                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-13-2000

Nicholas v. Pennsylvania State Univ
Precedential or Non-Precedential:

Docket 98-7611




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Filed September 13, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-7611

W. CHANNING NICHOLAS, M.D.,

       Appellant

v.

PENNSYLVANIA STATE UNIVERSITY, by its officers,
agents and Trustees; WILLIAM EVANS, PH.D., individually
and as Director of the Noll Human Performance
Laboratory

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA

(Dist. Court No. 96-cv-01101)
District Court Judge: Malcolm Muir

Argued: June 30, 2000

Before: ALITO and McKEE, Circuit Judges, and
FULLAM, District Judge*

(Opinion Filed: September 13, 2000)

       ROBERT S. MIRIN (Argued)
       Ahmad & Mirin
       8150 Derry Street
       Harrisburg, PA 17111

       Counsel for Appellant
_________________________________________________________________

* The Honorable John P. Fullam, Senior Judge of the United States
District Court for the Eastern District of Pennsylvania, sitting by
designation.
       JAMES M. HORNE (Argued)
       KATHERINE M. ALLEN
       McQuaide Blasko Schwartz Fleming
        & Faulkner Inc.
       811 University Drive
       State College, PA 16801

       Counsel for Appellees

OPINION OF THE COURT

ALITO, Circuit Judge:

Appellant, Dr. W. Channing Nicholas, was fired from his
tenured professorship at Pennsylvania State University
following a series of run-ins with his new supervisor, Dr.
William Evans. Nicholas brought suit against the University
and Evans alleging, inter alia, violation of procedural and
substantive due process, retaliatory firing in violation of the
First Amendment, and breach of contract. The District
Court determined that the University had breached
Nicholas's tenure contract, but entered judgment in favor of
the defendants on all other counts.

Nicholas raises a host of substantive and procedural
arguments on appeal. Most importantly, he claims that his
tenured professorship was a property interest entitled to
protection under the substantive component of the Due
Process Clause. Because we find that this argument--like
Nicholas's other grounds for appeal--is without merit, we
will affirm.

I.

In 1966, Nicholas was named Associate Professor of
Physiology at Pennsylvania State University's Noll Human
Performance Laboratory. After receiving tenure in 1973,
Nicholas supplemented his income with various outside
jobs, including work as an emergency room physician for
Centre Emergency Medical Associates. The University
claims that Nicholas worked full-time in the emergency
room and consequently was unable to work regular hours

                               2
at Noll Lab. Nicholas disputes this, claiming that his
emergency room work was only part-time.

In July 1993, the University hired Evans as the new
director of Noll Lab. On his arrival, Evans--who was now
Nicholas's supervisor--requested that Nicholas provide him
with information about his curriculum vitae and research
plans, as well as a written schedule for his work at Noll
Lab. In particular, Evans requested an assurance that
Nicholas would maintain a full-time presence with regular
hours at the Lab--a concern he claims was raised by
Nicholas's outside work. Nicholas was not forthcoming with
this information.

On several occasions during the next few months, Evans
provided Nicholas with written warnings, stating that
Nicholas had jeopardized his position with the University by
refusing to provide the requested information. At a meeting
on May 10, 1994, Evans formally notified Nicholas that he
would be terminated if he did not respond to Evans's
requests. Nicholas refused to provide any assurance at that
meeting, or at another meeting with Dr. Peter Farrell, that
he would work full-time hours at the Lab. On May 20,
1994, several members of the Noll Lab facility wrote to
Dean Herbert A. Lundegren to express their concern that
Nicholas could no longer provide medical coverage for their
research efforts. On June 17, 1994, Evans handed Nicholas
his termination letter.

According to Nicholas, Evans's charges of
insubordination were merely a pretext. In reality, Nicholas
alleges, his termination was the consequence of a personal
vendetta waged against him by Evans, which was prompted
in part by Nicholas's objections to Evans's research
methods. Prior to his termination, Nicholas had contacted
the State Board of Medicine to complain about Evans's
proposal to have non-medical personnel perform muscle
biopsies independent of any medical supervision. The
University subsequently adopted Nicholas's position and
directed that the muscle biopsies be performed only by
medical personnel.

Nicholas appealed his termination. The University
provided him with a detailed statement of charges, and the

                                3
University's Standing Joint Committee on Tenure held a full
hearing in January 1995. Nicholas was represented by
counsel at the hearing, and had an opportunity to call
witnesses and cross-examine the University's witnesses.
The Committee found that three of the five charges lodged
against Nicholas by the University constituted adequate
cause for terminating his tenure. Based on the Committee's
findings, the President of the University upheld Nicholas's
termination. Following his termination, Nicholas worked
full-time as a doctor at area hospitals, making more in
money and benefits than before his termination.

In June 1997, Nicholas filed this lawsuit against the
University and Evans. In his five-count Complaint, he
alleged that the defendants' actions: (1) violated his rights
under the due process clause of the Fourteenth
Amendment and the free speech clause of the First
Amendment; (2) violated these same rights and
discriminated against Nicholas based on his age in violation
of 42 U.S.C. S 1983; (3) violated the Pennsylvania
whistleblower law, 43 P.S.A. S 1423; (4) constituted a
breach of his tenure contract; and (5) violated ERISA.

The defendants moved for summary judgment, and the
District Court dismissed Counts I and V of the Complaint,
as well as Count II's S 1983 claims based on age
discrimination and substantive due process. The case was
bifurcated and the liability phase proceeded to jury trial. At
the close of Nicholas's case, the District Court granted
defendants' motion to dismiss Count III, alleging violation of
the whistleblower law.

