treatment of Plaintiff at the AIDC. Plaintiff was aware of the grievance procedure, but was afraid to take advantage of it. JONES DEP. at 62, lines 17-21. Mr. Clinton's threatening words and actions toward Plaintiff were said and done when he was Governor, the highest authority in the Executive Branch of the state government, and while he was attending an official state function. Plaintiff was subjected to the threatening words and actions when she was at work as an AIDC employee, and performing her job functions, so it was natural for her to conclude that invoking the grievance procedure would be futile and perhaps worse. The grievance procedure was a benefit available to all other employees. The deprivation of that benefit was a tangible job detriment to Plaintiff.

Hostile Treatment Having Tangible Effects. Plaintiff has tendered evidence -- which the Court is obliged to accept as true -- that following her rejection of Mr. Clinton's advances, the attitude of her supervisors toward her changed and became quite negative. JONES DECL. ¶ JONES DEP. at 35, lines 10-25; p. 45, lines 15-20. Plaintiff testified that "there was a lot of hostility it seemed like between Cherry Duckett and I. She never would speak to me.... I would try to talk to her." Id. at 35, lines 18-19. And Clydine Pennington was "not as friendly as she used to have been." Id. at 45, lines 17-20. This change of attitude manifested itself in physical actions that directly and adversely affected Plaintiffs enjoyment of her job; in other words, there were tangible job detriments. The location of Plaintiffs work station was moved so that she had to sit directly outside Ms. Pennington's office, where she could be watched constantly. JONES DEP. at 53, lines 19-21. On Secretaries' Day, Plaintiff was the only female in the office who did not receive flowers. JONES DEP. at 72, lines 12-16. There were times when Plaintiff literally was given no work to do and she suffered the embarrassment of having to sit at her work station doing nothing. Id. at 53, lines 22-23. In determining that similar actions constituted tangible job detriments, the court in Collins v. State of Illinois made the following observation: "One does not have to be an employment expert to know that an employer can make an employee's job undesirable or even unbearable without money or benefits even entering into the picture." Collins v. State of Ill., 830 F.2d at 703. (13)

That the adverse treatment of Mrs. Jones was motivated by discriminatory animus is further evidenced by comparison with the treatment afforded those state employees who did not spurn Mr. Clinton's advances. Gennifer Flowers, who (now indisputably) had sexual relations with Mr. Clinton, received a state job with Mr. Clinton's direct -- and nefarious -- assistance. FLOWERS DECL., passim. When his efforts to "assist" Ms. Flowers raised scrutiny, he sought to cover his tracks and advised Ms. Flowers how to lie. FLOWERS DEP. at 126-27. The evidence reveals that Mr. Clinton was willing to subvert public employment procedures to bestow employment benefits on Ms. Flowers. A reasonable inference is that he would do so again, and that he would encourage his subordinates to lie about it now, to destroy Plaintiff's career. Likewise, Mr. Clinton also conferred employment benefits on Jane Doe No. 2, with whom he had an affair, according to admissions made by Mr. Clinton to State Trooper L.D. Brown. BROWN DEP. at 29-30. Cf. CLINTON DEP. at 1315-41; JANE DOE No. 2 DEP. at 58-60. Most recently, Ms. Lewinsky was afforded extraordinary advancement benefits, and assistance from Mr. Clinton and his allies, apparently as a direct result of her acceding to Mr. Clinton's sexual demands. FISHER DECL., Ex. A; WILLEY/LANDOW REPLY. Given Mr. Clinton's well-documented practice of using the benefits of government employment as rewards for submission to his sexual desires, a reasonable juror might well conclude that Mr. Clinton would withhold those benefits from those who, like Plaintiff, did not submit.

   


In summary judgment proceedings, the evidence adduced by the nonmovant must be accepted as true, all reasonable inferences from the evidence must be drawn in favor of the nonmovant, and all conflicting evidence must be disregarded. Application of this standard leaves no doubt: there is substantial evidence of tangible job detriments, and Mr. Clinton is not entitled to summary judgment.

2. Causation Is Proven.

Substantial evidence supports the inference that Mr. Clinton caused Plaintiff to suffer the tangible job detriments enumerated above. Plaintiff was not treated badly by her supervisors at the AIDC until after her refusal to submit to Mr. Clinton's sexual demands. JONES DECL. ¶ 31. He had the power to control the terms and conditions of Plaintiff's employment, and he admitted that he was willing to use that power, specifically with reference to Plaintiff, for illegitimate reasons.

On May 8, 199 1, Mr. Clinton was, as Governor, the highest ranking officer of the entire Executive Branch of the government of the State of Arkansas. PRESIDENT CLINTON'S RESPONSES TO PLAINTIFF's FIRST SET OF REQUESTS FOR ADMISSIONS, Admission Nos. 1-2. The AIDC was an agency of state government, and was part of the executive branch controlled by Mr. Clinton. Id., Admission Nos. 3,4. David Harrington was the Director of the AIDC and served under Governor Clinton. Id., Admission Nos. 5, 6. Mr. Harrington was Mr. Clinton's friend. Id., Admission No. 7.

Most importantly, while he was with Plaintiff in the hotel suite on May 8, 1991, Mr. Clinton told Plaintiff that if she got into trouble with Mr. Harrington for leaving the registration desk, Plaintiff was to have Mr. Harrington call Mr. Clinton "immediately" and Mr. Clinton would "take care of it." JONES DECL. ¶ 17. This statement by Mr. Clinton is a critical admission that: (a) Mr. Clinton had control over Mr. Harrington's decisions concerning both deployment and discipline of employees at the AIDC; (b) Mr. Clinton was willing to exercise that control to influence Mr. Harrington's decisions about employees based on illegitimate criteria wholly unrelated to the proper functioning of the AIDC; and (c) Mr. Harrington would in fact comply with Mr. Clinton's directives concerning treatment of employees, even if those directives were patently based on improper motives and served no legitimate interests of the AIDC.

In an effort to strip his comment about Mr. Harrington of its evidentiary value, Mr. Clinton cites several cases involving supposedly similar remarks. Hartleip v. McNeilab, Inc., 83 F.3d 767 (6th Cir. 1996), a case involving Michigan law, (14) is cited for the proposition that a plaintiff in a quid pro quo harassment case is not entitled to an inference of causation based solely on the harasser's statement that he was "close friends" with the plaintiff's supervisor who made adverse employment decisions about her. What defense counsel fails to point out is that the harasser in Hartleip had no supervisory authority over the plaintiff in that case or over the plaintiff's supervisor. Id. at 771, 775. Here the harasser (Mr. Clinton) had ultimate supervisory authority over both Plaintiff and her immediate supervisor. In that context, Mr. Clinton's statement to Plaintiff that he was a "good friend" of the director of the agency employing Plaintiff has great significance.

Similarly, in Feliman v. Sieben, 108 F.3d 970, 976 (8th Cir. 1997), another retaliation case cited by defense counsel, the only evidence that the decision to fire plaintiff was based on a protected activity was a comment by a person (Barnstead) who had no supervisory authority over the plaintiff and no input into the decision to fire the plaintiff. Id. at 976. And in Cram v. Lannon & Sessions Co., 49 F.3d 466, 473 (8th Cir. 1995), the foreman who had harassed the plaintiff had no involvement in the decision to terminate her employment nor did he have any authority over those who made that decision. Id. at 473-74.

Counsel for Mr. Clinton makes much of the fact that several months elapsed between the incident at the Excelsior Hotel and some of the tangible detriments incurred by Plaintiff. See MEMORANDUM at 21-22. This argument fails to recognize that the sexual advances to Plaintiff were not confined to May 8, 1991, but continued throughout Plaintiff's employment. As outlined in the Statement of Material Facts, Plaintiff encountered Mr. Clinton or his personal bodyguard, Trooper Ferguson, on at least four other occasions while Plaintiff was still employed at the AIDC. Moreover, Mr. Clinton's ability to control decisions about Plaintiffs employment remained in effect for as long as she was employed at the AIDC. This case is, therefore, totally unlike Sims v. Sauer-Sundstrand Co., 130 F.3d 341 (8th Cir. 1997), the other case on which Mr. Clinton relies.

Sims was a retaliation case based on a company's refusal to rehire a worker who had been laid off two years earlier. Unlike the instant case, Sims did not involve harassment of an existing employee or employment decisions affecting an existing employee being made by a harasser or those reporting to a harasser. The plaintiff in Sims was permanently laid off as part of a major reduction 'in force in June 1992. In March 1993, he filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging age discrimination. In May 1994, over a year later, the employer awarded to another individual a job for which the plaintiff claimed to be qualified. In December 1995, the plaintiff filed a new charge with the EEOC, alleging retaliation by the employer based on his first EEOC charge. The court held that "[t]he simple fact of not being hired or asked to interview for a position after an EEOC filing is, by itself, insufficient to prove causal connection, particularly when the incident occurred more than two years after the protected activity." 130 F.3d at 3 344. Contrary to the implication of Mr. Clinton's counsel, the court did not say a two-year time lag precluded a finding of causation. In fact the court said just the opposite: "The passage of time between events does not by itself foreclose a claim of retaliation; rather, it weakens the inference of retaliation that arises when a retaliatory act occurs shortly after a complaint." Id. at 343. Mr. Clinton argues an inference of causation is foreclosed, even in this summary judgment proceeding; the opinion in Sims refutes that argument.

It should be noted that with respect to the denial of access to grievance procedures, there is additional evidence of causation. By means of his thinly veiled threat, Mr. Clinton directly induced Plaintiff not to take advantage of those procedures. JONES DECL. ¶ ; JONES DEP. at 62, lines 17-21. It must be remembered that the head of the entire agency was Dave Harrington, who was Mr. Clinton's "good friend" and who reported directly to Mr. Clinton. Plaintiff's immediate supervisor, Clydine Pennington, reported to Dave Harrington. Even the Arkansas State Police had been integrally involved in setting Plaintiff up to be sexually harassed and assaulted by Mr. Clinton. From Plaintiff's perspective, it appeared very unlikely that any good would come from pursuing a grievance, and very likely that she would pay a terrible price for doing so.

