Full opinion text
OPINION AND ORDER DOUGLAS W. HILLMAN, District Judge. An-Ti Chai, a former, non-tenured professor at Michigan Technological University (hereinafter “MTU”) brings suit against the University and three of its officers (in both their individual and official capacities) alleging discriminatory treatment and illegal termination of employment. One of the defendants, Dr. C. E. Mandeville, has cross-claimed against the University because of an alleged violation of due process arising out of Mandeville’s demotion as head of the University’s Department of Physics. As set out more specifically below, the University and the individual defendants move to dismiss the complaint and cross-claim. At issue are the questions who is a “person” for purposes of the civil right statutes, and whether the parties’ terminations violated due process or equal protection. For the reasons that follow, I grant in part and deny in part defendants’ motions. I. An-Ti Chai is a physicist hired by MTU on January 1,1968, as a non-tenured professor in its Department of Physics. On September 25, 1972, plaintiff was transferred from the Department of Physics to the Department of Mathematics without his consent and without having been first consulted. Thereafter, on November 6, 1972, plaintiff was informed that he would be denied tenure. Chai was discharged by the University on June 16, 1973, and received his final paycheck on June 30, 1973. On September 12, 1973, plaintiff filed a claim with the Michigan Civil Rights Commission and the Equal Employment Opportunity Commission (hereinafter “EEOC”) alleging that the denial of tenure and subsequent termination resulted from discrimination based upon race, national origin, and ancestry in violation of Title' VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e, et seq). The Michigan Civil Rights Commission investigated the claim throughout the remainder of 1973 and all of 1974. However, no formal disposition was adopted by either the Michigan Agency or the EEOC, although on June 25, 1976, the EEOC did finally send plaintiff a “right to sue” letter. Plaintiff commenced this action July 30, 1976. Jurisdiction for the action arises under the Civil Rights Act of 1870 and 1871 (42 U.S.C. §§ 1981, 1983) and Title VII. Defendants named in plaintiff’s action are MTU, Dr. Raymond L. Smith, in his individual and official capacity as President of Michigan Technological University, Dr. C. E. Mandeville, in his individual and official capacity as Head of the Department of Physics, and Dr. Zane C. Motteler, in his individual and official capacity as Head of the Department of Mathematics. Plaintiff requests a declaratory ruling pursuant to the Declaratory Judgment Act (28 U.S.C. §§ 2201 and 2202) that defendants discriminated against plaintiff by (1) transferring plaintiff from the Physics Department to the Mathematics Department even though other, non-tenured assistant professors with less seniority were available and Who were better qualified to teach mathematics; (2) denying plaintiff tenure without cause; (3) urging plaintiff to resign his position as Assistant Professor; and (4) making derogatory remarks about plaintiff’s ancestry. Plaintiff seeks preliminary and permanent injunctive relief resulting in restoration of plaintiff’s teaching position (including tenure), back pay, compensation for lost benefits, punitive damages and costs. A jury trial is demanded. Defendants move to dismiss certain counts of the complaint. Specifically, defendants insist that the claims arising under Sections 1981 and 1983 are barred by the statute of limitations. Defendants further contend that plaintiff’s demand for punitive damages and a jury trial should be denied because punitive damages and trial by jury are not permitted in lawsuits arising under Title VII. For the reasons that follow, I grant defendants’ motion. Statute of Limitations A. Which State Statute Applies? Since there is no specifically stated or otherwise relevant federal statute of limitations for actions arising under Sections 1981 and 1983, federal courts look to the most analogous state law in determining limitations periods. See, Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1974); Marlowe v. Fisher Body, 489 F.2d 1057, 1063 (6th Cir. 1973). Plaintiff contends that because civil rights deprivations result in a wide variety of injuries to plaintiffs (e. g., harm to reputation, financial security, professional standing, etc.), the catch-all provision in Michigan’s limitations statute, applying to “all other personal actions” (M.C. L.A. § 600.5813), as opposed to the more specific state limitations law set out in M.C. L.A. § 600.5805, ought to apply. Plaintiff, therefore, asserts that because suit was brought within six years of the alleged discrimination, as permitted under Section 5813 of the Michigan law, suit is timely. However, in EEOC v. Detroit Edison, 515 F.2d 301 (6th Cir. 1975), remanded on other grounds, 431 U.S. 951, 97 S.Ct. 2668, 53 L.Ed.2d 267 (1977), the Sixth Circuit held that M.C.L.A. § 600.5805(7), and not the catch-all provision embodied in Section 600.5813, applies to injuries arising under Section 1981. Under M.C.L.A. § 600.-5805(7), a three-year rather than a six-year limitations period applies. This same three-year period is also employed in actions arising under Section 1983. See, Geromette v. General Motors Corp., 609 F.2d 1200 (6th Cir. 1979); Madison v. Wood, 410 F.2d 564 (6th Cir. 1969). It is clear, therefore, that unless plaintiff has initiated suit within three years of accrual of his claim, the Section 1981 and 1983 aspects of his suit are barred. B. Tolling. Plaintiff contends, however, that even if a three-year statute of limitations applies to suits arising under Section 1981 and 1983, running of the statute of limitations is deferred because of plaintiff’s having filed a claim with the EEOC. Since the present suit was brought within 90 days of his having received a “right to sue” letter, plaintiff argues, his suit is timely. To the contrary, defendant contends that the filing of a complaint with the EEOC, prerequisite for maintaining a suit in Federal Courts under Title VII, does not delay the running of the statute of limitations as it applies to plaintiff’s Section 1981 and 1983 charges. Because plaintiff did not timely file suit following accrual of his claims, defendant argues, those charges must now be dismissed. The United States Supreme Court resolved this issue in the 1975 case, Johnson v. Railway Express Agency, supra. There, the Court stated at 460—461 of 421 U.S. at 1720 of 95 S.Ct.: Petitioner, and the United States as amicus curiae, concede as they must, the independence of the avenues of relief respectively available under Title VII and the older § 1981. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 416-417, n. 20 [88 S.Ct. 2186, 20 L.Ed.2d 1189] (1968). Further, it has been noted that the filing of a Title VII charge and resort to Title VIPs administrative machinery are not prerequisites for the institution of a § 1981 action. Long v. Ford Motor Co., 496 F.2d 500, 503-504 (CA6 1974); Caldwell v. National Brewing Co., 443 F.2d 1044, 1046 (CA5 1971), cert. denied, 405 U.S. 916 [92 S.Ct. 931, 30 L.Ed.2d 785] (1972); Young v. International Tel. & Tel. Co., 438 F.2d 757, 761-763 (CA3 1971). Cf. Waters v. Wisconsin Steel Works, 427 F.2d 476, 487 (CA7), cert. denied sub nom. International Harvester Co. v. Waters, 400 U.S. 911 [91 S.Ct. 437, 27 L.Ed.2d 151] (1970). We are satisfied, also, that Congress did not expect that a § 1981 court action usually would be resorted to only upon completion of Title VII procedures and the Commission’s efforts to obtain voluntary compliance. Conciliation and persuasion through the administrative process, to be sure, often constitute a desirable approach to settlement of disputes based on sensitive and emotional charges of invidious employment discrimination. We recognize, too, that the filing of a lawsuit might tend to deter efforts at conciliation, that lack of success in the legal action could weaken the Commission’s efforts to induce voluntary compliance, and that a suit is privately oriented and narrow, rather than broad, in application, as successful conciliation tends to be. But these are the natural effects of the choice Congress has made available to the claimant by its conferring upon him independent administrative and judicial remedies. The choice is a valuable one. Under some circumstances, the administrative route may be highly preferred over the litigatory; under others, the reverse may be true. We are disinclined, in the face of congressional emphasis upon the existence and independence of the two remedies, to infer any positive preference for one over the other, without a more definite expression in the legislation Congress has enacted, as, for example, a proscription of a § 1981 action while an EEOC claim is pending. We generally conclude, therefore, that the remedies available under Title VII and under § 1981, although related, and although directed to most of the same ends, are separate, distinct, and independent. With this base established, we turn to the limitation issue. Moreover, although Johnson involved only a Section 1981 claim, I see no reason to treat Section 1983 claims differently in the context of this case. Cf., Chambers v. Omaha Public School DisT., 536 F.2d 222, 228 (8th Cir. 1976). I therefore conclude that plaintiff has three years following accrual of his claim within which to bring his action, and the running of the statute of limitations is not tolled by plaintiffs filing with the EEOC. C. Accrual of Claim. Plaintiff lastly contends that even if his Section 1981 and 1983 claims are not tolled because of having pursued an administrative remedy with the EEOC, and even if a three-year limitations period applies, plaintiffs claims are nevertheless timely because his claims did not “accrue” until the Fall of 1973, the period through which plaintiff was paid under his employment contract. Defendants disagree. Instead, defendants contend that plaintiffs claims accrued upon his discharge from the University on June 16, 1973, or at the latest, upon plaintiff’s receipt of $3,037.80 on June 30, 1973, representing all of the money owed to the plaintiff by defendant University. Because suit was brought in July, 1976, defendants argue, the suit was initiated beyond the statutory period. Plaintiff’s claims against defendants accrue, at the latest, upon breach of the employment contract, and breach occurs upon discharge. 56 C.J.S. Master and Servant § 49, p. 443 (1948). This is the rule set out by the Michigan Supreme Court in Reinardy v. Bruzzese, 368 Mich. 688, 118 N.W.2d 952 (1962). I, therefore, conclude that plaintiff’s Section 1981 and 1983 claims accrued by June 30, 1973, when plaintiff received his final paycheck from the University. Because plaintiff failed to bring suit within the three subsequent years, I conclude these claims are now untimely. I accordingly dismiss plaintiff’s complaint, except as it alleges a claim under Title VII of the Civil Rights Act of 1964. Trial by Jury; Compensatory and Punitive Relief Under Title VII In his complaint, plaintiff further requests compensatory and punitive relief as well as a jury trial. These demands are not cognizable under Title VII. See, Harrington v. Vandalia-Butler Board of Education, 585 F.2d 192 (6th Cir. 1978), cert. denied 441 U.S. 932, 99 S.Ct. 2053, 60 L.Ed.2d 660 (1979); EEOC v. Detroit Edison, supra. This is true because relief under Title VII is defined to be equitable, while plaintiff’s punitive damages and jury demands are contrarily defined to be “legal”. Consequently, plaintiff’s requests for a non-equitable monetary award and for trial by jury are denied as not within the scope of Title VII’s relief. II. Following the initiation of this lawsuit by plaintiff Chai, Dr. C. E. Mandeville, one of the defendants named in Chai’s complaint, brought a cross-claim against MTU, Dr. Raymond L. Smith, in his individual and official capacity as President of Michigan Technological University, D. W. Stebbins, in his individual and official capacity as Vice-President of Academic Affairs at MTU, and William J. Powers, in his individual and official capacity as Dean of the College of Sciences and Arts. Mandeville’s cross-claim arises out of his relationship with the defendants while cross-plaintiff was head of the Department of Physics. Cross-plaintiff was a professor of physics at Kansas State University when he received a letter on March 6,1967, from D. W. Stebbins of MTU, inviting him to apply for the position of Professor of Physics and Head of the Department of Physics. Cross-plaintiff alleges that he was informed by the defendants that the Physics Department was unspectacular and a head was being sought who would put pressure on the department staff to excel and to produce. Cross-plaintiff accepted this position after turning down a department chairmanship at the University of North Dakota, and began his employment on August 14, 1967. He received tenure as a professor on July 1, 1968. In the ensuing years, cross-plaintiff was increasingly pressured to resign as department head. Oriental members of the department charged cross-plaintiff with insensitivity, and, according to cross-plaintiff, threatened the school administration with lawsuits due to cross-plaintiff’s alleged discriminatory practices. Particularly vocal was Dr. S. M. Lee, and it appears that the feud between Lee and Mandeville proved instrumental to cross-plaintiff’s later demotion. In 1973, cross-plaintiff sought to block Lee’s tenure and promotion because cross-plaintiff insisted that Lee was unqualified. Cross-plaintiff asserts that defendants nevertheless granted tenure, and awarded Lee greater salary increases and other expenditures, solely because of Lee’s race. Cross-plaintiff further alleges that between 1973 and 1975, defendants solicited complaints by members of the Physics Department concerning cross-plaintiff’s performance and that this solicitation was designed to create a basis upon which cross-plaintiff could be demoted. Cross-plaintiff asserts that defendants’ purpose in seeking cross-plaintiff’s demotion arose out of their fear that MTU would be sued by the Oriental members of the Physics Department because of race discrimination. In September 1973, Dr. Raymond L. Smith, the University’s President, asked