Yohn v. Coleman

• Decision Date: 16 March 2009
• Docket Number: No. 08-CV-10008-DT.,08-CV-10008-DT.
• Citation: 639 F.Supp.2d 776
• Parties: Keith YOHN, Plaintiff, v. Mary Sue COLEMAN; Teresa A. Sullivan; Peter J. Polverini; Paul H. Krebsbach; Michael M. Bernitsas; individually and in their respective capacities, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

639 F.Supp.2d 776

Keith YOHN, Plaintiff, v. Mary Sue COLEMAN; Teresa A. Sullivan; Peter J. Polverini; Paul H. Krebsbach; Michael M. Bernitsas; individually and in their respective capacities, Defendants.

No. 08-CV-10008-DT.

United States District Court, E.D. Michigan, Southern Division.

March 16, 2009.

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Keith Yohn, Ann Arbor, MI, pro se.

Tiffany A. Buckley, Timothy H. Howlett, Dickinson Wright, Detroit, MI, for Defendants.

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS

GERALD E. ROSEN, Chief Judge.

I. INTRODUCTION

Plaintiff Keith Yohn, proceeding pro se, commenced this case on January 2, 2008, in this Court, suing Defendants Mary Sue Coleman, Teresa A. Sullivan, Peter J. Polverini, Paul H. Krebsbach, and Michael M. Bernitsas, under 42 U.S.C. § 1983, on various theories of federal constitutional and state law, arising out of events at the University of Michigan School of Dentistry. Yohn claims that the Defendants, all administrators at the university, threatened to abridge his First Amendment right to free speech and later retaliated against him for writing articles and emails about academic standards at the dental school. He also alleges that the subsequent faculty grievance proceeding, which addressed, inter alia, these free speech claims, was tainted by the appointment to the panel of a biased faculty member and that the Defendants failed to intervene or correct this shortcoming. Yohn brings this Section 1983 suit against the Defendants in their individual capacities, seeking injunctive relief, as well as compensatory and punitive damages.

The case is presently before the court on Defendants' Motion for Judgment on the Pleadings and/or Summary Judgment, and Yohn's Motion for Judgment on the Pleadings. The Defendants contend that they are entitled to judgment as a matter of law, insofar as Yohn's free speech was not infringed and he has not been deprived of constitutionally protected interests for purposes of sustaining a due process claim. They argue, in addition, that, as state university employees, they are entitled to qualified immunity.

Having reviewed the parties' respective briefs in support of and opposition to both motions, as well as the record as a whole, the Court finds that the relevant allegations, facts, and legal arguments are adequately presented in these written submissions, and that oral argument would not aid the decisional process. Accordingly, the Court will decide Defendants' motion "on the briefs." See Local Rule 7.1(e)(2), U.S. District Court, Eastern District of Michigan. This opinion and order sets forth the Court's rulings on these motions.

II. FACTS

Plaintiff Yohn is a tenured Associate Professor at the University of Michigan School of Dentistry. Since 1999, Yohn has litigated various claims against the Board of Regents and the University of Michigan administration in state and federal courts. His lawsuits, as well as three articles published in the University Record, and more than 25 emails sent to the dental school faculty, generally relate to what he considers to be the lowering of academic standards for minority dental students and the Board of Regents' authority over grading, promotion and graduation of students.

In October 1999, Yohn acted as one of four panel members scoring the examination for a special remediation course that the dental school offered to two students who had previously failed a class. The panel failed both students, giving them a letter grade of "F" on the practical exam. Due to administration concerns regarding the confidentiality of the grading procedure and structure of the remediation course, dental school administrators abandoned the course and the "F" grades, and a "W" was entered on the students' transcripts. The students were ultimately permitted to graduate. Yohn's subsequent dispute with the university and his public commentary in the form of articles and email messages stem primarily from this incident.

In the period pertaining to this case, Yohn's ongoing email messages to dental school faculty members met with apparently angry or irritated responses from colleagues. For example, on August 6, 2005, Yohn sent another in a series of emails describing various aspects of his then-pending lawsuit and expressing his concerns over the 1999 incident's impact on teacher integrity. In a subsequent message to the faculty four days later, Yohn responded to apparent criticisms he had received following that August 6 message:

If you do not want to read my "garbled" e-mail messages, then you know where the delete key is.... Trying to intimidate me will only make me fight harder in Court. I have a right under the First Amendment of the U.S. Constitution to "Speak" and "Express" myself in any form, content, or context I wish.

