Petition — Stern v. Shouldice
Supreme Court brief1983
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October Term, 1983
ROBERT STERN,
Petitioner,
VS.
KENNETH SHOULDICE,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Nino E. Green
GREEN, RENNER, WEISSE, RETTIG,
RADEMACHER & CLARK, P.C.
Counsel for Petitioner
Business Address:
225 Ludington Street
Escanaba, Michigan 49829
Telephone: (906) 786-3902
September 9, 1983
—————
am Se TE
RENAISSANCE PRINTING, INC., 76 WEST ADAMS
8TH FLOOR, DETROIT, MICHIGAN 48226 (313) 964-3185
QUESTIONS PRESENTED FOR REVIEW
1. DOES A POST-JUDGMENT MOTION TO AWARD
PRE-JUDGMENT INTEREST ON A CLAIM FOR
LIQUIDATED DAMAGES UNDER 42 USC §1983
TOLL THE TIME FOR FILING NOTICE OF
APPEAL?
2. DOES ACOMPLAINT FOR ‘‘ACTUAL DAMAGES’”’
FOR LOSS OF EMPLOYMENT, BROUGHT UNDER
42 USC §1983, STATE A CLAIM FOR BACK PAY AS
LEGAL DAMAGES?
TABLE OF CONTENTS
PAGE
IS 1
ee 3
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .................
STATEMENT OF THECASE .................
REASONS FOR GRANTING THE WRIT ...... 11
I. A post-judgment motion to award pre-judgment
interest on a claim for liquidated damages under
42 USC §1983 does not toll the time for filing
CE 11
II. A complaint for actual damages for loss of
employment, brought under 42 USC §1983,
states a claim for back pay as legal damages .. . 14
a See chess cess ees ceescee 19
TABLE OF AUTHORITIES
Bituminous Casualty Co v Lynn, (CA6, 1974) 503
PR has ralgt vb Wa ates eee es
Bricklayers’ Penston Trust Fund v Taiartol (CA6,
POT EB POO Ges Rowdee ds sass
Casto v Arkansas-Louistana Gas Co (CA10, 1977)
Poa | | Re hee Oren vere rrts yer
Chicago & Northwestern Railway Co. y Union Packing
Gu(taen, TEM Der cin Nee cava.
Furtado v Bishop (CA1, 1979) 604 F2d80 .......
Heritage Homes of Attleboro, Inc v Seekonk Water
District (C1, 1981) 648 F2d 761 .............
Lodges 743 and 1746, International Association of
Machinists and Aerospace Workers v United Aircraft
Corp (CA2, 1975) 534 F2d 422, 446, fn.42, cert.
A, Se 6 ch her Ree tes oc ek
Lousiana & Arkansas Railway Co v Export Drum Co
(CAS, 1966) 359 F2d 311, 316-317..........
Moore-McCormick Lines vy Amirault (CA1, 1953) 202
PRC Reiko epeeas ask es + ares
Rodgers v United States (1947) 332 US 371, 68 SCT
| LORD Se an aan aie Oni
Royal Indemnity Co v United States (1941) 313 US
289, 61S Ct995, 85 LEd 1361.............
Shirley v Chagrin Falls Exempted Village Schools Board
of Education (CA6, 1976) 521 F2d 1329, 1334,
Gh, Be, Cao 5 oo aks Sak ce ede eiales
White v New Hampshire Department of Employment
Security (1982) 455 US 445, 102 S Ct 1162, 71
Pe Sa ern) eer eee ree
PAGE
16
14
PAGE
U.S. Gonst., Amendment! ................. 3
U.S. Const., Amendment XIV .............. 3
PME MME MDD he seach an Sis. s 00% bw esa web +
SRO oy: a pean ke can sas he bv is 3, 11, 14
PEs uae eco tee eens caus So weKcers $3, 15, 27
Rule 17, Rules of the Supreme Court.......... 18
cece ae. 4 SS ie poe cer ene eee 11
EOE S hf one Bs 5 Sanat aap Vana es 11
Fe eg ED EEN Ls Shee el 14
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
The Petitioner, Robert Stern, respectfully prays that a Writ
of Certiorari issue to review the Judgment and Opinion of the
United States Court of Appeals for the Sixth Circuit entered
in this cause on April 15, 1983.
OPINIONS BELOW
The Opinion of the Court of Appeals, reported at 706 F2d
742, appears in the Appendix to this Petition. Also appearing
in the Appendix are the following:
1. District Court Opinion on Motion for Summary
Judgment granting summary judgment to Defendants with
respect to Plaintiff's procedural due process claims, deny-
ing summary judgment to Defendants with respect to
Plaintiff's First Amendment claims, and granting Defen-
dant’s Motion to Compel Withdrawal of Plaintiff's
Counsel, entered February 1, 1977;
2. District Court Opinion as to Plaintiff's entitlement to
jury trial, entered August 29, 1977;
3. District Court Opinion on Motions for New Trial/
JNOV, granting Defendants’ motion for a new trial,
entered June 16, 1978;
4. District Court Opinion denying Plaintiffs Motion to
Add Parties Defendant, awarding back pay against the in-
dividual Defendants in their individual capacities, and
dismissing Plaintiffs Complaint as to Defendant Lake
Superior State College, entered September 19, 1980;
5. District Court Judgment entered September 23,
1980;
6. District Court Opinion on Motions, denying Defen-
dants’ Motion to Amend Judgment to Eliminate Back Pay,
Granting Plaintiffs Motion for Attorney Fees, Costs and
Pre-Judgment Interest, and denying Defendant Lake
Superior State College’s Motion for Costs and Attorney
Fees, entered January 15, 1981;
7. District Court amended Judgment entered Febru-
ary 12, 1981;
8. Court of Appeals Order denying Plaintiff's Motion to
Dismiss Defendants’ Appeal, entered July 15, 1981;
9. Court of Appeals Order granting Plaintiffs Motion
to Dismiss Defendants’ Appeal, entered November 5,
1982;
10. Court of Appeals Order granting Defendants’ Mo-
tion for Permission to File a Petition for Rehearing in Ex-
cess of 15 Pages, entered January 20, 1983;
11. Court of Appeals Order granting Defendants’ Peti-
tion for Rehearing, entered March 25, 1983;
12. Court of Appeals Order vacating its November 5,
1982 Order Dismissing Defendants’ Appeal, entered
March 25, 1983;
13. Court of Appeals Opinion affirming in part and
reversing in part the judgment of the District Court,
entered April 15, 1983;
14. Court of Appeals Judgment entered April 15, 1983;
and
15. Court of Appeals Order denying Plaintiffs Petition
for Rehearing, entered June 20, 1983
JURISDICTION
The judgment of the Court of Appeals for the Sixth Circuit
was entered on April 15, 1983. A timely Petition for Rehear-
ing was denied on June 20, 1983. This Petition for a Writ of
Certiorari is filed within 90 days of June 20, 1983; and the
jurisdiction of the Supreme Court of the United States is in-
voked under 28 USC §1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
‘‘Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances.’’ U.S. Const,
Amendment I.
‘*All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection
of the laws.’’ U.S. Const, Amendment XIV, Section 1.
‘Every person who, under color of any statute, or-
dinance, regulation, custom, or usage, of any State or
Territory, subjects, or causes to be subjected, any citizen
of the United States or other person within the jurisdic-
tion thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress.’’ 42 USC
§1983.
STATEMENT OF THE CASE
By Complaint filed in the United States District Court for
the Western District of Michigan, Northern Division, Plain-
tiff alleged that the termination of his employment in conse-
quence of the failure of the Defendants to recommend and
grant tenure was in retaliation for his exercise of First Amend-
ment rights. Plaintiff also alleged that the manner of his ter-
mination constituted a denial of his right to due process.
Plaintiff's Complaint stated the following prayer for relief:
WHEREFORE, the Plaintiff prays:
(a) That a Judgment be entered ordering the Defen-
dants, THE BOARD and THE COLLEGE to reinstate
STERN, at least pending an administrative hearing,
with retroactive pay at the rate that others with similar
education, experience and responsibilities would have
received at THE COLLEGE and prorated for the period
of wrongful termination (since June 30, 1972).
(b) That a Judgment be entered against the Defendants,
THE BOARD and KENNETH SHOULDICE as an
individual, jointly and severally, for $500,000.00 actual
damages, plus attorney fees, and court costs.
(c) That a Judgment be entered against the Defendants
SHOULDICE and LINDEROTH, as individuals,
jointly and severally, for $100,000.00 punitive ex-
emplary damages.
(d) That the Court order such other and further relief as
is agreeable with equity and good conscience.
On January 31, 1977, the District Court entered its Opin-
ion granting the Defendants’ Motion for Summary Judgment
in relation to Plaintiff's due process claim, but denying Defen-
dants’ motion as to Plaintiff's First Amendment claim. In that
same Opinion, the District Court granted the Defendants’
Motion to Compel the Withdrawal of Plaintiffs Counsel.
Noting that Plaintiff had filed a timely demand for jury trial,
the District Court directed counsel to submit memoranda ad-
dressed to the issue of whether Plaintiff was entitled to a jury
trial on the issues that remained.
On August 29, 1977, the District Court issued its Opinion
ordering that a jury be empaneled for the trial of this cause.
On September 16, 1977, following four days of trial, a jury
verdict was returned in Plaintiff's favor for reinstatement with
back pay in the amount of $50,155.32 against Defendant Lake
Superior State College, and for punitive damages of $1,000
each against the individual Defendants, Shouldice and
Linderoth. On June 16, 1978, the District Court entered its
Opinion denying Defendant's Motion tor Judgment Not-
withstanding the Verdict, but granting Defendants’ Motion
for a New Trial, for the reason that: ‘‘The verdict, however,
was against the weight of the evidence, the damages awarded
were excessive, and the circumstances indicate that the jury
acted under a misapprehension of the law or in disregard of
the Court’s instructions.”’
After a second jury had been empaneled, Defendants’
counsel raised, for the first time, the defense of Eleventh
Amendment immunity and moved the District Court to
dismiss Plaintiffs Complaint as to Lake Superior State Col-
lege. In response to this motion, Plaintiff's counsel proposed
the following:
So what I would propose is that the trial court proceed,
that the jury be allowed to determine liability in relation
to the individual Defendants, and that the liability of the
Defendant college be left for determination by the Court
after a subsequent record can be made as to the nature of
the entity with which we are dealing, and as to — so that
we can deal with the question of whether or not the entity
can appropriately claim Eleventh Amendment immunity.
Now in conjunction with that suggestion, I would further
suggest that no question of back pay be submitted to the
jury, based upon the decision of the Court granting
Defendant’s motion for a new trial after the conclusion of
the last trial. I came to Court assuming that the question
of back pay would be submitted to the Court, and based
upon discussions with the Court prior to the time we
commenced the trial, it was my understanding that the
question of back pay would be decided by the Court upon
a record made subsequent to the jury’s return of a verdict
in relation to the individual Defendants, if indeed they
found those Defendants liable. If the jury in fact finds the
Plaintiff's First Amendment rights were not violated,
there would be no need for this Court to entertain any
future questions, I would presume. If they find that the
Plaintiff's First Amendment rights were violated, they
may then assess damages in accordance with the Court’s
instructions in relation to the individual defendants, and
I would ask the Court to subsequently entertain the ques-
tion of back pay in the — and reinstatement in the con-
text of the record that I feel needs to be made as a
minimal effort to appropriately resolve the question of
Eleventh Amendment immunity that was raised during
this trial.
Additionally, the last jury verdict was set aside in part,
and I think in large part, because of this Court’s
dissatisfaction with the way the jury treated the matter.
Indeed the Court gleaned from the nature of the verdict
awarded by the jury, some confusion as to their role and
the meaning of the Court’s instructions, and I would
wish to do everything possible to avoid injecting any such
confusion into these proceedings that very well could lead
us into the necessity of trying this case yet a third time,
and so I would just assume no question, not even in
advisory capacity to the jury, and in order to make their
task as easy as possible, and to the extent that the Plain-
tiffs request or demand for jury is addressed in this cause
to the question of reinstatement and back pay, I would
hereby withdraw the request for a jury trial to that ex-
tent, and ask that on the question of a nominal, actual or
compensatory, on [sic] punitive damages, as to the indi-
vidual Defendants be submitted to the jury. Indeed, I
can’t see how the Defendants can complain of the with-
drawal of the issue of reinstatement or back pay from the
jury, since it has stedfastly [sic] and consistently and
repeatedly throughout these proceedings opposed all of
the Plaintiff's requests for submission of questions to the
jury, and has never entered a demand for jury trial. As I
say, the Plaintiff's [sic] posture has throughout this pro-
ceeding been open opposition to submission of any ques-
tion to the jury, so I don’t see how the Defendant can
complain if we now demand a nonjury trial as it affects
the question of reinstatement and back pay.
Indeed, by withdrawing the back pay and reinstatement
from the jury, that would allow this Court upon whatever
supplemental record is necessary or appropriate, to
decide those issues, together with the issue of immunity,
once we know the nature of the entity involved, and that
basically is the position of the Plaintiff, and the reasons
we have asserted in support of that position.
(Reporter’s transcript, pp 1655-57)
Defendants’ counsel responded to this proposal, in perti-
nent part, as follows:
If they think that the college should pay damages, that’s a
finding of fact, and the other side of the coin, that
Linderoth and Schouldice were not acting individually.
Okay. Then I think if the Court is disposed to hold to it
the question of back pay, then I think the jury ought to be
told that the question of back pay will be decided by the
Court after their decision is made, and they should
recognize, if they are finding compensatory, nominal or
punitive damages, that the Court may, and it will, decide
what award to the Plaintiff will be given on the basis of
any pay that may be due him. I don’t think the jury
should have a shot at considering its determination of
how much damages on the basis of, ‘‘Well, he was earn-
ing $12,000 a year, and he has been out of work ten
years, we ought to give him 12 time 10, and we'll just call
it nominal or compensatory damages or punitive
damages.”’
(Reporter's transcript, pp 1665-66)
During the discussion of instructions prior to submission of
the case to the jury, the trial judge advised counsel as follows:
Now as to the jury verdict form number two, which had
been agreed, and I do believe that it is the responsibility
of the Court to consider what damages if any, by way of,
quote, back pay, unquote, there are to be assessed
against the college and the other Defendants — and/or
the other Defendant, that the traditional, common law
concept of damages is stated properly in the instructions.
I’ve heard no complaint from anybody about it, and that
of course is the subject of jury verdict form number two.
(Reporter’s transcript, p 2004)
The trial judge then proceeded to instruct the jury, in perti-
nent part, as follows:
You should include each of the following elements of
damage for which you decide the Plaintiff should be com-
pensated. Expenses of seeking other employment, stress,
embarrassment and mental anguish, injury to profes-
sional reputation.
(Reporter's transcript, p 2036)
The trial judge also charged the jury ‘‘that reinstatement of
plaintiff to his former position, award of back pay, attorney’s
fees and costs of bringing this suit are matters which the Court
will resolve at a future time and you are not to be concerned
with them in determining the amount of any damages which
you may award.”’
(Reporter’s transcript, p 2037)
On December 14, 1979, at the conclusion of a 14 day trial,
the jury awarded the Plaintiff nominal damages in the amount
of two dollars against Defendant Linderoth and one dollar
against Defendant Shouldice.
On September 19, 1980, the District Court entered its Opin-
ion granting the motion to dismiss Plaintiff's Complaint as to
Defendant Lake Superior State College on the ground of
Eleventh Amendment immunity and denying Plaintiff's mo-
tion to amend his Complaint to add the individual members of
the college’s Board of Control as parties Defendant for the
purpose of enabling the District Court to grant relief by way of
reinstatement. In its Opinion, the District Court also deter-
mined that back pay be awarded as damages against the in-
dividual Defendants in the amount of $45,696.
On September 23, 1980, judgment was entered in the
District Court for the nominal damages found by the jury and
the back pay awarded as damages by the District Court.
Defendants Shouldice and Linderoth thereafter moved to
amend the judgment so as to eliminate the District Court’s
award of back pay as damages; and Defendant Lake Superior
State College moved for an award of costs and attorney’s fees
against the Plaintiff. The Plaintiff moved for an amended
judgment allowing him to recover costs, pre-judgment in-
terest, and attorney fees. In an Opinion and Order dated
January 14 and filed January 15, 1981, the District Court
denied all of the Defendants’ motions and granted Plaintiff's
10
motion; and on February 12, 1981, an amended judgment
was entered in the District Court awarding Plaintiff $20,360
in attorney fees, $2,798.55 as other costs, and $15,585.22 as
pre-judgment interest, in addition to the damages previously
awarded.
Defendants Shouldice and Linderoth filed their Notice
of Appeal in the United States Court of Appeals for the Sixth
Circuit on March 6, 1981; and Plaintiff moved to dismiss their
appeal for lack of jurisdiction because of untimely filing.
On July 15, 1981, Plaintiff's Motion to Dismiss was denied
upon an initial determination ‘‘that the motion to dismiss is
frivolous and entirely without merit.’ On November 5, 1982,
following consideration of Plaintiffs motion by the Court
of Appeals panel assigned to the cause, the motion was
granted and the appeal was dismissed. On January 20, 1983,
the Court of Appeals granted permission to the Defendants to
file a Petition for Rehearing in Excess of 15 Pages; and on
March 25, 1983, the Court of Appeals entered orders gran-
ting Defendant’s Petition for Rehearing and vacating its order
dismissing the appeal as being untimely filed.
On April 15, 1983, the Court of Appeals entered its Opi-
nion holding that Defendants’ Notice of Appeal was timely
filed, reversing the District Court’s award of damages and
pre-judgment interest, and affirming the District Court’s
award of attorney fees and costs. Its judgment was entered on
April 15, 1983; and on June 20, 1983, the Court of Appeals
denied Plaintiff's Petition for Rehearing.
