Stern v. Shouldice, No. 81-1156

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBefore KEITH and CONTIE, Circuit Judges, and MORTON; CONTIE
Citation706 F.2d 742
Parties11 Ed. Law Rep. 122, 13 Fed. R. Evid. Serv. 140 Robert STERN, Plaintiff-Appellee, v. Kenneth SHOULDICE, et al., Defendants-Appellants.
Decision Date15 April 1983
Docket NumberNo. 81-1156

Page 742

706 F.2d 742
11 Ed. Law Rep. 122, 13 Fed. R. Evid. Serv. 140
Robert STERN, Plaintiff-Appellee,
v.
Kenneth SHOULDICE, et al., Defendants-Appellants.
No. 81-1156.
United States Court of Appeals,
Sixth Circuit.
Argued Nov. 2, 1982.
Decided April 15, 1983.

Page 744

Raymond Clevenger, Donald E. Shelton, Ann Arbor, Mich., Bryon H. Higgins (argued), East Lansing, Mich., for defendants-appellants.

Nino Green (argued), Escanaba, Mich., for plaintiff-appellee.

Before KEITH and CONTIE, Circuit Judges, and MORTON, Chief District Judge. *

CONTIE, Circuit Judge.

This is the rehearing of an appeal by Dr. Kenneth Shouldice and Dr. Leon Linderoth of a district court judgment rendering them liable for instigating the termination of Dr. Robert Stern, an assistant professor of speech and drama at Lake Superior State College in Michigan. Stern sued under 42 U.S.C. Sec. 1983, alleging that he was denied academic tenure in retaliation for exercising first amendment rights. The jury awarded damages to Stern in the amount of $2.00 against Linderoth and $1.00 against Shouldice. Pursuant to equitable powers, the trial judge assessed $45,696.00 back pay against Shouldice and Linderoth in their individual capacities. The court later granted Stern $15,585.22 in prejudgment interest and $23,158.55 in costs and attorney's fees. Although we affirm the assessment of nominal damages, costs and attorney's fees, we reverse the award of back pay and pre-judgment interest.

I.

Lake Superior State College became an independent academic institution on January 1, 1970. Though governed by an eight-member Board of Control, the College's chief executive officer was defendant

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Shouldice, its president. Defendant Linderoth headed the Arts and Letters division. Robert Stern, the plaintiff, joined the faculty in September, 1967. During his sojourn at the College, Stern served on the Faculty Senate and on the Administrative Counsel, the highest administrative body on campus. Stern also became president of the local chapter of the American Association of University Professors (AAUP).

This litigation resulted from Stern's claim that he was denied tenure in retaliation for exercising first amendment rights on two separate occasions. The first situation concerned an article, written by Professor Kaplan of the University of Michigan, which appeared in the AAUP Michigan Newsletter. Kaplan authored the piece after visiting the College in December, 1969. A draft of the article, which was somewhat critical of Shouldice and the College in general, was submitted to the College's chapter of AAUP so that the latter could correct any inaccuracies. The group suggested minor changes and returned the draft. Just before publication in January, 1970, Kaplan sent a copy of the revised article to Shouldice. Believing that the piece contained serious factual errors, Shouldice met with Stern who in turn suggested that the president call Kaplan. Shouldice did so but was told that the article had already gone to press.

Shouldice was concerned about adverse publicity because the College had only recently achieved independence and because the school was competing for qualified faculty in what was then a scarce market. He therefore wrote a reply to Kaplan's article, but the AAUP Michigan Newsletter never published it. Furthermore, after reading a statement by Stern in The Compass, the campus newspaper, to the effect that the AAUP only censured a school after careful investigation, Shouldice wrote to Stern that "in light of recent events, this is a very shallow statement. The inference of purity usually should be matched with personal action to support it." 1 Subsequent to the article's publication, Shouldice asked the Faculty Senate to replace Stern as the Senate's representative to the Administrative Counsel. In May, 1970, Linderoth orally informed Stern that he would not be recommended for tenure when the appropriate time arrived. Nevertheless, Stern was reappointed for the 1970-71 academic year.

