Brennan v. King

Decision Date30 July 1997
Docket NumberNo. 97-1126,97-1126
Citation139 F.3d 258
Parties73 Empl. Prac. Dec. P 45,465, 125 Ed. Law Rep. 303, 12 NDLR P 117 Michael Louis BRENNAN, Plaintiff-Appellant, v. Paul KING, et al., Defendants-Appellees. . Heard
CourtU.S. Court of Appeals — First Circuit

Edward Greer, Brookline, MA, was on brief, for appellant.

Marc Redlich, with whom Steven T. Sager, Merle Ruth Hass and Law Offices of Marc Redlich, Boston, MA, were on brief, for appellees.

Before BOUDIN, Circuit Judge, HILL, * Senior Circuit Judge, and POLLAK, ** Senior District Judge.

POLLAK, District Judge.

This case involves the extent of an employee's obligation to pursue contractual grievance procedures prior to--or in lieu of--bringing suit. Plaintiff-appellant Michael Louis Brennan, a faculty member at Northeastern University, brought suit in federal court in Massachusetts against Northeastern, its trustees, president, and provost, the dean of Northeastern's College of Engineering, and the acting chair of the university's Department of Industrial Engineering and Information Systems. Brennan alleged, inter alia, that defendants violated federal and state anti-discrimination laws and breached his contract of employment with Northeastern. More specifically, Brennan contended that, as a tenure-track assistant professor, he was eligible for promotion to tenure rank but was denied tenure because he was gay and HIV-positive.

The district court granted defendants' motion for summary judgment on the ground that Brennan had failed to pursue the grievance procedure governing adverse tenure decisions which was set out in the employee handbook and thereby incorporated into Brennan's employment contract. Brennan then brought this appeal. Brennan acknowledges that he did not invoke the specified grievance procedure, but he argues that the grievance procedure he bypassed was not a remedy he was bound to invoke before presenting his claims to a federal court. With respect to Brennan's federal claims and the bulk of his state claims, we agree and, accordingly, reverse in part. With respect to Brennan's claims of breach of contract, we hold that Massachusetts law required resort to contractual remedies before suit. We will therefore affirm on that issue.

I. Facts

The principal facts relevant to this appeal are not in dispute. In 1988, appellant Brennan joined the Northeastern faculty as a tenure-track assistant professor of industrial engineering. During the 1993-94 academic year, he applied for tenure and was turned down. Because the university has a policy that limits non-tenured assistant professors to six years of employment, Brennan was given a final contract for the 1994-95 academic year, after which his employment was terminated. Brennan's employment contract for 1993-94 expressly incorporated the terms of the Northeastern University Faculty Handbook for that year. The handbook sets out (1) a general grievance procedure, which includes the possibility of "binding arbitration," and (2) a separate grievance procedure, governing tenure appeals, which includes a form of arbitration characterized as "binding" but of limited scope.

A. Northeastern's Tenure Review and Appeals Procedures Tenure Review

Tenure review at Northeastern is a multi-step process ultimately leading to a decision by the board of trustees. Initially, the candidate's record is reviewed by at least three tenured members of his or her department. This review leads to a departmental recommendation that is transmitted to the dean of the college. The dean, in turn, makes a recommendation to the provost of the university. The provost then makes a recommendation to the university president. In the last stage of the process, the president makes a recommendation to the board of trustees, and the board then makes a final decision. At no stage of the procedure is the recommendation of any evaluator binding upon the evaluator or decision-maker at the next stage.

Tenure Appeals. The tenure appeals process is made available following a decision by the provost to recommend to the president that the candidate's tenure application be denied.

