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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA
GERALD BIBY, ) ) Case No. 4:03 CV 3206 Plaintiff, ) ) BRIEF IN SUPPORT OF vs. ) PLAINTIFF’S OPPOSITION TO ) DEFENDANTS’ MOTION FOR BOARD OF REGENTS OF THE ) SUMMARY JUDGMENT UNIVERSITY OF NEBRASKA AT ) LINCOLN, DARRELL W. NELSON, ) DONALD HELMUTH, and ) JOHN DOES 1-10 IN THEIR ) INDIVIDUAL AND OFFICIAL ) CAPACITIES, ) ) Defendants. ) Defendants have filed a Motion For Summary Judgment on Plaintiff’s Causes of Actions One through Five on the basis of sovereign immunity and the Eleventh Amendment of the United States Constitution Amendment against the University and the individuals in their official capacities, and for qualified immunity against the individuals in their individual capacities. Defendants have further moved this Court to dismiss Plaintiff’s state law claims because there is no federal question upon which supplemental jurisdiction may be predicated. Plaintiff has dismissed Causes of Action One through Five against the Board of Regents and the individuals in their official capacities and therefore those issues are moot. Plaintiff opposes Defendants’ motion for qualified immunity and in support of his arguments, Plaintiff submits the following.
SUMMARY OF FACTS Plaintiff was hired by the University of Nebraska on October 1,1993, as a Technical Assistant’s Coordinator for the Industrial Agricultural Products Center (hereinafter “IAPC” or “Center”). (Biby Affidavit, Exhibit 1, ¶ 2). The University of Nebraska’s Board of Regents approved the IAPC on May 6, 1998. The IAPC was established because of strong encouragement and support from several commodity groups and industry and government leaders. One of the primary program components for the IAPC was the Technology and Information Transfer Program. The Program was established to transfer the Center’s product ideas and practices into the private sector. The Program was to serve as an information clearinghouse on new agricultural product development. Another primary program component was a marketing analysis program established to decide market potential and develop marketing strategies for new products and processes. (Biby Affidavit, Exhibit 1, ¶ 3). The Director of the Center, Milford Hanna, was Plaintiff’s direct supervisor. The Center also had an advisory board consisting of representatives from the public and private sector, both in and out of the University system. Plaintiff’s duties consisted of acting as an interface between companies and the IAPC in identifying applied research opportunities and preliminary negotiation of the aspects of accomplishing the marketing of new products, Plaintiff carried out these duties until January 1999. (Biby Affidavit, Exhibit 1, ¶¶ 4,5). While employed at the IAPC, Plaintiff was involved in a number of research projects that resulted in offers of Intellectual Property and/or technology licensing agreements that had the potential of generating income to the IAPC. The income was a necessary and integral part of the continuation of the center because it is not a part of the University line-item budget and was mostly dependent on money earned from contracts, grants and profits of marketed products. (Biby Affidavit, Exhibit 1, ¶ 8). The Office of Technology Transfer was created after Plaintiff was hired, Donald Helmuth was the Director. One of his employees was Turan Odabasi, the Patent Attorney in the Office of Technology Transfer. Throughout the relevant time period, Turan Odabasi was the IAPC contact with the Technology Transfer Office and Plaintiff’s contact in regard to all commercialization and technology transfer projects, including the development of the Corn Card project. Odabasi reported directly to Donald Helmuth. (Biby Affidavit, Exhibit 1, ¶ 6). In regard to development and patenting of intellectual property, once technology was developed to a level of satisfaction by its developers at the University, the discovery or invention was to be offered to and accepted by the University in accordance with it’s policies and by laws. (Biby Affidavit, Exhibit 1, 7, Defendants’ Exhibit 2.1, Patent Policy) One project Plaintiff was engaged in at the IAPC, was horticultural applications for polylactic acid (hereinafter “PLA”). Plaintiff worked with Milford Hanna and Qi Fang on the PLA project. In 1996, a gentleman named Bill Brown contacted the IAPC. Mr. Brown was the principal stockholder and agent of Corn Card International. Mr. Brown was interested in talking to the Center about his concept of biodegradable printable plastics, specifically, creating a biodegradable phone card made from corn-based products and utilizing the PLA technology. The PLA technology was modified for specific use and called Soft Touch II. This concept was pursued with the full knowledge of Donald Helmuth, Darrell Nelson and the Nebraska Corn Utilization and Marketing Board (hereinafter “Corn Board”). (Biby Affidavit, Exhibit 1, ¶ 9). An offer of invention for Soft Touch II technology, utilizing the PLA research, was made to the University on March 7, 1997. The Corn Card project was fast moving, and the developers of the Soft Touch II technology, Plaintiff, Dr. Hanna and Mr. Fang were concerned about the loss of patent protection for the intellectual property, so Plaintiff wrote a provisional patent disclosure and Turan Odabasi arranged for it to be filed. The offer of invention had already been made to the University. (Exhibit 4). The inventors received the acknowledgment receipt from the Patent and Trademark Office specifically identifying the Hanna, Biby