Mueller v. Regents of University of Minnesota

• Decision Date: 26 August 1988
• Docket Number: No. 87-5329,87-5329
• Citation: 855 F.2d 555
• Parties: 48 Ed. Law Rep. 1093 Clarence E. MUELLER, Appellant, v. REGENTS OF the UNIVERSITY OF MINNESOTA, Charles H. Casey, William B. Dosland, Willis K. Drake, Erwin L. Goldfine, Wally Hilke, David M. Lebedoff, Verne E. Long, Charles F. McGuiggan, Wenda W. Moore, David K. Roe, Mary T. Schertler, C. Peter McGrath, Frank B. Wilderson, Jr., Carl E. Nelson, Donald R. Zander, Bonita F. Sindelir, University of Minnesota, Senate Judicial Committee, Roger C. Park, Peter H. Robinson, Amos S. Deinard, Laird H. Barber, Martin Dworkin, Ellen C. Egan, William H. Flanigan, Ruth E. Franzen, Arnold H. Ismach, Wendell J. Josal, Douglas E. Lewis, Don G. Maceachern, Tim L. Mazzoni, Sue S. Meyers, Paul L. Murphy, Dale C. Dahl, Matthew V. Tirrell, Ray K. Sibul, Ed K. Stauffer, Eugenia R. Taylor, Cecil J. Waddington, Delane E. Welsch, Marla E. White, Leonard J. Greenberg, Kristin Hirt, Jennifer Sue Oatey, Jone Doe, Mary Roe, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 555

855 F.2d 555

48 Ed. Law Rep. 1093

Clarence E. MUELLER, Appellant, v. REGENTS OF the UNIVERSITY OF MINNESOTA, Charles H. Casey William B. Dosland, Willis K. Drake, Erwin L. Goldfine Wally Hilke, David M. Lebedoff, Verne E. Long, Charles F McGuiggan, Wenda W. Moore, David K. Roe, Mary T. Schertler C. Peter McGrath, Frank B. Wilderson, Jr., Carl E. Nelson, Donald R. Zander, Bonita F. Sindelir, University of Minnesota, Senate Judicial Committee, Roger C. Park, Peter H. Robinson, Amos S. Deinard, Laird H. Barber, Martin Dworkin, Ellen C. Egan, William H. Flanigan, Ruth E. Franzen, Arnold H. Ismach, Wendell J. Josal, Douglas E. Lewis, Don G. Maceachern, Tim L. Mazzoni, Sue S. Meyers, Paul L. Murphy, Dale C. Dahl, Matthew V. Tirrell, Ray K. Sibul, Ed K. Stauffer, Eugenia R. Taylor, Cecil J. Waddington, Delane E. Welsch, Marla E. White, Leonard J. Greenberg, Kristin Hirt, Jennifer Sue Oatey, Jone Doe, Mary Roe, Appellees.

No. 87-5329.

United States Court of Appeals,

Eighth Circuit.

Submitted May 5, 1988.

Decided Aug. 26, 1988.

John E. Vukelich, Apple Valley, Minn., for appellant.

William P. Donohue, Minneapolis, Minn. for appellees.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Professor Clarence Mueller appeals from the district court's ¹ entry of summary judgment against him in his suit challenging his termination as a tenured associate professor and director of the Office of Recreational Sports at the University of Minnesota. For reversal, Mueller contends that there are genuine issues of material fact regarding his due process, equal protection, breach of contract, and interference with contract claims. We affirm the judgment of the district court.

In 1952, the University of Minnesota hired Mueller as a full-time instructor in the Department of Physical Education and Athletics. In 1957, Mueller was promoted to an assistant professor, and in 1960 he achieved tenure. From 1954 until 1963, Mueller headed the men's intramural program and after that, he served exclusively as the Chairman of the Intramural Sports Program for Men and as Director of the Department of Recreational Sports in the Office of Student Affairs.

The University audited his program in December, 1982 in response to allegations that Mueller had misused the University's personnel, name and resources. The University's Audit Department prepared a report, which listed the persons interviewed, summarized their testimony, provided exhibits, and set forth a series of findings confirming the allegations. Mueller's former secretaries testified that they spent a substantial amount of their time working on Mueller's personal businesses while employed and paid by the University. Kris Hirt, Mueller's secretary from June 1977 to October 1978 testified that she spent about 95% of her time working for Disco World, one of Mueller's companies, while being paid as a University secretary. She typed contracts and correspondence, wrote checks, arranged shows, did the bookkeeping and made trade calls. Hirt's testimony was corroborated by other clerical department employees. Sandra Wenholz, Mueller's secretary from February 1979 to October 1983, reported that she did a substantial amount of Mueller's personal business for PMI, another Mueller company on University time. She arranged a seminar sponsored by PMI devoted to "reboundology." ² Proceeds from the seminar went to PMI, although Wenholz was paid by the University for two days of regular time and fourteen hours of overtime for the work devoted to the seminar.

