Garner v. Michigan State University

Decision Date06 November 1990
Docket NumberDocket No. 116980
Citation185 Mich.App. 750,64 Ed. Law Rep. 258,462 N.W.2d 832
PartiesDavid GARNER, Plaintiff-Appellee, v. MICHIGAN STATE UNIVERSITY, Board of Trustees of Michigan State University, College of Human Medicine, Department of Psychiatry, Defendants-Appellants. 185 Mich.App. 750, 462 N.W.2d 832, 64 Ed. Law Rep. 258
CourtCourt of Appeal of Michigan — District of US

[185 MICHAPP 752] White, Beekman, Przybylowicz, Schneider & Baird, P.C. by Arthur R. Przybylowicz, Okemos, for plaintiff-appellee.

Office of the Gen. Counsel, Michigan State University by Michael J. Kiley and Kurt E. Krause, East Lansing, for defendants-appellants.

Before WAHLS, P.J., and MARILYN J. KELLY and ALLEN, * JJ.

ALLEN, Judge.

In this suit for wrongful discharge, we are asked to decide the propriety of a writ of mandamus issued April 24, 1989, by the Ingham Circuit Court, ordering defendants to reinstate plaintiff, although not to "any particular position," and further ordering defendants not to dismiss plaintiff without a hearing as mandated by defendant university's policy on the dismissal of tenured faculty for cause. We find the writ properly issued and, therefore, affirm.

Plaintiff is a psychologist and renowned expert in the field of "eating disorders," primarily anorexia and bulimia. From early 1978 until December, 1987, he was employed by the University of Toronto, first as a lecturer and later as a full professor. In November, 1987, plaintiff's certification to practice clinically was suspended for two years for professional misconduct involving sexual contact with one of his former patients at the University of Toronto. He was subsequently asked to resign from the university and he did so in December, 1987.

In early 1988, Lionel Rosen, M.D., a professor of psychiatry at the Michigan State University College of Human Medicine, contacted plaintiff regarding[185 MICHAPP 753] possible appointment to the university. Rosen advised plaintiff to write W. Donald Weston, Dean of the College of Human Medicine, and explain the circumstances regarding his suspension from clinical practice and his resignation from the University of Toronto. Plaintiff did so by letter February 28, 1988.

In April and May of 1988 plaintiff was interviewed by Weston and Donald Williams, chairman of the university's Department of Psychiatry, and on June 21, 1988, was offered a tenured position as a professor of psychiatry in the Colleges of Human and Osteopathic Medicine at a beginning annual salary of $56,000. At a meeting of the university's Board of Trustees on July 30, 1988, the board approved plaintiff's appointment as professor "with Tenure, effective September 1, 1988."

On January 16, 1989, plaintiff informed Weston and Williams that a new charge of sexual misconduct had been filed against him in Ontario. On January 20, 1989, Weston wrote Provost David Scott recommending that plaintiff's employment with Michigan State University be terminated. The letter stated in pertinent part:

In preemployment discussions with both me and Dr. Williams, the focus was on Dr. Garner's professional and ethical fitness.

* * * * * *

Dr. Williams and I each inquired of Dr. Garner regarding the possibility of other outstanding complaints of sexual inpropriety [sic ]. He denied the same and steadfastly maintained that the complaint which led to his resignation from the University of Toronto and the professional discipline meted out by the OBEP [Ontario Board of Examiners in Psychology] was an isolated instance and that his gorss [sic ] misjudgment was an aberration in an otherwise unblemished career as a psychologist. Dr. Williams specifically asked Dr. Garner whether he had ever had sexual relations with any other of his patients and Dr. Garner was unequivocal in his denial. He was clear in this point, the only point of concern that really mattered in our evaluation as to the viability of his candidacy.

* * * * * *

On Monday, January 16, 1989, Dr. Garner advised me that the OBEP had, on December 29, 1988, notified him of a new hearing of a charge of professional misconduct relating to an alleged sexual relationship with another of his former patients. He did not deny the charges. Dr. Garner further stated that he had intimate relations with a number of other former patients over the years.