At the close of the liability phase, the jury returned a
special verdict that read as follows:

       1) Prior to Plaintiff 's termination, did Defendants fail to
       provide Plaintiff with oral or written notice of the
       charges against him and an opportunity to present his
       side of the story?

         Answer: No

       2) After Plaintiff 's termination, did the University fail to
       provide Plaintiff with a fair hearing on the charges
       against him?

                               4
         Answer: Yes

       3) Was Plaintiff 's report on Dr. Evans' muscle biopsy
       procedures to the State Board of Medicine a
       substantial or motivating factor in Defendant's decision
       to terminate Plaintiff?

         Answer: Yes

       4) If Plaintiff had not filed a report on Dr. Evans with
       the State Board of Medicine, would Defendants'
       decision to terminate Plaintiff have been the same?

         Answer: Yes

       5) Did the University breach the terms of its tenure
       contract with Plaintiff by terminating him?

         Answer: Yes

(App. 305-310.)

The defendants moved for judgment notwithstanding the
verdict on questions 2 and 5. The District Court granted
judgment as a matter of law in favor of the defendants on
question 2, the post-termination procedural due process
claim. The court also entered final judgment in favor of the
University as to the First Amendment claim and in favor of
Evans as to all claims. The remaining breach of contract
claim against the University went to the jury for
determination of damages.

Prior to the damages phase, the District Court granted
the University's motion for discovery sanctions against
Nicholas, precluding him from introducing evidence of
future lost earnings. The court also excluded evidence
related to punitive damages, detrimental reliance and
compensatory damages beyond lost earnings and benefits.
At the conclusion of the damages phase, the jury entered
the following special verdict:

       Question No. 1: Did Dr. Nicholas suffer any actual
       damages causally related to the University's breach of
       contract?

         Answer: No.

       . . . .

                               5
       Question No. 3: If your answer to Question No. 1 is
       "No" or "Evidence Equally Balanced," what amount of
       nominal damages do you award?

         Answer: $1,000.

(App. 614-17.) After further briefing, the District Court
issued an order holding that: (1) Nicholas was entitled to
severance pay in the amount of one year's salary; (2) the
jury's award of nominal damages be reduced to $1.00; and
(3) Nicholas was not entitled to specific performance as a
remedy for breach of contract. Nicholas now appeals.

II.

The District Court exercised subject matter jurisdiction
over this action pursuant to 28 U.S.C. SS 1331, 1343 and
1367. We have appellate jurisdiction over the final
judgment of the District Court pursuant to 28 U.S.C.
S 1291.

III.

Nicholas raises numerous arguments on appeal. Thefirst
five are substantive and allege that: (1) the District Court
erred in dismissing the substantive due process claim; (2)
the court erred in granting final judgment against him on
the First Amendment claim; (3) the jury's verdict for
defendants on the pre-termination procedural due process
claim was not supported by the evidence; (4) the court
erred in granting final judgment in favor of Evans on all
counts; and (5) the jury charge on breach of contract was
in error. Next, Nicholas raises three arguments relating to
the damages phase: (6) the court erred in reducing
Nicholas's nominal damage award; (7) the court erred in
denying specific performance; and (8) the court erred in
limiting Nicholas's damages to lost compensation. Finally,
Nicholas raises three evidentiary and trial-related
arguments: (9) the District Court improperly limited
Nicholas's time for cross-examining Evans; (10) the court
erred in excluding the testimony of William Becker on the
subject of Evans's credibility; and (11) the court erred in
granting the University's motion for discovery sanctions and

                                6
prohibiting Nicholas from presenting any evidence of future
lost earnings. We will address these arguments in turn.

A.

Nicholas claims that defendants violated the substantive
component of the Fourteenth Amendment's Due Process
Clause by firing him for an arbitrary, irrational, or improper
reason. The chief issue in the appeal concerns whether
Nicholas's property interest in his tenured professorship
was entitled to substantive due process protection. We hold
that it was not, and accordingly affirm the District Court's
dismissal of his substantive due process claim.

The Due Process Clause of the Fourteenth Amendment
provides that no state shall "deprive any person of life,
liberty, or property, without due process of law." While on
its face this constitutional provision speaks to the adequacy
of state procedures, the Supreme Court has held that the
clause also has a substantive component. See, e.g., Planned
Parenthood of S.E. Pennsylvania v. Casey, 505 U.S. 833,
846-47 (1992) ("it is settled that the due process clause of
the Fourteenth Amendment applies to matters of
substantive law as well as to matters of procedure")
(quoting Whitney v. California, 274 U.S. 357, 373 (1927)
(Brandeis, J., concurring)).

As this Court has previously observed, substantive due
process "is an area of law `famous for controversy, and not
known for its simplicity.' " DeBlasio v. Zoning Bd. of
Adjustment, 53 F.3d 592, 598 (3d Cir. 1995) (quoting
Schaper v. City of Huntsville, 813 F.2d 709, 715 (5th Cir.
1987)). Part of this conceptual confusion may arise from
the fact that the fabric of substantive due process, as
woven by our courts, encompasses at least two very
different threads. Before ruling on Nicholas's claim, then,
we will attempt to untwist this tangled skein.

