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Further Support for Motion for Summary Judgment


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Released on Friday, March 20, 1998

Following is the full text of the reply "in further support" of the motion for summary judgment filed by President Clinton's lawyers.



Plaintiff's 90-page press release in opposition to summary judgment, and its immaterial, scurrilous exhibits, are nothing more than a smoke screen intended to camouflage the fact that plaintiff has no evidence to support essential elements of her claims. One would scour these materials in vain for a shred of admissible evidence that Governor Clinton did or said anything to anyone at AIDC to handicap plaintiff in her job; or that anything concretely adverse occurred to plaintiff in her job; or that she experienced distress so severe no reasonable person could endure it.

One need look no further than the first page to see that the Opposition's rhetoric is not supported even by plaintiff's own testimony:

  • The opposition contends that Governor Clinton "summon[ed] plaintiff to the hotel room. Plaintiff, however, states that she went there voluntarily under no threat or compulsion. (Jones Tr. at 78-79).

  • The Opposition accuses President Clinton of "sexually assault[ing]" plaintiff. The President vehemently denies this. Moreover, nowhere in plaintiff's numerous statements and revisions of her allegations does she ever allege the requisite elements of sexual assault.

  • The Opposition asserts that the Governor "command(ed]" plaintiff to perform oral sex. Even if one were to credit plaintiff's testimony, there was no such "command." To the contrary, plaintiff expressly alleges that he told her he did not want her to do anything she did not want to do, and allowed her leave the room upon rebuffing his alleged advances. (Jones Tr. at 94-96; Compl. ¶ 24).

  • The Opposition claims that the Governor "threatened" plaintiff. But plaintiff testified that no one, including Governor Clinton, ever told her that she had to submit to his sexual advances to receive job benefits; or that he would use his relationship with the director to penalize her; or that her refusal to submit to sexual advances would have a negative effect on her job. (Jones Tr. at 74-75).

At every crucial point where the burden is on plaintiff to counter concrete record evidence, the Opposition instead points only to plaintiff's feelings, perceptions and beliefs. This is not sufficient under Rule 56 to create a genuine issue of material fact. Rather, the burden is on plaintiff to present facts and evidence to support her claims; she cannot rely on unsubstantiated assertions, speculation or inferences built on inferences. Now that the time has come to prove her claims, moreover, plaintiff unsuccessfully attempts to "improve" the record after the close of discovery with self-serving declarations from herself and others, including a purported expert who examined plaintiff on the eve of our filing for summary judgment. These materials fail to meet plaintiff's legal burden, as does her tardy statement purporting to catalogue "material facts" in dispute, filed four days after it was due. These materials are not supported by competent evidence, and their untimely submission makes a mockery of the Federal Rules and the Court's orders. The Court can and should disregard all of them.

Plaintiff's failure to satisfy legal requisites is typical of plaintiff's modus operandi. Every time President Clinton points out legal or factual deficiencies in plaintiff's case, plaintiff simply revises the facts and changes her legal theories. Thus, plaintiff's opposition disavows legal theories plaintiff previously championed to the Court; asserts several claims the Court already has rejected; and explains at length what plaintiff does not have to prove, without stating what elements she does have to prove. In the process, plaintiff fails to cite a single case imposing liability based on the novel legal claims she now asserts.

Indeed, the Opposition is the best evidence that plaintiff has no case, and is only using this litigation as a vehicle to vilify the President. Plaintiff took advantage of the Court's good will and improperly used the filing as an opportunity to dump on the public record page upon page of salacious material – none of which has any bearing whatsoever on any of the issues raised in the summary judgment motion.1 The real purpose of this tirade appears to be to make spurious charges of criminal conduct against the President, which he vehemently denies. Thus, despite its bulk and hyperbole, the opposition does not supply any admissible evidence to prove essential elements of plaintiff's claims. Accordingly, the President's motion for summary judgment should be granted.


Table of Contents








[Editor's Note: Table of Authorities Not Included]



A. President Clinton's Statement Of Facts Must Be Deemed Admitted.

Pursuant to Local Rule 56.1(a), President Clinton submitted with his moving papers "a separate, short and concise statement of the material facts as to which [he] contends there is no genuine issue to be tried." ("Statement") . It was then incumbent on plaintiff to respond with a "separate, short and concise statement of the material facts" as to which a genuine issue exists. Id. at 56.1(b). "All material facts" set forth in

President Clinton's Statement, moreover, are to be "deemed admitted unless controverted by the statement filed by the nonmoving party." Id. at 56.1(c).

This Court gave plaintiff's counsel ten extra days, until Friday, March 13, 1998, to prepare their opposition to summary judgment. They evidently were so intent on loading up the public record with irrelevant material and holding press conferences in Washington before their papers were filed that they overlooked their obligation to file a counter-statement, and failed to do so until March 17, 1998. For this reason alone, plaintiff's counter-statement should be struck.2

Even if the counter-statement is accepted for filing, the facts in President Clinton's Statement should be deemed admitted because they are not controverted by citation to record evidence. Plaintiff simply makes a conclusory statement that the President's material facts "are controverted" by unspecified "foregoing" statements in her 18-page counter-statement. Pl. Counter-statement at ¶ 56. This is insufficient as a matter of law. Celotex Corp.. v. Catrett, 477 U.S. 317, 324 (1986) (upon filing of properly supported summary judgment motion, burden shifts to nonmoving party to "designate 'specific facts showing that there is a genuine issue for trial.' ")(quoting Fed. R. Civ. P. 56(e)). The Court is not required to hunt through the record to locate the specific controverting evidence on which plaintiff relies. Hanson v. Beloit Newspapers, Inc., No. 94-4023-SAC, 1995 WL 646808 (D. Kan. Sept. 15, 1995) (nonmovant must identify specific references to support facts – "[j]udges are not like pigs, hunting for truffles buried in briefs") (citations omitted).