11
REASONS FOR GRANTING THE WRIT
I. A Post-Judgment Motion to Award Pre-Judg-
ment Interest On a Claim For Liquidated
Damages Under 42 USC §1983 Does Not
Toll the Time For Filing Notice of Appeal
In Royal Indemnity Co v United States, (1941) 313 US 289, 61
S Ct 995, 85 L Ed 1361, the Supreme Court held that where
no federal statute applies to a claim for pre-judgment interest
in an action for money damages, ‘‘it is for the federal courts to
determine, according to their own criteria, the appropriate
measure of damage.’’ 313 US at 296. The Court determined:
‘*A suit upon a contractual obligation to pay money at a fixed
or ascertainable time is a suit to recover damage for its breach,
including both the principal amount and interest by way of
damage for delay in payment of the principal after the due
date.’’ 313 US at 295-96.
In Rodgers v United States, (1947) 332 US 371, 68S Ct5,92L
Ed 3, the Supreme Court found that the Agricultural Adjust-
ment Act of 1938, 7 USC §§1981, et seg., neither allowed nor
prohibited pre-judgment interest upon the award of a penalty.
The Court wrote: ‘‘***[O]ne for whose financial advantage
an obligation was assumed or imposed, and who has suffered
actual money damages by another’s breach of that obligation,
should be fairly compensated for the loss thereby sustained.’’
332 US at 373. The Court rejected the suggestion that 28
USC §811, the statutory predecessor of 28 USC §1961,
foreclosed an award of pre-judgment interest by providing on-
ly for interest after judgment. This rule has been followed with
regard to 23 USC §1961. Casto v Arkansas-Loutsiana Gas Co,
(CA 10, 1977) 562 F2d 622, 624; Lodges 743 and 1746, Interna-
tional Association of Machinists and Aerospace Workers vy United Air-
craft Corp, (CA2, 1975) 534 F2d 422, 446, fn.42, cert. den., 429
US 825; Loutstana & Arkansas Railway Co v Export Drum Co,
12
(CA5, 1966) 359 F2d 311, 316-317; Moore-McCormick Lines v
Amurault, (CA1, 1953) 202 F2d 893,895.
Consistent with this authority, the Sixth Circuit Court of
Appeals held, in Bituminous Casualty Corp v Lynn, (CA6, 1974)
503 F2d 636 645: ‘‘The general rule is that interest, at the
legal rate, runs as a matter of right on a liquidated claim.”’
The Court went on to state: ‘‘When the amount of the claim
can be readily ascertained by reference to a formula in a con-
tract and none of the facts is in dispute or when the amount of
the claim itself is not disputed, the claim is liquidated.’’ 503
F2d at 646.
The First Circuit has allowed pre-judgment claims upon
damages awarded under 42 USC §1983, but has treated the
allowance of such interest as discretionary. Heritage Homes of
Attleboro, Inc v Seekonk Water District, (CA1, 1981) 648 F2d 761,
vac’d on other grounds, 454 US 807. See, also, Furtado v Bishop,
(CA1, 1979) 604 F2d 80. In these cases, the First Circuit did
not consider the distinction between liquidated and unlli-
quidated claims.
Subsequently, the Sixth Circuit, too, characterized pre-
judgment interest in the absence of statutory authority as
discretionary without addressing the distinction between li-
quidated and unliquidated claims. Bricklayers’ Pension Trust
Fund v Taiariol, (CA6, 1982) 671 F2d 988, 990.
Following the entry of judgment in the District Court in the
instant cause on September 23, 1980, Plaintiff moved for at-
torney fees, costs and pre-judgment interest. His motion was
granted by an order entered January 15, 1981. An amended
judgment was entered on February 12, 1981; and Defendants
filed their Notice of Appeal in the United States Court of Ap-
peals for the Sixth Circuit on March 6, 1981, more than 30
days following entry of the District Court’s original judgment,
but less than 30 days from entry of the amended judgment.
13
Plaintiff's motion to dismiss Defendants’ appeal as untime-
ly was initially determined to be ‘‘frivolous and entirely
without merit,’’ and was denied by order entered July 15,
1981; but by order dated November 5, 1982, following con-
sideration by the panel to whom the appeal was assigned,
Plaintiff's motion was granted and Defendnts’ appeal was
dismissed. However, after granting rehearing to the Defen-
dants, the Court of Appeals vacated its Novembr 2, 1982,
order and, in its subsequent Opinion, entered April 15, 1983,
held that Defendants’ Notice of Appeal was timely filed. 706
F2d at 746-47 The Court wrote:
Though Stern’s argument is not without force, we must
reject it. This court recently held in Bricklayers’ Pension
Trust Fund v Taiariol, 671 F.2d 988, 990 (6th Cir. 1982),
that ‘‘in the absence of a statutory provision the award of
pre-judgment interest is in the discretion of the court.’’
As a result, whether or not a claim is liquidated is in-
consequential. Moreover, even were the liquidated:
unliquidated distinction applicable, the Tazario/ case in-
volved a plaintiff's liquidated claim for money contrac-
tually owed to a pension fund. In light of this court’s
more recent authority, we hold that a grant of pre-
judgment interest pursuant to a post-trial motion is
discretionary with the trial court and requires an amend-
ment of judgment under FRCP 59. See Chicago & North-
western Railway Co. v Union Packing Co. , 527 F.2d 592 (8th
Cir. 1976). Since defendants filed their notice of appeal
within thirty days after entry of the amended judgment,
this appeal is timely.
706 F2d at 747
A review of the authority cited herein, together with a
review of the decisions of the Sixth Circuit Court of Appeals,
discloses the existence of an important federal question which
has not, but should be, settled by the Supreme Court: whether
14
pre-judgment interest on a claim for liquidated damages
under 42 USC §1983 should be awarded as a matter of right.
A similar, but different question, was decided in White v New
Hampshire Department of Employment Security, (1982) 455 US
445, 102 S Ct 1162, 71 L Ed 2d 325.
At the outset it should be noted that the District Court
determined Plaintiff's claim for back pay to be a liquidated
claim; and that determination was not challenged on appeal.
Plaintiff's request for interest was not addressed to his “laims
for nominal, compensatory or punitive damages, nor were
compensatory or punitive damages awarded. Thus, the
District Court’s award of pre-judgment interest was on a
claim for liquidated damages under 42 USC §1983.
The Supreme Court is urged to grant certiorari to deter-
mine whether pre-judgment interest on liquidated damage
claims under 42 USC §1985 should be awarded as a matter of
right on the basis of federal policy of general application or
whether the award of such interest is within the discretion of
the District Court on an ad hoc basis. If pre-judgment interest
is available under FRCP 60(a), as claimed by Plaintiff, the
Defendants’ appeal to the Court of Appeals was untimely and
should have been dismissed.
II. A Complaint For Actual Damages For Loss
of Employment, Brought Under 42 USC
§1983, States a Claim For Back Pay As Legal
Damages
Following the second trial of this cause, the District Court
entered judgment upon a jury verdict in Plaintiff's favor for
nominal damages of two dollars against Defendant Linderoth
and one dollar against Defendant Shouldice. The District
Court’s judgment also assessed $45,696, representing back
pay as damages against these Defendants in their individual
15
capacities, and subsequently awarded $15,585.22 as pre-
judgment interest on the back pay award, together with
$20,360 in attorney fees and $2,798.55 as other costs.
By its decision of April 15, 1983, the United States Court of
Appeals for the Sixth Circuit reversed the trial court as to the
award of back pay as damages and pre-judgment interest. In
doing so, the Court of Appeals wrote: ‘‘A fair reading of
Stern’s complaint discloses that he demanded back pay only
from the College. While the term ‘back pay’ appears in the
prayer for relief against the College, it does not appear in the
claim for compensatory and punitive damages against
Shouldice and Linderoth.’’ 706 F2d at 750.
In fact, the term ‘‘back pay’’ does not even appear in the
prayer for relief set out in Plaintiffs Complaint. Rather,
Plaintiff sought reinstatement with ‘‘retroactive pay’’ in rela-
tion to the Defendant College.
While it was accurate for the Court of Appeals to observe
that the term ‘‘back pay’’ does not appear in the prayer for
relief by way of compensatory and punitive damages against
Defendants Shouldice and Linderoth, the Court of Appeals
failed to consider the language of the second paragraph of
Plaintiff's prayer: ‘‘(b) That a Judgment be entered against
the Defendants, THE BOARD and KENNETH
SHOULDICE as an individual, jointly and severally, for
$500,000.00 actual damages, plus attorney fees, and court costs.’’
[emphasis supplied] It then went on to write: ‘‘Actual
damages were limited at trial to claims for expenses of seeking
other employment, injury to professional reputation, stress,
embarrassment and mental anguish.’’ 706 F2d at 750.
In so stating, the Court of Appeals ignored the explicit
meaning of statements made by Defendants’ counsel and the
District Court acknowledging Plaintiffs claim for back pay to
include legal damages against the individual Defendants.
16
Thus, in response to Plaintiff's request to reserve ‘‘back pay’”’
as ancillary to the equitable relief of reinstatement for deter-
mination by the District Court, Defendants’ counsel respond-
ed by urging the Court to withhold from the jury any con-
sideration of back pay as damages. Defendants’ counsel
recognized that if the trial court were to reserve to itself the
question of back pay only in relation to Plaintiff's request for
equitable relief, while allowing the jury to consider back pay
as legal damages against the individual Defendants, a double
recovery might occur. In such event, it might be impossible to
separate from the jury’s award of legal damages that portion
representing back pay. Thus, the District Court was properly
persuaded by Defendants’ counsel that ‘‘*** it is the respon-
sibility of the Court to consider what damages if any, by way
of quote, back pay, unquote, there are to be assessed against
the college and the other Defendants — and/or the other
Defendant, that the traditional, common law concept of
damages is stated properly in the instructions.’’ It was with
this mutual understanding that the Court proceeded to in-
struct the jury that their consideration of damages should
focus only upon the expense of seeking other employment,
stress, embarrassment, mental anguish, and injury to profes-
sional reputation.
Although back pay sought in conjunction with reinstate-
ment is considered part of a total, equitable remedy, back pay
sought from school officials in their individual capacities is
legal in nature ‘‘whether it is styled as such or not.’’ Shirley v
Chagrin Falls Exempted Village Schools Board of Education, (CA 6,
1976) 521 F2d 1329, 1334, cert. den. 424 US 913.
The second paragraph of the prayer for relief in Plaintiff's
Complaint seeking ‘‘actual damages’’ from Defendant
Shouldice was obviously sufficient in both style and substance
to include and to notify the Defendant of the inclusion of back
pay as an element of legal damages. Indeed, after two trials, it
17
was acknowledged by counsel for the Defendants and the Dis-
trict Court that back pay as an element of legal damages was
to be decided by the Court.
The Court of Appeals’ suggestion that comments made by
Plaintiff's counsel ‘‘demonstrate that Plaintiff was seeking
back pay solely against the College,’’ and that the ‘‘clear in-
ference from this proposal is that a claim for back pay against
the individual Defendants was not in the case,’’ 706 F2d at
751, is inaccurate and unjustified. Plaintiff's suggestion that
the District Court, and not the jury, determine back pay in
conjunction with the equitable relief of reinstatement was not
an election of remedies. That the District Court also withhold
from the jury the question of back pay as legal damages was a
suggestion adopted at the urging of Defendants’ counsel.
The misinterpretation of fact and consequent misapplica-
tion of law reflected in the decision of the Court of Appeals
arises in consequence of its consideration of an issue that was
never properly raised. The District Court had properly re-
jected a post-trial argument that Defendants were denied their
right to trial by jury on Plaintiff's legal damage claim. The
argument was rejected for the reason that Defendants had
never requested a jury trial and had opposed Plaintiffs re-
quest in relation to each and every issue raised. Furthermore,
Defendants had stipulated that all questions concerning Plain-
tiffs entitlement to back pay, whether as equitable or legal
relief, be determined by the District Court.
It is not without significance that the question of Eleventh
Amendment immunity was raised by Defendant Lake Superior
State College after the second trial of this cause had com-
menced, This circumstance prompted Plaintiff's counsel to
urge the District Court to reserve its decision on this belatedly
raised issue until after the jury returned a verdict. It was in
this context that Plaintiff's counsel also requested the District
18
Court to reserve any questions as to what relief, if any, should
be awarded against the Defendant College.
This case has now been in litigation for more than a decade.
Both in 1977, after three days of trial, and in 1979, after 14
days of trial, juries found the facts to be as claimed by the
Plaintiff. The legal validity of those claims has been upheld by
numerous rulings in the District Court and, in major mea-
sure, by the Court of Appeals. Because of an ‘‘inference’’
drawn by the Court of Appeals from the words of Plaintiff's
counsel, the Court of Appeals withdrew from Plaintiff the ma-
jor portion of the relief that was won by his protracted and
costly effort. An inference of such damning consequence
should be based upon only the most compelling circum-
stances, and only after examining those circumstances in the
full context of the situation in which they arise.
It is urged that it is a grievous miscarriage of justice to deny
the relief awarded to Plaintiff in the District Court. It is urged
that the Court of Appeals ‘‘has so far departed from the ac-
cepted and usual course of judicial proceeding* ** as to call for
an exercise of this Court’s power of supervision.’’ Rule 17,
Rules of the Supreme Court.
The Court of Appeals may have been correct in its reading
of Plaintiff's Complaint as to Linderoth. It was clearly
mistaken as to Plaintiff's claim against Shouldice, as
demonstrated by the clear language of the second paragraph
of his prayer for relief and the unequivocal acknowledgments
made by counsel and the trial judge in the District Court.
19
CONCLUSION
For the reasons stated herein, a Writ of Certiorari should
issue to review the decision of the United States Court of Ap-
peals for the Sixth Circuit in this cause.
Respectfully submitted,
Nino E. Green
GREEN, RENNER, WEISSE, RETTIG,
RADEMACHER & CLark, P.C.
Counsel for Petitioner
Business Address:
225 Ludington Street
Escanaba, Michigan 49829
Phone: (906) 786-3902
September 9, 1983
APPENDIX
la
Opinion on Motion for Summary Judgment
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
RoBERT STERN,
Plaintiff,
VS. No. M 43-73 CA 3
KENNETH SHOULDICE, et al,
Defendants.
OPINION ON MOTION FOR
SUMMARY JUDGMENT
This action is yet another of the type now commonly referred
to as Roth-Sindermann cases. See Board of Regents of State Colleges v
Roth, 408 U.S. 564 (1972); Perry v Sindermann, 408 U.S. 593
(1972). Plaintiff, a former teacher at Lake Superior State Col-
lege (hereinafter ‘‘LSSC’’), claims that defendants’ non-
renewal of his employment contract violated his constitutional
rights under the Fourteenth Amendment. 42 U.S.C. §§1983,
1985; 28 U.S.C. §§1331, 1343(3). More specifically, plaintiff
contends that his termination was in retaliation for the exer-
cise of his First Amendment rights.' He also challenges the
procedural aspects of his termination, claiming that he was
entitled to a hearing ‘‘to prove the legitimacy of his claim to
entitlement in light of the policies and practices of the institu-
tion where he had taught’? (Complaint, 419),? and ‘‘to
challenge the sufficiency of the grounds for his nonretention”’
(Complaint, $20). An additional generalized allegation
asserts that plaintiff was ‘‘not otherwise afforded due process,
2a
as a matter of fact, prior to being fired’’ (Complaint, €21)', in-
cluding the opportunity to confront the witnesses against him
and to cross-examine them under oath, or to present witnesses
on his own behalf.*
Plaintiff seeks reinstatement with back pay for the period of
wrongful termination, pending an administrative hearing,
along with compensatory and punitive damages.
Defendants here are the president of LSSC, the chairman
of LSSC’s Board of Control, the chairman of the English
Department at LSSC (plaintiffs most immediate superior),
and LSSC itself, a state-supported institution of higher educa-
tion. They are sued in both their individual and official
capacities.
Defendants originally filed a motion to dismiss (for failure
to state a claim upon which relief can be granted, F.R.Civ.P.
12(b)(6)) or in the alternative for summary judgment
(F.R.Civ.P. 56). That motion was denied in its entirety by
then-District Judge Engel (predecessor of the writer). After
extensive discovery, defendants have renewed their summary
judgment motion. This Court has held a hearing on this mo-
tion, and, having heard the arguments of counsel thereon and
having duly considered the pleadings and other documents fil-
ed in this case, hereby announces its decision.
I
PROCEDURAL DUE PROCESS
Plaintiff claims that he was denied procedural due process
in that he was not provided with a hearing prior to the defen-
dants’ action in not renewing his employment. The Fourteenth
Amendment's requirements of procedural due process apply
only to the deprivation of ‘‘liberty’’ and ‘‘property”’ interests.
Board of Regents of State Colleges v Roth, 408 U.S. 564, 569 (1972).
3a
A. Facts.
The following are the undisputed facts appearing in the
record.
Plaintiff, a teacher of speech, drama and theater, was
recruited by LSSC while on the instructional staff of Michigan
State University in the spring of 1967. He was hired as an
assistant professor without tenure by separate one-year ap-
pointments for the academic years of 1967-1968, 1968-1969,
1969-1970, 1970-1971, and 1971-1972.
Under LSSC procedures, an assistant professor is automat-
ically granted tenure if reappointed after 5 years of service.
Notice of termination must be given in writing before Decem-
ber 15 of the last academic year of employment.
