Ronald Stolle v. Kent State University, et al

Filing

OPINION filed : AFFIRMED, decision not for publication. Danny J. Boggs, Jeffrey S. Sutton and Jane Branstetter Stranch [AUTHORING], Circuit Judges.

Case: 14-3138

Document: 25-1

Filed: 05/01/2015

Page: 1

NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0319n.06
No. 14-3138

FILED
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RONALD STOLLE,
Plaintiff-Appellant,
v.
KENT STATE UNIVERSITY; KATHRYN
WILSON; LESTER LEFTON; JOHN
THORNTON; RICHARD KOLBE
Defendants-Appellees.

BEFORE:

)
)
)
)
)
)
)
)
)
)
)

May 01, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OHIO
OPINION

BOGGS, SUTTON, and STRANCH, Circuit Judges.

JANE B. STRANCH, Circuit Judge. Ronald Stolle, a non-tenure track faculty member
in the Department of Finance at Kent State University, sued the university and various
administrators alleging retaliation for exercising his First Amendment rights.

Summary

judgment was granted to Richard Kolbe and John Thornton, based on the court’s finding that
Stolle did not suffer an adverse action when he was summoned to meet with Kolbe and Thornton
to discuss his violation of university policy.

Kolbe and all of the other Defendants were

dismissed except Thornton, and the case against him proceeded to trial on the sole issue of
whether Stolle’s protected speech was the but-for cause of his termination. The jury found for
Thornton.

Case: 14-3138

Document: 25-1

Filed: 05/01/2015

Page: 2

No. 14-3138
Stolle v. Kent State University, et al.
Stolle raises two issues on appeal. First, he challenges the factual basis for the grant of
summary judgment to Kolbe and Thornton. We AFFIRM the grant of summary judgment to
Kolbe and Thornton.

Second, Stolle disputes the district court’s finding of material fact

regarding the fiscal and staffing constraints that shaped Thornton’s decision to eliminate Stolle’s
position, and argues that the district court abused its discretion in failing to grant him a 24-hour
continuance after it partially reversed this same finding of fact. The district court erred in its
finding of fact pursuant to Federal Rule of Civil Procedure 56(g), but, finding no prejudice to
Stolle, we hold that the district court did not abuse its discretion in denying the motion for a
continuance and so AFFIRM on that issue as well.
I.

BACKGROUND

A. Facts
Dr. Ronald Stolle (“Stolle”), a finance executive with 29 years of experience in the
private sector, was hired as an instructor in the Department of Finance at Kent State University
(“KSU”) beginning in the 2006-07 academic year. The events at issue in this lawsuit occurred in
2011-12, when Stolle alleges that Defendants retaliated against him for exercising his First
Amendment right to free speech.
On January 4, 2011, Stolle wrote a three-page letter to the Speaker of the Ohio House of
Representatives, as well as several other legislators, using letterhead from KSU’s Department of
Finance. The letter contained the subject line, “Legislative Proposal for Reform of Higher
Education,” and proposed eliminating tenure at Ohio’s public universities as a cost-saving
measure. Stolle considered the letters to be an expression of his personal “opinions,” although
beneath his signature he included his professional title, “Assistant Professor—Finance,” and
departmental address as well as his personal contact information. He acknowledged that his

2

Case: 14-3138

Document: 25-1

Filed: 05/01/2015

Page: 3

No. 14-3138
Stolle v. Kent State University, et al.
purpose in writing was to influence reform and cost-cutting legislation. Stolle had written to
state legislators at least once before in 2010, also advocating the elimination of tenure; however,
he did not use KSU letterhead on that occasion.
Upon receiving Stolle’s letter, the Speaker’s office contacted KSU’s lobbyist, who in turn
contacted KSU officials. On January 12, Iris Harvey (“Harvey”), vice president for University
relations, sent an email to KSU personnel1 providing a copy of Stolle’s letter. She explained that
Stolle’s “use of university and college letterhead makes this a formal presentation and
representation from a KSU employee to our legislature—in violation of our policy,” and
recommended that Stolle be informed of the policy “so that he is clear on what is and is not
appropriate.” R. 47-23, PageID 895. Harvey then cited policy 5-03(A), “University policy
regarding appearances before governmental officers,” which provides that
Subject to specific control by the board, the preparation and presentation of
requests for appropriations from the state of Ohio, and all official dealings on
behalf of the university with all federal, state and local government offices, boards
and agencies shall be under the direction of the president of the university.
Unauthorized appearances before federal, state and local government offices,
boards and agencies are hereby prohibited.
R. 47-16, PageID 884. In the past, Harvey had discussed the policy with other KSU faculty
whose work brought them into contact with public officials.
Yank Heisler (“Heisler”), Dean of the College of Business,2 forwarded this email to John
Thornton (“Thornton”), Chair of the Department of Finance, and Richard Kolbe (“Kolbe”),
Associate Dean for Faculty at the College of Business, asking them to meet with Stolle. Stolle
was told to meet with Thornton and Kolbe at Thornton’s office and did so on January 13
1

