Gottlieb v. Tulane University of Louisiana

• Decision Date: 12 July 1988
• Docket Number: No. CA-8755,CA-8755
• Citation: 529 So.2d 128,48 Ed. Law Rep. 717
• Parties: Dr. Marise S. GOTTLIEB v. TULANE UNIVERSITY OF LOUISIANA, the Administrators of the Tulane Educational Fund, and Dr. John J. Walsh, Individually and as Chancellor of the Tulane Medical Center. 529 So.2d 128, 48 Ed. Law Rep. 717
• Court: Court of Appeal of Louisiana — District of US

Page 128

529 So.2d 128

Dr. Marise S. GOTTLIEB v. TULANE UNIVERSITY OF LOUISIANA, the Administrators of the Tulane Educational Fund, and Dr. John J. Walsh Individually and as Chancellor of the Tulane Medical Center.

No. CA-8755.

529 So.2d 128, 48 Ed. Law Rep. 717

Court of Appeal of Louisiana Fourth Circuit.

July 12, 1988.

Writ Denied Nov. 11, 1988.

Mack E. Barham, Margaret E. Woodward, Gail N. Wise, Barham & Churchill, New Orleans, for plaintiff-appellant, Dr. Marise S. Gottlieb.

David L. McComb, James A. Babst, Kevin L. O'Dea, Julie D. Livaudais, Chaffe, McCall, Phillips, Tolar & Sarpy, New Orleans, for defendants-appellees, Tulane University of Louisiana, the Administrators of the Tulane Educational Fund, and Dr. John J. Walsh.

Before SCHOTT, KLEES and WILLIAMS, JJ.

KLEES, Judge.

Plaintiff, Dr. Marise S. Gottlieb, brought an action for breach of contract against defendants, Tulane University, the Administrators of the Tulane Educational Fund and Dr. John J. Walsh, Chancellor of the Tulane Medical Center, alleging that Tulane failed to honor a promise concerning an award of tenure. After a jury trial, judgment was rendered in favor of Tulane. From that judgment, plaintiff appeals.

In 1974, plaintiff, an M.D. epidemiologist, held a tenure track position as assistant professor in the Department of Community Medicine at Rutgers University Medical School. In the Fall of 1974, plaintiff's husband, Dr. Arthur Gottlieb, accepted the position as chairman of the Department of Microbiology and Immunology at the Tulane University School of Medicine. Shortly before plaintiff's husband accepted his new department chairmanship, plaintiff came to New Orleans and began discussions with Tulane concerning employment opportunities for herself. She met with Dr. Dorothy Clemmer of the School of Public Health and Dr. Hans Weill of the Pulmonary Disease Section of the School of Medicine. ¹ At the time, plaintiff was seeking a full-time faculty position which included teaching and research duties. In November, 1974, after plaintiff's interview with Dr. Weill and Dr. Clemmer, and after Dr. Arthur Gottlieb accepted his new position at Tulane, Chancellor Walsh advised Dr. Arthur Gottlieb that he did not see any problem in recommending plaintiff for an appointment in the School of Public Health with additional duties in the Pulmonary Disease Section of the School of Medicine and the Louisiana State Department of Health. Plaintiff again visited Tulane in January, 1975 and personally met Chancellor Walsh and faculty members of the School of Public Health. She had no further discussions with Dr. Walsh after that meeting until after she arrived at Tulane in mid-summer of 1975. Plaintiff accepted a full-time dual appointment as an associate professor in the School of Medicine and the School of Public Health in February, 1975. Along with this dual appointment, plaintiff was granted time allowances for work at the Louisiana Department of Health and the Louisiana Tumor Registry.