Stern asserts in his complaint that he was denied tenure partially because the Kaplan article criticized the College. Defendants counter that plaintiff was discharged because he associated poorly with colleagues and because his talents did not comport with proposed curriculum changes. In addition, Stern's involvement with the Kaplan article supported the tenure decision not because the administration was attempting to quell dissent, but because Stern's failure to correct purportedly obvious factual errors when given the opportunity to do so indicated personal immaturity or lack of competence not desired of tenured faculty members. Stern is said to have been privy to the facts because of his positions on the Faculty Senate and on the Administrative Counsel.

The second incident involved a student who drove a College car to Canada without permission in July, 1970. Canadian officials impounded the auto after finding marijuana inside. After meeting with the student, Shouldice terminated his summer job on campus. Following a hearing, the Dean of Students suspended the youth from school. The student then contacted Stern, his school-appointed faculty advisor. After listening only to the former's story, Stern opined that the student may have been summarily expelled and suggested that he seek legal advice. The student did so and was subsequently readmitted to the College. Shouldice then wrote a letter to Stern which criticized the latter's handling of the matter.

Stern alleges in his complaint that he was denied tenure in retaliation for exercising his first amendment right to advise a student

Page 746

to seek legal counsel. Defendants assert that the episode was relevant to the tenure decision not because Stern suggested that the student take possible legal action against the College, but because Stern's failure to check with either the Dean of Students or the youth's file before concluding that no procedural protections had been afforded was proof that Stern undertook his counselling duties in a cavalier or immature fashion.

In May, 1971, Linderoth informed both Stern and Dr. Light, vice president for academic affairs, that Stern would not be recommended for tenure because of his uncooperative attitude and because of his lack of expertise in drama theory. The three men met on May 13, 1971 at which time Stern requested that his case be heard by the tenure committee. Although Light recommended to Shouldice that Stern be denied tenure, the latter asked the committee to review the matter. Finding an irreconcilable conflict between Linderoth and Stern, the committee stated that the reasons given for discharging Stern had not been refuted. Upon receiving this report, Shouldice notified Stern that he would not be retained after the 1971-72 academic year.

The Board of Control subsequently approved this decision. Stern then requested an opportunity to present his case directly to the Board. The Board permitted him to submit a lengthy document in his defense and also invited his attorney to make comments at a Board meeting. The Board again approved the denial of tenure on November 19, 1971.

At trial, the jury returned a general verdict in favor of the College but against Shouldice and Linderoth in their individual capacities for nominal damages. Pursuant to an agreement of the parties, the back pay issue had not been submitted to the jury. The court found the verdict inconsistent with the answer to an accompanying interrogatory. Upon resuming deliberations, the jury conformed the interrogatory answer to the general verdict.

Exercising equitable powers, the court awarded back pay against Shouldice and Linderoth as individuals. Judgment was properly entered on September 23, 1980. Defendants timely filed post-judgment motions for j.n.o.v., for a new trial and to amend the judgment. Stern filed a motion for prejudgment interest, costs and attorney's fees. In an opinion rendered on January 15, 1981, the court denied defendants' motions and granted plaintiff's motion. The judgment for interest, costs and attorney's fees was entered February 12, 1981. Defendants filed their notice of appeal on March 6, 1981.

II.

The first issue requiring discussion is whether defendants' notice of appeal was timely filed. Because our treatment of Stern's motion for pre-judgment interest, costs and attorney's fees disposes of this issue, we do not discuss the effect of defendants' motions.

Since Federal Rule of Appellate Procedure (FRAP) 4(a)(1) mandates that appeals be filed within thirty days after entry of judgment, defendants' notice of appeal normally would have been due on October 23, 1980. Since Stern filed a post-judgment motion, however, we must consider the effect of FRAP 4(a)(4) which provides in part that the thirty-day appeal period for all parties runs from the date of entry of the order granting or denying a Federal Rule of Civil Procedure (FRCP) 59 motion for amended judgment. FRAP 4(a)(6) states that such a judgment is "entered" when there is compliance with FRCP 58 and 79(a), i.e., a separate document is entered on the docket. In the present case, the assessment of pre-judgment interest, costs and attorney's fees was entered for purposes of FRAP 4(a)(6) on February 12, 1981. The notice of appeal was filed on March 6, 1981. Consequently, if granting pre-judgment interest, costs and attorney's fees constituted a Rule 59 amendment of judgment, defendant's appeal was timely.