The first thread of substantive due process applies when
a plaintiff challenges the validity of a legislative act.1
_________________________________________________________________

1. It is crucial to keep in mind the distinction between legislative acts
and non-legislative or executive acts. As we have previously explained,

                               7
Typically, a legislative act will withstand substantive due
process challenge if the government "identifies a legitimate
state interest that the legislature could rationally conclude
was served by the statute," although legislative acts that
burden certain "fundamental" rights may be subject to
stricter scrutiny. Alexander v. Whitman, 114 F.3d 1392,
1403 (3d Cir. 1997) (quoting Sammon v. New Jersey Bd. of
Med. Examiners, 66 F.3d 639, 645 (3d Cir. 1995)).

The second thread of substantive due process, as
identified by this Court, protects against certain types of
non-legislative state action. Of course, the Due Process
Clause's primary protection against the arbitrary exercise of
power by government officials is its requirement of fair
procedures--that is, of procedural due process. This Court
has nevertheless held that a non-legislative government
deprivation "that comports with procedural due process
may still give rise to a substantive due process claim `upon
allegations that the government deliberately and arbitrarily
abused its power.' " Independent Enters. Inc. v. Pittsburgh
Water & Sewer Auth., 103 F.3d 1165, 1179 (3d Cir. 1997)
(quoting Midnight Sessions, Ltd. v. City of Philadelphia, 945
F.2d 667, 683 (3d Cir. 1991)); see also Boyanowski v.
Capital Area Intermediate Unit, ___ F.3d ___, 2000 WL
768775, *3 (3d Cir. June 14, 2000) ("The substantive
component of the Due Process Clause limits what
governments may do regardless of the fairness of
procedures that it employs, and covers government conduct
in both legislative and executive capacities."). Accordingly,
we have held that a property interest that falls within the
ambit of substantive due process may not be taken away by
the state for reasons that are "arbitrary, irrational, or
tainted by improper motive," Woodwind Estates, Ltd. v.
Gretkowski, 205 F.3d 118, 123 (3d Cir. 2000) (quoting Bello
v. Walker, 840 F.2d 1124, 1129 (3d Cir. 1988)), or by
_________________________________________________________________

"[e]xecutive acts, such as employment decisions, typically apply to one
person or to a limited number of persons, while legislative acts,
generally
laws and broad executive regulations, apply to large segments of
society." Homar v. Gilbert, 89 F.3d 1009, 1027 (3d Cir. 1996) (Alito, J.,
concurring in part and dissenting in part); see also McKinney v. Pate, 20
F.3d 1550, 1557 n.9 (11th Cir. 1994).

                               8
means of government conduct so egregious that it"shocks
the conscience," Boyanowski, 2000 WL 768775, at *4
(quoting County of Sacramento v. Lewis, 523 U.S. 833, 846
(1998)).

To prevail on a non-legislative substantive due process
claim, "a plaintiff must establish as a threshold matter that
he has a protected property interest to which the
Fourteenth Amendment's due process protection applies."
Woodwind Estates, 205 F.3d at 123. The text of the
Fourteenth Amendment speaks of "property" without
qualification, and it is well-settled that state-created
property interests, including some contract rights, are
entitled to protection under the procedural component of
the Due Process Clause. See Reich v. Beharry, 883 F.2d
239, 243 (3d Cir. 1989). However, "not all property interests
worthy of procedural due process protection are protected
by the concept of substantive due process." Id. Rather, to
state a substantive due process claim, "a plaintiff must
have been deprived of a particular quality of property
interest." DeBlasio v. Zoning Bd. of Adjustment, 53 F.3d
592, 598 (3d Cir. 1995) (emphasis added).

On past occasion, we have lamented that "the case law of
this circuit and the Supreme Court provides very little
guidance as to what constitutes this `certain quality' of
property interest worthy of protection under the substantive
due process clause." Homar v. Gilbert, 89 F.3d 1009, 1021
(3d Cir. 1996), rev'd and remanded on other grounds, 520
U.S. 924 (1997). Nevertheless, we believe that a careful
review of the case law does reveal one guiding principle:
whether a certain property interest embodies this
"particular quality" is not determined by reference to state
law, but rather depends on whether that interest is
"fundamental" under the United States Constitution. See
Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 229
(1985) (Powell, J., concurring); Independent Enters. Inc. v.
Pittsburgh Water & Sewer Auth., 103 F.3d 1165, 1179 n.12
(3d Cir. 1997); Nilson v. Layton City, 45 F.3d 369, 372
(10th Cir. 1995); McKinney v. Pate, 20 F.3d 1550, 1556
(11th Cir. 1994) (en banc); Sutton v. Cleveland Bd. of Educ.,
958 F.2d 1339, 1351 (6th Cir. 1992); Huang v. Board of
Governors of Univ. of North Carolina, 902 F.2d 1134, 1142

                               9
n.10 (4th Cir. 1990); Homar v. Gilbert, 63 F. Supp. 2d 559,
570-77 (M.D. Pa. 1999). Justice Powell explained this
distinction in his Ewing concurrence:

       Even if one assumes the existence of a property right
       . . . not every such right is entitled to the protection of
       substantive due process. While property interests are
       protected by procedural due process even though the
       interest is derived from state law rather than the
       Constitution, substantive due process rights are
       created only by the Constitution.

       The history of substantive due process "counsels
       caution and restraint." The determination that a
       substantive due process right exists is a judgment that
       " `certain interests require particularly careful scrutiny
       of the state needs asserted to justify their
       abridgment.' " In the context of liberty interests, this
       Court has been careful to examine each asserted
       interest to determine whether it "merits" the protection
       of substantive due process. "Each new claim to
       [substantive due process] protection must be
       considered against a background of Constitutional
       purposes, as they have been rationally perceived and
       historically developed."