Even if the Court were to undertake this exercise, it would be unsuccessful. Nowhere in plaintiff's counter-statement does she cite record evidence to controvert paragraphs 1-34 of the President's Statement, which are supported by Plaintiff's own testimony; the testimony of her three supervisors and the Governor's aide responsible for AIDC; Trooper Ferguson's testimony; and Plaintiff's employment records. In particular, plaintiff proffers no evidence to show that Governor Clinton spoke to anyone at AIDC about plaintiff or asked them to take action against plaintiff. See Statement ¶ ¶ 1-11.3 Nor does plaintiff counter the employment records that show that her job was upgraded, that she received merit and cost-of-living pay raises, and that her job classification and salary were unchanged when she returned from maternity leave. See Id. ¶ ¶12-19. Nor does plaintiff identify any other specific job which she desired or applied for at AIDC. See Id. ¶ ¶ 23-24.

The bulk of plaintiff's "counter-statement" deals with allegations that are disputed but which, even if accepted as true for purposes of summary judgment, do not create a material issue. The only area where plaintiff's counter-statement attempts to create a material dispute concerns Plaintiff's purported emotional distress. See Pl. Counter-statement at ¶ ¶ 26, 56 (e) For reasons discussed in detail below, however, these assertions do not create a material dispute because they conflict with plaintiff's own testimony. See Statement ¶¶ 28-34. Therefore, plaintiff failed to meet her burden and the Court must treat President Clinton's Statement of Facts as uncontroverted.

B. Plaintiff's Self-Serving Declarations Cannot Shore Up Her Claims.

Plaintiff submits declarations from herself and several other witnesses who already were deposed. Plaintiff cannot defeat summary judgment, however, by repackaging unsubstantiated statements in a declaration, as plaintiff does here. Davenport v. Riverview Gardens Sch. Dist., 30 F. 3d 940, 945 (8th Cir. 1994) . To the extent these declarations attempt to cure or contradict testimony from those depositions, or are counter to the weight of the objective evidence, they should not be credited. PlaNet Prods., Inc. v. Shank, 119 F.3d 729 (8th Cir. 1997)(self-serving affidavit against the weight of the evidence insufficient to create a genuine issue of fact); Dush v. Appleton Elec. Co., 124 F.3d 957 (8th Cir. 1997)(plaintiff's affidavit that contradicted her medical records and other evidence was insufficient to defeat summary judgment); Camfield Tires, Inc. v. Michelin Tire Corp., 719 F.2d 1361 (8th Cir. 1983) (later affidavit inconsistent with earlier deposition cannot create issues of material fact absent evidence of confusion); Prosser v. Ross, 70 F.3d 1005, 1008 (8th Cir. 1995) (extending Camfield to affidavits of non-party witnesses that contradict plaintiff's testimony).


C. The Court Should Disregard The Declaration From Plaintiff's Purported Expert.

At her deposition, plaintiff testified that the alleged actions of President Clinton never caused her to miss a moment of work, take any medication, incur any medical bills, or experience any objective symptoms of distress or physical ailment whatsoever. Nor did plaintiff ever consult a mental health counselor of any kind. Jones Tr. at 121-23, 239-40. Realizing that her own testimony guts her claims of "emotional distress so severe no reasonable person could be expected to endure it," plaintiff now submits the declaration of Patrick Carnes, a "sex addiction" counselor, to attempt to fill in the gaps. Carnes purportedly conducted a 3.5 hour examination of plaintiff just a few weeks ago. Based on plaintiff's own description of her symptoms, Carnes concluded that as a result of the alleged seven-year-old incident and unspecified "ensuing events," plaintiff suffers from posttraumatic stress disorder and "sexual aversion." Carnes Decl. ¶ 4.

This declaration should be disregarded for several reasons. First, it directly contradicts plaintiff's own testimony wherein she described only conclusory emotional feelings, and stated unequivocally that she is not making any claims for damages related to her marriage. Jones Tr. at 121-123. The Eighth Circuit has long held that parties "cannot create sham issues of affidavits that contradict a party's own deposition. RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 402 (8th Cir. 1995). Nor can plaintiff avoid summary Judgment by submitting "subsequently manufactured contradictory testimony" from an expert. American Airlines, Inc. v. KLM Royal Dutch Airlines, Inc., 114 F.3d 108, 110-11 (8th Cir. 1997).

Second, defendants are prejudiced by plaintiff's reversal of her sworn testimony that she sought no damages related to her marriage. Indeed, the defense was precluded during discovery from exploring issues pertaining to Plaintiff's marriage because she and her husband broadly asserted spousal privilege. We did not contest the privilege, however, because plaintiff testified that she was not making any claims such as "sexual aversion."4

Third, prior to the close of discovery, plaintiff failed to disclose that she intended to rely on Carnes to opine on plaintiff's alleged emotional damages; nor did she provide a report or identify the bases for his conclusions, notwithstanding this Court's order compelling plaintiff to respond to interrogatories requesting this information.5 For these reasons, the Carnes declaration should be disregarded. See Fed. R. Civ. P. 37(c)(1)("[A] party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) shall not, unless such failure is harmless, be permitted to use as evidence at a trial, at a hearing, or on a motion, any witness or information not so disclosed.") (emphasis added).6

Finally, the Carnes declaration also would be inadmissible under Fed. R. EvId. 702 because Carnes based his evaluation on the "symptoms [Ms. Jones] described," (Carnes Decl. ¶4), and not on a psychological evaluation. See United States v. Whitted, 11 F.3d 782, 786 (8th Cir. 1993), citing Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir. 1987) (excluding on summary judgment doctor's opinion based solely on patient's oral history as nothing more than patient's testimony "dressed up and sanctified as the opinion of an expert").


Plaintiff's brief spends a number of pages advising the Court what she does not need to prove to make out a prima facie case under Section 1983; nowhere, however, does plaintiff affirmatively state what elements she does have to prove. Moreover, plaintiff cites no cases applying her novel theories for recovery, attempts to revive claims this Court already has disallowed, and rejects applications of the law for which she previously contended and which this Court adopted.

A. Plaintiff's Equal Protection Claim Must Be Premised On Sexual Harassment, And Cannot Be Based On Assault.

Plaintiff previously "accept[ed] as an accurate statement of the law" that she was required to show both an intent to discriminate plus "intentional harassment," i.e., sexual harassment, to prove her Section 1983 claim. Pl. Mem. in Opp'n to the Mot. for Judgment on the Pleadings (July 28, 1997) at 9 n.4. Plaintiff nonetheless asserts that her Section 1983 claim may rest not on sexual harassment, but on an allegation that she was denied "equal protection by sexual assault and offensive contact in violation of state law." Plaintiff's opposition to Motion for Summary Judgment ("Pl. Opp.") at 20. This theory is not supported by the law or plaintiff's allegations, and has already been rejected by the Court.