Dr. ' inderoth (now Chairman of the English Dept., former-
ly Chairman of the Division of Arts and Letters) wrote plain-
tiffon May 6, 1971 that he was unwilling to recommend Stern
for tenure for specified reasons (primarily an inability to work
with other faculty and administrative members in view of a
planned liberal arts multi-disciplinary synthesis requiring
much cooperation). Linderoth, on the same day, notified Dr.
Light (Vice-President for Academic Affairs) of his recommen-
dation concerning Stern.
On the next day, May 7, Light offered plaintiff the oppor-
tunity to personally discuss Linderoth’s recommendation. By
letter of May 10, plaintiff requested an explanation of reasons
for Linderoth’s recommendation. Three days later (May 13),
Light wrote a memo confirming a phone call to Stern re-
questing that he bring to the meeting or present subsequent to
it any evidence of personal capability (transcripts and status of
his doctoral program), and offering plaintiff the option of
bringing along a neutral observer.
4a
After the May 13, 1971 meeting, Light wrote Dr. Shouldice
(LSSC President) that plaintiff felt it difficult to submit any in-
formation until he had a more detailed list of charges from
Linderoth. The latter argreed to provide such, but then plain-
tiff indicated that he preferred not to respond to that list
because he felt it would compromise his case to divulge data
that he planned to present before he had an opportunity to be
heard before an impartial hearing body. Plaintiff requested a
hearing before the Tenure Committee, and Light again re-
quested Stern to supply any current information to aid Light
in his recommendation to Shouldice. By letter of May 17 to
Shouldice, Light concurred in Linderoth’s recommendation
to deny tenure to Stern. Linderoth, on May 17, wrote his pro-
mised clarification oi his original letter to plaintiff. On
May 18, in a letter to Shouldice, Light again concurred in
Linderoth’s recommendation.
Plaintiff was notified on May 19 by Shouldice that the
Tenure Committee was being asked to meet in ad hoc capacity
to review plaintiff's case (even though the Tenure Committee
usually reviews only matters affecting the status of tenured
faculty), and Shouldice promised to withhold further action
on his decision until receiving the Commnittee’s report. The
Tenure Committee hearing was held on May 24, 1971, and
by letter of June 3, 1971, the Committee concluded that
‘‘there is an irrevocable conflict between Division Chairman
Linderoth and Professor Stern; and the reasons given for Pro-
fessor Stern’s non-reappointment have not been wholly
refuted.”’
One June 11, Shouldice advised plaintiff of his decision not
to recommend him for tenure, which also meant that his
employment would terminate at the end of the 1971-1972
academic year. Plaintiff sent Shouldice a letter on June 17 re-
questing further clarification of the latter’s June 11 letter.
Shouldice responded on June 22 and again on July 15.
5a
At its August 13, 1971 meeting, the Board of Control of
LSSC considered the change of status recommendation re-
garding Stern and approved the action recommended. On
September 16, plaintiff and his attorney requested of
Shouldice an opportunity to make a presentation to the Board
of Control pursuant to Article I, Section 1.11 of the Board’s
Bylaws and Statutes. Plaintiff on October 4 requested an op-
portunity to make a presentation at the October 15 meeting.
Shouldice advised plaintiff's attorney on October 9 that the
Boerd’s Bylaws required such material to be submitted at least
10 day* in advance of a regular meeting.
On Ovtober 12, plaintiff's attorney wrote to the Chairman
of the Board of Control seeking to make a presentation to the
October 15 Board meeting. The Board Chairman asked plain-
tiff's attorney to follow the Board’s established procedures for
presentation of material to the Board, which the attorney then
agreed to do.
Plaintiff submitted a written document to the Board on
November 5, in anticipation of their scheduled meeting for
November 19. A revised version was submitted on Novem-
ber 13, entitled ‘‘Should the Board of Control of LSSC
Modify the Decision to Fire Robert Stern.’’ It consisted of 10
pages of text and 28 pages of exhibits. The minutes of the
November 19 Board meeting reflect that plaintiffs attorney
declined an opportunity to present any additional informa-
tion. Mr. Clevenger, attorney for the Board of Control, was
asked to explain the procedures involved, and he presented a
chronology of events roughly corresponding to the above
recitation. The Board then voted to reaffirm its previous
(August 15, 1971) action in this matter.
B. Property
Roth contains an extensive discussion of the ‘‘property’’
concept.
6a
‘*The Fourteenth Amendment’s procedural protection
of property is a safeguard of the security of interests that a
person has already acquired in specific benefits ....
To have a property interest in a benefit, a person must
have more than an abstract need or desire for it. He must
have more than a unilateral expectation of it. He must,
instead, have a legitimate claim of entitlement to it ....
Property interests, of course, are not created by the
Constitution. Rather, they are created and their dimen-
sions are defined by existing rules or understandings that
stem from an independent source such as statelaw....””
Id. at 576-77.
In that case, the terms of the teacher’s employment contract
afforded him no interest in re-employment for the next year.
Nor did any state statute or University rule or policy secure to
him an interest in re-employment. Therefore, Roth, a non-
tenured teacher, had no ‘‘property’’ interest protected by pro-
cedural due process (a statement of reasons and a hearing),
even though he surely had an abstract (and realistic) concern
in being rehired.
The companion case of Perry yv Sindermann, 408 U.S. 593
(1972), elaborated on certain aspects of ‘‘property’’ interests.
The Supreme Court refined the notion that might have been
implied by Roth, namely, that lack of a forme! contractual or
tenure security in continued employment completely disposes
of procedural due process claims. The teacher in Sindermann
had alleged that his interest in continued employment (a
‘“‘property’’ interest), though not secured by a formal contrac-
tual tenure provision, was secured by a no less binding under-
standing fostered by the college administration. He claimed
the college had a de facto tenure program, based on a provision
7a
in the College’s Faculty Guide and certain guidelines promul-
gated by the Coordinating Board of the Texas College and
University System. The Court wrote:
‘‘A person’s interest in a benefit is a ‘property’ interest
for due process purposes if there are such rules or mutu-
ally explicit understandings that support his claim of en-
titlement to the benefit .
Yet absence of ... an explicit contractual provision may
not always foreclose the possibility that a teacher has a
‘property’ interest in re-employment .... [T]he law of
contracts ... long has employed a process by which
agreements, thorugh not formalized in writing, may be
‘implied.’ ... Explicit contractual provisions may be
supplemented by other agreements implied from ‘the
promisor’s words and conduct in the light of the surround-
ing circumstances.’ . .
A teacher ... who has held his position for a number
of years, might be able to show from the circumstances of
this service — and from other relevant facts — that he
has a legitimate claim of entit -ment to job tenure. Just as
this Court has found there to be a ‘common law of a par-
ticular industry or of a particular plant’ that may supple-
ment a collective-bargaining agreement, ... so there
may be an unwritten ‘common law’ in a particular uni-
versity that certain employees shall have the equivalent
of tenure. This is particularly likely in a college or univer-
sity ... that has no explwit tenure system even for senior
members of its faculty, but that nonetheless may have
created such a system in practice.’’ Jd. at 601-02 (em-
phasis added).
With these principles in mind, this Court must now look to
the specifics of plaintiff's claims. Stern has devoted six
paragraphs of the complaint (€48-13) to ‘‘bases of entitlement
8a
to continued employment.’’ He alleges (1) that President
Shouldice induced him and his family to relocate to LSSC
upon representations that the offered position was permanent
rather than temporary; (2) that it has been the custom and
practice of LSSC not to enter into a detailed written faculty
employment contract, which purports to exhaustively set forth
all of the terms of the contract, and that the only writing is a
letter of appointment; (3) that LSSC’s regulations purport to
encourage long-term faculty employment, and that the
custom and practice of LSSC has been in the case of one
recruited for long-term employment, such person’s employ-
ment will not be terminated until or unless Shouldice decides
that it will be terminatec\; (4) that he had faithfully performed
his duties, and also had created, produced and directed plays
outside of the LSSC community in such a manner so as to
bring praise and recogniti6n to LSSC, including approbation
from Shouldice; and (5) that he had met LSSC’s explicitly
stated standards for promotion and tenure, not to mention
continued employment which includes, but is not limited to,
his obtaining his Ph.D. degree during his employment at
LSSC.
Initially, this Court observes that Stern was employed as a
non-tenured assistant professor on a series of five one-year
contracts. The portions of the Faculty Manuals in effect both
when Stern was first hired and when his contract was not
renewed make clear that non-tenured appointments are for
the limited duration of one year. Stern has contended that the
letter of appointment doesn’t exhaustively constitute his con-
tract with LSSC, and that it has been the custom and practice
of LSSC not to enter into a detailed written faculty employ-
ment contract. The Court concludes, however, that this par-
ticular point did not prevent the Supreme Court from
deciding that the non-tenured teacher had no property in-
terest in continued employment. See Board of Regents of State Col-
Ga
leges v Roth, supra, at 566 n.1 (‘‘The respondent had no con-
tract of employment. Rather, his formal notice of appoint-
ment wes the equivalent of an employment contract ....’’).
Plaintiff has not adduced any evidence to support his allega-
tion that LSSC’s custom and practice has been to provide ad-
ditional unwritten conditions of employment, outside the let-
ter of appointment (especially any dealing with the tenure
concept). The Court finds that under the Roth guidelines,
Stern possesses no property interest protected by due process.
Even though a non-tenured professor, at the time he was
hired by the university, might be informed that he could even-
tually expect tenure if he met certain standards of professional
competence, this fact does not give him a property interest in
continued employment sufficient to require the procedural
protections of the Fourteenth Amendment. Such notice is no
doubt true of most neophyte members of university faculties.
Stebbins v Weaver, 537 F.2d 939, 942 (7th Cir. 1976); cert.
denied, 45 U.S.L.W. 3463 (1977).
Stern has also claimed that he has met LSSC’s explicitly
stated standards for promotion and tenure. However, it is clear
that meeting any such published standards does not confer a
property interest in advancement or continued employment, in
the absence of some particular institutional regulation guaran-
teeing reemployment. Burdeau v Trustees of California State Col-
leges, 507 F.2d 770, 774 (9th Cir. 1974), cert. denied, 423 U.S.
989 (1975).
‘*Until tenure is obtained he may equal or exceed mini-
mum requirements for evaluation and still the school
may prefer to employ someone else for the position he
seeks.’’ Jd. at 744.
No such guarantee of reemployment in this case has been
revealed. See Faculty Manual (1968) at F-3; Faculty Policies
10a
Manual (1970) at 11-12. The fact that some or most teachers
who are hired on a year to year basis are generally rehired
does not give rise to a right of reemployment. Poddar v Young-
stown State University, 480 F.2d 192, 194 (6th Cir. 1973).
Plaintiff has also raised the issue of so-called ‘‘implied’’ or
de facto tenure from Sindermann. That, however, is a heavy
burden to meet. An explicit tenure system, as is the case at
LSSC, weighs heavily against finding unwritten ‘‘rules’’ for
governing employment. Ryan v Aurora City Board of Education,
540 F.2d 222, 227 and n.4 (6th Cir. 1976), cert. denied, 45
U.S.L.W. 3463 (1977); Cotten v Board of Regents of University
System of Georgia, 395 F. Supp. 388, 393 (S.D. Ga. 1974), aff'd
515 F.2d 1098 (5th Cir. 1975); Megill v Board of Regents of State
of Florida, 541 F.2d 1073, 1078 (5th Cir. 1976). Cf Sont v Board
of Trustees of University of Tennessee, 513 F.2d 347, 351 (6th Cir.
1975), cert. denied, US. , 96 S.Ct. 2623
(1976); Watts v Board of Curators, University of Missouri, 363 F.
Supp. 883, 888 (W.D.Mo. 1973), aff'd, 495 F.2d 384 (8th
Cir. 1974); Toney v Reagan, 326 F. Supp. 1093, 1096 (N.D.
Cal. 1971), aff'd, 467 F.2d 953 (9th Cir. 1972), cert. denied,
409 U.S. 1130 (1973) and the statement from Sindermann set
forth hereinabove. Plaintiff has shown this Court nothing fac-
tual (and defendants’ materials in the record virtually preclude
any such showing) to support a claim of ‘‘implied’’ or de facto
tenure that is necessary under Sindermann. At most, the
evidence indicates a unilateral expectancy, which does not
constitute a property interest in the constitutional sense. The
facts here are distinctly different from Soni v Board of Trustees of
University of Tennessee, 513 F.2d 347 (6th Cir. 1975), aff'g 376
F. Supp. 289 (E.D. Tenn. 1974), cert. denied, US.
_______, 96 S.Ct. 2623 (1976), where the court found that the
university objectively acted toward the professor in such a man-
ner as to reasonably lead him to believe that he was a person
lla
with a relative degree of permanency, despite his being for-
mally nontenured. Thus, plaintiff has not and cannot prevail
on any claim of entitlement to a property interest under prin-
ciples stated in Sindermann.
C. Liberty.
Roth also discussed the liberty interests protected by proce-
dural due process.
‘The State, in declining to rehire the respondent, did not
make any charge against him that might seriously dam-
age his standi: g and associations in his community. It
did not base the nonrenewal of his contract on a charge,
for example, that he had been guilty of dishonesty, or im-
morality. For ‘[w]here a person’s good name, reputa-
tion, honor, or integrity is at stake because of what the
government is doing to him, notice and an opportunity
to be heard are essential.’’ ... In such a case, due pro-
cess would accord an opportunity to refute the charge
before University officials .
Similarly, there is no suggestion that the State, in
declining to re-employ the respondent, imposed on him a
stigma or other disability that foreclosed his freedom to
take advantage of other employment opportunities ... .
It stretches the concept too far to suggest that a person is
deprived of ‘liberty’ when he simply is not rehired in one
job but remains as free as before to seek another ....”’
Id. at 573-575.
These principles have been amplified in subsequent cases.
‘In Weathers [v. West Yuma County School District R-]-1, 530
F.2d 1335 (10th Cir. 1976)] we held that even should the
fact of nonrenewal and the reasons therefor be communi-
cated, thus making the teacher ‘less attractive’ to future
12a
employers, that this simply does not establish a liberty in-
terest. We quoted with approval this language from Gray
v Union County Intermediate Education District, 520 F.2d 803
(9th Cir. 1975):
‘Nearly any reason assigned for dismissal is likely to
be to some extent a negative reflection on an indivi-
dual’s ability, temperament or character (citation
omitted). But not every dismissal assumes a consti-
tutional magnitude. The concern is only with the
type of stigma that seriously damages an
individual’s ability to take advantage of other
employment opportunities (citation omitted).’ 520
F.2d at 806.”’
Powers v Mancos School Distruct RE-6, Montezuma County,
Colorado, 539 F.2d 38, 42-43 (10th Cir. 1976).
Similarly, in Blair v Board of Regents of State University and Com-
munity College System of Tennessee, 496 F.2d 322 6th Cir 1974),
the Court stated:
‘*The District Court ... found that, under the rationale
of Roth, appellee was deprived of a ‘liberty’ interest
under the Fourteenth Amendment, in that the non-re-
newal of his contract, on the charge of failure to meet
minimum standards in his professional relationships with
individual students, seriously damaged his reputation or
imposed on him a stigma that foreclosed his freedom to
take advantage of other employment opportunities. We
do not construe Roth to support this conclusion. It can be
argued that the failure of any school system to r. new the
contract of any teacher on grounds of failure to meet
minimum standards in his relationships with students
may injure the reputation of the teacher in the academic
community. We do not read Roth to mean that this situa-
13a
tion requires a hearing under due Process Clause.’’ /d. at
324.
The Sixth Circuit again discussed the liberty concept in Lake
Michigan College Federation of Teachers v Lake Michigan Community
College, 518 F.2d 1091 (6th Cir 1975), cert. denied,
US. , 96 S.Ct. 3189 (1976):
‘*Thus it appears that due process safeguards would
apply if the discharge of a teacher foreclosed future
employment opportunities that otherwise would be open
to him or if the grounds for the discharge tend to discredit
the teacher’s honesty or integrity or to damage his stand-
ing in the community. The federal courts have had many
opportunities to refine and to apply the general guide-
lines set forth in Roth. For example, liberty interests are
not implicated when a teacher is charged with failure to
meet minimum standards in his professional relationship
with students. [citing Blair, supra.} Similarly, allegations
of improper or inadequate performance do not constitute
a deprivation of liberty within t.e meaning of the four-
teenth amendment. [citation omitted] It has been held
that in certain circumstances even the charge of ‘in-
competence, neglect of duty and malfeasance in office’
does not amount to a deprivation of liberty under Roth.
[citation omitted]’’ Jd. at 1096-1097.
There is no evidence to support the allegation that there has
been public disclosure of the reasons for the denial of tenure to
the plaintiff and non-renewal of his contract. Cf Bishop v
Wood, U.S. , 96 S.Ct. 2074, 2079-80 (1976)
(even if the reasons are false); Stebbins v Weaver, 537 F.2d 959,
942 (7th Cir. 1976), cert. denied, 45 U.S.L.W. 3463 (1977);
Ortwein v Mackey, 511 F.2d 696, 699 (5th Cir. 1975); Kaprelian
v Texas Woman’s University, 509 F.2d 133, 137 (5th Cir. 1975);
l4a
Haron v Board of Education of City of New York, 411 F. Supp. 68,
71(E.D.N.Y. 1976); Griffin v Lancaster, 400 F. Supp. 421, 423
(W.D. La. 1975). The charges creating stigma must be con-
siderably graver than mere charges of improper or inadequate
job performance, or of failure to meet minimum standards of
professional conduct, and must involve imputation of illegal,
dishonest or immoral conduct calling into question one’s good
name, honor or integrity, Connealy v Walsh, 412 F. Supp. 146,
159 (W.D. Mo. 1976). Denial of tenure because of poor or
non-excellent professional performance is not a badge of in-
famy. Keddie v Pennsylvania State University, 412 F. Supp. 1264,
1273-74 (M.D. Pa. 1976).