cross-plaintiff to take a leave of absence so that the department might “cool down”. Smith informed cross-plaintiff that he would be removed as department head if matters did not improve following cross-plaintiff’s return in March of 1974. In fact, department morale remained poor, and the school administration consequently arranged for a department evaluation by a team of three physicists. Cross-plaintiff alleges that he was not permitted to meet with this advisory group, and that members of the team were friends of the defendants. The team ultimately unanimously concluded that cross-plaintiff should resign. Cross-plaintiff was notified of his impending demotion on December 11, 1974. He refused to resign, and so on January 10, 1975, cross-plaintiff was involuntarily removed as head of the Department of Physics at MTU. Thereafter, cross-plaintiff was made Director of Special Projects for the University. He contends that while Director, he was told by defendants not to ask the United States Army Tank Automotive Research and Development Command for research funds because the organization was allegedly without any. Cross-plaintiff insists, however, that the defendants urged Dr. Lee to make a funding proposal to that group and that the defendants supplied Lee with travel funds and personal contacts for pursuing his proposal. Cross-plaintiff also asserts that Lee was made Director of the Keweenau Research Center over cross-plaintiff, that cross-plaintiff’s rejection for this position was racially motivated, and that Dr. Lee’s promotion made cross-plaintiff’s position as Director of Special Projects meaningless. Cross-plaintiff contends that his position as head of the Department of Physics was a permanent position and that it was wrongful for defendants to demote him without a hearing. Because cross-plaintiff had a property interest in the department headship, he asserts, failure to grant a hearing amounted to a violation of due process. Defendants contend that cross-plaintiff is mistaken in believing that the department headship was a permanent position. In an accompanying affidavit, Dr. Smith refers to the faculty handbook provisions concerning tenure of administrative officers, in effect since 1957, which reads: “C. Administrative Officers 1. Appointments to administrative posts do not carry tenure. Administrative officers continue in their posts as determined by the President and the Board of Control. 2. Administrative officers holding an academic rank are subject to the provisions applicable to such rank, only insofar as their nonadministrative faculty status is concerned.” Moreover, D. W. Stebbins, Vice-President of Academic Affairs of the University, further averred that nation-wide, department heads seldom, if ever, receive tenure, and that to his knowledge, no department head at MTU has ever received tenure. In fact, Stebbins argued that he told cross-plaintiff in 1967 that the Department of Physics’ job opening was for a department headship as opposed to a department chairmanship, because department heads could be replaced at any time by the University administration, whereas chairmen could be replaced only upon vote of the department staff. In reply, cross-plaintiff asserts that Stebbins expressly informed him that the department’s headship was a permanent position, and insists that he was not informed otherwise until 1974. Moreover, cross-plaintiff asserts he was never shown a copy of the faculty handbook before moving to MTU. Further, that the handbook fails to list department headships as administrative positions, and that department heads are not listed as persons ineligible for tenure. Finally, cross-plaintiff alleges that in 1967, Stebbins told him that the position opening was for department head because in this way, some permanence could be achieved. This permanence was allegedly necessary in order to upgrade and discipline the Physics Department personnel, and because department chairmen could be removed by vote of the department staff. Cross-plaintiff does not allege that the defendants publicized the reasons for his demotion. He does argue, however, that the local media publicized statements made by Dr. Lee, as well as by others in the department, asserting that Mandeville was replaced because he was insensitive to the needs of minorities. Defendants allege, however, that cross-plaintiff was demoted solely because of low morale in the department and because cross-plaintiff’s administrative skills were lacking. The parties dispute whether or not cross-plaintiff was ever informed of the reasons for his demotion. Cross-plaintiff, in fact, insists that his administrative skills were above reproach, and that the department’s morale was in fact not a problem. In support, cross-plaintiff notes that the administration never received a written complaint concerning cross-plaintiff’s leadership except by the Oriental members of the department. Cross-plaintiff further alleges his demotion resulted solely from the fact that the defendants refused to back him, as promised, when he attempted to improve the deficiencies he perceived in his colleagues. Cross-plaintiff now claims that as a result of his demotion and subsequent publication of the reasons for his demotion, his job prospects are severely limited. In support, cross-plaintiff advises that he is a 57-year-old white male, and that because most universities enforce affirmative action programs, he is now unmarketable. He makes no allegation, however, that he has actually sought another administrative position with a different university. Cross-plaintiff filed his cross-claim on September 16, 1976. Jurisdiction was founded upon 28 U.S.C. § 1343 for claims arising out of 42 U.S.C. §§ 1981, 1983 and 1985(3), and upon 28 U.S.C. § 1331 for claims arising out of violations of the Fourteenth Amendment. More than $10,000 is at stake. In Count I of cross-plaintiff’s cross-claim, he alleges a violation of due process due to his not having received a hearing when demoted. Cross-plaintiff also alleges a violation of his First Amendment rights in that, for example, he was allegedly dismissed because he was honest with his superiors concerning his co-worker’s deficiencies, and in that he was prohibited from informing non-Oriental employees in the department that other departments supported cross-plaintiff’s leadership. Count II of the cross-claim alleges reverse discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment, arising under 42 U.S.C. §§ 1981 and 1983. Cross-plaintiff also alleges that the individual defendants conspired to deprive cross-plaintiff of his constitutional rights in violation of 42 U.S.C. § 1985(3). Count III is a pendent claim alleging breach of contract. Cross-plaintiff argues that his employment contract with the University implies that the department headship was to be a permanent position and that cross-plaintiff would not be removed without cause or a hearing. Cross-plaintiff requested temporary and permanent injunctive relief, reinstatement and actual, compensatory and punitive damages amounting to over $2,000,-000.00. Cross-plaintiff has also demanded a jury trial. Defendants have since moved to dismiss cross-plaintiff's cross-claim on the