The Court dismissed this claim last August, and again when plaintiff attempted to revive it in her Motion to Reconsider the Court's December 18, 1997 Order. See Memorandum Opinion and Order of Aug. 22, 1997 ("Mem. Op.") at 22-24; Order of Jan. 9, 1998 at 3. The Court should reject it again now. Specifically, the Court previously found that [p]laintiff simply has not alleged conduct that could be characterized as egregious sexual contact' nor has she alleged any other type of 'egregious, conduct," as required to make out a constitutional deprivation under the Due Process Clause. Mem. Op. at 22-24 (citing Haberthur v. City of Raymore, 119 F. 3d 720, 723 (8th Cir. 1997)). Such a claim cannot be resubmitted under the Equal Protection Clause. See Reeve v. Oliver, 41 F.3d 381, 382-83 (8th Cir. 1994). Simply put, "Section 1983 is intended to remedy egregious conduct, and not every assault or battery which violates state law will create liability under it." Haberthur, 119 F.3d at 723 (emphasis added)
(citation omitted).

Furthermore, the conduct alleged does not constitute criminal sexual assault under the provision cited in plaintiff's brief, Ark. Code Ann. § 5-14-108, because there is no allegation of "forcible compulsion," Id. at § 108 (a) (1) nor of "sexual contact" as defined pursuant to Ark. Code Ann. § 5-14-101. Plaintiff has never alleged that the Governor used force or that there was any genital contact between them. Hence, there can be no claim of criminal assault here.8

B.Plaintiff Must Prove Either quid pro quo Or Hostile Environment Harassment.

Plaintiff refuses to accept that she must prove harassment that corresponds to harassment under Title VII. See Pl. Opp. at 25-28. Yet numerous courts, including this one, have unequivocally held that Title VII should inform a court's assessment of a workplace discrimination claim brought under Section 1983. See, e.g., Trautyetter v. Quick, 916 F.2d 1140, 1149 (7th Cir. 1990); Cross v. Alabama, 49 F.3d 1490 (11th Cir. 1995); Beardsley v. Webb, 30 F.3d 524 (4th Cir. 1994); Boutros v. Canton Reg'l Transit Auth. , 997 F. 2d 198, 202 (6th Cir. 1993); King v. Board of Regents, 898 F.2d 533 (7th Cir. 1990); Risinger v. Ohio Bureau of Workers' Compensation, 883 F.2d 475, 483-84 (6th Cir. 1989); Hardin v. Stynchcomb, 691 F.2d 1364, 1369 (11th Cir. 1982).9 Indeed, plaintiff's argument that a sexual harassment claim under Section 1983 does not track Title VII is disingenuous, inasmuch as plaintiff previously argued that "[a] sexual harassment claim brought pursuant to § 1983 is similar to Title VII sexual harassment claim," and cited the very cases and regulations she deems "inapposite" here, including King v. Board of Regents, 898 F.2d 533, 537 (7th Cir. 1990). See Pl. Opp'n. to Mot. for Judgment on the Pleadings (July 28, 1997) at 21, 26-29. Plaintiff's previous position is correct.10

Finally, we respectfully submit that if this case is permitted to go forward without a workplace harassment claim, all evidence regarding other women should be excluded from trial because plaintiff has consistently relied on her workplace harassment claim to justify expansive discovery. See Pl. Mem. in Opp. to Mot. to Limit Discovery at 20 (Oct. 29, 1997). If this case does not involve a workplace harassment claim, Plaintiff's argument for such expansive discovery was made in bad faith.

C. Plaintiff's Required To Show A Tangible Job Detriment To Prove quid pro quo Harassment.

Plaintiff also wrongly asserts that she can establish quid pro quo harassment without proving that she suffered a tangible job detriment. Pl. Opp. at 28-35. The law in the Eighth Circuit, however, is clear: "[t]o make a prima facie case of quid pro quo harassment, [plaintiff] must show that . . . her refusal to submit [to unwelcome advances] resulted in a tangible job detriment." Cram v. Lamson & Sessions Co., 49 F.3d 466, 473 (8th Cir. 1995) (citations omitted). Plaintiff futilely attempts to distinguish Cram on the ground that she is suing the individual harasser, not her employer. See Pl. Opp. at 30. In Cram, however, the plaintiff did sue the individual who harassed her. Id. at 468. Next, plaintiff argues that because Cram unquestionably suffered a tangible job detriment when she was fired, the Eighth Circuit really did not reach the issue of whether a job detriment was a required element. See Pl. Opp. at 30-31. A circuit court's statement of the elements of a claim is not dicta, however, simply because some of the elements are satisfied.

Nonetheless, plaintiff argues that the Court should disregard the black letter law of this Circuit because there is an "abundance" of authority -- three cases from other circuits holding that "tangible job detriment" is not an essential element of a quid pro quo claim. Pl. Opp. at 32-34 (citing Jansen v. Packaging Corp. of America, 123 F.3d 490 (7th Cir. 1997) , cert. granted sub nom. Burlington Indus. , Inc. v. Ellerth, 118 S. Ct. 876 (Jan. 23, 1998); Nichols v. Frank, 42 F.3d 503 (9th Cir. 1994); and Karibian v. Columbia Univ. , 14 F. 3d 773 (2d Cir. 1994)). The Supreme Court granted certiorari to review that very holding in Jansen, which is at odds with the holdings of nine circuit courts, including the Eighth Circuit. See Mem. in Supp. of Mot. for Summary Judgment at 5 n.2 and cases cited therein. Even if Jansen did state applicable law -- and in that plurality opinion it is unclear what the law would be -- plaintiff's claim still would fail because she has not alleged a threat that "clearly conditions concrete job benefits or detriments on compliance with sexual demands." Jansen, 123 F.3d at 499.11

Finally, plaintiff chides us for citing no "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." Pl. Opp. at 28. This of course is so because the Supreme Court has yet to rule that ANY sexual harassment claim may be brought under Section 1983. Thus, if plaintiff's premise were taken to the extreme, her entire Section 1983 claim actually should be dismissed.