Plaintiff claims that his ‘‘dismissal’’ has been harmful in
terms of finding future employment, and that he has thus been
foreclosed from taking advantage of other employment oppor-
tunities by a stigma or other disability. In Roth the Supreme
Court, in an important footnote, discussed this issue:
The District Court made an assumption ‘‘that non-re-
tention by one university or college creates concrete and
practical difficulties for a professor in his subsequent
academic career.’’ 310 F. Supp , at 979. And the Court
of Appeals based its affirmance of the summary judg-
ment largely on the premise that ‘‘the substantial adverse
effect non-retention is likely to have upon the career in-
terests of an individual professor’’ amounts to a limita-
tion on future employment opportunities sufficient to in-
voke procedural due process guarantees. 446 F.2d, at
809. But even assuming, arguendo, that such a ‘‘substan-
tial adverse effect’’ under these circumstances would con-
stitute a state-imposed restriction on liberty, the record
contains no support for these assumptions. There is no
suggestion of how nonretention might affect the respon-
dent’s future employment prospects. Mere proof, for
15a
example, that his record of nonretention in one job,
taken alone, might make him somewhat less attractive to
some other employers would hardly establish the kind of
foreclosure of opportunities amounting to a deprivation
of “‘libuity.’’ Cf. Schware v Board of Bar Examiners, 353
U.S. 232.
408 U.S. at 574 n. 13.
While school officials may not deny a range of opportunities
in a manner that denies the right to due process, this does not
mean that they have a positive duty to determine whether the
job market can absorb the professor; the borderland of liberty
does not stretch that far; as long as the opportunity to pursue
new employment persists, the school has not abridged the pro-
fessor’s liberty. Perkins v Regents of University of California, 353
F. Supp. 618, 623-24 (C.D. Cal. 1973).
Although plaintiff maintains that the deposition testimony
of Creigton Holden (Clerk’s Item #44), a member of the
LSSC Board of Control, shows that Stern’s nonretention by
the college was a ‘‘black-ball’’ (and for all practical purposes
an exclusion for future academic employment), an inspection
of the questions and answers? do not yield any reasonable
basis for such a strong interpretation, They are merely
assumpuons, unsupported by an facts. Accord, Burdeau v
Trustees of California State Colleges, 507 F.2d 770, 773 (9th Cir.
1974), cert. denied, 423 U.S. 989 (1975) (‘‘Appellant’s
assumption that a ‘no-reason’ non-retention is subject to
derogatory interpretation by third parties is an assumption
not supported by any fact.’’).
To generally interpret a non-retention as plaintiff argues
would be to give with one hand what the other hand has taken
away, and would make shambles of Roth. If a teacher is not
tenured (formally or impliedly), he does not have a constitu-
tionally protected property interest, and therefore has no right
l6a
to a prior hearing. To construe such a non-retention of a non-
tenured teacher as inevitably constituting a foreclosure of
future employment opportunities (implicating a liberty in-
terest) thereby requiring a prior hearing, would be inconsis-
tent with the property interest analysis. Difficulty in obtaining
new employment does not constitute a stigma nor does it auto-
matically result from the mere fact of not being rehired in a
prior job. The national economic picture (inflation and unem-
ployment rates) has a very significant impact on finding new
employment. In any event, the Supreme Court has indicated
that the mere record of nonretention in one job, although mak-
ing one somewhat less attractive to some other employers, does not
establish the kind of foreclosure of opportunities amounting to
a deprivation of liberty. Roth, supra, at 574 n. 13. The
Supreme Court was even more emphatic when it said:
‘*fi]t stretches the concept too far to suggest that a person
is deprived of ‘liberty’ when he simply is not rehired in
one job but rernains as free as before to seek another.’’
In all materials submitted to the Court for consideration on
this summary judgment motion, there is no evidence to sup-
port the claim that any constitutionally protected liberty in-
terest of the plaintiff was infringed by the defendants.
The conclusion that plaintiff had neither a property nor a
liberty interest at stake in the circumstances of this case means
that he was not entitled to any constitutional due process pro-
tections, namely, a statement of reasons for nonretention and
prior hearing. The record in this case, however, indicates that
plaintiff was afforded very substantial procedural protections.
There is a large amount of correspondence between plaintiff
and Linderoth, Light, and Shouldice detailing reasons for
non-retention. Plaintiff had a meeting with Light, the vice-
president for academic affairs, at which he was given the op-
portunity to present any information that he wanted.
17a
Shouldice convened the Committee on Academic Tenure in
an ad hoc capacity, since it did not have an official function in
personnel matters concerning nontenured faculty members.
This committee held a hearing at which plaintiff was present,
and sent its report to President Shouldice. The Board of Con-
trol permitted plaintiff to make a written submission to is as
well as an oral presentation at a regular meeting. These op-
portunities extended to plaintiff were far more than were owed
to him by LSSC, either as a constitutional matter or as a mat-
ter of the institution’s own regulations and practices.
As we have found that plaintiff had no constitutional right
entitling him to procedural due process, there is no right to
substantive due process, that is, to challenge the action as
being arbitrary or capricious. Stebbins vy Weaver, 537 F.2d 939,
942 (7th Cir. 1976), cert. denied, 45 U.S.L.W. 3463 (1977);
Jeffres vy Turkey Run Consolicated School District, 492 F.2d 1, 4
(7th Cir. 1974); Williams v Day, 412 F. Supp. 336, 347 (E.D.
Ark. 1976). The federal courts are not proper forums for con-
testing (nor does the due process clause of the Fourteenth
Amendment provide a guarantee against) even incorrect or
ill-advised personnel decisions by public employers. Bishop v
Wood, ___U.S. , 96 S.Ct. 2074, 2080 (1976).°
The Court recognizes that the present motion is one for
summary judgment, which is not to be granted unless there is
no genuine issue as to the material facts, and one party is en-
titled to a judgment as a matter of law. F.R. Civ.P. 56(c). The
Court has read all sixteen (16) of the depositions filed in this
case, all of the affidavits filed and has considered those
documentary submissions which had been authenticated and
would be admissible at trial.” The Court is convinced that the
evidence brought forth is conclusive on certain of the issues
raised by the pleadings. The plaintiff as the non-moving party
is not entitled to hold back his evidence until trial, and is not
18a
!
entitled to a trial on the possibility that an issue of material fact
might turn up at the trial. 6 Pt. 2 Moore’s Federal Practice
€56.22[2] at 56-1339 to -1340, and cases cited at nn. 20-21; id.
€56.23 at 56-1391 and nn. 39-40. The Court is of the opinion
that defendants, as the moving party, have discharged their
burden under F.R.Civ.P. 56, and hereby makes the following
findings of fact and conclusions of laws.
Findings of Fact:
1. Plaintiff Robert Stern held a succession of five (5) one-year
appointments to the faculty of Lake Superior State College
covering the period of July 1, 1967 through June 30, 1972.
2. Under the tenure program established by LSSC’s regula-
tions and Faculty Handbook, plaintiff did not have tenure.
3. Plaintiff did not have implied or de facto tenure under any
unwritten customs and practices outside of the formal tenure
program at LSSC.
4. Defendants did not make any charges against plaintiff that
might seriously damage his standing and associations in his
community.
5. Disclosure of the defendants’ reasons for nonretention of
the plaintiff were made privately to him in letters during May
and June 1971. As far as the evidence adduced here indicates,
any public disclosure of the reasons were at plaintiff's behest,
and are therefore his responsibility.*
6. Detendants did not, by declining to re-employ the plaintiff,
impose on him a stigma or other disability that foreclosed his
freedom to take advantage of other employment opportunities.
Conclustons of Law:
1. Plaintiff does not have a constitutionally protected proper-
ty interest in continued employment at LSSC.
19a
2. Plaintiff was not deprived of any constitutionally protected
liberty interest.
3. Since no constitutionally protected property or liberty in-
terests of the plaintiff were implicated in this case, he was not
entitled to any of the procedural protections of the due process
clause of the Fourteenth Amendment.
Accordingly, defendants’ motion for summary judgment as
to these claims is GRANTED.
II
FIRST AMENDMENT
Plaintiff has claimed that the non-renewal of his employ-
ment contract at LSSC was in retaliation for his exercise of his
First Amendment rights of Free speech. He has called atten-
tion to two series of events in particular, the *‘AAUP Letter”’
(American Association of University Professors) and the so-
called ‘‘Freedman incident.’ The first of these occurred be-
tween December 1969 and February 1970, and the latter set of
events transpired between July and October 1970. Because of
our disposition of defendants’ summary judgment motion as
to these claims (set forth below), it is unnecessary to go into
factual detail about the events.
A teacher (or other government employee) may not be ter-
minated or denied re-employment because of his exercise of
constitutional rights. Perry v Sindermann, 408 U.S. 593, 597
(1972); Pickering v Board of Education of Township High School
District 205, Will County, Illinois, 391 U.S. 563, 568 (1968);
Amburgey v Cassady, 507 F.2d 728, 730 (6th Cir. 1974); Man-
chester v Lewis, 507 F.2d 289, 290 (6th Cir. 1974); Hetrick v
Martin, 480 F.2d 705, 708 (6th Cir. 1972), cert. denied, 414
20a
U.S. 1075 (1973); Orr v Trinter, 444 F.2d 128, 134 (6th Cir.
1971), cert. denied, 408 U.S. 943 (1972). This is so irrespec-
tive of any contractual or tenure right to re-employment (or
lack thereof). Perry v Sindermann, 408 U.S. at 596-98; Bertot v
School District No. 1, Albany County, Wyoming, 522 F.2d 1171,
1177 (10th Cir. 1975).
Pickering v Board of Education, supra, is the most instructive
Supreme Court opinion on First Amendment rights in the
context of public employment, especially teaching.
‘*(T]he State has interests as an employer in regulating
the speech of its employees that differ significantly from
those it possesses in connection with regulation of the
speech of the citizenry in general. The problem in any
case 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 ser-
vices it performs through its employees.’’ 391 U.S. at
568.
Before engaging in the balancing approach suggested in
Pickering, it must first be shown that the teacher’s activities are
in fact protected by the First Amendment. Pickering held that a
teacher’s public criticism of his superiors on ‘‘matters of
public concern’’ may be constitutionally protected. Amburgey v
Cassady, supra, held that, although a teacher has a right to
criticize internal school operations, the teacher’s conduct,
particularly her disruption of a colleague’s classroom, her
shoving of the superintendent, and her suggestion that he
ought to be shot, were not protected by the First Amendment,
and provided ample justification for the recommendation of
the superintendent and for the decision of the school board not
to rehire her.
2la
In Manchester vy Lewis, supra, the Court agreed with the
lower court’s finding that the reason why the teacher was not
given tenure was the unsatisfactory level of his teaching per-
formance, and not, as the teacher had alleged, because of his
participation in the school visiting speaker program and his
public comments criticing the school’s policy concerning
visiting speakers. In Hetrick v Martin, supra, the Court held
that a state university may discharge a teacher whose
pedagogical style and philosophy did not conform to the pat-
tern prescribed by the school administration. The teacher had
claimed that she had not been rehired because she had made
in-class statements about the Vietnam war and the military
draft and because of her beliefs and ideas (all of which are at
least arguably protected by the First Amendment).
‘Whatever may be the ultimate scope of the amor-
phous ‘academic freedom’ guaranteed to our Nation's
teachers and students, ... it does not encompass the
right of a nontenured teacher to have her teaching style
insulated from review by her superiors when they deter-
mine whether she has merited tenured status just because
her methods and philosophy are considered acceptable
somewhere within ihe teaching profession.’ 480 F.2d at
709.
In this connection, we find the following statement germane:
Federal courts must be vigilant to protect the First
Amendment rights of all of our citizens. But they
must also be careful not to permit the use of speech
to become a cloak for protection against the conse-
quences of one’s misconduct or incompetency. In
every teacher dismissal or nonrenewal case,
elements of speech may be involved. The Court's
obligation yo determine from all the evidence if the
Nini
22a
board’s decision was based in whole or in part on the
teacher's exercise of his First Amendment rights. In
other words, the Court must determine the real
reason for the board’s action. See, ¢. g., Miller v
Pulaski County Special School District, No. UR-72-
C-249 (E.D.Ark.), aff'd 513 F.2d 637. The burden
is on the teacher to show that the stated reasons for
nonrenewal were pretexts, and that the actual
reason was the exercise by the teacher of a constitu-
tionally protected right. Watts v Board, 495 F.2d 384
(8th Cir. 1974).
Willams v Day, 412 F. Supp. 336, 340 n. 1 (E.D. Ark.
(1976).
While the historical facts (what happened and when) of the
events involved here are not disputed, the primary issue in
this First Amendment retaliation claim is the real reason for
the defendants’ action in not renewing plaintiffs contract (the
why). As a general proposition, summary judgment is likely
to be inappropriate when issues of motive, intent, and other
subjective feelings and reactions are material. 6 Pt. 2 Moore’s
Federal Practice §56.17([41.-1] at 56-930. In George v Conneaut
Board of Education, Conneau City School District, 472 F.2d 132
(6th Cir, 1972), the Court reversed a summary judgment in
favor of the defendants. The complaint alleged that the plain-
tiff, a nontenured ‘ieacher, was not rehired because of his exer-
cising First Amendment rights, and defendant school board's
affidavit averred that the reasons for not rehiring related solely
to job performance and not to the teacher's membership in
and activities on behalf of the educational association. The
Sixth Circuit held that factual issues were thereby raised,
(namely, whether the failure of the board to renew. the
teacher's contract was Because of his exercise of First Amend-
ment rights) which precluded summary judgment.
23a
George is quite similar to the instant case. This Court again
observes that it has reviewed all sixteen of the depositions in
this case, the exhibits and the proposed statements of facts by
both sides. Since the plaintiff's activities, which he claims are
the real basis upon which he was not rehired, are not clearly
outside of the First Amendment's protection (nor do defen-
dants so contend), the Court will assume, for the purposes of
this motion only, that they are so protected. While the defen-
dants, in support of their motion, rely heavily on the timing of
certain events (which is not disputed by plaintiff) to prove
their lack of an impermissible motive for not renewing the
plaintiff's contract, the Court is of the opinion that the ques-
tion of motive in this situation is one of inference from the
established facts of the events involved.’ It is not the Court's
function, on a motion for summary judgment, to make in-
ferences from even undisputed facts unless the evidence is so
one-sided as not to provide a reasonable basis for the opposite
conclusion. We conclude that this case does not fall within this
exception, but rather that the evidence submitted can
reasonably support opposing inferences. Since this is the case,
the defendants have not met their burden as moving parties to
establish the absence of any genuine issue as to all the material
facts. A genuine issue as to a material fact does exist. Accor-
dingly, defendants’ motion for summary judgment is
DENIED as to plaintiff's claim of retaliation for the exercise
of his constitutional rights.
To repeat this Court's ruling at the time of oral argument,
defendants’ motion for withdrawal of plaintiff's counsel is
GRANTED for the reasons specified in the motion, primarily
Disciplinary Rule 5-102 of the Code of Professional Respon-
sibility. Plaintiff's counsel, Mr. Dunchock, advised the Court
during argument on the withdrawal motion that he had made
arrangements for new counsel to take his place if withdrawal
was ordered. He also indicated that this new counsel might
24a
want to amend the complaint. This Court is of the opinion
that the case is at such a stage that there is no absolute right to
have new counsel add new claims. The Court will require
good cause for any amendments at this late date. Therefore,
plaintiff's new counsel will, if he desires to amend the com-
plaint, submit to the Court, within 21 days from issuance of
this opinion, any proposed amendments accompanied by
reasons in support thereof,
At the hearing on these motions, the Court also raised the
issue of whether plaintiff has a right to a jury trial on the issues
that might remain after disposition of the summary judgment
motion. Plaintiff had filed a timely jury demand. Neither
counsel was prepared for this question at that time, and the
Court therefore invites memoranda from the parties to be sub-
mitted to the Court according to the following time schedule:
plaintiff has twenty-one (21) days from issuance of this opin-
ion, and defendants have fourteen (14) days from the date
plaintiff's memorandum is sent to them. The Court does not
contemplate oral argument on this point.
In summary, then, defendants’ motion for summary judg-
ment is GRANTED with respect to the procedural due pro-
cess claims of the plaintiff, and plaintiff's complaint is
DISMISSED as to those issues. Defendants’ motion for sum-
mary judgment is DENIED with respect to plaintiff’s First
Amendment claims. Defendant's motion to compel with-
drawal of plaintiff's counsel is GRANTED.
IT ISSO ORDERED.
/s/ WENDELL A. MILEs
Wendell A. Miles, District Judge
Dated: January 31, 1977
25a
FOOTNOTES
1. Plaintiff has pleaded a cause of action under 42 U.S.C.
§1985, apparently subsection (3), alleging a conspiracy to
deprive him of his civil rights. However, this provision is
limited to situations with some racial or perhaps otherwise
class-based, invidiously discriminatory animus behind the
conspirators’ action. Crabtree v Brennan, 446 F.2d 480, 481 (6th
Cir. 1972), citing Griffin v Breckenridge, 403 U.S. 88, 101-102
(1971). As there is no allegation of this type in the complaint,
nor does it appear to the Court that any such allegation could
be supported by any evidence, plaintiff's claim under 42
U.S.C. §1985(3) is DISMISSED.
