Argued October 10, 2014.
Appeal from the United States District Court for the Eastern District of Kentucky at Ashland. No. 0:11-cv-00127--Henry R. Wilhoit, Jr., District Judge.
Edward Dove, Lexington, Kentucky, for Appellant.
Katherine M. Coleman, Joshua M. Salsburey, STURGILL, TURNER & MOLONEY PLLC, Lexington, Kentucky, Jane V. Fitzpatrick, MOREHEAD STATE UNIVERSITY, Morehead, Kentucky, for Appellees.
Before: BOGGS, SUTTON, and STRANCH, Circuit Judges.
SUTTON, Circuit Judge.
Braden Frieder, a tenure-track professor, was denied tenure. We affirm the district court's conclusion that the denial was neither retaliation against speech (his " idiosyncratic teaching methods" ) nor discrimination against disability (his undisclosed diagnosis for bipolar disorder).
Braden Frieder joined Morehead State University in 2006 as an assistant professor of art history. Frieder lacked tenure but expected to receive it after a period of " probation" followed by a faculty vote. Probation in Morehead State's art department involves annual evaluations of each tenure-track professor in teaching, professional achievement, and service to the university. These evaluations go on for up to six years, after which the tenured department faculty, dean, provost, university tenure committee, and president each weigh in on whether the professor should receive tenure.
During his stint in probation, Frieder excelled in professional achievement and service but had difficulty teaching. The reviews of his introductory art history class were consistently abysmal: In spring 2008, for instance, students rated his course in the lowest 10 or 20 percent of classes for " Excellence of Course" and " Excellence of Teacher." See R. 32-14 at 2. Frieder's evaluators suggested improvements--asking Frieder to observe other teachers or visit the " Center for Teaching & Learning" --but the advice did not stick. See, e.g., R. 32-12 at 1. In 2010, after four years of reviewing Frieder's contract, the evaluators voted against tenure and the provost and president agreed.
Frieder sued the university and various administrators in state court for violating the First Amendment and a Kentucky statute that prohibits disability-based discrimination, Ky. Rev. Stat. § 344.040. In his First Amendment claim, Frieder argued that his evaluators retaliated against his " idiosyncratic teaching methods," which allegedly involved context-appropriate uses of the middle finger. In his disability claim, Frieder alleged that the tenure decision stemmed from his diagnosis of bipolar disorder, which he admits his evaluators knew nothing about. After the defendants removed the case to federal court, the district court granted the defendants summary judgment on both claims, holding that neither protected speech nor perceptions of a disability motivated the decision.
On appeal, the administrators raise a challenge to our jurisdiction that we must address first. After Frieder lost in district court, he filed a notice of appeal as required by Rule 3 of the Federal Rules of Appellate Procedure. The document gave " ...