Court Grants University of Michigan AD’s Summary Judgment Motion

Oct 23, 2009

A federal judge from the Eastern District of Michigan has effectively dismissed the claim of a sports talk radio host, who claimed that University of Michigan AD William C. Martin had him fired by the radio station after he made disparaging comments about the school.
However, the court declined to grant Martin’s motion for sanctions.
Plaintiff David Shand was employed as a broadcaster in 2003 by a radio station, WTKA-AM 1050 (WTKA) in Ann Arbor, Michigan, until he was terminated in April 2007. For much of his tenure, he served as the primary host of “In the Locker Room With David Shand,” which featured overall conversations, discussions, interviews, and listener commentary about sports in general.
According to Shand, the format of his show was designed for him to be controversial and provocative, while the role of his co-host would serve as the more mature and reasoned voice on the program. Shand suggested that the relationship between radio station and the Athletic Department became strained because of some on-air comments that he made about a professor at the University of Michigan. He also claimed that some Athletic Department employees had expressed their discontent with him over some of his “on-the-air” comments which touched upon his divorce from one of their fellow-employees.
WTKA representatives Brian Cowan and Robert Bolak said they fired Shand because the station received complaints about his controversial comments and because of they feared that WTKA would incur liabilities because of those comments.
Shand countered that these explanations were untrue, pointing to Martin, who allegedly threatened the WTKA management with the termination of its broadcast rights for UM football games unless its controversial employee was fired. Shand bases his charges on the strength of (1) an anonymous call that he allegedly received, which presumably supports this claim about Martin, and (2) certain conversations that he and his wife had with Cowan.
In response to Shand’s lawsuit. Martin filed (1) a motion for summary judgment and a motion for sanctions. In support of his motion, Martin challenged the accuracy and validity of the accusations.
In examining both sides, the court noted that a key consideration rested on whether there was a civil conspiracy, which the court defined as “an agreement between two or more persons to injure another by unlawful action. … All that must be shown is that there was a single plan, that the alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy that caused injury to the complainant.”
The court continued that Shand “has failed to proffer any credible evidence that a conspiracy actually existed between Martin, Cowan, and Bolak. Shand argues-without corroboration-that the order of the Court on May 28, 2008 which denied Martin’s motion to dismiss establishes that there was a civil conspiracy and thus makes it the law of this case. However, the text of this judicial order is clear, in that Shand’s allegations were “facially sufficient to support a claim under § 1983 that he engaged in state action.” (emphasis supplied). Although Shand’s claims were sufficient at that time to survive a dispositive motion prior to the completion of discovery, he must, at this stage in the litigation, proffer a sufficiency of evidence with which to survive Martin’s dispositive motion.”
While hearsay statements were presented that could “arguably, establish the existence of a civil conspiracy, these allegations have not been substantiated by other independent evidence on the record. Moreover, a fair reading of the challenged statements by Cowan do not support Shand’s contention that they were uttered in furtherance of a conspiracy.” Significantly, Cowan’s alleged comments took place after the radio station had made its decision to terminate Shand from his position as a broadcaster at WTKA. Thus, even under this situation, Cowan’s statements cannot be justifiably construed as having been made in furtherance of a conspiracy. Without (1) any independent evidence of a conspiracy and (2) other statements that would support of this theory, the Court concludes that Cowan’s statements are inadmissible hearsay evidence and, thus, cannot be used to challenge Martin’s motion for summary judgment.
Ultimately, Shand has “failed to proffer any admissible evidence, which will establish that there is a genuine issue of a material fact to be resolved. Thus, Martin’s motion for summary judgment is granted.”
It next turned to Martin’s argument that sanctions should be imposed upon Shand for these false allegations; namely, that (1) he was aware of an email communication between Martin and the WTKA management and (2) Martin caused him to be terminated. Shand admits that he was unable to discover-despite his efforts and those of his attorney to obtain information from the telephone company, etc.-the identity of the anonymous caller who conveyed the information to him about the relationship between Martin and the radio station. However, Shand asserts that he accepted this information because of the specificity with which the caller referred to the events surrounding his dismissal from WTKA.
“Based on Shand’s representations at his deposition and those of his attorney in his brief, Shand’s reliance on the anonymous caller’s information appears to have been somewhat strained, but, nonetheless, reasonable under the circumstances. Shand testified that the caller had very specific information about the issues and persons involved in this dispute. Moreover, contrary to Martin’s contention that the records never existed, Shand submitted a letter from two phone companies in response to his attorney’s subpoena, both stating that they no longer possessed the requested records for the phone calls made during the identified time frame. According to Shand, he attempted to procure the identity of the anonymous caller but was unable to do so. Thus, and under these circumstances, the Court, believing Shand’s representations to be reasonable, will decline to impose sanctions upon him and/or his counsel.”
Shand v. Martin; E.D. Michigan; No. 07-13100; 8/11/09
Attorneys of Record: (for plaintiff) Nicholas Roumel, Ann Arbor, MI. (for defendant) Keefe A. Brooks, Brooks Wilkins Sharkey & Turco, PLLC, Birmingham, MI.


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