Mendez v. Trustees of Boston University

• Decision Date: 18 July 1972
• Citation: Mendez v. Trustees of Boston University, 362 Mass. 353, 285 N.E.2d 446 (Mass. 1972)
• Parties: Violeta MENDEZ v. TRUSTEES OF BOSTON UNIVERSITY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 446

285 N.E.2d 446

362 Mass. 353

Violeta MENDEZ v.TRUSTEES OF BOSTON UNIVERSITY et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued May 4, 1972.

Decided July 18, 1972.

Alan I. Silberberg, Brighton (Robert S. Cohen, Boston, with him), for plaintiff.

Carl H. Amon, Jr., Boston, for defendants.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.

BRAUCHER, Justice.

This is a bill in equity for declaratory and other relief.The plaintiff was employed by the defendants as a nursing instructor for the academic year beginning September 1, 1970, and was dismissed when she failed to appear until September 10, 1970.The trial judge made findings, rulings, and order for decree, and the plaintiff appeals from the final decree.The evidence is reported.We summarize the judge's findings.

The plaintiff was employed under term contracts for three academic years from 1967 to 1970.At a faculty meeting on May 15, 1970, she was advised that she was required to report to the university on September 1, 1970.On June 2, 1970, she was engaged for the academic year beginning September 1, 1970.As she well knew, it was essential for her to attend faculty discussion during the week of September 1, 1970, regarding changes in methodology.She chose not to attend, and wilfully and intentionally absented herself until September 10, 1970.Her absence was not due to illness, sudden emergency, or conditions beyond her control.She did not inform the university about her absence or her whereabouts.The defendants tried to locate her by mail, telephone, and visit to her last known address, but she had moved without notifying the university.On September 9, 1970, the dean of the nursing school caused written notice to be sent to her that her contract was at an end because of her failure to appear.

The judge ruled that the plaintiff's conduct was a serious and substantial breach of her contract and an abandonment of the services required of her and justified the university in terminating the contract.He also ruled that she was not entitled to an 'administrative grievance review' under the university's 'Faculty Manual.'The final decree declared that she had abandoned her contract, that the university properly terminated it, that she was not a member of the faculty for the academic year beginning September 1, 1970, that she had no right to any administrative grievance review or to restoration to any position on the faculty, and that the individual defendants, officers of the university, had no liability to her.

The plaintiff argues that the Faculty Manual was part of her contract and that the judge erroneously denied her rights granted her thereby.She also argues that her breach was not so substantial as to justify termination of the contract, and that her duties could not be increased by what she learned before the contract was made.She does not assert that she demanded administrative grievance review before she began this suit in March, 1971.

1.The written contract of the parties is a one page printed 'Faculty Appointment Form' which obviously does not spell out the details of their agreement, and the defendants conceded at the argument that the 'Faculty Manual' was part of the contract.CompareRhine v. International Young Men's Christian Assn. College, 339 Mass. 610, 611, 162 N.E.2d 56;Hillis v. Meister, 82 N.M. 474, 475--477, 483 P.2d 1314, and cases cited.The portion of the Faculty Manual attached to the plaintiff's bill provides, 'When term contracts are to be broken for cause (incompetence, gross insubordination; immorality; conduct clearly inimical to the best interests of the University), at least thirty days must be allowed between the time of serving due notice, with written charges, and the termination date.If desired by the faculty member, a fair hearing before a committee constituted according to the rules of the American Association of University Professors shall be granted.'A revised September, 1970, version introduced in evidence provides, 'When termination of services of . . . a person holding a term appointment is predicated upon gross neglect of duties or on immorality or other applicable cause, the faculty member may be suspended immediately if harm to himself or others is threatened by his continuance.'The revised manual provides for sixty days notice of termination.Suspension is to be with pay.After preliminary proceedings, including formulation of 'a detailed statement of the grounds for the proposed dismissal,''formal proceedings' begin with a letter transmitting a copy of the statement and informing the faculty member that he may request a hearing.

It is clear that the...