Indeed, she saw others pay that price. During Mr. Clinton's presidential, campaign which began only a few months after the incident at the Excelsior Hotel, and continued while other acts of harassment of Plaintiff were taking place, Mr. Clinton's campaign forces were viciously attacking Gennifer Flowers, Sally Purdue, and others who publicly claimed to have been the objects of Mr. Clinton's sexual interest. Plaintiff's decision not to pursue a grievance (or make any other formal complaint) was reasonable under the circumstances.

From the evidence described above, a jury could reasonably draw the inference that Mr. Clinton caused Plaintiff to suffer adverse employment action as a result of her resistance to his sexual advances. "Viewing the facts in the light most favorable to the plaintiff and giving [her] the benefit of all reasonable factual inferences," Johnson v. Minn Hist. Soc., 931 F.2d at 1244, the evidence that Mr. Clinton caused Plaintiff to suffer tangible job detriments is more than sufficient to preclude summary judgment.

D. Substantial Evidence Proves Every Element Of Plaintiffs Hostile Environment Claim.

Mr. Clinton seeks summary disposition of Plaintiff's "hostile environment" claim based on the proposition that, even if all of the facts alleged by Plaintiff are accepted as true (which of course is exactly what must be done in the context of a defendant's motion for summary judgment), no reasonable person could find that Plaintiff s work environment was "hostile" or "abusive." Memorandum at 23-25. This contention has already been rejected by the Court in its MEMORANDUM OPINION AND ORDER dated August 22, 1997. There, in response to Mr. Clinton's motion for judgment on the pleadings, the Court thoroughly examined Plaintiff's allegations and found that "the totality of the actions alleged in this case are such that they can be said to have altered the conditions of plaintiff's employment and created an abusive work environment." MEMORANDUM OPINION AND ORDER at 21.

Every one of the allegations mentioned by the Court is proven by Plaintiff's declaration and the other evidence submitted herewith. The particular facts and pinpoint citations to the corresponding evidence are set forth in the above Statement of Material Facts. In summary, Plaintiff began working for the AIDC, a state agency under the supervision of Mr. Clinton, on March 11, 1991. On May 8, 1991, while appearing at an official agency function at the Excelsior Hotel, Mr. Clinton saw Plaintiff performing her duties as an agency employee, and directed his bodyguard, Trooper Ferguson, to arrange a private suite in the hotel and to invite Plaintiff to go there to meet the Governor. Mr. Clinton had never met Plaintiff. Plaintiff was escorted by Trooper Ferguson to the suite and Plaintiff entered, finding Mr. Clinton there alone. Mr. Clinton made reference to the director of the agency employing Plaintiff, and referred to him as Mr. Clinton's "good friend." Mr. Clinton took Plaintiffs hand and pulled her toward him. She removed her hand, unmistakably communicating unwillingness to participate in sexual relations. Undeterred, Mr. Clinton made suggestive remarks to her and placed his hand on her leg and began moving his hand toward Plaintiff's pelvis -- a sexual assault within the meaning of FED. R. CIV. P. 413(d). She again broke away from him and again made it clear that his advances were unwelcome. Nevertheless, Mr. Clinton lowered his trousers, exposing his erect penis. While fondling it, he directed Plaintiff to "kiss it." She then left, but he detained her momentarily, while he made another reference to Mr. Harrington and told Plaintiff sternly to keep the incident to herself. As she left, she found Trooper Ferguson waiting outside the suite.

This Court has recognized that "[e]ven a single incident of sexual harassment can in some circumstances suffice to state a claim of hostile work environment sexual harassment." MEMORANDUM OPINION AND ORDER at 21 (citing Torres v. Pisano, 116 F.3d 625, 631 n.4(2d. Cir. 1997). As Governor, Mr. Clinton himself signed an official state policy on sexual harassment, expressly intended to ensure compliance with Title VII, and providing that "actual rape or sexual assault, though it is a one time occurrence" constitutes sexual harassment. CLINTON DEP. Ex. 5.

Analysis of the recent cases reveals that Plaintiff's experience at the Excelsior Hotel was a sufficiently severe incident of sexual harassment to sustain by itself a claim of hostile work environment.

In Tomka v. Sailor Corp., 66 F.3d 1295 (2d Cir. 1995), a female employee was coerced by her supervisor to get drunk and was then sexually assaulted by the supervisor and two other men, during a business trip. The district court granted summary judgment for the employer, but the Second Circuit reversed, holding that "even a single incident of sexual assault sufficiently alters the conditions of the victims employment and clearly creates an abusive work environment for purposes of Title VII liability." Id. at 1305. (15)

In Crisonino v. New York City Housing Authority, 985 F.Supp. 385 (S.D.N.Y. 1997), the court held that where an employee's supervisor called her a "dumb bitch" and later pushed her down, touching her just above the breast, there was an issue of fact whether plaintiff was subjected to a hostile work environment. In Reid v. O'Leary, No. CIV.A. 96-401 (GK) (D.C.C. 1996) (1996 U.S.Dist. LEXIS 10627), the court held that where an African-American employee was given a racially derogatory and insulting "Certificate" by a white employee, there was a genuine issue of fact whether the employee was subjected to a racially hostile work environment.

The foregoing cases involve application of Title VII but in the context of Section 1983 claims, the court in Bohen v. City of East Chicago, 799 F.2d 1180 (7th Cir. 1986) observed that "[a]s a general matter, a single discriminatory act against one individual can amount to intentional discrimination for equal protection purposes." Id. at 1186-87 (citing Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 266 n.14 (1977).

Of course, in this case, Plaintiff is not relying merely on the single incident at the Excelsior Hotel. Plaintiff subsequently saw Mr. Clinton on two other occasions, on both of which she was performing her duties as an AIDC employee. On both occasions he physically touched her and on one of them he told another man that Plaintiff and himself were a "couple." Plaintiff also saw Trooper Ferguson on at least two more occasions while she was employed by the AIDC. On one of these he requested Plaintiff's telephone number and indicated that Mr. Clinton would like to see him when Mr. Clinton's wife was away. On another of these he claimed to have told Mr. Clinton how good Plaintiff was looking. In addition, Plaintiff suffered hostility in her workplace, as detailed in the preceding section on tangible job detriment.

The Court has already correctly recognized that it "should not carve the work environment into a series of discrete incidents and then measure the harm occurring in each episode." MEMORANDUM OPINION AND ORDER at 21 (citing Burns v. McGregor Elec. Indus., Inc., 955 F.2d 559, 564 (8th Cir. 1992)). Yet that is exactly what Mr. Clinton's argument does, isolating each of the contacts between Plaintiff and Defendants from the other contacts, and insulating all of those contacts from the treatment Plaintiff received at the hands of her supervisors at the AIDC. A jury could reasonably find that every time Mrs. Jones saw Mr. Clinton or Trooper Ferguson after the horrific experience at the Excelsior Hotel on May 8, 1991, she relived that experience, just as if he exposed himself and directed her to "kiss if" five or six times instead of only one.

Moreover, a reasonable person in Plaintiff's position would interpret everything that Defendants said after May 8, 1991, in light of that experience. Every comment made by Mr. Clinton after he lured Plaintiff into a coercive situation, exposed and fondled his erect penis, and commanded her to "kiss it" would reasonably be understood as having a double meaning, relentlessly seeking to induce Plaintiff to submit.

And therein lies another flaw in Mr. Clinton's argument. It wholly fails to attribute any significance to Mr. Clinton's position as Governor -- arguably the most powerful individual in the state. Any reasonable person in Plaintiff's position, as a state employee invited to meet with the Governor, would have felt just as Plaintiff testified she felt: Honored to have been selected and hoping that the meeting might lead to an opportunity to advance her career in state government. JONES DECL. ¶ 9. Her hopes were dashed and her trust was betrayed, as his base intentions were revealed. He made her feel like "trash," like "dirt." CATHEY DEP. at 53 line 19 - p.54, line 3. She was humiliated and embarrassed. And she felt threatened. His position as Governor amplified the severity of all these emotional harms.

"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 v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993). (16)

Mr. Clinton may not consider it to be "severe" harassment for the head of an organization to expose his erect penis to a low-level, female employee in her early twenties, whom he had never met until five minutes earlier, and then to command her to "kiss it," but a reasonable juror might disagree. The Court has recognized that "the question of whether alleged harassment is sufficiently severe or pervasive for purposes of establishing a hostile work environment is 'quintessentially a question of fact,'" citing Beardsley v. Webb, 30 F.3d 524, 530 (4th Cir. 1994). Disputed questions of fact are not appropriate grist for the summary judgment mill. The facts proven by Plaintiff are plainly sufficient to support a jury finding of sexual harassment based on a hostile work environment, and so Mr. Clinton's motion for summary judgment on Count I Plaintiff's complaint should be denied.

II. DEFENDANT CLINTON IS NOT ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S CLAIM UNDER SECTION 1985.

Mr. Clinton asserts only two grounds to dismiss Plaintiff's Section 1985(3) cause of action: (1) that "the undisputed facts show that Plaintiff was not deprived of her constitutional right to equal protection," and (2) that "there is no evidence that Governor Clinton and Trooper Ferguson entered into an agreement to deprive plaintiff of her right to equal protection." MEMORANDUM at 42. Each of these grounds is without merit, and the MOTION must be denied as it pertains to Plaintiff's Section 1985(3 ) cause of action.

A. A Conspiracy May Be Proved By Circumstantial Evidence.

In passing on the MOTION as it pertains to the Section 1985(3) issues, the Court should note not only the summary judgment standards briefed above, but also the nature of the facts to be proved. "Conspiracies are rarely evidenced by explicit agreements, and must almost always be proven by inferences that may fairly be drawn from the behavior of the conspirators." DeLong Equip. v. Washington Mills Abrasive Co., 887 F.2d 1499, 1515 (11th Cir. 1989), cert. denied, 494 U.S. 1081 (1990). To prove the existence of a civil rights conspiracy, a plaintiff need only show that the defendants had a meeting of the minds or mutual understanding. Mershon v. Beasley, 994 F.2d 449, 451 (8th Cir. 1993) (to survive a motion to dismiss, a plaintiff must allege only that there was a mutual understanding or a meeting of the minds between the defendants). Moreover, a plaintiff need not prove that every conspirator knew the exact details of the plan, and the question of whether a conspiracy existed should not be taken from the jury where the jury can infer from the circumstances that the defendants had a meeting of the minds or reached an understanding. Hampton v. Hanrahan, 600 F.2d 600, 620-23 (7th Cir. 1979), cert. denied, 446 U.S. 754 (1980). Conspirators rarely formulate their plans in ways susceptible of proof by direct evidence; thus, conspiracies must often be proven by circumstantial evidence only. Crowe v. Lucas, 595 F.2d 985 (5th Cir. 1979). Specifically with reference to summary judgment motions, the evidence and inferences must "overwhelmingly stack up" in the movant's favor to remove the conspiracy claim from the jury. Meineke Discount Muffler v. Jaynes, 999 F. 2d 120, 124 (5th Cir. 1993).