2. Plaintiff has apparently lifted this language from the Sinder-
mann opinion, See 408 U.S. at 603. However, a careful reading
of that portion of the opinion indicates that such a hearing
(‘‘an opportunity to prove the legitimacy of his claim of such
entitlement in light of ‘the policies and practices of the institu-
tion’’’) was not one for the educational institution to conduct.
While the Supreme Court said that the teacher ‘‘must be
given’’ such an opportunity, the context of this statement
must be examined in order to clarify its meaning. The District
Court had granted summary judgment in favor of the institu-
tion. The Court of Appeals reversed, holding in part that the
teacher’s lack of tenure did not deprive him of an opportunity
for a hearing if he could show an ‘‘expectancy’’ of re-
employment. The Supreme Court affirmed the Court of Ap-
peals’ result, but disagreed ,..:h its reasoning. Mr. Justice
Stewart wrote:
“‘[wle disagree with the Court of Appeals insofar as it
held that a mere subjective ‘expectancy’ is protected by
procedural due process.’’ 408 U.S. at 603.
26a
The Supreme Court did agree with the disposition to remand
the case to the District Court, where the teacher would be
given the opportunity to pursue his allegation that the college
had a de facto tenure policy, and that he qualified [PRINTER
CANNOT READ TOP LINE OF PAGE -24-] judgment
against the teacher on the ground that he was non-tenured
had foreclosed him from presenting any evidence on this
issue. Thus it is clear that the District Court, and not the col-
lege, is the site for this particular ‘‘hearing.’’ The hearing that
is an element of procedural due process, where a teacher is
permitted to respond to the statement of reasons for nonreten-
tion (see €20 of Complaint), is what is conducted by the col-
lege. In addition, the Supreme Court did not, and indeed can-
not, remand to the college for the holding of such a hearing as
plaintiff herein seeks; the Court can only remand to lower
courts. In Sindermann. it is obvious that the Court was pro-
viding the teacher with an opportunity to pursue his claim of
de facto tenure in court. See Sindermann, 408 U.S. at 602 n. 7
(‘‘{w]e do not now hold that the respondent has any such
legitimate claim of entitlement to job tenure ... Ifitis the law
of Texas that a teacher in the respondent’s position has no
contractual or other claim to job tenure, the respondent’s
claim would be defeated.’’). Sindermann did not conclude that
the teacher had proved his claim of implied tenure, only that
he had an opportunity to show such in court. Thus, plaintiff’s
contention that he was entitled as a matter of procedural due
process to a college-level hearing on the legitimacy of his claim
of entitlement to implied or de facto tenure is without merit.
3. Plaintiff has contended that the Board of Control members
did not know what consequences their August 13, 1971 vote
on plaintiff's change-of-status recommendation would have.
The change-of-status recommendation form itself proves
otherwise. The written minutes state:
‘*Mr. Somes, seconded by Mr. Glass, moved approval of
a change of status for Robert I. Stern, from director of
drama and assistant professor of speech, to assistant pro-
fessor of speech. The change of status carries no tenure,
with termination of employment at the end of the
1971-72 school year. Carried by voice vote, without dis-
sent.’
Apparently the second last sentence of the above was not part
of the oral proceedings at the August 1971 Board meeting.
The undisputed deposition testimony of Frank Hoholik (pp.
7-11, Clerk’s Item #39) and John Matheson (pp. 5-8, Clerk’s
Item #40) shows that the Board of Control members were sent
the entire change-of-status recommendation forms a week
prior to the official meeting, in order to familiarize them with
details of the proposed changes and reasons therefor.
Plaintiff's claim of a discrepancy between the written minutes
of that Board meeting and a tape recording of the actual oral
proceedings does not present any basis for relief. The record is
clear that the customary procedure of the Board of Control at
their regular meeting in acting upon personnel changes of
status is to have an oral motion as to each individual on the
agenda, but not to recite in the motion, every detail of the
change-of-status recommendation forms, which are in front of
each board member during the voting. This ‘‘shorthand’’
procedure is probably essential to having the Board complete
its entire agenda for the meeting. Plaintiff's claim that this
discrepancy constitutes a ‘‘fraud upon the public’’ is a
baseless accusation. The Court knows of no legal requirement
that the minutes of a Board of Control meeting be verbatim
records of every word that was uttered at a meeting; they are
usually considered a summary of action taken. The written
28a
documents supplementing the official agenda constitute the
basis or content of the official action which is recorded in the
minutes. Any contention that the Board action was invalid
because the oral rnotion did not fully refer to every item of in-
formation in the change-of-status recommendation is
frivolous. In any event, this type of claim is not cognizable in
federal court in a suit under 42 U.S.C. §1983, for deprivation
of constitutional rights.
4. Plaintiff makes two other subsidiary claims: (1) that his
‘*firing’’ was contrary to the best interest of LSSC, since a
replacement for him had not yet been found, resulting in the
curtailment in scope and quantity of speech/drama/theatre
courses and activities offered by LSSC to its students; and (2)
that the decision to ‘‘fire’’ him was made by defendant
Shouldice, LSSC President, rather than by the Board of Con-
trol, in violation of state law. See M.S.A. §15.1852(104);
M.C.L.A. §390.394.
As to(1), such a claim is not cognizable either in this type of
suit (one for the deprivation of constitutional rights) or by
courts in general. There is absolutely no support for an asser-
tion that the best interests of an educational institution can be
asserted by this plaintiff as being one of his constitutional
rights. Additionally, in our governmental system of separa-
tion of powers, courts do not function in quasi-executive or
administrative capacities. Our task in a §1983 case is to deter-
mine if a plaintiff's constitutional nghts were violated, and not to
govern a college.
‘*The determination as to whether the quality of ser-
vices of a particular teacher entitles him to continued
employment beyord the probationary period, thereby
qualifying him tor tenure status, or whether his contract
of employment should not be renewed prior to attain-
ment of tenure status, is the prerogative of the
29a
employer ... Orryv Trinter, 444 F.2d 128, 135 (6th Cir.
1971), cert. denied, 408 U.S. 943 (1972).
As to (2), this claim is frivolous and is not cognizable in a
§1983 proceeding. See Michigan Constitution 1963, Article 8,
§6 (providing for educational institution governing boards to
elect presidents to serve as the institution’s principal executive
officer); Bylaws and Statutes of the Board of Control of Lake
Superior State College, Article II, Section 2.01 (specifying the
president’s powers). Further, there is absolutely no possible
dispute with the fact that the Board of Control actually voted
(on two separate occasions) on the personnel action involving
plaintiff Stern. This is not a case presenting an issue of whether
the president can unilaterally and without Board of Control
approval fire or not rehire a faculty or staff member.
5. “Q. Did you at that time or did [sic] you now understand
that this is an effective black-balling of a man’s career for the
rest of his life?
A. I don’t interpret it as such but I know there are people who
do.
* e *
Q. Who do you know that interprets it as such?
A. I don’t know. I’m just telling — I don’t.
Q. You indicated you knew that there were people who do.
A. I assume that there are people who do.”’
Deposition of Creighton Holden, p. 7.
6. Chief Justice Burger’s suggestion in his concurring opi-
nion in both Board of Regents of State Colleges v Roth, 408 U.S.
564 (1972) and Perry v Sindermann, 408 U.S. 593 (1972), that
state courts should be considered a more siutable forum for
this type of litigation is most sensible. See 408 U.S. at 603-604.
30a
7. With over 770 civil cases the mass of materials inundated
this Court is so great that weekends and one day docket
clearances have been utilized to accomplish this feat.
8. The general confusion concerning the exhausting hearings
and re-hearings is understandable. The writer served as a col-
lege counsel and was often perplexed by reason of conflicting
statements emanating from the Courts. The only possible
solution was to conduct hearings to the point that each judicial
viewpoint could and should be satisfied.
9. The Supreme Court has just issued an opinion concerning
the burden of proof in First Amendment retaliation cases. See
Mt. Healthy City School District Board of Education y Doyle,
U.S. , 45 U.S.L.W. 4079 (January 11, 1977).
3la
Opinion
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Rosert STERN,
Plaintiff,
VS.
No. M 43-73
KENNETH SHOULDICE, individually and CA 3
as President of Lake Superior State Col-
lege, et al,
Defendants.
OPINION
This is a faculty tenure case brought under 22 U.S.C.
§1983 and 42 U.S.C. §1985. Plaintiff alleges that his employ-
ment with Lake Superior State College was terminated in
retaliation for exercise of first amendment rights. In an earlier
opinion, this Court dismissed plaintiffs procedural due proc-
ess claims. In that opinion the Court raised the issue whether
the remaining matters were properly triable to a jury, which
has been demanded by plaintiff.
The right to a jury trial lies only for ‘‘suits atcommon law.”’
U.S. Const. amend. VIII. Although the basic thrust of the
seventh amendment was to preserve the right to a jury trial as
it existed in 1791, the concept ‘‘common law’’ has evolved to
embrace all suits not within equity or admiralty jurisdiction.
Curtis v Loether, 415 U.S. 189, 193 (1974). Asa result, the right
to a jury trial may extend to congressionally-created causes of
action. Jd. at 193-94. When a statutory cause of action comes
32a
before a court, it must be carefully analyzed to determine
whether the issues raised are inherently legal or inherently
equitable. Where distinct legal and equitable issues are involved, there
may be a right to a jury on the legal issues, while the equitable issues are
solely for the court. Dairy Queen, Inc. v Wood, 369 U.S. 469 (1962).
There are three essential facets to the determination
whether a jury trial is appropriate. First, it must be deter-
mined whether the relief sought is “‘legal’’ or ‘‘equitable.’’
Secondly, it must be determined whether the issues are within
the practical abilities and limitations of a jury. See Datry Queen,
Inc. v Wood, 369 U.S. 469, 478 (1962). The final consideration
is whether the issues are such as would have been tried by a
jury at the time the Seventh Amendment was adopted. See
generally Marr v Rife, 363 F. Supp. 1362, 1363 (S.D. Ohio
1973), citing Ross v Bernhard, 396 U.S. 531, 538 n.10 (1970);
NLRB vy Jones & Laughlin Steel Corp., 301 U.S. 1 (1937); United
States v Louisiana, 339 U.S. 699 (1950); Rodgers v Loether, 312 F.
Supp. 1008 (E.D. La. 1970); 9 Wright & Miller, Federal
Practice and Procedure: Civil §2302 (1971).
The remedies sought by plaintiff are:
1. reinstatement with back pay,
2. actual damages and attorneys fees of $500,000, and
3. $100,000 punitive damages.
The claim for reinstatement and back pay is essentially
equitable — a claim in the nature of restitution for employ-
ment wrongfully withheld. Cf EEOC v Detroit Edison Co. , 515
F.2d 301 (6th Cir. 1975), vacated and remanded on other grounds,
97 S. Ct. 2669 (1977). Plaintiff's complaint suggests three
possible constituents of his claim for ‘‘actual damages’’:
(1) expenses in seeking other employment, (2) a significant
lowering of employability, and (3) stress and embarrassment
to plaintiff and his family. Defendant cites Lynch v Pan
33a
American World Airlines, 475 F.2d 764 (5th Cir. 1973), for the
proposition that ‘‘unsupported allegations for compensatory
and punitive damages’’ cannot unilaterally alter the nature of
an inherently equitable claim. The Court cannot say in this
instance, however, that the allegations of compensatory
and punitive damages are so lacking in merit as to be
‘“‘unsupported.’’
Plaintiff's claim for expenses in seeking new employment
appears to be a legal claim for consequential damages. Unlike
the remedy of reinstatement and back pay, which is in essence
a return of employment wrongfully taken away, the claim for
expenses directly results from plaintiff's dismissal and is
therefore a ‘‘legal’’ claim. Plaintiff's claim for diminished
employability is, of course barred by the Court’s finding ina
previous opinion that defendants’ failure to reemploy plaintiff
did not foreclose his freedom to take advantage of other
employment opportunities. Finally, plaintiff's claim for
‘‘stress and embarrassment’’ also states a theory for the
recovery of consequential damages flowing from defendants’
alleged wrongful act. This sort of claim has traditionally been
cognizable by courts of law.
Plaintiff has also demanded punitive damages in the
amount of $100,000. Although this claim may not have
substantial support in the record, if plaintiff can establish that
his nonretention was in retaliation for exercise of first amend-
ment rights, punitive damages may be warranted assessment
of punitive damages has traditionally been the function of the
jury.
For these reasons, the Court must conclude that the issues
raised in this case are properly triable by a jury. With the
abolition of the separation of law and equity, the distinction
between issues triable as of right to a jury and those that must
be tried to the court has necessarily blurred. In characterizing
34a
issues as ‘‘legal’’ or ‘‘equitable’’ a court must consider that
although there is a constitutional right to have ‘‘legal’’ issues
determined by a jury, there is no correlative constitutional
right to have ‘‘equitable’’ issues tried by the court. See The
Supreme Court: 1958 Term, 73 Harv. L. Rev. 128, 191 (1959).
Whether plaintiff's ‘‘legal’’ claims are mere ‘‘unsupported
allegations’’ as in Lynch, supra, should await the close of plain-
tiffs case and a motion for a directed verdict. A jury will be
empaneled to hear this case.
IT IS SO ORDERED.
/s/ WENDELL A. MILES
Wendell A. Miles,
United States District Judge
Dated: August 29, 1977
35a
Opinion on Motions for New Trial/JNOV
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
(Filed June 16, 1978)
Rosert STERN,
Plaintiff,
Vs. M-43-73 CA
KENNETH SHOULDICE, et. al.,
Defendants.
OPINION ON MOTIONS FOR
NEW TRIAL/JNOV
INTRODUCTION
Plaintiff, a former professor at Lake Superior State College,
brought suit against the College, Kenneth Shouldice (the
president), and Leon Linderoth (the department chairman),
contending that the decision not to renew his contract de-
prived him of liberty and property without due process of law.
In ruling upon defendants’ motion for summary judgment,
the Court found that plaintiff had no fourteenth amendment
property interest. Plaintiff's first amendment retaliation
claim, however, raised issues of fact sufficient to preclude
summary judgment. In addition, the court invited sup-
plemental briefs on whether the case was properly tried to a
jury. After receipt of these briefs, the Court ruled that
planitiff’s claims for damages for mental anguish, lowering of
employability, and expenses in seeking other employment
were legal in nature and must be tried by a jury. After several
days of trial the jury returned a verdict awarding’no compen-
satory damages, awarding $1000 in punitive damages against
36a
each individual defendant, and granting plaintiff reinstate-
ment and back pay in the amount of $50,155.32.
Defendants, who had moved for a directed verdict at the
close of plaintiff’s case, thereupon timely moved for a new
trial or, in the alternative, for a judgment notwithstanding the
verdict. Defendants’ motions adress four basic areas: (1) the
award of punitive damages, (2) the amount of back pay
awarded, (3) the proprietary of a jury trial, and (4) the suffi-
ciency of the evidence. The Court will discuss each of these
areas after an initial consideration of the appropriate standard
for assessing motions for new trials and motions for judgment
notwithstanding the verdict.
II. MOTIONS FOR A NEW TRIAL OR JUDGMENT
NOV
Federal Rule of Civil Procedure 59(a) provides that a new
trial may be granted ‘‘for any of the reasons for which new
trials have heretofore been granted ... in the courts of the
United States.’’ A new trial is appropriate in instances where
there has been a denial of the proper mode of trial — jury or
court. Freeman Contractors v Central Surety & Ins. Corp., 205 F.2d
607 (8th Cir. 1953). A motion for a new trial is also properly
granted where there are jury errors or inconsistencies, such as
where the jury is ‘‘plainly confused,’’ Feeney v Stieringer, 162 F.
Supp. 546 (W.D.N.Y. 1957), or where the jury disregarded
the Court’s instructions. Pugh v Bluff City Excurston Co., 177 F.
399 (6th Cir. 1910); Hartman vy White Motor Co. , 12 F.R.D. 328
(W.D. Mich. 1952) (Starr, J.). In addition, where the jury’s
verdict is against the weight of the evidence, the Court should
exercise its discretion to grant a new trial. Fortenberry v New
York Life Ins. Co, , 459 F.2d 117 (6th Cir.), cert. denied, 409 U.S.
981 (1972). Finally, a new trial is properly granted where the
37a
damage award is excessive. Mooney v Henderson Portion Pack
Co. , 359 F.2d 64 (6th Cir. 1964). The granting or denial of a
motion for a new trial is within the discretion of the trial court,
and is not reviewable except for abuse of discretion. 6A
Moore’s Federal Practice §59.08[1], at 59-101.
Although a motion for a new trial lies within the discretion
of the Court, a motion for a judgment notwithstanding the
verdict may be granted only where, without weighing the
credibility of the witnesses, there can be but one reasonable
conclusion as to the proper result. See 5A Moore’s Federal
Practice §50.07[2]. In considering the motion the Court must
view the evidence in the light most favorable to the nonmov-
ing party. Thus in comparison to the motion for a new trial,
the Court’s power is severely circumscribed.
III. PUNITIVE DAMAGES
Plaintiff’s complaint demanded $100,000 ‘‘punitive ex-
emplary damages’’ against defendants Shouldice and
Linderoth. The jury was instructed on punitive damages (see
3 Devitt & Blackmar, Federal Jury Practice and Instructions
§85.11) and were informed
‘“‘that such extraordinary damages may be allowed
only if the jury should first unanimously award the plain-
tiff a verdict for actual or compensatory damages, even if
such damages are nominal.”’
The jury verdict form was carefully read and explained to the
jurors, who each had a copy of it so that they could follow and
38a
fully understand the explanation. The jury returned its ver-
dict against the individual defendants Shouldice and
Linderoth as follows:
‘x For the plaintiff
—_ nominal and/or compensatory damages
X_ punitive damages $1,000.00.”’
