Tales From The Travels

Well, after three months of work, I finally submitted my appeal brief to the South Dakota Supreme Court yesterday. The brief itself was only about 35 pages long. But, when you included all the appendices, it was nearly an inch thick and weighed about two pounds. I have dedicated hundreds of hours to making sure my legal arguments were valid and substantiated, not to mention the time I devoted to making sure it was all in the proper format demanded by the supreme court. This week was a real crunch and I neglected all my house chores and my son (and my sleep!) while devoting all of my time to ensuring everything was done right and get it to the court before Monday’s deadline.

I have now done something most lawyers haven’t done by submitting an argument to a state supreme court. Needless to say, the bad guys are not going to be happy with what they see. I imagine that if I was in law school, my brief would get bad marks for technical writing. But, the logic is flawless and I have an enormous amount of documentary evidence, law, and court precedent to back me up. Again, I don’t expect a favorable decision because the state doesn’t pay its judges to rule against it. But, sooner of later, I will win. In any event, the bad guys have 45 days to respond, then I have 15 days to rebut. So, I’m not expecting a decision before Christmas.

My appeal dealt with the following basic points:

They denied me due process. They never charged me with the offenses they are now claiming I made, never presented any evidence, and never allowed me to defend myself.

The real reason they fired me was in retaliation for a grievance I filed against my immediate supervisor, Christina Keller (I swear, if I had thought she was Jim Abbott’s mistress I would not have filed that grievance in the first place!).

The civility clause they used to fire me is unconstitutional. The courts have been very clear that speech codes are a violation of the first amendment right to free speech. Since violating the civility clause (which just says everyone must be nice to each other) is the only offense I was ever charged with, if the clause is struck down, then they have no basis to fire me. I asked the circuit court judge, Stephen Jensen, to declare it unconstitutional and he sidestepped it by simply not making a ruling. He just ignored it completely! Like I said, South Dakota doesn’t pay its judges to rule against the state.

Judge Jensen did rule in my favor on one point, but it was very interesting. Because of the nature of his ruling, I believe he ruled in my favor in order to deny me any benefits. This ruling concerned my years of service at the time they fired me, which is an important consideration under the collective bargaining agreement. They claimed I had over four years of service, while I claimed I had between two and four due to the fact that I had taken unpaid leaves of absence for military mobilizations. If I really was over four, I argued the contract said they couldn’t fire me the way they did. But, if I was between 2 and 4, then they owed me a big cash settlement. The judge ruled that I had the number of years of service I had claimed, but wasn’t due the cash settlement. So, he gave them the authority to fire me, but denied me the benefits the contract said I should have. Pretty nifty.

The last point is that they violated my rights as a veteran. South Dakota law is very specific about hiring and firing veterans and they violated the law in this regard. Its a class 1 misdemeanor to do so, so its pretty important if I win.

So, here’s my brief (without appendices) for your reading pleasure. I don’t blame you if you don’t read it. The only reason I would read it myself is because I’m involved. (I apologize for the appearance, the format came out different than the document when I pasted it.)

******************
IN THE SOUTH DAKOTA SUPREME COURT

DR. CHRISTOPHER F. KEATING, )
)
Appellant )
)
v. ) CIV. 06-307
)
JAMES W. ABBOTT AND THE )
UNIVERSITY OF SOUTH DAKOTA )
)
Appellees )

Appellant’s Appeal Brief

1. The circuit court from which this appeal is taken is Clay County Circuit Court.

2. The county in which the action is venued at the time of appeal is Clay County.

3. The name of the trial judge who entered the decision appealed: The Honorable Stephen R. Jensen.

Parties and Attorneys
Appellant:
Dr. Christopher Keating

Represented by:
Pro Se

Appellees:
James W. Abbott and the University of South Dakota

Represented by:
Robert B. Frieberg,

Date of Notice of Appeal: February 1, 2008
Table of Contents

Table of Citations Page 3
I. Jurisdictional Statement 6
II. Statement of Legal Issues 6
III. Statement of Case and Facts 10
IV. Legal Argument 17
Grievance 1 17
Grievance 2 20
Grievance 3 23
Grievance 4 25
Grievance 5 26
Unfair Labor Practice Complaint 1 27
Unfair Labor Practice Complaint 2 33
Malice 33
Summary and Remedy 34
Appendix

Citations
14th amendment 5, 22, 32, 37
1st Amendment to the U.S. Constitution 8, 16, 17, 21, 27, 28, 32, 37
Bullfrog Films Inc. v. Wick, 847 F.2d 502, 512 (9th Cir. 1988) 27
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S., 126 S.Ct. 2405 (2006) 13
Chamberlain v. Bissell, Inc., 547 F.Supp. 1067 (W.D. Mich.1982) 22
Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) 6, 18
COHE agreement 4, 5, 6, 7, 8, 10, 12, 14, 15, 16, 18, 20, 21, 22, 24, 25, 26, 35, 36, 37
Gaymed v. City of Rockford, 408 U.S. 104, 108-109 (1972) 27
Harrison v. Metropolitan Government of Nashville, 80 F.3d 1107 (6th Cir. 1996) 12
Heath v. General Services Admin. (1998 EEOPUB LEXIS 4562 (1998)) 6, 7, 11, 12, 13, 14
Keyishian v. Board of Regents, 345 F.2d 236, 239) 29
Pappas v. Giuliani, No. 00-9487 (2nd Circuit Court of Appeals, May 13, 2002) 30, 31
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) 8, 28
Ray v. Henderson, 217 F.3d 1234, 1243-44 (9th Cir.2000) 5, 6, 7, 8, 10, 11, 12, 13, 14
Reeves v. Sanderson Plumbing Products, Inc. (99-536) 530 U.S. 133 (2000) 197 F.3d 688, reversed 6, 23
SDCL 1-1A-3 8, 34
SDCL 3-18-15 11
SDCL 3-18-3.1 4, 9, 11, 15
SDCL 3-3-4 8, 27, 39
SDCL 3-3-5 28
South Dakota Constitution 22
Uniform Commercial Code 7, 26
US Code Title 18, Section 214 14

