Collins v. Univ. of Notre Dame Du Lac

• Decision Date: 12 July 2019
• Docket Number: Nos. 18-2559 & 18-2579,s. 18-2559 & 18-2579
• Citation: 929 F.3d 830
• Parties: Oliver COLLINS, Plaintiff-Appellee, Cross-Appellant, v. UNIVERSITY OF NOTRE DAME DU LAC, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

929 F.3d 830

Oliver COLLINS, Plaintiff-Appellee, Cross-Appellant,

v.UNIVERSITY OF NOTRE DAME DU LAC, Defendant-Appellant, Cross-Appellee.

Nos. 18-2559 & 18-2579

United States Court of Appeals, Seventh Circuit.

Argued January 16, 2019

Decided July 12, 2019

Rehearing and Rehearing En Banc Denied August 12, 2019^*

Christopher Edward Clark, Andrew Bentley Janutolo, Attorneys, GOODIN ABERNATHY, Indianapolis, IN, for Plaintiff-Appellee.

C. Kevin Marshall, Attorney, JONES DAY, Washington, DC, Stephen Glenn Sozio, Attorney, JONES DAY, Cleveland, OH, Samantha Woo, Attorney, JONES DAY, Chicago, IL, for Defendant-Appellant.

Before Bauer, Rovner, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

Plaintiff Oliver Collins was a tenured professor of electrical engineering at the University of Notre Dame. In 2010, a faculty committee found after a hearing that Dr. Collins had misused grant money by purchasing equipment other than that in his grant proposals and then using the equipment for personal purposes. The committee concluded that his actions warranted "dismissal for serious cause" under the Academic Articles incorporated in Dr. Collins's faculty contract. At the end of the university's internal review processes, the president of Notre Dame ultimately dismissed Dr. Collins, who later pleaded guilty to a federal felony charge arising from his conduct.

Before the criminal charges were filed, however, Dr. Collins filed this suit against Notre Dame alleging that it breached his contract by dismissing him. In 2012, before his guilty plea, the district court granted summary judgment for Dr. Collins on liability on the theory that Notre Dame breached the contract by allowing one faculty member both to play a role in the informal mediation process and then to serve on the hearing committee. The court did not decide whether the faculty committee's findings added up to sufficient cause to dismiss a tenured faculty member like Dr. Collins.

Following Dr. Collins's 2013 guilty plea to a federal felony charge for theft of government grant funds in this same conduct, Notre Dame re-did Dr. Collins's adjudication and dismissed him again so as to establish a "damage cutoff date" in light of the district court's finding of a procedural error in the first adjudication. After the guilty plea, the court held to its earlier finding that Notre Dame had breached the contract by the procedural error. After a court trial on damages, the court awarded Dr. Collins $501,367, calculated as his lost compensation from the date of his dismissal on June 2, 2010 until the date of his felony conviction on February 28, 2013. Notre Dame has appealed, and Dr. Collins has cross-appealed on the amount of damages and other issues. We reverse both the district court's grant of summary judgment to Dr. Collins and the award of damages. The contract did not prohibit one faculty member from participating in informal mediation and then serving on the hearing committee. Further, the undisputed facts show "serious cause" sufficient to warrant Dr. Collins's dismissal. Notre Dame is entitled to judgment in its favor.

I. Factual & Procedural Background

Dr. Collins started teaching at Notre Dame in 1995 and became a tenured professor of electrical engineering in 2001. Upon receiving tenure, Dr. Collins signed a faculty contract, which was "subject to the provisions of the University of Notre Dame Academic Articles and any future amendments thereto." In the faculty contract, Notre Dame "reserves the right to terminate the services of any member of the faculty for serious cause" and explains that the "definition of serious cause and the procedures for establishing it ... are set out in the Academic Articles." The Academic Articles define "serious cause" to include conviction of a felony:

"Serious cause" consists of any of the following: academic dishonesty or plagiarism; misrepresentation of academic credentials; professional incompetence; continued neglect of academic duties, regulations, or responsibilities; conviction of a felony; serious and deliberate personal or professional misconduct (including, but not limited to sexual harassment or discrimination in violation of University policies); continual serious disregard for the Catholic character of the University; or causing notorious and public scandal.

Academic Articles, Article III, § 8(b).

In 2002, Dr. Collins applied for and received $266,516 from the National Science Foundation ("NSF") to purchase five pieces of "high speed, mixed signal test equipment" and a computer as part of a Major Research Instrumentation ("MRI") grant. Notre Dame contributed matching funds. NSF later awarded Dr. Collins $240,000 to support a project titled Intrinsically Digital Radios. As part of that project, he proposed to use $20,000 to purchase a signal generator. Notre Dame also contributed matching funds to that project.