and Fang as the owners of the non-provisional patent. (Biby Affidavit, Exhibit 1, ¶ 11; Exhibit 5). On July 28, 1997, a Technology Licensing Agreement was entered into between the University of Nebraska and Corn Card International. The Technology Licensing Agreement encompassed the use of the technology developed and offered by Plaintiff, Dr. Hanna and Mr. Fang to the University. The licensing agreement allowed Corn Card to utilize and market the technology relating to the production of certain biodegradable polymers as developed by Plaintiff, Dr. Hanna and Mr. Fang. In the Technology Licensing Agreement (Defendants’ Exhibit 1.2), the University represented that it owned this technology, and was therefore free to enter into the agreement with Corn Card International. At the time the agreement was entered into, Plaintiff, Dr. Hanna and Mr. Fang were the registered legal owners at the U.S. Patent and Trademark Office. Plaintiff never saw the actual Technology Licensing Agreement until approximately September or October of 1997. (Biby Affidavit, Exhibit 1, ¶ 12). The agreement provided that the IAPC was to provide Corn Card with recommendations on biodegradable materials that could be used for printable plastics, including the combination of PLA and Soft Touch II resin. Those involved in this project at the IAPC worked with Mr. Brown and Corn Card representatives in this capacity until approximately January 1999, which included the negotiation of the assignment of rights outside of North America. (Biby Affidavit, Exhibit 1, ¶ 12). During the development of the Soft Touch II technology, the IAPC had received funding from the Corn Board, and later received $25,000.00 from the National Corn Growers Association to prove the concept that you can make plastic products out of PLA with Plaintiff’s technology and additive. During 1998, Plaintiff was in contact with Corn Card at least once a day via phone, e-mail, or perhaps in person. The technology gained great interest from card manufacturers and Corn Card initiated discussions through Plaintiff to expand its territory beyond North America. This information was shared with Turan Odabasi and, based on the representations made to Plaintiff by the Office of Technology Transfer, a letter was sent to Corn Card on January 16, 1998, telling Bill Brown of the decision. (Biby Affidavit, Exhibit 1, ¶¶ 15,16,17). At some point in mid-1998, discussions arose between Corn Card and a company called Gemplus. Gemplus is one of the largest manufacturers of cards for the use by the card industry in the world. In August 1998, Turan Odabasi, Walter O’Farrell and Plaintiff had a meeting in regard to Gemplus becoming a part of the Corn Card project. There was no opposition or concern expressed about this plan by Mr. O’Farrell or Mr. Odabasi. As a result of that meeting, Dr. Hanna had Plaintiff follow the usual protocol and Plaintiff sent information to Gemplus regarding their questions about the specific aspects of the technology. (Biby Affidavit, Exhibit 1, ¶ 18). In early December 1998, Bill Brown requested a formal assignment of the card portion of his rights under the Technology Licensing Agreement to Gemplus, and to expand the marketing territory worldwide. Plaintiff contacted Donald Helmuth by telephone and email regarding the need for finalization of Corn Card’s request to the assignment with an explanation that it was necessary to more forward. Dr. Helmuth had no problem with the assignment or the expansion but wanted Gemplus to sign its own Technology Research Agreement. (Biby Affidavit, Exhibit 1, ¶ 19). After various communications about the Gemplus assignment, Plaintiff began receiving contradictory communications and became aware that the University was going breach the Agreement with Corn Card. (Biby Affidavit, Exhibit 1, ¶ 25). Plaintiff informed University officials that they had an Agreement and had made representations that needed to be upheld. From this point on, the work environment for Milford Hanna and Plaintiff became increasingly hostile. (Biby Affidavit, Exhibit 1, ¶¶ 25, 26). Around the middle of April 1999, long after it was apparent the University intended to break its agreement with Corn Card, Dr. Hanna informed Plaintiff they had been instructed to immediately execute and assign the Soft Touch II patent and all other patents to the University. Because of the intimidation and coercion exercised over the past four months, they signed the documents to assign ownership to the University on the Soft Touch II and other patents. (Biby Affidavit, Exhibit 1, ¶ 11). Corn Card brought a lawsuit against the University which eventually settled. However, prior to the settlement, Plaintiff became aware of extensive mistruths told by Dr. Nelson, Dr. Helmuth, and Turan Odabasi. (Biby Affidavit, Exhibit 1, ¶¶ 25-31). Also prior to the settlement, Plaintiff was subjected to intimidation, threats, coercion and hostile treatment. On June 2, 3 and 4 1999, Plaintiff was subjected to various violations of his constitutional rights and other violations of federal and state law, as well as violations of the University’s own policies when Defendants authorized and provided for the search and seizure of information from this office. (Biby Affidavit, Exhibit 1, ¶¶ 33-37). Plaintiff protested the Defendants’ actions both through University channels and by contacting elected officials and the media. (Biby Affidavit, Exhibit 1, ¶ 32). As a result of Plaintiff’s unwillingness to engage in unlawful behaviors and his public protest of the University’s actions, the Plaintiff was terminated from his employment.