On the issue of causation, we submitted overwhelming testimony from plaintiff's three supervisors and the Governor's chief liaison with AIDC demonstrating that whatever changes occurred in plaintiff's working conditions, they were not the result of her purported rebuff of the Governor's alleged advances. See Mem. in Supp. of Mot. for Summary Judgment at 7-12. This testimony is unrebutted by plaintiff.

It is plaintiff's burden "to adduce . . . evidence capable of proving a causal connection between" the alleged harassment and any adverse job consequences. Feldmann v. Sieben, 108 F.3d 970, 977 (8th Cir. 1997) , cert. denied, 118 S. Ct. 851 (1998) (emphasis added) . Plaintiff instead asks the Court to infer that the Governor's alleged statements about David Harrington were really a veiled threat, and from that to further infer that he carried out the threat. This is impermissible. "[T]he facts and circumstances relied upon" to defeat summary Judgment "must attain the dignity of substantial evidence and not be such as merely to create a suspicion . . . . [A]n inference . . . must be based upon proven facts and not upon other inferences." Impro Prods. Inc. v. Herrick, 715 F.2d 1267, 1272 (8th Cir. 1983) (emphasis added) (citation omitted). Moreover, Plaintiff's not entitled to rely on inferences that are directly negated by evidence in the record, as is the case here.

Cases requiring a plaintiff to adduce evidence of causation are legion.12 It is not surprising, therefore, that plaintiff fails to cite a single case to support her position. Instead, plaintiff wrongly argues that the cases we have cited are inapplicable. In particular, plaintiff unsuccessfully attempts to distinguish Hartleip v. McNeilab, Inc., 83 F.3d 767 (6th Cir. 1996), a case involving issues strikingly similar to those raised here.

In Hartleip, a man named Barnes, who was responsible for training the plaintiff began to harass her and told her that "he was 'good friends, if not best friends, with Gerald Bruce,'" her regional manager. Id. at 772. After plaintiff refused Barnes' advances, she alleged, "'things started to happen to me at [the Company] through Gerald [Bruce]." Plaintiff argued that an inference could be made "that Barnes influenced Bruce and presumably that Barnes was therefore somehow responsible for the decisions." Id. at 775. The Sixth Circuit rejected plaintiff's attenuated inference argument, affirming summary judgment for the defendant. Id. at 775-76. Likewise, in this case, the Governor did not have direct supervisory authority over plaintiff, and plaintiff's reliance on the Governor's alleged reference to his friendship with her supervisor is insufficient to establish an inference of causation. See Id. at 776.

The Eighth Circuit in Cram also rejected the notion that causation could be inferred from a threat – specifically the plaintiff's allegation that her harasser told her, "I'll get you for this" – a threat that is much more explicit than any alleged here. Cram v. Lamson & Sessions Co., 49 F.3d 466, 474 (8th Cir. 1995). Plaintiff nonetheless argues that Cram is not relevant because in that case, "the foreman who had harassed the plaintiff had no involvement in the decision to terminate her employment." Pl. Opp. at 45. That is our point exactly. Here, too, the unrebutted evidence shows that the alleged harasser had no involvement in any employment decisions regarding plaintiff."13

Finally, Plaintiff offers as "evidence" of "causation" her self-serving assertion that Governor Clinton's statements induced her to forego filing a grievance because [f]rom plaintiff's perspective, it appeared" that doing so would be futile. Pl. Opp. at 47 (emphasis added), and 41. A plaintiff's feelings and beliefs are not evidence of causation. Moreover, a Plaintiff's belief that taking advantage of an employment benefit would be futile does not constitute a "tangible job detriment." Splunge v. Shoney's, Inc., 874 F. Supp. 1258, 1271 (M.D. Ala. 1994). This claim also fails because it is simply an attempt to revive plaintiff's invalid First Amendment claim, which the Court correctly rejected in its Order of November 24, 1997 at 5.



Nor has plaintiff offered evidence of any change in her working conditions that would constitute a tangible job detriment as that term is understood at law. With the exception of her allegation regarding the grievance procedure, addressed above, all the items she lists (See Pl. Opp. at 36) – and the reasons why they do not constitute tangible job detriments, and the case law supporting that conclusion – were discussed at length in our opening brief. See Mem. in Supp. of Mot. for Summary Judgment at 12-19. We refer the Court especially to Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 380-81 (8th Cir. 1994), which holds that a change in duties without a diminution in pay, grade or benefit is insufficient, and to Manning v. Metropolitan Life Ins., 127 F.3d 686, 692 (8th Cir. 1997), which holds that hostility and personal animus directed at plaintiff do not constitute adverse job action.

Plaintiff relies primarily on Bryson v. Chicago State Univ., 96 F.3d 912 (7th Cir. 1996), to support her claim of tangible job detriment. In Bryson, the plaintiff/college professor was stripped of her title and membership on key faculty committees. Plaintiff contends that like Bryson, the changes in her job after her maternity leave deprived her of the "building blocks" of career advancement. Plaintiff ignores a significant difference between Bryson's case and hers: "Bryson came forward with evidence that her title conferred prestige and was important to further professional advancement. She came forward with similar evidence regarding her committee work." Id. at 916 (emphasis added). Plaintiff has offered only her own subjective assertion that the modifications in her clerk duties "impaired her potential for promotion." Pl. Opp. at 39. Such an assertion cannot create an issue of fact, especially when it is belied by objective evidence in her employment record. Plaintiff's last review at AIDC, which was prepared several months after her return from maternity leave, is positive, (see Def. Ex. B-6), and would have entitled plaintiff to a merit pay increase had she remained at AIDC another month. Pennington Aff. at ¶ 8. Accordingly, there simply is no evidence that plaintiff's job assignment following her return from maternity leave precluded her from advancing in her career; in fact, the evidence is to the contrary.14


Plaintiff's hostile workplace claim barely survived a motion for judgment on the pleadings. See Mem. Op. at 21 ("[T]he President's argument regarding the inadequacy of plaintiff's hostile work environment claim is not without some force."). The Court let the claim proceed, however, because it could not resolve the issue without further development of the record. Id. Now that the record has been developed, it is evident that Plaintiff's hostile environment claim cannot be sustained.