The email was sent to: Lester Lufton, the University President; Yank Heisler, the University Dean;
Charlene Reed, the chief of staff to the president; Willis Walker, general counsel in Human Resources; Sue Averill,
the associate provost; Tim Chandler, the senior associate provost; and was cc’ed to Crystal Cook, the University’s
senior lobbyist; Michael Caputo, a consultant; and Constance Hawk, a federal government relations officer.
2
The College of Business consisted of five departments, including Finance as well as Economics,
Management Information Systems, Accounting, and Marketing.

3

Case: 14-3138

Document: 25-1

Filed: 05/01/2015

Page: 4

No. 14-3138
Stolle v. Kent State University, et al.
(hereinafter, “the Meeting”). Thornton testified that the Meeting was held to inform Stolle that
“he had violated [KSU] policy,” specifically by using KSU letterhead to communicate with
members of the legislature. Kolbe also believed that the meeting concerned Stolle’s violation of
KSU policy and that the KSU might reprimand him at a later point.
During the Meeting, Stolle admitted that he had written the letter to the Speaker and
others. Stolle later confirmed that Thornton and Kolbe then informed him that it was a violation
of KSU policy to use its letterhead to correspond with government entities, insofar as doing so
gave the impression that his opinions represented those of KSU, and that he should stop doing
so. Thornton and Kolbe recalled providing Stolle with a copy of the policy, that he read it in
their presence, and that he said he understood it when asked. Stolle denied being given the
policy at that time but admitted that he read it subsequently. The meeting lasted approximately
five minutes.
Stolle concluded that “the thrust of what I heard was to cease and desist, that I did not
have the right to contact legislators as an employee.” R. 47-6, PageID 524. He recalled that he
asked Thornton and Kolbe about his freedom of speech and academic rights and refused to
comply with their request.

Thornton denied that he told Stolle to cease and desist

communicating with legislators, emphasizing that the sole issue was the use of KSU letterhead in
such communications. Stolle felt it was “impl[ied]” that he would lose his position at KSU if he
did not comply with these demands, although neither Thornton nor Kolbe specifically told him
that his job was in jeopardy. He noted that “[t]he atmosphere in a university is very political.
Implications are drawn all the time.” He described the overall tone of the meeting as a “very,
threatening, intimidating type of situation,” and recalled that both men were “very upset.” Even
so, Stolle recalled that he “chuckled at their cease and desist,” specifically the instruction that he

4

Case: 14-3138

Document: 25-1

Filed: 05/01/2015

Page: 5

No. 14-3138
Stolle v. Kent State University, et al.
“not speak to legislators about the tenure issue” as he “was not authorized” to do so. Stolle also
described the Meeting as “very short” and said that he “laughed the whole thing off.” R. 47-6,
PageID 530.
During the Meeting, Thornton also questioned Stolle about his attendance at a State
Committee on Financial Literacy because he thought that Stolle had not been appointed to
represent KSU on that Committee. Thornton instructed Stolle not to attend any further meetings
until his Committee status was clarified. At trial, Stolle testified that Thornton knew of his
attendance at the Committee meetings during the prior year and a half and had not objected
previously.
Soon after the Meeting, Heisler emailed Kolbe, asking him to inform Harvey that he and
Thornton had done the “verbal reprimand.” After the Meeting, Thornton told at least one other
faculty member that he had delivered a “warning” to Stolle.
On January 15 and 16, 2011, nearly identical op-eds by Stolle ran in the Columbus
Dispatch and Cleveland Plain Dealer, also advocating the abolition of tenure at state universities.
Although the editorials provoked a flurry of disapproving emails among Stolle’s colleagues,
Stolle’s teaching appointment was renewed for the 2011-12 academic year. By January 2012,
however, Thornton came to the conclusion that Stolle’s appointment would likely be terminated.
In describing his decision to eliminate Stolle’s position, Thornton cited the Department’s
deficit of approximately $250,000, which he felt pressure to address, although the prior year’s
deficit had been $400,000 and the department’s finances appeared to be improving. Thornton
admitted that neither the dean nor the provost required him to eliminate a position—he had been
told simply “that [the department was] losing money and [it] needed to do a better job.” R. 47-7,
PageID 570-71. Thornton also cited the termination of the Master of Science in Financial