Pursuant to NELR 56.1 (a), Plaintiff contends that there are genuine issues to be tried as to each of the following contested material facts: 1. Shortly after Plaintiff’s hire with the Industrial Agricultural Product Center (hereinafter “IAPC” or “Center”), Plaintiff inquired of the Human Resources Department as to where to obtain applicable University policies and procedures. Plaintiff was directed by the Human Resources Department to the Internet site where those polices and procedures could be obtained. Throughout Plaintiff’s employment, he was unaware of any computer privacy policy except that which is identified as Exhibit 17. Until Defendants filed their Motion For Summary Judgment, Plaintiff had never seen what Defendants allege to be the applicable policy on computer privacy. (Biby Affidavit, Exhibit 1, ¶ 34). 2. The procedure for technology development and patent applications, in accordance with University policies and by-laws, was for the developer of the technology to make an “offer” of acceptance to the University. (Defendants’ Exhibit 2.1, Patent Policy). The policy calls for the University to provide a formal acceptance in order for the University to be the lawful patent holder. A formal acceptance of our patent offer was never received from the University by the Plaintiff and the other patent holders for the patent at issue. (Biby Affidavit, Exhibit 1, ¶ 7). 3. Throughout 1998, Plaintiff kept in constant contact with Dr. Helmuth’s office through Turan Odabasi, Special Assistant General Counsel for Intellectual Property for the University. Mr. Biby fully disclosed his negotiations with Corn Card International in regard to the use of the patented technology, including negotiations for the expansion of the Technology Licensing Agreement to Gemplus for World Wide Manufacturing of Smart Cards. Neither Dr. Nelson nor Dr. Helmuth, nor anyone in the Technology Transfer Office, ever expressed any opposition to the negotiated expansion. Approval was given to Plaintiff to proceed forward with the expansion. (Biby Affidavit, Exhibit 1, ¶ 6,16,18,21,25). 4. At no time prior to January 1999, had any official from the University informed Mr. Biby’s supervisor or Mr. Biby himself that he did not have the authority to negotiate marketing or any other aspects of the Technology Licensing Agreements with the contracted party. Prior to January 1999, Mr. Biby consistently acted as an interface between companies and the IAPC and negotiated aspects of the marketing of new products in the same manner Mr. Biby did with Corn Card International and Gemplus. (Biby Affidavit, Exhibit 1, ¶ 18). 5. In late January 1999, Dr. Helmuth and Dr. Nelson stated in a meeting that they intended to give the card manufacturing to a company other than that who we had been negotiating with during the previous year. Dr. Nelson and Mr. Odabasi were aware of the negotiated deal with Gemplus and were going to breach the agreement with Corn Card by canceling it. (Biby Affidavit, Exhibit 1, ¶ 25). 6. Mr. Biby had been asked to turn over all relevant information and documents relating to Corn Card International to University counsel. Mr. Biby complied with that request in its entirety and provided over 900 pages of information to Dr. Helmuth. (Biby Affidavit, Exhibit 1, ¶ 29). 7. On June 3, 1999, a representative from Operations & Analysis, an officer from the University police, and a technician with the University police, all came to Mr. Biby’s office to search his computer and files. Mr. Biby refused to sign the authorization presented to him and clarified that he was not voluntarily allowing unbridled access to his electronic information or the seizure of his files. Following his denial of access to his computer, Mr. Biby and his supervisor, Dr. Hanna, were called into a meeting with Dr. Helmuth and Dr. Nelson. Plaintiff was assured by the Defendants that the search would be limited and that no police would be present. (Biby Affidavit, Exhibit 1, ¶ 35; Defendants’ Exhibit 5.1). 8. On June 4, 1999, the Operations Analyst and the Police Department technician came back to Mr. Biby’s office accompanied by a uniformed, armed officer. The officers stated that no authorization to search his computer was needed and the parameters of the search were unbridled. Mr. Biby again protested and refused consent. Eventually, due to the coercive nature of the situation and Mr. Biby’s concern that his employment would be terminated immediately if he did not provide access to the computer, Mr. Biby did give the University officer his password. This action was not done voluntarily and Mr. Biby filed a grievance with the University specifically in regard to the computer search. (Biby Affidavit, Exhibit 1, ¶ 36; Defendants’ Exhibit 5.1). 9. Plaintiff was coerced into signing assignments of all the patents he held through his employment at the IAPC. (Biby Affidavit, Exhibit 1, ¶ 11). 10. Dr. Helmuth told material lies to Bill Brown regarding the Corn Card agreement. (Biby Affidavit, Exhibit 1, ¶ 28).
ARGUMENT INDIVIDUAL DEFENDANTS ARE NOT ENTITLED TO QUALIFIED IMMUNITY ON ANY OF PLAINTIFF’S CLAIMS
The inquiry of whether a defendant is entitled to qualified immunity must be made in light of clearly established law and the information that the defendant possessed. Anderson v. Creighton, 483 U.S. 635, 641, 107 Sup.Ct. 3034 (1987). In making the determination of whether qualified immunity should be granted, “the non-moving party is still given the benefit of all relevant inferences at the summary judgment stage, and if a ‘genuine dispute exists concerning predicate facts material to the qualified immunity issue, the defendant is not entitled to summary judgment on that ground’ “. Hudson v. Norris, 227 Fed.3rd 1047, 1050 (8th Cir. 2000) quoting Pace v. City of Des Moines, 201 Fed.3rd 1050, 1056 (8th Cir. 2000). The Defendants are not entitled to qualified immunity because there are numerous issues of material fact, and because qualified immunity is not supported by law. A.FOURTH AMENDMENT PRIVACY CLAIM As Defendants have set forth in their Brief, the proper inquiry into a defendant’s entitlement for qualified immunity on a § 1983 claim is well established. To deny a defendant’s motion for summary judgment on the ground of qualified immunity, a court must make two findings. First, a court must find on the record viewed in the light most favorable to plaintiff, that which would allow a reasonable finder of fact to conclude that defendants engaged in a course of conduct that violated the plaintiff’s clearly established constitutional right. Second, the court must find, as a matter of law that no reasonable official could have thought such a course of conduct was lawful. Hudson, supra; Hunter v. Bryant, 502 U.S. 224, 112 Sup.Ct. 534 (1991). In regard to the issue of whether the Defendants violated a clearly established right, Defendants first argue that the plaintiff did not have a reasonable expectation of privacy in the contents of the computer in his IAPC office. Second, they argue that if there was an expectation of privacy, the examination of the contents of the computer was not improper in inception or scope. 1.THE PLAINTIFF HAD A CONSTITUTIONALLY PROTECTED EXPECTATION OF PRIVACY
