Kern v. Palmer College of Chiropractic

• Decision Date: 21 November 2008
• Docket Number: No. 06-1054.,06-1054.
• Citation: 757 N.W.2d 651
• Parties: Gregory KERN, Appellant, v. PALMER COLLEGE OF CHIROPRACTIC, Robert Percuoco, Guy Riekeman, and Kevin McCarthy, Individually, Appellees.
• Court: Iowa Supreme Court

757 N.W.2d 651

Gregory KERN, Appellant, v. PALMER COLLEGE OF CHIROPRACTIC, Robert Percuoco, Guy Riekeman, and Kevin McCarthy, Individually, Appellees.

No. 06-1054.

Supreme Court of Iowa.

November 21, 2008.

Jennie L. Clausen of Cartee & Clausen Law Firm, P.C., Davenport, for appellant.

Robert D. Lambert of Bittner, Lambert & Werner, Davenport, for appellees Palmer College of Chiropractic and Robert Percuoco.

Brendan T. Quann and Joshua P. Weidemann of O'Connor & Thomas, P.C., Dubuque, for appellee Guy Riekeman.

Earl A. Payson of Earl A. Payson, P.C., Davenport, for appellee Kevin McCarthy.

HECHT, Justice.

In this case, a discharged employee sued his former employer for breach of an employment contract, and sued three of the employer's agents for tortious interference with that contract. The district court concluded the termination was, as a matter of law, for cause and granted summary judgment to all of the defendants. We conclude the district court erred in granting summary judgment to the employer and one of the three individual defendants.

I. Factual and Procedural Background.

A reasonable fact-finder viewing the summary judgment record in the light most favorable to the plaintiff, Dr. Gregory Kern, could find the following facts. Kern was employed as an assistant professor by Palmer College of Chiropractic. A written contract established the term of his employment from October 1, 1995, to September 30, 2000. The parties fully incorporated, as an "integral and binding part" of the contract, the 1988 Palmer College Faculty Handbook, which stated the terms and conditions of employment for all Palmer College faculty members.

The faculty handbook declared the responsibilities of Palmer faculty members, detailed the internal procedural protections available to any aggrieved faculty member, and prescribed the grounds for termination of faculty members' employment. Section 6.61 of the handbook addressed the grounds for termination:

Dismissal from appointment may be effected by the College for the following causes:

1. Conduct seriously prejudicial to the College through conviction of an infraction of law or through moral turpitude.

2. Willful failure to perform the duties of the position to which the faculty member is assigned or willful performance of duty below accepted standards.

3. Breach of College regulations adversely affecting the College.

During a faculty meeting attended by Kern on November 30, 1999, Dr. Donald Gran, Kern's immediate supervisor, requested all faculty members draft twenty-five questions suitable for inclusion in the national chiropractic board examination. Gran described the proper formatting for the questions, which were to be returned to Gran in an electronic format. The task of writing such questions was not foreign to the Palmer faculty, but in previous years Kern and several other professors had routinely submitted proposed questions in handwritten form. Gran also requested all faculty members under his supervision, including Kern, draft and submit to him a statement of professional goals for the year 2000. An email from Gran to faculty members provided a model of the format to guide them in developing appropriate goals.¹ In February 2000, Gran reminded the faculty that the proposed national board questions were due in electronic form by March 30.

On March 22, 2000, Gran's secretary, Sharon Boyle, sent an email reminder to several faculty members, including Kern, who had not delivered to Gran their statements of professional goals. The email set a new deadline of March 31 for completion of the task, and reiterated the four criteria for appropriate goals:

1. List at least one primary goal you will achieve by December 2000 relating to your classroom teaching, research/scholarship, and service to the college.

2. For the goals listed, indicate the anticipated administrative and/or collegial support necessary to accomplish the goal.

3. For the goals listed, describe the tangible end product which signifies the goal has been accomplished.

4. For the goals listed, describe the anticipated timeline for any major milestones in accomplishing your goals.

Gran sent additional emails on March 28 and 29 reminding faculty members who had not submitted goals that he expected completion of the task "without fail" on March 31. Kern submitted hand-written national board exam questions and a single goal to Gran sometime between April 1 and April 4. Kern articulated his goal as follows:

1. My primary goal to be achieved by December 2000 is to restore all departments campus wide. These goals carry through to teaching, research/scholarship, and especially service to the college.

