Mitchell v. Visser

• Decision Date: 17 December 1981
• Docket Number: No. 78-4189.,78-4189.
• Citation: 529 F. Supp. 1034
• Parties: Rodney M. MITCHELL, Plaintiff, v. John E. VISSER, John E. Peterson, William H. Seiler and Randall C. Anderson, in their individual capacities and Emporia State University, Defendants.
• Court: U.S. District Court — District of Kansas

529 F. Supp. 1034

Rodney M. MITCHELL, Plaintiff, v. John E. VISSER, John E. Peterson, William H. Seiler and Randall C. Anderson, in their individual capacities and Emporia State University, Defendants.

No. 78-4189.

United States District Court, D. Kansas.

December 17, 1981.

Terry D. Watson, Topeka, Kan., for plaintiff.

Leslie A. Kulick and Reid Stacey, Asst. Attys. Gen., Topeka, Kan., Gerald T. Elliott, Sheila M. Janicke, Schnider, Shamberg & May, Chartered, Shawnee Mission, Kan., Bruce E. Miller, Deputy Atty. Gen., State of Kan., Topeka, Kan., for defendants.

William H. Seiler, Jr., Lehmberg, Bremyer, Wise & Hopp, McPherson, Kan., for William H. Seiler.

MEMORANDUM AND ORDER

ROGERS, District Judge.

Plaintiff, a former tenured professor at Emporia State University, brought this action alleging that the defendants retaliated against him and constructively discharged him for the exercise of his statutory and constitutional rights in violation of 42 U.S.C. § 1983 and 42 U.S.C. § 2000e et seq. (Title VII). Named as defendants were Emporia State University; John E. Visser, President of ESU; John E. Peterson, Dean of the School of Liberal Arts and Sciences at ESU; William H. Seiler, Sr., chairperson of the Division of Social Sciences at ESU; and Randall C. Anderson, faculty member and chairperson of the department of economics at ESU.

On August 10, 1981, a jury was impaneled and trial was begun in this matter. Evidence was presented over a three and one-half week period. Following the completion of the case, the court submitted plaintiff's § 1983 claims to the jury for decision and submitted plaintiff's Title VII claims to the jury for an advisory opinion. On September 10, 1981, the jury returned a verdict in favor of the plaintiff and against all the individual defendants on plaintiff's § 1983 claims. The jury awarded plaintiff $375,000 in compensatory damages and assessed punitive damages of $10,000 against each individual defendant. The jury also advised the court, through the use of special interrogatories, that it found in favor of the plaintiff on his Title VII claims. Thereafter, on September 14, 1981, this court directed the clerk of the court to enter judgment in this case based on the jury verdict in favor of plaintiff on his claims brought pursuant to 42 U.S.C. § 1983. At that time, the court reserved judgment on plaintiff's Title VII claims. The parties have since provided the court with proposed findings of fact and conclusions of law and the court is now prepared to rule.

Prior to the trial of this matter, the court advised the parties that it intended to submit plaintiff's Title VII claims to the jury for an advisory opinion. Under Rule 39(c) of the Federal Rules of Civil Procedure, in all actions not triable as of right by a jury, the court on the motion of a party or of its own initiative, may, in its discretion, use an advisory jury. Of course, it is well-settled that there is no right to a trial by jury in actions brought under Title VII. Slack v. Havens, 522 F.2d 1091 (9th Cir. 1975); Equal Employment Opportunity Comm. v. Detroit Edison Co., 515 F.2d 301 (6th Cir. 1975), vacated on other grounds, 431 U.S. 951, 97 S.Ct. 2668, 53 L.Ed.2d 267 (1977); Johnson v. Georgia Highway Express, 417 F.2d 1122 (5th Cir. 1969). When an advisory jury is used, the ultimate responsibility for findings of fact and conclusions of law remains with the district court. See Hyde Properties v. McCoy, 507 F.2d 301 (6th Cir. 1974); Frostie Co. v. Dr. Pepper Co., 361 F.2d 124 (5th Cir. 1966); Mallory v. Citizens Utilities Co., 342 F.2d 796 (2d Cir. 1965). Accordingly, in the instant case, the court declines to adopt the jury's findings on plaintiff's Title VII claims and now makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

1. Plaintiff, Rodney M. Mitchell, is a forty-eight year old white male. In 1962, plaintiff was hired by defendant, Emporia State University, as an instructor for its economics department.

2. Defendant Randall C. Anderson, at all times relevant hereto, was a full professor, with tenure, at Emporia State University, on the faculty of the Division of Social Sciences.