O’Connor v. Ortega, 480 U.S. 709, 107 Sup.Ct. 1492 (1987) was a suit brought pursuant 42 U.S.C. § 1983 alleging a violation of that plaintiff’s fourth amendment rights. Specifically, the issues were whether public employers’ intrusions on constitutionally protected privacy interests of government employees for non-investigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by a standard of reasonableness under all circumstances; and, 2) whether the public employer’s search of a hospital supervisor’s office was reasonable, both in its inception and in its scope. The court ultimately determined that the government employee had a reasonable expectation of privacy in his office and that the search violated the fourth amendment. Whether a government employee has a reasonable expectation of privacy depends on the context within which the search takes place, and requires balancing the employee’s legitimate expectation of privacy against the government’s need for supervision, control, and the efficient operation of the workplace. Id. at 1494. Ortega made clear that requiring a probable cause standard for searches by public employers would impose unfair burdens. However, there is no question that Fourth Amendment restraints do apply to searches and seizures by government employers upon their employees. In considering what expectation of privacy the Plaintiff should be afforded in Ortega, the court noted that the workplace generally includes areas that are related to work and within the employer’s control, but that not everything that passes through a business address can be considered part of a workplace context. Id. at 1497. The facts relied on by the court in Ortega were that the Plaintiff did not share his desk or file cabinets with any other employees and kept materials in his office including personal correspondence, medical files, correspondence from private patients unconnected to his place of employment, personal financial records, teaching aids and notes, and personal gifts and mementos. Id. at 1498. Moreover, the court noted that “there was no evidence that the hospital had established any reasonable regulation or policy discouraging employees…from storing personal papers and effects in their desks or file cabinets.” Id. The Plaintiff in the instant case had file cabinets in his office which he shared with no one. He held the lock to his office and kept personal items there. (Biby Affidavit, Exhibit 1, ¶ 2). He also kept confidential, proprietary information stored in file cabinets and on computer. He used his e-mail system for personal correspondence regularly and kept such correspondence stored on his computer. (Biby Affidavit, Exhibit 1, ¶ 2,36). Plaintiff had the reasonable expectation, absent extreme, unusual circumstances, that unbridled access to his office and its contents would not be authorized. Further, like Ortega, the University did not have any policy or instruction to employees stating that they were not to keep personal property in their offices or on their computers. In fact, it was just the contrary. The University had a policy in place which established a reasonable expectation of privacy, stating, in relevant part: “a user can expect the files and data he or she generates to be private information, unless the creator of the file or data takes action to reveal it to others.” (Exhibit 17; Defendants’ Exhibit 2.2). The facts relevant to the workplace itself, establish that Plaintiff had a reasonable expectation of privacy. Defendants state that the relevant privacy policy is what is contained in Defendants’ Exhibit 2.2, page 4 ¶ 7. While Defendants opted to bold the one sentence that could possibly be construed as a non-privacy policy, the remainder of the privacy policy supports Plaintiff’s position of a reasonable expectation of privacy. The policy specifically says: When University information systems are functioning properly, a user can expect the files and data he or she generates to be private information, unless the creator of the file or data takes action to reveal it to others. Users should be aware, however, that no information system is completely secured. Persons both within and outside of the University may find ways to access files. Accordingly, the University cannot and does not guarantee user privacy and user should be continuously aware of this fact.
Plaintiff argues this policy is completely irrelevant because Plaintiff had never seen it before it was produced as evidence for Defendants’ Motion. However, should the Court determine the policy does apply, it is apparent that when reading this policy in a reasonable context, it very clearly provides privacy in regard to the University searching your computer. The only warning that is given is, as exists with all electronic communication, that it is possible that someone could tamper with the system and access private information. The policy goes on to talk about necessary repair and maintenance of computing equipment being prohibited by law from exceeding the authority of access for repair and maintenance purposes, or from making any use of individual user files for any purpose other than repair and maintenance. This policy, reasonably read, creates a reasonable expectation of privacy for computer files and e-mails. Under the standard established by Ortega as to whether an employer’s search violates the Fourth Amendment, there must be a two-fold inquiry: 1) whether the action was justified at its inception; and, 2) whether the search actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place. Id. at 726, 1502 citing Terry v. Ohio, 392 U.S. 1, 20 and New Jersey v. T. L. O., 469 U.S. 325, 341, 105 S.Ct. 733, 743. Although the governmental interest justifying work-related intrusions by public employers is the efficient and proper operation of the workplace, that must be balanced against the privacy interests of government employees in their place of work. Ortega, supra. “Ordinarily, a search of an employee’s office by a supervisor will be ‘justified at its inception’ when there are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of work-related misconduct, or that the search is necessary for a non-investigatory work-related purpose, such as to retrieve a needed file.” “The search will be permissible in its scope when ‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of…the nature of the [misconduct]’ “. Id. at 726, 1502, citing New Jersey v. T. L. O. supra. In the instant case there has been absolutely no evidence of any misconduct on the part of the Plaintiff that could have provided a basis for the search. Also, while the search was guised in the purpose of gathering information, the University did not need to search the Plaintiff’s computer or files because the information had already been provided or would have been provided voluntarily by Plaintiff. 