Defendants contend that since there was no award of actual
or nominal damages, the award of punitive damages must be
set aside. Plaintiff contends that by finding for the plaintiff,
the jury found that he was denied his constitutional rights.
Plaintiff argues that this determination carries with it a
presumption of nominal damages, and that nominal damages
will support an award of punitive damages. This proposition,
however, may also work in the opposite direction. If the jury
specifically does not award even nominal damages, it may be
inferred that they did not find any violation of constitutional
rights,
The court is tempted to grant the equivalent of a judgment
notwithstanding the verdict by issuing a remittitur of punitive
damages. The jury’s action with respect to punitive damages
is clearly contrary to law and to their instructions. In addition,
the evidence that defendants acted maliciously, wantonly, or
oppressively was negligible, consisting primarily of somewhat
tenuous inferences. The jury’s actions in this case, however,
are indiciative of more serious problems not confined to the
issue of punitive damages alone.
The jury’s award of punitive damages implicates all four of
the circumstances noted as proper for the granting of a new
trial. Although the verdict form was clearly and carefully ex-
plained to the jury while they held a copy of it in their hands,
the jury either was confused about the verdict form or else
39a
disregarded the Court’s instructions. In addition, the Court
gave a very specific and approved instruction concerning
punitive damages, which the jury also either misunderstood
or disregarded. A further indication of the jury’s confusion is
the fact that they failed to take the rather voluminous and
complex instructions into the jury room to assist them in their
deliberations, even though they were informed that the in-
structions were available on request. In addition, the finding
that defendants acted maliciously, wantonly, or oppressively,
implicit in the award of punitive damages is against the weight
of the evidence. As a result, the damage award was excessive.
Since the Court finds that the jury was confused, that it
disregarded the Court’s instructions, that the award of
punitive damages was against the weight of the evidence, and
that the damage award was excessive, a new trial is properly
granted.
IV. BACK PAY
In his complaint plaintiff damanded that the College
reinstate him and award him back pay from the time of his
nonrenewal. The court, recognizing that the amount of back
pay was for the Court (See Opinion, August 27, 1977), never-
theless submitted the question to the jury in an advisory
capacity. In making such a determination, the Court is bound
by the factual findings of the jury as to the legal claims, and the
Court therefore believed that the jury’s advice on this issue
would be helpful. The only evidence from which back pay
could properly be calculated was plaintiff's exhibit 141, which
showed the salaries of five other faculty members for the years
following plaintiff's nonrenewal. The jury, however, re-
quested only one exhibit, although they were instructed that
any and all exhibits would be supplied. That one exhibit,
plaintiffs exhibit 155, showed plaintiff’s earnings since his
nonrenewal. The jury completed the verdict form as follows:
‘‘Tf you find for the plaintiff against the defendand col-
lege, you may award back pay to the plaintiff according
to the following formula:
_x Amount of earnings plaintiff would have earned in
employment at defendant College from date of separa-
tion to present date: $80,000.00.
— (minus) amount of income, including unemploy-
ment compensation benefits, paid to the plaintiff from
date of separation to present date: $29,844.68.
= (equals) back pay: $50,155.32.
Defendants contend that the jury’s award of back pay is
totally speculative. It is defendant’s argument that since the
jury did not have exhibit 141 during their deliberations, its
assessment of gross back pay at $80,000 must have been the
product of sheer speculation. Plaintiff contends that there
were factors that the jury was cognizant of justifying the
award: (1) plaintiff’s earnings record, (2) plaintiff’s obtaining
of a doctoral degree, and (3) the double digit rate of inflation.
All these factors, plaintiff contends, could have properly in-
fluenced the calculation of gross back pay.
As the Court observed, assessment of back pay is a function
of the Court, and the Court could simply reject the jury’s find-
ing and make its own independent determination. As with the
problem of punitive damages, however, the problem of back
pay raises serious questions as to the jury’s actions with
respect to the case as a whole, Exhibit 141 shown salary rates
for five faculty members for the academic years 1970-71 to
1977-78. Plaintiff was still at the College in the years 1970-71
and 1971-72, and the academic year 1977-78 had not yet
begun at the time of trial. Thus, only the years 1972-73,
4la
1973-74, 1974-75, 1975-76, and 1976-77 are relevant. The
sum of the five highest salaries from each of the five years,
without regard to the recipient of those salaries, is $70,163.
The most received by any one individual during those years
was $68,997, received by Professor Cullen. In addition, plain-
tiff acknowledges in his brief that he had a ‘‘total salary expec-
tation of $65,000.”’
The jury was instructed that the law required their decision
to be based ‘‘solely upon the competent evidence before you.”’
Even considering plaintiff's proferred explanation for the
amount of back pay awarded, an $80,000 award was un-
justified by the evidence. Although the five faculty members
had a similar ‘‘earnings record’’ to plaintiff’s, their earnings
did not approach $80,000. Moreover, at least one of the five
faculty members received a doctorate, but that entitled him to
only a $500 annual increase. Furthermore, although con-
sideration of inflation was conceivably proper, there was no
evidence from which an informed and intelligent determina-
tion of the impact of inflation could be made. The jury’s
failure to follow the instruction that they were to find the facts
from competent evidence, or their confusion regarding the
role of the jury in determining back pay is a justification for a
new trial. In addition, for the reasons «tated, the jury’s deter-
mination of back pay was against we clear weight of the
evidence, and, as a result, the damage award was excessive.
For these reasons the court finds that a new trial is justified.
V. MODE OF TRIAL
Shortly before trial the Court solicited memorandum briefs
from the parties to assist it in determining whether this case
was properly tried by a jury or by the Court. In an opinion
issued August 29, 1977, the Court found that plaintiff’s
42a
claims for diminished employability, stress and embarrass-
ment, expenses in finding a new job, and punitive damages
were sufficient to render the case one for a jury. At the close of
plaintiffs case, defendants moved to dismiss the jury, conten-
ding that plaintiff had produced no evidence from which ac-
tual or compensatory damages could be awarded. The Court
held, however, that nominal or punitive damages could possi-
bly be sustained, and consequently submitted the case to the
jury. Defendants have reiterated their claims in their post-trial
motions,
Lynch vy Pan American World Airlines, 474 F.2d 764 (Sth Cir.
1974) stated that an unsupported claim for compensatory
damages would not suffice to transform an essentially
equitable claim into a ‘‘legal’’ claim properly tried by a jury.
The court in Lynch did not elaborate on how unsupported a
claim for legal relief must be to justify striking the jury de-
mand. Because the constitutional right to a jury trial is involv-
ed, however, it would appear that dismissal of the jury would
be justified only where a directed verdict or motion for a judg-
ment notwithstanding the verdict would be properly granted,
because the limits on the granting of these motions also define
the right to a jury trial. As a result, it must be determined
whether the evidence, viewed in the light most favorable to
plaintiff; leaves but one reasonable conclusion — that plaintiff
was not entitled to compensatory and punitive damages. The
Court cannot say that if the evidence is viewed in the light
most favorable to plaintiff, there can be but one reasonable
conclusion, Although the evidence was negligible, it is con-
ceivable that reasonable persons could find that plaintiff suf-
fered injury warranting compensatory or punitive damages
on the basis of inference. As a result, the Court concludes that
the case was properly tried betore a jury.
43a
There is another approach to the problem not suggested by
defendants. The jury did not award either compensatory or
nominal damages, and the punitive damage award is conse-
quently clearly improper. Since all of plaintiff's legal claims
were found to be without merit, the right to a jury trial is
either satisfied or not implicated. The troubling feature of this
argument, however, is the jury’s advisory findings that plain-
tiff was entitled to reinstatement and back pay and that plain-
tiff was not renewed because of his participation in AAUP ac-
tivities. The jury’s actions are perhaps better explained in
terms of mistake than in terms of a conscious finding of plain-
tiffs legal claims to be without merit.
Professor Moore has criticized the actions of the Supreme
Court in expanding the right to a jury trial ‘‘at a time at which
the pressure of crowded dockets and long delay in tiral have
prompted a reappraisal of the usefulness of jury trials in civil
cases as instruments of justice.’’ 5 Moore’s Federal Practice
438.12[1], at 128.23. From the standpoint of judicial efficien-
cy, it would certainly be more appropriate to approach the
jury/nonjury question as a procedural matter rather than as a
matter of constitutional right. Nevertheless, although the
Supreme Court has been more than willing to recognize ‘‘the
oractical and human limitations of the jury system’’ in
criminal cases, see Bruton v United States, 391 U.S. 123, 135
(1968), it has been relatively insensitive to these same con-
sideratians in civil cases. As a result, in many situations courts
are faced with difficult assessments of claims to determine
whether they are inherently equitable or inherently legal.
With the abolition of the division between law and equity, this
distinction in many cases becomes virtually a distinction
without a difference. The deciding factor may be the nature of
the respective rights to trial by the court and trial by jury.
Although the right to a jury trial is a constitutional right, and
44a
error in denying 2 jury trial constitutional error, trial by the
court is not constitutionally mandated, and error in denying a
bench trial will more often prove harmless. For the reasons
stated the Court finds that plaintiff's ‘‘legal’’ claims were suf-
ficient to properly submit the case to the jury, and that the
Court’s action is not a basis for a new trial.
VI. SUFFICIENCY OF THE EVIDENCE
This case is governed by Mt. Healthy City School Dist. Bd. of
Educ. v Doyle, 429 U.S. 274 (1977). The jury was instructed in
accordance with Mt. Healthy that plaintiff must prove that
defendants determined not to renew plaintiff's contract in
retaliation for the exercise of first an.endment rights, and that
the exercise of first amendment rights was a substantial and
motivating factor in ‘he decision not to renew plaintiff. The
jury was further instructed that if they found plaintiff had
proven these elements, if defendants established that the Col-
lege would have reached the same decision even if plaintiff had
not exercised his first amendment rights, they must find for
the defendants. Defendants contend that none of the evidence
presented by plaintiff demonstrates that plaintiff's first
amendment activity was a ‘‘substantial factor’’ in the decision
not to renew his contract. Defendants also argue that even if
plaintiff had shown that first amendment activity was a
substantial factor in the decision, the evidence was over-
whelming that plaintiff would not have been rehired anyway.
In considering a motion for a judgment notwithstanding the
verdict, the Court must consider all the evidence, without
making credibility determinations, in the light most favorable
to plaintiff. Dr. Shouldice stated he would be ‘“‘less than can-
did’’ if he were to say that the first amendment incidents were
not a part of his thinking in reviewing the recommendation
45a
not to renew plaintiff's contract. The jury could, considering
Dr. Shouldice’s testimony in conjunction with the testimony
of plaintiff, taken in the light most favorable to plaintiff,
reasonably find that the first amendment activity was a
**substantial factor’’ in the decision not to rehire plaintiff. In
addition, there was conflicting evidence as to whether plaintiff
would have been non-renewed even if he had not engaged in
first amendment activity. The testimony of plaintiff indicated
that the other reasons offered by the College for not rehiring
him were without substantial basis. There was also, however,
the testimony of Dr. McCabe, Dr. Linderoth, Dr. Light,
Dr. Shouldice, and Dr. McKinnon establishing substantial
non-first amendment reasons for the College’s action. The
Court concludes that there was more than a mere ‘“‘scintilla’’
of evidence that plaintiff would not have been rehired even in
the absence of first amendment activity — but not much
more. Asa result, the Court concludes that defendants are not
entitled to a judgment notwithstanding the verdict.
The jury’s implicit finding that plaintiff would have been
rehired if he had not engaged in first amendment activity is,
however, against the clear weight of the evidence, and thus
warrants a new trial. In addition, there were certain other cir-
cumstances ir.dicating that the jury was not properly consider-
ing this issue, which, taken in conjunction with the weight of
the evidence, renders a new trial proper. Mt. Healthy sets up a
relatively complex chain of causation to be established in proof
of a first amendment retaliation claim. Even though the in-
structions were as clear and as simple as the Court and counsel
could make them, it would be difficult for a jury to understand
and apply these instructions properly without having them
before them. The jury, however, did not request that the in-
structions be sent in. The implicit finding that plaintiff would
not have been rehired ‘‘but for’’ his first amendment activity
and the jury’s award of punitive damages in the absence of an
46a
award of compensatory or nominal damages indicates that the
jury either disregarded, misunderstood, or forgot the Court’s
instructions. Although the instructions framed the issues, it
appears from certain communications with the Court, that
they were attempting to reach a decision by considering mat-
ters extraneous to the case. The jury’s first question was:
‘‘Can a person be dismissed if they have Tenure?’’ The third
question was ‘‘How many members of the AAUP were on the
Tenure Board?’’ All these circumstances indicate confusion
or disregard of the Court’s instructions and further justify the
granting of a new trial.
47a
VII. CONCLUSION
For the reasons stated, the Court finds that the evidence in
the case was not such that a finding for the defendants was the
only reasonable conclusion. As a result, defendants’ motion
for a judgment notwithstanding the verdict is denied, The ver-
dict, however, was against the weight of the evidence, the
damages awarded were excessive, and the circumstances in-
dicate that the jury acted under a misapprehension of the law
or in disregard of the Court’s instructions. For these reasons
the Court must grant defendants’ motion for a new trial.
IT IS SO ORDERED.
/s/ WENDELL A. MILES
Wendell A. Miles,
U.S. District Judge
Dated: June 16, 1978
48a
Opinion
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
(filed September 19, 1980)
ROBERT STERN,
Plaintiff,
VS. No. M 43-73 CA
KENNETH SHOULDICE, et al.,
Defendants.
OPINION
This is an action brought pursuant to 42 U.S.C. §1983 for
damages, reinstatement and back pay by a former professor at
Lake Superior State College (hereinafter ‘‘LSSC’’). In 1973,
the plaintiff instituted this action, alleging that he was not
reappointed to the faculty of LSSC in retaliation for actions or
conduct protected by the First Amendment to the United States
Constitution. The defendants herein are Kenneth Shouldice,
president of LSSC; Leon Linderoth, Chairman of the depart-
ment in which the plaintiff taught; and LSSC.
The ‘‘Legal’’ claims presented by the plaintiff have been
submitted to a jury. Initially, the jury returned a general ver-
dict which was inconsistent with its answers to accompanying
interrogatories. Specifically, the jury found that the plaintiff
was terminated for reasons violating the First Amendment,'
but also found that he would have been terminated even in the
absence of his First Amendment actions. Based upon such fac-
tual determinations, the jury should have returned a general
verdict in favor of the defendants, Mt. Healthy School District v
49a
Doyle, 429 U.S. 274 (1977), and the Court’s jury instructions
so indicated. This notwithstanding, upon resubmission the
jury found in favor of the plaintiff and against defendants
Shouldice and Linderoth awarding nominal damages against
them in the amount of $1.00 and $2.00 respectively.
Pursuant to the provisions of Fed.R.Civ.P. 49(b), the
Court, after additional instructions, ‘‘return[ed] the jury for
further consideration of its answers and verdict ... .’’ Subse-
quently, the jury returned its general verdict unchanged, but
with answers to interrogatories indicating that the plaintiff
would not have been terminated in the absence of his First
Amendment actions.
When legal and equitable claims are presented in the same
action, the legal claims are tried first before the jury, and the
equitable claims are resolved thereafter by the Court in light
of the jury’s determination. Dairy Queen v Wood, 369 U.S. 469
(1962). Thus, presently before the Court are plaintiff's equi-
table claims for back pay and reinstatement. Arguments were
heard and evidence received with respect thereto on June 16,
1980.
Uj
Plaintiff's claims for back pay and reinstatement against
LSSC face a fundamental obstacle. On the opening day of
trial LSSC filed a motion to dismiss based upon the Eleventh
Amendment. Despite plaintiff's assertions to the contrary, the
motion is determined to be timely for the reason that the
Eleventh Amendment is treated as jurisdictional and can be
raised at any time, even when on appeal. Edelman v Jordan, 415
U.S. 651 (1974).
»
50a
The Eleventh Amendment provides as follows:
The Judicial power of the United States shall not be con-
strued to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of
any Foreign State.
Although not barred by its own terms, the Eleventh Amend-
ment has long been held to immunize unconsenting States
from suits brought by its own citizens in federal courts. Hans v
Loutsiana, 134 U.S. 1(1890). Moreover, the Eleventh Amend-
ment applies not only to states as expressly named defendants,
but also to officers, agencies, and institutions which are part of
the state function. Alabama v Pugh, 438 U.S. 781 (1978); Mt.
Healthy School District » Doyle, supra; Edelman v Jordan, supra;
Ford Motor Company v Department of Treasury, 323 U.S. 459
(1945).
LSSC is a state institution of higher learning created by an
act of the Michigan legislature. Mich, Comp. Laws $390,391.
Its charter explicitly declares it to be a ‘state institution’’ to be
‘‘maintained by the state’’ for the use of ‘‘all qualified
residents of this state.’’ Id. Nothing in the charter of LSSC
states or implies that it is anything other than a state institu-
tion entitled to the privileges and immunities of the state. Cf,
Korgich v Regents of the New Mexico School of Mines, 582 F.2d 549
(10th Cir. 1978); Martin v University of Louisville, 541 F.2d 1171
(6th Cir. 1976); Skehan v Board of Trustees, 590 F.2d 470, 486
(3rd Cir, 1978).