Thus, that Defendants have not confessed their conspiracy is meaningless. So too are Mr. Clinton's attempts preemptively to "spin" damaging evidence. See MEMORANDUM at 45. Once Plaintiff submits circumstantial evidence that creates fair inferences of an agreement and its purpose, she has met her burden. Indeed, in a preeminent civil rights conspiracy case, the Supreme Court upheld a conspiracy claim on facts very similar to those at issue herein. In Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970), a white civil-rights advocate accompanied several black children into a department store cafeteria and sought food service. The plaintiff-advocate noticed that the proprietor of the cafeteria nodded toward a city police officer standing just inside the front door and then refused service to the black children. As the advocate and children left the store, they were immediately arrested by the same city police officer who received the nod from the proprietor. The Supreme Court held that this evidence was sufficient to support the inference of a conspiratorial agreement to subvert the civil rights of the plaintiff. Id. As set forth below, this case involves significantly more evidence creating inferences of a conspiracy between the Defendants than the reasonable inferences present in Adickes.

B. Plaintiffs Section 1985 Conspiracy Claim Is Not Dependent on Proving Every Element of A Section 1983 Claim

The elements of a cause of action under 42 U.S.C. § 1985(3) are clearly defined by the Supreme Court: "To come within the legislation 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); United Brotherhood of Carpenters & Joiners v. Scott, 463 U.S. 825, 828 29 (1983). See also Larson v. Miller, 76 F.3d 1446, 1454 (8th Cir. 1996); Shortbull v. Looking Elk, 677 F.2d 645, 648 (8th Cir. 1982). The fourth element is clearly in the disjunctive. A plaintiff who shows any "injury in his person or property," Larson at 1454, does not have to show "the deprivation of any right or privilege of a citizen of the United States." Yet with characteristic sleight-of-hand, Mr. Clinton attempts to confuse this point and argues that a Section 1985(3) plaintiff must prove an entire Section 1983 case before she can recover under Section 1985(3).

There is no authority for Mr. Clinton's position. The Supreme Court and Eighth Circuit authority cited above is to the contrary, and Mr. Clinton's reliance on Seguin v. City of Sterling Heights, 968 F.2d 584 (6th Cir. 1992), and Zar v. South Dakota Bd of Examiners, 976 F.2d 459 (8th Cir. 1992), is, to put it charitably, misplaced.

In Seguin, the issue whether a Section 1985(3) plaintiff must prove both an "injury in his person or property" and a deprivation of a night or privilege of a citizen of the United States was not presented since as the plaintiffs did not allege or prove any injury other than the violation of their civil rights. The plaintiffs alleged that the defendants conspired in violation of Sections 1985(3) and 1986, to rezone plaintiffs' property thereby effecting an illegal taking, a violation of equal protection and deprivation of due process. The district court dismissed all of the plaintiffs' claims for lack of ripeness. Id. at 587. The court of appeals affirmed that the plaintiffs' equal protection and taking claims were not ripe, id. at 587-89. The court held, however, that the due process issue was ripe but that the Section 1985(3) claims for conspiracy to violate those due process rights failed because the plaintiffs did not allege or prove their membership in any class protected by Section 1985(3). Id. at 590. Thus, Seguin stands for the following limited propositions: the justiciability requirements imposed by the Constitution apply to civil rights claims under Section 1985(3) as well as those under Section 1983, and a Section 1985(3) plaintiff must allege and prove "some racial, or perhaps otherwise class-based animus behind the conspirators' actions. Id. at 590. These unremarkable propositions do not advance Mr. Clinton's arguments here.

Mr. Clinton incorrectly cites Zar to argue that a Section 1985 claim cannot withstand dismissal of a Section 1983 claim. In Zar the defendants raised qualified and absolute immunity defenses to the civil rights claims brought against them under Sections 1983 & 1985(3). The district court granted summary judgment on the immunity defenses, and the court of appeals affirmed. Zar merely stands for the proposition that a Section 1985(3) claim may be subject to immunity defenses -- where appropriate under the facts -- to the same extent as a Section 1983 claim.

In evaluating all of Mr. Clinton's argument the Court may find it instructive to note his lack of candor in stating the holding in Zar. Zar states: "For the same reasons we found those [Section 1983] claim precluded above, we find this [Section 1985(3)] conspiracy claim to be likewise precluded." Id. at 467. In other words, the Section 1983 and Section 1985(3) claims in that case fell to the same immunity defenses. But in his attempt to avoid liability, our President reports to the Court that Zar holds that the Section 1985(3) claim failed because the Section 1983 claim failed. MEMORANDUM at 43. Remarkable!

As is shown below, Plaintiff suffered an injury in her person -- emotional distress -- because of what Mr. Clinton did to her in the hotel room. Because she can establish Griffin element 4(b), Plaintiff is not required to come forward with evidence of Griffin element 4(a). Yet, as is shown above, the record does establish that Plaintiff was deprived of a right or privilege of a citizen of the United States -- the equal protection right women have to be free from sexual harassment at the hands of abusive men acting under color of state law. Therefore, Mr. Clinton's first asserted ground for summary judgment on Plaintiff's Section 1985(3) claims fails.

C. Substantial Evidence Proves an Agreement To Unlawfully Infringe Plaintiffs Rights.

Mr. Clinton's second asserted ground for summary judgment on Plaintiff's Section 1985(3) claim is, at best, ambiguously presented: "There is no evidence that Governor Clinton and Trooper Ferguson entered into an agreement to deprive plaintiff of her right to equal protection." This assertion is best analyzed in two steps: (1) is there evidence of a conspiracy? and (2) is there evidence that a purpose of the conspiracy was the deprivation of equal protection rights? It is significant that Defendant Clinton does not argue that of "women" is not a class protected by Section 1985(3) from class-based discrimination." (17)

1. There Is Evidence of a Conspiracy.

The record before the Court establishes the following evidence of a conspiracy between Mr. Clinton and Trooper Ferguson on May 8, 1991, to maneuver Plaintiff, a state employee, into a hotel room alone with Mr. Clinton so that he could use his position as governor and the coercive nature of the situation to obtain sexual favors from her:

Trooper Ferguson initiated the contact with Plaintiff when he approached and made small talk with Plaintiff and Ms. Blackard. During this conversation he showed the two young female state employees that he was carrying a pistol. JONES DECL. ¶ 7; JONES DEP. at 101; BLACKARD DEP. at 55.

After the first contact between Plaintiff and Trooper Ferguson, Trooper Ferguson and Mr. Clinton discussed the possibility of a meeting between Plaintiff and Mr. Clinton. During this conversation, Mr. Clinton said that Plaintiff had "that come-hither look," a term Mr. Clinton used frequently and always in connection with women. FERGUSON DEP. at 50, 56-57; PATTERSON DEP. at 10-11. "That come-hither look," according to Mr. Clinton, "means either in look or dress a sort of a [sexually] suggestive appearance from the look or dress." CLINTON DEP. at 109.

"Some time later" (i.e., after the "come-hither look" comment) Mr. Clinton told Trooper Ferguson that he needed a hotel room so that he could "receive a telephone call from the White House." FERGUSON DEP. at 66-67. Even though Trooper Ferguson had a copy of Mr. Clinton's schedule for the day, this was the first he heard about the "call from the White House." FERGUSON DEP. at 66-9.

If Mr. Clinton had merely wanted to meet Plaintiff or if Trooper Ferguson had merely intended to introduce Plaintiff to Mr. Clinton, there is no reason that the meeting could not have occurred in the lobby of the hotel as opposed to a private hotel room. FERGUSON DEP. at 57-58. Mr. Clinton spent a substantial amount of time greeting people in the lobby that day. Id.

Trooper Ferguson procured the hotel room for Mr. Clinton and took him there. FERGUSON DEP. at. 50.

Trooper Ferguson returned to Plaintiff, gave her a slip of paper with a hotel room number on it and said "the Governor would like to meet you" and "We do this all the time." He then escorted Plaintiff to the hotel room where Mr. Clinton was waiting. JONES DECL. ¶ ¶ 8-9; JONES DEP. at 101-2; BLACKARD DEP. at 66.

Mr. Clinton was only in the hotel room ten to fifteen Minutes (not nearly enough time to receive a call from the White House) before Plaintiff arrived in the room. FERGUSON DEP. at 66.

After Plaintiff left the hotel room, Mr. Clinton told Trooper Ferguson, without being asked, "She came up here, and nothing happened." FERGUSON DEP. at 63. Trooper Ferguson later said to Plaintiff in the Golden Corral conversation that Mr. Clinton told him "you wouldn't do anything." JONES DEP. at 256-9.

The above testimony must be viewed in light of from three other Troopers, all of whom confirm Mr. Clinton's long-standing pattern and practice of sending his trooper bodyguards to solicit women to perform sexual favors for Mr. Clinton, after which Mr. Clinton would frequently brag to the troopers that he had engaged in sexual activities with these women. PATTERSON DEP. at 10-56; L.D. BROWN DEP. at 15-60; PERRY DEP. at 5-23. Trooper Ferguson was aware of these discussions. FERGUSON DEP. at 35-40, 92. Accordingly, either by first-hand knowledge or second-hand knowledge, he was aware of Mr. Clinton's habits and proclivities, had heard him say many times that various women had a "come-hither look," and thus must have known why Mr. Clinton would ask to meet a single young woman alone in a hotel room. Under the Adickes standards, this evidence is sufficient to allow a finder of fact to infer that Mr. Clinton and Mr. Ferguson agreed, at least implicitly, to create an inherently coercive situation in which the Governor of Arkansas could demand, and reasonably hope to receive, sexual favors from a state employee. Thus, Mr. Clinton's argument that there is no evidence of a conspiracy is without merit.