grounds that the court lacks personal and subject matter jurisdiction. Defendants contend that MTU is not a proper party and that the individually-named defendants in their official capacities are not “persons” for purposes of 42 U.S.C. §§ 1983 and 1985(3). Defendants, in their individual capacities, further maintain that cross-plaintiff fails to sufficiently state a claim against them and that the court lacks subject matter jurisdiction over the suit because there has been no violation of cross-plaintiff’s Due Process or First Amendment rights. Finally, defendants argue that the court should deny cross-plaintiff’s demands for compensatory and punitive damages and for a jury trial. For the reasons that follow, 4 grant in part and deny in part defendants’ motion. Deprivation of Property Interests The defendants initially contend that cross-plaintiff has failed to state a claim in Count I amounting to a violation of the Fourteenth Amendment. Specifically, defendants argue that the cross-claim fails to allege a violation of a liberty or property interest to which due process would apply, and that cross-plaintiff’s freedom of speech has not been infringed because statements made to supervisors are not protected by the First Amendment. The Supreme Court has held, in Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), that non-tenured faculty members dismissed from their positions may be entitled to due process protection so long as they can demonstrate an infringement of some property or liberty interest protected by the Fourteenth Amendment. In Roth, an assistant professor who had been hired to teach in a state university for one academic year was advised that he would not be rehired for the coming year. The university rules did not require that any reason be given for the decision not to rehire, and no reason was in fact given for the dismissal. The faculty members at that university had no tenure rights to continued employment, and state law left employment decisions regarding nontenured teachers to the discretion of university officials. After learning of his termination, the teacher filed suit alleging that the university’s refusal to advise him of the reasons for his nonretention, coupled with its failure to provide a hearing, violated his right to procedural due process. The Supreme Court rejected this claim, stating: “. . . The only question presented to us at this stage in the case is whether the respondent had a constitutional right to a statement of reasons and a hearing on the University’s decision not to rehire him for another year. We hold that he did not. The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property. When protected interests are implicated, the right to some kind of prior hearing is paramount. But the range of interests protected by procedural due process is not infinite.” 408 U.S. 564, 569-570, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548. The Supreme Court first held in Roth that it had to examine the nature of the plaintiff’s interest at stake to determine if that interest fell within the Fourteenth Amendment’s protection of liberty and property. The Court then analyzed the types of “liberty” and “property” interests that were cognizable under the Due Process Clause. It stated as follows regarding liberty interests, at 573-575, 92 S.Ct. at 2707: “The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For ‘[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.’ [citations omitted.] In such a case, due process would accord an opportunity to refute the charge before University officials. In the present case, however, there is no suggestion whatever that the respondent’s ‘good name, reputation, honor, or integrity’ is at stake. Similarly, there is no suggestion that the State, in declining to re-employ the respondent, imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities. The State, for example, did not invoke any regulations to bar the respondent from all other public employment in state universities. Had it done so, this, again, would be a different case . Hence, on the record before us, all that clearly appears is that the respondent was not rehired for one year at one university. It stretches the concept too far to suggest that a person is deprived of ‘liberty’ when he simply is not rehired in one job but remains as free as before to seek another . . .” The Supreme Court in Roth provided the following analysis of property interests under the Due Process Clause: “Certain attributes of ‘property’ interests protected by procedural due process emerge from these decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. * * * * * * Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. . respondent’s ‘property’ interest in employment at Wisconsin State University-Oshkosh was created and defined by the terms of his appointment. Those terms ... did not provide for contract renewal absent ‘sufficient cause’. Indeed, they made no provision for renewal whatsoever. Thus, the terms of the respondent’s appointment secured absolutely no interest in re-employment for the new year. They supported absolutely no possible claim of entitlement to re-employment. Nor, significantly, was there any state statute or University rule or policy that secured his interest in re-employment or created any legitimate claim to it. In these circumstances, the respondent surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment.” 408 U.S. 564, 576-578, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548. The Supreme Court reached a different result in Perry v. Sindermann, supra, based upon a different set of facts in that instance. In Sindermann, the faculty member had taught in various schools throughout a state college system for ten years. He was employed by the last school for four successive years under a series of one-year contracts. Following a public dispute with the school’s Board of Regents, the teacher was notified that he would not receive a new contract for the next academic year. The Regents issued a press release setting forth allegations of insubordination, but no official statement of reasons for non-renewal was given and no hearing was provided. The plaintiff in Sindermann had no tenure and no contractual right to re-employment. Nonetheless, the Supreme Court held that he had stated a sufficient property interest by alleging that the college had a de facto tenure program and that he had “tenure” under that program. The Court explained at 599-603 of 408 U.S., at 2698 of 92 S.Ct.: “. . . As in Roth, the mere showing that he was not rehired in one particular job, without more, did not amount to a showing of a loss of liberty. Nor did it amount to a showing of a loss of property- But the respondent’s allegations— which we must construe most favorably to the respondent at this stage of the litigation — do raise a genuine issue as to his interest in continued employment at Odessa Junior College. He alleged that this interest, though not secured by a formal contractual tenure provision, was secured by a no less binding understanding fostered by the college administration. In particular, the respondent alleged that the college had a de facto tenure program, and that he had tenure under that program. . . . ” In this case, the respondent has alleged the existence of rules and understandings, promulgated and fostered by state officials, that may justify his legitimate claim of entitlement to continued employment absent ‘sufficient cause.’ We disagree with the Court of Appeals insofar as it held that a mere subjective ‘expectancy’ is protected by procedural due process, but we agree that the respondent must be given an opportunity to prove the legitimacy of his claim of such entitlement in light of ‘the policies and practices of the institution.’ Sindermann v. Perry, 5 Cir., 430 F.2d 939, at 943. Proof of such a property interest would not, of course, entitle him to reinstatement. But such proof would obligate college officials to grant a hearing at his request, where he could be informed of the grounds of his nonretention and challenge their sufficiency.” Defendants first assert that cross-plaintiff has not alleged the existence of a property interest protectible by. the Fourteenth Amendment. Specifically, defendants argue that headship of the Department of Physics is a non-tenure position and that cross-plaintiff had no legitimate reason to expect permanence in that position. Therefore, defendants request this court to dismiss plaintiff’s cross-claim as it relates to a due process violation based upon a deprivation of cross-plaintiff’s property interests. In assessing defendants’ motion, this court must look to see if state law and the existing tenure regulations at MTU create a protectible property interest in employment as head of the Physics Department. See, Board of Regents v. Roth, supra; Wells v. Murray State University, 545 F.2d 15 (6th Cir. 1976). While an employee may have a subjective belief that his employment is permanent, no “property interest” exists unless the state creates that interest and objectively fosters the employee’s belief. Coe v. Bogart, 519 F.2d 10 (6th Cir. 1975). A. Authority of University Officers to Promise Tenure. The authority to grant tenure and make personnel decisions at MTU is vested in the Board of Control, and in no other body. See, M.C.L.A. § 390.352, which reads: Sec. 2. The government of the Michigan technological university, the conduct of its affairs, and the control of its property shall be vested in a board of 8 members, who shall be known as the “board of control of the Michigan technological university”, and who shall be appointed by the governor, by and with the advice and consent of the senate. The president of the institution shall be ex officio a member of the board without the right to vote. The members of the board shall serve without compensation, but shall receive their actual and necessary expenses incurred in the performance of the duties of their office. A majority of the members of the board of control may enact, amend and repeal rules, bylaws and regulations for the conduct of its business and for the government of the institution; fix tuition and other fees and charges; appoint or remove personnel as the interests of the institution and the generally accepted principles of academic tenure permit or require; determine compensation to be paid for services and property; confer degrees and grant diplomas usually conferred or granted by other similar institutions; receive, hold and manage any gift, grant, bequest or devise of funds or property, real or personal, absolutely or in trust, which will promote any of the purposes of its institution; enter into any agreement not inconsistent with this act as may be desirable in the conduct of its affairs; and lease or dispose of any property which comes into its possession, but in so doing it shall not violate any condition or trust to which such property may be subject. All powers customarily exercised by the governing board of a college or university are vested in the board. The enumeration of powers herein is not deemed to exclude any of such powers not expressly excluded by law. Under Section 352, the Board of Control at MTU clearly is authorized to promulgate regulations for the granting of or denial of tenure at MTU, and to specify the powers and duties of the University’s administrative officers. Pursuant to its statutory authority, the Board of Control published a Handbook for Academic Faculty, which lists the duties of the university’s President as follows: “President The Board of Control selects the President, the chief executive officer of the University, who makes policy recommendations to the Board and is responsible for the operation of the institution in accord with approved policy.” The powers and duties of the Vice-President for Academic Affairs are also listed: “7. Vice President of Academic Affairs Responsible for the guidance and administration of the University’s academic program. An Organization Chart indicating the offices and two major committees which report directly to the Vice President of Academic Affairs is found in Appendix J.” Notably absent from these regulations is any reference to authority vested in the individual defendants to enter into employment contracts on behalf of the university. Therefore, it would appear that neither President Smith, nor Mr. Stebbins, had any authority to bind the university to any promise of tenure. Under state law, such a compact could be made by the Board of Control, and by no other party. The Michigan Supreme Court precisely so held in Sittler v. Board of Control, Michigan College of Mining and Technology, 333 Mich. 681, 53 N.W.2d 681 (1952). There, a plaintiff German professor was hired by the college based upon a letter written to the plaintiff by the department chairman confirming plaintiff’s employment. The court declared the employment contract to be null and void. In reaching this conclusion, the court ruled that the Board of Control, acting pursuant to a state statute virtually identical to M.C.L.A. § 390.352, could not delegate ;to.any other party its authority to contract with teachers. Moreover, the court stated, 53 N.W.2d at 683-684, that, even if department chairmen customarily had entered into employment contracts with assistant professors in the past, such acts could not bind the Board of Control: Plaintiff asserts that the power to contract with teachers may be delegated, and in the instant case that it is at least a question of fact if such power were not delegated by the board of control to Professor Bennett. In asserting the board’s right to delegate the power, which by statute is vested in the board, appellant cites People v. Fournier, 175 Mich. 364, 141 N.W. 689. However we think the cited case is not in point. It involved only the right of delegating the power of passing upon the right to be licensed as a stationary engineer in the city of Saginaw, which was considered necessary to proper administration of the police power. But the instant case involved the right by contract to bind the State in the operation of one of its educational institutions over a period of time and to expend public funds in greater or less amounts. Powers of the character vested by the above statutory provisions in a board of control of an educational institution maintained by the State cannot be delegated to some subordinate or