The report also detailed incidents of Mueller's misuse of the University name. His business card for one of his businesses, "Seminars, Etc.," contained the University logo. He also conducted seminars at the University for PMI devoted to selling "rebounders," and used University letterhead when seeking a business loan.

Finally, the report provided a myriad of examples of Mueller's misuse of University resources. Mueller billed both the University of Minnesota and the University of Michigan for the same travel expenses, and charged radio advertisements for Disco World, one of his private businesses, to the University. He used University funds to pay for express mailing with relation to paid consulting work which he later billed to a client and did not reimburse the University. He charged numerous personal telephone calls to the University. The Minnesota Masonic Home invited Professor Mueller, as a University professor, to give a talk on wellness, but his talk ended up being a sales pitch for his "rebounders." He allowed Ishwar Puri to conduct palm readings in his office. The readings, for which a fee was charged, were advertised in the Minnesota Daily, scheduled by University personnel, and conducted during regular work hours.

The Audit Department submitted its report to Dr. Wilderson, Vice President in charge of student affairs, and Professor Mueller, who responded in writing. After reviewing the report and Mueller's response, Dr. Wilderson sent a letter to Mueller initiating removal proceedings under the University of Minnesota's Regulations Concerning Faculty Tenure (Tenure Code). In his letter, Dr. Wilderson referred to the Audit Report and stated that Mueller's misuse of the University's personnel, name and resources was such as to "seriously interfere with your capacity completely to perform your duties in the office of Recreational Sports and your usefulness to the University."

Mueller requested a hearing before the Senate Judicial Committee. This group of faculty members, appointed by the University Faculty Senate to hear faculty complaints under the Tenure Code, consisted of tenured professors from outside Mueller's department. Before the hearing, Mueller was represented by counsel and allowed extensive discovery, including witness interviews, exchanges of interrogatories, requests for admission, and document production. On November 10, 1983, a prehearing conference was held and the parties exchanged issue, witness, and exhibit lists.

The panel heard testimony from 33 witnesses and received 200 exhibits during approximately 116 hours of proceedings. Mueller's counsel presented and cross-examined witnesses, introduced documentary evidence, and made both oral and written arguments on Mueller's behalf. Mueller also testified at the hearing. On June 11, 1984, the Panel issued its Final Findings and Recommendations, in which it discussed the issues and evidence and recommended that Mueller be terminated for cause under the Tenure Code. The Panel found that "the charges of misuse of University personnel, name and resources were sustained by clear and convincing evidence." The Panel concluded that "Professor Mueller's character, as exemplified by his conduct over the years, would seriously interfere with his usefulness to the University, whether he acts as an administrator or as a faculty member."

The President of the University adopted the Panel's Findings and Recommendation after reviewing them, as well as memoranda submitted by both Mueller and the University. Professor Mueller then appealed to the Board of Regents, who, after a hearing, approved the President's recommendation.

Mueller filed suit in district court against the Board of Regents, the Senate Judicial Committee and 43 individuals, seeking reinstatement, backpay and benefits, and compensatory and punitive damages. Mueller alleged violations of his constitutional rights and also asserted claims based on breach of contract, interference with contract, negligent and intentional infliction of emotional distress, and libel, slander and defamation. The district court granted the University's motion for summary judgment.

In reviewing a district court's decision to grant a motion for summary judgment, we apply the same standard as the district court. Mandel v. United States, 719 F.2d 963, 965 (8th Cir.1983). Summary judgment should be granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). We must view the facts in the light most favorable to Mueller, giving him the benefit of all inferences to be drawn therefrom. Mandel, 719 F.2d at 965.

I.

Mueller first contends that he was not accorded procedural due process in connection with his dismissal. We have outlined the due process requirements of notice and hearing in Agarwal v. Regents of the University of Minn., 788 F.2d 504, 508 (8th Cir.1986) (per curiam).

Mueller argues that he did not receive adequate notice of his termination as a tenured faculty member because the notice he received made no distinction between his termination as a tenured faculty member and his termination as an administrator. Mueller points to the Tenure Code which states: "[t]he removal of any person from an administrative position does not impair his rights to in and in his faculty rank."

We reject this argument. The notice Mueller received enumerated the charges against him, the misuse of the University personnel, name and resources, and stated that these charges seriously interfered with his duties in...