227 F.3d 133 (3rd Cir. 2000), 98-7611, Nicholas v PA State University

Docket Nº:98-7611
Citation:227 F.3d 133
Party Name:W. CHANNING NICHOLAS, M.D., Appellant v. PENNSYLVANIA STATE UNIVERSITY, by its officers, agents and Trustees; WILLIAM EVANS, PH.D., individually and as Director of the Noll Human Performance Laboratory
Case Date:September 13, 2000
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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227 F.3d 133 (3rd Cir. 2000)



PENNSYLVANIA STATE UNIVERSITY, by its officers, agents and Trustees; WILLIAM EVANS, PH.D., individually and as Director of the Noll Human Performance Laboratory

No. 98-7611

United States Court of Appeals, Third Circuit

September 13, 2000

Argued: June 30, 2000


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ROBERT S. MIRIN (Argued) Ahmad & Mirin 8150 Derry Street Harrisburg, PA 17111, Counsel for Appellant

JAMES M. HORNE (Argued) KATHERINE M. ALLEN McQuaide Blasko Schwartz Fleming & Faulkner Inc. 811 University Drive State College, PA 16801, Counsel for Appellees

Before: ALITO and McKEE, Circuit Judges, and FULLAM, District Judge[*]


ALITO, Circuit Judge:

Appellant, Dr. W. Channing Nicholas, was fired from his tenured professorship at Pennsylvania State University following a series of run-ins with his new supervisor, Dr. William Evans. Nicholas brought suit against the University and Evans alleging, inter alia, violation of procedural and substantive due process, retaliatory firing in violation of the First Amendment, and breach of contract. The District Court determined that the University had breached Nicholas's tenure contract, but entered judgment in favor of the defendants on all other counts.

Nicholas raises a host of substantive and procedural arguments on appeal. Most importantly, he claims that his tenured professorship was a property interest entitled to protection under the substantive component of the Due Process Clause. Because we find that this argument--like Nicholas's other grounds for appeal--is without merit, we will affirm.


In 1966, Nicholas was named Associate Professor of Physiology at Pennsylvania State University's Noll Human Performance Laboratory. After receiving tenure in 1973, Nicholas supplemented his income with various outside jobs, including work as an emergency room physician for Centre Emergency Medical Associates. The University claims that Nicholas worked full-time in the emergency room and consequently was unable to work regular hours at Noll Lab. Nicholas disputes this, claiming that his emergency room work was only part-time.

In July 1993, the University hired Evans as the new director of Noll Lab. On his arrival, Evans--who was now Nicholas's supervisor--requested that Nicholas provide him with information about his curriculum vitae and research plans, as well as a written schedule for his work at Noll Lab. In particular, Evans requested an assurance that Nicholas would maintain a full-time presence with regular hours at the Lab--a concern he claims was raised by Nicholas's outside work. Nicholas was not forthcoming with this information.

On several occasions during the next few months, Evans provided Nicholas with written warnings, stating that Nicholas had jeopardized his position with the University by refusing to provide the requested information. At a meeting on May 10, 1994, Evans formally notified Nicholas that he would be terminated if he did not respond to Evans's requests. Nicholas refused to provide any assurance at that meeting, or at another meeting with Dr.

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Peter Farrell, that he would work full-time hours at the Lab. On May 20, 1994, several members of the Noll Lab facility wrote to Dean Herbert A. Lundegren to express their concern that Nicholas could no longer provide medical coverage for their research efforts. On June 17, 1994, Evans handed Nicholas his termination letter.

According to Nicholas, Evans's charges of insubordination were merely a pretext. In reality, Nicholas alleges, his termination was the consequence of a personal vendetta waged against him by Evans, which was prompted in part by Nicholas's objections to Evans's research methods. Prior to his termination, Nicholas had contacted the State Board of Medicine to complain about Evans's proposal to have non-medical personnel perform muscle biopsies independent of any medical supervision. The University subsequently adopted Nicholas's position and directed that the muscle biopsies be performed only by medical personnel.