I. Jurisdictional Statement
1. I, Dr. Christopher F. Keating, submit the following brief, pursuant to SDCL § 1-26A-60, in support of my appeal on the above referenced matter.
2. Decisions on appeal are:
• Order denying application to present additional evidence, dated January 2, 2008 and filed January 2, 2008.
• Findings of fact and conclusions of law with Memorandum Opinion attached, dated January 2, 2008 and filed January 2, 2008.
• The court’s foregoing Memorandum Opinion, dated November 30, 2008 and filed December 3, 2008.
• Order and judgment, dated January 2, 2008 and filed January 2, 2008.
Notice of Entry was delivered to me by first class mail and dated January 11, 2008. I filed my Notice of Appeal with the Clay County Office of Clerk of Courts on February 1, 2008. The above listed documents are provided in the Appendix. Appeal of each of these court decisions is permitted under SDCL 15-26A-3. The Statement of Material Facts is included in the Appendix.

II. Statement of Legal Issues
Before the court are five grievances filed under the collective bargaining agreement between the South Dakota Board of Regents and the Committee on Higher Education (“COHE agreement”) and two unfair labor practice complaints made under SDCL 3-18-3.1 which were filed with the state Division of Labor and Management. Each of these issues dealt with the circumstances surrounding the 2004 non-renewal of my tenure-track contract by the University of South Dakota and university president James W. Abbott, allegedly because I violated the civility clause of Appendix G of the COHE agreement (“civility clause”). The administrative law judge ruled against me on all counts and I appealed his decision to the circuit court, Judge Stephen Jensen presiding. A summary of the grievances and the circuit court’s findings are summarized below:
Grievance 1: That the non-renewal of my tenure track contract with USD was a disciplinary action and USD failed to give me due process when they did not follow Sections 8.6 and 15 of the COHE agreement in taking this action. USD was required to notify me of the violation I was charged with, conduct an investigation, establish a prima facie case, and allow me to defend myself. No due process was ever performed. I was allowed to defend myself against one charge of violating the civility clause, but the university is now claiming after the fact that I was dismissed for other reasons. I was never charged with these violations and never allowed to defend myself. Never, at any time has the administration establish a prima facie case.
The circuit court ruled that the university’s actions were not disciplinary and I was not entitled to due process.
Relevant Authority: 14th Amendment to the U.S. Constitution; Ray v. Henderson, 217 F.3d 1234, 1243-44 (9th Cir.2000); Heath v. General Services Admin. (1998 EEOPUB LEXIS 4562 (1998)); Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985)
Grievance 2: That the non-renewal of my contract with USD was in retaliation because I engaged in a protected activity when I filed a grievance against my supervisor, Christina Keller, in the fall of 2003. I have established a substantial prima facie case that retaliation actions began immediately after I filed my grievance and continued until I was dismissed.
The circuit court ruled that the university’s actions were not retaliatory.
Relevant Authority: Ray v. Henderson, 217 F.3d 1234, 1243-44 (9th Cir.2000); Heath v. General Services Admin. (1998 EEOPUB LEXIS 4562 (1998)); Pickering v. Board of Education, 391 U.S. 563 (1968); Reeves v. Sanderson Plumbing Products, Inc. (99-536) 530 U.S. 133 (2000) 197 F.3d 688, reversed
Grievance 3: That my years of service were improperly calculated and as a result USD failed to provide me with the proper compensation provided for by the COHE agreement. Based on my number of years of service at the time of my non-renewal, I was due, at the administration’s discretion, either a 12-month contract or a cash payment of $92,716.56. The university claimed I had more than four years of service and wasn’t due either.
The circuit court ruled in my favor, stating I had 3.86 years of service as I claimed, but denied me the protection of the collective bargaining agreement and did not award me the compensation required by the contract.
Relevant Authority: COHE Agreement; Uniform Commercial Code
Grievance 4: That USD failed to fairly and adequately apply the COHE agreement, and in doing so should commence disciplinary actions against Keller for documented violations of the civility clause. This grievance was intended to demonstrate the capricious nature of the administration’s actions and that the civility clause is vague and overbroad. To be in compliance with the law and the contract, they would either have to discipline Keller, or withdraw their complaint against me. They did neither.
The court ruled that the agreement was applied equitably.
Relevant Authority: Ray v. Henderson, 217 F.3d 1234, 1243-44 (9th Cir.2000); Heath v. General Services Admin. (1998 EEOPUB LEXIS 4562 (1998)); COHE Agreement.
Grievance 5: That I was discriminated against by USD because of my veteran status. I was denied the full veteran benefits guaranteed me by law and was therefore discriminated against by being denied equal justice under the law. SDCL 3-3-4.
The circuit court declared I was not discriminated against.
Relevant Authority: SDCL 3-3-4
Unfair Labor Practice #1: That USD was in violation of SDSL 3-18-3.1 (1) and committed an unfair labor practice and violated my Constitutional right of free speech under the First Amendment when they invoked the “civility clause” of the COHE agreement. I argued that the civility clause, in its very nature, is unconstitutional and by invoking it, they violated my constitutional rights. I also argued that it was unconstitutional for them to invoke it for speech I made in the privacy of my own home and on my own time. The record shows that I was not dismissed for any disruptive behavior, but that I was dismissed for making a comment in the privacy of my own home and on my own time that they considered to be rude.
The circuit court did not make any ruling on my claim that the civility clause is unconstitutional. Instead, the court ruled that the actions by the university did not violate my constitutional right to free speech.
Relevant Authority: 1st Amendment to the U.S. Constitution; R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); Ray v. Henderson, 217 F.3d 1234, 1243-44 (9th Cir.2000); Pickering v. Board of Education, 391 U.S. 563 (1968)
Unfair Labor Practice #2: That USD committed an unfair labor practice in violation of SDCL 3-18-3.1 (4) by dismissing me in retaliation for filing a grievance. This complaint was substantially the same as Grievance #2 above.
Relevant Authority: SDCL 3-18.3.1.

