Kerlin v. Zahn

• Decision Date: 02 December 1985
• Citation: 782 F.2d 1042
• Parties: Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. STEPHEW W. KERLIN, THOMAS KLOMP, ROBERT SRADEJA, Plaintiff-Appellees, v. SHARON ZAHN, ET AL., Defendants, GERALD W. ICE, individually and as Associate Principal of Whitmer H.S. (85- 3161), JAMES CRAU, individually and as Supervisor (85-3162), Defendants- Appellants. 85-3161, 85-3162
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1042

782 F.2d 1042

Unpublished Disposition

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

STEPHEW W. KERLIN, THOMAS KLOMP, ROBERT SRADEJA, Plaintiff-Appellees, v. SHARON ZAHN, ET AL., Defendants GERALD W. ICE, individually and as Associate Principal of Whitmer H.S. (85- 3161), JAMES CRAU, individually and as Supervisor (85-3162), Defendants- Appellants.

85-3161, 85-3162

United States Court of Appeals, Sixth Circuit.

12/2/85

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO

BEFORE: JONES and WELLFORD, Circuit Judges; and PECK, Senior Circuit Judge.

PER CURIAM.

This is a second appeal of a case that was remanded for further proceedings in an order of this court filed in 1983. See Kerlin v. Zahn, Nos. 81-3576/3594/ 3610/3611 (6th Cir. 1983). The issues upon which remand was ordered involved a pendant state claim of libel. This court held that the district court had not sufficiently dealt with the question whether one defendant, Gerald Ice, had committed an act of publication. Further, this court held, the district judge did not explicitly find that both Ice and another defendant, James Grau, had acted with actual malice as required by Ohio law, since the defamation involved the parties' mutual employment. Without taking additional evidence, the court below made cursory further findings and conclusions and reaffirmed its judgment for plaintiffs. Because we hold these findings to be legally insufficient, we reverse.

The claim arose out of events leading to the dismissal of the plaintiffs from their non-tenured teaching positions. Plaintiffs Kerlin, Klomp and Sradeja were instructors in the Washington Local School District vocational education program, designated OWE-OWA. James Grau was supervisor of OWE-OWA. Gerald Ice was an associate principal of the school at which the program was located. Kerlin, Klomp and Sradeja were organizers of a teachers' union that was the rival of another union of which both Grau and Ice had been president. Not a defendant, but involved in the defendants' acts, was Edison Barney, the principal of the school.

In its previous opinion in this case, this court described the pertinent events as follows:

'The district court found, as a matter of fact, that certain cliques developed in the faculty-administration-board relationship and that certain personal conflicts, to the point of severe animosity, developed between the plaintiffs and certain of the defendants. It is apparent that the line indicating the existence of these animosities approaches that indicating the TAWLS/WFT [the rival unions] membership distinction.

'Following the July 1976 appointment of Ice as the associate principal of the vocational building and a September 1976 appointment of Grau as supervisor of the OWE/OWA program, Kerlin apparently requested a transfer out of the department, expressing fears regarding Grau's attitude toward him. That request was never acted upon.

'Grau began an inquiry into the performance of his OWE/OWA staff on February 15, 1977. Pursuant to that inquiry, Grau prepared a memorandum on March 11, 1977 in which he accused the plaintiffs of dishonesty and asserted that their performance was unprofessional. The district court found that the accusations against the plaintiffs were false. The memorandum also contained statements regarding the desirability of discontinuing the plaintiffs' employment. Grau sent this memorandum to both Ice and Barney. Additional copies were placed in the personnel files of each of the plaintiffs, without their knowledge. Grau also prepared evaluations for the plaintiffs after conducting classroom observations, all of which included recommendations for nonrenewal.

'Board policy number 4117 provides for the use of a 'professional growth profile' which permits teacher evaluations with the aim of improving efficiency and competence. The district court found that Grau had failed to comply with several of the requirements of that policy when making his evaluations: (1) he provided no conference with any of the plaintiffs concerning the evaluations; (2) he did not provide any of the plaintiffs with a rough draft of the evaluation prior to a conference; (3) he did not sign any of the evaluations prior to their submission; (4) he did not present any of the plaintiffs with the final evaluations for their signatures; (5) he did not inform any of the plaintiffs of the existence of the documents, thus precluding them from being able to rebut any of the statements made therein. The district court also noted that Grau's actions were in direct violation of board policy 4113.2, which provides that no forms are to be placed in the personnel files of a teacher which reflect upon his performance without that teacher being informed of their existence.

'Barney and Ice also began having a series of individual meetings with the OWE/OWA coordinators. Though the meetings were represented as an attempt to get an overview of the entire program, the district court found that the meetings were actually held for the purpose of conducting an undisclosed evaluation of each individual's performance. As a result of these meetings and Grau's letter, Barney issued a series of 'jeopardy sheets' listing certain of the plaintiffs' asserted deficiencies. The jeopardy sheets were issued on March 15, 1977 and on April 18 of that same year, Barney delivered recommendation sheets to all three plaintiffs indicating his recommendation for their nonrenewal, purportedly based on their failure to comply with the jeopardy sheets. The district court specifically found that the allegations in the jeopardy sheets were false and/or inaccurate and that Grau, Ice and Barney were aware of those inaccuracies.

'Pursuant to a nonrenewal policy adopted on March 3, 1977, the board, and only the board, is vested with the authority to not renew any teacher on a limited contract merely by providing notice of nonrenewal to that teacher prior to April 30. All jeopardy sheets, evaluations, and recommendations, including those which did not comply with board policy, were given to the board for consideration in their 1977 contract renewal determinations. On April 21, 1977, the board met and unanimously voted not to renew the contracts of the three plaintiffs.' Kerlin, slip op. at 3-5.

In its original ruling, the district court specifically concluded that Grau had committed libel per se in the writing and publication of the March 11, 1977 memorandum. It held both Grau and Ice liable for defamation, however, without indicating what specific acts of publication by Ice gave rise to that liability. Further, the court made no reference to the existence of actual malice on the part of either defendant. This court held that a finding of actual malice was 'arguably supportable from the record' but that a remand was necessary to allow the district court to address the issue. Id. at 11. We further directed the court to consider whether Ice had committed any act that constituted publication. Id. at 12.

On remand the district court incorporated the statement of facts quoted above...