       The interest asserted by respondent [in continued
       university enrollment] is essentially a state-law
       contract right. It bears little resemblance to the
       fundamental interests that previously have been viewed
       as implicitly protected by the Constitution. It certainly
       is not closely tied to "respect for the teachings of
       history, solid recognition of the basic values that
       underlie our society, and wise appreciation of the great
       roles that the doctrines of federalism and separation of
       powers have played in establishing and preserving
       American freedoms." For these reasons, briefly
       summarized, I do not think the fact that Michigan may
       have labeled this interest "property" entitles it to join
       those other, far more important interests that have
       heretofore been accorded the protection of substantive
       due process

Ewing, 474 U.S. at 229-30 (Powell, J., concurring) (citations
omitted).

                               10
Following Justice Powell, this Circuit has adopted an
approach to substantive due process that focuses on the
nature of the property interest at stake. By way of
illustration, we have so far limited non-legislative
substantive due process review to cases involving real
property ownership. See, e.g., DeBlasio , 53 F.3d at 600
("[land] ownership is a property interest worthy of
substantive due process protection"). As one court has
aptly observed, this is unquestionably "a fundamental
property interest dating back to the foundation of the
American colonies." Homar, 63 F. Supp. 2d at 577. And, as
we concluded in DeBlasio, "one would be hard-pressed to
find a property interest more worthy of substantive due
process protection than [land] ownership." 53 F.3d at 601.

Heedful of the Supreme Court's admonition that we
should exercise "utmost care whenever we are asked to
break new ground in this field," Collins v. City of Harker
Heights, 503 U.S. 115, 124 (1992), we have been reluctant
to extend substantive due process protection to other, less
fundamental property interests. In Reich v. Beharry, for
example, we held that a service contract with the state
failed to merit substantive due process protection. See 883
F.2d at 245. Reich relied on this Court's previous decision
in Ransom v. Marrazzo, 848 F.2d 398 (3d Cir. 1988), which
held that a state-law entitlement to water and sewer
services was not protected by the Due Process Clause's
substantive component:

       Substantive due process refers to and protects federal
       rights. The provision of water and sewer services,
       whether by a municipality or by a private utility
       company, is not, however, a federally protected right.
       The legal fact that, once a municipality (or, for that
       matter, a private utility company) establishes a utility
       for its citizens, a citizen's expectation of receiving that
       service rises to the level of a property interest
       cognizable under the Due Process Clause, merely
       brings that expectation within the compass of the
       Fourteenth Amendment's procedural protection. . . . It
       does not transform that expectation into a substantive
       guarantee against the state in any circumstance.

Ransom, 848 F.2d at 411-12. As the Reich   court reasoned,

                                11
       It is apparent that, in this circuit at least, not all
       property interests worthy of procedural due process
       protection are protected by the concept of substantive
       due process. Moreover, we know from Ransom
       specifically that, despite the importance of utility
       service to the maintenance of a minimally acceptable
       standard of living, an arbitrary and capricious
       termination of such service by a state actor does not
       give rise to a substantive due process claim.

       We believe it follows a fortiori from the holding in
       Ransom that Reich's complaint fails to state a
       substantive due process claim. As we have noted, the
       only interest that Reich had at stake before Beharry
       was his interest in avoiding delay in the receipt of
       payment of a bill for professional services rendered. We
       can think of no basis for according substantive due
       process protection to this interest while denying it to
       those who have had their utility service terminated.

Reich, 883 F.3d at 244-45.

Other cases have made explicit the requirement that a
property interest must be constitutionally "fundamental" in
order to implicate substantive due process. In Mauriello v.
University of Medicine & Dentistry of New Jersey, 781 F.2d
46 (3d Cir. 1986), this Court, citing Justice Powell's
concurrence in Ewing, opined that a graduate student's
interest in continued academic enrollment "bore`little
resemblance to the fundamental interests that previously
had been viewed as implicitly protected by the
Constitution.' " Id. at 50 (quoting Ewing, 474 U.S. at 229
(Powell, J., concurring)). And, in Independent Enterprises
Inc. v. Pittsburgh Water & Sewer Authority, we held that a
low bidder's entitlement to state contract "is not the sort of
`fundamental' interest entitled to the protection of
substantive due process." 103 F.3d at 1179. Distinguishing
earlier cases containing "language indicating that
substantive due process is violated whenever a
governmental entity deliberately or arbitrarily abuses
government power," the Independent Enterprises court
explained that

       all of the cases involved zoning decisions, building
       permits, or other governmental permission required for

                               12
       some intended use of land owned by the plaintiffs,
       matters which were recognized in DeBlasio as
       implicating the "fundamental" property interest in the
       ownership of land. Thus, in light of the court's explicit
       statement in DeBlasio that some "particular quality of
       property interest" must be infringed before substantive
       due process protection may be invoked, these cases
       cannot be understood as affording substantive due
       process protection from every arbitrary and irrational
       governmental act, but only for those that deprive the
       plaintiff of a fundamental property right "implicitly
       protected by the Constitution."

Independent Enters., 103 F.3d at 1179 n.12 (citations
omitted) (emphasis added).