5

Case: 14-3138

Document: 25-1

Filed: 05/01/2015

Page: 6

No. 14-3138
Stolle v. Kent State University, et al.
Engineering (MSFE) 3 program in January 2012 as a major factor in his decision not to renew
Stolle’s contract. The program’s termination meant that six classes would be eliminated, and
tenured and tenure-track faculty had teaching priority.

In determining his staffing needs,

Thornton also considered whether Dr. Shelly Zhao (“Zhao”) would remain on leave or return to
teaching, as well as the possibility that Dr. Mark Holder (“Holder”) would not teach the
following year. Holder was terminated in May 2012.
Dr. Kathryn Wilson (“Wilson”), interim dean of the College of Business, confirmed that
ending the MSFE would mean “less financial loss” for the department, although it also would
mean that faculty would need to be “redeployed to teach in other areas.” Even so, she said that
she would not have asked Thornton to terminate a position for budgetary reasons.

Kolbe

testified that the College of Business had no rules or policies in effect concerning elimination of
faculty positions to meet budgetary constraints, nor had any other department in the College
eliminated any faculty positions—tenure or non-tenure track—for budgetary reasons during the
2008-11 period.
Thornton considered eliminating either Stolle’s position or that of Dr. David Dumpe
because both were non-tenure track faculty whose contracts could be terminated at the end of a
given year. Thornton cited the following reasons for choosing to retain Dumpe: Dumpe had a
Ph.D. in finance, had taught at KSU longer than Stolle, had won several teaching awards, and
maintained a jobs listserv for undergraduate finance majors and for some of the Department’s
graduates. Thornton denied that Stolle’s letters to legislators or op-eds, which were sent prior to

3

The primary cause of the Department of Finance’s monetary woes was the MSFE program. Maureen
Kennedy, the director of financial and business operations, testified that in the original budget for fiscal year 2011
the Department of Finance had a projected deficit of $580,000, but as of the January 2012 termination of the
program, it was reduced to $234,077. The Department of Finance was profitable as of September 2012, due largely
to the termination of the MSFE program.

6

Case: 14-3138

Document: 25-1

Filed: 05/01/2015

Page: 7

No. 14-3138
Stolle v. Kent State University, et al.
Stolle’s reappointment for the 2011-12 academic year, had anything to do with his decision not
to renew him. He also denied that Stolle’s job performance was at issue.
Around February 17, Thornton sent similar memoranda to Wilson and an ad hoc faculty
committee—consisting of Drs. Jayaram Muthuswamy, Lois Beier, Zhao, and Holder—that he
formed to evaluate Stolle’s situation. In the memos, Thornton presented the case for eliminating
Stolle’s position in light of the decision to end the MSFE program and the resulting need for six
more classes that tenured and tenure-track faculty could teach. Thornton noted that two of the
nine classes Stolle taught each year could be cancelled due to their “disappointing” and
“negative” enrollment trend, that Stolle’s role in overseeing undergraduate investigations could
easily be covered, and that the impact of Stolle’s termination on the department would be
“minimal.” In his memo to Wilson, Thornton also noted that Stolle was “limited” because he
would not teach graduate students in the MBA program, and that adjuncts and doctoral students
could cover the classes Stolle had formerly taught or that might need to be covered due to the
potential absences of Zhao and Holder. The ad hoc committee was not presented with any other
options to address the department’s financial deficit or staffing needs.
The committee voted not to renew Stolle by a vote of three to one. Holder voted not to
eliminate Stolle’s position, stating in a later email: “My recommendation stands about his
teaching performance. Regarding the department need, based only on the RCM4 numbers I have
seen, keeping him is justified.” R. 47-7, PageID 590. After his contract was terminated, Stolle
asked Wilson to review the decision, which she affirmed, although she also continued with a
promotion process for Stolle, in the event he were ever rehired by KSU. Stolle has not found a
teaching position at another college in northeast Ohio.
4

“Responsibility center management” or “RCM” was the term Kent State used for its system of determining
departmental profitability.