III. Statement of Case and Facts
1. At issue are the findings of the First Circuit Court, Judge Stephen Jensen presiding, concerning my appeal before that court. The hearing before the court was held on July 17, 2007 in Vermillion, SD. The transcript (“Transcript”) from this hearing is included in the court documents. On appeal were findings from the administrative hearing before the South Dakota Department of Labor, Division of Labor Management, on the cases of HF 1 U, 2004/05 and HF 11G, 2004/05. This hearing was held on January 17 and 18, 2006, Administrative Law Judge Randy Bingner presiding, and concerned my claims that I was dismissed from my tenure-track contract as a professor at USD unfairly and wrongfully and for engaging in protected activity. Judge Bingner found against me on all points. Judge Jensen ruled for me on one point concerning my years of service, did not rule on another point concerning the constitutionality of the civility clause, and ruled against me on all other points.
2. I was first employed by the University of South Dakota (USD) as an Associate Professor of physics at the beginning of the 1999-2000 academic year, with a nine-month tenure tract contract and continued in the employment as a tenure track professor through the end of the 2003/2004 academic year.
3. During this time, I was twice mobilized to military duty. First, from November 16, 2001 to July 20, 2002. The second time from January 6, 2003 to June 30, 2003. I took unpaid leaves of absence both times I was mobilized.
4. In February 2003, I had some concerns about Keller’s behavior and I sent an email to her about them. This constituted an encouraged informal grievance under the collective bargaining agreement (the COHE agreement).
5. In August 2003, Keller came to me and yelled at me in front of a student, claiming I had added a section to a course without her permission, which was not the case. When Keller refused to discuss the situation with me or to apologize for her behavior, I filed a grievance on September 10, 2003 with my department chair, Timothy Heaton, that Keller was creating a hostile work environment.
6. Heaton and Keller immediately took my grievance out of the department and took it to the Dean of Arts and Sciences, the Vice President for Academic Affairs, and to the University President (Transcript pages 27-28). This is in violation of Ray v. Henderson, 217 F.3d 1234, 1243-44 (9th Cir.2000), where the court adopted the “reasonably likely to deter” test advanced by the EEOC: “The statutory retaliation clauses prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity.”
7. Heaton also sent me an email (A-25) that stated that I had ‘taken a great personal risk’ by filing my grievance. This is also in violation of Ray v. Henderson because it raises the question, ‘Why was I taking a great personal risk by engaging in a protected activity with my department chair?’
8. My grievance was investigated by Heaton, who wrote two letters after his investigation, the first denying my grievance in its entirety and the second placing all blame for any problems on me. This is in violation of SDCL 3-18-3.1 and SDCL 3-18-15 which prohibit using grievances as opportunities to punish the individual filing it.
9. During the investigation, Heaton came to me in my office and told me that Keller would falsely accuse me of sexual harassment if I proceeded with my grievance. I objected strongly and they did not carry through with their threat. This was a violation of Heath v. General Services Admin. (1998 EEOPUB LEXIS 4562 (1998)), which states that conduct that is likely to deter protected activity is actionable. Heaton and Keller deny the threat ever occurred. (Transcript pages 34-35)
10. In September and October 2003, I filed grievances with the campus equal opportunity officer, Ms. Roberta Hakl, concerning Heaton’s letters and the threat to falsely accuse me.
11. In October 2003, after filing my grievances, Keller began monitoring my classroom activities, an action she had not done since 1999 (Transcript page 28) This violated Harrison v. Metropolitan Government of Nashville, 80 F.3d 1107 (6th Cir. 1996), where the court ruled that generally, discriminatory application of performance standards, including closer scrutiny of complaining employees, on account of protected activity is actionable as retaliatory.
12. In October, 2003, the Dean of Arts and Science, Matthew Moen, scheduled me for a meeting to discuss my situation. He then canceled this meeting shortly before we were to meet and never rescheduled it again. This was a violation of Heath v. General Services Admin. in that it creates an antagonistic atmosphere and discourages someone from engaging in protected activity.
13. In February, 2004, Keller marked me down on my faculty performance reports and included selective student comments in violation of the procedures provided in the COHE agreement. The COHE agreement stipulates that, if student comments are used, it must be done as representative of the comments. Keller only selected derogatory comments and failed to show that the majority of student comments were positive (Transcript pages 20-21 and 29). This is retaliatory in nature and is violation of Ray, Heath and Harrison.
14. Keller also reassigned me to lesser courses within the department against my will and even though I was senior to the person she gave my former assignment to (Transcript pages 5 and 29). This is in violation of Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S., 126 S.Ct. 2405 (2006) which found that reassigning someone to lesser duties within the same department after they engaged in protected activity was retaliatory.
15. I approached Keller several times during this time period to resolve any problems, but she ignored me every time and would not respond to my emails. She never initiated any action on her part to resolve any differences between us. This was a failure on her part as a supervisor and, by Ray v. Henderson, is retaliatory in nature because it discouraged me from wanting to engage in any protected activity and Heath because it was conduct that was likely to deter a faculty member from engaging in protected activity.
16. During this period, I consulted with several lawyers concerning the activity going on at the university and the threat of false sexual harassment charges. I was advised by lawyers to contact the South Dakota Attorney General’s office, which I did. After discussing the matter with a representative of the Attorney General’s office, I was told there was nothing they could do for me.
17. After discussing the situation on the phone with me, the representative of the Attorney General’s office emailed President Abbot to inform him about my phone call. Abbott then informed the administration about my phone call, including my supervisors (Transcript pages 4-5 and 29 and pages A-26 – 27). This was a violation of Ray v. Henderson and Heath, and US Code Title 18, Section 214 and is clearly retaliatory in nature. For me to contact the Attorney General’s office is certainly protected activity and by sharing this information and taking action against me the university engaged in retaliatory measures. It is disturbing to think that the people of South Dakota are putting their jobs at risk by talking to the Attorney General’s office when they have concerns that the law is being broken.
18. On Saturday, April 24, 2004, I sent an email on my own time and from my own home that I considered Keller to be a “lying, back stabbing, sneak”.
19. Hakl adjudicated my grievances in May 2004 with the finding that my grievances were not within her purview.
20. On June 9, 2004, I was notified in writing that I was being considered for non-renewal of my tenure track contract for violating the civility clause of Appendix G to the COHE agreement (page A-28). No other reason was given. So, the university stated I was being considered for non-renewal because I had made a comment in my own home that they considered to be rude.
21. On June 22, 2004, I met with Keller, Heaton, Moen, and Donald Dahlin (the Vice President for Academic Affairs). At this meeting I was again informed that I was being considered for non-renewal for violation of the civility clause of the COHE agreement, with my April 24, 2004 email cited as the one and only violation (Transcript page 30).When I stated it was my belief the decision was already made and they were merely going through the motions, all four administration members present nodded their heads and stated that that they ‘were certainly leaning that way’. I then proceeded to present evidence that my statement concerning Keller was fair and accurate and that I was protected by free speech rights. At no time during or after the meeting has it ever been claimed that my statement concerning Keller was incorrect or unjustified.
22. On June 29, 2004, Abbott notified me that he was recommending that my tenure tract contract not be renewed.
23. In July 2004, I filed a total of nine grievances related to this action in accordance with grievance procedures contained in the COHE agreement. I withdrew the first grievance and refiled it as five separate grievances. Each of these five grievances were denied at the lowest administration level and appealed. All five grievances were then granted in my favor at step two of the grievance process, the Faculty Peer Review Committee, which is the only step not decided by the administration.. All five grievances were then denied by Abbott. All five grievances were appealed to the South Dakota Board of Regents and denied. I then appealed all five grievances to the South Dakota Department of Labor, Division of Labor and Management.
24. In August 2004, I initiated two unfair labor practice complaints with the State Department of Labor that the university had violated two parts of SDCL 3-18-3.1.
25. In August, 2004 I was offered and accepted a one-year term contract for the 2004/2005 academic year, which was completed in May 2005. This contract did not satisfy the COHE required penalty incurred due to the late notice of my non-renewal.
26. A hearing was held on January 17 and 18, 2006 on the USD campus concerning my grievances and unfair labor practice complaints. Administrative law judge Randy Bingner was the presiding judge.
27. I filed a brief with Judge Bingner at that time establishing that the civility clause was in violation of the 1st Amendment and other rights. The university has never rebutted this argument. I also submitted this same brief to the South Dakota Attorney General’s office in January 2007. The Attorney General’s office has never commented on or disputed my argument (Pages A-29 – 42).
28. Final arguments were due by February 22, 2006. Each party was allowed one rebuttal each, which were due by March 8, 2006. These documents are in the court record. When no decision had been made by August 31, 2006, I wrote a letter to Bingner requesting to be advised when a decision would be forth coming. When no response was made I wrote a letter to the Bingner’s supervisor, Mr. James Marsh, on September 16, 2006 concerning the situation and requesting his assistance. Bingner then replied on September 20, 2006 that a decision should be ‘completed in the next two weeks.’ When there was still no decision after three weeks, I wrote a letter to the Secretary of Labor requesting assistance concerning the situation.
29. Bingner released his decision, denying all of my grievances and complaints, in a letter dated October 13, 2006. His order was dated November 6, 2006.
30. I filed my appeal with the circuit court on December 6, 2006 and a hearing was held before Judge Jensen on July 17, 2007.
31. Judge Jensen delivered his decision on 30 November, 2007. The order was signed on January 2, 2008. The Notice of Entry was sent to me January 11, 2008. Judge Jensen ruled in my favor on the issue of my years of service, but denied me the compensation stipulated by the contract. He failed to make any ruling at all on the question of the 1st amendment violation of the civility clause. He ruled against me on all other issues.
32. My notice of appeal was filed with this Court on February 1, 2008.

