97-0222 La.App. 4 Cir. 9/10/97, Schwarz v. Administrators of Tulane Educational Fund

• Decision Date: 10 September 1997
• Citation: 699 So.2d 895
• Parties: 97-0222 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 895

699 So.2d 895

97-0222 La.App. 4 Cir. 9/10/97, 121 Ed. Law Rep. 440

Stephen SCHWARZ v. The ADMINISTRATORS OF THE TULANE EDUCATIONAL FUND, et al.

No. 97-CA-0222.

Court of Appeal of Louisiana Fourth Circuit.

Sept. 10, 1997.

Gregory T. Juge, Metairie, for Plaintiff/Appellant Stephen Schwarz.

Julie D. Livaudais, G. Phillip Shuler, Richard B. Ramirez, Chaffe, McCall, Phillips, Toler & Sarpy, L.L.P., New Orleans, for Defendant/Appellee The Administrators of the Tulane Educational Fund, D/B/A Tulane University.

Before ARMSTRONG, LANDRIEU and MURRAY, JJ.

[97-0222 La.App. 4 Cir. 1] MURRAY, Judge.

Stephen Schwarz appeals the grant of summary judgment by the trial court dismissing his claim for breach of employment contract against The Administrators of the Tulane Educational Fund, d/b/a Tulane University, arguing that genuine issues of material fact exist that preclude summary judgment. For the following reasons, we affirm.

FACTS:

Stephen Schwarz was hired by Tulane in 1986 as an assistant professor of engineering, a non-tenured position. His position was classified as a probationary regular appointment, a position with the prospect of tenure. As explained in the Tulane Faculty Handbook, appointments during the probationary period are made for periods of one year, with written notification of reappointment made annually. No later than April of the third year of a faculty member's service, each department is required to recommend to the dean and the college or division tenure committee whether the faculty member should be reappointed or terminated. The [97-0222 La.App. 4 Cir. 2] department is required to give reasons, supported by evidence, to show that the faculty member has or has not made satisfactory progress toward meeting the criteria for tenure. A similar review is conducted when a final tenure decision is required. The Handbook explains that tenure-track professors are eligible for tenure if they meet Tulane's expectations for tenured faculty.

In addition to the information provided in the Faculty Handbook, the School of Engineering publishes a Statement of Qualifications for Tenure and Promotion. This document covers, among other subjects, the department's expectations for faculty members in terms of professional attainment and growth. It provides that recommendations for tenure or promotion must include specific achievements in three categories: 1) teaching effectiveness; 2) scholarly and professional achievement; and, 3) university citizenship.

During Mr. Schwarz's third year review he was informed that he had a low number of publications, and advised that he should concentrate on improvement in that area. During his sixth year review the Mechanical Engineering Department, the School of Engineering Promotion and Tenure Committee, and the Dean of the School of Engineering all recommended that Mr. Schwarz be given tenure. Provost James Kilroy rejected the recommendations. Upon review of the recommendation, as provided for in the Faculty Handbook, he found that the low number of publications in peer-reviewed journals was an exceptional circumstance that justified overruling the recommendations.

Mr. Schwarz appealed the Provost's decision to the University-wide Senate Faculty Tenure, Freedom and Responsibility Committee. Following a hearing, the Committee determined that the Provost had not acted improperly in rejecting the recommendations, and that the Faculty Handbook procedures had been followed.

[97-0222 La.App. 4 Cir. 3] Mr. Schwarz subsequently filed the instant suit claiming that Tulane breached its contract of employment with him by denying him promotion and tenure. Tulane moved for summary judgment contending that there was no genuine issue of material fact as to the existence of a contract, an essential element of Mr. Schwarz's breach of contract claim. The trial court granted Tulane's motion and dismissed the claim. This appeal followed.

DISCUSSION:

Mr. Schwarz contends that summary judgment was improperly granted in this case because there exists a genuine issue of material fact as to the intent of the parties. He argues that only where the parties agree what was intended and disagree as to the legal significance of those intentions is there a question of law disposable on summary judgment.

Summary judgments are reviewed on appeal de novo. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. The summary judgment article, La.Code Civ. Proc. art. 966, was amended by the Louisiana Legislature in 1997, effective July 1, 1997. ¹ See 1997 La. Acts, No. 483. The [97-0222 La.App. 4 Cir. 4] amendment provides that the burden of proof on summary judgment remains with the mover. However, if, as here, the mover will not bear the burden of proof at trial, he only need point out to the court that there is an absence of factual support for one or more of the elements essential to the adverse party's claim. Once the mover establishes that there is no factual support for an essential element of the adverse party's claim, the burden shifts to the adverse party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If he fails to do so, the mover is entitled to summary judgment.

In support of its motion for summary judgment, Tulane argued that there was absolutely no factual support for Mr. Schwarz's claim that a contract that promised tenure to him existed.

Mr. Schwarz counters that a contract was formed by the parties' mutually agreeing to be bound by certain terms and conditions, which are described in the Faculty Handbook. In his deposition, he testified that the Faculty Handbook, the Statement of Qualifications for Tenure and Promotion, and letters of offer and acceptance of probationary position formed the contract between him and Tulane. He specifically stated that he was not relying on an oral agreement.

Mr. Schwarz claims that he joined the faculty in 1986 with the understanding that he would be given tenure after six years, if he lived up to his obligations, as they were described to him. He contends that when two parties enter into an agreement in which both view themselves as bound to act in a certain way, they have entered into a contract. While he acknowledges that the general rule in Louisiana is "employment at will", he argues that this rule can be overridden by the intent of the parties. Language in the Faculty Handbook gives [97-0222 La.App. 4 Cir. 5] assurances that tenure will be given unless the candidate does not meet the criteria; Mr. Schwarz argues that those assurances are, in fact, guarantees. He contends that Provost Kilroy conceded in his deposition that Tulane was bound to give tenure to a professor who, by all accounts, meets the applicable criteria.

Tulane contends that the Faculty Handbook and Statement of Qualifications for Tenure and Promotion are merely guidelines set out by Tulane with no input from Mr. Schwarz. These guidelines can be changed by Tulane at any time, and do not create a contract.

This court has recognized that a grievance procedure handbook is a unilateral expression of company policy, and that the publishing of that policy does not evidence a meeting of the minds. The terms of such a handbook were not bargained for by the parties, and any benefits conferred by it are mere gratuities. Mix v. Univ. of New Orleans, 609 So.2d 958, 961 (La.App. 4 Cir.1992), writ denied, 612 So.2d 83 (La.1993). ²

Mr. Schwarz testified in his deposition:

Q. Now at any time during the discussions that you had when you came down to visit on the campus that summer, or in any conversations you had over the telephone with Tulane professors, was the subject of tenure...