In 2009, Notre Dame started to suspect that Dr. Collins was abusing his grants by purchasing equipment different from that identified in his proposals and by using the equipment for personal purposes. Notre Dame hired outside counsel to investigate and also informed the NSF. The NSF investigated separately. It suspended Dr. Collins's grants and referred the matter to the Department of Justice, leading eventually to Dr. Collins's guilty plea to felony theft from a program receiving federal funds, in violation of 18 U.S.C. § 666. In the meantime, in August 2009, Notre Dame President Rev. John Jenkins suspended Dr. Collins with pay pursuant to the Academic Articles.

In September 2009, Vice President and Associate Provost Donald Pope-Davis sent Dr. Collins a letter pursuant to Article III, Section 8 of the Academic Articles, addressing "Severe Sanctions and Dismissal for Serious Cause." The letter listed six charges:

1. Used NSF funds to purchase equipment significantly different than the equipment specified in the grant documents, and that you did this on more than one grant, and over the course of several years;

2. Failed to inform NSF of the nature of the equipment you purchased;

3. Submitted a final report under one grant in which you falsely indicated that grant funds were used as intended;

4. Used equipment purchased with NSF funds for extensive personal purposes, with negligible if any scientific use of the equipment;

5. Took and stored sexually explicit and pornographic images using University computing resources; and

6. Failed to exercise care in maintaining University equipment, including University equipment purchased with government funds.

The letter further asserted:

Your actions were dishonest and constitute serious and deliberate misconduct of both a personal and professional nature. Moreover, you have exhibited serious disregard for the Catholic character of the University; and you have exposed the University to notorious and public scandal, all of which, we believe, warrants the sanction of dismissal from the University.

Finally, the letter informed Dr. Collins that the Office of the Provost intended to initiate election of a hearing committee to review the case and that, in the meantime, Dr. Collins was invited to attempt an informal resolution of the matter with Dr. Pope-Davis.

Dr. Pope-Davis discussed informal resolution with Dr. Collins by telephone. When that did not lead anywhere, Dr. Pope-Davis appointed two faculty members—Father John Coughlin and Dr. Paul Huber—to meet with Dr. Collins and "the relevant University administrator" "to attempt to resolve the issue to their mutual satisfaction." After a telephone call with Dr. Collins, Father Coughlin and Dr. Huber informed Dr. Pope-Davis of the recommendations Dr. Collins made for resolving the matter. On December 22, 2009, Dr. Pope-Davis informed Dr. Collins by letter that none of his recommendations were acceptable and Notre Dame would initiate the hearing process.¹

Section 8(c)(3) of the Academic Articles sets forth the procedure for selecting the hearing committee:

The Executive Committee of the Academic Council elects a Hearing Committee of three elected, tenured members of the Academic Council to conduct a formal, closed-door hearing. The Executive Committee also elects an alternate (who must also be an elected, tenured member of the Academic Council) to take the place of any member elected to the Hearing Committee who must recuse himself or herself because of bias or interest, including participation in the informal resolution process set forth above.

The Executive Committee selected Dr. Laura Carlson, Father Coughlin, and Dr. Graham Lappin for the hearing committee, with Dr. Huber as the alternate.

The hearing occurred on April 27, 2010. On April 30, 2010, the hearing committee issued its report. The committee sustained charges 1, 2, and 6 in full and sustained charges 3, 4, and 5 in part:

Charge #1: "Used NSF funds to purchase equipment significantly different than the equipment specified in the grant documents, and that you did this on more than one grant, and over the course of several years;"

Vote :

The committee votes unanimously (3–0) that the charge is sustained by clear and convincing evidence.

Factual findings :

With respect to the Major Research Instrumentation grant (Exhibit 10), the committee determines that the items listed in the original proposal and then appearing in the revised budget were not purchased using NSF funds as specified. Part of the cost of these items was shifted to another source of funding (Exhibits 13 & 14), with $161,231 from the MRI grant going to budgeted items. In addition, NSF funds were diverted to non-budgeted purchases pursuant to the terms of the grant (cameras and computing equipment and accessories, $240,115, Exhibits 15 & 16). The non-budgeted purchases are disconnected from the scope and objectives of the grant, and should have received authorization from NSF.

With respect to the Digitally Intrinsic Radio grant (Exhibit 18), the committee determines that the principal piece of equipment (signal generator) that was budgeted

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