Jackson v. Leighton, 97-4393

• Decision Date: 22 February 1999
• Docket Number: No. 97-4393,97-4393
• Citation: 168 F.3d 903
• Parties: W. Thomas JACKSON, M.D., Plaintiff-Appellant, v. Richard LEIGHTON, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 903

168 F.3d 903

W. Thomas JACKSON, M.D., Plaintiff-Appellant, v. Richard LEIGHTON, et al., Defendants-Appellees.

No. 97-4393.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 29, 1998.

Decided Feb. 22, 1999.

Keith J. Watkins (argued and briefed), Jones & Bahret Co., L.P.A., Toledo, OH, for Plaintiff-Appellant.

John M. Carey (briefed), Robert W. Bohmer (briefed), R. Kent Murphree (argued and briefed), Watkins, Bates & Carey, Toledo, OH, for Defendants-Appellees.

Before: DAUGHTREY and MOORE, Circuit Judges; COHN, District Judge. ^*

COHN, D.J., delivered the opinion of the court, in which DAUGHTREY, J., joined. MOORE, J. (pp. 912-13), delivered a separate opinion concurring in the result.

OPINION

COHN, District Judge.

Plaintiff-appellant W. Thomas Jackson (Jackson), former Chairman of the Department of Orthopedic Surgery at the Medical College of Ohio (MCO), claims his chairmanship was not renewed in retaliation for exercising his rights protected under the First Amendment to the United States Constitution. 42 U.S.C. § 1983. Jackson appeals the decision of a magistrate judge granting summary judgment in favor of defendants Richard Leighton, M.D. (Leighton), Roger Bone, M.D. (Bone), and MCO (collectively referred to as "defendants"). The magistrate judge found that although Jackson's speech was a matter of public concern worthy of First Amendment protection, there was no evidence that the protected speech was "a substantial motivating factor" in the non-renewal decision. Thus, the magistrate judge held that defendants were entitled to summary judgment on qualified immunity grounds. We affirm, though for somewhat different reasons.

I.

Jackson joined the faculty at MCO as an associate professor in 1983. Jackson was granted tenure and was appointed Chairman of the Department of Orthopedic Surgery at MCO in 1988. As chairman, Jackson was responsible for selection, development, promotion, and discipline of faculty, and for setting the goals and policies of the department. Chairmanships at MCO last one year, though the Board of Trustees of MCO may renew the positions. Typically, the positions were renewed upon the recommendation of the Dean of the School of Medicine and concurrence of the President of MCO. Jackson's chairmanship was renewed annually until 1995.

MCO was created by the Ohio General Assembly, see Ohio Rev.Code Ann. § 3350.01, and is an arm of the State of Ohio, see Hall v. Medical College of Ohio, 742 F.2d 299, 307 (6th Cir.1984). Bone became President and Chief Executive Officer of MCO in 1993. ¹ Bone was generally responsible for administration of affairs at MCO; he envisioned his administration as "an administration of change" to prepare for "the challenges and opportunities of the 21st Century." Bone perceived Jackson as inflexible and generally opposed to change. Leighton, the Dean of the School of Medicine at MCO during the relevant times, was in charge of determining and coordinating academic programs at MCO. ²

Jackson asserts that he was outspoken in his opposition to two proposals by Bone: a merger of MCO with Toledo Hospital, and the appointment of Dr. Wassef Mikhail (Mikhail), an orthopedic surgeon, to be director of a joint diseases institute. Bone testified Jackson was terminated as chairman due to the internal conflict in conjunction with the hiring of Mikhail.

A.

In early 1994, Bone supported a proposal for a merger of MCO with Toledo Hospital (merger proposal). The Board of Trustees authorized Bone to negotiate the merger. Bone made it very clear that he would not tolerate dissent or opposition to the merger proposal, and that he did not need input from the department chairs. The merger proposal, however, irked many associated with MCO, including Leighton, the faculty, the employees' union, and a number of department chairs. Dr. Frank McCullough, acting President of MCO in 1996, stated that the merger would have been a sale of the "heart and soul" of MCO, and would ultimately lead to its closure.

Jackson also was opposed to the merger. In April 1994, Jackson discussed the merger with physicians at MCO and Toledo Hospital, opining that "elements of the proposal were flawed." In June 1994, Jackson says he delivered written criticism ³ of the merger to each member of an executive committee. ⁴ In October 1994, Leighton advised Jackson to be more discreet because Bone was displeased with his comments.

