Chonich v. Wayne County Community College, s. 90-1697

• Decision Date: 16 October 1992
• Docket Number: Nos. 90-1697,90-2329,s. 90-1697
• Citation: 973 F.2d 1271
• Parties: 59 Fair Empl.Prac.Cas. (BNA) 32, 59 Empl. Prac. Dec. P 41,535, 77 Ed. Law Rep. 73, 7 IER Cases 1226 Milan CHONICH; Carmen Pascaretti, Plaintiffs-Appellants, v. WAYNE COUNTY COMMUNITY COLLEGE; Juanita C. Ford, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1271

973 F.2d 1271

59 Fair Empl.Prac.Cas. (BNA) 32, 59 Empl.

Prac. Dec. P 41,535,

77 Ed. Law Rep. 73, 7 IER Cases 1226

Milan CHONICH; Carmen Pascaretti, Plaintiffs-Appellants, v. WAYNE COUNTY COMMUNITY COLLEGE; Juanita C. Ford Defendants-Appellees.

Nos. 90-1697, 90-2329.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 24, 1991.

Decided June 9, 1992.

As Amended Aug. 31, 1992.

Rehearing and Rehearing En Banc

Denied Oct. 16, 1992.

Sue E. Radulovich (argued and briefed), Grosse Pointe, Mich., for plaintiffs-appellants.

Cynthia Adkison (argued and briefed), Kohl, Secrest, Wardle, Lynch, Clark & Hampton, Farmington Hills, Mich., Daniel J. Bretz (argued and briefed), Detroit, Mich., for defendants-appellees.

Before: MARTIN and JONES, Circuit Judges; and WELLFORD, Senior Circuit Judge.

AMENDED OPINION

WELLFORD, Senior Circuit Judge.

This controversy has been before us on a prior occasion, reported at 874 F.2d 359 (1989) ("Chonich I"). We held, on appeal by defendant Wayne County Community College (Wayne), that damages awarded to plaintiffs totalling $875,000 in this civil rights action were speculative and excessive, and remanded for a new trial on the issue of damages with respect to plaintiffs Chonich and Pascaretti. We also remanded the case to the district court with respect to Wayne "for further consideration as to whether a new trial on ... liability issues is required because of the absence of Monell ¹ instructions" which are sometimes necessary under § 1983 and Michigan Elliott-Larsen Civil Rights Act claims. Id. at 367. Additionally, we reversed the district court's dismissal of the plaintiffs' libel/defamation claim against Wayne and the dismissal of defendant Ford on the libel claim based on her assertion of privilege.

On remand, defendants filed motions for summary judgment on the libel/defamation issue involving whether Ford had acted as Wayne's agent and whether her contentions gave her immunity or barred any damages award against her. Defendant Wayne asked for a new trial on the civil rights claim and sought to add Edward Callaghan and Thomas Waters, former Wayne officials, as defendants on these claims. The district court ordered a new trial on all liability issues, but denied the motions to add Callaghan and Waters as additional defendants. The issues were then presented to a jury which was provided a special verdict form. When asked whether Wayne retaliated and whether defendants libeled plaintiffs, the jury answered "yes." After a week's deliberation, it awarded no damages. The jury found for defendants on the § 1983 racial discrimination claim and on the emotional distress claim. We have set out the essential facts in our earlier opinion, but in this second trial defendants produced a number of additional witnesses on some of the disputed factual issues.

Plaintiffs filed separate claims for back pay and damages for defamation/libel, discrimination, retaliation, denial of civil rights, and infliction of emotional distress based on alleged termination or elimination of their administrative positions at Wayne and transfers to equal-paying, but allegedly inferior, positions at the school. They also alleged that Wayne failed to award them faculty appointments and failed to grant them alternative and equivalent positions in a subsequent 1986 administrative reorganization. Plaintiffs claimed that Ford's libelous/defamatory statements, accusing them unjustly of racism, occurred in the course of her official relationship with Wayne ("as employee, servant/agent") and that they were a substantial contributing factor in Wayne's discriminatory/retaliatory actions. The parties stipulated these facts:

1. On February 29, 1984, Juanita Ford, a member of [Wayne's] Board of Trustees, wrote a letter to Winston Lang of the NAACP, on which she copied 17 other persons, including several state and local officials.

2. On March 20, 1984, Thomas Waters, then president of [Wayne], presented a letter to the Board which he had written to Winston Lang in response to the February 29, 1984 letter written by Juanita Ford and on which he copied the same individuals who were copied by Juanita Ford.

3. On July 1, 1984, Milan Chonich was moved from Director of Development, an exempt administrative position which had been abolished, to the union position of Associate provost at the Western Campus of the College.