2. There Is Evidence of Unlawful Intent

Mr. Clinton's final effort at avoiding responsibility under Section 1985(3) for his shameful conduct is to argue that the intent of his conspiracy was not to deprive Plaintiff of her civil rights. Since the facts create the inference of a conspiracy, the question becomes: "what was its purpose?" A purpose to deprive Plaintiff of her equal protection rights is established by "inferences that may fairly be drawn from the behavior of the conspirators." DeLong, 887 F.2d at 1515. The most Mr. Clinton legitimately can argue on the record before the Court is that the conspiracy existed, but merely to satisfy Mr. Clinton's libido. This, however, ignores key evidence. Both Mr. Clinton and Mr. Ferguson knew that Plaintiff was a state employee and that Mr. Clinton was governor. Plaintiff was on the job and was summoned to a private hotel room by her ultimate boss. The first words out of Mr. Clinton's mouth and some of the last words he said to her as she left the hotel room all related to Plaintiff's job. A fair inference to be drawn from this evidence is that a purpose of Mr. Clinton and Trooper Ferguson's actions was to use the leverage available to Mr. Clinton by virtue of the power of his position and Plaintiff's need for her job to coerce sexual favors from her. This is plainly evidence of discriminatory purpose.

The purpose to deprive others of protected rights does not need to be a conspiracy's only purpose in order to be actionable under Section 1985(3). Bray, 506 U.S. at 276 (a conspirator must "act at least in part" for the purpose of producing a deprivation of a right) (emphasis added). Indeed, a contrary rule would lead to absurd results. It does not matter that Mr. Clinton also – or even primarily – acted from a desire to slake his sexual thirst, as long as it can reasonably be inferred that he also intended to deprive Plaintiff of her equal protection rights in the process. His intent to use his power over Plaintiff to accomplish this end creates more than a fair inference that he intended to violate those rights.

Next, the conspiracy need not have been intended to discriminate against all women. To succeed under Section 1985(3), a plaintiff is not required to show that the discrimination was "class-wide in its application" and "need not prove that there was an agreement to discriminate against an entire class of women" Volk v. Coler, 845 F.2d 1422, 1434 (7th Cir. 1988). An intent to violate the equal protect rights of one woman is enough. Plaintiff is that one woman.

Finally, there is no fair reading of the MEMORANDUM or the MOTION by which either joins the issue whether Plaintiff can show "otherwise class-based invidiously discriminatory animus." Bray v. Alexander Womens' Health Clinic, 506 U.S. 263, 269, 113 S. Ct. 753, 122 L. Ed. 2d 34 (1993). However, in an abundance of caution, Plaintiff notes that the "animus" requirement is not limited to "only maliciously motivated, as opposed to assertedly benign (though objectively invidious), discrimination against women." Bray, 506 U.S. at 270. "[A] purpose that focuses upon women by reason of their sex" is sufficient. Id. (emphasis in the original). As explained above, it is proper to infer that Mr. Clinton focused on Mrs. Jones by reason of her sex; thus, the "animus" requirement is met, and the MOTION should be denied.

III. DEFENDANT CLINTON IS NOT ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF'S CLAIM OF OUTRAGEOUS CONDUCT.

Count III of Mrs. Jones' complaint alleges intentional infliction of emotional distress. Mr. Clinton contends that Mrs. Jones has failed to establish two elements of that count: first, that Mr. Clinton's conduct was extreme and outrageous, and second, that Mrs. Jones' emotional distress was so severe in nature that no reasonable person could be expected to endure it. MEMORANDUM at 46-47. As shown below, Plaintiff has presented evidence that goes far beyond establishing a prima facie case of these two elements of her claim of outrage. Mr. Clinton's motion must therefore be denied.

A. Mr. Clinton's Conduct Was Extreme and Outrageous.

The Arkansas Supreme Court has held that one is liable for intentional infliction of emotional distress if he willfully or wantonly causes severe emotional distress to another by extreme and outrageous conduct. Sterling Drug Inc., v. Oxford, 743 S.W.2d 380, 382 (Ark 1988). 18 Extreme and outrageous conducts means "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 recognizes a claim of intentional infliction of emotional distress based on sexual harassment. Davis v. Tri-State Mack Distribs., Inc., 981 F.2d 340, 342 (8th Cir. 1992) (citing Hale v. Ladd, 826 S.W.2d 244 (Ark. 1992)).

   


This Court has previously held that Mr. Clinton's conduct, as alleged by Plaintiff, "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." MEMORANDUM OPINION AND ORDER dated August 22, 1997, at 35. The summary judgment evidence identified in the above Statement of Material Facts proves the very conduct which this Court has already held may be regarded as "atrocious and utterly intolerable." Indeed, the evidence presented establishes that the conduct is even more extreme than the allegations in Mrs. Jones' pleadings. Thus, Mr. Clinton's argument on this issue fails miserably.

Mr. Clinton's sole contention is that even if Mrs. Jones allegations are accepted as true, his conduct cannot be considered "outrageous" because that conduct was, he says, brief and isolated. MEMORANDUM at 52. 19 Thus, our President asserts in this Court that if, as Governor of the State of Arkansas, he sexually assaulted Mrs. Jones only once, exposed himself to her only once, and demanded of her oral sex only once, his conduct is not "outrageous." This assertion flies in the face of both reason and decency. A reasonable juror might well conclude that Mr. Clinton's conduct was outrageous, atrocious and utterly intolerable in and of itself and requires no repetition to be so labeled. No authority requires that such offensive conduct must last for a certain period of time before it will be considered outrageous, and no court applying Arkansas law has so held. The length of time that the conduct persists is merely one factor that may be considered. Crenshaw v. Georgia-Pacific Corp., 915 F. Supp. 93, 99 (W.D. Ark. 1995).

The type of conduct that meets the standard for outrage must be determined on a case-by-case basis. McQuay v. Guntharp, 1998 W.L. 66008, 2 (Ark. 1998); Hollomon v. Keadle, 931 S.W.2d 413 (Ark. 1996). Indeed, the facts of this case are far more egregious than those in other Arkansas cases involving sexual harassment, yet in each of those cases the court has found the defendant's conduct outrageous. See, e.g., Manning v. Metropolitan Life Ins. Co., Inc., 127 F.3d 686 (8th Cir. 1997) (corporate defendant's motion for judgment as a matter of law denied as to five plaintiffs' intentional infliction of emotional distress claims based on supervisor's sexually explicit statements and crude propositions); Lucas v. Brown & Root Inc., 736 F.2d 1202 (8th Cir. 1994) (plaintiff stated viable cause of action for intentional infliction of emotional distress against corporate defendant where supervisor made sexual advances placing her job on the line); Davis v. Tri-State Mack Distributors, Inc., 981 F.2d 340 (8th Cir. 1992) (judgment in favor of employee upheld against corporate defendant where plaintiff's supervisor made "offensive remarks," with some "pawing," of the plaintiff; Hale v. Ladd, 826 S.W.2d 244 (Ark. 1992) (evidence supported finding of intentional infliction of emotional distress against employer where employer was alleged to have made explicit sexual remarks and touched plaintiff without permission); Smith v. Foote's Dixie Dandy, Inc., 941 F. Supp. 807 (E.D. Ark. 1995) (corporate defendant's summary judgment denied on outrage claim involving sexual harassment even though defendant had removed supervisor about whom the plaintiff had complained); Mumphrey v. James River Paper Company, Inc., 777 F. Supp. 1458, 1462 (W.D. Ark. 1991) (corporate defendant's motion for summary judgment denied largely on the basis that plaintiff's supervisor had sexually harassed plaintiff by commenting on her looks and then treating her poorly).

In each of these cases except Hale, the defendants were corporations that failed to prevent or punish harassment. Here, Mr. Clinton himself performed the outrageous acts. Moreover, each of these cases involved conduct consisting of offensive language, propositions and/or touching, but none included actual exposure of an intimate body part. Mr. Clinton's outrageous conduct includes offensive language, an offensive proposition, offensive touching (constituting sexual assault under both federal and state definitions), and actual exposure of an intimate private body part. There are few more outrageous acts than a criminal sexual assault followed by unwanted exposure, coupled with a demand for oral sex by the most powerful man in the state against a very young, low-level employee.

Hale is based on facts somewhat similar to the case at bar, although not as egregious. There, a discharged employee brought an action for intentional infliction of emotional distress against her former employer based on sexual harassment. The employer touched the plaintiff without permission, asked the plaintiff to "kiss it on the head," and said if she would "just touch or kiss it he would come." 826 S.W.2d at 245-46. Even though the defendant never actually exposed himself to the plaintiff, the court was able to "readily conclude, as did the jury, that the evidence supporting the claim of outrage clearly preponderates in favor of the plaintiff." 826 S.W.2d at 246.

In another critical respect, the case at bar is more egregious than any of those discussed above since it involves the chief executive of the State of Arkansas, and his abuse of the power of that office, including the use of armed police officers commanded by him personally, to sexually impose himself upon Plaintiff. Such a disparity of power, coupled with its atrocious abuse, goes to the heart of the interest that the tort of outrage is intended to protect "[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 plaintiffs 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 Croom v. Yount, 913 S.W.2d 283, 287 (Ark. 1986) (influence of older man over youth rendered consensual sexual conduct outrageous).

Plaintiff has presented evidence which creates a material issue of fact as to the outrageousness of Defendant's conduct and from which a reasonable jury could find intentional infliction of emotional distress under Arkansas law. Accordingly, Mr. Clinton's motion for summary judgment on this ground must be denied.

B. Plaintiff Has Suffered Severe Emotional Distress as a Result of Mr. Clinton's Outrageous Conduct.

Mr. Clinton next contends that Plaintiff has not established that she suffered the severe emotional distress required to. support her claim for outrage. To bolster this contention, Mr. Clinton focuses on cases involving claims by employees against corporate employers. See, e.g., Angle v. Alexander, 945 S.W.2d 933 (Ark. 1997); Crenshaw v. Georgia Pacific Corp., 915 F. Supp. 93 (W.D. Ark. 1995); Freeman v. Bechtel Constr. Co., 87 F.3d 1029 (8th Cir. 1996). 20 Judicial scrutiny of outrage claims in such an employment situation is particularly strict because an employer must be given a certain amount of latitude in dealing with employees. Sterling v. Upjohn Healthcare Services, Inc., 772 S.W.2d 329, 330 (Ark. 1989); Freeman, 87 F.3d at 1031. Of course, such considerations are not present here. There is no conceivable justification for Mr. Clinton's actions.