representative. “The board of supervisors cannot delegate such powers as the law requires to be submitted to their corporate discretion and judgment.” People ex rel. Chadwick v. County Officers of St. Clair (syllabus), 15 Mich. 85. “The statutory authority conferred upon boards of supervisors to regulate the bridging of navigable streams is a trust that must be executed by themselves; they cannot delegate it to others * * Maxwell v. Bay City Bridge Co. (syllabus), 41 Mich. 453, 2 N.W. 639. It follows that plaintiff did not possess a contract under which he could assert rights. Even the letter written by Professor Bennett does not purport on its face to be a contract. We are mindful that it appears in plaintiff’s opposition to the motion to dismiss that on other occasions heads of departments have hired assistant teachers; but such usage or custom, if it ever prevailed, cannot be availed of to enlarge the statutory powers of the board of control so as to include or justify acts which' are unauthorized and contrary to the applicable statutory law. The court therefore concluded, 53 N.W.2d at 684: Plaintiff did not have a contract with the board of control of the Michigan college of mining and technology, nor were the negotiations between plaintiff and Professor Bennett such as to constitute a contract binding upon the defendants in the instant case. Because of an absolute lack of power vested in Professor Bennett to consummate a contract with plaintiff which would be binding upon defendants, nothing appearing in this record would or could constitute ratification of an alleged contract as asserted by appellant. I am persuaded, in light of Sittler, that cross-plaintiff cannot base a charge that he has been deprived of a property interest solely on the fact, if indeed it is true, that defendants told cross-plaintiff that his position as department head would be permanent. Neither Smith nor Stebbins had any authority to bind the university to terms of a contract not adopted by the Board of Control. Cross-plaintiff’s property interests must arise out of the regulations or activities of the ruling board, and no other source. The Handbook for Academic Faculty makes clear that administrative posts are not tenured. According to the Handbook, only assistant professors, associate professors and professors are entitled to obtain tenure. Notably, the office of Department Head is omitted. Moreover, in reference to administrative officers, the Handbook reads: “C. Administrative Officers 1. Appointments to administrative posts do not carry tenure. Administrative officers continue in their posts as determined by the President and the Board of Control. 2, Administrative officers holding an academic rank are subject to the provisions applicable to such rank, only insofar as their nonadministrative faculty status is concerned.” I read this excerpt to include department heads. In light of this, and the fact that no department head at MTU has ever obtained tenure in that position, I conclude that cross-plaintiff cannot base a property interest claim in his position as head of the Department of Physics upon the alleged promises of the defendants. B. The Employment Contract. Although cross-plaintiff cannot rely upon statements made by President Smith or Vice-President Stebbins concerning cross-plaintiff’s tenure as head of the Physics Department, cross-plaintiff also argues that implicit in his employment contract with the University is an understanding that he would not be dismissed absent “cause” or a hearing. This understanding, cross-plaintiff insists arises out of the fact that the University knew cross-plaintiff rejected other, significant job offers in order to accept a position at MTU, and that cross-plaintiff expended a large amount of money to move his family from Kansas to Michigan. Cross-plaintiff consequently argues that as head of the Department of Physics, he was other than an employee-at-will, and that defendants could not demote him, absent a hearing, without depriving him of his property interests. To the contrary, defendants contend that because cross-plaintiff’s employment contract is for an indefinite term, cross-plaintiff is merely an employee-at-will. As such, cross-plaintiff is said to have no property interest in his headship beyond that expressly provided in his contract, and as a result could be demoted at any time without violating the Due Process Clause of the Fourteenth Amendment. In Michigan, contracts for permanent or life employment are considered indefinite hirings which, absent distinguishing features or consideration in addition to the services rendered, are terminable at the will of either party. See, Lynas v. Maxwell Farms, 279 Mich. 684, 273 N.W. 315 (1937); Milligan v. Union Corp., 87 Mich.App. 179, 274 N.W.2d 10 (1978). Cross-plaintiff alleges that this is a case where distinguishing features or additional consideration exist, thus militating against the argument that the contract in question was one at will. Cross-plaintiff argues that defendant knew cross-plaintiff would have to move from Kansas to Michigan, and that he would have to forego other employment opportunities. In support, cross-plaintiff cites Hackett v. Food Maker Inc., 69 Mich.App. 591, 245 N.W.2d 140 (1976), lv. den., 399 Mich. 823 (1977), where the Court of Appeals held that an employee could maintain a breach of contract action against his employer arising out of an indefinite employment contract, in part because the employee had obtained an early release from the Navy and had travelled to Michigan in order to perform. I find Hackett to be distinguishable. In that case, the defendant employer repudiated the contract even before plaintiff came to work. This fact obviously impressed the Court of Appeals panel, because it said, 245 N.W.2d at 141-142: In both Lynas and Adolph there was evidence indicating that services under the contract for personal employment were commenced by plaintiff. Here plaintiff was never afforded an opportunity to perform under the contract due to defendant’s total repudiation thereof in that defendant never allowed plaintiff an opportunity to manage the Ypsilanti store. Unable to locate any Michigan case law on point we look to 4 Corbin on Contracts, § 958, p. 847, wherein we find the following: “A contract of employment to begin at a future time is totally broken by the employer’s refusal to begin such employment at that time. On such refusal, the employee has a single action for his injury, measured by the full amount of salary or wages promised, less what he can earn by reasonable effort in other similar employment.” Hence, we hold that, if a contract was proven by plaintiff that he was to become manager of the Ypsilanti store and was prevented from so doing due to defendant’s repudiation thereof prior to the time any services were commenced, plaintiff has a right to recover. Contrary to cross-plaintiff’s position, the general rule is that relinquishment of prior employment itself is insufficient additional detriment to turn a contract at will into some other type of contract. See, Anno: Relinquishment of Other Job, Business, or Profession in Order to Accept Permanent or Lifetime Employment Contract, 60 A.L.R.3d 