A federal judge from the Western District of Kentucky has let stand the claim of Murray State University’s athletic director that are overzealous university president defamed him with a press release after a relationship between the two men deteriorated.
In particular, the court noted that it would be better left to a jury to determine whether the president acted with Malice when he attributed statements to an NCAA representative about the MSU athletic department that were never made.
The court began its analysis of the litigation by noting that MSU President Kern Alexander hired plaintiff E.W. Dennison as AD in 1997. Initially, Dennison’s contract was a series of one-year contracts. Together, the parties worked together to convert the plaintiff’s contract to a multi-year format with an added provision. Specifically, the following verbiage was added:
“The job performance of E.W. Dennison will be assessed annually by the President, consistent with University policy. In the event of a favorable evaluation, the term hereof will be extended by one (1) year. Any such extension must, in order to be binding, be acknowledged in writing by the President and E.W. Dennison. In no event will the term hereof exceed four (4) years.”
In 2002, Dennison’s tenure grew rockier. During a presentation to the MSU Board of Regents, the plaintiff was requested to present a “state of the union” on MSU Athletics. While he focused the increased graduation rate of black athletes and other positives in the Athletics Program, the board took a different approach. It questioned him about “declining summer camp enrollment, the head football coach’s missing a speaking engagement, reports that the football coach had bought a drink for a student athlete and was having an affair on campus, the soccer coach’s wife’s verbal abuse of student athletes, telephone calls from parents that coaches had promised their daughters and sons in sororities and fraternities that if they would come to athletic events there would be kegs of beer there, and the failure to recruit more local athletes. Plaintiff was basically told to correct the situation. Plaintiff assured the Board that corrective action would occur.”
Nevertheless, the court noted, “the problems in Athletics persisted over the next two years. Two football players were found to have stolen from dormitory rooms, a third football player attempted to steal from a dormitory room, two men’s basketball players were arrested for the possession of marijuana, a member of the women’s volleyball team falsely represented her playing experience prior to enrolling at MSU resulting in MSU’s forfeiture of all of its conference games, and the football coach was found to have committed a secondary violation of NCAA rules in his efforts to recruit a player.
“In March of 2004, the MSU men’s basketball team qualified for the NCAA men’s basketball tournament. On March 6, a player on the team was arrested for DUI. Two other players were arrested for possession of marijuana, possession of drug paraphernalia, and other offenses just days before MSU’s nationally televised game with the University of Illinois. These arrests were widely reported in local and national media, causing great embarrassment to MSU during a time when peer institutions were completing questionnaires about MSU for U.S. News and World Report. Graduation rates were also declining. The 2004 NCAA report on graduation rates for student athletes enrolling in 1997-1998 and who received athletically based financial aid their freshmen year indicated that male athletes graduated at the rate of 38 percent. For the four preceding years beginning with 2000 the rates had been 52 percent, 43 percent, 57 percent and 42 percent.”
Not surprisingly, the plaintiff received a negative employment evaluation for the school year 2003-2004 and, consequently, was given no raise for fiscal year 2004-2005. The evaluation stated that “numerous incidents occurred that have negatively impacted the reputation of the entire University.” It also noted that the new President, Dr. Kern Alexander, had to “allocate an inordinate amount of time to rectifying the multitude of concerns that emerged throughout the year.” Alexander concluded the evaluation by stating, “Therefore, I must express my deep dissatisfaction with the overall management and performance of our Director of Athletics E.W. Dennison during the 2003-2004 academic year.”
By September 2004, the president decided he could no longer work with the plaintiff “to correct the problems in the Athletics Department,” deciding to transfer the plaintiff from his position as AD to Director of Corporate and Foundation Giving, with the same salary and benefits as the AD position.
Two months later with the plaintiff in his new role, “a search was conducted of his university work computer under the instructions of his supervisors. A ten page draft press release dated November 29, 2004, was discovered which announced Plaintiff’s resignation and was filled with personal grievances against Alexander. During the same time, in January of 2005, Alexander directed an audit of the AD office. Dennison resigned from his position a month later. He would later sue for breach of contract, denial of his rights to free speech and expression, defamation, interference with his prospective contractual opportunities and intentional infliction of emotional distress.