Moreover, none of the cases relied on by Mr. Clinton involved claims based upon sexual assault or sexual harassment. A review of the cases that do involve such claims shows why Mr. Clinton's counsel chose to ignore them: every such case was resolved in favor of the plaintiff. A comparison between the evidence in this case and the evidence of emotional distress presented in those cases dictates that summary judgment not be granted.

In Davis v. Tri-State Mack Distributors, Inc., 981 F.2d 340 (8th Cir. 1992), the court upheld a judgment in plaintiff's favor based upon outrage claims that arose from sexual harassment. The only evidence of emotional distress was that plaintiff suffered "medical problems [that] were the result of the stress resulting from [her supervisor's] behavior." 981 F.2d at 341. The court had no trouble concluding that such evidence was enough to support a finding of liability. In Hale v. Ladd, 826 S.W.2d 244 (Ark. 1992), the court concluded that the evidence supported a claim of outrage based on sexual harassment where the plaintiff was asked to perform oral sex and subjected to unwanted and offensive touching, although there was no exposure of private body parts. The only evidence of emotional distress was that the plaintiff "became increasingly nervous and had flairups of a spastic colon exacerbated by the strain associated with the harassment." 826 S.W.2d at 246. The court readily concluded that such evidence supported a claim of outrage. Id.

In Mumphrey v. James River Paper Co., Inc., 777 F. Supp. 1458 (W.D. Ark. 1991), the court denied an employer's motion for summary judgment on outrage claims that were based in part upon a supervisor's sexual harassment of the plaintiff. The only evidence of emotional distress presented for summary judgment purposes was that "her supervisor's use of scrutiny [was] so intensive as to make her nervous and to cause her to suffer extreme anxiety" 777 F. Supp. at 1463. The court held this evidence sufficient to create a genuine issue of material fact. In Lucas v. Brown & Root, Inc., 736 F.2d 1202 (8th Cir. 1984), the court reversed a dismissal of the plaintiffs claim for emotional distress based upon sexual advances made by a supervisor towards plaintiff that placed her job on the line. The court held that plaintiff's contentions that "defendant's actions were extreme, were intentional and caused severe emotional distress" were enough to state a cause of action for intentional infliction. 736 F.2d at 1206.

In Manning v. Metropolitan Life Insurance Company, Inc., 127 F.3d 686 (8th Cir. 1997), the court upheld a denial of a motion for judgment as a matter of law on five plaintiffs' outrage claims based upon sexual harassment by their supervisor. The evidence of emotional distress was that "[a]ll of these plaintiffs ... described the extreme distress and accompanying symptoms that" resulted from the defendant's actions. 127 F.3d at 691. The court held that a reasonable jury could have found intentional infliction of emotional distress under Arkansas law.

Finally, in Smith v. Foote's Dixie Dandy, Inc., 941 F. Supp. 807 (E.D. Ark. 1995), the court denied the defendant's motion for summary judgment on claims of intentional infliction based upon the plaintiff's refusal to have sex with her supervisor. Even without discussing specific evidence of emotional distress suffered by the plaintiff, the court found that the "totality of the defendant's alleged conduct, if proved to the satisfaction of the trier of fact could well be regarded as atrocious and utterly intolerable in a civilized society." 941 F. Supp. at 810.

These cases disprove Mr. Clinton's contentions that Plaintiff must have consulted a physician, psychologist, or psychiatrist and must be completely debilitated, or nearly so, before emotional distress is sufficiently severe to support a claim of outrage. Instead, the case law shows that the focus is on the defendant's conduct, and if that conduct is outrageous, then it is for the jury to decide if the distress is extreme enough. The totality of Mr. Clinton's conduct against Plaintiff is atrocious and utterly intolerable, and by its very nature something that no reasonable individual woman should be expected to endure. This misconduct would plainly cause any reasonable person in Plaintiff's position more stress than she can or should bear. Both the Eighth Circuit and the Arkansas Supreme Court have stated that if the enormity of the offending conduct itself carries conviction that there has been severe mental distress, as it does here, proof of physical harm will not be required. Manning v. Metropolitan Life Insurance Co., Inc., 127 F.3d 686, 691 (8th Cir. 1997); Angle, 945 S.W.2d at 937 (citing Prosser and Keaton on Torts, Section 12 (5th Edition, 1984)).

The emotional distress suffered by the plaintiffs in the above cases pales comparison to that suffered by Mrs. Jones. The facts establishing her severe distress are set forth at length in the above Statement of Material Facts and are summarized briefly below. When Mr. Clinton began his sexually predatory conduct towards Plaintiff in the hotel room, she was horrified, shocked, frightened, and nervous. JONES DEP. at 105; JONES DECL. ¶ 17, 18. She was stunned by Mr. Clinton's actions and intimidated by his position as governor. JONES DECL. ¶ 19. She was disgusted when Mr. Clinton asked her to "kiss it." Jones Dep. at 108. Despite wanting desperately to leave the room, she could not because she was "scared to death." She was terrified because the same State Trooper who had escorted her to the room, saying "we do this all of the time," was posted outside the hotel room door with a gun. JONES DEP. at 106, 118. Finally, even though she faced the most powerful man in Arkansas and knew the armed State Trooper was stationed outside the door, her emotional and mental trauma became so overwhelming that she had to leave, and she fled from the hotel room. The 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.

As Plaintiff returned to the registration desk, Ms. Blackard could tell from far away that something was wrong, and as Plaintiff got closer, Ms. Blackard could tell that Plaintiff was shaking and out of breath. BLACKARD DEP. at 68. Plaintiff related some of Mr. Clinton's conduct to Ms. Blackard but was too upset to tell her everything and asked her not to tell anyone because she felt embarrassed by what had happened. BLACKARD DEP. at 6970; JONES DECL. ¶ 21. Plaintiff left the hotel and went to the workplace of a friend, Debra Balentine. JONES DECL. ¶ 22. Plaintiff was still upset and emotionally distraught. Id. Ms. Ballentine knew something was wrong immediately because Plaintiff was "shaking" and "crying" and "beside herself." BALLENTINE DEP. at 13. Through her sobs, Plaintiff was finally able to relate the incident to Ms. Balentine. BALLENTINE DEP. at 44, 46.

Within the next two days, Plaintiff told her sister, Lydia Cathey, about the unwanted sexual advances by Mr. Clinton. Plaintiff was crying so hard that she could barely relate the incident to Ms. Cathey. Ms. Cathey observed that Mrs. Jones was "scared," "embarrassed" and "ashamed." CATHEY DEP. at 36, 52-53. Ms. Cathey also observed that Mr. Clinton's abhorrent conduct caused Plaintiff to feel like "trash" and "dirt." CATHEY DEP. at 55. All of these are emotions that no reasonable person should be expected to endure, especially when caused solely by the gratuitous acts of one in a position of authority.

Compounding Plaintiff's mental anguish was the fact that all avenues of redress appeared to be closed. Plaintiff knew she could not tell her boss of the incident because Mr. Clinton let it be known in the hotel room that he was "good friends" with the head of the agency. Moreover, when she tried to leave the hotel room, Mr. Clinton put his hand on the door and blocked her exit long enough to tell Plaintiff to keep the incident between themselves, thereby attempting to ensure her silence. JONES DECL. ¶ 12; BALENTINE DEP. at 50. Plaintiff was afraid to report the incident to the police because it was the State Police who had just helped Mr. Clinton assault her. JONES DECL. ¶ 19; BALENTINE DEP. at 50. What Mr. Clinton and Trooper Ferguson had said and done made Plaintiff afraid to file charges or pursue a grievance. JONES DECL. ¶ 23.

Plaintiff bears the emotional scars of the outrageous incident to this day. Mr. Clinton's actions have caused Mrs. Jones severe emotional distress, and her symptoms fit the standard criteria for Post Traumatic Stress Disorder, the impact of which is severe and longterm. CARNES DECL. ¶ 4. These symptoms include extreme anxiety, intrusive thoughts and memories, and consequent sexual aversion. Id. Mrs. Jones continues to feel ashamed and horrified and is unable to watch Mr. Clinton on television, talk about the incident or even think about it without experiencing emotional trauma and stress. JONES DEP. at 121. The emotional scars obviously run deep.

Plaintiffs emotional distress is much more severe than the "stress" suffered by the plaintiff in Davis, the "nervous[ness]" and problems "exacerbated by the strain" of the harassment in Hale, the "nervous [ness]" and "extreme anxiety" experienced in Mumphrey, and the "extreme distress and accompanying symptoms" displayed in Manning. Each of those courts held that there was enough evidence to support a claim of outrage. This court must follow suit. Mr. Clinton's contentions that Plaintiff endured "nothing more than personal feelings and upset," MEMORANDUM at 50, are ludicrous and insulting.

The emotional trauma and mental anguish endured by Plaintiff, and which continues to be endured, are of the type and are so severe that no reasonable person could be expected to endure them. At the very least, a reasonable jury could so find, and a material fact issue has been raised. The MOTION is thus devoid of merit and must be denied.

IV. SUMMARY JUDGMENT IS PRECLUDED BY SUBSTANTIAL EVIDENCE OF OBSTRUCTION OF JUSTICE AND OTHER IMPROPER CONDUCT.

A. Evidence That Mr. Clinton and His Agents Have Suppressed Evidence, Obstructed Justice and the Like Is Admissible Against Him.

Evidence that a party, or his agents, have attempted to conceal or suppress evidence, commit or suborn perjury, tamper with witnesses, or obstruct justice is admissible against him and creates the 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); United States v. Gonsalves, 668 F.2d 73, 75 (1st Cir. 1982) (evidence of threats to witnesses can be relevant to show consciousness of guilt; bribery of an adverse witness implies that the party has, something specific to hide and to cover up, which implies a consciousness of guilt); Great Am. Ins. Co. v. Horab, 309 F.2d 262, 264 (8th Cir. 1962) (in a civil case, evidence that a litigant or his agent has attempted to influence or suppress a witness' testimony is an admission that his case is weak or unfounded).

