1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0267p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

B RADEN F RIEDER , Plaintiff-Appellant ,

v

.

M OREHEAD S TATE U NIVERSITY , et al., Defendants-Appellees

. ┐ │ │ │ │ │ │ │ ┘ No. 13-6595

Appeal from the United St ates District Court for the Eastern District of Kentucky at Ashland. No. 0:11-cv-00127—Henry R. Wil hoit, Jr., District Judge. Argued: October 10, 2014 Decided and Filed: October 24, 2014 Before: BOGGS, SUTTON, and STRANCH, Circuit Judges.

_________________ COUNSEL

ON BRIEF: Edward Dove, Lexington, Kentucky, fo r Appellant. Katherine M. Coleman, Joshua M. Salsburey, STURGILL, TURNER & MOLONEY PLLC, Lexington, Kentucky, Jane V. Fitzpatrick, MOREHEAD STATE UNIVERSIT Y, Morehead, Kentucky, for Appellees.

_________________ OPINION

_________________ SUTTON, Circuit Judge. Braden Frieder, a tenure-track professor, was denied tenure. We affirm the district court’s conclusion that the denial was ne ither retaliation against speech (his “idiosyncratic teaching methods”) nor disc rimination against disabi lity (his undisclosed diagnosis for bipolar disorder). 

### >No. 13-6595 Frieder v. Morehead State Univ., et al. Page 2

Braden Frieder joined Moreh ead 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 t eaching, professional achievement, and service to the university. These evaluations go on for up to six years, af ter 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 excelle d in professional achievement and service but had difficulty teaching. The reviews of his introductory art history cl ass were consistently abysmal: In spring 2008, for instance, students rated his course in the lowest 10 or 20 percent of classes for “Excellence of Cours e” and “Excellence of Teacher.” See R. 32-14 at 2. Frieder’s evaluators suggested improvements—asking Friede r to observe other te achers 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 administ rators 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 ar gued that his evaluato rs retaliated against his “idiosyncratic teaching methods,” which allege dly involved context-appropriate uses of the middle finger. In his disability claim, Frieder alleged that th e 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, th e district court granted the defendants summary judgment on both claims, holding that neither prot ected speech nor perceptions of a disability motivated the decision.

Jurisdiction. 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 Pr ocedure. The document gave “Notice to the Defendant, Morehead State University,” of Frieder’s intent to appeal. R. 41. The administratorNo. 13-6595 Frieder v. Morehead State Univ., et al. Page 3

defendants claim that, because they were not i ndividually listed in the document, they did not receive notice. As a result, they insist, we possess jurisdiction over only the university.
The administrators appear to have read Frie der’s notice more carefully than they read Rule 3. Although the specifications of Rule 3 are jurisdictional, Smith v. Barry , 502 U.S. 244, 248 (1992), the Rule does not requ ire an appellant to list any appellee’s name. It tells a prospective appellant only to “spe cify the party or parties taking the appeal,” to “designate the judgment, order, or part thereof being appealed,” and to “name the court to which the appeal is taken.” Fed. R. App. P. 3(c)(1). The person required to notify the appellees is not the appellant but the district clerk. Id. 3(d)(1). Even if the clerk fails in this duty (which no one contends happened here), the “failure to serve notice does not affect the validity of the appeal.” Id. 3(d)(3). Frieder complied with Rule 3, and we have jurisdiction over all of the defendants.

The First Amendment claim. In a claim for retaliation against free speech, we ask whether an individual’s exercise of constitutionally protected speech was a “motivating factor” behind retaliatory government conduct. See Evans-Marshall v. Bd. of Educ. , 624 F.3d 332, 337 (6th Cir. 2010). Frieder allege s that his “idiosyncratic teachi ng methods” motivated this state university’s adverse tenure decision. Appellant Br. at 11. Frieder is not th e first plaintiff to ask us to “convert the vague, inclusive term ‘teachi ng methods’ into a specific, protected form of speech that cannot be considered by a school administration in determining whether a nontentured teacher should be renewed.” Hetrick v. Martin , 480 F.2d 705, 709 (6th Cir. 1973). We have held early and often that a “university may constituti onally choose not to renew the contract of a nontenured professor whose pe dagogical attitude and teaching methods do not conform to institutional standards.” Parate v. Isibor , 868 F.2d 821, 827 (6th Cir. 1989) (quoting Hetrick , 480 F.2d at 708); see also, e.g. , Johnson-Kurek v. Abu-Absi , 423 F.3d 590, 595 (6th Cir. 2005). “Teaching methods” in other words are not constitutionally protecte d, requiring Frieder to offer a more specific example of speech that allegedly motivated the university’s decision.
To meet this requirement, Frieder shows us “the bird.” He tells us that he once extended his middle finger to his students during a lesson a bout a painter who used birds as symbols of sexual sin. This gesture not only raised eyebro ws, but it also raised “a matter of legitimateNo. 13-6595 Frieder v. Morehead State Univ., et al. Page 4

public concern,” he says. Pickering v. Bd. of Educ. , 391 U.S. 563, 571 (1968); see also Hardy v. Jefferson Cmty. Coll. , 260 F.3d 671, 679 (6th Cir. 2001).
Even if we assume for the sake of argumen t and against our better judgment that the Constitution protects Frieder’s one-finger salute in this instance, a free speech retaliation claim still requires retaliation —a showing that his gesture motivated the university’s tenure decision. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 287 (1977). The record, however, reveals “little about the sequence of events leading up to the decision that would spark suspicion.” Vill. of Arlington Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 269 (1977). While concerns about Frieder’s course reviews appear throughout his probationary evaluations, this one feature of his teaching style never makes an appearance.
No evidence shows that anything other than his poor student ratings and disorganization motivated the tenure decision. Frie der was not disciplined for the bi rd incident. Nor was he told not to flip off students in the future. At mo st, the department chair independently advised Frieder to use his “professional judgment” when teaching. R. 32-36 at 29. Yet a “nontenured professor does not escape reasonable supervis ion in the manner in which she conducts her classes” by virtue of the First Amendment. Parate , 868 F.2d at 827.

The discrimination claim. Frieder’s discrimination claim fares no better. Kentucky law forbids any employer from discriminating agai nst an employee with respect to terms of employment because the employee is regarded as having a mental impairment. Ky. Rev. Stat. §§ 344.010(4), 344.030(1), 344.040(1)(a). Although Frie der was diagnosed in 2006 with bipolar disorder, he admits that he has no evidence that anyone involved in his tenure decision knew of the diagnosis. He also lacks evidence that anyone regarded him as having a disability, other than his evaluators’ criticisms of his di sorganization. But, as the district court recognized, this is not evidence that “he was perceived as disabled, only that he was perceived as not effective at his job.” R. 39 at 14. In the absence of evidence that this criticism of his work product stemmed from a perception of an undisclosed disability, the district court correctly granted summary judgment to the university.
For these reasons, we affirm.