[185 MICHAPP 754] On the same date Williams wrote to Weston recommending plaintiff's dismissal. In the letter, Williams stated that he telephoned plaintiff on the evening of January 16, inquiring about the new allegation of sexual misconduct, and that plaintiff admitted to him that the new allegations were true. The letter continued as follows:

I then reminded him that during his preemployment interviews I had asked him if he had had any other instances of sexual contact with his patients and he told me no. Dr. Garner then said that he thought I was asking if he had any other charges of sexual misconduct pending. I then asked him again whether he has had additional sexual contact with his patients. Dr. Garner then told me he had had sexual contact with a patient in 1983 and numerous sexual contact [sic ] with patients in the 1970's. Many of these contacts in the 1970's occurred 3-6 months after he had terminated treatment. I then asked him if I was to conclude that he had engaged in sexual relations with most of his patients or former patients he treated in the 1970's. Dr. Garner replied my conclusion was correct.

I then asked him why he had not told me these facts when I had, in fact, asked him about his sexual contact last Spring. Dr. Garner replied, "I was afraid I wouldn't get the job." I replied, "You're right--you wouldn't have."

[185 MICHAPP 755] Provost Scott requested that plaintiff attend a meeting on January 26, 1989, to discuss the letters which he had received regarding the new allegations of sexual misconduct. Present at the meeting were plaintiff, his attorney, Provost Scott and two members of the university's general counsel. Neither Weston nor Williams attended the meeting. According to plaintiff, the meeting consisted of plaintiff's being asked a series of questions which he answered to the best of his ability. He may have been asked for his side of the story. At no time, however, was plaintiff given the opportunity to confront his accusers, to cross-examine them, or to call witnesses in his own defense.

After reviewing plaintiff's remarks made during the January 26, 1989, meeting, conferring with Weston and Williams, consulting with the university's counsel, and meeting with the university's Board of Trustees, 1 Provost Scott, under authorization from the board, rescinded plaintiff's employment contract on February 6, 1989.

It is undisputed that the university established a policy, approved by the Board of Trustees on June 24, 1977, entitled "Dismissal of Tenured Faculty for Cause." The policy provides for full adversarial proceedings before termination, which the university[185 MICHAPP 756] in the instant case did not provide. Instead, the university chose to rescind plaintiff's contract.

When plaintiff's attempts to have the dispute resolved by the university's Committee on Faculty Tenure were rejected, 2 plaintiff filed a complaint for mandamus and other relief in the Ingham Circuit Court on March 21, 1989. At a show cause hearing held April 17, 1989, plaintiff testified that at no time was he given an opportunity to cross-examine his accusers or call witnesses on his own behalf. He also testified that, if granted a hearing, he would deny that he lied in his preemployment interviews or made any misrepresentations during the intitial interviews. Finally, plaintiff testified that, if granted a hearing, he would contest the allegation of Williams that, in a telephone conversation with Williams on January 16, 1989, plaintiff admitted to sexual misconduct with numerous former patients.

At the conclusion of the show cause hearing, the trial court found that plaintiff was granted tenure status by the university and that the Board of Trustees' policy on dismissal of tenured faculty for cause governed the dispute. Accordingly, the court issued a writ of mandamus ordering defendants to return plaintiff to his employment and the employment to continue until such time as action is taken pursuant to the university's policy on dismissal of tenured faculty for cause. By order dated June 16, 1989, this Court granted defendants' application for leave to appeal but denied stay of the trial court's order.

[185 MICHAPP 757] On appeal, defendants raise four issues which we have reformulated as five issues, hereinafter addressed.

I

Were defendants relieved of their duty to afford plaintiff

due process because plaintiff allegedly lied in his

preemployment interview, thereby affording defendants the

right to rescind plaintiff's employment contract?

We begin our analysis by stating the rules of law governing the issuance of mandamus. To obtain a writ of mandamus, "the plaintiff must have a clear legal right to the performance of the specific duty sought to be compelled and the defendants must have a clear legal duty to perform the same." State Bd. of Ed. v. Houghton Lake Community Schools, 430 Mich. 658, 666, 425 N.W.2d 80 (1988). In addition, the plaintiff must be without an adequate legal remedy. Cyrus v. Calhoun Co. Sheriff, 85 Mich.App. 397, 399, 271 N.W.2d 249 (1978). A trial court's decision to grant a writ of mandamus will not be reversed absent an abuse of discretion. The trial court's findings of fact underlying the granting of the writ will not be disturbed unless clearly erroneous. Michigan Waste Systems, Inc. v. Dep't of Natural Resources, 157 Mich.App. 746, 760, 403 N.W.2d 608 (1987), lv. den. 428 Mich. 900 (1987).

Defendants argue that plaintiff's otherwise existing right to a tenure hearing was abrogated because, under common law, defendants had the right to rescind plaintiff's contract upon learning that plaintif...

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