7

Case: 14-3138

Document: 25-1

Filed: 05/01/2015

Page: 8

No. 14-3138
Stolle v. Kent State University, et al.
B. Case Proceedings:
In June 2012, Stolle brought suit, alleging that KSU, President Lester Lefton (“Lefton”),
Thornton, Kolbe and Wilson had retaliated against him for exercising his First Amendment right
to free speech. In response to their respective motions, the district court ultimately ordered KSU,
Lefton, Wilson, and Kolbe to be dismissed from the case, leaving only Thornton. In the course
of its July 18, 2013 order granting Kolbe’s motion for summary judgment, the court found that
the only event in which Kolbe had participated, the Meeting, did not constitute an adverse action
sufficient to support a claim of First Amendment retaliation.5 In the same order, the court denied
the remaining Defendants’ requests for summary judgment and made the following finding of
indisputable fact: “that Defendant Thornton was required to eliminate a non-tenure-track position
as a result of [] budgetary and programmatic constraints.” The court determined that the sole
issue to be presented to the jury would be whether Thornton was justified in his choice to
terminate Stolle as opposed to Dumpe, and whether Stolle’s protected conduct was the “but for”
cause of his termination.
In response to Thornton’s motion requesting clarification of the court’s findings of fact,
the court issued an order affirming its finding that Thornton was “required to eliminate a nontenure track position as a result of budgetary and programmatic constraints,” pursuant to Rule
At pretrial conference, Stolle’s counsel again argued that factual issues remained

56(g).

regarding whether or not Thornton was obligated to eliminate a position, but the court refused to
reconsider the issue.
Trial began on January 8, 2014 on the sole issue of whether Thornton terminated Stolle
instead of Dumpe as a means of retaliating against Stolle’s exercise of his First Amendment
5

Kolbe resigned from Kent State University and took a position with Northern Kentucky University in May

2011.

8

Case: 14-3138

Document: 25-1

Filed: 05/01/2015

Page: 9

No. 14-3138
Stolle v. Kent State University, et al.
rights. After selection of the jury, the court addressed pending motions in limine during which it
abruptly reversed its prior finding of fact, declaring that Thornton could “take whatever steps he
wished to address a financial shortfall in the department,” and that “it was not of necessity to not
renew the plaintiff.” R. 88, PageID 1553. The court stated that Thornton’s means of addressing
the deficit was “a matter for the jury to decide.” When Stolle’s counsel pointed out that the court
had already ruled that “Thornton had to eliminate” a non-tenure track position, the court replied,
“No, I don’t think I’ve ruled that.” R. 88, PageID 1554. In response to Defendants’ request for
clarification, the court observed: “I don’t know that he was required to terminate anyone. It’s a
decision that he made[,]” then noted, “it might be error for me to say, ‘Well, you can’t argue that
Dr. Thornton must or had to non-renew a candidate.’” R. 88, PageID 1775, 1559. Subsequently,
the court stated again: “I think it would be a clear error for me to instruct the jury that Dr.
Thornton had no other choice but to eliminate a position. Because he had a choice. He made a
choice. And that was within his discretion, rightly or wrongly.” R. 88, PageID 1567.
In light of the court’s new position, Defendants’ counsel asked for a continuance, which
the court denied.

The next morning, January 9, Stolle’s counsel requested a 24-hour

continuance, citing his inability to put on the presentation necessary to argue his case in light of
the court’s ruling the previous day. Specifically, he cited his need for exhibits relevant to
Thornton’s knowledge of other faculty’s teaching plans, KSU’s retrenchment policy, and
department finances. Defendants’ counsel objected, pointing out that when they had requested a
continuance the previous day, Stolle’s counsel had not done so. The court then denied the
motion, because the issues had been “clearly touched on” during discovery and depositions. R.
89, PageID 1580-82.

9

Case: 14-3138

Document: 25-1

Filed: 05/01/2015

Page: 10

No. 14-3138
Stolle v. Kent State University, et al.
After a four-day trial, a unanimous jury found Stolle had failed to prove that Thornton’s
decision to terminate his employment was a means of retaliating against Stolle’s exercise of his
right to free speech. Stolle appealed, alleging that the court erred 1) in finding that the Meeting
did not constitute an adverse action sufficient to support a claim of retaliation; 2) in initially
finding that Thornton was “required” to eliminate a non-tenure track faculty position; and 3) in
denying Stolle’s motion for a 24-hour continuance.
II.