To summarize: when a plaintiff challenges the validity of
a legislative act, substantive due process typically demands
that the act be rationally related to some legitimate
government purpose. In contrast, when a plaintiff
challenges a non-legislative state action (such as an
adverse employment decision), we must look, as a threshold
matter, to whether the property interest being deprived is
"fundamental" under the Constitution. If it is, then
substantive due process protects the plaintiff from arbitrary
or irrational deprivation, regardless of the adequacy of
procedures used. If the interest is not "fundamental,"
however, the governmental action is entirely outside the
ambit of substantive process and will be upheld so long as
the state satisfies the requirements of procedural due
process.

With this framework in mind, we turn to whether
Nicholas's tenured public employment is a fundamental
property interest entitled to substantive due process
protection. We hold that it is not, and thereby join the great
majority of courts of appeals that have addressed this
issue. See Singleton v. Cecil, 176 F.3d 419, 425-26 (8th Cir.
1999) (en banc) ("a public employee's interest in continued
employment with a governmental employer is not so
`fundamental' as to be protected by substantive due
process"); McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir.
1994) (en banc) ("employment rights are not `fundamental'
rights created by the Constitution"); Sutton v. Cleveland Bd.

                               13
of Educ., 958 F.2d 1339, 1350 (6th Cir. 1992) ("plaintiffs'
state-created right to tenured employment lacks
substantive due process protection"); Huang v. Board of
Governors of Univ. of North Carolina, 902 F.2d 1134, 1142
n.10 (4th Cir. 1990) (professor's interest in position in
university department "is essentially a state law contract
right, not a fundamental interest embodied in the
Constitution"); see also Local 342, Long Island Public Serv.
Employees v. Town Bd. of Huntington, 31 F.3d 1191, 1196
(2d Cir. 1994) ("We do not think, however, that simple,
state-law contractual rights, without more, are worthy of
substantive due process protection."); Kauth v. Hartford Ins.
Co. of Illinois, 852 F.2d 951, 958 (7th Cir. 1988) ("In cases
where the plaintiff complains that he has been
unreasonably deprived of a state-created property interest
. . . the plaintiff has not stated a substantive due process
claim."); Lum v. Jensen, 876 F.2d 1385, 1389 (9th Cir.
1989) (finding "no clearly established constitutional right to
substantive due process protection of continued public
employment" in Ninth Circuit as of 1984); but see Newman
v. Massachusetts, 884 F.2d 19, 25 (1st Cir. 1989) ("school
authorities who make an arbitrary and capricious decision
significantly affecting a tenured teacher's employment
status are liable for a substantive due process violation").

Nicholas's tenured public employment is a wholly state-
created contract right; it bears little resemblance to other
rights and property interests that have been deemed
fundamental under the Constitution. We agree with the
analysis of the District Court in Homar v. Gilbert that "it
cannot be reasonably maintained that public employment is
a property interest that is deeply rooted in the Nation's
history and traditions. Nor does public employment
approach the interests " `implicit in the concept of ordered
liberty" like personal choice in matters of marriage and
family.' " 63 F. Supp. 2d at 576 (citation omitted); see also
Collins, 503 U.S. at 128 ("state law, rather than the Federal
Constitution, governs the substance of the employment
relationship"). Accordingly, we view public employment as
more closely analogous to those state-created property
interests that this Court has previous deemed unworthy of
substantive due process2 than to the venerable common-
_________________________________________________________________

2. See Independent Enters., 103 F.3d at 1180 (low bidder's entitlement to
a state construction contract); Reich, 883 F.2d at 243-44 (contractor's

                               14
law rights of real property ownership implicated in
DeBlasio.

Our decision also comports with the Supreme Court's
admonition that the federal judiciary should not become a
general court of review for state employment decisions:

       The federal court is not the appropriate forum in which
       to review the multitude of personnel decisions that are
       made daily by public agencies. We must accept the
       harsh fact that numerous individual mistakes are
       inevitable in the day-to-day administration of our
       affairs. The United States Constitution cannot feasibly
       be construed to require federal judicial review for every
       such error. . . . The Due Process Clause of the
       Fourteenth Amendment is not a guarantee against
       incorrect or ill-advised personnel decisions.

Bishop v. Wood, 426 U.S. 341, 359-60 (1976). Therefore, we
will affirm the District Court's entry of judgment in favor of
the defendants on Nicholas's substantive due process claim.3

B.

At trial, Nicholas argued that defendants fired him in
retaliation for his statements to state authorities criticizing
Evans's research methods, in violation of the First
Amendment's guarantee of freedom of speech. On appeal,
_________________________________________________________________

right to payment for services rendered to the state); Ransom, 848 F.2d
at 411-12 (tenant's state law entitlement to sewer and water services);
and Mauriello, 781 F.2d at 50 (graduate student's interest in continued
studies at a state university).

3. Nicholas makes some effort to argue that his case should be treated
differently from a "garden-variety" public employment claim because it
implicates issues of academic freedom that touch upon the First
Amendment. We are unconvinced. The Supreme Court has recognized an
independent S 1983 action for retaliatory termination in violation of the
First Amendment, see Mount Healthy Board of Education v. Doyle, 429
U.S. 274 (1977), and "claims governed by explicit constitutional text may
not be grounded in substantive due process." Torres v. McLaughlin, 163
F.3d 169, 172 (3d Cir. 1998); see also Sabatini v. Reinstein, 76 F. Supp.
2d 597, 598-99 (E.D. Pa. 1999) (First Amendment claim does not
implicate substantive due process).