IV. Legal Argument:
Grievance 1: That the non-renewal of my tenure track contract with USD was disciplinary action and USD failed to follow Sections 8.6 and 15 of the COHE agreement in taking this action.
The university initially dismissed me for the one violation of the civility clause for an email I sent out on Saturday, April 24, 2004, stating their action was non-disciplinary and I was not allowed any due process. They have maintained this claim at all times.
Once they realized this email was a private communication that I had made on my own time and in my own home, they changed their story (Transcript pages 30-31). At the January 2006 hearing, they claimed the reason I was dismissed was because of an email I had sent in February 2003, more than 15 months prior to my dismissal. However, it was shown that this email constituted an informal grievance allowed for under the COHE agreement and they were admitting they dismissed me for engaging in a protected activity. (See Respondents Post-Hearing Brief, dated February 21, 2006 and Petitioner’s Rebuttal to Respondents’ Post-Hearing Brief, dated March 7, 2006 for reference.)
The university changed their story again and they are now claiming that I was dismissed for disruptive behavior in the workplace, citing Pickering v. Board of Education, 391 U.S. 563 (1968) as their justification for their actions. Pickering is a disciplinary procedure which requires them to accuse me of injuring the university and puts the burden of proof on them. After this, they must follow due process and allow me an opportunity to defend myself. None of these actions occurred and this is a violation of Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) which requires that I receive a hearing before losing my contractual rights and that I have access to the material that the action was based on. I was never presented with any material before the June 22, 2004 meeting, and was provided with only the April 24, 2004 email as a cause of action. I requested access to all material the action was based on and was denied. The only charge I was allowed to defend myself against was the charge of being uncivil in my email of April 24, 2004 and I was never informed or allowed to defend myself against any violations of Pickering.
The university cannot claim that I was dismissed for disruptive behavior without following the due process. In fact, the university has never produced any documentation that I was disruptive in the workplace while I have provided substantial documentation that they thought I was a model faculty member prior to my September 2003 grievance (Transcript pages 18-23).
The university did not invoke the Pickering standard and I was never charged with any disruptive behavior. Indeed, I insisted that I should be granted the disciplinary action due process and was refused by the administration. They have maintained this stand at all times – that I was not entitled the due process rights of disciplinary actions. Having insisted that this was not a disciplinary action, they cannot invoke the Pickering standards after the fact.
When the university claims they dismissed me for undocumented disruptive behavior, they are confessing that they violated the contract and my due process rights. They cannot, on one hand, claim their action was justified because of a disciplinary issue while claiming, on the other hand, that they do not have to follow the law and the contract concerning disciplinary actions and due process. Ultimately, their actions are violations of my rights. If my dismissal was not a disciplinary action, then the university cannot claim I was dismissed for violating Pickering. If they are claiming I was dismissed for violating Pickering, they cannot claim their action was non-disciplinary and deny me my due process rights.
By invoking Pickering, the university is placing the burden of proof on them selves in the process. They have never established a prima facie case and have never satisfied this burden of proof. By the law of summary judgment, I am now due a favorable decision from the Court.
Grievance 2: That the non-renewal of my contract was in retaliation for my participation in a grievance claim against my supervisor in the fall of 2003.
I have presented an overwhelming and well-documented prima facie case that their actions against me were retaliatory in nature (for example, refer to Transcript pages 18-24, 27-35; and the February 22, 2006 Argument in Support of Petitioner). They have never refuted the evidence and have never been able to explain it. Their legal argument has been to merely state that my argument “has no merit”, without providing any documentary or legal evidence to show why, or to produce court precedents to support their claim.
It is undisputed that my statement was a private communication. It is undisputed that this statement was made in the privacy of my own home. It is undisputed that this statement was made on my own time. It is undisputed that the university suffered no harm from my statement. The only conclusion remaining is that the action taken against me was for retaliatory reasons.
They first made the claim that I violated the civility clause of Appendix G to the COHE agreement. This was the only charge against me and the only charge I was ever allowed to defend myself against. But, the civility clause is clearly unconstitutional and they have no authority to require me to be civil in the privacy of my own home and on my own time. Once they realized this was a violation of my 1st amendment rights, they stopped claiming this charge.
The next charge they made was that I was dismissed for an email I sent in February 2003. The problem was that I had never been given the opportunity to defend myself against this charge, they had never made any complaint that I was disruptive with that email, it was sent 15 months prior to their actions, and most importantly, was an informal grievance between myself and my supervisor as allowed under the COHE agreement. By claiming this as their cause of action, they were confessing to dismissing me because I had engaged in protected activity. This argument was presented to Judge Bingner (see the March 6, 2006 Petitioner’s Rebuttal to Respondents’ Post-Hearing Brief), but he did not act on it – an action that was in error of the law. He should have ruled that the university, in their claim, had provided a confession that they had acted in retaliation against me because I had engaged in protected behavior. The university has never been able to explain this position. Instead, they dropped this claim completely.
Once they realized the error in their story, they changed it again. This time, they claimed that I was a long-term problem in the workplace in violation of Pickering. However, they never at any time accused me of being disruptive in the workplace, they never produced any documentation that I was disruptive in the workplace, they never met their burden of proof that I was disruptive in the workplace, and they never gave me any opportunity to defend myself against any such charges. In fact, these charges were invented three years after the fact. In this way, they violated the COHE agreement, South Dakota Codified Law, the South Dakota Constitution, and the 14th amendment to the U.S. Constitution.
The university still has never, at any time, produced any documentary evidence to show that I was ever disruptive in the workplace, that I had ever been counseled, that I have ever been disciplined for behavior in the department, or that I had ever been any kind of problem in the department (Transcript pages 20-23). The only evidence produced by them has been anecdotal, unsupported testimony of a generic nature without specific instances that was offered only after the fact and by the people with a vested interest in seeing the administration win. This is a violation of Chamberlain v. Bissell, Inc., 547 F.Supp. 1067 (W.D. Mich.1982) which found that by failing to place accurate written documentation about Chamberlain in his personnel file and also to notify him about his unsatisfactory performance, the employer was found liable for wrongful discharge.
I, on the other hand, have been able to produce extensive documentation written by the administration showing that I was regarded as a model employee prior to my grievance of September 2003 (Transcript pages 18-20). These documents are undisputed.
Now that their story has yet again been shown to be illegal and invalid, it has to be anticipated that they will attempt to manufacture yet another story.
In Reeves v. Sanderson Plumbing Products, Inc. (99-536) 530 U.S. 133 (2000) 197 F.3d 688, reversed, Justice O’Conner, writing for the Court stated,
Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. See id., at 517 (“[P]roving the employer’s reason false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination”). In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the fact finder is entitled to consider a party’s dishonesty about a material fact as “affirmative evidence of guilt.” Wright v. West, 505 U.S. 277, 296 (1992); see also Wilson v. United States, 162 U.S. 613, 620—621 (1896); 2 J. Wigmore, Evidence §278(2), p. 133 (J. Chadbourn rev. ed. 1979). Moreover, once the employer’s justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Cf. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (“[W]hen all legitimate reasons for rejecting an applicant have been eliminated as possible reasons for the employer’s actions, it is more likely than not the employer, who we generally assume acts with some reason, based his decision on an impermissible consideration”). Thus, a plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.