ANALYSIS

A. First Amendment Retaliation Claim Against Kolbe and Thornton
Before trial, the district court granted summary judgment to Kolbe and Thornton on the
retaliation claim. We review de novo a district court’s order granting a motion for summary
judgment.

Montell v. Diversified Clinical Serv., Inc., 757 F.3d 497, 503 (6th Cir. 2014).

Summary judgment is appropriate where there is no genuine dispute regarding any material fact
and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
To prove a claim of First Amendment retaliation, a plaintiff must make a prima facie case
comprised of the following elements: “‘1) he engaged in constitutionally protected speech or
conduct; 2) an adverse action was taken against him that would deter a person of ordinary
firmness from continuing to engage in that conduct; 3) there is a causal connection between
elements one and two—that is, the adverse action was motivated at least in part by his protected
conduct.’” Benison v. Ross, 765 F.3d 649, 658 (6th Cir. 2014) (quoting Dye v. Office of the
Racing Comm’n, 702 F.3d 286, 294 (6th Cir. 2012)); Thaddeus-X v. Blatter, 175 F.3d 378, 394
(6th Cir. 1999) (en banc). If a plaintiff establishes a prima facie case, the burden then shifts to
the defendant to demonstrate “by a preponderance of the evidence that the employment decision
would have been the same absent the protected conduct.” Benison, 765 F.3d at 658 (quoting

10

Case: 14-3138

Document: 25-1

Filed: 05/01/2015

Page: 11

No. 14-3138
Stolle v. Kent State University, et al.
Dye, 702 F.3d at 294). Summary judgment is proper if, once the shift has occurred, “in light of
the evidence viewed in the light most favorable to the plaintiff, no reasonable juror could fail to
return a verdict for the defendant.” Id. (quoting Dye, 702 F.3d at 294-95)
Stolle argues that in the Meeting, Kolbe and Thornton retaliated against him because he
sent letters on KSU letterhead to Ohio legislators suggesting that tenure be abolished. We
examine this claim beginning with Stolle’s prima facie case.

Neither party questions that

Stolle’s letters were a constitutionally protected form of speech.

See Leary v. Daeschner,

228 F.3d 729, 737 (6th Cir. 2000). The parties do dispute, however, whether the actions of
Defendants constituted “adverse action” against Stolle for First Amendment purposes.
To constitute an adverse action, a plaintiff must show that the actions taken “‘would chill
or silence a person of ordinary firmness from future First Amendment activities.’” Benison,
765 F.3d at 659 (quoting Ctr. for Bio-Ethical Reform, Inc. v. City of Springboro, 477 F.3d 807,
822 (6th Cir. 2007)); Thaddeus-X, 175 F.3d at 397. A plaintiff need not show that he was
“actually deterred” from exercising his free speech rights. Ctr. for Bio-Ethical Reform, Inc.,
477 F.3d at 822. In the employment law context, “adverse action” refers to actions such as
“discharge, demotions, refusal to hire, nonrenewal of contracts, and failure to promote.”
Thaddeus-X, 175 F.3d at 396. Actions sufficient to constitute an adverse action also include
“harassment or publicizing facts damaging to a person’s reputation,” or a “credible threat to the
nature and existence of one’s ongoing employment.” Fritz v. Charter Twp., 592 F.3d 718, 724,
728 (6th Cir. 2010). Determining if an adverse action has occurred is an objective inquiry.
Thaddeus-X, 175 F.3d at 398. While “de minimus” threats or “inconsequential actions” are
unlikely to have a sufficiently chilling effect, it is not necessary to show “egregious retaliatory
acts” in order to proceed beyond summary judgment. Ctr. for Bio-Ethical Reform, 477 F.3d at