2.THE SEARCH WAS UNREASONABLE IN ITS INCEPTION The Defendants claim in their Brief that the search was performed with the Plaintiff’s consent. Defendants have submitted a videotape, Exhibit 5.1, which contains: 1) the audio recording of a conversation between Dr. Helmuth and Plaintiff that took place on June 2, 1999; 2) a video of the first attempt of Defendants to search Plaintiff’s office on June 3, 1999; 3) an audio recording of a meeting between Dr. Helmuth, Dr. Nelson, Dr. Hanna (Plaintiff’s supervisor) and Plaintiff on June 3, 1999; and 4) the second appearance at Plaintiff’s office by the Police Department technician, an armed, uniformed officer, and an Operations Analyst on June 4, 1999, at which time they conducted the search. A review of Exhibit 5.1 clearly establishes that this search was not conducted with Plaintiff’s consent. The facts established by Defendants’ Exhibit 5.1 are that Dr. Helmuth had a telephone conversation with Plaintiff on June 2, 1999, during which Dr. Helmuth stated that he wanted conduct a review of the 900 and some plus documents which the Plaintiff had already submitted to Dr. Helmuth and University counsel, to which Plaintiff responded agreeably. (Defendants’ Exhibit 5.1, 0:01:00). Dr. Helmuth then informed the Plaintiff that the Plaintiff would need to sign a consent to search and that it would need to be done in the presence of a uniformed officer. (Defendants’ Exhibit 5.1, 0:01:58). Understandably, Plaintiff reacted to the requirement of being in the presence of an officer to sign a consent to search by stating he may want an attorney present if he was going to be accused of wrongdoing. (Defendants’ Exhibit 5.1, 0:02:14). Ironically, Dr. Helmuth related that the uniformed officer would be there merely as a witness to show that the Plaintiff was not being coerced to sign the consent. (Defendants’ Exhibit 5.1, 0:02:24). Dr. Helmuth also expressed that this was simply University policy, at which time the Plaintiff asked that said policy be faxed over to him. (Defendants’ Exhibit 5.1, 0:02:36). The Plaintiff expressed that the idea of a uniformed officer made him uncomfortable and again inquired as to why that was necessary. Dr. Helmuth responded that University policy required that a consent form be signed before looking into someone’s computer, and in reference to the policy said that it was “probably emanating from privacy laws”. (Defendants’ Exhibit 5.1, 0:03:11). Prior to the June 2, 1999 telephone conversation, Dr. Nelson and Dr. Helmuth had previously, falsely accused Plaintiff of being involved in some type of criminal conspiracy with Corn Card, and in an effort to explain why this made him uncomfortable, Plaintiff reminded Dr. Helmuth of that fact. (Defendants’ Exhibit 5.1; 0:03:42). Plaintiff then again requested that this “policy” be faxed over and stated that he thought that the necessity of having a uniformed officer present made it sound like somebody was trying to do something they should not be doing. (Defendants’ Exhibit 5.1; 0:04:01). Dr. Helmuth again reiterated that the entire process was for not only Plaintiff’s protection but that the policy was in place for everyone’s protection at the University and that he would fax over the applicable policy. (Defendants’ Exhibit 5.1; 0:05:30). All in all, the Plaintiff asked Dr. Helmuth to please provide this consent policy three separate times. The policy that was eventually faxed over was, in fact, the very policy that Plaintiff relied on during his employment as the computer privacy policy, not that which Defendants offer as an exhibit. (Exhibit 17). Nowhere does the policy say that an employee must sign a consent in the presence of an officer, and to date, Plaintiff has never seen any such policy. At no time on June 2, 1999, did Mr. Biby say that he would consent to an unbridled search of his computer or the removal of original files from his office. On June 3, 1999, a representative from the Operations and Analysis Department appeared at the Plaintiff’s office and informed Plaintiff that he was there to look through all the paper and hardcopy files and collect them for removal from his office. (Defendants’ Exhibit 5.1, 0:06:43). After a bit, a technician from the University Police Department and a plain-clothes officer arrived as well. (Defendants’ Exhibit 5.1, 0:21:07). The Plaintiff unconditionally, clearly and emphatically stated that he would not allow any search or removal of materials. (Defendants’ Exhibit 5.1, 0:07:36; 0:12:13; 0:13:22). The Plaintiff iterated and reiterated that his reasoning for the refusal to consent was that he was aware of Dr. Helmuth’s and Dr. Nelson’s misstatements and wrongdoing in the Corn Card matter. (Defendants’ Exhibit 5.1, 0:08:23; 0:10:51; 0:11:14; 0:24:30; 0:28:25). Plaintiff repeatedly stated that he was greatly concerned about the information the University wanted to seize being compromised or not being turned over to the proper authorities in its unaltered state. Plaintiff explained over and over again that this information could be evidence in a pending lawsuit and that he did not want to see it altered or in any other way have its integrity compromised. (Defendants’ Exhibit 5.1, 0:08:00; 0:09:40; 0:11:59; 0:14:25; 0:22:39; 0:26:55; 0:28:50; 0:29:12). Defendants assert in their Brief that the Plaintiff’s “consent” to search his computer was not made under duress or based upon coercive statements. (Defendants’ Brief pgs. 19-21). Throughout his explanation to why he would not consent to the computer search or trust Dr. Nelson or Dr. Helmuth with the original documents, Plaintiff repeatedly made statements that clearly indicated coercion. The University has “intimidated me, they have threatened me, they have coerced me.” (Defendants’ Exhibit 5.1, 0:24:30). “I have been ambushed three times by the Technology Transfer Office.” (Defendants’ Exhibit 5.1, 0:07:36). Plaintiff explained that there had been e-mails that he had sent which were then later altered and as a result had been misconstrued. (Defendants’ Exhibit 5.1, 0:09:40). Plaintiff kept referring to the policy faxed over by Dr. Helmuth which provided that the University would only search computers under circumstances involving repair or maintenance of computing equipment or investigation of improper or illegal use of resources when there is reasonable cause to believe that occurred. Seeing as how it was clear there were no maintenance problems with Plaintiff’s computer, he exhibited great concern about whether there were allegations of criminal conduct. (Defendants’ Exhibit 5.1, 0:12:32; 0:21:22). Contrary to Defendants’ position in their Brief, the University Policy Department technician unequivocally stated that absent Plaintiff’s willingness to sign the consent, they could not search the