(Compl. Ex. 4.) In another email to the staff, Yohn apparently referred to emails he had received from other faculty members I have a right to file a lawsuit and bring out the facts and truth in a matter and right a wrong. Please stop talking behind my back. If you have something to say to me, then at least have the "Guts" to say it to my face.... I hope this e-mail message is not "garbled," "grammatically incorrect," "bashing," "recidivist fibber," or "fabulist." This is supposed to be a professional school. I am sorry to say that some of you act like adult children. GROW UP AND FACE THE TRUTH !!! Please seek advice from the Office of the General Counsel.

(Compl. Ex. 5.)

On August 17, 2005, Yohn met with the chairman of his university department, Paul H. Krebsbach, at Krebsbach's request. At the meeting, convened in part to respond to these growing tensions, Krebsbach allegedly said to Yohn: "Some people don't care shit about your lawsuit. I want to proof read your email messages before you send them out." (Compl. ¶ 70.) In his affidavit, Krebsbach described the meeting otherwise, stating that he suggested three alternatives to sending all-faculty emails: "(1) dealing with faculty members individually; (2) discussing matters of contention first with Krebsbach so that he may assist in resolving disagreements; or (3) using the dental school grievance process." (Krebsbach Aff. 8, Feb. 27, 2008.) Nearly two weeks after the meeting with Krebsbach, on August 30, 2005, Yohn sent another email to the dental school faculty, describing his own account of the meeting and indicating that he felt his First Amendment rights had been infringed.

On November 7, 2005, Yohn sent a letter to Krebsbach requesting an equity adjustment in his base salary, and detailing reasons the request should be granted. These included Yohn's long career with the school, strong student evaluations and positive letters from patients. In a letter sent November 22, 2005, Krebsbach denied Yohn's request for an equity adjustment. Although the letter did not specify the grounds for the denial, Krebsbach later provided a written rationale, in compliance with a School of Dentistry grievance review board recommendation, as well as, at Yohn's request, a chart showing comparable raise data for faculty with the same title and rank as Yohn.¹ Krebsbach explained that in comparison with other dental school faculty members, Yohn's service and scholarship were below expectations. Yohn received a 1.5 % merit increase for 2005-06, as compared to a 1.53 % average increase overall for faculty.

On January 15, 2006, Yohn filed a faculty grievance application form charging the dean of the School of Dentistry, Peter Polverini, and Krebsbach with violation of Yohn's right to free speech, as well as retaliation for using the university's email server to exercise that right.² The dental school faculty grievance procedure requires that each party, the grievant and the respondent, select five potential grievance review board (hereinafter "GRB") members from a list of potential panel members. Within ten days of receipt of the other's slate of nominees, each party must select one of the other party's nominees plus two ranked alternates.

On January 19, 2006, Yohn submitted his list of five nominees to Polverini, in accordance with the GRB procedures. Similarly, Polverini submitted a list of nominees. Ultimately, Yohn selected David Kohn, Professor of Dentistry, from Polverini's proposed list. Michael M. Bernitsas, Professor of Naval Architecture and Marine Engineering, was selected to chair the GRB, while Lynn Johnson, Associate Professor of Dentistry, was named the third panel member.

On April 16, 2006, six weeks before the scheduled GRB hearing date, Yohn learned that Kohn had received raises of approximately $25,000 and $13,000, in 2004 and 2005 respectively, while under the supervision of Polverini and Krebsbach. Yohn sent a letter to Bernitsas the following day, requesting that Kohn be removed from the GRB. Bernitsas did not respond to the letter and Kohn remained on the panel. On May 30, 2006, the GRB met to hear Yohn's grievance. Polverini presented the case for the respondents and testimony was taken from Krebsbach. Yohn presented his own case.

While the GRB was preparing its recommendation in August 2006, Yohn sought the intervention of first Mary Sue Coleman, University of Michigan President, and then Teresa Sullivan, Provost and Executive Vice President of Academic Affairs. In letters to each, Yohn asked that they act to remove Kohn from the panel. Both declined to intervene in the ongoing GRB proceedings and encouraged Yohn to exhaust the remedies available through the faculty grievance process.

On September 13, 2006, the GRB issued its final recommendation. The GRB recognized Yohn's right to publicly discuss academic issues as protected by the First Amendment, but concluded that in the August 17, 2005 meeting, it was not Krebsbach's intent to censor Yohn or otherwise infringe Yohn's right to free speech. Rather, the GRB found that...