Joritz v. Univ. of Kan.

• Decision Date: 21 January 2022
• Docket Number: 123,086
• Citation: 61 Kan.App.2d 482,505 P.3d 775
• Parties: Catherine A. JORITZ, Appellant, v. UNIVERSITY OF KANSAS, Appellee.
• Court: Kansas Court of Appeals

61 Kan.App.2d 482

505 P.3d 775

Catherine A. JORITZ, Appellant,

v.UNIVERSITY OF KANSAS, Appellee.

No. 123,086

Court of Appeals of Kansas.

Opinion filed January 21, 2022.

Catherine A. Joritz, appellant pro se.

Derek T. Teeter and Michael T. Raupp, of Husch Blackwell LLP, of Kansas City, Missouri, for appellees.

Before Bruns, P.J., Green and Isherwood, JJ.

Green, J.:

Catherine A. Joritz appeals the district court's denial of her petition for judicial review filed under the Kansas Judicial Review Act (KJRA), in which she alleged that the University of Kansas wrongly terminated her tenure track employment. On appeal, Joritz asserts that the University violated its rules for evaluating a tenure candidate's progress toward tenure before terminating her tenure track employment for inadequate progress toward tenure. Based on this, she contends that in denying her petition for judicial review, the district court ignored the University's violations, made multiple errors of law, and made an error of fact. She also contends that the district judge who denied her petition for judicial review committed judicial misconduct. The University responds that there are procedural problems with Joritz' arguments and that Joritz' arguments are baseless.

Joritz has taken a scattershot approach to making her arguments in her briefs. Regardless of Joritz' pro se status, it is not our job to piece together Joritz' scattered and improperly raised arguments in her briefs. As the Seventh Circuit Court of Appeals persuasively pointed out when discussing appellants who include sequences of unreasoned arguments in their briefs, the court appropriately stated: "Judges are not like pigs, hunting for truffles buried in briefs." United States v. Dunkel , 927 F.2d 955, 956 (7th Cir. 1991). Judges should not have to scour an appellant's briefs or the record on appeal to understand the appellant's arguments. Estate of Moreland v. Dieter , 395 F.3d 747, 759 (7th Cir. 2005). Instead, "[a] brief must make all arguments accessible to the judges, rather than ask them to play archaeologist with the record." DeSilva v. DiLeonardi , 181 F.3d 865, 867 (7th Cir. 1999). That responsibility falls to the advocates "to make it easy for the court to rule in [their] favor." Dal Pozzo v. Basic Machinery Co., Inc. , 463 F.3d 609, 613 (7th Cir. 2006).

Joritz is not entitled to special treatment as a pro se appellant. Kansas caselaw establishes that Joritz' pro se status entitles her only to the liberal construction of arguments that are properly before us. Accordingly, she cannot avoid complying with appellate procedure because she is pro se. For if she were allowed to do so, she would gain an unfair advantage over the University because it has argued in its brief that these procedural deficits in her brief should be one of the grounds for affirming the district court's decision. For reasons set forth later, we affirm the district court's denial of Joritz' petition for judicial review.

FACTS

The University hired Joritz as an assistant professor in the Film and Media Studies (FMS) Department in 2012. Her job as an assistant professor was a tenure track position.

Before the University hired Joritz, she had worked in the film industry, specializing in animation, for many years. Also, before the University hired Joritz, she had emigrated to Germany, living there for many years. Once at the University, Joritz continued her work in animation. In addition to teaching FMS courses, some on animation, Joritz started researching Lotte Reiniger; Reiniger was a 20th century German silhouette animator, whom Joritz intended to write a book about. Significantly, Joritz' research on Reiniger was part of her efforts to obtain tenure at the University.

A Review of the Relevant Agency Rules

Under the FMS Department's rules on Promotion and Tenure Procedure and the University's Faculty and Senate Rules and Regulations, a tenure candidate must undergo an initial review, commonly called a Progress Toward Tenure Review (PTTR), of the candidate's teaching, service, and research work before the candidate applies for tenure. For a FMS Department tenure candidate specifically, the FMS Department's rules state that a candidate seeking tenure status is "expected to engage in scholarly and/or creative research." Concerning books, the rules explain that "[s]cholarly books and monographs shall be considered important evidence of research capability." But the rules further state: "Scholarship that merits tenure is defined as a researched or creative monograph, or a combination of published articles, edited books, or research-based textbooks equivalent to a monograph in quantity and quality."