First, plaintiff does not dispute that she alleges only three brief and sporadic contacts with Governor Clinton during her two years of employment at AIDC. Hence, she cannot claim that her work environment was pervasively hostile. Plaintiff therefore falls back on the misguided contention that the alleged encounter at the Excelsior was a sexual assault. Pl. Opp. at 49. For the reasons discussed in the Preliminary Statement and Part II (A) above, and in the President's opening brief at 33-34, plaintiff's allegations do not make out a claim for sexual assault under either Arkansas law or under Federal Rule of Evidence 413(d).

Plaintiff struggles to contort her allegations into the taxonomy of "assault" because, as we have argued all along, for a single incident to be so severe as to support a hostile environment claim, it should involve at a minimum a serious physical or sexual assault. Indeed, all three cases on which plaintiff relies involve gang rape or physical abuse. See Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995)(plaintiff was raped by two co-workers and a supervisor, two of whom then drove the semiconscious plaintiff to a hotel room and raped her again); Brzonkala v. Virginia Polytechnic Inst., 132 F.3d 949, 952 (4th Cir. 1997) (violent gang rape of a college freshman by two members of the football team stated hostile environment claim under Title IX), reh'g en banc granted, opinion vacated (Feb. 5, 1998); Crisonino v. New York City Housing Auth., 985 F. Supp. 385 (S.D.N.Y. 1997) (supervisor called plaintiff a "dumb bitch", then "stood up, walked around his desk and shoved her so hard that she fell backward and hit the floor, sustaining injuries from which she has yet to fully recover") The conduct plaintiff alleges clearly is not on a par with that alleged by these rape and battery victims.

In fact, "isolated remarks or occasional episodes of harassment will not merit relief under Title VII; in order to be actionable, the incidents of harassment must occur in concert or with a regularity that can reasonably be termed pervasive." Tomka, 66 F.3d at 1305 n.5 (emphasis added) Plaintiff's allegations simply do not suffice.15

Second, in the Court's August order, it found that "the totality of actions" alleged by plaintiff were sufficient to state a hostile workplace claim. Mem. Op. at 21 (emphasis added). Plaintiff asserts that she has proven all her allegations, and therefore summary judgment should be denied. Pl. Opp. at 48. Plaintiff's wrong; she has not proven all the allegations upon which the Court relied. In that order, the Court made clear that the "totality of the actions" included not only plaintiff's alleged encounters with the Governor, but also her allegations that she was "treated in a hostile and rude manner by supervisors, . . . [that] the Governor's alleged advances caused her to suffer adverse employment actions," and that his actions caused her to suffer emotional distress. Mem. Op. at 21 (emphasis added). For all the reasons discussed above and in our opening brief, plaintiff has not adduced record evidence to support these three allegations.

In particular, plaintiff cannot show that Governor Clinton – who is, after all, the sole defendant on plaintiff's hostile environment claim – took any action or said anything to her supervisors that caused them to treat her rudely or to take any adverse employment actions against her. Nor has plaintiff provided any evidence that the other allegations she offers to support her hostile environment claim – such as purported "stalking" or other encounters with Trooper Ferguson – are attributable to President Clinton. Thus, to the extent her hostile environment claim turns on these other allegations, she has failed to prove any link between them and the Governor's conduct.


A. Plaintiff Must Prove A Constitutional Deprivation To Prevail On Her Conspiracy Claim.

Plaintiff contends that Section 1985 does not require her to prove that she was actually deprived of her civil rights, and that her Section 1985 conspiracy claim is not dependent on proving every element of her Section 1983 claim. Pl. Opp. at 55. However, like Section 1983, a Section 1985 claim requires at a minimum proof that the plaintiff's constitutional rights were violated. See Larson v. Miller, 76 F.3d 1446, 1456 (8th Cir. 1996) (disposing of a case where there was "no evidence of any acts from which a jury could conclude that any injury to or deprivation of the [plaintiff's] constitutional rights actually occurred"); Huey v. Barloga, 277 F. Supp. 864, 871 (N.D. Ill. 1967) ("plaintiff must have suffered some actual injury or loss resulting from the consummation of the conspiracy in order for a cause of action to exist"). Therefore, if plaintiff's Section 1983 claim is dismissed on summary judgment because the Court can find no evidence that plaintiff's constitutional rights were violated, she also would no longer have a claim that the defendants acted in concert to achieve that end.

Plaintiff next contends that she has shown sufficient injury for a Section 1985 claim, in the form of emotional damages. See Pl. Opp. at 73-74. If that were all that were required, Section 1985 would become a font for the constituitonalization of common law torts. This is not the law, however; if plaintiff's claim lacks a constitutional dimension, she is barred from bringing it under Great American Federal Savings & Loan Ass'n v. Novotny, 442 U.S. 366 (1979) (prohibiting Section 1985(3) claims based solely on violations of Title VII). Cf. Garza v. City of Omaha, 814 F.2d 553 (8th Cir. 1987)(allowing employee to bring a Section 1985(3) claim as long as it sought redress for violations of constitutional protections).

B. Plaintiff Marshalls Insufficient Evidence To Show That The Defendants Agreed To Violate Her Civil Rights.

If the Court concludes that plaintiff has failed to adduce evidence that her constitutional rights were violated, of course, it need not reach the issue of whether there is sufficient evidence of conspiracy on this record. We respectfully submit that there is not.

While a civil rights conspiracy may be inferred from circumstantial evidence, that evidence must "specifically demonstrate" that the object of the agreement was the impairment of plaintiff's civil rights. This is especially so where, as here, the two alleged co-conspirators have denied any intention or agreement to violate plaintiff's rights, and Trooper Ferguson has specifically denied soliciting women on Governor Clinton's behalf. Ferguson Tr. at 91-93, 105-06.