The evidence clearly shows that I was regarded very highly by the administration prior to my grievance of September 2003 and that I began to suffer numerous and continuous retaliatory actions commencing immediately after filing my grievance and culminating in my termination.
Grievance 3: That my years of service were improperly calculated and as a result USD failed to follow the proper procedure for the non-renewal of my contract, and that if the years of service were properly calculated, USD had no authority to non-renew me.
The circuit court correctly ruled in my favor when it found that I had served only 3.86 years by June 2004. The administration neither disputed this finding nor appealed it. However, the circuit court was incorrect when it ruled that I was not entitled to the protection of the contract. The court’s decision amounts to a burden on the faculty to prove that they are entitled to protection under contract law whenever the collective bargaining agreement is violated. The faculty members become entitled to protection under the law and the contract the moment they sign the contract and it was improper of the circuit court to take that protection away from me. It was the responsibility of the circuit court to uphold and enforce the law and it failed to do so.
By the terms of the COHE agreement, the administration was required to notify me of my nonrenewal by December 15, 2003, which they failed to do. Under paragraph 8.6.4, the administration must provide me, at their discretion, with either a term contract or a cash payment. Under the terms of paragraph 8.6.2, the administration was 198 days late notifying me of my nonrenewal (December 15 – June 30). By the formulas set forth in paragraph 8.6.2, the administration must offer me a contract equal to twice the number of days it is late, which is 396 days. However, paragraph 8.6.4 states that I am to be granted no more than one subsequent term contract after being notified and paragraph 8.2 states that term contracts will not exceed one year and are not to overlap two fiscal years. This means that if the administration were to offer me a term contract, it would have had to have been of one year duration and had to have started on July 1, 2004 to prevent it from overlapping two fiscal years.
Under paragraph 8.6.2 of the COHE agreement, the cash payment the administration owed me would be equal to the number of days the administration was late with its notice of nonrenewal (198 days) times 2 times my monthly salary divided by 22. My monthly salary in the semester prior to my notification was $4929.11. Using a 4.5% pay raise allowed for that particular year, the cash payment came out to be $92,716.56. This cash payment was due in July, 2004, assuming the university elected to not offer me the 12-month contract. Adjusting this amount by four years of earned interest at the fair rate of 8% brings this amount to $126,139.86.
By the time I was offered the nine-month contract covering the 2004/2005 academic year, the administration had already passed the deadline to give me either a 12-month contract or the cash payment. Since they had chosen to not give me the 12-month contract, they are now required to give me the cash payment. Therefore, the nine-month contract must be considered to be in addition to the cash payment they were already contractually obligated to give to me. I at no time ever agreed to allow them to substitute the 9-month contract for either the 12-month contract or the cash payment I was guaranteed under the contract.
The circuit court failed to correctly interpret and enforce the appropriate contract law and failed to enforce the collective bargaining agreement and denied me my rights under the law and failure of good faith required by the Uniform Commercial Code.
Grievance 4: That USD failed to fairly and adequately apply the COHE agreement, and in doing so should commence disciplinary actions against Keller.
The purpose of this grievance was not to commence disciplinary action against Keller, but to demonstrate the capricious manner in which the university applies the contract. Even though there was substantial evidence that Keller had violated the civility clause, all charges were dismissed without investigation with the statement that, ‘Faculty cannot initiated disciplinary actions against administration personnel’ (page A-43, paragraph labeled “June 30, 2004 grievance:”). In this way, the university showed they will only apply the contract in a top-down manner and will not allow the faculty any equal protection under the contract. They have shown they will pick and choose who they will apply the civility clause to and when. This action makes the members of the administration immune from being held accountable for any action they may commit and empowers them to act in any manner they want. The faculty is then left with the sole recourse of pursuing lengthy and costly legal actions in the courts. The COHE agreement was meant to provide protection for both sides, but the university has made it so ambiguous that it can now be used against the faculty and with impunity. This is why the U.S. Supreme Court has ruled that vague and overbroad laws and regulations are unconstitutional. A vague policy discourages the exercise of 1st amendment freedoms (See Gaymed v. City of Rockford, 408 U.S. 104, 108-109 (1972)). “[W]here the guarantees of the First Amendment are at stake, the [Supreme] Court applies its vagueness analysis strictly.” Bullfrog Films Inc. v. Wick, 847 F.2d 502, 512 (9th Cir. 1988).
Grievance 5: That I was discriminated against because of my veteran status.
As a veteran, I was guaranteed protection under the law and contract and this protection was violated. By stating they will obey the laws and rights that apply to non-veterans but then failing to obey the laws that apply to veterans they are engaging in unlawful discrimination. Because of my service to the country, the state of South Dakota chose to provide me with protections, including SDCL 3-3-4:
“Restrictions on removal of veteran from employment–Hearing and review–Burden of proof. No person holding a public position by appointment or employment, and belonging to any of the classes of persons to whom a preference is herein granted, shall be removed from such position or employment unless replaced by another person of a class to whom preference is herein granted except for incompetency or misconduct shown after a hearing, upon due notice, upon stated charges, and with the right of such employee or appointee to a review by writ of certiorari. The burden of proving incompetency or misconduct shall rest upon the party alleging the same.”