Nicholas appealed his termination. The University provided him with a detailed statement of charges, and the University's Standing Joint Committee on Tenure held a full hearing in January 1995. Nicholas was represented by counsel at the hearing, and had an opportunity to call witnesses and cross-examine the University's witnesses. The Committee found that three of the five charges lodged against Nicholas by the University constituted adequate cause for terminating his tenure. Based on the Committee's findings, the President of the University upheld Nicholas's termination. Following his termination, Nicholas worked full-time as a doctor at area hospitals, making more in money and benefits than before his termination.

In June 1997, Nicholas filed this lawsuit against the University and Evans. In his five-count Complaint, he alleged that the defendants' actions: (1) violated his rights under the due process clause of the Fourteenth Amendment and the free speech clause of the First Amendment; (2) violated these same rights and discriminated against Nicholas based on his age in violation of 42 U.S.C. S 1983; (3) violated the Pennsylvania whistleblower law, 43 P.S.A. S 1423; (4) constituted a breach of his tenure contract; and (5) violated ERISA.

The defendants moved for summary judgment, and the District Court dismissed Counts I and V of the Complaint, as well as Count II's S 1983 claims based on age discrimination and substantive due process. The case was bifurcated and the liability phase proceeded to jury trial. At the close of Nicholas's case, the District Court granted defendants' motion to dismiss Count III, alleging violation of the whistleblower law.

At the close of the liability phase, the jury returned a special verdict that read as follows:

1) Prior to Plaintiff 's termination, did Defendants fail to provide Plaintiff with oral or written notice of the charges against him and an opportunity to present his side of the story?

Answer: No

2) After Plaintiff 's termination, did the University fail to provide Plaintiff with a fair hearing on the charges against him?

Answer: Yes

3) Was Plaintiff 's report on Dr. Evans' muscle biopsy procedures to the State Board of Medicine a substantial or motivating factor in Defendant's decision to terminate Plaintiff?

Answer: Yes

4) If Plaintiff had not filed a report on Dr. Evans with the State Board of Medicine, would Defendants' decision to terminate Plaintiff have been the same?

Answer: Yes

5) Did the University breach the terms of its tenure contract with Plaintiff by terminating him?

Answer: Yes

(App. 305-310.)

The defendants moved for judgment notwithstanding the verdict on questions 2 and 5. The District Court granted judgment

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as a matter of law in favor of the defendants on question 2, the post-termination procedural due process claim. The court also entered final judgment in favor of the University as to the First Amendment claim and in favor of Evans as to all claims. The remaining breach of contract claim against the University went to the jury for determination of damages.

Prior to the damages phase, the District Court granted the University's motion for discovery sanctions against Nicholas, precluding him from introducing evidence of future lost earnings. The court also excluded evidence related to punitive damages, detrimental reliance and compensatory damages beyond lost earnings and benefits. At the conclusion of the damages phase, the jury entered the following special verdict:

Question No. 1: Did Dr. Nicholas suffer any actual damages causally related to the University's breach of contract?

Answer: No.

. . .

Question No. 3: If your answer to Question No. 1 is "No" or "Evidence Equally Balanced," what amount of nominal damages do you award?

Answer: $1,000.

(App. 614-17.) After further briefing, the District Court issued an order holding that: (1) Nicholas was entitled to severance pay in the amount of one year's salary; (2) the jury's award of nominal damages be reduced to $1.00; and (3) Nicholas was not entitled to specific performance as a remedy for breach of contract. Nicholas now appeals.


The District Court exercised subject matter jurisdiction over this action pursuant to 28 U.S.C. SS 1331, 1343 and 1367. We have appellate jurisdiction over the final judgment of the District Court pursuant to 28 U.S.C. S 1291.


Nicholas raises numerous arguments on appeal. The first five are substantive and allege that: (1) the District Court erred in dismissing the substantive due process claim; (2) the court erred in granting final judgment against him on the First Amendment claim; (3) the jury's verdict for defendants on the pre-termination procedural due process claim was not supported by the evidence; (4) the court erred in granting final judgment in favor of Evans on all counts; and (5) the jury charge on breach of contract was in error. Next, Nicholas raises three arguments relating to the damages phase: (6) the court erred in reducing Nicholas's nominal damage award; (7) the court erred in denying specific performance; and (8) the court erred in limiting Nicholas's damages to lost compensation. Finally, Nicholas raises three evidentiary and trial-related arguments: (9) the District Court improperly limited Nicholas's time for...

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