Jones v. University of Cent. Oklahoma, 93-6224

• Citation: 13 F.3d 361
• Decision Date: 29 December 1993
• Docket Number: No. 93-6224,93-6224
• Parties: 63 Empl. Prac. Dec. P 42,804, 62 USLW 2414, 88 Ed. Law Rep. 951, 9 Indiv.Empl.Rts.Cas. (BNA) 445 William Earl JONES, Plaintiff-Appellant, v. UNIVERSITY OF CENTRAL OKLAHOMA, formerly known as Central State University, State of Oklahoma, formerly known as Central State University; William Lillard, President, University of Central Oklahoma; Kenneth Elsner, Dean of the College of Education; Emmet Osgood, individually and in his official capacity; Carl Breazeale, individually and in his official capacity; Lonnie Gilliland, Jr., Director of Safety Institute, University of Central Oklahoma, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 361

13 F.3d 361

63 Empl. Prac. Dec. P 42,804, 62 USLW

2414, 88 Ed. Law Rep. 951,

9 Indiv.Empl.Rts.Cas. (BNA) 445

William Earl JONES, Plaintiff-Appellant, v. UNIVERSITY OF CENTRAL OKLAHOMA, formerly known as Central

State University, State of Oklahoma, formerly known as

Central State University; William Lillard, President,

University of Central Oklahoma; Kenneth Elsner, Dean of the

College of Education; Emmet Osgood, individually and in

his official capacity; Carl Breazeale, individually and in

his official capacity; Lonnie Gilliland, Jr., Director of

Safety Institute, University of Central Oklahoma,

Defendants-Appellees.

No. 93-6224.

United States Court of Appeals,

Tenth Circuit.

Dec. 29, 1993.

Lewis Barber, Jr. and Guinise M. Marshall of Barber & Marshall, P.A., Oklahoma City, OK, for plaintiff-appellant.

Susan Brimer Loving, Atty. Gen. of Oklahoma, and Sheridan A. McCaffree, Asst. Atty. Gen., for defendants-appellees.

Before McKAY, Chief Judge, SETH and BARRETT, Circuit Judges.

McKAY, Chief Judge.

The parties have agreed that this case may be submitted for decision on the briefs. See Fed.R.App.P. 34(f); 10th Cir.R. 34.1.2. The case is therefore ordered submitted without oral argument.

Plaintiff-Appellant (Plaintiff) appeals the federal district court's grant of summary judgment on all counts to the Defendants-Appellees, the University of Central Oklahoma and various officials thereof (the "University"). Plaintiff, a former instructor at the University, argues that in rejecting his application for tenure, the University violated his due process rights giving rise to a claim under 42 U.S.C. Sec. 1983, discriminated against him on the basis of race giving rise to a Title VII claim, and intentionally inflicted him with emotional distress.

We first address Plaintiff's Sec. 1983 claim that the University violated his due process rights by rejecting his application for tenure. Plaintiff's request for tenure was denied because he failed to satisfy the formalized nineteen-step process utilized by the University to evaluate his application. Plaintiff contends that, because of the University's past practice and representations, he had a "legitimate claim of entitlement"--and thus a protected property interest--that required the University to evaluate his application under an informal and less strenuous "local tenure" process. Under the unwritten "local tenure" guidelines, Plaintiff claims, the main factor considered is longevity, candidates are not required to submit a formal application, and candidates are awarded tenure as a matter of course. Plaintiff submits that he would have been awarded tenure had the informal procedure been used as he had been led to believe it would.

The district court, without elaboration and relying solely on LaVerne v. University of Texas System, 611 F.Supp. 66 (D.C.Tex.1985), held as a matter of law that Plaintiff did not have a legitimate claim of entitlement to a grant of tenure under the informal process because the University had a formal written procedure. The court stated simply, "[A]n unwritten or local tenure policy such as relied on by Plaintiff cannot exist if there is in force and effect a formal written tenure policy, as is the situation with the University of Central Oklahoma." Jones v. University of Central Oklahoma, et al., No. CIV-91-1788-D, slip op. at 1 (W.D.Okla. April 1, 1993).