And, SDCL 3-3-5, which states, “Any person in the public service who shall neglect or refuse to comply with the provisions of this chapter is guilty of a Class 1 misdemeanor.” The university was aware of this law and refused to comply with it. In so doing, they denied me my rights under the law as a veteran and committed a Class 1 misdemeanor.
Unfair Labor Practice #1: That USD committed an unfair labor practice and violated my Constitutional Right of Free Speech under the 1st Amendment by invoking the “civility clause” of the COHE Agreement.
I provided a substantial and detailed prima facie case of how the civility clause is unconstitutional (pages A-29 – 42). This brief includes four cases of similar university speech codes that were all declared unconstitutional by the courts. In fact, I have never found a case where a speech code was allowed by the courts. The U.S. Supreme Court and all lower courts have consistently and repeatedly declared speech codes to be unconstitutional. In particular, R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) is the landmark ruling where the Supreme Court ruled that governments cannot pick and choose which speech they will allow (Transcript pages 12-13).
The university has never rebutted this prima facie case and the state Attorney General’s office has never objected to it. By the rules of summary judgment, the administrative law judge and the circuit court were both required to declare the civility clause unconstitutional and order my reinstatement (Transcript pages 9-16). Instead, the court did not make a ruling on this issue.
Instead, the circuit court found that the university did not violate my free speech rights and my dismissal was justified by Pickering. His argument was that I did not engage in a public debate, therefore I had no protection. However, just because someone does not engage in public debate does not mean they have forfeited their free speech rights. Indeed, the courts clearly state that government employees enjoy all rights they would otherwise enjoy if they were not employees of the government and that the government cannot restrict the employees’ rights anymore than it can of the public in general (Keyishian v. Board of Regents, 345 F.2d 236, 239).
USD and the Board of Regents are attempting to require employees to qualify for their rights. By requiring employees to satisfy the Pickering standards, they are attempting to put employees in the position that they enjoy their constitutional rights only if they take action to earn those rights. This is contrary to the law and makes free speech a privilege, not a right. The rights of the individual are granted by fact of being an American, not because they engage in a public debate.
It is true that the government, as an employer, has a right and an interest in maintaining discipline in the workplace. However, it has been shown, at no time was I disruptive in the workplace, the university never accused me of being so and has never produced any evidence that I was. In the particular instance leading to my dismissal, it is undisputed that I made my statement in the privacy of my own home, on my own time and that it was a private communication. Never has anyone claimed that I made this, or any similar statement, within the work place. In fact, it has been shown that I had no intention of this statement being introduced into the workplace and that this was done by the school administration itself. The record shows that I was, at all times, considered to be an exceptional faculty member prior to my September 2003 grievance and there is no documentary evidence to indicate that I was ever disruptive in the workplace and USD itself has insisted that the action taken against me was not disciplinary.
The court must ask, ‘If I was as disruptive as the university claims, why is there no documentary evidence of this? Why is it that all evidence indicates the exact opposite?’ The only logical answer is that I was not disruptive in the workplace, did not cause harm, and university does not possess any right under Pickering to restrict my free speech.
In the case of Pappas v. Giuliani, No. 00-9487 (2nd Circuit Court of Appeals, May 13, 2002), the courts ruled that Pickering applied, even when the speech occurred within the privacy of the employee’s home if the employer can show they have a vested interest at stake. In this case, Pappas was a New York City policeman that was fired for sending out hate mail consisting of racist and anti-Semitic materials on his own time. Pappas sued that this was a violation of his free speech rights. The Second Circuit court held that Pappas’ actions “potentially interfered with” or “disrupted” the NYPD’s activities, stating, “If the press became aware … of his dissemination of racist diatribes, it would report that this was done by a police officer – not a person … work(ing) on Police Department computers.”
Pappas established two important points pertinent here:
1) The employee must be charged and afforded due process. Neither occurred in my case.
2) The employer must demonstrate the employee’s speech was of such a nature that they did or could reasonably expect to suffer harm as a consequence. No such claim has ever been made in my case. In fact, the idea that an employee doesn’t like his supervisor is not new, unusual, or controversial. It is practically an American tradition. No investigation was ever conducted and no prima facie case has ever been presented to the court that the university would suffer harm if my statement became public knowledge. The proof of this is that the university proceeded to make my statement public knowledge on their own volition, so they must not have felt it would cause them harm. And, there is no evidence that they have suffered any harm due to this statement becoming public knowledge. The university has never satisfied the burden of proof in this regard.
Discontent with the way an educational program is being managed in a publicly-funded university certainly qualifies as a legitimate matter of public concern. “Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.” (Pickering) Likewise, I, as a member of the department, was most likely to have an informed and definite opinion as to the management of the physics program. By Pickering, it is essential that I be able to speak freely on such a question without fear of retaliatory dismissal. This has not happened and the university is claiming they dismissed me in retaliation for my statement, simply because they didn’t like it.
At no time has USD claimed or shown that they suffered any harm as a result of my statement. This is a key point in Pickering. In the event that no harm was done as a result of the statement, the administration has no basis to invoke the Pickering standards and they do not apply. I do not forfeit my 1st and 14th amendment rights by failing to write letters to the local newspaper. I have the right to utter the statement in question while in the privacy of my own home and the university and Board of Regents do not have the right to intrude and control my speech simply because I am a government employee. In Pickering, Justice Thurgood Marshall stated, “The problem is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”
It is undisputed that I did not comment publicly, but the issue of management of a university program certainly qualifies as a matter of public concern. It is also undisputed that there is no claim that the efficiency of the services the university provides have suffered as a result of my comment in the privacy of my own home. Further, Justice Marshall stated, “At the same time it cannot be gainsaid that the State has interests as an employee in regulating the speech of its employees that differ significantly from those it possesses in connection with regulations of the speech of the citizenry in general. Justice Marshall goes on to say,
“Because of the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors, against whom the statements are directed, to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged. However, in the course of evaluating the conflicting claims of First Amendment protection and the need for orderly school administration in the context of this case, we shall indicate some of the general lines along which an analysis of the controlling interests should run.”