11

Case: 14-3138

Document: 25-1

Filed: 05/01/2015

Page: 12

No. 14-3138
Stolle v. Kent State University, et al.
822 (quoting Thaddeus-X, 175 F.3d at 398). However, as § 1983 is a tort statute, it is necessary
that an injury have occurred, for it “‘trivialize[s] the First Amendment to allow plaintiffs to bring
. . . claims for any adverse action[,] no matter how minor.’” Wurzelbacher v. Jones-Kelley,
675 F.3d 580, 584 (6th Cir. 2012) (quoting Bell v. Johnson, 308 F.3d 594, 603 (6th Cir. 2002).
Stolle challenges the grant of summary judgment to Kolbe, alleging that the Meeting
included four adverse actions: 1) he was verbally reprimanded for communicating with state
legislators; 2) he was ordered to cease all communications with state legislators; 3) he was led to
believe that if he continued such communications he would lose his job; and 4) he was told to
discontinue his attendance at meetings of the State Committee on Financial Literacy. Stolle
makes no specific allegations concerning Kolbe’s role when Thornton instructed him to
discontinue—temporarily, at least—his service with the State Committee on Financial Literacy.
Stolle does not ascribe any specific remarks to Kolbe, but claims that the tone of the meeting was
generally “intimidating.” Kolbe maintains that the meeting was intended to and did simply
inform Stolle that he had violated KSU policy.
Stolle admits that the purpose of his “very short” Meeting with Thornton and Kolbe was
to inform him that he had violated KSU’s policy regarding an employee’s unauthorized use of
university letterhead in corresponding with government entities. During the Meeting Stolle
admitted to writing a letter to the Speaker of the State House using university letterhead, and
admitted that he was told “it was a violation of policy for me [to] communicate my opinions with
third parties, including governmental officers, as if these opinions were those of KSU.” R. 47-6,
PageID 525. Although Stolle also alleges that he was told to “cease and desist” such contact, his
testimony makes clear that the primary topic of the meeting was his use of letterhead in his
communications with legislators and his violation of an established KSU policy.

12

The

Case: 14-3138

Document: 25-1

Filed: 05/01/2015

Page: 13

No. 14-3138
Stolle v. Kent State University, et al.
enforcement of this valid university policy, even if delivered and understood as a “reprimand,”
did not exceed the threshold requirement that an action be more than “de minimis” or
“inconsequential” in order to be considered adverse. Bell, 308 F.3d at 603.
Stolle’s vague claim that Thornton and Kolbe’s words and tone “impli[ed]” that his job
might be at risk if he continued to contact state officials is also not borne out by the record nor
does that record indicate that KSU officials took any other actions that would “‘deter a person of
ordinary firmness’” from his First Amendment activities. Benison, 765 F.3d at 659 (quoting Ctr.
for Bio-Ethical Reform, Inc., 477 F.3d at 822). Although Stolle described the Meeting as
“intimidating,” citing the “political” atmosphere of KSU, he also admitted that no one ever
directly told him that his job was in jeopardy. Moreover, he said that he found the Meeting to be
“a joke” and “laughed the whole thing off.” Several days after the Meeting, Stolle’s op-eds
advocating abolition of tenure ran in two local papers. In light of this record, we agree with the
district court that Stolle has not proven that he suffered an adverse action in the context of the
Meeting and therefore did not make his prima facie case of First Amendment retaliation
regarding that event. Accordingly, we affirm the district court’s grant of summary judgment to
Kolbe.
B. The District Court’s Finding of Indisputable Fact
Stolle argues that the district court erred in finding it to be an indisputable fact that
Thornton was forced to eliminate a non-tenure track position as a result of budgetary and
programmatic constraints. Defendants argue that the district court did not err but made a proper
finding of fact pursuant to Federal Rule of Civil Procedure 56(g) in the context of its denial of
Defendants’ motion for summary judgment.

“We review de novo denials of motions for

summary judgment on purely legal grounds [and] we review for abuse of discretion denials

13

Case: 14-3138

Document: 25-1

Filed: 05/01/2015

Page: 14

No. 14-3138
Stolle v. Kent State University, et al.
based on the finding of a genuine issue of material fact.” Marcilis v. Twp. of Redford, 693 F.3d
589, 598 (6th Cir. 2012) (internal citation and quotation marks omitted).
Federal Rule of Civil Procedure 56(g) provides that:
If the court does not grant all the relief requested by the motion [for summary
judgment], it may enter an order stating any material fact—including an item of
damages or other relief—that is not genuinely in dispute and treating the fact as
established in the case.
In this case, it is clear that the district court did err in making such a finding of fact. In its partial
grant of summary judgment to Defendants, the district court made the following statement:
Defendants claim that there exists substantial objective evidence that one nontenure track faculty member had to be eliminated due to budgetary and
programmatic restraints. The Court agrees. The record makes clear that there
would be a reduced load of classes in the finance department due to the
elimination of a program that had consistently been a strain on the finance
department’s budget. Moreover, the Court finds that there is no genuine issue of
material fact surrounding the fact that Defendant Thornton was required to
eliminate a non-tenure track position as a result of these budgetary and
programmatic constraints.
R. 56, Page ID 1149. The finding had the effect of considerably narrowing the scope of the
issues to be presented to the jury, restricting the inquiry to whether or not Stolle’s protected
expression was the “but for” cause of Thornton’s decision to terminate his contract instead of
that of Dumpe.
The court reaffirmed the finding in a subsequent order and again at a pretrial conference.
After the trial began in January 2014, however, the district court reversed itself, announcing that
Thornton could “take whatever steps he wishes to address a financial shortfall in the
department,” R. 88, PageID 1553, because that “is a matter for the jury to decide,” R. 88, PageID
1553. Shortly thereafter, the court stated: “I think it would be a clear error for me to instruct the
jury that Dr. Thornton had no other choice but to eliminate a position. Because he had a choice.
He made a choice. And that was within his discretion, rightly or wrongly.” R. 88, PageID 1567.
14

