Kakaes v. George Washington University

• Decision Date: 26 September 1996
• Docket Number: No. 94-CV-1046.,94-CV-1046.
• Citation: 683 A.2d 128
• Parties: Apostolos KAKAES, Appellant, v. The GEORGE WASHINGTON UNIVERSITY, Appellee.
• Court: D.C. Court of Appeals

683 A.2d 128

Apostolos KAKAES, Appellant, v. The GEORGE WASHINGTON UNIVERSITY, Appellee.

No. 94-CV-1046.

District of Columbia Court of Appeals.

Argued March 26, 1996.

Decided September 26, 1996.

Thomas J. Gagliardo, for appellant.

Curtis A. Ritter, with whom Mary K. Qualiana and Sadhna Govindarajulu, Washington, DC, were on the brief, for appellee.

Before FERREN, STEADMAN, and SCHWELB, Associate Judges.

SCHWELB, Associate Judge:

Dr. Apostolos Kakaes brought this action in the Superior Court against George Washington University, alleging that the University had unlawfully refused to grant him tenure. He claimed that the University failed to provide him with timely notice of a final and definitive denial of his application for a tenured appointment, as required by the University's Faculty Code.¹ The trial judge granted the University's motion for summary judgment. We reverse.

I. BACKGROUND

In September 1987, the University appointed Dr. Kakaes to its faculty as an Assistant Professor in the Department of Electrical Engineering and Computer Science ("EECS") within the School of Engineering and Applied Sciences ("SEAS"). The appointment was "tenure-accruing," which meant that Dr. Kakaes would eventually be eligible for consideration for tenure. On June 28, 1993, the University notified Dr. Kakaes by letter that "you will not be granted tenure at the conclusion of your current appointment." The notice went on to state, however, that the matter would be submitted to the Board of Trustees and that "you will be notified of the outcome as soon as possible." This case turns on the question whether the foregoing notice, which Dr. Kakaes received prior to any decision by the Board of Trustees, adequately apprised Dr. Kakaes, as required by the Faculty Code, that he "will not be granted tenure."

A. The Faculty Code.

A proper understanding of this somewhat esoteric dispute requires familiarity with the applicable provisions of the Faculty Code. The Code provides that "Assistant Professors shall be appointed for a period of not more than three years and may be reappointed, with or without tenure, for one or more additional periods." Code § IV.A.4.1.b. "All appointments or reappointments to regular, active-status positions, except for those that confer tenure, shall be for a specified term." Code § IV.A.3.1.a. The total of such terms, however, "shall not exceed seven years." Code § IV.A.3.1.b. Under the Code, therefore, the professor's employment is terminated if tenure is not granted after seven years.

Decisions regarding tenure "shall normally follow faculty recommendations," unless the University administration "nonconcurs" and offers "compelling reasons" for its nonconcurrence. Code Procedures § B.3.² In the event of nonconcurrence, "variant or nonconcurring recommendations" by the administration are referred to the Executive Committee of the Faculty Senate, which "may seek information and advice and make recommendations to the faculty or the appropriate unit thereof and to the appropriate administrative officers." Code Procedures § B.4. Some attempt to achieve consensus between the faculty and the administration is apparently contemplated, but

if concurrence cannot be obtained after opportunity for reconsideration in light of the recommendations of the Executive Committee, the recommendations of the appropriate administrative officers, accompanied by the recommendation of the faculty and the report of the Executive Committee, shall be transmitted to the Board of Trustees through the President.

Id.

The Code also contains a notice provision which states, in pertinent part, that

a faculty member of the rank of assistant professor or higher who will not be granted tenure at the end of the final year of his or her maximum term of appointment shall be so notified in writing no later than June 30 preceding the year in which his or her appointment will expire.... Any such faculty member who is not so notified shall acquire tenure at the end of the term.

Code § IV.A.3.1.c. Dr. Kakaes' principal contention is that the University failed to comply with this provision.

B. Dr. Kakaes' Tenure Application.

In September 1992, at the beginning of the sixth year of his maximum term of appointment, Dr. Kakaes submitted an application for tenure and promotion to the EECS Personnel Committee. In November 1992, the Personnel Committee unanimously recommended to the Dean of the SEAS, Gideon Frieder, that Dr. Kakaes be granted tenure and promotion. Dean Frieder, however, disagreed, and after explaining the reasons for his nonconcurrence, he requested the Personnel Committee to reconsider its recommendation. On March 24, 1993, the Committee met to consider Dean Frieder's request, but again voted to recommend that Dr. Kakaes receive a tenured appointment. The views of the Personnel Committee and of Dean Frieder were thus in conflict.