Although they do not represent a clean split of authority, there appear to be two general schools of thought among the circuits on the precise issue presented to the court today--whether a university professor can have a legitimate claim of entitlement in continued employment pursuant to an informal, unwritten tenure policy when there is a contrary, formal policy already on the books. The first view is evident in the Sixth Circuit's decision in Soni v. Board of Trustees of Univ. of Tennessee, 513 F.2d 347 (6th Cir.1975), cert. denied, 426 U.S. 919, 96 S.Ct. 2623, 49 L.Ed.2d 372 (1976), which held that despite a university's written tenure regulations, a professor may have a protectable property interest if the university's conduct and representations concerning an informal procedure give him a "reasonable expectation" of continued employment. Id. 513 F.2d at 350-51. Apparently, the Sixth Circuit concluded that one has a "legitimate claim of entitlement" whenever he has a "reasonable expectation" that he will receive a certain benefit from the state. Although the Sixth Circuit has subsequently gone to great lengths to distinguish other cases from Soni, this broad view of a protected property interest still prevails in that jurisdiction and has had a modicum of influence on other courts. See Hannon v. Turnage, 892 F.2d 653, 658 (7th Cir.1990) (citing Soni and noting that "a property interest can arise through a legitimate and reasonable reliance on a promise made from the government"); Tyler v. College of William and Mary, 429 F.Supp. 29, 31-32 (E.D.Va.1977) (discussing "reasonable expectation" test of Soni and distinguishing on facts).

On the other hand, the Ninth Circuit held in Haimowitz v. University of Nevada, 579 F.2d 526 (9th Cir.1978), that the existence of a written tenure policy precludes a professor from gaining a property interest in continued employment through any informal, unwritten policies absent extraordinary circumstances. Id. at 528-29. Haimowitz discredited the Sixth Circuit's broad view in Soni, and seemed compelled by policy considerations concerning a university's need to enforce its written tenure guidelines. Id. Several courts have followed the Ninth Circuit's approach in Haimowitz, and the rule has gradually solidified to the point where, as expressed by the district court below, the mere existence of a written tenure procedure in effect nullifies a professor's claim to a property interest stemming from any contract implied through conduct or oral representations. See Lovelace v. Southeastern Massachusetts Univ., 793 F.2d 419, 423 (1st Cir.1986); Colburn v. Trustees of Indiana Univ., 739 F.Supp. 1268, 1293 (S.D.Ind.1990), aff'd, 973 F.2d 581 (7th Cir.1992); LaVerne v. University of Texas System, 611 F.Supp. 66, 69 (S.D.Tex.1985).

We do not believe that either of the approaches set forth above is faithful to the Supreme Court's instructions in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), and Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), requiring federal courts to define protectable property interests in the state-employment context solely through the application of state law. In Perry, the Regents of the state university where the respondent was employed as a professor denied the respondent tenure without first offering him a hearing. Despite the lack of a contract or written tenure guidelines, the Court held that the professor could have a property interest in continued employment because of his reliance on the university's conduct and representations which created an expectation that he would be given tenure pursuant to an informal practice or de facto tenure policy. The Court stated, "A person's interest in a benefit is a 'property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit...." Perry, 408 U.S. at 601, 92 S.Ct. at 2699 (emphasis added). The Court then cited Corbin on Contracts and discussed general theories of contract law, such as implied or quasi-contracts, through which a litigant can establish an entitlement or a contract right to certain property because of "mutually explicit understandings" inferred from the parties' conduct, statements, or practices. Id. at 601-602, 92 S.Ct. at 2699-2700.

The Perry Court made clear, however, that it expressed no opinion as to whether the respondent had actually proved the existence of a quasi-contract with the university vesting him with a property right--that determination would have to be made by the district court on remand and solely in accordance with the appropriate state contract law. Id. at 603 n. 7, 92 S.Ct. at 2700 n. 7. The Court stated:

We do not now hold that the respondent has any such legitimate claim of entitlement to job tenure. For "property interests ... 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."

Id. (citation omitted). Continuing its discussion, the Court held that the issue of whether the respondent had a protectable property interest must be decided pursuant to the law of Texas, the state where the cause of action arose. The Court's analysis indicated that if, upon remand, a determination were made that a teacher in the respondent's position...