It is therefore determined that an award of back pay against
the college or its officers in their official capacities is barred by
the Eleventh Amendment:
Edelman made clear that, absent consent to suit by the
state, a federal court may not award relief against state
5la
officers or agencies that constitute a compensatory
money judgment payable out of the state treasury, even if
that relief is labeled as equitable in nature. 415 U.S. at
666, 94 5.Ct. 1347,
Skehan, supra, at 486,
Somewhat different considerations are involved in ruling
upon the plaintiffs request for reinstatement. In the land-
mark decision of Ex parte Young, 209 U.S. 123 (1908), the
Court held that the Eleventh Amendment was not a bar to pro-
spective relief against the Attorney General of Minnesota en-
joining him from enforcing the provisions of a statute claimed
to violate the Fourteenth Amendment. The Court reasoned
that:
[I]f the act which the state Attorney General seeks to en-
force be a violation of the Federal Constitution, the of-
ficer in proceeding under such enactment comes into
conflict with the superior authority of that Constitution,
and he is in that case stripped of his official or represen-
tative character and is subjected in his person to the con-
sequences of his individual conduct, The State has no
power to impart to him any immunity from responsibili-
ty to the supreme authority of the United States,
209 U.S. at 160. It is concluded, therefore, that ‘‘a federal
court, consistent with the Eleventh Amendment, may enjoin
state officials to conform their future conduct to the re-
quirements of federal law even though such an injunction may
have an ancillary effect on the state treasury.’’ Quern v_ Jordan,
440 U.S. 332, 337 (1979).
However, such a conclusion does not permit a court to
enter an injunction or order directly against the state. This is
apparent from Alabama v Pugh, 438 U.S. 781 (1978), in which
the district court had ordered measures designed to eradicate
52a
certain conditions in Alabama prisons. On appeal the Supreme
Court declared that a mandatory injunction against the State
of Alabama and the Alabama Board of Corrections was
impermissible:
There can be no doubt, however, that suit against the
State and its Board of Corrections is barred by the
Eleventh Amendment .... Moreover, the question of
the State’s Eleventh Amendment immunity is not merely
academic. Alabama has an interest in being dismissed
from this action in order to eliminate the danger of being
held in contempt if it should fail to comply with the man-
datory injunction.
438 U.S. at 782. Thus, LSSC’s motion to dismiss must be
granted, and it cannot be ordered to reinstate the plaintiff.
Nevertheless, under the doctrine of Ex parte Young, this
Court is empowered to order the appropriate state officials to
reinstate the plaintiff to the faculty of LSSC. It appears,
however, that this course of action is also unavailable because
the power to reinstate this plaintiff is in the Board of Control
by majority vote, Mich. Comp. Laws §390.394, and its
members have not been named as defendants.? The plaintiff
was advised of this deficiency by the Court during the oral
arguments on June 16, 1980, and was challenged to produce
appropriate authority as to how reinstatement might be ef-
fected. He requested, and was given, additional time in which
to file an appropriate brief.
In response to the Court’s inquiry, the plaintiff has moved
to amend his complaint to name the individual members of
the Board of Control as defendants in their official capacities.
He asserts that this motion should be granted pursuant to
Fed.R.Civ.P. 15. This Court, however, is unable to agree
53a
that Rule 15 contemplates the addition of parties after the trial
of the case has been completed.
The plaintiff relies on language in Rule 15 permitting
amendments ‘‘even after judgment.’’ That language, how-
ever, relates only to issues not raised in the pleadings which
were tried with the express or implied consent of the parties.
Only by the most strained kind of reasoning could such lan-
guage be construed to apply to the addition of new parties,
and the Court has found no support for the position advanced
by the plaintiff in the cases cited in his brief or in its own
research.
The case characterized by the plaintiff as ‘‘most directly on
point’’ is Hutto v Finney, 437 U.S. 678 (1978), in which at-
torney’s fees were awarded against a state and its department
of corrections even though they apparently were not named as
defendants in that action. The reasoning in that case, how-
ever, clearly would not have application to the instant con-
troversy. The award of attorney’s fees by the district court was
justified as ‘‘ancillary’’ to prospective injunctive relief against
state officers. Hutto unmistakenably affirms the principle that
the Eleventh Amendment forbids an injunction directly against
the state. Id., at 690.
Here, after the trial of this case has been fully completed,
the plaintiff urges this Court to substitute the appropriate state
officials as defendants. Such reasoning, however, would com-
pletely eviserate the distinction between a state and its officers.
These officials should have been named as defendants at the
time this litigation was commenced, or at least added by an
appropriate motion prior to trial. The Court finds no authori-
ty for joining them as defendants at this stage of the pro-
ceedings,’ and accordingly the plaintiff's prayer for reinstate-
ment is denied.
54a
II.
There remains tor consideration an award of back pay
against the individual defendants in their individual capac-
ities.* In performing their function as college officials, these
defendants have a qualified immunity from liability for dam-
ages. Such immunity is lost, however, ifa defendant ‘*knew or
reasonably should have known that the action he took within
his sphere of official responsibility would violate the constitu-
tional rights [of the plaintiff], or if he took the action with the
malicious intention to cause a deprivation of constitutional
rights or other injury [to the plaintiff].’’ Wood v Strickland, 420
U.S. 308, 322 (1975).
The jury was instructed according to this standard and re-
turned a verdict awarding nominal damages against both in-
dividual defendants. Accordingly, it must be concluded that
the jury found facts which divest these defendants of their im-
munity, and therefore, the defendants are liable for any back
pay to which the plaintiff may be entitled. The plaintiff is en-
titled to recover as back pay what he would have earned had
he been permitted to remain on the faculty, reduced by the
amount he earned elsewhere. Rolfe v County Board of Education,
391 F.2d 77 (6th Cir. 1968). The defendants have failed to
prove that other suitable positions were available which the
’ plaintiff might have obtained. Sparks v Griffin, 460 F.2d 433
(5th Cir. 1972), and therefore the amount of back pay awarded
should not be reduced because the plaintiff failed to properly
obtain other employment.
During his presentation of evidence as to the amount of
back wages claimed, the plaintiff reduced the amount he had
earned elsewhere by 25 percent to reflect that such earnings
were in a twelve month position, whereas his earnings at
LSSC would have been tor nine months. The Court, however,
55a
does not believe that such reduction is appropriate, and the
plaintiff has failed to cite any authority in support of this posi-
tion. There is not proof that the plaintiff would have earned
additional money during the summer if he had been employed
at LSSC, and the Court is unable to ascertain a basis for
reducing plaintiffs actual earnings as he suggests. Rather, the
income actually earned is subtracted from that which would
have been earned at LSSC. After making this calculation,’ the
Court concludes that the amount of back pay to be awarded is
$45,696.
Ill.
For the reasons stated herein, LSSC’s motion to dismiss is
granted and plaintiffs motion to amend his complaint is
denied. Judgment shall be entered in favor of the plaintiff, and
damages shall be awarded against defendants Shouldice and
Linderoth, in the amounts hereinbefore stated.
IT ISSO ORDERED.
/s/ WENDELL A. MILES
Wendell A. Miles,
Chief District Judge
Dated: September 19, 1980
56a
FOOTNOTES
' The jury determined that plaintiff's activities in the
American Association of University Professors and his
counseling of an expelled student were substantial and
motivating factors in the decision to terminate his employ-
ment at LSSC.
? Creighton D. Holden, Chairman of the Board of Control of
LSSC, was originally named as a defendant in this action, but
was dismissed as a party earlier in these proceedings. Since the
Board of Control acts by a majority vote, his dismissal is not
relevant to the present analysis.
’ Plaintiffs argument suggests that nothing more than a
change in form would occur by adding members of the Board
of Control as defendants. However, such action would place
them in the position of being held in contempt for violation of
an order emanating from a trial in which they were not par-
ties. Thus, more than mere form is involved and the instant
motion is simply too late.
* There is some authority suggesting that back pay awarded
against an individual defendant in his individual capacity is a
‘‘legal’’ remedy and therefore is a question for the jury. See
Farr v Chesney, 441 F. Supp. 127 (M.D. Penn. 177). However,
in the case at bar, the parties agreed that all questions of back
pay should be treated as equitable and therefore it is un-
necessary to resolve this issue.
This Court chooses to follow the position taken by Judge
Weick in Hildebrand v Board of Trustees of Michigan State Unwerst-
ty, 607 F.2d 763, at 713:
This case involves legal as well as equitable claims.
The legal claim is for compensatory and punitive
57a
damages charging a conspiracy and violations of the con-
stitutional rights of plaintiff, an untenured teacher at
Michigan State University, arising out of the failure of
the University to reappoint plaintiff at the expiration of
his term of employment so that he could obtain tenure.
The equitable claim is for reinstatement with back pay
under 42 U S.C. §1983.
° With the exception noted above, the Court has adopted the
calculations proposed by the plaintiff in determining the dollar
amount of back pay:
Amount
that
plaintiff
would have Plaintiff 's
earned at actual
Year LSSC Year earnings
72-73 $ 12,020 6/72-12/72 $ 10
73-74 13,185 1973 1,800
74-75 13,948 1974 3,212
75-76 14,952 1975 6,664
76-77 16,357 1976 9,735
77-78 17,371 1977 10,486
78-79 20,583 1978 15,628
79-80 22,023 1979 24,208
1/80-6/80 13,000
Totals $130,439 $84,743
$130,439
— 84,743
$ 45,696 Amount of back pay awarded
Judgment
JUDGMENT ON DECISION BY THE COURT
(Filed September 23, 1980)
United States District Court
for the
Western District of Michigan
Northern Division
RoBERT STERN
VS.
KENNETH SHOULDICE, et al
Civil Action File
No. M 43-73 CA
JUDGMENT
This action came on for trial (hearing) before the Court,
Honorable Wendell A. Miles, Chief, Uuited States District
Judge, presiding, and the issues having been duly tried
(heard) and a decision having been duly rendered.
It is Ordered and Adjudged that plaintiff recover from
defendant Kenneth Shouldice $1.00 and from defendant Leon
Linderoth $2.00 and from said defendant, jointly and several-
ly, the amount of $45,696.00 as provided by law.
It is further Ordered and Adjudged that Lake Superior
State College be dismissed as a defendant herein.
Dated at Grand Rapids, Mich., this 23rd day of Sept.,
1980. Gerald H. Liefer, Clerk.
f id
/s/ ADAM LONGFELD
Deputy Clerk of Court
59a
Opinion on Motions
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
(Filed January 15, 1981)
RosBert STERN,
Plaintiff,
vs. No. M 43-73 CA
KENNETH SHO’ ‘ICE, et al.,
Defer. ats.
OPINION ON MOTIONS
By opinion dated and filed September 19, 1980, this Court
entered judgment against Kenneth Shouldice and Leon
Linderoth, in their individual capacities, in the amount of
$45,696. This amount represented the back pay which plain-
tiff had lost as a result of defendants’ illegal conduct in termi-
nating plaintiff's employment at Lake Superior State College
in retaliation for his constitutionally protected activities.
The Court considered plaintiff's claims for back pay and
reinstatement, those being equitable claims, after a jury had
found in favor of plaintiff on his legal claims and awarded
nominal damages against the individual defendants. This pro-
cedure, under which a jury first decides a plaintiff's legal
claims and the court then decides the equitable claims in-
volved is the standard manner by which federal courts protect
the parties’ right to a jury trial in a case involving both legal
and equitable issues. Dairy Queen v Wood, 369 U.S. 469, 82
S.Ct. 894, 8 L.Ed 2d 44 (1962), Hildebrand v Board of Trustees of
Michigan State University, 607 F.2d 705 (6th Cir. 1979). It was
also the procedure agreed to by all the parties in this case prior
to submitting the case to the jury.'
As part of the judgment the Court dismissed Lake Superior
State College as a defendant because of its Eleventh Amend-
ment immunity from suit deriving from its status as a state en-
tity. This Court also determined that it could not order the
plaintiff reinstated because (1) an order could not be directed
to the state directly, and (2) the proper individuals, who could
be ordered to reinstate the plaintiff, were not before the court.
However, the court did order defendants Shouldice and
Linderoth, as individuals, to pay the back pay to which plain-
tiff is entitled. The Court is empowered to make this order
because the finding of the jury that these individual defen-
dants had violated plaintiff's First Amendment rights stripped
them of their inherent immunity as state officials. Wood v
Strickland, 420 U.S. 308 (1975).
Defendant’s Motion to Amend Judgment
The defendants have now moved to amend the judgment to
eliminate this back pay award.? They argue that back pay
awarded against individual defendants is an element of
damages, is no longer equitable, and therefore should have
been submitted to the jury. They further argue that because the
Court cannot order reinstatement, it also cannot order back
pay since back pay is ‘‘incidental’’ to an order of reinstatement.
The defendants’ motion to amend the judgment is denied.
In the first place, the defendants agreed prior to trial that rein-
statement and back pay would be decided by the Court.
Although the defendants have a right to have legal issues
decided by a jury, that right can be waived. Even assuming
6la
that the back pay award in this case was a ‘‘legal’’ matter, the
defendants, prior to trial, waived their right to have the matter
tried by a jury.
Beyond that, however, the Court does not agree that the
back pay award, because it was entered against the defendants
in their individual capacities, loses its equitable nature and
must be submitted to a jury in the absence of a waiver.’ Ad-
mittedly, there is some authority for the proposition that back
pay recovered from individual defendants becomes an ele-
ment of damages and is no longer incidental to the equitable
remedy of reinstatement. Skehan v Board of Trustees of
Bloomsburg State College, 501 F.2d 31 (3rd Cir. 1974). However,
the issue before the Third Circuit in Skehan was not the ques-
tion of whether the back pay award was legal or equitable for
purposes of determining the right to a jury trial. Futhermore,
the holding of the Court in Skehan, that back pay awards
against individuals can be considered damages, is not disposi-
tive of the question presented here. The Sixth Circuit stated in
Hildebrand that:
A key dividing line between law and equity has histori-
cally been that the former deals with money damages and
the latter with injuctive relief. This distinction has been
blurred by court decisions indicating that not all money
damages claims will be deemed ‘‘legal’’. [emphasis added]
supra, at 708. Thus, even if the back pay award in this case is
considered to be money damages, it may still be considered an
equitable remedy appropriate for decision by the court.
In fact, the Sixth Circuit expressly ruled in Hildebrand that a
right to back pay may be decided by the court.
.. the chief focus to be made when determining
whether a jury trial right exists is the nature of the relief
sought. If the remedy sought is injuctive relief and/or
62a
back pay, no jury trial right attaches. In the ordinary
case, if the relief sought includes compensatory and/or
punitive damages, then there does exist a right to trial by
jury. [supra, at 708.]
The Court sees no indication in this holding that the equitable
nature of a back pay award depends upon who is ordered to
pay the award or in what capacity they are ordered to pay it.
The award in this case was calculated and ordered strictly
because the plaintiff had been unconstitutionally deprived of
his position and his salary. As the court in Hildebrand held, the
plaintiff's right to receive the back pay which defendants
-wrongfully deprived him of rests in equity and is triable by the
court,
Therefore, the judgment of $45,696 in back pay entered by
this Court against the individual defendants was proper and
will not be amended. The defendant’s motion is denied.
Plaintiff's Motion for Attorney’s Fees
Costs and Prejudgment Interest
Plaintiff has moved for an amended judgment to allow him
to recover costs, prejudgment interest, and attorney’s fees.
In a civil rights action under 42 U.S.C. §1983, the trial
court has discretion to allow the prevailing party to recover
attorney’s fees by provision of 42 U.S.C. §1988. This discre-
tionary authorization has been interpreted to ordinarily allow
a prevailing plaintiff to recover a reasonable attorney’s fee ab-
sent some special circumstance. Jranian Students Association v
Edwards, 604 F.2d 352 (5th Cir. 1979), Monroe v County Board of
Education, 583 F.2d 263 (6th Cir. 1978). Numerous factors
have been suggested for guiding a court's determination of
what constitutes a reasonable attorney's fee. See Rainey v
of
> >
[wr
63a
Jackson State College, 551 F.2d 672 (5th Cir. 1977) and King v
Greenblatt, 560 F.2d 1024 (1st Cir. 1977), cert denied, 98 S.Ct.
3146, 438 U.S. 916, 57 L.Ed 2d 1161. Among these factors
are the time and labor expended by counsel, the difficulty of
the case, the experience, reputation and ability of counsel, the
customary fee or rate in the community, as well as other cir-
cumstances touching upon the reasonableness of the fee.
Attorney's fees have been allowed in the context of an
unconstitutional termination of a teacher fron public employ-
ment. Perez v University of Puerto Rico, 600 F.2d 1(1st Cir.
1979), Stoddard y School District No. 1, 590 F.2d 829 (10th Cir.
1979), Brown v Bathke, 566 F.2d 588 (8th Cir. 1977), The
Court sees no special circumstances in this case which would
prevent the plaintiff as the prevailing party from recovering
his attorney’s fees. The fact that only a private right was in-
volved, rather than a public question, has been held to be ir-
relevant in awarding attorney’s fees under §1988. Perez, supra,
Zarcone v Perry, 581 F.2d 1039 (2d Cir. 1978). Equally irrele-
vant is the fact that plaintiff's attorneys were originally re-
tained on a contingency fee basis — that is not a ‘‘special cir-
cumstance’’ which prevents the recovery of attorney’s fees.°
Sargeant v Sharp, 579 F.2d 645 (1st Cir. 1978). Therefore,
plaintiff is entitled to an award of reasonable attorney’s fees.
This Court must determine what a reasonable fee in this case
will be.
The general practice in calculating a reasonable attorney’s
fee is to calculate the hours actually spent by the attorneys, to
decide if this amount of time was reasonably necessary to ade-
quate representation, and to multiply that time by a reason-
able hourly rate. This practice has been approved by the Sixth
64a
Circuit in Oliver v Kalamazoo Board of Education, 576 F.2d 714
(6th Cir. 1978):
Attorney’s fees awards should be high enough to attract
competent counsel yet not so high as to provide a windfall
for them. Multiplying the number of hours properly
spent times a reasonable hourly rate is sufficient to serve
this goal.