On May 14, 1993, with the impasse still unresolved, the University's Vice President for Academic Affairs, Roderick French, advised Dr. Kakaes by letter that Kakaes had been reappointed for the 1993-94 academic year. Dr. French further advised Dr. Kakaes that he would be notified by June 30, 1993 whether he had been recommended to the Board of Trustees for reappointment with continuous tenure.

On May 15, 1993, Dean Frieder formally notified Vice President French that he did not concur with the recommendation of the EECS Personnel Committee. Vice President French conveyed Dean Frieder's nonconcurrence to the Executive Committee of the Faculty Senate. On June 21, 1993, after reviewing Dr. Kakaes' application, the Executive Committee concluded that Dr. Kakaes should not be granted tenure. In the Executive Committee's view, Dean Frieder had presented compelling reasons for his nonconcurrence with the Personnel Committee's recommendation. The Executive Committee requested the Personnel Committee to withdraw its recommendation in Dr. Kakaes' favor. At a September 1993 meeting, however, the Personnel Committee adhered to its original position, and the impasse between Dr. Kakaes' faculty colleagues and the University administration remained unresolved.

Meanwhile, by letter dated June 28, 1993,³ Vice President French notified Dr. Kakaes that

in accordance with section IV.A.3.1.c of the Faculty Code, I am notifying you that you will not be granted tenure at the conclusion of your current appointment. This is due to the fact that your dean did not concur with the departmental recommendation regarding tenure. Consistent with sections B.3 and 4 of the Code Procedures, I referred the matter to the Executive Committee of the Faculty Senate for its consideration. The President and I are in the process of transmitting the report of the Executive Committee to the Board of Trustees for its consideration. You will be notified of the outcome as soon as possible.

(Emphasis added). On the same day, Vice President French advised the chairman of the EECS department by memorandum that

on advice of counsel, I have sent a letter to Dr. Kakaes informing him that as of this date he has not been awarded tenure at the conclusion of his current contract.... By so informing Dr. Kakaes, the question of his ultimate tenuring or termination remains to be resolved .... I trust you would agree that faculty should be awarded tenure only by virtue of affirmative action by the Board of Trustees. For a variety of reasons, this was not possible to accomplish ... this year by June 30th....

(Emphasis added).

On September 7, 1993, the University's Assistant Vice President for Legal Matters advised Dr. Kakaes' attorney that "there had not yet been any final action regarding Professor Kakaes." On December 1, 1993, Stephen Trachtenberg, the President of the University, transmitted Dr. Kakaes' tenure file to the Chairman of the Board of Trustees. President Trachtenberg stated in his letter of transmittal that he believed that the matter required review by the Board.

On February 10, 1994, seven months after Dr. Kakaes received the purported notice of non-renewal, the Board of Trustees voted to uphold Dean Frieder's nonconcurrence, thereby denying Dr. Kakaes' application for tenure.

C. The Proceedings in the Trial Court.

On October 22, 1993, more than three months prior to the action of the Board of Trustees, Dr. Kakaes filed this suit against the University in the Superior Court, alleging breach of contract. Dr. Kakaes prayed the court, inter alia, for declaratory relief and for an order requiring the University to grant him tenure. Dr. Kakaes alleged that he was entitled to tenure because Vice President French's letter of June 28, 1993 was legally insufficient to constitute the required notice that tenure will not be granted. He alleged that the Board of Trustees had not acted on his tenure application, that no final decision regarding tenure had as yet been made, and that therefore "the notice requirements of Sections V.B.1.c and IV.A.3.1.c of the Faculty Code had not and could not have been ... complied with."

After conducting substantial discovery, the parties filed cross-motions for summary judgment. In an order filed on July 5, 1994, the trial judge held, inter alia, that "nowhere in the Code does ... a requirement exist that the notice of a denial of tenure not be given until the Board of Trustees has acted." Apparently concluding that the Faculty Code was unambiguous and that the notice which the University had provided to Dr. Kakaes complied with the Code as a matter of law, the judge granted the University's motion for summary judgment and denied Dr. Kakaes' motion. This appeal followed.

II. LEGAL ANALYSIS

A. Scope of Review.

The question whether the trial court properly granted summary judgment in favor of the University⁴ is one of law. Accordingly, our consideration of that question is de novo, and we must undertake an independent review of the record to determine whether the University has shown that there is no...