computer. (Defendants’ Exhibit 5.1, 0:23:24). The technician even said that if Plaintiff was unwilling to sign the consent, it would be a violation of Plaintiff’s rights to search the computer. (Defendants’ Exhibit 5.1, 0:29:49). After the University Police Department officials and the Operations’ Analyst left the Plaintiff’s office, Plaintiff and his supervisor, Dr. Hanna, were called into a meeting with Dr. Nelson and Dr. Helmuth. At this time, Plaintiff again clarified that he was not willing to sign any document giving consent for an unbridled search of his computer because it could run the risk of ruining the integrity of the computer files. (Defendants’ Exhibit 5.1, 0:32:03). Dr. Helmuth then assured the Plaintiff that there was no indication that the Plaintiff had engaged in any behaviors that could be considered criminal or improper. (Defendants’ Exhibit 5.1, 0:33:02). In response, the Plaintiff noted that in accordance with the University policy faxed over by Dr. Helmuth, the two reasons provided as justification for computer search were maintenance or improper or criminal behavior. (Defendants’ Exhibit 5.1, 0:33:10). Then, suddenly, the entire basis for allowing the search changed. Suddenly, Dr. Nelson stated that the consent form did not need to be signed to obtain the information they were looking for. (Defendants’ Exhibit 5.1, 0:33:47). After it was clear the search was going to take place regardless of Plaintiff’s consent, Plaintiff agreed to be present the next day when the search was to take place. (Defendants’ Exhibit 5.1, 0:38:26). Once the University realized that Mr. Biby was not going to voluntarily consent to the search and seizure they had attempted, the Plaintiff was coerced into allowing access into his computer. By the time the search took place, Plaintiff had been confronted by an armed, uniformed officer, a plain-clothes officer, and a technician from the Police Department. Plaintiff had first been told by Dr. Helmuth that he must sign a consent. Upon his refusal to do so, Dr. Nelson changed his position and said it was not necessary after all. It was readily apparent the search was going to be conducted regardless of Plaintiff’s position. The Defendants state that a legitimate reason existed for the University to authorize the examination of the computer files and e-mails pursuant to Executive Memo 16 (Exhibit 17) because the search was conducted to collect evidence for a pending arbitration of the dispute with Corn Card International. However, there is no evidence supporting any assertion that the University had concerns that Mr. Biby had not turned over information relevant to the lawsuit. Defendants refer to the June 3, 1999 taped conversation between Plaintiff, Dr. Hanna, Dr. Helmuth and Dr. Nelson contained in Defendants’ Exhibit 5.1 at 31:10 - 31:42. In that excerpt, the Plaintiff states that he is well aware that all documents need to be turned over for discovery production purposes. Plaintiff had previously complied with this request by producing over 900 pages of materials. Plaintiff had also made clear that any one who wanted to see the original materials certainly could. However, because of the deceit and malfeasance the Defendants had engaged in up to this time, Plaintiff had legitimate concerns that the University would take and destroy original documents or other evidence relating to the Corn Card arbitration, or those that supported Plaintiff’s position that previously had been denied and attacked by Drs. Nelson and Helmuth. Plaintiff’s reasons for not consenting to the search of his computer files and office files, and the seizure of original documents was well grounded. 3.THE SEARCH WAS UNREASONABLE IN ITS SCOPE At the June 3, 1999 meeting, Dr. Helmuth and Dr. Nelson stated that the parameter of the search was to be that the Plaintiff was to identify the computer files that could be relevant to the lawsuit with Corn Card International. Also, Dr. Helmuth and Dr. Nelson assured the Plaintiff that the only two people that would be present at the search that was to take place the following day were to be the technician and the Operations’ Analyst, but not the University police. (Defendants’ Exhibit 5.1, 0:39:39). On June 4, 1999, the Operations’ Analyst appeared at the Plaintiff’s office, at which time the Plaintiff presented the documents for the Operations’ Analyst to copy on the premises. Shortly after that, the University Police Department computer technician arrived with an armed, uniformed officer. The technician informed the Plaintiff that he had been told that the University decided that because the University owns the computer that it had the right to look at everything on the computer including personal computer files. (Defendants’ Exhibit 5.1, 0:47:05). The technician stated that he intended to look through all of the Plaintiff’s files and that he had the right to copy a file and take it with him. (Biby Affidavit, Exhibit 1, ¶ 36; Defendants’ Exhibit 5.1, 0:47:57). The search parameter used by the technician was overbroad. The technician used search terms that brought up a number of files having nothing to do with Corn Card. Further, the technician downloaded and sent an extremely vast amount of e-mails that had nothing to do with Corn Card. (Biby Affidavit, Exhibit 1, ¶ 36). The information removed from Plaintiff’s computer included that concerning other clients, including proprietary information, as well as personal notes, communications and memorandums. Had the University wanted to maintain a proper scope for the investigation, they could have done what Plaintiff suggested on more than one occasion, which was to have him go through the computer with the technician and pull up relevant files. Instead, Dr. Helmuth and Dr. Nelson opted to send University police personnel and instruct Mr. Biby that they were to conduct their own broad search. As to the inquiry of whether Defendants’ should reasonably have known their conduct was unlawful, Defendants state that at the time the search in question was committed, the University personnel chiefly had O’Connor v. Ortega, supra, to guide them. (Defendants’ Brief, p. 15). Plaintiff agrees that Ortega is the primary case on point in regard to the issue presented. However, there had been other case law in regard to privacy in the workplace and privacy issues about electronic communication provided sufficient guidance for Defendants to be reasonably aware their actions were unlawful. See, e.g. Smyth v. Pillsbury Co., 914 Fed.Supp. 97 (E.D. Pa. 1996) (Court held that the Plaintiff did not have a reasonable expectation of privacy in e-mail messages sent to his supervisor because he voluntarily disclosed their content to the supervisor); Shields v. Burge, 874 F.2d 1201 (7th Cir. 1989) (Search of an employee police officer’s desk was reasonable because employee was suspected of illicit activity); United States v. Taketa, 923 F.2d 665 (9th Cir. 1991) (Court found the search