Brown v. George Washington University, 99-CV-708.

• Decision Date: 11 July 2002
• Docket Number: No. 99-CV-708.,99-CV-708.
• Parties: Carole W. BROWN, Appellant, v. THE GEORGE WASHINGTON UNIVERSITY, Appellee.
• Court: D.C. Court of Appeals

802 A.2d 382

Carole W. BROWN, Appellant, v. THE GEORGE WASHINGTON UNIVERSITY, Appellee.

No. 99-CV-708.

District of Columbia Court of Appeals.

Argued December 17, 2001.

Decided July 11, 2002.

Robert A.W. Boraks, Washington, DC, for appellant.

Michael A. Dymersky, with whom Sarah P. Mulkern, Washington, DC, was on the brief, for appellee. Before STEADMAN, REID and GLICKMAN, Associate Judges.

STEADMAN, Associate Judge.

The George Washington University (appellee) decided not to promote Carole Brown (appellant) or to renew her initial three-year employment contract as an assistant professor. It later removed her from her role as principal investigator in a grant project for the six months remaining in her existing employment term. Appellant filed suit claiming breach of contract for appellee's alleged failure to honor her Faculty Code ("Code") grievance rights during her unsuccessful intrauniversity challenge to these decisions. The trial court granted appellee's motion for summary judgment. We affirm.

I.

On December 7, 1992, the faculty of the Department of Teacher Preparation and Secondary Education ("Department") voted not to renew appellant's contract and not to promote her. Pursuant to the Code, appellant submitted a grievance to the Executive Committee of the Faculty Senate, alleging several deficiencies in the process that led to the termination vote. The Executive Committee appointed a Hearing Committee ("Committee") to investigate her complaint. The Committee held a three-day hearing in which appellant and eleven other witnesses testified and over 50 exhibits were entered into evidence. After this extensive evidentiary hearing, the Committee issued on March 1, 1995 a six-page single-spaced decision in which it determined that appellant had not demonstrated by clear and convincing evidence that the Department's decision had violated her rights under the Code or that the Department's action was arbitrary and capricious.

Subsequent to appellant's filing of the grievance with the Executive Committee, Peter Smith, Dean of the School of Education and Human Development, on December 20, 1993, removed appellant from the position of principal investigator on the project "Spanning Boundaries: Doctoral Leadership in Early Education." After being removed, appellant added this additional ground to her grievance complaint. The Committee deferred investigation into this new grievance until after it had denied appellant's grievance related to her non-promotion and non-renewal. Then, after choosing not to hold an evidentiary hearing on the principal investigator issue, the Committee on June 23, 1995 denied this grievance as well.¹

On March 1, 1998, appellant filed a two-count suit alleging breach of contract. The trial court dismissed as time-barred the first count, which challenged appellee's decisions not to promote appellant, not to renew her contract, and to remove her as principal investigator.² Then, after first denying appellee's motion for summary judgment on the second count, which focused on the Committee's grievance review of these decisions, the trial court, upon appellee's motion for reconsideration, held a hearing at whose conclusion summary judgment was granted. Only that latter ruling is before us for review, to which we now turn.

II.

Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Super. Ct. Civ. R. 56(c). Our review of the trial court's grant of summary judgment is de novo, and we review the record independently. See Chase v. State Farm Fire & Cas. Co., 780 A.2d 1123, 1127 (D.C.2001)

. "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). Appellant argues that genuine issues of material fact exist as to whether appellee substantially complied with certain grievance rights contained in the Code that formed part of appellant's employment contract.

In the context here, we proceed with particular caution, recognizing that "courts should not invade, and only rarely assume academic oversight, except with the greatest caution and restraint, in such sensitive areas as faculty appointment, promotion, and tenure, especially in institutions of higher learning. Where a university has adopted rules or guidelines in such areas, the courts will only intervene where there has not been substantial compliance with those procedures." Loebl v. New York Univ., 255 A.D.2d 257, 680 N.Y.S.2d 495, 496-97 (1998) (citations and internal quotation marks omitted); see also Kakaes v. George Washington Univ., 683 A.2d 128, 135 (D.C.1996)

. Further-more, we keep in mind the essential consideration that we are not here reviewing directly whether the Department violated any employment rights of the appellant. That attack is precluded by the dismissal of her first count. Rather, what is before us is the issue whether, in the grievance process to which appellant consented,³ the Committee violated any of her employment rights. In this second step of review, we do not ourselves directly determine whether the appellant proved by clear and convincing evidence that she suffered substantial injury from the Department's failure to follow the Code or its arbitrary and capricious action. Rather, the issue before us, as it was before the trial court, is whether the Committee could reasonably conclude on the record before it that she had not met that burden.⁴ That is all that her employment rights in the grievance process fairly provide her. We proceed on that basis.

A.

We first deal with the Committee's review of the Department's decision neither to promote appellant nor renew her employment contract. Pursuant to appellant's argument, we focus here upon the provision of the Code⁵ that reads as follows:

In rendering its decision, the Hearing Committee shall not substitute its judgment for that of the maker of the decision being challenged, but rather it shall determine whether the grievant has established by clear and convincing evidence that he/she has suffered a substantial injury resulting from: . . . 2) the decision-maker's failure to follow the Faculty Code, or Faculty Handbook, or other rules, regulations, and procedures established by the University; 3) arbitrary and capricious University action. . ..

Specifically, appellant argues that she demonstrated to the Committee by clear and convincing evidence⁶ that the following violations resulted in substantial injury to her: 1) inadequate notice of any deficiencies in her performance that led to the Department's decision; 2) appellant's exclusion from the December 7, 1992, Department meeting that decided her fate; and 3) the decision itself.

First, appellant alleged that the Department failed to provide her with adequate notice of any deficiencies in her performance prior to its decision.⁷ The Committee determined that appellant did not prove by clear and convincing evidence a violation causing substantial injury because appellant had received notice through annual faculty reports and discussions with the Department Chair, Dr. Maxine Freund, and an associate dean. Appellant disputes this, claiming that "[f]rom all that could have possibly appeared to her, [appellant] was progressing satisfactorily as to all the criteria for promotion." But the evidence before the Committee was sufficient to belie this claim. We think that it simply could not be said the Committee unreasonably denied this grievance.⁸

Second, appellant asserted that her exclusion from the December 7, 1992 meeting violated a Department guideline⁹ and caused her substantial injury. According to appellant, "the wording of the provision is crystal clear." The Committee, however, disagreed and noted that the Department had construed the provision as discretionary and that the candidate would be invited to appear only if they felt they wanted to hear additional information "as may appear relevant." This had been the past practice of the faculty, and other candidates seeking promotion were excluded from the same meeting as was appellant. "[T]he objective view of contract interpretation adopted in this jurisdiction requires, in the context of University employment contracts, that the custom and practice of the University be taken into account in determining what were the reasonable expectations of persons in the position of the contracting parties . . .. `[C]ontracts . . . in and among a community of scholars, which is what a university is,' `are to be read [] by reference to the norms of conduct and expectations founded upon them' in a particular manner, unlike, to some degree, contracts made in the ordinary course of doing business." Howard Univ. v. Best, 547 A.2d 144, 149, 154 (D.C.1988) (quoting Greene v. Howard Univ., 134 U.S.App. D.C. 81, 88, 412 F.2d 1128, 1135 (1969)

). Furthermore, there was no showing that appellant had been prevented from submitting any material that she felt was relevant to the promotion or employment renewal issues. What...