USD is making the argument that, since I did not engage in a public debate I am not covered by the Pickering standards and therefore, my speech is not protected. This is a false argument. The Court’s decision in Pickering was not made to limit the free speech rights of government employees, but to protect them in the specific instance of when government employees engage in public debate and to give protection to government employers when employees are disruptive in the workplace. It is undisputed that neither of these instances existed in this situation, (I did not engage in public debate and I was not disruptive in the workplace) therefore Pickering does not apply and the university cannot claim it as a cause for my dismissal.
The effect of their claim and with Judge Jensen’s ruling is to take away all free-speech rights of the faculty. Under his interpretation, faculty no longer have free speech rights, they only have free speech privileges which they must earn by engaging in public debates. According to the circuit court, if they fail to engage in any such debate, the university is free to dismiss them for anything they say, at any time, and any where, including the faculty member’s own home. Judge Jensen was in error in his ruling and failed to obey SDCL 1-1A-3, which requires him to uphold and enforce findings of the U.S. Supreme Court.
Unfair Labor Practice #2: USD committed an unfair labor practice by dismissing me in retaliation for my grievance against Keller. This complaint is substantially the same as Grievance 2 above.
Malice: The university has acted with malice at all times in this matter. Inspection of their briefs (see their Post-Hearing Brief and Respondent’s Reply Brief as examples) shows the university filling their court briefs with unprofessional statements that have no legal value and are only intended for the purpose of libel and character assassination. The university and their counsel have used the legal system as a means to punish me in order to make an example of me for the other faculty to see. In this manner, they have continued to engage in retaliatory actions and are trying to discourage any faculty member from engaging in protected activity.
They have withheld evidence (Transcript pages 6-7) that I have sought with subpoenaes.
When faced with arguments showing their calculation of my years of service was in error, they kept changing the way they calculated it (see the February 22, 2006 Argument in Support of Petitioner, pages 29-30). When each of these was demonstrated to be in error, they merely decided to ignore any complaint, in violation of contract law and the COHE agreement and demonstrating malice on their part by repeatedly working to deny me my rights under the contract.
Their arguments concerning my years of service have been malicious in that they consistently changed their story in order to deny me my rights under the contract. Then, by non-renewing my contract when the contract clearly denies them the authority for faculty with more than four years of service, which they claimed I had, they were denying me the protection the contract provided me. In this way, they have claimed they can ignore the contract and all laws associated with contracts and have done so with malicious intent to deny me my rights.
They have initiated a motion for sanctions for my comments concerning administrative law Judge Bingner (Transcript pages 39-48), even though they have no standing, have not alleged any actions on my part that are in violation of the law, and are only objecting to me quoting his Decision and Order. This action on their part is clearly intended to punish me and has no merit. By applying for sanctions and penalty, they have acted with malicious intent.
The email they received from the Attorney General’s office should have been ignored at worst, and should have been referred back to the sender’s supervisor for action by the Attorney General’s office. Their action to notify my entire administrative chain of supervisors, my immediate supervisors, and the university public safety office demonstrates they intended me harm and acted with malice.