The "evidence" to which plaintiff cites (See Pl. Opp. at 58-63) does not satisfy this standard. It amounts to nothing more than an inference based on hearsay. Plaintiff specifically fails to point to facts which would suggest "that [the defendants] 'reached an understanding' to violate [her] rights." City of Omaha Employees Betterment Ass'n v. City of Omaha AFSCME Local 251, 883 F.2d 650, 652 (8th Cir. 1989) (emphasis added) (citations omitted). The cases on which plaintiff relies only highlight these deficiencies. See Mershon v. Beasley, 994 F.2d 449, 452 (8th Cir. 1993) (reversing the district court and holding that the defendant's motion for a directed verdict should have been granted because "the evidence was insufficient as a matter of law on the question of a mutual understanding, or a meeting of the minds"); Meineke Discount Muffler v. Jaynes, 999 F.2d 120 (5th Cir. 1993) (plaintiff had direct evidence of a "meeting of the minds" – a contract in which the defendants agreed on a specific course of action to interfere with plaintiff's contractual rights).

Plaintiff further contends that the testimony of three troopers who were not present at the Excelsior Hotel on May 8, 1991 can support an inference that Trooper Ferguson and Governor Clinton formed a conspiracy, at that time and place, to deprive plaintiff of her rights. Pl. Opp. at 60-61. This does not withstand scrutiny; none of those troopers were involved in the alleged hotel incident. Plaintiff nonetheless contends this inference is proper because Ferguson "was aware" of these troopers, discussions about the Governor's alleged relationships with other women. Id. This does not constitute competent evidence that Trooper Ferguson entered into a conspiracy with Governor Clinton on the occasion in question, or that they did so with the purpose to deprive plaintiff of her civil rights.16


The Opposition fails to identify the kind of clear cut proof of Plaintiff's outrage claim that is necessary to proceed to trial in Arkansas on this uniformly disfavored tort. Manning v. Metropolitan Life Ins. Co., 127 F.3d 686, 690 (8th Cir. 1997) (high burden of proof required for outrage claim); Ross v. Patterson, 817 S.W.2d 418, 420 (Ark. 1991) (clear cut proof of outrage required) . This high standard is especially strict where, as here, the outrage claim is asserted in an alleged employment context – even in a case brought against an individual. See, e.g., Sterling v. Upjohn Healthcare Services, Inc., 772 S.W.2d 329, 330 (Ark. 1989) ("We have taken a strict view of claims for outrage in employment situations.")17

With respect to plaintiff's attempt to show clear cut proof of severe emotional distress – which must be distress so severe no reasonable person could be expected to endure it – plaintiff relies on her own testimony, the testimony of her two best friends and her husband, and a freshly minted declaration of a supposed "sex addiction" expert, Carnes, purporting to opine that plaintiff suffers from post traumatic stress syndrome as evidenced by, inter alia, "sexual aversion." Carnes Decl. at ¶ 4.

Our opening brief already fully demonstrated that the plaintiff's conclusory testimony of generalized feelings, and the testimony of her two best friends and her husband essentially parroting plaintiff's testimony, fails to satisfy the requisite clear cut proof necessary to proceed to trial. Mem. in Supp. of Mot. for Summary Judgment at 48-50. The alleged kinds of distress such as plaintiff, her friends and relations describe has been
rejected consistently by Arkansas courts. See Angle v. Alexander, 945 S.W.2d 933, 936-37 (Ark. 1997) ("emotional distress" including thoughts of death, fear, anger and worry, was insufficient); Hamaker v. Ivy, 51 F.3d 108, 110-11 (8th Cir.1995) (anger, increased heart rate and blood pressure, trouble sleeping and medical consultation requiring medication merely reflected common symptoms of anger and did not constitute outrage). In particular, an affidavit intended to cure deficiencies in plaintiff's deposition testimony on this issue, has been held to be insufficient to defeat summary judgment, particularly where it alleged only "mental anguish" and other generalized symptoms. Crenshaw v. Georgia Pac. Corp., 915 F.Supp, 93, 96-97, 99 (W.D. Ark. 1995).

The Carnes declaration cannot fill the chasm in plaintiff's record. Indeed, his "expert" opinion is nothing more than the same type of conclusory allegations that plaintiff already has submitted. Moreover, as fully demonstrated above, Carnes was not timely identified as an expert witness on this subject, has no apparent expertise concerning emotional distress claims, did not "examine" plaintiff until nearly seven years after the alleged incident, and based his opinion solely on the plaintiff's recounting of her symptoms in a brief interview of plaintiff and her immediate family. The Carnes declaration also is defective because it actually contradicts plaintiff's own testimony that she does not seek damages related to her marriage. See supra Part I(C), and cases cited therein.

Plaintiff's analysis of the cases she cites further undercuts her position. For example, plaintiff contends that she has suffered the requisite severe emotional distress because in Davis v. Tri-State Mack Distributors, Inc., 981 F.2d 340, 341 (8th Cir. 1992) the plaintiff "only" demonstrated evidence of medical problems – a month-long medical leave of absence from her job – which an expert testified was the result of the alleged conduct. Pl. Opp. at 69. Plaintiff thus identifies the very deficit of her case – she has no such evidence here.

Plaintiff's outrage claim also fails to satisfy the conduct element. The Opposition cites no case permitting an outrage claim to proceed to trial based on a single proposition. Instead, plaintiff mistakenly contends that the facts here are "far more egregious" than other cases in which the conduct element was satisfied. Pl. Opp. at 65. Plaintiff's argument, however, requires the Court simply to ignore the substantially distinct facts of the cited cases, which allege repeated, in some cases daily, pervasive harassing conduct. See, e.g., Manning, 127 F.3d at 688-89 (supervisor-defendant described and fondled genitals on an almost daily basis, accused employees of sleeping with clients to obtain business and suggested he would have employees killed for complaining about his behavior).


The facts alleged here also do not fit within plaintiff's wishful argument that the conduct she alleges is so severe, she should be permitted to proceed to trial without evidence of extreme emotional distress. Indeed, the case plaintiff relies upon for this contention held only that physical harm need not be shown if the conduct is egregious enough. See Pl. Opp. at 70 (citing Manning, 127 F.3d at 691).18 For all these reasons, the President is entitled to summary judgment on this claim as well.


Plaintiff accuses the President of the United States and his unspecified "agents" of a far-flung scheme of obstruction of justice, perjury and suppression of evidence, and argues that this "creates the inference that his entire case is weak," thereby precluding summary judgment in his favor. Pl. Opp. at 74-89. President Clinton categorically denies that he engaged in any such conduct. These allegations are based on nothing more than multiple hearsay, innuendo, paranoia and newspaper reports based almost entirely on anonymous sources.

