The right of reinstatement is not automatic and absolute, however. In unusual cases the defendant may show by a preponderance of the evidence that the plaintiff is not entitled to reinstatement as an appropriate remedy for his unlawful dismissal because his employment would have definitely terminated for some legitimate reason. If, for example, the defendant shows that the plaintiff's contract would not have been renewed at the end of the employment term for some economic, academic, administrative or policy reason, independent of reasons given for discharge, then the district court might be justified in denying reinstatement. The employee, of course, still would be entitled to monetary damages, at least in the amount of salary he would have earned during the time remaining on his contract. Reinstatement may not be an appropriate remedy because, as a practical matter, by the time the court must decide on an appropriate remedy, the contract term, which would not have been renewed for independent and lawful reasons, may have expired. To award reinstatement under these circumstances would do more than remedy the constitutional wrong perpetrated on the employee; it would reward him solely for exercising his constitutional rights. The
Mt. Healthy case itself counsels against awarding such windfalls to prevailing employee plaintiffs. In
Mt. Healthy, the Court said the law should not “place an employee in a better position as a result of the exercise of constitutionally protected conduct than he would have occupied had he done nothing.”
Id. at 286, 97 S.Ct. at 575, 50 L.Ed.2d at 483. Although the issue in
Mt. Healthy was determining causation for the purpose of establishing substantive liability, the Court's reasoning perforce is equally applicable to the remedy context.
We do note that on the record before us the college made no showing that Marchelos' contract would not have been renewed irrespective of the reasons associated with his discharge, but we cannot preclude the possibility of its being raised on remand.