264. In harsh situations involving arbitrary dismissal, exceptions are often found. See, Rowe v. Noren Pattern & Foundry Co., 91 Mich.App. 254, 283 N.W.2d 713 (1979). In most cases, however, employees have irretrievably lost valuable benefits without receiving substantial benefits in return. For example, in Rowe, the employee had worked 13½ years for another employer and had only 1½ years remaining before his pension with that employer vested. After changing employers, plaintiff was summarily fired on the 43rd day of work, whereas he would have been eligible for union protection after 45 days of work. Moreover, plaintiff testified he was informed by the defendant employer “that the only way I would get laid off is if the company closed down”. The state Court of Appeals concluded that plaintiff irretrievably lost a substantial benefit, and for that reason, the court upheld maintenance of plaintiff’s suit, even though plaintiff’s employment contract was “at will”. In the present case, cross-plaintiff left a tenured position in order to obtain another tenured position at a second university. He received tenure less than one year later, although apparently not in both his capacity as a professor of physics and his capacity as head of the department. Cross-plaintiff thereafter retained his position as (non-tenured) department head for over six years, when he was finally replaced without a hearing. I cannot believe that this is a case where sufficient bargained-for consideration or arbitrary harm to the employee requires this court to read cross-plaintiff’s indefinite employment contract as an exception to the general rule. By giving up his former job, and by turning down other employment opportunities (none of which offered cross-plaintiff better terms than he received at MTU) cross-plaintiff did nothing more than was necessary to begin his employment. See, Lynas v. Maxwell Farms, supra. I hold, therefore, that cross-plaintiff’s employment contract was solely a contract at will which was terminable by either party at any time. Because cross-plaintiff was merely an employee-at-will in his position as head of the Department of Physics, no property interest in his continued employment in that capacity exists under state law. For this reason, and those set out above concerning cross-plaintiff’s expectations of tenure, I hold that cross-plaintiff has failed to state a claim under the Due Process Clause involving an alleged deprivation of property. I accordingly dismiss that aspect of cross-plaintiff’s cross-claim. Deprivation of Liberty Interests Defendants next maintain that cross-plaintiff has failed to allege a deprivation of his liberty interest cognizable under the Fourteenth Amendment. Specifically, defendants contend that cross-plaintiff’s dismissal was based upon grounds of poor performance and general incompetence. These grounds, defendants argue, are insufficient grounds for creating a due process claim. See, Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1975), where the Court upheld a police officer’s dismissal as not violative of the Due Process Clause because the employee’s dismissal was based on his failure to follow orders, poor attendance at police training classes, and conduct unsuited of an officer, and because these charges were not made public. Defendants further argue that even if cross-plaintiff’s allegations do involve grounds more stigmatic than those involved in Bishop v. Wood, supra, a claim against the defendants is unwarranted because defendants never publicized the reasons for cross-plaintiff’s dismissal. Because I find that cross-plaintiff’s dismissal allegedly was based upon grounds which potentially infringe upon cross-plaintiff’s liberty interests, and because I hold that defendants need not have been the parties responsible for publication of the reasons for cross-plaintiff’s dismissal, I deny defendant’s motion to dismiss. A. Effect on Cross-Plaintiff’s Reputation. Not every summary dismissal from employment amounts to a violation of due process. The Sixth Circuit spoke to this issue in Lake Michigan College Federation of Teachers v. Lake Michigan Community College, 518 F.2d 1091 (1975), cert. denied 427 U.S. 904, 96 S.Ct. 3189, 49 L.Ed.2d 1197 (1976), where it said, at 1096-1097: Thus it appears that due process safeguards would apply if the discharge of a teacher foreclosed future employment opportunities that otherwise would be open to him or if the grounds for the discharge tend to discredit the teacher’s honesty or integrity or to damage his standing in the community. The federal courts have had many opportunities to refine and to apply the general guidelines set forth in Roth. For example, liberty interests are not implicated when a teacher is charged with failure to meet minimum standards in his professional relationship with students. Blair v. Board of Regents, 496 F.2d 322 (6th Cir. 1974). Similarly, allegations of improper or inadequate performance do not constitute a deprivation of liberty within the meaning of the fourteenth amendment. Abeyta v. Town of Taos, 499 F.2d 323 (10th Cir. 1974); Shirck v. Thomas, 486 F.2d 691 (7th Cir. 1973). It has been held that in certain circumstances even the charge of “incompetence, neglect of duty and malfeasance in office” does not amount to a deprivation of liberty under Roth. Adams v. Walker, 492 F.2d 1003, 1008-09 (7th Cir. 1974). On the other hand, it is also true that a violation of plaintiff’s liberty interest exists where the employer stigmatizes the employee as being mentally ill, untruthful or fraudulent. See, Lombard v. Board of Education, 502 F.2d 636, 637-638 (2nd Cir. 1974), cert. denied, 420 U.S. 976, 95 S.Ct. 1400, 43 L.Ed.2d 656 (1975); Huntley v. Board of Education, 493 F.2d 1016, 1019 (4th Cir. 1974); Hostrop v. Board of Junior College District No. 515, 471 F.2d 488, 494 (7th Cir. 1972), cert. denied 411 U.S. 967, 93 S.Ct. 2150, 36 L.Ed.2d 688 (1973). For example, in Osmer v. Modes, 409 F.Supp. 675 (E.D.Mich.1975), the district court held that plaintiff had raised a claim cognizable under the Fourteenth Amendment where his dismissal from the sheriff’s department was due to plaintiff’s having used his position as a police officer to collect a private debt. The court noted, at 676-677, that “(t)he charge against plaintiff is not general in nature but is specific and contains a great potential for stigmatization.” The same is true in this case. The charges that cross-plaintiff was racist or insensitive to minorities are charges which are both serious and specific in nature. No stretch of the imagination is required to infer that cross-plaintiff’s reputation and reemployment prospects resultingly are gravely diminished. I conclude, therefore, that cross-plaintiff’s cross-claim sufficiently alleges a potential deprivation of a liberty interest cognizable under the Due Process Clause. B. Publication of Charges. Defendants further contend that cross-plaintiff has failed to state a claim because cross-plaintiff has not shown that defendants publicized their reasons for demoting him. While it is true that the decisions in Roth, Bishop and Sindermann, make clear that plaintiff has an actionable claim if he can show that his dismissal