Although the Supreme Court has recently held that costs and attorney's fees should be

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granted under FRCP 54(d) rather than under FRCP 59, White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), defendants contend that the assessment of over $15,500.00 in pre-judgment interest on the back pay claim was obtainable only under the latter rule. Stern counters, however, that pre-judgment interest was available under FRCP 60(a)'s provisions...

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33 practice notes
  • Fowler v. Board of Educ. of Lincoln County, Ky., Nos. 85-5815
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 21, 1987
    ...4 Whether a certain activity is entitled to protection under the First Amendment is a question of law. See, e.g., Stern v. Shouldice, 706 F.2d 742 (6th Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 487, 78 L.Ed.2d 683 5 Plaintiff relies on Minarcini v. Strongsville City School District, 541 ......
  • Orr v. Crowder, No. 15477
    • United States
    • Supreme Court of West Virginia
    • December 16, 1983
    ...at 265. Other courts have applied the same principle to section 1983 suits involving First Amendment claims. E.g., Stern v. Shouldice, 706 F.2d 742 (6th Cir.1983); Nekolny v. Painter, 653 F.2d 1164 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982); McKinley ......
  • Figueroa-Rodriguez v. Aquino, FIGUEROA-RODRIGUEZ
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 1, 1988
    ...13 and accompanying text, are also barred by the Eleventh Amendment. 14 Although I am aware that the Sixth Circuit in Stern v. Shouldice, 706 F.2d 742, 750 (6th Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 487, 78 L.Ed.2d 683 (1983) has held otherwise, I do not agree with the reasoning or c......
  • Williams v. Com. of Ky., Nos. 93-5222
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 26, 1994
    ...E.g., Rankin, 483 U.S. at 388, 107 S.Ct. at 2899 (citing Pickering, 391 U.S. at 570-73, 88 S.Ct. at 1735-37); Stern v. Shouldice, 706 F.2d 742, 748 (6th Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 487, 78 L.Ed.2d 683 In a rather conclusory fashion, defendants contend that a reasonable offi......
  • Request a trial to view additional results
33 cases
  • Fowler v. Board of Educ. of Lincoln County, Ky., Nos. 85-5815
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • July 21, 1987
    ...4 Whether a certain activity is entitled to protection under the First Amendment is a question of law. See, e.g., Stern v. Shouldice, 706 F.2d 742 (6th Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 487, 78 L.Ed.2d 683 5 Plaintiff relies on Minarcini v. Strongsville City School District, 541 ......
  • Orr v. Crowder, No. 15477
    • United States
    • Supreme Court of West Virginia
    • December 16, 1983
    ...at 265. Other courts have applied the same principle to section 1983 suits involving First Amendment claims. E.g., Stern v. Shouldice, 706 F.2d 742 (6th Cir.1983); Nekolny v. Painter, 653 F.2d 1164 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982); McKinley ......
  • Figueroa-Rodriguez v. Aquino, FIGUEROA-RODRIGUEZ
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • February 1, 1988
    ...13 and accompanying text, are also barred by the Eleventh Amendment. 14 Although I am aware that the Sixth Circuit in Stern v. Shouldice, 706 F.2d 742, 750 (6th Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 487, 78 L.Ed.2d 683 (1983) has held otherwise, I do not agree with the reasoning or c......
  • Williams v. Com. of Ky., Nos. 93-5222
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 26, 1994
    ...E.g., Rankin, 483 U.S. at 388, 107 S.Ct. at 2899 (citing Pickering, 391 U.S. at 570-73, 88 S.Ct. at 1735-37); Stern v. Shouldice, 706 F.2d 742, 748 (6th Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 487, 78 L.Ed.2d 683 In a rather conclusory fashion, defendants contend that a reasonable offi......
  • Request a trial to view additional results

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