Frank McKenna v. Bowling Green State Univ.

568 F. App'x 450
Court of Appeals for the Sixth Circuit·Decided June 13, 2014·No. 13-4054·Unpublished·Cited by 16 cases

Opinion

GIBBONS, Circuit Judge.

Frank McKenna was a tenured professor in Bowling Green State University’s Department of Political Science. In January 2010, Bowling Green terminated McKenna’s employment contract, fired him for cause, and revoked his tenure. McKenna sued Bowling Green, Bowling Green’s Board of Trustees, and Simon Morgan-Russell, in his official and individual capacities, under 42 U.S.C. § 1983, alleging that defendants violated his right to procedural and substantive due process. The district court dismissed McKenna’s substantive due process claim against all defendants and dismissed McKenna’s procedural due process claim against Bowling Green, its Board of Trustees, and Morgan-Russell in his official capacity. The district court then granted summary judgment to Morgan-Russell in his individual capacity on McKenna’s procedural due process claim. McKenna appeals. For the following reasons, we affirm.

I.

In 1982, Bowling Green hired McKenna as an instructor in the Department of Political Science. McKenna became an Assistant Professor in 1984 and achieved tenure as an Associate Professor in 1989. The first ten years of McKenna’s employment were largely uneventful. But starting in 1993, McKenna frequently cancelled class, refused to hold regular office hours, submitted final grades late, and rarely attended faculty or committee meetings. McKenna attributes most of these deficiencies to various health issues.

After investigating McKenna’s performance issues, Bowling Green suspended McKenna without pay for the 2008-2009 academic year with notice that he would be fired if he continued to neglect his professional duties. McKenna filed a charge of discrimination with the Ohio Civil Rights Commission alleging that Bowling Green violated the Americans with Disabilities Act by failing to provide him with reasonable accommodations for his illnesses. McKenna and Bowling Green eventually settled this claim. Bowling Green allowed McKenna to return for the spring 2009 semester, and McKenna agreed to abide by an addendum to his 2008-2009 faculty appointment letter. The addendum identified a list of expectations for McKenna’s conduct upon his return. The addendum also provided:

Dr. McKenna’s compliance with the terms and conditions set forth in Section 2.0 shall be reasonably determined and decided by a panel of three faculty mem *453 bers, one who will be selected by the Dean, one who will be selected by the Chair, and one who will be selected by Dr. McKenna. Should it be determined by the panel that Dr. McKenna has failed to comply with the terms and conditions as hereinabove set forth Dr. McKenna shall be subject to further disciplinary action up to and including a one year suspension without pay, or, termination and revocation of tenure. Any termination or revocation of tenure shall be undertaken consistent with the procedures prescribed in the Academic Charter.

The parties agree that McKenna complied with the terms of the addendum during the spring 2009 semester.

In summer 2009, the start of the 2009-2010 academic year, McKenna taught an online political science class. Halfway through the course, a student complained that, among other things, McKenna “had not been online for roughly three weeks [and] had not returned any work.” The students “attempted to contact Dr. McKenna ... but no one received a response.” A student’s mother also complained to the Office of Admission that McKenna was nonresponsive. The Chair of the Political Science Department, Neal Jesse, talked to McKenna about these complaints. McKenna responded that he had been out of town and was having technical difficulties with his computer and online software.

Following this conversation, the Chair wrote Simon Morgan-Russell, Dean of the College of Arts and Sciences, a memorandum about the complaints and recommended that the College of Arts and Sciences impanel a committee as outlined in the addendum. McKenna was copied on this memorandum. On September 10, 2009, Morgan-Russell notified McKenna that he was “activat[ing] the procedure outlined in Section 8.0 of your Settlement Agreement.” Morgan-Russell noted the two student complaints. He also reiterated Jesse’s concern that these complaints “may be seen as a failure to meet the obligations of the Settlement Agreement.” Morgan-Russell then wrote to the Department, copying McKenna, and asked for the committee to be formed.

The committee met three times “to investigate questions raised about Dr. McKenna’s compliance with the terms and conditions set forth in the addendum to his 2008-2009 faculty appointment letter.” The committee interviewed Jesse, McKen-na, and a Technology Projects Specialist. The committee also reviewed the online software’s user statistics, the course syllabus, and 321 emails provided by McKenna. After considering this evidence, the committee concluded that “there remain four periods of time ... totaling 54 days, where [McKenna] did not respond to student emails received by him.” The committee found McKenna’s explanations for his failure implausible.

After reviewing the committee’s report, Morgan-Russell notified McKenna that he was seeking termination of McKenna’s contract and revocation of his tenure. In the letter, Morgan-Russell quoted Jesse’s initial summary of the students’ complaints as well as Jesse’s personal concerns with McKenna’s performance. He also attached the committee’s report and provided a bulleted summary. Bowling Green then terminated McKenna’s contract, dismissed him for cause, and revoked his tenure.

On January 28, 2010, McKenna, through counsel, sent a formal grievance petition to Bowling Green’s Faculty Personnel Conciliation Committee (FPCC). After rejecting his initial grievance for failure to follow the proper procedures, the FPCC accepted McKenna’s amended grievance in April. *454 On September 2nd, McKenna asked that the FPCC impanel a Hearing Board to continue the grievance process. Under the Academic Charter, a Hearing Board should have been impaneled by September 12th—-within ten class days of McKenna’s request. But by the end of September, the FPCC had only identified the Chair and Vice Chair. The Hearing Board was not selected until mid-November.

In anticipation of the hearing, McKenna submitted his written evidence and list of witnesses in December. Morgan-Russell submitted his evidence, including evidence concerning pre-summer 2009 discipline and performance issues, in January 2011. The FPCC then set the hearing for March 24, 2011.

Ten days before the hearing, McKenna’s counsel wrote to the Chair of the FPCC about “a couple specific due process concerns [McKenna had] related to the upcoming hearing.” Specifically, McKenna asked that, pursuant to the Academic Charter, he be allowed to designate a faculty member and licensed attorney to try the case on his behalf. McKenna also objected to several of Morgan-Russell’s designated witnesses and exhibits. In response, the FPCC cancelled the March hearing to consult with Bowling Green’s counsel. The FPCC told McKenna that “scheduling in the month of April can be problematic, given the demands of course exams, end-of-the year reports and the like.” McKenna “reluctantly agree[d] to such a delay,” but “insisted] that the matter be rescheduled before

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Frank McKenna v. Bowling Green State Univ., 568 F. App'x 450 (6th Cir. 2014).

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