Fun v. Virginia Military Institute, 911880

• Citation: 427 S.E.2d 181,245 Va. 249
• Decision Date: 26 February 1993
• Docket Number: No. 911880,911880
• Parties: , 81 Ed. Law Rep. 590 Winnie W. FUN v. VIRGINIA MILITARY INSTITUTE, et al. Record
• Court: Supreme Court of Virginia

Page 181

427 S.E.2d 181

245 Va. 249, 81 Ed. Law Rep. 590

Winnie W. FUN v. VIRGINIA MILITARY INSTITUTE, et al.

Record No. 911880.

Supreme Court of Virginia.

Feb. 26, 1993 ¹.

Thomas C. Spencer, Lexington (Spencer & Filson, on brief), for appellant.

Richard C. Kast, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Paul J. Forch, Sr. Asst. Atty. Gen., C. Tabor Cronk, Asst. Atty. Gen., on brief), for appellees.

Present: All the Justices.

LACY, Justice.

In this appeal, we consider whether an employee stated a cause of action against her employer for breach of her employment contract and for violations of her due process and property rights under 42 U.S.C. § 1983.

The trial court decided this case on demurrer. Hence, we recite as true the facts alleged in the motion for judgment and its exhibits, and the fair inferences therefrom. Palumbo v. Bennett, 242 Va. 248, 249, 409 S.E.2d 152, 152 (1991). From 1987 to 1990, Virginia Military Institute (the Institute) employed Winnie W. Fun as a Technical Services Librarian and Assistant Professor of Bibliography on a year-to-year basis. Fun's employment contract was subject to automatic renewal in the absence of a notice of nonrenewal.

The Institute could terminate Fun's employment in two ways: (1) nonrenewal of her contract at the conclusion of the current contract term; or (2) dismissal at any time. Under the employment contract, the Institute could terminate Fun by nonrenewal of her contract only if it provided her notice of nonrenewal at least six months prior to the expiration of her current term of employment, in this case by December 30, 1989. If the Institute terminated Fun's employment by dismissal rather than by nonrenewal, Fun was entitled to challenge the dismissal through certain grievance and review proceedings.

On November 30, 1989, following an oral and a written reprimand, Fun received a letter from her immediate supervisor, Colonel James E. Gaines, Jr., which stated in part:

[Y]ou will be leaving VMI's payroll no later than 31 October 1990 ...

It is our hope to have someone in the position over the summer if not sooner. Obviously, it would be less awkward for all concerned if you were relocated by that time....

As I explained to you, the regulations for dismissal of an administrative staff member of your seniority require only four months' notice, and a year's notice is generous ...

Fun met with Colonel Thomas W. Davis, the acting dean of faculty, in December and requested an investigation into the allegations that led to her dismissal. Fun received no response from Davis until March 1990, when Davis informed her, by letter, that the November 30 letter she had received from Gaines " 'was intended to be notification of non-renewal' " of her employment contract. Meanwhile, Gaines had already announced the search for Fun's replacement to the entire library staff.

Fun filed a motion for judgment against the Institute, Gaines, Davis, and Brigadier General John W. Knapp (collectively, VMI) claiming that VMI had breached her contract of employment and had denied her due process and property rights in violation of 42 U.S.C. § 1983. She sought damages for, inter alia, lost wages and reemployment expenses.

In Count I, Fun alleged that she was denied employment at the Institute for fiscal year 1990-91, yet was not timely notified that her contract of employment would not be renewed for that term. VMI's failure to provide the six month nonrenewal notice, Fun claims, was a breach of the employment contract.

Fun's second breach of contract count alleged that VMI had denied her the faculty grievance and review procedures for dismissal to which she was entitled under the employment contract.

In her third count, alleging a violation of 42 U.S.C. § 1983, Fun asserted that she had a property interest in her individual and professional reputation. She also alleged a property interest in her employment at the Institute for the 1990-91 term because, without timely notification of nonrenewal, the contract would be extended for another year. She claimed a denial of her due process rights to contest her dismissal according to the procedures contained in the Institute's Administrative Faculty Policy.

The trial court sustained VMI's demurrer to the breach of contract counts, finding, as asserted in the demurrer, that Fun had "received the notice of non-renewal required by her contract and was not dismissed during her contractual term." Based on this same finding, the trial court sustained VMI's demurrer to Fun's third count, holding Fun "did, in fact, work out her one-year contract," had no property interest in employment at the Institute beyond the 1989-90 term, and had not been denied any constitutionally guaranteed due process right.

Fun sought review of the action of the trial court in sustaining VMI's demurrers. We awarded Fun an appeal limited to this issue, and we will reverse this judgment. ²

While a pivotal issue in this case may be whether VMI provided Fun with timely notice of...