As for the FMS Department's review procedures, the FMS Department's Initial Review Committee (IRC) completes the PTTR. In doing so, the IRC evaluates a tenure candidate's efforts in teaching, service, and research based, in part, on the candidate's dossier, which details the candidate's historical work and University work as an assistant professor. Also, during the PTTR process, the IRC "shall" seek the opinions of "outside reviewers," including faculty and students, about the candidate's qualifications. Yet, in completing the tenure candidate's PTTR, the candidate's efforts in teaching, service, and research are not given the same weight. An FMS Department's tenure candidate's teaching evaluation constitutes 40% of the candidate's review. The candidate's research evaluation constitutes 40% of the candidate's review, while the candidate's service evaluation constitutes 20% of the candidate's review.

In the end, the IRC rates a tenure candidate's performance in teaching, service, and research as excellent, very good, good, marginal, or poor before making a recommendation—by simple majority—whether the candidate has made enough progress toward tenure to continue the candidate's tenure track employment. After doing this, the IRC forwards its recommendation to the FMS Department's committee as a whole, which does not vote on the rating of performance, but only on a recommendation of whether the candidate should continue their tenure track employment. The committee as a whole prepares the PTTR candidate's evaluation form before forwarding it to the FMS Department Chair. The Chair must then "indicate separately, in writing, whether he or she concurs or disagrees with the recommendations of the committee of the whole." And after this, the FMS Department Chair should notify the candidate of the IRC's recommendation.

When the IRC gives a tenure candidate a favorable recommendation, that recommendation is automatically forwarded to the College of Liberal Arts and Sciences' College Committee on Appointments, Promotion, and Tenure (CCAPT) for approval. The IRC also forwards its recommendations to the CCAPT (1) when the FMS Department Chair seeks further review of the IRC's favorable or unfavorable recommendation or (2) when the tenure candidate seeks review of the IRC's unfavorable recommendation. Regardless of why the CCAPT is reviewing the IRC's recommendation, the CCAPT engages in an independent review that neither affirms nor reverses the IRC's PTTR recommendations.

According to the College of Liberal Arts and Sciences' bylaws, during the CCAPT's review, the CCAPT must "[c]onsider all recommendations for advancement in academic rank and granting of continuous tenure for members of the College Faculty." Also, according to the College of Liberal Arts and Sciences' PTTR purpose statement, the purpose of CCAPT's review is "to determine whether departmental standards of evaluation and assessment of the individual are in line with those of the College and University promotion and tenure committees." In doing so, its "special concern" involves reviewing cases where it appears the department gave the tenure candidate a favorable review but the CCAPT "would [have] evaluate[d] the candidate more critically."

Ultimately, the CCAPT makes its own recommendation on whether a particular tenure candidate has made sufficient progress toward tenure, and it forwards this recommendation to the College of Liberal Arts and Sciences' Dean. After this, the Dean writes a letter to the tenure candidate's department chair, notifying the chair of the CCAPT's recommendation on the candidate's continued employment with the University. And after this, the department chair should notify the candidate of the CCAPT's decision.

When the CCAPT recommends termination of a candidate's tenure track employment, the Dean should also send the CCAPT's recommendation to the Provost. Upon receiving this letter, the College of Liberal Arts and Sciences' PTTR purpose statement provides that the Provost should notify the unsuccessful tenure candidate "in writing of the [CCAPT's] recommendation and the reasons for it" before forwarding this recommendation to the Chancellor for final agency action. In the Provost's letter, however, the Provost must also tell the unsuccessful tenure candidate about the right to appeal to the Faculty Rights Board (FRB).

Should an unsuccessful tenure candidate appeal to the FRB, the University's Faculty and Senate Rules and Regulations states that the candidate must prove that the CCAPT erred by recommending that the University terminate his or her tenure-track employment. Those rules further provide that during the unsuccessful tenure candidate's appeal, the FRB has a limited review:

"The Function of the FRB in the promotion and tenure context is not to review the merits of promotion and tenure recommendations, nor to substitute its judgment on the merits, but rather to identify specifically defined appealable errors that undermine the evaluation process itself and to recommend appropriate accommodations or adjustments to the Chancellor for consideration in making the final promotion and tenure decision."

As indicated by the preceding rule, after the FRB engages in its limited review, it forwards its written recommendation to the Chancellor for...