The precise course of the tenure appeals process varies depending on whether the appellant makes a claim of, or including, "discriminatory acts" in connection with an adverse tenure recommendation. If a tenure candidate's appeal does not involve a "formal claim of discriminatory acts," the candidate must bring his or her appeal before the University Standing Appeals Committee on Tenure ("the Appeals Committee" or "Committee") within five days after the candidate learns of the provost's adverse decision. The Appeals Committee is composed of tenured faculty members from various schools of the university. Upon concluding its inquiry, the Committee makes a recommendation to the provost. If the Committee recommends in favor of the candidate, but the provost continues to maintain that tenure should be denied, the handbook authorizes the candidate "to submit procedural issues to binding arbitration" within ten days of learning of the provost's decision to proceed with the negative recommendation. The handbook specifies that "[t]he decision of the arbitrator, within the scope of his or her jurisdiction, shall be final and binding on the parties to the dispute and the University; however, the arbitrator shall be without power to ... (3) substitute his or her judgment on the professional qualification of a faculty member for the judgment of any academic committee or official, or (4) engage in a comparative review of the candidate's merits with those of other candidates, or (5) grant or deny tenure."

If the arbitrator "is convinced that the Provost's decision is not reasonably supported by the record," the arbitrator can require the provost to transmit to the president the Appeals Committee's positive recommendation instead of the provost's negative one. As with all tenure evaluations received from the provost, the president is not bound by such a recommendation. 1

Although the foregoing procedures generally govern the Appeals Committee's consideration of a tenure decision, the handbook provides a candidate with a different initial procedural route if his or her appeal presents, or includes, issues of discrimination. The manual instructs that a tenure candidate who believes that he or she has been subject to discrimination "should consult with" the university's Office of Affirmative Action ("OAA"). In the event that a candidate institutes a tenure appeal, and the appeal involves "formal claim[s] of discriminatory acts," the handbook directs that the candidate present those claims to the OAA before the candidate's case will be considered by the Appeals Committee. The Appeals Committee will stay any issues not involving discrimination while the OAA conducts an investigation and makes findings. If the OAA finds "Reasonable Cause"--that is, facts supporting the claim of discrimination--it will transmit this finding to the Appeals Committee, which will then consider the appeal. (What weight this finding is to be given by the Appeals Committee is left entirely unclear). If, on the other hand, the OAA does not find "Reasonable Cause," the Appeals Committee is to dismiss the discrimination issues and proceed to examine issues that do not relate to discrimination (if any). 2 Thus, so long as any issues remain after the OAA makes its finding, the appeals process runs its course whether that finding is one of "Reasonable Cause" or not; as explained above, the appeals process includes the candidate's option to request arbitration if: (1) the Appeals Committee makes a recommendation favorable to the candidate, and (2) the provost nonetheless states an intention to adhere to the original unfavorable recommendation.

B. The Course of Events in Brennan's Case

Although Brennan received positive recommendations at the departmental and decanal levels of review, the provost informed Brennan that he intended to recommend against the granting of tenure. Brennan, apparently on the advice of counsel, eschewed the university's tenure appeal process altogether. That is to say, Brennan did not present his case to the Office of Affirmative Action or to the Appeals Committee. (Not having sought Appeals Committee review, Brennan could not have elected to present his case to arbitration had he wished to do so). Accordingly, the provost transmitted his negative recommendation to the president. The president in turn submitted a negative recommendation to the board of trustees, and that body made the final decision to deny tenure.

Having been turned down at the highest level of university decision-making, Brennan filed complaints with the Massachusetts Commission Against Discrimination ("MCAD") and the federal Equal Employment Opportunity Commission ("EEOC"). The MCAD issued a "Lack of Probable Cause Finding," a decision that it affirmed on administrative appeal. The EEOC also found no violation, and issued a right-to-sue letter.

Brennan then commenced this suit in the District Court for the District of Massachusetts, alleging violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., as well as several state-law claims, including breach of contract and violation of anti-discrimination provisions of the Massachusetts Constitution and Massachusetts statutes. 3 The parties agree that all of Brennan's claims stem from his contention that he was denied tenure because of his sexual orientation and his HIV-positive status.

Northeastern and its officials moved for dismissal or summary judgment on the ground that Brennan had failed to pursue the grievance procedure specified in his employment contract. The district court entered summary judgment in favor of the university and its fellow defendants, giving particular weight to the "[f]ederal policy favor[ing] arbitration agreements." Memorandum...

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