Every noted commentator on the law of evidence supports this line of authority.

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). Likewise:

As might be expected, wrongdoing by the party in connection with his case amounting to obstruction of justice is also commonly regarded as an admission by conduct. By resorting to wrongful devices he is said to give ground for believing that he thinks his case is weak and not to be won by fair means. Accordingly, a party's false statement about the matter in litigation, whether before suit or on the stand, his fabrication of false documents, his undue pressure, by bribery or intimidation or other means, to influence a witness to testify for him or to avoid testifying, his destruction or concealment of relevant documents or objects ... all these are instances of this type of admission by conduct.

MCCORMICK ON EVIDENCE § 273 at 808-10 (3d ed. 1984).

The Eighth Circuit has repeatedly enforced this black-letter rule that evidence of fabricated or suppressed testimony is admissible and highly probative:

It is "settled beyond question," moreover, that "a party's attempt to fabricate evidence is admissible ... as proof relevant to show his own belief that his case is weak. As one court has said, a case involving a fabricated alibi, "fabrication of evidence of innocence is cogent evidence of guilt." Kellensworth v. State, 276 Ark. 127, 633 S.W.2d 21, 23-24 (Ark. 1982), quoting Harvey v. United States, 94 U.S. App. D.C. 303, 215 F.2d 330, 332 (D.C. Cir. 1954).

Martin v. Norris, 82 F.3d 211, 216 (8th Cir. 1996). 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); Hicks v. Gates Rubber Company, 833 F.2d 1406, 1418-19 (1Oth Cir. 1987) (in a sexual harassment suit under Title VII, destruction or suppression of documentary evidence by the defendant entitles the plaintiff to the benefit of a presumption that the suppressed evidence would have bolstered her case).

Judge Learned Hand explained the rule thus: "When a party is once found to be fabricating or suppressing documents, the natural, indeed, the inevitable conclusion is that he has something to conceal and is conscious of guilt." Warner Barnes & Co. v. Kokosai Kisen Kabushiti Kaisha, 102 F.2d 450, modified, 103 F.2d 430 (2d Cir. 1939). See also Erickson v. Newmar Corp., 87 F.3d 298, 304 (9th Cir. 1996)(witness tampering by defense counsel prevented a "fair trial"; witness tampering and perjury "subvert the entire judicial process").

"Perjury," "witness tampering" and "obstruction of justice" are each examples of conduct that gives rise to the operation of the rule briefed above and each has an established legal meaning.

Perjury is defined to occur whenever a person, having taken an oath "in any federal court proceeding that he will testify truthfully, willfully and contrary to such oath states any material matter which he does not believe to be true or when a person willfully subscribes, in a declaration or verification given under penalty of perjury, as true any material matter which he does not believe to be true. 18 U.S.C. § 1621.

Witness tampering is defined to occur whenever a person knowingly uses intimidation or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person with intent to: influence, delay, or prevent the testimony of any person; cause any person to withhold testimony, documents, or objects or conceal an object with intent to impair its availability for use 'in an official proceeding; or cause any person to be absent from an official proceeding to which that person has been summoned. 18 U.S.C. § 1512.

Obstruction of justice is defined to occur whenever a person corruptly endeavors to influence, obstruct or impede the due administration of justice in any federal court. 18 U.S.C. § 1503(a).

B. There Is Substantial Evidence of Suppression of Evidence and Similar Wrongful Conduct By Mr. Clinton and His Agents

This case presents an extraordinary situation, and not just that one of the defendants is the President. 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." OIC AUTH. ORDER. There is an ongoing federal criminal investigation into whether the precise conduct discussed in the authorities cited above has occurred in this case. It should be noted that there is absolutely no suggestion that Plaintiff, her lawyers or anyone acting on her behalf has engaged in suppression of evidence or similar activity. The ongoing criminal investigation concerns whether evidence Plaintiff was seeking, and which might benefit her case, was corrupted. This undeniable fact alone should give the Court pause in considering the evidence presented against Plaintiff and strongly suggests that the rule briefed above should be applied in this case in Plaintiff's favor.

Some of the other evidence of suppression and related activity is outlined below. (21)

1. Kathleen Willey. Ms. Willey was a very reluctant witness for Plaintiff. After months of legal wrangling and attempts by Ms. Willey and Mr. Clinton to deprive Plaintiff of Ms. Willey's testimony, Ms. Willey was ordered to testify and her deposition was scheduled for December 4, 1997. On December 3, 1997, while Plaintiff's counsel was en route to Richmond from Dallas in order to take the deposition, Ms. Willey's attorney suddenly formally notified the court and Plaintiff that Ms. Willey allegedly required neck surgery that just coincidentally, was precipitously scheduled for December 4, 1997. Ms. Willey was ordered to give her deposition no later than January 10, 1998. Finally, on January 11, 1998, Ms. Willey's deposition was held in Judge Merhige's chambers in Richmond, Virginia.

Ms. Willey's testimony reveals that she worked as a volunteer employee in the White House Social Office until November 29, 1993. On that day, at about 3 p.m., Ms. Willey met privately with Mr. Clinton and told him she was having financial problems and needed a paying job. Mr. Clinton took the opportunity to sexually assault her just outside the Oval Office, apparently fulfilling a long-standing desire of his. WILLEY DEP. at 31 - 66. Ms. Willey was seen shortly after this assault by Linda Tripp, a witness who can corroborate key aspects of Ms. Willey's testimony.

Ms. Willey's husband was discovered dead the following day, and she took a leave of absence from her job at the White House. On her first day back to the White House, however, Mr. Clinton wanted to see her and initiated another meeting with her that day, December 10, 1997. Id. at 102-03. In that meeting, Ms. Willey informed Mr. Clinton that she was in a very desperate situation and still needed paying employment at the White House very badly, and Mr. Clinton informed her that he would do all he could for her in that respect. Id. at 70-81. In the same conversation in which they discussed Mr. Clinton helping Ms. Willey obtain a paying job, they discussed their desire that the sexual assault incident be over with and treated as "in the past." Id. at 79-80.

Shortly thereafter, in March of 1994, Ms. Willey was given paid employment in the Office of the White House Counsel, where she worked through November of 1994. Id at 21-22. Mr. Clinton then instructed Bob Nash, head of Presidential Personnel, to find Ms. Willey federal governmental employment, and he responded by having her appointed to attend two World Summits on behalf of the United States. Id. at 81-84. These Summits involved the topics of Social Development and Biological Diversity. Id. at 22-23. In February of 1997, Mr. Clinton appointed Ms. Willey to serve on the Board of Governors of the United Service Organizations. Id. at 23, 85. Ms. Willey had no education or training qualifying her for any of these federal jobs and appointments: no courses or training in business, foreign service, international finance, official protocol, business management international or domestic law, social sciences, genetics, zoology, marine biology, or oceanography. Id. at 14-17.

   


This summary judgment evidence, interpreted in the light most favorable to Plaintiff and granting Plaintiff all reasonable inferences, leads to but one conclusion: that Mr. Clinton and his agents provided these federal Jobs and appointments to Ms. Willey in order to procure her silence about her sexual assault at the hands of Mr. Clinton within the White House itself, and that this purchase of her silence was effective until Ms. Willey was finally compelled to give her deposition in this case.

Additionally, and most significantly, new evidence has come to light since the conclusion of Ms. Willey's deposition. In her corrections, Ms. Willey changed her deposition testimony on a key point. The correction statement changes Ms. Willey's answer appearing on page 87, line 5 of the deposition transcript, at which point Plaintiff's counsel was asking a series of questions to determine who had talked with Ms. Willey to prepare her for her deposition and whether any person had attempted to influence her testimony, especially whether any person had tried to encourage her not to testify fully and truthfully. The precise questions and answers are as follows:

Q. Other than the one time that you mentioned a few minutes ago when you raised the subject matter of the sexual incident directly with Mr. Clinton, did you ever talk to anyone acting on behalf of Mr. Clinton about that particular incident?

A. No.

Q. Has anyone ever encouraged you directly or indirectly not to talk about that incident? [other than your attorney]

A. No.

Willey Depo., at 86-87. This new change converts the last answer from "No" to: "Nate Landow discussed my upcoming deposition with me." Id. (emphasis added). Mr. Landow's full name appears to be Nathan Landow, a long-time, high-profile Democratic National Committee operative, former Maryland Democratic Party Chairman, fund-raiser for Vice President Gore, and consultant with close ties to the Clinton White House.

This summary judgment evidence leads to the very reasonable and quite obvious inference that Mr. Landow was serving as an intermediary for Mr. Clinton and his agents in attempting to influence Ms. Willey to withhold or alter her deposition testimony in this case, conduct constituting both witness tampering and obstruction of justice.

2. Monica Lewinsky. Plaintiff has, of course, been denied much of the discovery that she seeks concerning Ms. Lewinsky. Yet, there is strong reason to believe that she was the target of obstruction-of-justice efforts by those acting on Mr. Clinton's behalf and that she participated in those same efforts on behalf of Mr. Clinton. Specifically, if given an opportunity to do so, Plaintiff could establish through discovery that:

    Ms. Lewinsky started work at the White House as an unpaid intern in June of 1995.
    In November of 1995, Ms. Lewinsky and Mr. Clinton began a sexual relationship.
    In December of 1995, Ms. Lewinsky assumed a paid position under Mr. Clinton the White House Office of Legislative Affairs.

By April of 1996 White House political officials became uncomfortable with the relationship between Ms. Lewinsky and Mr. Clinton. In April, she (Ms. Lewinsky) was moved by those officials to a higher paying job 'in the Pentagon.

After she had moved to the Pentagon, Ms. Lewinsky and Mr. Clinton continued their sexual relationship. Ms. Lewinsky repeatedly visited the White House and was alone with Mr. Clinton.

Ms. Lewinsky was served with a subpoena in this case on December 19, 1997.

Shortly thereafter, on December 28, 1997, she met alone with Mr. Clinton and discussed her testimony in this case and the subpoena duces tecum that had been served on her. Mr. Clinton advised her to deny their relationship and suggested ways for her to avoid testifying and producing evidence pursuant to the subpoena.