However, a court is clearly not restricted to such methods and
may adjust an attorney fee to reflect circumstances not reflected
in a straightforward calculation of hours spent times hourly
rate. See Monroe v County Board of Education, supra, and Keown v
Storti, 456 F. Supp. 232 (D.C. Pa. 1978), affirmed 601 F.2d 575
(3rd Cir, 1978).
In the instant case, plaintiff's counsel has submitted two
affidavits, one after each trial of this matter, asserting total
hours spent on this case of 306 hours over three and one-half
years. In addition, counsel states that a predecessor attorney,
who originally filed the complaint on behalf of the plaintiff in
1973, put in some 200 hours of work. Apparently no accurate
records were kept at that time because the case was taken on a
contingency fee basis and §1988 had not yet been amended to
provide for attorney's fees in such cases. Altogether, plaintiff
requests an award of not less than $37,758.44 in attorney’s
fees.
As regards the 306 hours accounted for by plaintiff's coun-
sel’s affidavit, the Court finds that this was a reasonable
amount of time expended over three years and two trials.® A
reasonable hourly rate for this time is $60 per hour. The Court
notes that this average hourly rate takes into account that trial
time is normally compensated at a higher rate than non-trial
time. The reasonable fee calculated by this method is there-
fore $18,360. However, the Court will adjust this figure up-
65a
ward to reflect (1) the contribution of the prior attorney, and
(2) the difficulty to present counsel caused by taking over the
case just prior to the first trial. The total attorney’s fee granted
will be $20,360.
Under Federal Rule of Civil Procedure 54(d) costs are gen-
erally allowed to a prevailing party as a matter of course. No
circumstances present here militate against this general rule.
Therefore the bill of costs submitted by plaintiff is accepted
and judgment will be entered entitling plaintiff to recover his
costs of $2,798.55.
The plaintiff has also asked for prejudgment interest on the
back pay award. The general rule is that interest runs as a
matter of right on a liquidated claim. Bituminous Casualty Corp.
v Lynn, 503 F.2d 636 (6th Cir. 1974). When the amount of a
claim is readily ascertainable and not in dispute it is liqui-
dated. Lynn, supra. A claim for back pay, based as it is on a
designated salary or salary scale, is by its nature a liquidated
claim. Furthermore, an allowance of prejudgment interest is
particularly appropriate where an award of back pay is made,
since without it the employer is unjustly enriched at the ex-
pense of the employee. McClanahan v Mathews, 440 F.2d 320
(6th Cir. 1971).
Therefore, prejudgment interest will be allowed in the
amount of $15,585.22 representing 6% interest on plaintiff's
back pay entitlement as that entitlement accrued.
In summary, judgment in this case will be amended to
reflect an award in favor of the plaintiff of $20,360 in
attorney’s fees, $2,798.55 as other costs, and $15,585.22 in
prejudgment interest on the back pay award.
66a
Defendant Colleges Motion for Costs
and Attorney’s Fees
Lake Superior State College has moved for an award of
costs and attorney’s fees against the plaintiff on the theory that
it is a prevailing party. The college was dismissed from this
suit because the Eleventh Amendment prevented this court
from ordering plaintiff's reinstatement or back pay directly
against a state-run college. Nevertheless, the jury did return a
verdict against both the president of the college and plaintiff's
department chairman in their individual capacities. The fact
that plaintiff obviously did have a valid cause of action against
high-ranking officials of Lake Superior State College makes it
clear that including the college as a party defendant was
neither frivolous nor done in bad faith. There was a legitimate
and substantial question as to the college’s liability.
The case law and legislative history make clear that the
attorney fee provision of §1988 were intended to compensate
prevailing plaintiffs as a matter of course in civil rights ac-
tions. In the case of a prevailing defendant, however, recovery
of attorney’s fees will only be allowed if the plaintiffs suit was
frivolous, vexatious or brought for harrassment purposes.
Hughes v Rowe, 101 S.Ct. 173 (1980), Christiansburg Garment
Co. v EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed 2d 648
(1978), Lopez v Arkansas County Independent School District, 570
F.2d 541 (5th Cir. 1978), Hughes v Repko, 578 F.2d 483 (3rd
Cir. 1978). The plaintiff's sui against Lake Superior State
College was neither frivolous, vexatious, groundless, nor
brought for harrassment purposes; therefore the school’s mo-
tion for attorney’s fees is denied.
The College has also asked to recover its costs. The three
defendants in this case shared the same counsel throughout,
i
r ‘a -
z
o PEE ae Oe
67a
and there was essentially only one defense. The costs of defend-
ing the defendant college were identical to the costs of defend-
ing the individual college officials. Therefore, although the
college may theoretically be a prevailing party, allowing it to
recover its costs from plaintiff, who won his case, would in
these circumstances be unjust. The motion for costs to the col-
lege must therefore be denied.
IT IS SO ORDERED.
/s/ WeNDELLA. MILEs,
Wendell A. Miles,
Chief District Judge
Dated: January 14, 1981
FOOTNOTES
' This case has been tried twice by different juries. After the
first trial the court granted defendants’ motion for a new trial.
At the second trial, no reinstatement or back pay issue was
submitted to the jury.
2 Within the ten day time limit the defendants filed alterna-
tive motions for judgment notwithstanding the verdict, a new
trial, or for an amended judgment. Since then, however, in
briefs and at oral argument, they have only argued for an
amended judgment so only that motion is before the court. In
any event, defendants have not stated any grounds which
would entitle them to JNOV or to a new tiral.
’ As this court stated in a prior opinion in this case:
. in many situations courts are faced with difficult
assessments of claims to determine whether they are
®
. ne
ites
a
inherently equitable or inherently legal. With the aboli-
tion of the division between law and equity, this distinc-
tion in many cases becomes virtually a distinction without
a difference.
(Opinion filed June 16, 1978). The truth of this statement is
amply demonstrated by the issue presently before the court.
* The defendants’ other argument — that because the defen-
dants cannot be ordered to reinstate the plaintiff they cannot
be ordered to pay him back pay — is without merit. The
plaintiff is entitled to reinstatement but the court does not
have jurisdiction over the necessary parties to order such rein-
statement. Although the individual defendants do not have
the power to reinstate the plaintiff, they do have the power to
pay him money, which is all that they are required to do by the
judgment.
° Even so, the existence of a contingency fee agreement may
be relevant in determining the amount of the fee. The court
notes that the total recovery in this case will be approximately
$60,000 in back pay and prejudgment interest. Therefore, the
attorneys’ fee allowed will, by coincidence, represent an
approximate one-third contingency, which plaintiffs counsel
has stated was the original agreement between him and plain-
tiff. This further convinces the court that the attorneys’ fee
granted in this case is a reasonable one.
° This time must be deemed particularly reasonable in light
of the averments of defendants’ counsel that they expended
over 1,000 hours in preparaton and trial of this case.
69a
Judgment
JUDGMENT ON DECISION BY THE COURT
(Filed February 12, 1981)
United States District Court
for the
Western District of Michigan
Northern Division
ROBERT STERN
Civil Action
_ File No. M 43-73
KENNETH SHOULDICE, et al.
x
JUDGMENT
This action came on for trial (hearing) before the Court,
Honorable Wendell A. Miles, United States District Judge,
presiding, and the issues having been duly tried (heard) and a
decision having been duly rendered,
It is Ordered and Adjudged
Judgment is hereby amended. In addition to $45,696 in
back pay awarded to plaintiff, plaintiff is awarded $20,360 in
attorneys fees, $2,798.55 as other costs, and $15,585.22 in
pre-judgment interest. '
Dated at Grand Rapids, Michigan, this 12th day of
February, 1981.
Gerald H. Liefer,
Clerk of Court
70a
/s/ Rosert W. PowE.Lt
Robert W. Powell
Deputy Clerk
No. 81-1156
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
(Filed July 15, 1981)
ROBERT STERN,
Plaintiff-A ppellee
Vv.
KENNETH SHOULDICE, et al.,
Defendants-A ppellants
ORDER
Upon consideration of plaintiff-appellee’s motion to
dismiss this appeal for lack of jurisdiction and the response
submitted in relation thereto,
It is determined that the motion to dismiss is frivolous and
entirely without merit. It is expressly provided under Rule
4(a)(6), Federal Rules of Appellate Procedure, that a judg-
ment or order entered within the meaning of Rule 4(a) 1s
deemed so entered when it complies with Rule 58, Federal
Rules of Civil Procedure. Under this latter rule and inter-
pretive case law authority, a judgment must be entered on a
separate document which, requirement, may be waived only
when the parties would not be prejudiced by the absence of the
separate document. Bankers Trust Co. v Mallis, 435 U.S. 381
(1978). Since a separate judgment was entered in this case
7la
pursuant to Rule 4(a)6, Federal Rules of Appellate Pro-
cedure, the appellate time clearly did not begin to run with the
filing of the earlier opinion because it was not properly
entered, as yet, until the separate judgment was entered.
Since the notice of appeal was filed within thirty days
thereafter, this Court possesses jurisdiction to entertain this
appeal.
It is, accordingly, ORDERED that the motion to dismiss
be and hereby is denied.
ENTERED BY ORDER OF THE COURT
/s/ Joun P. HEHMAN
Clerk
No. 81-1156
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
(Filed November 5, 1982)
RoBert STERN
Plaintiff-A ppellee
VS.
KENNETH SHOULDICE, et al.
Defendants-A ppellants
Before: KEITH and CONTIE, Circuit
Judge; and MORTON, District
Judge.*
* The Honorable L. Clure Morton, Chief Judge of the United States
District Court for the Middle District of Tennessee, sitting by designation.
72a
ORDER
Defendants Kenneth Shouldice and Leon Linderoth appeal
from a judgment entered in the captioned case on Septem-
ber 23, 1980, as amended to allow attorneys’ fees and costs on
February 12, 1981. The appellee has filed a motion to dismiss
this appeal as being untimely.
The sequence of events is as follows: The district judge filed
an opinion on September 19, 1980, which was followed by a
judgment reflecting the written opinion and a jury verdict on
September 23, 1980. By the judgment, plaintiff was awarded
damages. On October 3, 1980, defendants filed a pleading
styled *‘ Motion for Judgment Notwithstanding the Verdict or
New Trial or Amendment of the Judgment.’’ In the alter-
native defendants, by this document, sought a judgment
n.o.v., a new trial, or the deletion of any award of damages or
back pay. By an opinion which ended ‘‘IT IS SO OR-
DERED”’, dated January 14, 1981, all of the relief sought by
defendants was denied. However, by judgment entered
February 12, 1981, attorneys’ fees and costs were allowed as
provided in the January 14, 1981, document. Notice of this
appeal was filed on March 6, 1981.
Rule 4(a)(4) of the Federal Rules of Appellate Procedure
provides that the time for appeal begins to run from the entry
of an order denying relief. The relief sought by defendants was
denied on January 14, 1981. Napier v Delaware, Lackawanna &
Western R.R. 223 F.2d 28 (2d Cir. 1955); Lindsey v Perini, 409
F.2d 1341 (6th Cir. 1969); Smith v Hudson, 600 F.2d 60 (6th
Cir. 1979). The judgment for attorney’s fees and costs did not
prolong the time for filing a notice of appeal. White v New
Hampshire Dep't of Employment Security, 455 U.S. , 102
S.Ct. 1162, 71 L.Ed.2d 325 (1982).
73a
Rule 4(a)(5) of the Rules of Appellate Procedure provides
that the district court, upon motion and a showing of ex-
cusable neglect, may extend the time for filing a notice of ap-
peal if said motion is filed within 30 days of the date when the
time to appeal has expired. However, under no circumstance
can there be an extension of more than 30 days. Lindsey v
Perini, supra. Thus, fifty-one days having elapsed before notice
of appeal, the district judge on remand could grant no relief in
this case.
The appeal is dismissed.
ENTERED BY ORDER OF THE COURT
/s/ Joun P. HEHMAN
Clerk
No. 81-1156
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
(Filed January 20, 1983)
Rosert STERN
Plaintiff-Appellee
vs.
KENNETH SHOULDICE, etc., et al.
Defendants-A ppellants
Before: KEITH and CONTIE, Circuit
Judges; and MORTON, District
Judge.*
* The Honorable L. Clure Morton, Chief Judge, United States District
Court for the Middle District of Tennessee, sitting by designation.
74a
ORDER
Defendants-Appellants in the above-captioned case have
filed a petition for rehearing and a motion for permission to
file a petition for rehearing in excess of fifteen pages under
Rule 40 of the Federal Rules of Appellate Procedure. The
petition and motion are in response to this court’s order of
November 5, 1982 which dismissed appellants’ appeal as be-
ing untimely filed.
Appellants’ petition and motion are granted. Appellants
shall immediately serve upon the plaintiff-appellee a copy of
the petition for rehearing and the accompanying memoran-
dum of law. Appellee shall file a response to appellants’ peti-
tion by February 4, 1983.
ENTERED BY ORDER OF THE COURT
/s/ Joun P. HEHMAN
Clerk
No. 81-1156
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
(Filed March 25, 1983)
ROBERT STERN
Plaintiff-A ppellee
Vs.
KENNETH SHOULDICE, et al.
Defendants-A ppellants
75a
Before: KEITH and CONTIE, Circuit
Judges; and MORTON, Chief
District Judge. *
* The Honorable L. Clure Morton, Chief Judge, United States District
Court for the Middle District of Tennessee, sitting by designation.
ORDER
Defendants-appellants in the above captioned case have
filed a petition for rehearing in response to this court’s order of
November 5, 1982 which dismissed appellants’ appeal as be-
ing untimely filed.
Having considered the materials submitted by the parties
pursuant to this court's order of January 20, 1983, the court
grants appellants’ petition for rehearing.
ENTERED BY ORDER OF THE COURT
/s/ Joun P. HEHMAN
Clerk
76a
No. 81-1156
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
(Filed March 25, 1983)
RosBert STERN
Plaintiff-A ppellee
vs.
KENNETH SHOULDICE, et al.
Defendants-A ppellants
Before: KEITH and CONTIE, Circuit
Judges, and MORTON, Chief
District Judge. *
ORDER
By separate order entered on this date, the court granted
appellants’ petition for rehearing in the above captioned case.
Accordingly, this court's order of November 5, 1982, which
dismissed appellants’ appeal as being untimely filed, is
VACATED.
ENTERED BY ORDER OF THE COURT
/s/ Joun P. HEHMAN
Clerk
* The Honorable L. Clure Morton, Chief Judge, United States District
Court for the Middle District of Tennessee, sitting by designation.
77a
RECOMMENDED FOR FULL-TEXT PUBLICATION
See, Sixth Circuit Rule 24
No. 81-1156
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RoBEnRT STERN, On AppeaL from the
Plaintif-Appellee,| United States District
Ve Court for the West-
KENNETH SHOULDICE, et al., ei District of Michi-
Defendants-Appellants.
_ Decided and Filed April 15, 1983
Before: KerrH and Contig, Circuit Judges; and Morton, .
Chief District Judge.°
Contig, Circuit Judge. This is the rehearing of an appeal
by Dr. Kenneth Shouldice and Dr. Leon Linderoth of a district
court judgment rendering them liable for instigating the ter-
mination of Dr. Robert Stern, an assistant professor of speech
and drama at Lake Superior State College in Michigan. Stern
sued under 42 U.S.C. § 1983, alleging that he was denied
academic tenure in retaliation for exercising first amendment
rights. The jury awarded damages to Stern in the amount of
*The Honorable L. Clure Morton, Chief Judge, United States
Court for the Middle District of Tennessee, sitting by
designation.
78a
2 Stern v. Shouldice, et al. No. 81-1156
$2.00 against Linderoth and $1.00 against Shouldice. Pursuant
to equitable powers, the trial judge assessed $45,696.00 back
pay against Shouldice and Linderoth in their individual ca-
pacities. The court later granted Stern $15,585.22 in pre-
judgment interest and $23,158.55 in costs and attorney’s fees.
Although we affirm the assessment of nominal damages, costs
and attorney's fees, we reverse the award of back pay and
pre-judgment interest.
I,
Lake Superior State College became an independent aca-
demic institution on January 1, 1970. Though governed by an
eight-member Board of Control, the College’s chief executive
officer was defendant Shouldice, its president. Defendant
Linderoth headed the Arts and Letters division. Robert Stern,
the plaintiff, joincd the faculty in September, 1967. During
his sojourn at the College, Stern served on the Faculty Sen-
ate and on the Administrative Counsel, the highest admini- .
strative body on campus. Stern also became president of the
local chapter of the American Association of University Pro-
fessors (AAUP).
This litigation resulted from Stern’s claim that he was denied
tenure in retaliation for exercising first amendment rights on
two separate occasions. The first situation concerned an ar-
ticle, written by Professor Kaplan of the University of Michi-
gan, which appeared in the AAUP Michigan Newsletter.
Kaplan authored the piece after visiting the College in Decem-
ber, 1969. A draft of the article, which was somewhat critical
of Shouldice and the College in general, was submitted to the
College’s chapter of AAUP so that the latter could correct any
inaccuracies. The group suggested minor changes and re-
turned the draft. Just before publication in January, 1970,
Kaplan sent a copy of the revised article to Shouldice. Believ-
ing that the piece contained serious factual errors, Shouldice
met with Stern who in turn suggested that the president call
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No. 81-1156 Stern v. Shouldice, et al. 3
Kaplan. Shouldice did so but was told that the article had
already gone to press.
Shouldice was concerned about adverse publicity because
the College had only recently achieved independence and be-
cause the school was compcting for qualified faculty in what
was then a scarce market. He therefore wrote a reply to
Kaplan’s article, but the A
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