It is transparently evident, moreover, that the materials plaintiff cites in support of this contention have nothing whatsoever to do with the issues raised in the President's motion for summary judgment, and that plaintiff concocted this argument simply as a vehicle to place on the public record, without authorization of the Court, all sorts of scurrilous materials about matters wholly unrelated to whether plaintiff can substantiate her claims that she personally was deprived of her constitutional rights and of outrage. Rather, this section of plaintiff's brief appears to be part of plaintiff's continuing effort to taint the jury pool in this case.

Plaintiff's contention that this jumble of hearsay and innuendo precludes summary judgment is baseless. First, President Clinton's motion relates solely to plaintiff's claims, and relies exclusively on plaintiff's own testimony, the testimony of four current or former Arkansas state employees, plaintiff's own employment records, and the testimony of Trooper Ferguson. There is not a shred of material cited in the final section of the Opposition that relates in any respect to this evidence, these witnesses, or the issues in our summary judgment motion. In particular, there is no evidence that these witnesses lied or that Ms. Jones' employment records are a sham. See Corrugated Paver Products, Inc. v. Longview Fibre Co., 868 F.2d 908, 914 (7th Cir. 1989) ("[W]here, as here, movant's witnesses have been examined by the nonmovant in depositions, the nonmovant ordinarily must identify specific factual inconsistencies in the witness' testimony in order to withstand a motion for summary judgment. The opposing party may not merely recite the incantation, 'credibility.' ") (citations omitted); Topp-Cola v. Coca-Cola Co. ,150 185 F. Supp. 700, 708 (S.D.N.Y. 1960) (plaintiff may not avoid summary judgment merely by suggesting that the defendant's supporting evidence may be false).

Second, plaintiff has the burden of proof here, not the President. Therefore, even if all the evidence on which we rely were wiped out, for whatever reason, the burden still would be on plaintiff to come forward with evidence to substantiate essential elements of her claims. Generalized attacks on the credibility of the defendant do not alleviate Plaintiff's burden in this regard.19

Our only burden on summary judgment is to point to the absence in the record of evidence supporting essential elements of plaintiff's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). This we have done, and plaintiff's campaign to smear the President does not obviate the fact that plaintiff cannot sustain her claims.


For all the foregoing reasons, we respectfully submit that summary judgment should be entered for President Clinton on all three counts.

Respectfully submitted,

Counsel to President William J. Clinton

Dated: March 20, 1998


1. For these reasons, we are separately filing a motion to strike these materials from the record, and for other relief.

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2. Counsel's representation that they had prepared a separate statement that was not delivered timely due to a "mistake" is simply not credible. If such a statement were already prepared, counsel could have provided it to us over the weekend and filed it with the Court first thing Monday morning. It was not, however, provided to the parties and the Court until late Monday afternoon, and was not filed until the following day.

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3. Plaintiff's only attempt to counter these statements is an insinuation that any witness whose testimony is favorable to the President is not credible. See Pl. Counter-statement at ¶ 38. This is conjecture, not "evidence." Nothing in the record supports the allegation that these witnesses lied or that Ms. Jones' employment records are a sham, and plaintiff Is suggestion to the contrary reflects the weakness of her case.

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4. Moreover, we note that the Carnes declaration merely states that Carnes has a Ph.D. in education and counseling. It is far from clear therefore that he even is qualified to render an expert opinion concerning plaintiff Is alleged emotional distress.

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5. President Clinton's Second Set of Interrogatories, dated November 20, 1997, asked plaintiff (1) to state the name, address and phone number of any expert on which she may rely in any aspect of this litigation, and (2) for each person so address and phone number of any expert on which she may rely in any aspect of this litigation, and (2) for each person so identified, to state, inter alia, the subject matter on which the person is expected to testify, or to provide sworn statements as to the substance of that person's opinions. By order dated January 8, 1998, the Court compelled plaintiff to respond. On January 15, 1998, plaintiff provided a list of names, including Carnes, but provided no information concerning the subject matter of any testimony he might give, or any other information called for by the second interrogatory.

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6. Although the Eastern District of Arkansas has opted out of the disclosure requirements of Rule 26, it still requires parties "to comply with the provisions of pretrial orders . . . entered by the trial judge to whom a case is assigned in respect to disclosure of witnesses, including expert witnesses, and other disclosures and production that would otherwise be required by the provisions of Rule 26(a)(2) and (3).11 E.D. Ark. General Order No. 42 (Feb. 22, 1994), at 2 (emphasis added). See also Derby v. Godfather's Pizza, Inc., 45 F.3d 1212 (8th Cir. 1995)(excluding testimony from expert when party violated Rule 26(e)); Grassi v. Information Resources, Inc., 63 F.3d 596 (7th Cir. 1995)(upholding exclusion of expert report when party failed to comply with Rule 26 (e) (1) Is supplemental disclosure requirement); Bradley v. United States, 866 F.2d 120 (5th Cir. 1989) (reversing district court for allowing experts to testify even though a party violated Rule 26(e)(1)).

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7. Plaintiff's attempt to reassert this rejected theory is a prime example of plaintiff Is evolving allegations and misstatements of law. Last July, in order to survive a motion to dismiss, plaintiff disavowed that she was making a claim for battery and assault. See Pl. Opp. to Mot. for Judgment on the Pleadings (July 28, 1997) at 44. Now, plaintiff suggests that the Complaint from the outset alleged criminal assault in violation of Arkansas state law. See Pl. Opp. at 23. However, the state statute cited in the Complaint, Ark. Code Ann. § 571-208, is a harassment provision, not a sexual assault provision.

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8. West v. State, 719 S.W.2d 684, 686 (Ark. 1986), cited at page 24 of the opposition, only highlights this distinction. As is apparent from the passage quoted by plaintiff, West did not simply attempt to kiss the victim on the neck, as plaintiff asserts.

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9. Moreover, plaintiff Is suggestion that in order to sustain her constitutional claim she must prove less than would be required if this were simply a Title VII suit is in error. In fact, under Section 1983, plaintiffs must show more; they must prove conduct that amounts to a violation of Title VII, plus show that a defendant acted under color of state law with the intent to discriminate on the basis of gender. Trautyetter, 916 F.2d at 1149; Guy v. Illinois, 958 F. Supp. 1300, 1307 (N.D. Ill. 1997) ("plaintiff's burden under § 1983 exceeds that under Title VII (emphasis added).

