Krynicky v. University of Pittsburgh, Civ. A. No. 81-263.

• Decision Date: 05 April 1983
• Docket Number: Civ. A. No. 81-263.
• Parties: Harry T. KRYNICKY, Jr., Plaintiff, v. UNIVERSITY OF PITTSBURGH, Wesley W. Posvar, Paul N. Robinson, Rhoten A. Smith, Donald N. Henderson, Robert Nossen, Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

560 F. Supp. 803

Harry T. KRYNICKY, Jr., Plaintiff, v. UNIVERSITY OF PITTSBURGH, Wesley W. Posvar, Paul N. Robinson, Rhoten A. Smith, Donald N. Henderson, Robert Nossen, Defendants.

Civ. A. No. 81-263.

United States District Court, W.D. Pennsylvania.

April 5, 1983.

David F. Megnin, Kittanning, Pa., Marcel L. Groen, Bensalem, Pa., for plaintiff.

James J. Restivo, Jr., Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for defendants.

OPINION

WEBER, District Judge.

Defendants seek summary judgment on all claims in this suit by a university professor for improper denial of tenure. For the reasons stated below, defendant's motion is denied as to plaintiff's First Amendment claim, and is granted as to all other claims.

Plaintiff, a former Assistant Professor of English at the Bradford Campus of the University of Pittsburgh, has claimed in his complaint that he was denied tenure in violation of his employment contract and his constitutional rights to free speech and procedural due process. Plaintiff also asserts a pendent state claim for intentional infliction of emotional distress. Other claims have been disposed of on a motion to dismiss or have been withdrawn. See, No. 81-263, slip op. (W.D.Pa., Nov. 17, 1981) (Ziegler, D.J.). Defendants seek summary judgment on all remaining claims on a variety of grounds which will be discussed more fully below.

I. FACTS

The undisputed facts of record are summarized herein. In the summer of 1972, plaintiff was hired for a one year term of employment at the Bradford Campus for the 1972-73 school year. Upon completion of the one year term, plaintiff's contract was renewed for a three year term as Assistant Professor in the tenure stream for the period 1973 to 1976. That contract was later renewed for an additional three year term for the period 1976 to 1979. Plaintiff's employment with the University ended in April 1979.

Although the tenure process underwent various changes during the period in which plaintiff was employed by the University, the process existing at the relevant time may be essentially summarized as follows. The tenure process at the University required approval from University officials at each level in a many-tiered hierarchy. A refusal to recommend tenure by an official from any level in the process prevented the matter from proceeding to the next level and in effect ended the tenure process with the exception of appeals. Only the Chancellor of the University had the ultimate power to grant tenure, but an adverse decision at a lower level prevented review by the Chancellor.

During the period of plaintiff's employment with the University he was considered for tenure on three separate occasions. In 1976, an early recommendation for tenure was taken under advisement by the Promotion Tenure and Leave Committee, as was customary. In the fall of 1977, plaintiff was again considered for tenure on the recommendation of Dr. Vincent Kohler, Chairman of the Humanities Division, at the Bradford Campus. On this occasion, however, tenure was denied when Dr. Kohler withdrew his recommendation and cited a variety of deficiencies in plaintiff's performance of his duties. On the third occasion, in 1978, plaintiff received a favorable recommendation from the Promotion Tenure and Leave Committee, but the Provost, Dr. Rhoten Smith, refused to recommend plaintiff for tenure. The Provost's decision ended the tenure process and was in effect a denial of tenure. Plaintiff was informed of this decision by letter of June 7, 1978, from Dr. Richard McDowell, President of the Bradford Campus.

The University provides an appeals process for faculty members who wish to challenge unfavorable tenure decisions. Plaintiff was provided a copy of the University document on appeals and review, and University officials encouraged him to avail himself of those avenues of review. Plaintiff was also aware of the availability of the review process from his past service on the Promotion Tenure and Leave Committee.

Plaintiff did make timely request of Dr. Smith for a reconsideration of the denial of tenure. By letter of July 26, 1978, Dr. Smith reaffirmed his decision not to recommend tenure.

Rather than employ the next step in the University's appeals process, plaintiff then wrote to Dr. McDowell, President of the Bradford Campus, strongly expressing his doubts about the efficacy of the appeals process. In response Dr. McDowell mailed to plaintiff a copy of the University's rules on appeal and review and again encouraged plaintiff to seek remedy through internal appeals.