Case: 14-3138

Document: 25-1

Filed: 05/01/2015

Page: 15

No. 14-3138
Stolle v. Kent State University, et al.
The record speaks for itself. Precisely because Thornton’s motivations for terminating
Stolle’s contract were genuinely in dispute, it was improper for the court at the summary
judgment stage to attempt to resolve the issue of whether or not Thornton was obliged to
eliminate a non-tenure track faculty member. The district court abused its discretion in making
its initial finding of fact regarding Dr. Thornton’s decision to eliminate a teaching position. We
turn now to the effect of this error.
C. The District Court’s Refusal to Grant Stolle a 24-Hour Continuance
Stolle appeals as error the district court’s refusal to grant him a 24-hour continuance after
reversing the finding of fact it made pursuant to Rule 56(g). We review for abuse of discretion a
trial court’s decision to deny a party’s motion for continuance. Associated Gen. Contractors of
Ohio, Inc. v. Drabik, 214 F.3d 730, 738 (6th Cir. 2000). When determining whether there has
been abuse, the court looks to see if the party requesting the continuance “suffered any actual
prejudice as result of the denial, [and] whether additional time would have produced more
witnesses or added something to the [requesting party’s] case.” Id. (quoting United States v.
Martin, 740 F.2d 1352, 1360 (6th Cir. 1984).

Even so, “[t]rial courts are granted broad

discretion on matters of continuances.” Franklin v. Bradshaw, 695 F.3d 439, 452 (6th Cir. 2012)
(citing Morris v. Slappy, 461 U.S. 1, 11 (1983)).
The record reveals that in granting summary judgment to Kolbe, the district court made a
finding of fact pursuant to Rule 56(g) on July 18, affirmed that finding on December 10, 2013,
and then admitted its error at the end of the first day of trial, January 8, 2014. The unwarranted
finding of fact, followed by an abrupt reversal of course at the beginning of trial, is problematic.
Such procedure inhibits the ability of parties to prepare for trial and increases the likelihood that
prejudice to both parties will result. Huss v. King Co., Inc., 338 F.3d 647, 651 (6th Cir. 2003)

15

Case: 14-3138

Document: 25-1

Filed: 05/01/2015

Page: 16

No. 14-3138
Stolle v. Kent State University, et al.
(“‘If . . . the judge subsequently changes the initial ruling and broadens the scope of the trial, the
judge must inform the parties and give them an opportunity to present evidence relating to the
newly revived issue,” as “failure to do so might in some circumstances cause substantial
prejudice.”) (quoting Leddy v. Standard Drywall, Inc., 875 F.2d 383, 386 (2d Cir. 1989)).
After ascertaining the court’s new position on these issues of indisputable fact, counsel
for Defendants requested an indefinite continuance, which the court denied. Stolle’s counsel did
not join in that request or make his own request at that time. The next morning, however,
Stolle’s counsel requested a 24-hour continuance. The court denied the motion, stating: “It’s a
very, very simple case. And, in fact, there is no unfair surprise despite the parties either
misreading or misunderstanding of the Court’s ruling.” R. 89, PageID 1581. The court noted
that Thornton had been deposed and the reasons for terminating Stolle’s contract had been
discussed then. Stolle alleges that he was prejudiced by the denial of his request for a 24-hour
continuance, arguing that even a brief continuance would have enabled him to “add something”
to his case. Drabik, 214 F.3d at 738.
While the district court placed counsel in a difficult position, the record fails to show that
Stolle suffered the “actual prejudice” necessary to overcome the trial court’s “broad discretion”
in trial procedure. Franklin, 695 F.3d at 452-53. Stolle argues that given 24 more hours he
could have: 1) called Holder as a witness at trial to address departmental staffing needs;
2) analyzed course schedules from the years leading up to the non-renewal of Stolle’s contract in
order to counter Thornton’s claims regarding staffing needs; and 3) included in the trial
presentation emails related to the status of Zhao’s position in the department. We examine each
argument in order.