reasonable and articulated the standard for searches based on work-related misconduct as the correct inquiry as whether there was reasonable cause to believe that evidence of employee misconduct was located on the property that was searched); Schowengerdt v. United States, 944 F.2d 483 (9th Cir. 1991) (Search of a civilian employee’s office at a top-secret naval weapons design plant was reasonable because it was a peculiarly un-private workplace); Chandler v. Miller, 117 S.Ct. 1295 (1997) (Court articulated that a context-specific inquiry which examines closely the competing private and public interest advanced by the parties is the proper analysis); United States v. Maxwell, 45 M.J. 406 (C.A.A.F. 1996) (FBI’s seizure of e-mail list suppressed, with the court holding that senders of e-mails do have a reasonable expectation of privacy in the message they send, thus implicating the Fourth Amendment when the state seeks to search or seize e-mail); United States v. Charbonneau, 979 Fed.Supp. 1177 (S.D. Ohio 1997) (Court held that Defendant possessed a limited reasonable expectation of privacy in the e-mail messages he sent and/or received on AOL). The search by the University constitutes a violation of Plaintiff’s Fourth Amendment privacy rights in both inception and scope. Moreover, Dr. Helmuth was obviously aware of the Fourth Amendment right to privacy because he said to the Plaintiff that the need for a consent to search was “probably emanating from privacy laws”. Even the University police were aware that the search without consent could violate the Plaintiff’s constitutional rights as is evidenced by their making affirmative statements to that effect. Because there was a violation of Plaintiff’s constitutional rights and because the Defendants were aware that the course of conduct in which they engaged was not lawful, the Defendants are not entitled to qualified immunity on Plaintiff’s Privacy Claims. B.FIRST AMENDMENT SPEECH CLAIM “It is clearly established that a state may not discharge an employee on a basis that infringes that employee’s constitutionally protected interest in freedom of speech”. Rankin v. McPherson, 483 U.S. 378, 383, 107 S.Ct. 2891, 2897 (1987). To determine whether speech is protected by the First Amendment, a court must determine whether the speech touched on a matter of public concern. Sexton v. Martin, 210 F.3d 905 (8th Cir. 2000). “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record”. Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684 (1983). Defendants assert that the speech engaged in by the Plaintiff was merely an employment dispute with the University and does not rise to the level of protected speech. (Defendants’ Brief, pg. 29). Yes, the Plaintiff was engaged in a dispute with the University. However, the nature of the dispute centered upon the Plaintiff’s refusal to engage in deceitful or unlawful behaviors, and his recognition of concern that the University had done so. The Plaintiff refused to allow his computer to be searched or to have original documents removed from his office because he did not want to compromise the integrity of evidence relevant to the University’s lawsuit with Corn Card. The Plaintiff had grave concerns about the University’s actions, by and through the named Defendants, amongst others. These complaints were not merely personal grievances about Plaintiff’s employment. Rather they were statements expressing Plaintiff’s refusal to engage in unlawful behavior, and his concerns about the Technology Transfer Office’s questionable methods. The University of Nebraska-Lincoln is an entity that is publicly funded and its actions are of interest to the public. This is especially true when actions taken by University officials on behalf of the University are dishonest, involve misconduct, and certainly if they are unlawful. The Plaintiff contacted the news media, the Board of Regents, Senator Byars of the Nebraska Unicameral, and Governor Johanns. (Biby Affidavit, Exhibit 1, ¶¶ 32, 43, 49, 51). In his letters, Plaintiff communicated that the Defendants’ actions were suspect and not good for agricultural related business in Nebraska. Further, Plaintiff filed two grievances with the University which are subject to review by a Grievance Committee, some which consists in part of private citizens. (Biby Affidavit, Exhibit 1, ¶¶ 39, 53). Lastly, I informed Dr. Nelson I had provided the State Ombudsman’s office with copies of the relevant materials and requested their intervention. (Biby Affidavit, Exhibit 1, ¶ 48). On the heels of Plaintiff’s complaints came his termination. The temporal proximity between Plaintiff’s actions and his termination are enough to constitute a causal connection in and of itself. Hudson v. Norris, 227 F.3d 1047, 1050 (8th Cir. 2000). As was noted in Hudson, Plaintiff had an outstanding employment record prior to his protesting about the University’s actions in regard to the Corn Card matter, also a fact supporting his claim. Defendants Helmuth and Nelson are educated people. It is well established that governmental employees have the right to speak out adversely about their employer’s actions should they so desire. The First Amendment right to free speech is certainly not new and has been interpreted and applied consistently for some time. Defendants are not entitled to qualified immunity on Plaintiff’s First Amendment Claim. C.DUE PROCESS CLAIM Plaintiff does have a valid property interest at issue that affords him due process. At the time of his termination, the Plaintiff was not the owner of the patent in question. However, Plaintiff was the rightful patent holder, along with Dr. Hanna and Mr. Fang, up until the University coerced the patent holders into signing away ownership of all the patents they held. The individuals properly made an offer to the University which the University never accepted. Thereafter, the individuals applied for and received a patent, of which the University had no ownership. (Biby Affidavit, Exhibit 1, ¶ 10). The facts of this case reveal a number of actions taken by the Defendants as scare-tactics. The sudden requirement that Plaintiff and Dr. Hanna sign over every patent they held was clearly another one of these tactics. Plaintiff would have received monetary compensation associated with the successful marketing of his invention had the Defendants not breached the agreement with Corn Card. According to Defendants’ Exhibit 2.1, the University’s Patent Policy, “[r]oyalties and other proceeds accruing from any successful patent shall be divided according to a mutually agreed upon formula, but in no case shall the inventors share be less than 15 percent of the net revenues.” Plaintiff clearly would have been entitled to some portion of the revenue received as a result of the product marketed that was based upon the patented technology. Gemplus already had been contacted by one of its customers with a request to print between 100,000 and 