V. Summary and Remedy
Ultimately, we must remember that the reason the university gave to non-renew my contract was because I made a comment they considered rude while in the privacy of my own home and on my own time. They have since that time continuously changed their story after the fact.
The university has consistently placed themselves in the position where their own evidence, statements and arguments are not self-consistent. They claim their action in dismissing me was non-disciplinary, but I was dismissed for the disciplinary reasons of violating Pickering. They now claim I was dismissed for violating Pickering, but all documentation show I was dismissed only for violating the civility clause. They claim that I was disruptive in the workplace, but their own documents instead show I was an excellent faculty member and never disruptive. They say they did not act in retaliation, but their documents show they began retaliatory actions just as soon as I filed my September 2003 grievance and continued until I was dismissed. They say they did not act in retaliation for my engaging in protected activity, but their argument before the administrative judge was that I was fired because I engage in an informal grievance. They say that they apply the COHE agreement fairly and equitably, yet their own document says that the faculty is not allowed to request disciplinary actions, which puts the administrative personnel in a superior position vis-à-vis the faculty. They have claimed that my requests should be denied because I stated at the January 2006 hearing that I believe punishment is part of the judicial process, yet they have consistently used the judicial system to punish me and make an example of me for engaging in protected activity.
At the July 17, 2007 hearing before Judge Jensen, Attorney for the university, Robert Frieberg, said my appeal should be denied because it didn’t have merit. He further stated, “I’m not going to try to answer everything that he said, because it drives me nuts” (Transcript page 56). Mr. Freiberg’s sanity aside, neither of these are legal arguments or legal evidence. And, the fact is, yes he does have to answer all of my points. The university cannot simply wave their hands at the mountain of documents, statements on their part, and court precedents that I have presented to the court and expect it to go away. I have established prima facie cases to support all of my claims. They must now supply legal evidence, court citations, and valid legal arguments to rebut my prima facie cases on the issues before this court. To date, they have failed to do so.
I am requesting the Court to grant me the following relief:

1. Award me the $126,139.86 due to me as a result of the late notice of my non-renewal, as instructed by the COHE agreement.
2. Declare the civility clause of Appendix G to the COHE agreement unconstitutional in violation of the 1st amendment.
3. Declare the grievance process in the COHE agreement to be unconstitutional in violation of the 14th amendment and order that a new grievance process be incorporated into the collective bargaining agreement that guarantees fair and equal treatment for the faculty.
4. Reverse my dismissal and order my immediate reinstatement into my previous position with all the same privileges and equal or superior accommodations in all respects. I am also requesting the court to reinstate me at the level of full professor in that this promotion was unjustly denied me, and to order me to be reinstated with a salary commensurate with the salary I am now receiving in my current employment at the U.S. Coast Guard Academy. I am also requesting the court to order all back deposits be made to my retirement account with the South Dakota Retirement System.
5. Barring reinstatement, I am asking the court to grant me real damages in the form of the present value of all my wages I could have reasonably expected to earn over the rest of my career. Based on my current pay and the value of various benefits, it is conservatively estimated that my current annual income is worth at least $85,000. Using compound interest tables and standard present value tables, it is calculated that this salary, coupled with an annual cost-of-living increase, would have a current value of over $3,000,000, if I worked for the next 25 years, as planned. If the court will not reinstate me as requested, I am asking the court to award me $3,000,000 in lost wages.
6. Award me $2,500,000 in punitive damages for the willfully unlawful and malicious acts of the university which were committed with the intentions of denying me my rights under the law and of violating my civil rights, demonstrating malice at all times.
7. Order James Abbott and the University of South Dakota be charged with a Class 1 misdemeanor for violating SDCL 3-3-4.
8. Order the previously subpoenaed notes of Roberta Hakl to be turned over.
9. Order all previously subpoenaed emails to be turned over to an independent third party for the purpose of determining, at my expense, which emails I am entitled to and if any violations of the law were committed by the university, its employees, or its attorney.

WHEREFORE Christopher Keating prays that the Court herein considers his appeal, reverses the decision of the First Circuit Court, and grants him the requested relief.

Dated this 8th day of April, 2008

Christopher Keating

I certify this brief contains 8078 words and 39,981 characters. This count excludes the table of contents, table of cases, jurisdictional statement, statement of legal issues, any addendum materials, and any certificates of counsel do not count toward the limitations.

Dated this 8th day of April, 2008

Christopher Keating
__________________________________________________________________
CERTIFICATE OF SERVICE
Copies of the above Notice were served by first class mail, postage prepaid, addressed to: Robert B. Frieberg, Frieberg

Dr. Christopher Keating