McLaurin v. Fischer

• Decision Date: 17 July 1985
• Docket Number: No. 84-3807,84-3807
• Citation: 768 F.2d 98
• Parties: 41 Fair Empl.Prac.Cas. 1012, 37 Empl. Prac. Dec. P 35,464, 26 Ed. Law Rep. 591, 18 Fed. R. Evid. Serv. 771 Robert L. McLAURIN, Plaintiff-Appellant, v. Josef E. FISCHER, and University of Cincinnati, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 98

768 F.2d 98

41 Fair Empl.Prac.Cas. 1012,

37 Empl. Prac. Dec. P 35,464, 26 Ed. Law Rep. 591,

18 Fed. R. Evid. Serv. 771

Robert L. McLAURIN, Plaintiff-Appellant, v. Josef E. FISCHER, and University of Cincinnati, Defendants-Appellees.

No. 84-3807.

United States Court of Appeals,

Sixth Circuit.

Argued April 30, 1985.

Decided July 17, 1985.

Roger A. Weber, Taft, Stettinius & Hollister, Martin McHenry, Robert G. Stachler, J. Mack Swigert, argued, Cincinnati, Ohio, for plaintiff-appellant.

Robert A. Pitcairn, Jr., argued, James C. Cissell, argued, Cincinnati, Ohio, for defendants-appellees.

Before LIVELY, Chief Judge, JONES, Circuit Judge, and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

Plaintiff-appellant Robert McLaurin, M.D., brought suit against defendants-appellees, Josef Fischer, M.D., and the University of Cincinnati, alleging that the defendants deprived him of a property interest without due process of law, see 42 U.S.C. Sec. 1983 (1982), discriminated against him on the basis of age, see 29 U.S.C. Secs. 621-634 (1982) (Age Discrimination in Employment Act); Ohio Rev.Code Ann. Sec. 4112.02(N) (Page Supp.1984) (prohibition against discrimination based on age), and tortiously interfered with his business relations. The district court refused to exercise pendent jurisdiction over the state law causes of action and directed a verdict against Dr. McLaurin on the due process claim; a jury returned a verdict in the defendants' favor on the federal age discrimination claim. ¹ Dr. McLaurin appeals contending that the district court improperly directed a verdict on his due process claim, committed prejudicial error in its evidentiary rulings, gave incorrect jury instructions and erroneously refused to exercise pendent jurisdiction over the state law claims. We affirm in part and reverse in part.

Dr. McLaurin has a national reputation as a neurosurgeon and has been a tenured professor at the University of Cincinnati Medical School for over thirty years. The Medical School is divided into various departments with a chairman presiding over each department. The chairman of a department can subdivide the department into as many divisions as he deems necessary. In 1954, the Chairman of the Department of Surgery, Dr. William Altemeier, recommended that Dr. McLaurin be appointed as director of the Division of Neurosurgery. Subsequently, the Board of Trustees of the University of Cincinnati approved Dr. McLaurin's appointment. Upon Dr. Altemeier's retirement, defendant Dr. Josef Fischer took over as Chairman of the Department of Surgery.

Shortly after taking over as Chairman, Dr. Fischer became aware that problems existed within the Division of Neurosurgery. Consequently, in 1981, Dr. Fischer appointed a committee to review the division (the "review committee"). The review committee was composed of six local physicians and three outside neurosurgeons. After completing its investigation in 1982, the review committee issued a report which pointed out a number of deficiencies in Dr. McLaurin's management of the division and concluded that Dr. McLaurin should be encouraged to relinquish his position as director of neurosurgery while continuing his work as a professor.

In accordance with the recommendation of the review committee, Dr. Fischer removed Dr. McLaurin, who was then sixty years old, from his position and replaced him with a forty-five year old division director. Three months later, Dr. McLaurin filed a grievance against Dr. Fischer. The College of Medicine Grievance Committee (the "college grievance committee") held a hearing on the grievance and issued a report rejecting the grievance. The Dean of the College of Medicine affirmed the college grievance committee's determination and Dr. McLaurin appealed to the Faculty and Librarian's Grievance Committee (the "faculty grievance committee"). At the end of a three day hearing, the faculty grievance committee denied Dr. McLaurin's grievance. After exhausting his administrative remedies, Dr. McLaurin brought suit in United States District Court against Dr. Fischer and the University of Cincinnati.

As a preliminary matter, Dr. Fischer asserts that this Court lacks jurisdiction to review the dismissal of Dr. McLaurin's due process claim and the district court's refusal to exercise pendent jurisdiction over the state law claims because of appellant's failure to file a notice of appeal specifying the orders appealed from. In this case, appellant's notice of appeal refers solely to the district court's order which embodies the jury's verdict on the federal age discrimination claim; neither the directed verdict nor the dismissal of the state law claims are mentioned. Thus, according to appellee Fischer, Dr. McLaurin is precluded from raising these issues on appeal. We disagree.