1,000,000,000 cards. (Biby Affidavit, Exhibit 1, ¶ 25). Had the University honored its commitment with Corn Card by allowing the assignment to Gemplus for marketing throughout Europe, this was the minimum number of cards that would have been marketed. The amount of royalties that would have been received by the inventors is not at issue for the purpose of qualified immunity. However, it is eminently clear that the inventors would have received royalties. That constitutes a property interest for the purpose of a due process deprivation. The fact that Plaintiff’s employment at the University has been terminated has no bearing on whether he would have continued to receive royalties. As is evidenced by Exhibit 25, Plaintiff continues to receive royalties on projects he patented or otherwise offered to the University in accordance with University policy. In their Brief, Defendants attempt to cloud the issue by referencing that there was an implied employment contract that governed ownership of property and patents. (Defendants’ Brief, p. 30). The fact is that it is set forth in black and white in the University’s policy that proceeds accruing some a successful patent were to be distributed to the inventor in some portion. In regard to whether Plaintiff’s termination, the mere fact that the University provides a grievance procedure establishes a property interest in his employment. Plaintiff did file a grievance protesting his termination. Prior to the grievance hearing, Plaintiff requested that he be provided with the documentation and other evidence upon which the University was basing its decision to terminate. Dr. Helmuth told Plaintiff he would provide all of that information to Plaintiff prior to the hearing but failed to do so. (Biby Affidavit, Exhibit 1, ¶ 45; Exhibit 22). Not only was Plaintiff denied his right to be fully informed as to what evidence or reasoning supported Dr. Nelson’s decision to terminate, he also refused to allow Plaintiff to be represented by an attorney. Basically, Dr. Nelson stripped the Plaintiff of any ability to contest the termination by denying him information, assuring that the Plaintiff be held at a disadvantage in regard to representation. (Biby Affidavit, Exhibit 1, ¶ 53). The failure to provide the requested information to Plaintiff completely undermined the grievance process. Plaintiff was deprived of the opportunity for a meaningful grievance hearing, and therefore due process. D.42 U.S.C. § 1985 Defendants assert in their Brief that Plaintiff’s cause of action pursuant to 42 U.S.C. § 1985(3) is deficient because Plaintiff is unable to show a class-based, invidiously discriminatory animus behind the conspirators’ actions. The Plaintiff was subjected to a gross violation of his Fourth Amendment rights. As a result, Plaintiff filed a grievance which rendered the violation public knowledge. Further, Plaintiff contacted public officials and the media in regard to both the University’s disregard for individuals’ constitutional rights as well as the inappropriate and unlawful acts University officials were engaging in regarding the Corn Card matter. Such examples of an individual exercising their First Amendment rights qualify as class-based for the purpose of an action under § 1985(3), and the actions described throughout Plaintiff’s Brief certainly qualify as invidious. In their Brief, Defendants cite two cases in support of their proposition that the exercise of First Amendment rights are not within a class protected by 42 U.S.C. § 1985(3). (Defendants’ Brief, pg. 33). Prochaska v. Fediaczko, 473 Fed.Supp. 704 (W.D. Pa. 1979) and Eggleston v. Prince Edward Volunteer Rescue Squad, Inc., 569 Fed.Supp. 1344 (E.D. Va. 1983) are the cases Defendants rely on. The Plaintiff requests that the Court note that not one single federal or state court has followed either of those cases on that particular proposition. In fact, the United States Supreme Court has heard actions brought pursuant to 42 U.S.C. § 1985(3) in which First Amendment violations were claimed as the class-based discriminatory animus behind the conspirator’s actions. See e.g. United Brotherhood of Carpenter & Joiners of America, Local 610, AFL-CIO, et al. v. Scott, 463 U.S. 825, 103 S.Ct. 3352 (1983); Washington v. Normandy Fire Protection District, 328 F.3rd 400 (2003). Plaintiff has set forth facts to support his claim under 42 U.S.C. § 1985(3) based on the Defendants’ conspiratorial action because of Plaintiff’s exercise of his First Amendment rights. Defendants have also claimed that Plaintiff’s cause of action pursuant to 42 U.S.C. § 1985(2) is deficient because that portion of the statute prohibiting actions to conspire for the purpose of impeding, hindering, obstructing or defeating the due course of justice do not apply to state court actions. In support of this proposition, Defendants’ cite Shaw v. Garrison, 391 Fed.Supp. 1353 (E.D. La. 1975). The problem with Defendants’ assertion is that Shaw v. Garrison was reversed and remanded, and dismissed in its entirety. See Shaw v. Garrison, 436 U.S. 584, 98 S.Ct. 1991 (1978); 591 F.2nd 1208 (5th Cir. 1979). Moreover, the Supreme Court has held that the “second part of § 1985(2) applies to conspiracies to obstruct the course of justice in state courts…“Kush v. Rutledge, 460 U.S. 719, 726, 103 S.Ct. 1483,1487 (1983)”. As the facts set forth in this Brief establish, the Plaintiff was subjected to the conspiratorial actions of the Defendants for the purpose of impeding hindering, obstructing or defeating the due course of justice. Both of Plaintiff’s claims under 42 U.S.C. § 1985 are laws that are well established for the purpose of a qualified immunity analysis. The Defendants knowingly acted in concert to deny Plaintiff equal protection of the laws because of his assertion of his First Amendment rights and to keep the Plaintiff from engaging in the due course of justice. The Defendants are not entitled to qualified immunity. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests this Court deny the Defendants’ Motion for qualified Immunity. Respectuflly submitted this 10th day of December, 2003. GERALD BIBY, Plaintiff By: BALLEW, SCHNEIDER & COVALT Attorneys at Law, PC, LLO 440 South 13th Street, Suite C P. O. Box 81229 Lincoln, NE 68501-1229 (402) 436-3030 Attorneys for Plaintiff BY: ______________________________ Mary C. Gaines, #20068
I, the undersigned, hereby certify that on the 10th day of December, 2003, a true and correct copy of the foregoing Brief in Opposition to Defendants’ Motion For Summary Judgment was served upon counsel for Defendants by depositing the same in the United States mail, postage prepaid, addressed as follows: Terry C. Dougherty WOODS & AITKEN, LLP 301 South 13th Street, Suite #500 Lincoln, NE 68508 and John C. Wiltse Senior Associate General Counsel University of Nebraska P.O. Box 830745 Lincoln, NE 68583-0745
____________________________ Mary C. Gaines, #20068 Counsel for Plaintiff |