                               15
Nicholas contends that the District Court erred when it
entered final judgment against him on this First
Amendment claim. The jury made three findings relevant to
this question: first, that the University breached Nicholas's
tenure contract; second, that Nicholas's report on Evans's
muscle biopsy procedures was a "substantial or motivating
factor" in the University's termination decision; and third,
that the University's decision would have been the same
even if Nicholas had not filed the muscle biopsy report. The
District Court, applying the First Amendment analysis set
forth in Mount Healthy Board of Education v. Doyle, 429
U.S. 274 (1977), held that, based on these special verdicts,
Nicholas had failed to prevail on his First Amendment
claim. We will affirm.

Mount Healthy sets out a burden-shifting framework for
First Amendment retaliation claims under S 1983:

       In a First Amendment retaliation case, the plaintiff has
       the initial burden of showing that his constitutionally
       protected conduct was a "substantial" or "motivating
       factor" in the relevant decision. Once the plaintiff
       carries this burden, the burden shifts to the defendant
       to show "by a preponderance of the evidence that it
       would have reached the same decision even in the
       absence of the protected conduct."

Suppan v. Dadonna, 203 F.3d 228, 235 (3d Cir. 2000)
(quoting Mount Healthy, 429 U.S. at 287) (citations
omitted). If the employer shows that it would have taken
the same action even absent the protected conduct, this
will "defeat plaintiff 's claim." Green v. Philadelphia Housing
Auth., 105 F.3d 882, 885 (3d Cir. 1997). The Mount Healthy
Court explained the rationale for this affirmative defense:

       A rule of causation which focuses solely on whether
       protected conduct played a part, "substantial" or
       otherwise, in a decision not to rehire, could place an
       employee in a better position as a result of the exercise
       of constitutionally protected conduct than he would
       have occupied had he done nothing. . . . The
       constitutional principle at stake is sufficiently
       vindicated if such employee is placed in no worse a
       position than if he had not engaged in the conduct.

                               16
Mount Healthy, 429 U.S. at 285. Here, based on the jury's
special verdict, the District Court concluded that the
University had established this affirmative defense and
entered judgment in its favor on the First Amendment
claim.

Nicholas raises two arguments. First, he claims that
because the jury found that the University breached
Nicholas's tenure contract, the District Court should have
inferred that the termination was based solely on
illegitimate reasons. We disagree. The jury's finding may
reflect the factfinder's view that the University terminated
Nicholas for some reason unrelated to Nicholas's speech
activity (for example, for insubordination or failure to
comply with Evans's requests) but that this reason did not
constitute "adequate cause" under the terms of the tenure
contract. Or it might reflect a determination that Nicholas's
termination was justified, but that the University failed to
observe its own rules regarding notice or severance pay. In
either case, the reason for Nicholas's termination would not
be pretextual or illegitimate, but would simply constitute
breach of contract rather than a constitutional violation.

Nicholas counters, however, that the jury's special
verdicts were at least ambiguous, and that the District
Court erred in not submitting an instruction on pretext. In
support of this claim, he cites St. Mary's Honor Center v.
Hicks, 509 U.S. 502 (1993), which set forth the standard to
be used in "dual motives" cases under Title VII. This
argument misses the point. First Amendment retaliation
cases are not governed by Title VII's burden-shifting
analysis, but rather by Mount Healthy framework. In that
case, the Supreme Court made it crystal clear that an
employee may not recover in a dual-motives case if the
employer shows that it would have taken the same action
even absent the protected speech. As the Seventh Circuit
has noted, Title VII concepts have no applicability in the
First Amendment context:

       The district court's conclusion that when protected
       speech is a "motivating factor" what would have
       happened in the absence of that speech is "not
       germane to the question of liability" is . . . untenable.
       The district court may have confused the standards Mt.

                               17
       Healthy establishes for constitutional litigation with the
       standards in some other kinds of employment
       litigation. Whatever may be the case under labor and
       civil rights statutes, Mt. Healthy establishes the
       approach for litigation under the first amendment.

Goodan v. Neil, 17 F.3d 925, 928 (7th Cir. 1994) (citations
omitted). Because the jury found that the University had
established its affirmative defense under Mount Healthy, we
affirm the District Court's judgment for defendants on
Nicholas's First Amendment claims.

C.

Nicholas next challenges the jury's finding against him on
his pretermination procedural due process claim, claiming
that it was not supported by the evidence. However,
Nicholas never made a Rule 50 motion for judgment as a
matter of law following the jury verdict. "Where a party has
failed to move for j.n.o.v., we will not review the sufficiency
of the evidence and direct a verdict for them." Charles
Jaquin et Cie, Inc. v. Destileria Serralles, Inc., 921 F.2d 467,
475 (3d Cir. 1990). Accordingly, we hold that Nicholas has
waived this argument.

D.

Next, Nicholas contends that the District Court erred in
granting final judgment in favor of defendant Evans on the
breach of contract claim. We find no error here. Nicholas
never alleges that he had any contractual relationship with
Evans, and under Pennsylvania law, in the absence of such
a relationship, Evans cannot be liable for breach of
contract. See Bleday v. Oum Group, 645 A.2d 1358, 1363
(Pa. Super. 1994).

E.

Nicholas challenges the following portion of the District
Court's jury instruction in the liability phase:

       When a employee asserts that an employer's policy
       creates a contractual term between an employer and

                               18
       an employee, it is not sufficient to show merely that the
       employer had a policy. The employer must show that
       the employer offered the terms of the policy as binding
       terms of employment. Unless the employer
       communicates that policy as part of a definite offer of
       employment, the employer is free to change his policy
       such as events may require. Thus, an employer's
       voluntary adherence to guidelines or policies affecting
       the employment relationship does not give rise to
       enforceable contract rights on the employee. Some
       administrative provisions in the personnel policy
       manual did not rise to the level of agreement by which
       an employer must abide.

