Ludwig v. Board of Trustees of Ferris State University

Decision Date18 August 1997
Docket NumberNo. 96-2020,96-2020
Citation123 F.3d 404
Parties72 Empl. Prac. Dec. P 45,240, 120 Ed. Law Rep. 975 Horace Thomas LUDWIG, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF FERRIS STATE UNIVERSITY, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Arthur R. Przybylowicz (argued and briefed), White, Przybylowicz, Schneider & Baird, Randie K. Black, Okemos, MI, for Plaintiff-Appellant.

Scott E. Dwyer (briefed), Frederic N. Goldberg (argued and briefed), Mika, Meyers, Beckett & Jones, Grand Rapids, MI, Kevin A. Rynbrandt, Varnum, Riddering, Schmidt & Howlett, Grand Rapids, MI, for Defendants-Appellees.

Before: KENNEDY, CONTIE and COLE, Circuit Judges.

KENNEDY, Circuit Judge.

Plaintiff, Horace Thomas Ludwig, appeals from the District Court's order dismissing his complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure in this action under 42 U.S.C. § 1983 challenging actions taken by Ferris State University in connection with plaintiff's suspension and termination from his position as the men's basketball coach at the University. For the reasons set forth below, the judgment of the District Court is AFFIRMED.

I. 1

The events leading to the filing of the instant action began on May 3, 1995, when a student and basketball player at Ferris State University in Big Rapids, Michigan filed an Affirmative Action Complaint with the University's Affirmative Action Office alleging that Ludwig, the head coach of the men's basketball team at the University and an at-will employee of the University, discriminated against him on the basis of his national origin. 2 Shortly thereafter, the President of the University, William Sederburg, appointed a three member committee to investigate the allegations of the student's complaint. In June and July of 1995, the committee interviewed several witnesses in connection with the student's complaint against Ludwig. The committee included in their investigation an interview with the plaintiff on July 21, 1995. Plaintiff was interviewed for three and one half hours without an attorney despite plaintiff's request to have counsel present. During the questioning, the student's complaint was read to Ludwig and inquiry was made regarding the subject of the complaint as well as other aspects of Ludwig's performance as coach of the basketball team. At the conclusion of the interview, Ludwig was instructed not to discuss the matter with students or staff of the University.

On September 15, 1995, the committee issued specific findings regarding the complaint and other aspects of Ludwig's performance; Ludwig received a copy of the findings on September 18, 1995. Plaintiff also received a memorandum which included a second copy of the student's complaint, a description of the investigative process, and the names of certain witnesses with summaries of their testimony. Plaintiff was provided an opportunity to, and did indeed, respond to the findings in writing on September 27, 1995. In this response, plaintiff alleged that the investigation conducted by the University denied him due process of law.

On October 18, 1995, Ludwig was advised by Richard Duffett, the Associate Vice President for Administration and Finance at the University, and Larry Marfise, the Director of Athletics at the University, via memorandum that they were of the tentative view that the committee's findings were supported by the record and that plaintiff could be subjected to discipline including suspension or termination. Marfise and Duffett provided Ludwig an opportunity to respond to their memorandum and invited Ludwig to attend a meeting with them. Ludwig responded in writing on October 23, 1995, and on October 24, Ludwig and his counsel met with Duffett and Marfise. Prior to the October 24 meeting, the committee provided plaintiff with a full transcript of his questioning by the committee and reminded Ludwig's counsel that he was prohibited from contacting staff or students regarding the investigation.

On November 10, 1995, the General Counsel for Ferris State University, Scott Hill-Kennedy, informed plaintiff's counsel that the President of the University, William Sederburg, would shortly announce his decision; accordingly, Hill-Kennedy afforded Ludwig the opportunity to resign from his position as head coach. Hill-Kennedy denied Ludwig's request to meet with Sederburg; however, Ludwig submitted a written statement to Sederburg which included his concern that he was not being afforded due process of law.