In late December 1997 or early January 1998, Vernon Jordan, one of Mr. Clinton's closest friends and advisors, personally drove Ms. Lewinsky to a lawyer he selected. Mr. Jordan and Ms. Lewinsky had discussed the fact that she had been subpoenaed in this case. This lawyer drafted a affidavit which she signed in which she, falsely, swore that she had no sexual relationship with Mr. Clinton.

Ms. Lewinsky would not allow her attorney, selected by Vernon Jordan, to file her affidavit until she had obtained a new job through his assistance.

On January 14, 1998, Ms. Lewinsky gave Linda Tripp "talking points" to suggest how Ms. Tripp might alter her testimony about Kathleen Willey, another witness in this case, so that she (Ms. Tripp) might be able to assist Mr. Clinton in his efforts to discredit Ms. Willey.

On January 16, 1998, Ms. Lewinsky allowed her attorney to file her false affidavit in an attempt to avoid testifying in this case.

On January 17, 1998, Mr. Clinton, in his deposition, denies his sexual relationship with Ms. Lewinsky, misstated the nature and extent of his contacts with her, including those contacts concerning her testimony in this case, and misstated the extent of his communications with Vernon Jordan about Ms. Lewinsky.

On January 18, 1998, Mr. Clinton called in Betty Currie, his personal secretary, to "coach" her on how to testify about his relationship with Ms. Lewinsky. WILLEY/LANDOW REPLY; FISHER DECL. and attachment thereto; LEWINSKY AFF.; TRIPP DECL.; CLINTON DEP. at 53, 58-9, 68-71, 75, 78 and exhibit 1. When this evidence is viewed in the light most favorable to Plaintiff, as it must at this stage, it shows that Mr. Clinton testified untruthfully under oath numerous times (22) and that he and those acting for him suppressed evidence in this case.

3. Dolly Kyle Browning. Even putting aside the fact that Mr. Clinton testified untruthfully about his relationship with her (see CLINTON DEP. at 183-88, 198), Ms. Browning's testimony is significant for at least two reasons. First, apparently fearful of her testimony, Mr. Clinton fabricated notes of a conversation with her which he has used as evidence in this case to support his denial of their affair. BROWNING DECL.; CLINTON DEP. at 183-88. Second, her declaration shows that people acting on Mr. Clinton's behalf threatened to "destroy" her if she told the truth publicly about her affair and that Mr. Clinton himself offered to help her get a job when he was tying to mend their relationship. When this evidence is viewed in the light most favorable to Plaintiff, it shows that Mr. Clinton fabricated evidence and that those working for him threatened to "destroy" people who might tell unpleasant truths about Mr. Clinton.

4. Wright, Lindsey & Jennings and Marvin Samuel Jones. John Thompson and Samuel Jones have known each other since they were best friends at Vanderbilt Law School in 1976, and they maintained their professional and personal relationship through the early 1990's. THOMPSON DECL. ¶ 1-2. Late one night, in about February of 1992 'in the midst of the New Hampshire Presidential Primary and when the Gennifer Flowers story was breaking, Sam Jones telephoned Mr. Thompson and expressly admitted to him that he and his firm, Wright Lindsey & Jennings, were serving as counsel of record for Mr. Clinton in a lawsuit filed by Mr. Larry Nichols. Mr. Jones said that he believed Mr. Clinton to be pathological in his desire for women and that he (Mr. Jones) was sure that all the women named in Mr. Nichols' suit had had sex with Mr. Clinton. Mr. Jones identified his own job as being to make all such women "go away." Mr. Jones' duties included paying money to such women for their silence. THOMPSON DECL. ¶ 2-3. Thus, the attempts by those aligned with Mr. Clinton to coerce witnesses began well before this suit was filed and, as is shown with Ms. Willey and Ms. Lewinsky, continue to this very day.

5. Gennifer Flowers. Ms. Flowers' testimony provides the following information:

She and Mr. Clinton had a twelve year sexual relationship.

Mr. Clinton helped her to obtain, and she did obtain, a job with the state of Arkansas while he was the Governor.

Mr. Clinton encouraged her to lie under oath to an Arkansas review board investigating whether she had received her job because of her affair with Mr. Clinton.

Mr. Clinton told her what he has told many other women with whom he had a sexual relationship - if we both deny the relationship, no one can prove it. FLOWERS DEPO. Ex. 3 at 17 - 59.

Perhaps the most significant aspect of Ms. Flowers testimony is that Mr. Clinton encouraged her to lie about their relationship to an Arkansas review board investigating how she obtained her state job:

Q. You lied to that committee, did you not?

A. I did lie to the committee.

Q. And, in fact, you had learned of that job through Ms. Gaddy; isn't that true?

A. Yes.

Q. Are you telling me that you called Mr. Clinton and asked him whether or not you should lie to the committee?

A. Yes.

Q. And you called him, had a phone conversation with him, and he told you what?

A.He told me to tell them I found out about it through the newspaper, and that's exactly what I told them.

FLOWERS DEP. at 126-27 [questioning by Mr. Ettinger]. Again, this interchange shows that Mr. Clinton has a pattern and practice of obstructing justice when it suits his needs.

6. Elizabeth Ward. Elizabeth Ward (sometimes known as Elizabeth Ward Gracen) is a former Miss Arkansas and former Miss America from Russellville, Arkansas, who was befriended by an older Arkansas woman, Judy Stokes, in 1980. Those two women remained friends from 1980 to the present. STOKES DEP. at 8-10. In the mid-1980's, Ms. Stokes and Ms. Ward were having a conversation on Ms. Stokes' front porch in Arkansas, when Ms. Ward broke down crying and told Ms. Stokes that Mr. Clinton had made unwanted sexual advances. STOKES DEP. at 15-19.

Moreover, Ms. Ward was one of the women named in the Larry Nichols suit discussed by Mr. Clinton's own attorney, Sam Jones, with Mr. John Thompson. THOMPSON DECL. at 3. It was Mr. Jones who stated that he was sure that all of these named women did have sex with Defendant Clinton and that his job was to track them down and "do whatever it takes" to keep them quiet and "make them go away," including paying them money for their silence. THOMPSON DECL. at ¶ 3.

7. Trooper Larry Patterson. Trooper Patterson testified in his deposition that he worked on Defendant Clinton's Governor's Security Detail in Arkansas from 1987 through 1993, and, in that capacity, he acquired first-hand knowledge about Mr. Clinton's extra-marital sexual relationships with women. Patterson Dep. at 8, 56 - 82.

Because of concern about this detailed, first-hand knowledge of Mr. Clinton's sexual relationships, Buddy Young was dispatched to keep the troopers quiet. Mr. Young was head of the Governor's Security Detail and, after Mr. Clinton was elected president, became a FEMA regional director.

Q. Did Buddy Young ever tell you to your face that he was trying to keep a lid on Bill Clinton's, sexual encounters with these women? ...

A. In this conversation about Elizabeth Ward that Buddy and I had ... he indicated to me that was part of his job is to try to keep a lid on some of these women. I believe a term that Buddy used was "to keep the other shoe from falling."' . . .

Q. Was this about Bill Clinton's sexual encounters with women?

A. About saying anything about Bill Clinton. The news media at that time, Mr. Rader, was calling everyone ... That's what I took it to be, but Buddy called me in, that there had been rumors circulating that some trooper was talking, and I don't know how many others were called in, but I was called in on four separate occasions. And that was verbatim what Mr. Young said, what Buddy said, was, "Larry, if you know what's good for you, if you know what's best for you and your family, keep your mouth shut."

Q. How did you take that? Did you take that as a threat?

A. Certainly.

PATTERSON DEP. at 56-57.

8. Trooper L.D. Brown. The deposition testimony of Trooper L.D. Brown furnishes further evidence of Mr. Clinton's and his agents' stringent efforts at coverup. Like Trooper Patterson, Trooper Brown had first-hand knowledge that Mr. Clinton considered damaging. Brown Dep. at 15-60. This time Betsey Wright Mr. Clinton's long-time advisor, confidante and queller of "Bimbo Eruptions," was dispatched to procure silence. Id at 61-67 and 102. In the course of their meetings, Ms. Wright used the now familiar carrot-and- stick approach. She offered him a job for silence. Meanwhile, Skip Rutherford, another of Clinton's associates, threatened public disclosure of Mr. Brown's personal affairs if he would not keep quiet. Id

9. Trooper Roger Perry. Like Troopers Patterson and Brown, Trooper Perry knows a great deal that Mr. Clinton would rather he forget. Perry Dep. at 5-23. The effort to keep Trooper Perry quiet took a familiar tract. If you stay quite, you get a job, but Buddy Young made the unpleasant alternative clear. "Well, let me give you some advice. If you [go public with his knowledge of Clinton's extramarital affairs], you will be destroyed, your reputation will be destroyed, and I represent the President of the United States." Id. at 52 - 78.

Once again, this is clear evidence of suppression of evidence by Mr. Clinton and those working for him.

10. Trooper Danny Ferguson. Finally, even Trooper Danny Ferguson was approached about a job and discussed Federal jobs with Mr Clinton in the same conversation that they discussed Mr. Clinton's "trooper problems." FERGUSON DEP. at 84-90. He, after all, also knew embarrassing facts about Mr. Clinton. FERGUSON DEP. 6 - 104. More remarkable still, Trooper Ferguson admits that he told Plaintiff that before going forward she should "think about [her] family" because "I've been through it, and they was (sic) starting to dig up dirt." ID. at 62.

C. Consequently Summary Judgment Should Be Denied.

The record before the Court provides good reason to believe that Mr. Clinton, and those acting on his behalf, have engaged in a vast enterprise to suppress evidence in this case and otherwise corrupt these proceedings. The integrity of the entire record presented by Mr. Clinton is in doubt. It is the rare case where the rules concerning suppression of evidence apply, but when they do, it is imperative that they be applied fully. The alternative is to encourage conduct which undermines our system of justice and rewards wrongdoing. There is ample evidence from which the Court must -- in this summary judgment context -- infer that Mr. Clinton is aware that his entire case is a "weak or unfounded one." The inference thus created operates "strongly, against the whole mass of alleged facts constituting his cause." This inference alone demands that the MOTION be denied.

