Former professor’s retaliation claim rejected by federal appeals panel

Friday, September 15, 2000

A former professor at Pennsylvania State University who alleged he was
retaliated against for criticizing his boss has had his claims rejected by a
federal appeals court panel.

In 1966, W. Channing Nicholas was hired as an associate professor of
physiology at the university’s Noll Human Performance Laboratory. After
receiving tenure in 1973, Nicholas supplemented his income with outside jobs,
including working as an emergency room physician at a local hospital.

In 1994, the new director of the Noll Lab, William Evans, terminated
Nicholas, citing concerns over Nicholas’ outside work interfering with his
university duties.

In June 1997, Nicholas sued the university and Evans in federal court.
He alleged several claims, including a First Amendment retaliation claim.
Nicholas contended that the real reason for his termination was that he had
criticized Evans’ research methods.

Nicholas had written a letter to the state board of medicine
criticizing Evans’ use of non-medical personnel to perform muscle biopsies. The
university subsequently adopted Nicholas’ position.

The lawsuit eventually went to a jury. The jury determined that
Nicholas’ report to the state board of medicine was a “substantial or
motivating factor” in his termination.

However, the jury also determined that Nicholas would have been
terminated even if he had not criticized Evans. Based on the jury’s findings, a
federal district court judge ruled in favor of the university and Evans.

On appeal, a three-judge panel of the 3rd U.S. Circuit Court of
Appeals analyzed the jury’s verdict under the U.S. Supreme Court’s 1977
decision in Mount Healthy Board of Education v.
. In Mount
, the U.S. Supreme Court established a legal framework
for First Amendment retaliation claims.

In a First Amendment retaliation case, the plaintiff must initially
show that his or her “constitutionally protected conduct was a substantial or
motivating factor” in the employment decision. If the plaintiff shows this, the
defendant must show that it “would have reached the same decision even in the
absence of the protected conduct.”

The appeals court panel ruled in Nicholas
v. Pennsylvania State University
that the jury’s finding that
the defendants would have fired Nicholas even if he had not criticized Evans’
research methods satisfied the defendant’s burden of proof under the
Mount Healthy standard.

Robert Mirin, Nicholas’ attorney, said no decision had been made on
whether to appeal.

Calls to the attorneys for the defendants were not returned.

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