2. Anticipated administrative help in this goal is very minimal, anticipated collegial support, i.e. faculty is going to have to be huge.

3. The tangible end product to this goal is clearly better communication, better morale, and much better quality for the students & faculty.

4. My anticipated timeline for this goal is: however long it takes.

(Emphasis in original.) Kern's reference in the statement to the "restoration of all departments" adverted to a decision by Palmer's administration to shift from a departmental curriculum to a "year-based" curriculum in mid-to-late 1999. Kern was dissatisfied with the reorganization of the curriculum and believed it would negatively affect Palmer students. He had openly expressed his doubts about the suitability of the new organizational structure in questions posed to Dr. Guy Riekeman, the president of the college, during a meeting of Palmer's faculty senate in the spring of 2000. Dr. Riekeman responded that anyone who disagreed with the reorganization could choose to leave.

Kern perceived a negative response from Palmer's administrators after that meeting of the faculty senate. One of Kern's patients was an acquaintance of Dr. Robert Percuoco, Palmer's Dean of Academic Affairs.² The patient carried a message to Kern for Percuoco, advising Kern to "watch his back" and informing Kern that his days at Palmer were numbered because Percuoco would "see him fired."³

Soon thereafter, Gran, who was supervised by Percuoco, confronted Kern and placed a record in his personnel file warning against excessive use of sick days. Kern was alarmed by this action as he had used fewer sick days than the faculty handbook authorized for that year. Gran also took issue with the substance of Kern's stated goal, and returned to Kern his proposed national board questions because they were not properly formatted. In an April 7 email requesting that Kern resubmit the questions electronically that day, Gran advised Kern to contact Sharon Boyle for assistance with the formatting if assistance was needed. Kern testified at his deposition that he accepted the offer of assistance and turned his questions into Boyle for formatting on more than one occasion after receiving notice of the electronic format requirement. On April 10, Gran sent a memorandum of reprimand to Kern stating properly formatted exam questions had not been received. Kern viewed Gran's responses as harassment because he knew other professors who were not computer-literate had submitted proposed questions in handwriting and were accommodated with secretarial assistance, and those professors were not reprimanded.

On April 13, 2000, Kern met with Gran and Dr. Kevin McCarthy, the Vice President of Academic Affairs for Palmer College. McCarthy angrily confronted Kern about the substance of Kern's goal to return to the former curriculum structure. Kern felt physically threatened by McCarthy's demeanor during the meeting. Although various email messages sent to Kern after the meeting suggest McCarthy and Gran expected Kern would prepare a new statement of goals, Kern asserted in his deposition testimony that McCarthy expressly told him during the meeting a new statement of goals would not be required.

Kern did not submit a new statement of goals after the April 13 meeting. After several subsequent email messages from college administrators to Kern inquiring about the status of his proposed exam questions and his goals, McCarthy sent a written ultimatum to Kern directing him to submit both to Gran by noon on June 14, 2000, or suffer dismissal. McCarthy sent copies of this ultimatum to Riekeman, Percuoco, and Gran.

On June 14, a few minutes before the noon deadline, Kern submitted to Gran a handwritten group of proposed national board exam questions and a note. The message on the note reminded Gran that Kern had previously submitted his statement of goals, and offered to provide Gran another copy if Gran had misplaced it. On June 19, McCarthy sent Kern a letter dismissing him from employment for "willful failure to perform the duties of the position to which the faculty member is assigned and/or willful performance of duty below accepted standards."

Kern appealed his dismissal to the faculty judiciary committee as authorized in the faculty handbook. A grievance hearing was held on August 29, 2000, before the committee consisting of eight members. Following the hearing during which both Kern and McCarthy testified, the faculty judiciary committee issued its recommendation to Riekeman on September 1, 2000. Addressing only the college's claim that Kern's discharge was justified by his failure to timely submit satisfactory professional goals in a proper format, the committee found that the "totality of evidence presented during the hearing, in the opinion of the committee, did not provide clear and convincing basis to justify the rationale indicated in the letter of dismissal...." The committee therefore found meritorious Kern's appeal of the grievance and recommended his dismissal from the faculty be rescinded. President Riekeman disagreed with the committee's recommendation, and issued a written decision on October 9, in which he found Kern's employment was properly terminated for violation of section 6.6 of the Faculty...