4. As Director of Development, Plaintiff Chonich earned $48,495.00 per year through July, 1984. With his assignment to the Associate Provost position at the Western Campus, effective July, 1984, Plaintiff Chonich retained this salary.

5. On August 1, 1984, Plaintiff Pascaretti was assigned to the position of Acting Dean of Administration.

6. After Plaintiff Pascaretti was assigned to the position of Acting Dean of Administration on August 1, 1984, his salary remained at $54,946.00 per year.

7. Carmen Pascaretti's contract with the college was not renewed and his employment ended June 30, 1986.

8. Milan Chonich is currently Assistant Dean for Academic Affairs.

Wayne asserts that it "did not author, authorize, or ratify" Ford's February 29, 1984 letter, which is the basis of the defamation/libel claim (accusing defendants of "plotting to lay off blacks and women"), and the alleged triggering action bringing about Wayne's purported racially-based discrimination and retaliation in replacing and removing plaintiffs from their "exempt" status. Ford claimed she was immune as a director/trustee, that she was exercising her First Amendment rights, that the letter in controversy was true, and that it represented only an expression of opinion. ² Both defendants claimed that plaintiffs suffered no proximate damages as a consequence of their actions even if deemed defamatory, racially discriminatory, or taken in retaliation against plaintiffs for their prompt and vigorous responses to (and state lawsuit against) defendants.

I. DEFAMATION/LIBEL CLAIM AGAINST FORD

The jury found that defendant Juanita Ford libeled both plaintiffs, but it assigned no monetary award because the "libel [was not] the proximate cause of any damage to [either] plaintiff." On appeal, plaintiffs make four arguments for reversal despite the finding of no proximate cause on libel/defamation:

1) erroneous jury instructions in failure to instruct on punitive damages; ³

2) erroneous evidentiary rulings by the district court precluding cross-examination of defendants' witnesses on promotions and increased salaries received after Wayne's reorganization in 1986 (relating to plaintiffs' claim of loss of earnings);

3) erroneous instruction on definition of libel ("a defamation need not be 'malicious' ");

4) erroneous instruction and question to require proximate cause for damages (libel per se and presumed damages except as to claims for wages lost--actual malice). ⁴

Ford's response was that "plaintiffs presented no proof whatsoever that their reputation had been in any way tarnished or hurt by Ford's letter." As to claimed loss of earnings, Ford responded to plaintiffs' argument for per se or presumed damages by claiming that "neither individual had mitigated their damages," and there was "no reduction in pay" (no loss of earnings). ⁵ In short, Ford asserted that neither plaintiff demonstrated economic or "non-economic" damage. Further, Ford contends that plaintiffs did not preserve a "claim of error ... regarding libel and libel damages."

The district court's instruction on "libel and slander" required plaintiffs to show "actual damage" and that the letter was written with "actual malice." There was no specific objection to this instruction. Plaintiffs had requested a "libel" instruction which included the requirement that the libelous statement "had a tendency to harm the plaintiffs' reputation," ⁶ and this instruction was given. The plaintiffs also requested an instruction that as a result of the libel, the plaintiffs suffered some damage, ⁷ with the burden in this respect concededly on plaintiffs. The district court, in effect, defined libel as false and malicious defamation and imposed upon plaintiffs the burden of showing "damage to reputation" and "actual damages which [they] suffered," rather than "some damage," a change from the instruction proposed by plaintiffs and defendants. (Emphasis in instruction added).

It does not appear that plaintiffs, in a prompt and timely manner, objected to the instructions, or lack thereof, which they now contend to be erroneous with respect to their libel claim, particularly with respect to presumed damages arising from publication of a false and malicious statement charging plaintiffs with being racists and also guilty of sexist conduct. The district court emphasized that to find Ford guilty of libel, plaintiffs were required to show that she had acted "with knowledge that the statement was false or that she acted with reckless disregard as to whether the statement was false." Furthermore, the jury was instructed that plaintiffs had to prove, in order to prevail, that Ford was not merely giving a statement of her opinion, that she was not acting with "legislative or executive authority," and that the issuance of the letter was not a "discretionary act." There was no objection to this instruction.

In the absence of an express objection, we look to whether the instruction in question, in proper context, and considering the instructions in their entirety, constituted clear and prejudicial error. Plaintiffs did not request an instruction on presumed or nominal damages. Under such circumstances and in light of Fed.R.Civ.P. 51, we may consider any such error not objected to as waived, except where there is "plain error" or it "required action by the reviewing court 'in the interests of justice.' " Batesole v. Stratford, 505 F.2d 804, 808 (6th Cir.1974) (quoting O'Brien v. Willys Motors, Inc., 385 F.2d 163 (6th Cir.1967)). See also Ivey v. Wilson, 832 F.2d 950, 955 (6th Cir.1987). There is...