16

Case: 14-3138

Document: 25-1

Filed: 05/01/2015

Page: 17

No. 14-3138
Stolle v. Kent State University, et al.
During discovery and case preparation—and before summary judgment—Stolle never
deposed Holder, even though Holder was the only faculty member on Thornton’s ad hoc
committee who voted to retain Stolle. Nor was Holder included in Stolle’s witness list. More
importantly, Stolle has not presented any evidence here that Holder’s testimony was necessary to
the issues at trial or that Holder could prove any evidence that was not already available at the
trial through other sources.
Because he had not taken Holder’s deposition nor obtained his affidavit, Stolle’s
arguments are based solely upon the single email from Holder regarding Stolle’s termination.
The email stated: “My recommendation stands about his teaching performance. Regarding the
department need, based only on the RCM numbers I have seen, keeping him is justified.” R. 5012, PageID 1089.

Stolle presents no evidence here that Holder would have provided any

information about departmental staffing needs or the relation of such needs to the budgetary
issues that was not already available. In both discovery and at trial, Stolle questioned the other
members of the ad hoc faculty committee regarding the decision to terminate his employment in
light of the department’s staffing needs.

During discovery, Stolle obtained access to

departmental budgetary records and used this material to question witnesses at trial regarding
staffing needs. It is highly unlikely that Stolle would have been able to find and bring Holder to
testify in the 24-hour period requested, but even if that were possible, Stolle has failed to show
any actual prejudice as a result of his inability to call Holder as a witness.
Next, Stolle alleges that he was prejudiced by an inability to examine Department of
Finance course schedules in order to evaluate staffing needs. During the course of discovery
Stolle had access to Department of Finance course section counts from at least the three previous
years, which included information about courses, instructors, and enrollment numbers. Stolle

17

Case: 14-3138

Document: 25-1

Filed: 05/01/2015

Page: 18

No. 14-3138
Stolle v. Kent State University, et al.
referenced these materials in motions dating to April 16, 2013 and questioned Thornton about
the section counts at trial. Although Stolle argues that he could have used these schedules to
demonstrate that adjuncts were retained to teach several courses while Stolle was not renewed,
given that Stolle’s counsel had long possessed the relevant documents and used them to question
Thornton about these issues at trial, Stolle has failed to show that he suffered actual prejudice
due to the loss of an additional 24 hours to consider these materials. See United States v. Cohen,
515 F. App’x 405, 411 (6th Cir. 2013) (no prejudice due to lack of continuance where moving
party had copies of materials well in advance of hearing).
Stolle’s argument that he was prejudiced by his failure to produce emails concerning
Zhao’s future employment at KSU’s finance department also fails to suggest any actual injury.
During trial, Stolle’s counsel questioned Thornton about Zhao’s absence as well as the
possibility that she might not return to campus, and elicited testimony that if Zhao resigned, her
classes would need to be covered and the department would have saved the costs of her salary.
Counsel’s questioning also resulted in Thornton’s admission that he encouraged Zhao not to
resign. In light of such testimony, Stolle has provided no evidence that producing the actual
emails between Thornton and Zhao would have “add[ed] [any]thing” to his case. Drabik,
214 F.3d at 738.
The request at issue here was for a 24-hour continuance. Stolle has not demonstrated that
the provision of such time would have produced more witnesses or added something to the case;
he also fails to show that he suffered actual prejudice as a result of the trial court’s denial of his
request. Under the standards governing denial of a continuance, the circumstances of the case
and claims of prejudice alleged by Stolle are not sufficient to warrant a reversal of the district
court’s broad discretion to govern trial procedure.

18

Case: 14-3138

Document: 25-1

Filed: 05/01/2015

Page: 19

No. 14-3138
Stolle v. Kent State University, et al.
III. CONCLUSION
Stolle did not prove that he had suffered an adverse action sufficient to prove a prima
facie case of retaliation under the First Amendment, therefore we AFFIRM the district court’s
grant of summary judgment to Kolbe and Thornton. The district court did abuse its discretion in
making an unwarranted finding of fact pursuant to Rule 56(g), but Stolle failed to show that he
suffered actual prejudice as a result. Therefore, denial of the motion for a 24-hour continuance
did not rise to the level of an abuse of discretion and is AFFIRMED.

19