By letter of July 5, 1979, after plaintiff completed his final year with the University, and nearly a year after Dr. Smith's decision on reconsideration, plaintiff requested the appointment of a Hearing Board to review the denial of the tenure decision. The request was directed to Dr. Smith who rejected it. Plaintiff had not complied with portions of the appeal process which precede review by a Hearing Board and his request was beyond the time limit provided in the University's rules.

II. ANALYSIS

A. Breach of Contract.¹

Plaintiff contends that the University rules and policies regarding tenure formed part of his contract, and those rules required notification of denial of tenure prior to April 30, 1978, the end of the plaintiff's sixth academic year in the tenure stream. Notice of denial of tenure was given on June 7, 1978. Because no denial of tenure notice was made prior to April 30, 1978, plaintiff contends that he was, therefore, entitled to tenure under the contract.

Defendant responds that by the terms of the University's tenure rules, which plaintiff seeks to assume in his contract, the University has until the end of its fiscal year to make notification of tenure decisions. The fiscal year ended June 30, 1978, and therefore, the University contends, the June 7, 1978 notice was well within the time limits provided by University rules.

The pertinent provisions regarding tenure are contained in the Faculty Handbook. Paragraphs 8 and 9 limit a faculty member to seven years employment without tenure and require that a decision on tenure and notification be made prior to the end of the sixth year of employment.

8. The ranks of instructor, assistant professor, associate professor and professor comprise the tenure stream. If the teacher shall not have been given written assurance of promotion to the rank of Associate Professor by the end of the sixth year of appointment in the tenure stream, he or she should be notified that he or she has no expectation of such promotion or of receiving permanent tenure.

9. The total number of years which a faculty member may serve at this University without tenure in ranks, included under this Appointment and Tenure Plan shall not exceed seven. If a person has served for seven years in ranks included under this Appointment and Tenure Plan, he or she must either be promoted to Associate Professor or Professor or his or her services in the tenure stream terminated. Such notification shall be made prior to the end of the sixth year of service.

A year for the purpose of the tenure rules is defined in paragraph 14 as coinciding with the University's fiscal year. That paragraph provides:

14. In counting a "year" of appointment or of tenure, particularly at the Assistant Professor level, a year is recognized if the appointment becomes effective on or before December 31, the midpoint of the University's fiscal year. In cases where the appointment becomes effective on January 1 or later, the remainder of the year is disregarded for this purpose and the next fiscal year is counted as the first year of appointment under the tenure rules stated above.

Plaintiff, however, cites paragraph 7 to support its position that notification of the tenure denial was due at an earlier date.

7. The terms of appointment of Assistant Professors are normally three years. However, an individual may receive one appointment for a term of less than three years. Following appointment at this University with the rank of Assistant Professor for a 3-year term the University shall give written notice by the end of a second year stating whether the individual is to be reappointed beyond the third year of that term. The University shall notify in writing each Assistant Professor serving under a 2-year appointment by December 15, and under a 1-year appointment by March 15 of the terminal year of the appointment whether or not he or she will be reappointed.

This provision is clearly inapposite. By its terms it applies only to renewal of an appointment, a very different animal than the grant of tenure. The provisions regarding 1-year and 2-year appointments are inapplicable because plaintiff was serving a three year appointment when tenure was denied. Further, under paragraph 9, plaintiff could no longer be reappointed to a term for years. By its terms, paragraph 7 applies only to notice of reappointment, not tenure, and is therefore inapplicable to the plaintiff's situation.

Paragraph 14 of the faculty handbook clearly counts a year of tenure or appointment in terms of the University's fiscal year. Paragraph 9 requires notice prior to the end of sixth year. There is no more obvious place for application of paragraph 14 counting provisions than in determining the sixth year in paragraph 9. The language of these provisions is unambiguous and establishes that the June 7, 1978 notice was timely. Because these provisions are unambiguous summary judgment in favor of the defendant on the breach of contract claim is granted.

We also conclude that plaintiff is precluded from asserting his breach of contract claim because he failed to exhaust the administrative remedies provided by the University. The appeal process created and approved by the University faculty is detailed and thorough. Steps are provided for reconsideration, a written statement of reasons, review by an Appeal Board and finally review by a Hearing Board....