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10. Moreover, all of the cases cited by plaintiff to support her contention that she need not prove Title VII-type harassment actually hold the opposite. See Bohen v. City of East Chicago, 799 F.2d 1180, 1186 (7th Cir. 1986) (recognizing that sexual harassment was actionable under Section 1983 and looking to analogous rights in the arena of hostile work environment); Andrews v. City of Philadelphia, 895 F.2d 1469, 1483 n.4 (3d Cir. 1990) (adopting Title VII as a framework for a hostile environment claim under Section 1983); Ascolese v. Southeastern Pennsylvania Transp. Auth. , 925 F. Supp. 351, 360 (E.D. Pa. 1996) (adopting Title VII and applying the standards set forth in Harris v. Forklift Sys. Inc., 510 U.S. 17 (1993)).

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11. Nichols and Karibian are additionally distinguishable because they are "submission" cases rather than refusal cases. This is important, as Karibian explains, because "evidence of economic harm will not be available to support the claim of the employee who submits to the supervisor's demands." Karibian, 14 F.3d at 778. In Nichols, moreover, the court in fact found evidence that a tangible benefit had been conditioned on the granting of sexual favors. Id. at 513.

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12. See e.g. Nichols v. Loral Vought Systems Corp., 81 F.3d 38 (5th Cir. 1996)(summary judgment for defendant when defendant testified that supervisor who allegedly discriminated against plaintiff was uninvolved in the defendant's decision to terminate the plaintiff); Lane v. Ground Round, Inc., 775 F. Supp. 1219 (E.D. Mo. 1991) (even though supervisor harassed plaintiff before he was transferred and tried to convince his replacement to fire plaintiff and replacement was fired for not firing plaintiff, there was no evidence that the harasser had any input into the new third supervisor's decision to fire plaintiff); Sheekey v. Nelson, 40 FEP Cases 1216 (D. N.J. 1986) (where alleged harasser uninvolved in the employment decisions regarding plaintiff, plaintiff failed to prove prima facie case).

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13. Plaintiff argues that Sims v. Sauer-Sundstrand Co., 130 F.3d 341 (8th Cir. 1997) ,150 is of no relevance because it stands "only" for the proposition that the passage of time between events and an adverse action "weakens" the inference of causation, but does not eliminate it. Pl. Opp. at 46. So too here, the 16-month period between the alleged sexual harassment and the alleged changes in plaintiff's job duties following her return from maternity leave weakens any inference of causation &150; and the testimony of plaintiff's supervisors negates it entirely. See also Rath v. Selection Research, Inc., 978 F.2d 1087, 1090 (8th Cir. 1992) (affirming summary judgment for defendants when the only proof of causation was that six months had passed between the alleged triggering incident and the notice of termination).

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14. The other two cases cited by plaintiff are also easily distinguishable. In McCabe v. Sharrett, 12 F.3d 1558 (11th Cir. 1994), a freedom of association case, the plaintiff produced evidence that the job to which she was transferred was two pay grades lower than her previous position, id. at 1564, and that her salary was frozen. Id. at 1560. In Collins v. Illinois, 830 F.2d 692 (7th Cir. 1987), a race discrimination case, plaintiff was a professional library consultant who, inter alia, was transferred to a different department, relegated to doing reference work, had her name withdrawn from professional publications, and had her business cards and telephone taken away. Thus, the plaintiff in Collins was effectively demoted and stripped of indicia of professional status. No diminution in plaintiff's status as a clerk/typist can be gleaned from the record here.

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15. Plaintiff also relies on an unpublished District of Columbia race discrimination case, Reid v. O'Leary, No. CIV. A. 96401 (GK), 1996 WL 411494 (D.D.C. July 15, 1996), for the proposition that a single incident can create a hostile work environment. Contrary to plaintiff Is assertions, Reid was not limited to a single incident. Id. at *4. If race discrimination cases are to set the standard, moreover, the Eighth Circuit has unequivocally held that a single incident cannot constitute a hostile work environment in the race discrimination context. Clayton v. White Hall School Dist., 875 F.2d 676, 680 (8th Cir. 1989) (citing Gilbert v. City of Little Rock, 722 F.2d 1390, 1394 (8th Cir. 1983)).

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16. Plaintiff's reliance on a discredited passage of Adickes v. S. H. Kress & Co., 3 98 U.S. 144 (1970) ,150 in this regard is puzzling. In Adickes, the court drew the inf erence that a conspiracy had occurred because the defendants/movants on summary judgment failed to offer proof that there was no conspiracy. The Supreme Court subsequently found this to be improper to the extent it suggested the burden was on the defense to prove the non-existence of a conspiracy. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

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17. Characteristic of plaintiff's tactics throughout this litigation, she seeks to rely on employment context cases for certain propositions, while disavowing such cases with respect to others. Plaintiff's continual efforts to recast her claims depending on the convenience of the moment only demonstrates the weakness of her claims, and should be rejected.

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18. Manning, moreover, relies on an example in Prosser and Keaton involving an angry mob that came to plaintiff's house at night with a threat to lynch plaintiff unless he left town. W. Page Keaton, et al., Prosser and Keaton on the Law of Torts, § 12 (5th ed. 1984). This obviously is far from the single proposition alleged here.

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19. See David A. Sonenshein, State of Mind And Credibility in the Summary Judgment Context: A Better Approach, 78 Nw. U.L. Rev. 744, 796 – 97 (1984) (where unburdened party has moved f or summary judgment based on uncontraverted evidence, plaintiff cannot defeat motion merely by offering evidence on credibility of defendant). See also Federal Ins. Co. v. Summers, 403 F.2d 971 (1st Cir. 1968) (plaintiff may not get to the jury on the sole basis that the jury may disbelieve the testimony of his adversary); Strickland v. Watt, 453 F.2d 393, 394 (9th Cir. 1972) (where plaintiff had failed to controvert facts put forward by defendant, court rejected plaintiff's claim that summary judgment was automatically unavailable where defendant had previously been convicted of a felony).

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