infringes a liberty interest enforceable under the Constitution, these cases do not specify whether due process attaches when the defendant himself has not publicized the reasons for plaintiff’s dismissal. Defendants argue that the Supreme Court decision in Bishop v. Wood, supra, makes clear that plaintiff can claim no deprivation of a liberty interest by the defendants where the defendants have not publicized their reasons for demoting him. I do not agree. In Bishop, the plaintiff police officer was summarily dismissed on grounds of incompetence. The Court ruled that plaintiff did not suffer a deprivation of his liberty interests, even though the charges against him may have been stigmatic, because those charges were never publicized. In rejecting plaintiff’s claim, the Court stated at 348-349 of 426 U.S., at 2079 of 96 S.Ct.: In Board of Regents v. Roth, 408 U.S. 564, [92 S.Ct. 2701, 33 L.Ed.2d 548,] we recognized that the nonretention of an untenured college teacher might make him somewhat less attractive to other employers, but nevertheless concluded that it would stretch the concept too far “to suggest that a person is deprived of ‘liberty’ when he simply is not rehired in one job but remains as free as before to seek another.” Id., at 575 [, 92 S.Ct. 2701.] This same conclusion applies to the discharge of a public employee whose position is terminable at the will of the employer when there is no public disclosure of the reasons for the discharge. In this case the asserted reasons for the City Manager’s decision were communicated orally to the petitioner in private and also were stated in writing in answer to interrogatories after this litigation commenced. Since the former communication was not made public, it cannot properly form the basis for a claim that petitioner’s interest in his “good name, reputation, honor, or integrity”12 was thereby impaired. And since the latter communication was made in the course of a judicial proceeding which did not commence until after petitioner had suffered the injury for which he seeks redress, it surely cannot provide retroactive support for his claim. A contrary evaluation of either explanation would penalize forthright and truthful communication between employer and employee in the former instance, and between litigants in the latter. Petitioner argues, however, that the reasons given for his discharge were false. Even so, the reasons stated to him in private had no different impact on his reputation than if they had been true. In the present case, however, the charges against cross-plaintiff were publicized, though publication may not have been by the defendants. Bishop is distinguishable, because in that case, whatever notoriety existed arose from the plaintiff himself amidst judicial proceedings. To the contrary, in Osmer v. Moiles, supra, the district judge denied a motion for summary judgment by the former employer of a discharged probationary sheriff. The sheriff was fired because he allegedly used his position as a law enforcement officer to collect a private debt. Thereafter, the sheriff brought suit under Section 1983 because he was afforded no due process hearing. The district court ruled that there may have been a violation of plaintiff’s liberty interests because plaintiff was given no opportunity to rebut the serious and stigmatizing charges against him. This was true even though the disputed charges were communicated privately to plaintiff and were never publicized by the employer. Furthermore, in Roth, the Supreme Court stated at 573 of 408 U.S., at 2707 of 92 S.Ct.: The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. Had it done so, this would be a different case. For “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” These cases convince me that an employee’s liberty interests are infringed where the employer knows, or reasonably should have known, that in dismissing the employee, the employee’s good name, honor or integrity will be diminished. While the employer himself may not be publicizing what are generally known to be the reasons for the employee’s dismissal, the employer is injuring the employee by, in effect, supporting the community’s belief that the employee lacks integrity. An employer injures his employee when he knowingly fails to provide an employee an opportunity to rebut what the employer should know are the publicly-believed reasons for the employee’s dismissal. A due process hearing, in that context, minimally provides the employee an opportunity to establish that, even if he is to be dismissed, his dismissal follows from legitimate reasons and not the stigmatic ones generally supposed. For this reason, assuming that cross-plaintiff can show that the public generally and reasonably understood cross-plaintiff’s dismissal to be for the reasons alleged, and assuming that cross-plaintiff can show that the defendants knew or should have known of the potential harm to cross-plaintiff’s reputation, I find that cross-plaintiff will have demonstrated a deprivation of his liberty interests cognizable under the Due Process Clause. Consequently, I deny at this time defendants’ motion to dismiss. First Amendment Claim Cross-plaintiff lastly alleges in Count I a violation of his First Amendment rights to freedom of speech. Specifically, cross-plaintiff asserts that (1) his dismissal arose out of his frankness with his superiors concerning perceived deficiencies in cross-plaintiff’s colleagues; (2) cross-plaintiff was prohibited from making known to others in the department his evaluation of subordinates’ abilities; and (3) cross-plaintiff was prohibited from informing subordinates that other departments in the university supported his leadership. The United States Supreme Court, in several recent cases, has repeatedly affirmed the fact that public employees do not lose their First Amendment rights by merely obtaining public employment. See, Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979); Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977); Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In Pickering, the Court held that a public teacher cannot constitutionally be required to relinquish his freedom “to comment on matters of public interest in connection with the operation of the public school ...” 391 U.S. at 568, 88 S.Ct. at 1734. Instead, the Court determined, public employees are free to criticize their employers so long as their statements do not impede the regular operation of the business. See, McGill v. Board of Education, 602 F.2d 774 (7th Cir. 1979). Hence, under Pickering, a public employee may not be dismissed for making public statements which involve matters of the public interest and which are not disruptive of their employer’s activities. Id., at 777. Moreover, the employee’s First Amendment rights attach even though the statements were privately, rather than publicly, expressed. Givhan v. School District, supra. The question of whether a public employee’s speech is constitutionally protected necessarily entails striking “a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, supra, 391 U.S. at 568, 88 S.Ct. at 1734. See also, Mt. Healthy School Board v. Doyle, supra. It follows from this that in addressi