Defendants note that Jackson did not speak directly to Bone or the Board of Trustees in opposing the merger, and that Jackson did not have a reputation as being particularly outspoken regarding the merger. According to Bone, "there were many people who were far more outspoken than Dr. Jackson." It appears that Jackson did not speak out in opposition to the merger other than in April and June 1994, and the record is silent as to what Jackson actually said in expressing his opposition to the merger. Defendants, however, have not disputed the fact that Jackson expressed his opposition to the merger on these two occasions.

The Ohio General Assembly refused to support the merger proposal by early June of 1994. ⁵ On July 1, 1994, Jackson was reappointed as Chairman of the Department of Orthopedic Surgery based upon the recommendation of Leighton and the concurrence of Bone.

After the merger proposal failed, Bone proposed to transfer MCO's pediatric services to Toledo Hospital in exchange for $4,000,000 from ProMedica (ProMedica proposal). ⁶ At a December 19, 1994 meeting of the department chairs, which Leighton attended, Jackson says he spoke strongly against the ProMedica proposal and urged that a letter be sent to Bone and the Board of Trustees recommending that the proposal be rejected and Bone be replaced. Later the same day, Bone called a meeting of the same group. Bone expressed his anger and stated that he would not send the letter on to the Board of Trustees; Bone thought he would be fired if the letter reached the Board of Trustees. At a meeting of the Board of Trustees on December 30, 1994, which Bone attended, Jackson argued that the ProMedica proposal be rejected or limited. The Board of Trustees nevertheless approved the agreement.

B.

Jackson also was opposed to a proposal to appoint Mikhail as director of a newly created "Center for Excellence for Joint Replacement and Revision," a joint diseases institute to be endowed by charitable donors to MCO (Mikhail proposal). According to Jackson, the proposal provided that Mikhail was to be given: directorship of the program, without a search; a full-tenured professorship; and more space and resources than other faculty. Specifically, Jackson testified as follows:

I bear no hard feelings or ill will to Dr. Mikhail but this proposal, as I saw it, would jeopardize my department because number one, in his initial demand he was to get 2,500 square feet of appropriately furnished office space. My entire department occupies about 1,300 square feet at the Medical College of Ohio, maybe less. Number two, he would jump over valuable members of my faculty who have worked very hard to get their careers to the point where they are. They have to do the academic pursuit, they have to do teaching, do the research to gain any advancement at all, but this guy comes in from the outside and leapfrogs over them to a tenured full professorship. That was going to be a very difficult thing to sell to my department. I did feel that it was doable in time but a lot has to be accomplished to make that happen and that's all that I told the people.

Jackson represents that Mikhail effectively purchased the position because Mikhail promised annual endowment contributions of $85,000 for ten years. Jackson thought that the institute was bound for financial failure because the level of endowment was insufficient. Jackson also believed the proposal lacked "academic integrity." ⁷

On November 29, 1994, Leighton advised Jackson that Bone was going to announce the Mikhail proposal in the near future. Leighton urged Jackson to write a letter supporting the promotion of Mikhail to full professor with tenure. Though Jackson told Leighton he did not approve in granting Mikhail tenure, Jackson wrote the letter nonetheless. ⁸ On December 15, 1994, Leighton and Jackson met with Mikhail to discuss alternative proposals. Jackson suggested that Mikhail be appointed to the volunteer faculty. Mikhail disagreed and refused to allow the proposal to be announced.

Jackson again met with Leighton on January 3, 1995. Leighton stated that Bone wanted to announce the proposal at a board meeting on January 23, 1995. Jackson says Leighton indicated that the proposal now included Jackson's recommendation that Mikhail be appointed without tenure. Proceeding under this assumption, Jackson and his faculty recommended the appointment of Mikhail the following day. Immediately thereafter, however, Leighton told Jackson that Mikhail's appointment would be with tenure in the "academic series." After Jackson stated that he and his faculty would not support the appointment, Leighton told Jackson that: "[H]e had been holding Dr. Bone off from firing [Jackson], but that this would be the last straw, and if [Jackson] refused the requested support he would be fired." The following day, January 5, 1995, Leighton advised Jackson that his contract as Chairman of the Department of Orthopedic Surgery would not be renewed. Leighton requested that Jackson remain in the position until replaced.

Bone testified in deposition that the recommendation of non-renewal was a result of Jackson's mismanagement in conjunction with the hiring of Mikhail, which created internal conflict resulting in a "departmental upheaval." More generally, Bone stated that "it was not Dr. Jackson's speech that I minded so much as his stubborn, inflexible, narrow-minded and unconstructive approach to change." Jackson asserts that he did not receive a negative evaluation of his job performance by defendants. In an ...