       In order to provide an enforceable contract in which an
       employer grants a specific benefit to an employee, the
       employee must prove that the employer communicated
       an intentional offer with definite terms, that the
       employer intended to be bound by the offer, and that
       the employer made the offer to induce the employee to
       accept or continue employment with the company.

(App. 1534.) Nicholas characterizes this instruction as a
"recitation of the employment at will doctrine," which he
claims was inappropriate in a tenure case.

Contrary to Nicholas's assertions, the challenged charge
does not address employment-at-will; rather, it sets out
Pennsylvania law on what an employee must do in order to
prove a disputed contractual term. As the University notes,
such a charge was necessary because the parties, although
agreeing that there was a tenure contract, disagreed on its
terms. Moreover, the charge correctly stated Pennsylvania
law:

       It is not sufficient to show [the employer] had a policy.
       It must be shown they offered it as binding terms of
       employment. A company may indeed have a policy
       upon which they intend to act, given certain
       circumstances or events, but unless they communicate
       that policy as part of a definite offer of employment
       they are free to change as events may require.

Morosetti v. Louisiana Land & Exploration Co. , 564 A.2d
151, 153 (Pa. 1989). Finally, even if the charge had been in

                               19
error, the error would clearly be harmless: the jury found in
Nicholas's favor on his breach of contract claim.

F.

Nicholas raises three objections to the District Court's
handling of damages. First, he argues that the court erred
in reducing the jury's award of nominal damages from
$1,000 to one dollar; second, he claims that he was entitled
to reinstatement to his old position at Noll Lab; and third,
he argues that he should have been permitted to argue for
damages arising for his alleged mental depression and for
punitive damages. We find no merit in any of these
contentions, and will therefore affirm.

1.

In Stevenson v. Economy Bank of Ambridge, 197 A.2d 721
(Pa. 1964), the Pennsylvania Supreme Court held that
because "the basic unit of American money is the dollar . . .
in the future, when nominal damages are awarded in our
courts, one dollar ($1) shall be the measure thereof." Id. at
728. The Third Circuit has also followed this rule. See
Mayberry v. Robinson, 427 F. Supp. 297, 314 (M.D. Pa.
1977) ("It is clear that the rule of law in the Third Circuit
is that nominal damages may not exceed $1.00.") (citing
United States ex rel. Tyrrell v. Speaker, 535 F.2d 823, 830
(3d Cir. 1976)). Accordingly, the District Court did not err
in reducing the jury's nominal damages award to one
dollar.

2.

Nor did the District Court err in refusing to order
reinstatement. The sole basis for the University's liability
was contractual, and under Pennsylvania law, "a court of
equity will not grant specific performance of a contract for
personal services." McMenamin v. Philadelphia Transp. Co.,
51 A.2d 702, 703 (Pa. 1947); see also Maritrans v. Pepper,
Hamilton & Scheetz, 572 A.2d 737, 744 (Pa. Super. 1990),
rev'd on other grounds, 602 A.2d 1277 (1992); Restatement
(Second) of Contracts S 367(1) (1981) ("A promise to render

                               20
personal service will not be specifically enforced."). As the
Restatement makes clear, this rule extends to employees
seeking reinstatement in cases "where personal supervision
is considered to be involved." Restatement (Second) of
Contracts, S 367, cmt. b. Accordingly, Nicholas was not
entitled to reinstatement as a remedy for the University's
breach of contract.

3.

Finally, Nicholas claims that the District Court erred in
precluding him from arguing for compensatory damages
arising from his alleged mental depression and for punitive
damages. At the outset of the damages phase, defendants
made a motion in limine to exclude all evidence of punitive
and compensatory damages except for lost compensation.
The District Court granted the motion, and we will affirm.

Under Pennsylvania law, "[i]n an employment case, the
measure of damages is the wages which were to be paid
less any amount actually earned or which might have been
earned through the exercise of reasonable diligence."
Delliponti v. DeAngelis, 681 A.2d 1261, 1265 (Pa. 1996). In
addition, Pennsylvania generally permits a plaintiff to
recover consequential damages for breach of contract. See
Cavaliere v. Duff 's Business Institute, 605 A.2d 397, 401
(Pa. Super. 1992).

The only consequential injury that Nicholas alleges,
however, is that he was "depressed as a result of the . . .
University's actions." Under Pennsylvania law, to recover for
mental anguish in a breach of contract case, "plaintiffs
must allege physical injury or physical impact." Kutner v.
Eastern Airlines, Inc., 514 F. Supp. 553, 559 (E.D. Pa.
1981); see also Carpel v. Saget Studios, Inc. , 326 F. Supp.
1331, 1334 (E.D. Pa. 1971) ("The mental suffering alleged
by plaintiffs does not constitute a proper element of
damages under Pennsylvania law."); Rittenhouse Regency
Affiliates v. Passen, 482 A.2d 1042, 1043 (Pa. Super. 1984)
("damages for emotional distress are not ordinarily allowed
in actions for breach of contract"); Gefter v. Rosenthal, 119
A.2d 250 (Pa. 1956). Nicholas has not done so. Because
Nicholas's alleged depression was not compensable under

                               21
Pennsylvania law, the District Court did not abuse its
discretion in excluding this evidence.

Moreover, under Pennsylvania law, "punitive damages are
not recoverable in an action solely based upon breach of
contract." Johnson v. Hyundai Motor America , 698 A.2d
631, 639 (Pa. Super. 1997). By the time this case reached
the damages phase, Nicholas's sole remaining claim was for
breach of contract; as a result, the District Court was
correct to exclude evidence relating to punitive damages.