CONCLUSION

"Viewing the facts in the light most favorable to [Paula Jones] and giving [her] the benefit of all reasonable factual inferences," as is the Court's duty, Johnson v. Minnesota Historical Soc., 931 F.2d at 1244, leaves no doubt as to the proper ruling on Mr. Clinton's motion for summary judgment: The motion should be denied.

Respectfully submitted,

Donovan Campbell, Jr.
State Bar of Texas No. 0-3725300
James A. Fisher
State Bar of Texas No. 07051650
Robert E. Rader, Jr.
State Bar of Texas No. 16453000
David M. Pyke
State Bar of Texas No. 16419700
T. Wesley Holmes
State Bar of Texas No. 09908495
J. McCord Wilson
State Bar of Texas No. 00785266
RADER, CAMPBELL, FISHER & PYKE
(A PROFESSIONAL CORPORATION)
Stemmons Place, Suite 1080
2777 Stemmons Freeway
Dallas, Texas 75207
Telephone: (214) 630-4700
Facsimile: (214) 630-9996

ATTORNEYS FOR PLAINTIFF PAULA JONES

OF COUNSEL:
John W. Whitehead
Steven H. Aden
Participating Attorneys on Behalf of
THE RUTHERFORD INSTITUTE
Post Office Box 7482
1445 East Rio Road
Charlottesville, Virginia 22906-7482
Telephone: (804) 978-3888
Facsimile: (804) 978-1789

FOOTNOTES
(
1) For ease of reference, President Clinton's Motion for Summary Judgment shall be cited thus: "MOTION at _____." The Memorandum in Support of President Clinton's Motion for Summary Judgment shall be cited thus: "MEMORANDUM at _____."
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(2) Plaintiff's summary judgment evidence, referenced in this pleading, can be found in a separate Appendix submitted for filing with this response. The abbreviations used in this pleading are defined in the Appendix.
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(3)Citations to Mr. Clinton's deposition transcript are to the unsigned transcript provided to plaintiff's counsel by their court reporter. Despite the requirements of FED. R. Civ. P. 30(e), Mr. Clinton has not returned his signed deposition, and thus he has waived his right to revise any answer.
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(4) Mr. Clinton says that he has no recollection of ever meeting Ms. Jones and that he has no recollection of the May 8, 1991 meeting described by Mr. Jones and Trooper Ferguson. CLINTON DEP. 97, 107.
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(5) Mr. Clinton argues that Plaintiff is unable to prove one supposed "element" of a case under Section 1983, conceding as suitable for trial the other elements of her case under Section 1983. MEMORANDUM at 4 n.l. That one "element" which Plaintiff supposedly cannot prove is described by Mr. Clinton's counsel as "the sexual harassment element of her case." Id.
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(6) See infra Section I.B.2.
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(7) Mr. Clinton's counsel have not argued or presented authority for the proposition that "tangible job detriment" is an element of an action under Section 1983 for, gender-based discrimination of any kind other than sexual harassment.
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(8) All of these allegations were repeated in Plaintiff's amended complaint. See PLAINTIFF'S FIRST AMENDED COMPLAINT 1120, 53, 60.
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(9) The facts in Jansen can be found at 123 F.3d at 493, 50', 575-76. The facts in Ellerth can be found at 123 F.3d at 493, 503, 576-78. In Jansen there was evidence that a pay raise for the employee was delayed, but eventually she did receive it and it was made retroactive, eliminating any tangible detriment. 123 F.3d at 493.
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(10) Other cases cited by Nir. Clinton's counsel are unworthy of reliance either because, like Cram, they are addressing an employer's liability for the acts of harassment by its employee-supervisor, or because they predate the 1991 amendments to Title VII, when only equitable relief such as back pay - but not compensatory damages for emotional distress - was available to prevailing plaintiffs under Title VII. See Gary v. Long, 59 F.3d 1391, 1395-96 (D.C. Cir. 1995); Chamberlin v. 101 Realty, Inc., 915 F.2d 777, 783-84 (1st Cir. 1990); Spencer v. General Elec. Co., 894 F.2d 651, 657-58 (4th Cir. 1990); Hicks v. Gates Rubber Co., 833 F.2d 1406, 1413-14 (10th Cir. 1987); Highlander v. K.F.C. Nat'l Management Co., 805 F.2d 644, 647-48 (6th Cir. 1986); Jones v. Flagship Int'l, 793 F.2d 714, 721-22 (5th Cir. 1986). "In that context, it arguably made sense to require some realized adverse action. Now that emotional damage is compensable, the scope of quid pro quo should encompass clear unfulfilled threats that cause serious emotional harm." Jansen, 123 F.3d at 499 (plurality opinion).
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(11) Significantly, the Supreme Court recently adopted an expansive reading of Title VII as it relates to sexual harassment. See Oncale v. Sundowner Offshore Services, Inc., ____ U.S. ____ (March 4, 1998) (No. 96-568) (1998 WL 88039 (U.S.)). The Court unanimously held that discrimination consisting of sexual harassment of persons of the same gender is actionable under Title VII.
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(12) According to AIDC records, Plaintiff 's position was initially classified as "Grade 9," but effective July 1, 1991, it was changed to "Grade 11." Plaintiff remained classified as a "Grade 11 " employee until the employment was terminated in February 1993. See AIDC "Employee Salary Changes" record.
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(13) This case is thus unlike Harlston v. McDonnell Douglas Corp., 37 F.3d 379 (8th Cir. 1994), in which the Eighth Circuit found that reassignment to a new position was not "adverse employment action," because in Harlston the plaintiff adduced no evidence that the change had reduced her opportunity for advancement or put her at any "materially significant disadvantage." 37 F.3d at 382. Even more off-point is Ledergerber v. Stangler, 122 F.3d 1142 (8th Cir. 1997), in which the only supposedly adverse job actions asserted by the plaintiff were the replacement of four members of plaintiff's staff with four different individuals, and the placement in plaintiff's employee file of a statement that discriminatory practices in her department would not be tolerated. 122 F.3 d at 1143. Such trivial actions are not comparable to the significant detriments suffered by Mrs. Jones.
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(14) The plaintiff in Hartleip brought suit under the Elliott-Larsen Civil Rights Act, MICH. COMP LAWS § 37.2101 et seq. and various common-law theories. 83 F.3d at 770.
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(15) Accord Brzonkala v. Va. Polytechnic Inst., 132 F.3d 949, 959 (4th Cir. 1997) (Title IX case applying Title VII jurisprudence).
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(16) Title VII's proscription of discrimination against any individual with respect to the "terms, conditions, or privileges of employment," 42 U.S.C. § 2000e-2(a)(l), "not only covers 'terms' and 'conditions' in the narrow contractual sense, but 'evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment.'" Oncale v. Sundowner Offshore Services, Inc., _U.S._(March 4, 1998) (No. 96-568) (1998 WL 88039 (U.S.)) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)).
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(17) As numerous courts have held, women are a class falling within the protective sphere of Section 1985(3). Libertad v. Welch, 53 F.3d 428, 448 - 49 (1st Cir. 1995); Volunteer Medical Clinic, Inc. v. Operation Rescue, 914 F.2d 218, 224 (6th Cir. 1991); National Org. for Women v. Operation Rescue, 914 F.2d 582, 585 (4th Cir. 1990); New York State Nat'l Org. for Women v. Teny, 886 F.2d 13392 1359 (2d Cir. 1989), cert. denied, 495 U.S. 947 (1990); Volk v. Coler, 845 F.2d 1422, 1434 (7th Cir. 1988); Novotny v. Great American Fed Sav. & Loan Ass'n, 584 F.2d 1235, 1243(3d Cir. 1978) (en banc), vacated on other grounds, 442 U.S. 336 (1979); Chambers v. Omaha Girls Club, 629 F. Supp. 925, 942 (D. Neb.), aff'd, 834 F.2d 697 (8th Cir. 1986).
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(18) The elements of such a claim are that: (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 Cahot, 9' )7 S.W.2d 653, 658 (Ark. 1997); Hollomon v. Keadle, 931 S.W.2d 41-3 ), 415 (Ark. 1996). Back to Text

(19) Mr. Clinton also alleges that he had no knowledge of any special condition of the Plaintiff. However, such knowledge on behalf of Defendant is not an essential element of Plaintiff' s claim, it is merely one factor that may be considered 'in deciding whether or not the conduct was outrageous. Manning v. Metropolitan L~fe Insurance Co., Inc., 127 F.3d 686, 691 (8th Cir. 1997). The right to be free from sexually harassing conduct "extends to every person and not just to those known to possess temperaments that are peculiarly fragile." Id. Back to Text

(20) Indeed, each of the cases relied on by Mr. Clinton is easily distinguishable. None of the cases cited by Mr. Clinton involve allegations of sexual harassment. Angle, Crenshaw and Puckett v. Cook, 864 F.2d 619 (8th Cir. 1989), are all suits by employees against former employers and therefore subject to strict review. Moreover, in Angle, Crenshaw, Puckett and Hamaker v. Ivy, 51 F.3d 108 (8th Cir. 1995), the courts found,that the conduct of the defendant was not outrageous or that there was no reason for the defendant to know his conduct was likely to cause emotional distress. In only one case, Milam v. Bank of Cabot, 937 S.W.2d 653 (Ark. 1997), did the court rule against the plaintiff solely because of lack of evidence of emotional distress. But in that case, the evidence "on lack of emotional distress on the part of the [plaintiffs was] uncontested." 937 S.W.2d at 266. Back to Text

(21) Plaintiff will not here attempt to show each of Mr. Clinton's statements under oath, in his deposition and in answers to interrogatories, which might properly be subject of the ongoing criminal investigation. Suffice it to say that they are legion.
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(22) After he was questioned about Ms. Lewinsky, Mr. Clinton was obviously aware of the problems with, and somewhat concerned about, his testimony. In perhaps the most prophetic interchange in his deposition, Mr. Clinton tried to gain some insight into whether he might be caught in his untruthful testimony:

Mr. Clinton: Mr. Fisher is there something, let me just -- you asked that with such conviction and I answered with such conviction, is there something you want to ask me about this? I don't, I don't even know what you are talking about I don't think.

Mr. Fisher: Sir, I think this will come to light shortly, and you'll understand. CLINTON DEP. at 85.
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