Generally, a notice of appeal must "designate the judgment order or other part thereof" from which the party appeals. Fed.R.App.P. 3(c). Nevertheless, the law is well settled that an appeal from a final judgment draws into question all prior non-final rulings and orders. E.g. Munoz v. Small Business Administration, 644 F.2d 1361, 1364 (9th Cir.1981); Herron v. Rozelle, 480 F.2d 282, 285 (10th Cir.1973); Elfman Motors, Inc. v. Chrysler Corp., 567 F.2d 1252, 1253 (3d Cir.1977); 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice p 203.18 (1985). If an appellant, however, chooses to designate specific determinations in his notice of appeal--rather than simply appealing from the entire judgment--only the specified issues may be raised on appeal. E.g., Drayton v. Jiffee Chemical Corp., 591 F.2d 352, 361 n. 10 (6th Cir.1978). In considering the impact of technical errors upon the sufficiency of a notice of appeal, the Supreme Court has repeatedly emphasized that absent a showing of prejudice such errors are to be treated as harmless. Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962) (notice of appeal must "mislead or prejudice" the other party); State Farm Mutual Automobile Insurance Co. v. Palmer, 350 U.S. 944, 76 S.Ct. 321, 100 L.Ed. 823 (1956) (per curiam); United States v. Arizona, 346 U.S. 907, 74 S.Ct. 239, 98 L.Ed. 405 (1953) (per curiam); Hoiness v. United States, 335 U.S. 297, 300-01, 69 S.Ct. 70, 71-72, 93 L.Ed. 16 (1948).

In this case, by appealing from the district court's final order Dr. McLaurin effectively preserved for review all of the district court's non-final rulings and orders, including the directed verdict and state law claim rulings. Furthermore, even assuming that the notice of appeal failed to properly preserve these issues for appeal, Dr. Fischer has failed to demonstrate any prejudice due to the alleged error; consequently, any error committed by appellant is harmless. We proceed, therefore, to address Dr. McLaurin's assignments of error.

At the close of plaintiff's proofs, the district court granted defendant Fischer's motion for a directed verdict on the question of whether Dr. McLaurin's removal as director of the Division of Neurosurgery constituted a deprivation of a property right without due process. The district court concluded that plaintiff had failed to establish that his position as director of the Division of Neurosurgery was a property interest cognizable under Ohio law. Thus, we must determine whether viewing the evidence in a light most favorable to Dr. McLaurin a reasonable juror could only conclude that Dr. McLaurin failed to establish a property interest protected by the Fourteenth Amendment. See, e.g., Hersch v. United States, 719 F.2d 873, 876-77 (6th Cir.1983).

The Fourteenth Amendment prohibits a state from depriving a person of a property interest without due process of law. E.g., Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972); Cleveland Board of Education v. Loudermill, --- U.S. ----, ----, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985). Not all property interests, however, are protected by the Fourteenth Amendment; a person must have a "legitimate claim of entitlement" to the property right. E.g., Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Memphis Light, Gas & Water Division v. Craft, 436 U.S. 1, 11-12, 98 S.Ct. 1554, 1561-62, 56 L.Ed.2d 30 (1978). Further, the Fourteenth Amendment does not create property interests; rather, they are created and defined by independent sources, such as state law. Loudermill, --- U.S. at ----, 105 S.Ct. at 1491; Goss v. Lopez, 419 U.S. 565, 572-73, 95 S.Ct. 729, 735-36, 42 L.Ed.2d 725 (1975).

The district court properly looked to Ohio law to determine if plaintiff had established a protected property interest. This Court has recently held that Ohio courts would recognize a property interest created by a "mutually explicit understanding" or by an unwritten common law practice in the work place. Yashon v. Gregory, 737 F.2d 547, 553-54 (6th Cir.1984); see Perry v. Sindermann, 408 U.S. 593, 600-02, 92 S.Ct. 2694, 2699-2700, 33 L.Ed.2d 370 (1972). Viewing the evidence presented in a light most favorable to the plaintiff, we conclude that a reasonable juror could find that Dr. McLaurin had a property interest in his position as head of the Division of Neurosurgery. First, Dr. McLaurin testified that he had an understanding with Dr. Altemeier that the position as director was permanent and that he would hold the position unless he became physically unable to perform his job or chose to resign. Further, Dr. McLaurin indicated that Dr. Altemeier had agreed that as director he would have a right to treat patients who were referred to the Division of Neurosurgery and to determine which doctors in the division would treat these referral patients. Evidence was introduced which indicated that this right to treat referral patients had a significant economic value. In our view, based on this testimony, a reasonable juror could conclude that Dr. McLaurin had a...