On November 15, 1995, Duffett and Marfise advised Ludwig that he would be suspended for a period of sixty days commencing on November 20, 1995, subject to the approval of and ratification by the Board of Trustees of the University at a meeting on November 18, 1995. Ludwig was also informed that his employment would be terminated effective May 14, 1996, also subject to the approval of the Board of Trustees. At the November 18 meeting, which plaintiff could not attend but where his counsel did appear, the Board of Trustees approved the suspension and termination after hearing from plaintiff's counsel for approximately eight minutes. 3

Following the Board's decision, Margaret Avritt, the Director of University Relations and Marketing, issued a press release to the student newspaper, The Torch, and to The Big Rapids Pioneer discussing the circumstances surrounding Ludwig's termination. Subsequent to its release, articles appeared in several newspapers, including The Torch, The Big Rapids Pioneer, and The Detroit News, discussing the events surrounding plaintiff's termination. In addition to citing the press release, several of the articles purportedly quoted Hill-Kennedy and Marfise. While the articles discussed the student's affirmative action complaint, the articles also discussed an allegation that Ludwig would persuade students who had received scholarships to transfer in order to use the scholarships for other players.

On November 29, 1995, following the publication of some of these aforementioned articles, 4 Ludwig's counsel wrote to Hill-Kennedy expressing his belief that Ludwig had been denied due process of law; Hill-Kennedy responded to this letter the same day.

As a result of these events, Ludwig filed this action in Mecosta County Circuit Court on February 1, 1996, alleging that his suspension without pay constituted a deprivation of a property interest without due process of law, in violation of both the United States and Michigan Constitutions. Ludwig also alleged that the publication of statements concerning his termination were false and amounted to a deprivation of a liberty interest without due process of law. Following the defendants' removal of the action to the United States District Court for the Western District of Michigan, the Board of Trustees of the University, the University, Parsons, 5 Cook, Creswell, Hardaway, Patera, Roman, Wahby, 6 Sederburg, Duffett, Avritt, Hill-Kennedy and Marfise moved, on March 8, 1996, to dismiss the action under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

On April 3, 1996, Ludwig filed an amended complaint which dropped the Board of Trustees and Ferris State University as defendants, added the official capacities of Parsons, Cook, Creswell, Hardaway, Patera, Roman, Wahby, and Sederburg, dropped the individual capacity of Hardaway, and added Schultz 7 in her official capacity. The Defendants moved to strike this amended complaint.

On July 2, 1996, the District Court granted the motion to strike the amended complaint, based on a strict reading of Rule 21 of the Federal Rules of Civil Procedure, and granted the defendants' motion under Rule 12(b)(6). Regarding the motion to dismiss, the District Court concluded that the University's personnel policies did not create a property interest in suspension only with pay. Because the District Court concluded that plaintiff had no property right to suspension with pay, it did not address plaintiff's contention that he was not afforded due process prior to his suspension. Addressing plaintiff's contention that the publicized statements deprived him of a liberty interest without due process of law, the court concluded that the statements which only concerned Ludwig's inadequate and improper job performance did not give rise to a liberty interest; however, the statements that accused Ludwig of making ethnic slurs, the court concluded, did constitute a liberty interest. The court, nevertheless, dismissed the claim because it found that plaintiff received all the due process that was due him as Ludwig was offered a number of opportunities to refute the charges against him before the statements were made. The court rejected Ludwig's claim that the University was required to provide him with a full evidentiary hearing with the right to confront the witnesses against him and present witnesses on his behalf. Plaintiff appeals from the District Court's order dismissing his complaint.


We review the propriety of the dismissal of plaintiff's complaint for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure de novo. See Cline v. Rogers, 87 F.3d 176, 179 (6th Cir.) (citing Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 296 (6th Cir.1993)), cert. denied, --- U.S. ----, 117 S.Ct. 510, 136 L.Ed.2d 400 (1996). In conducting our review, we must construe the complaint in a light most favorable to plaintiff, accept as true all of plaintiff's well-pleaded factual allegations, and determine whether plaintiff can prove no set of facts supporting his claims that would entitle him to relief. See id. (citing In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.1993)). Applying these standards, we conclude that plaintiff's complaint properly did not withstand the motion to dismiss.

A. Due Process

1. Property Interest

The first of Ludwig's arguments on appeal is that he...

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