Addressing the breach of contract claim, the court found that MSU had a transfer policy that allowed for such a transfer, thus dismissing the plaintiff’s breach of contract claim.
The court noted that the plaintiff’s second claim rested on his allegation that Alexander retaliated against him because of his political beliefs. The underlying facts were that the plaintiff hosted a republican fundraising dinner, while the University President brother was a democratic challenger to the republican.
The court, however, found “that the period in between the protected conduct and the alleged adverse action was too lengthy to give rise to an inference of retaliatory motive and, therefore, Plaintiff can not show that the protected action and the adverse employment action were causally connected.”
The court began its analysis of the third claim – defamation – by noting that “public figures are prohibited from recovering damages for defamatory falsehoods relating to official conduct unless they can prove that the statement was made with actual malice, that is, with the knowledge that it was false or with reckless disregard of whether it was false or not. Milkovich v. Lorain Journal Co., 497 U.S. 1, 14-15, 110 S. Ct. 2695, 111 L. Ed. 2d 1 (1990).”
While the plaintiff pointed to several alleged examples of this, the most significant, and certainly the one that resonated most with the court, was a press release written personally by Alexander and released by MSU, which contained statements regarding an NCAA review of the Athletics Department.
“On November 19, 2004, the Paducah Sun published an article based on this press release,” wrote the court. “Plaintiff claims that the press release contained false and defamatory statements made by Alexander, specifically (1) the NCAA was concerned that there was an overabundance of arrests and other problems that demanded serious and immediate attention; and (2) that NCAA officials said that MSU’s athletic program would likely end up in significant trouble with the NCAA in a couple of years if changes were not made.”
“Plaintiff claims that the NCAA officials never made statements that they were concerned that there was an overabundance of arrests and other problems demanding serious and immediate attention. The NCAA officials who visited MSU testified that they never made this statement. Ron Stratten recalls telling Alexander that there were serious problems but does not recall telling him that they needed immediate attention. Rosie Stallmen indicates that she found that there needed to be better communication between athletics and the administrative side of MSU but that she never stated that MSU’s arrest record was extremely high.” Stallman also denied making other comments that were attributed to her.
“Alexander has failed to demonstrate the veracity of the statements at issue. Drawing all reasonable inferences against Alexander, Plaintiff has demonstrated that Alexander acted with malice as he knew or should have known that these statements which he attributed to the NCAA representatives were false. The statement is also defamatory as it refers to problems with the department which Plaintiff administered and might tend to injure Plaintiff in his business or occupation. See McCall, 623 S.W.2d at 884.
“This Court finds that there is an issue of material fact as to whether Alexander published the statements leading to the November 18, 2004, press release with malice, and therefore this claim is properly resolved by the jury.”
Turning to the claim that the defendant interfered with the plaintiff’s prospective contractual relations, the court found that Alexander was within his rights to have a frank discussion with his fellow president at Eastern Kentucky about Dennison’s qualifications.
Finally, turning to the plaintiff’s claim of intentional infliction of emotional distress, the court found that “any remarks made by the Defendants concerning the Plaintiff were not so outrageous as to offend generally accepted standards of decency and morality.”
E.W. Dennison v. Murray State University, et al.; W.D. Ky.; CASE NO. 5:05CV-182-R, 2006 U.S. Dist. LEXIS 80800; 11/3/06
Attorneys of Record: (for plaintiff) Gary R. Haverstock, Haverstock, Bell & Pitman, Murray, KY.; Harold T. Hurt, Hurt & Jones, Murray, KY.; Squire N. Williams, III, Robert C. Moore, Hazelrigg & Cox, LLP, Frankfort, KY. (for defendants) Serieta G. Jaggers, Jaggers Law Office, Princeton, KY, US.; William E. Johnson, Johnson, True & Guarnieri, LLP, Frankfort, KY.