In late February 1975, while Dr. Arthur Gottlieb was making new faculty appointments for his department, he learned that Tulane Medical Center used "special" appointments for all faculty members other than department chairs and deans. A "special" appointment, as opposed to a "regular" appointment, was one that did not give tenure nor lead to tenure. After learning of this, Dr. Arthur Gottlieb called plaintiff in New Jersey and told her there was a problem with her recent dual appointment. Dr. Arthur Gottlieb then met with Chancellor Walsh to relate plaintiff's concerns about her appointment to him. Chancellor Walsh explained to Dr. Arthur Gottlieb that the use of the "special" appointment was an administrative device which Tulane began using in 1971 to avoid the commitment of university funds, the availability of which Tulane was uncertain. He advised Dr. Arthur Gottlieb that all faculty appointments in the Tulane Medical Center, with the exception of deans and department chairmen, were deemed "special" ones. Chancellor Walsh also told plaintiff's husband that in the future, all special appointments would be considered for conversion to regular appointments and that he anticipated plaintiff would proceed successfully through the review process and be converted to a regular appointment. Plaintiff claims and Tulane denies, that at this meeting in February, 1975, Chancellor Walsh also promised Dr. Arthur Gottlieb that his wife would have automatic tenure in four years. This alleged promise is the basis of this suit.

Although plaintiff accepted the dual appointment in February, 1975 and began teaching August 1, 1975, she did not receive a letter confirming her special appointment until October, 1975. Included with the confirmation letter was the Tulane University Senate Statement on Faculty Membership, Tenure, Retirement, Freedoms and Responsibilities.

In 1977, in response to a Tulane University Senate directive, the Medical Center began reviewing all special appointments to determine the propriety of converting them to regular appointments. While there exists controversy between the parties as to whether plaintiff's primary appointment was in the School of Medicine or in the School of Public Health, the fact is she was never converted to a regular appointment by either school. In June 1979, the faculty of the School of Public Health unanimously recommended that plaintiff be given a one-year terminal appointment for the academic year 1979-80. After completing her 1979 terminal appointment at the School of Public Health and her 1979 part-time appointment at the School of Medicine, the School of Medicine notified plaintiff that it converted her from Associate Professor to a newly created non-tenured position of Research Professor. This suit followed.

After a trial on the merits, the jury answered two special interrogatories in delivering its verdict. To the first, "Did Dr. Marise S. Gottlieb have a contract for tenure with Tulane University?", the jury answered yes. To the second, "Did Tulane breach its contract for tenure with Dr. Marise S. Gottlieb?", the jury answered no. In response to what plaintiff believed to be inconsistent answers to jury interrogatories, she filed a Motion for Judgment Notwithstanding a Verdict, which the trial judge subsequently denied. The trial judge then, in accordance with the jury's verdict, rendered judgment in favor of Tulane. Plaintiff appeals. We agree with the trial court's judgment dismissing Tulane University.

On appeal, plaintiff argues that in light of the jury's finding that a contract for tenure existed between plaintiff and Tulane, the jury's negative answer to the second interrogatory is clearly erroneous. Plaintiff argues the evidence does not support the jury's finding that the contract for tenure was not breached. Plaintiff offers as evidence to support her contention that the contract for tenure was breached, the undisputed fact that she was neither awarded tenure nor converted to a tenure track appointment.

At trial in the instant matter, the trial judge correctly stated, "The total issue is whether or not this woman was hired by Tulane with a promise of tenure." Plaintiff's claim that she has a contract for tenure is based solely on an alleged promise made by Chancellor Walsh to Dr. Arthur Gottlieb at a meeting in February, 1975 in which Chancellor Walsh unconditionally guaranteed Dr. Arthur Gottlieb that plaintiff would have tenure in four years. Plaintiff contends Chancellor Walsh, the highest ranking administrator at Tulane Medical Center, possessed the apparent authority to make such a promise and that she reasonably relied on his promise when she accepted her appointment at Tulane Medical Center in 1975.

The doctrine of apparent authority is a judicially created concept of estoppel which operates in favor of a third party seeking to bind a principal for the unauthorized act of an apparent agent. Broadway v. All-Star Insurance Corp., 285 So.2d 536 (La.1973). As the Louisiana Supreme Court has previously held, the principal will be bound for the agent's actions if the principal has given an innocent third party a reasonable belief the agent had the authority to act for the principal. Further, a third party seeking to benefit from the doctrine of apparent authority may not blindly rely upon the assertions of an agent. He has a duty to inquire into the nature and extent of the...