G.

We finally turn to Nicholas's evidentiary and procedural
objections.

1.

At the beginning of the trial on liability (in late April), the
District Judge informed the parties that he hoped to be able
to put the case to the jury by May 1 because he would be
presiding over a capital murder trial in early May. (Supp.
App. G.) Accordingly, the court, with the consent of the
parties, decided to place time limits on the questioning of
witnesses. After the defense's direct examination of Evans
(which took approximately 132 minutes), the judge asked
Nicholas's counsel how long he would require for cross-
examination. Counsel responded that he would need 75
minutes; the District Court allowed him 90 minutes.
Nicholas now argues that this time limit was inappropriate.

If there was any error here, Nicholas has waived his right
to object to it. Nicholas's counsel never objected at trial to
the District Court's time limits, and indeed agreed to the
90-minute time frame for Evans's cross-examination.
Accordingly, we will not disturb the District Court's
judgment on this ground.

2.

Nicholas attempted to call Dr. William Becker as a
rebuttal witness to testify about certain events reflecting on
the credibility and truthfulness of Evans. Specifically,

                                22
Nicholas sought to have Becker testify that   Evans had
previously submitted inaccurate information   in a grant
report to the United States government. The   District Court
excluded this testimony pursuant to Federal   Rule of
Evidence 608(b). We review this evidentiary   ruling for abuse
of discretion, and will affirm.

Under Rule 608(b), "specific instances of the conduct of
a witness, other than conviction of crime as provided in
Rule 609, may not be proved by extrinsic evidence." Fed. R.
Evid. 608(b). "Extrinsic evidence is evidence offered through
other witnesses, rather than through cross-examination of
the witness himself or herself. This court has construed
Rule 608(b) as requiring the exclusion of extrinsic
impeachment evidence concerning a witness's prior
instances of conduct." United States v. McNeil, 887 F.2d
448, 453 (3d Cir. 1989). Although Nicholas had the right to
cross-examine Evans himself on relevant past incidents of
untruthfulness, the District Court properly prohibited him
from proving this collateral matter by extrinsic evidence.

3.

After the liability phase of the trial, defendants moved for
discovery sanctions against Nicholas (or, in the alternative,
for reopening of discovery) based on his failure to disclose
the details of his post-termination employment. Specifically,
Nicholas failed to reveal that Centre Emergency Medical
Associates (CEMA), where he worked as a part-time
emergency room doctor, had informed him that it planned
to eliminate his position. The District Court granted the
motion for sanctions and precluded Nicholas from
introducing any evidence of future lost earnings at the
damages phase. We review an order imposing discovery
sanctions for abuse of discretion, see Konstantopoulos v.
Westvaco Corp., 112 F.3d 710, 719 (3d Cir. 1997), and will
affirm.

Here, the District Court based its ruling on Federal Rule
of Civil Procedure 26(e), which provides that a party is
"under a duty to supplement or correct the disclosure or
response to include information thereafter required if . . .
the party learns that in some material respect the

                               23
information disclosed is incomplete or incorrect and if the
additional or corrective information has not otherwise been
made known to the other parties during the discovery
process or in writing." Furthermore, under Federal Rule of
Civil Procedure 37(c)(1), when "a party without substantial
justification fails to disclose information required by Rule
26(a) or 26(e)(1) [that party] shall not, unless such failure is
harmless, be permitted to use as evidence at trial .. . any
witness or information not so disclosed." In considering
whether the exclusion of evidence is an appropriate
sanction for failure to comply with discovery duties, we
must consider four factors: (1) the prejudice or surprise of
the party against whom the excluded evidence would have
been admitted; (2) the ability of the party to cure that
prejudice; (3) the extent to which allowing the evidence
would disrupt the orderly and efficient trial of the case or
other cases in the court; and (4) bad faith or wilfulness in
failing to comply with a court order or discovery obligation.
See Konstantopoulos, 112 F.3d at 719.

Here, the District Court found that Nicholas knew as
early as November 1997 that his position at CEMA would
be eliminated, and that this information made his previous
disclosure of continuing employment with CEMA materially
inaccurate. The court further found that Nicholas, without
justification, failed to disclose this new development to
defendants until May 21, 1998, and did not provide them
with the relevant documents until June 19, 1998--just one
month before the beginning of the damages phase trial.
(App. 595-96.) The court noted that this delay substantially
prejudiced the defendants:

       For example, if Nicholas seeks damages for future lost
       wages because he is no longer employed by Centre
       Emergency Medical Associates, the Defendants aver
       that they will have to develop additional rebuttal
       evidence as to the causes of Nicholas's termination by
       Centre Emergency Medical Associates, the availability
       of other positions to Nicholas, Nicholas's reasonable
       attempts to mitigate his future damages and prepare
       witness testimony including possible expert witness
       testimony.

                               24
(App. 596.) Moreover, the court found that permitting the
evidence would likely require a lengthy stay and disrupt the
orderly conclusion of the trial, which was already in
progress. Nicholas provides no coherent legal or factual
argument controverting these findings. Consequently, we
hold that the District Court did not abuse its discretion in
imposing discovery sanctions.

IV.

In sum, we find no merit in any of Nicholas's allegations
of error. Accordingly, the judgment of the District Court is
affirmed.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               25