3. Defendant William H. Seiler, Sr., at all times relevant hereto, was chairperson of the Division of Social Sciences at Emporia State University.

4. Defendant John E. Peterson, at all times relevant hereto, was the Dean of the School of Liberal Arts and Sciences at Emporia State University.

5. Defendant John E. Visser, at all times relevant hereto, was the President of Emporia State University. Pursuant to K.S.A. 76-714, he exercised the administrative and management responsibility for the operation of the University as its chief executive officer. During the course of his administration, President Visser delegated down through the Vice-President for academic affairs, the Dean of the School of Liberal Arts and Sciences, and the chairperson of the Division of Social Sciences, an opportunity for certain of the faculty members to make recommendations to him with respect to certain management duties such as salaries and promotions. However, the faculty's recommendation was not binding on the administration nor the President nor were all such matters delegated to the faculty for recommendation.

6. Defendant Emporia State University is a state funded educational institution whose operation and management is provided for in K.S.A. 76-711 et seq.

7. The duties of professors at Emporia State University consist primarily of teaching their classes and keeping their office hours in order to consult and advise students.

8. From 1962 to 1970, plaintiff's teacher evaluations prepared by defendant Seiler showed generally grades of average to above average. During this period, plaintiff received annual salary increases.

9. In 1965, plaintiff was promoted to the rank of assistant instructor. In 1967, plaintiff received a doctorate degree in education from the University of Oklahoma. At that time, upon the recommendation of defendant Seiler, plaintiff was promoted to the rank of associate professor and granted full tenure by defendant Visser.

10. In the early 1970's, plaintiff's behavior and conduct at Emporia State University became noticeably disruptive. He acted emotionally and disruptively in meetings, classes, and even in social situations, toward administrators, colleagues and students.

11. On March 1, 1973, Emporia State University formally adopted an affirmative action program. The University's policy on affirmative action is stated in the Faculty Handbook as follows:

It is the policy of Emporia Kansas State College to assure equal employment opportunity to all qualified persons regardless of race, color, religion, national origin or sex, and to promote equal employment opportunity for minorities and women and the physically handicapped through an affirmative action program.

The affirmative action program covers all aspects of employment, including recruitment, hiring, assignment of duties, promotion, tenure, compensation, selection for training, and termination.

Ruth Schillinger, Dean of Women and the Affirmative Action Officer at Emporia State University, testified about the substantial efforts made by the University to attract women for teaching positions in the 1970's. The Faculty Handbook contained the following statement of policy on sex discrimination:

It shall be the objective of Emporia Kansas State College to have a single policy for recruitment, hiring, promotion, and tenure for men and women in all positions in the Institution, with open advertising and affirmative recruiting of both men and women for all faculty vacancies. Attention will be given to correcting the imbalance of men and women on the staff, while maintaining standards for appointment on merit.

12. On July 22, 1975, a vacancy was created on the economics faculty at Emporia State University due to the resignation of James Sturgeon. Due to the short length of time before the beginning of classes, the usual procedures followed by the University regarding advertising, screening and interviewing for applicants was disregarded.

13. In considering a replacement for Sturgeon, three economics faculty members, plaintiff, Sturgeon and William Williams, and a student, Jim Kilmer, met on July 30, 1975, to review the vitae of the applicants for the position. This group determined that Kristin Williams, the wife of William Williams, was the best applicant for the position.

14. Plaintiff, James Sturgeon and William Williams generally acted as a unified group in disagreement with the other members of the Division of Social Sciences. When acting together, they presented their views in a hostile and disruptive fashion that at times caused other faculty members to fear for their personal safety.

15. On July 31, 1975, a meeting was called by defendant Seiler to consider the naming of a replacement for the vacancy created by Sturgeon's resignation. The meeting was attended by plaintiff, defendant Seiler, defendant Anderson, William Williams, Professor Patrick O'Brien, Sturgeon and Kilmer. Sturgeon and Kilmer attended through the encouragement of plaintiff and Williams. The attendance of Kilmer, a student, and Sturgeon, a former faculty member, was contrary to established divisional policies and practices. Consequently, they were asked to leave and they did so.

16. It is somewhat unclear exactly what occurred at the July 31 meeting after Sturgeon and Kilmer left. It is clear that the meeting was chaotic. At some point during the meeting, it does appear that plaintiff supported Kristin Williams for the vacant position. However, both plaintiff and William Williams became quite vocal and argumentative during the meeting and each refused to abide by established divisional and institutional guidelines. Eventually, due to the rather chaotic scene which occurred, the meeting was adjourned without completing business.

17. Subsequently, the vacant...