Muth v. Board of Regents of Southwest Missouri State University, 19367

• Decision Date: 08 November 1994
• Docket Number: No. 19367,19367
• Parties: 95 Ed. Law Rep. 1141 Helen MUTH, Appellant, v. The BOARD OF REGENTS OF SOUTHWEST MISSOURI STATE UNIVERSITY, Respondent.
• Court: Missouri Court of Appeals

Page 744

887 S.W.2d 744

95 Ed. Law Rep. 1141

Helen MUTH, Appellant, v. The BOARD OF REGENTS OF SOUTHWEST MISSOURI STATE UNIVERSITY,

Respondent.

No. 19367.

Missouri Court of Appeals,

Southern District,

Division Two.

Nov. 8, 1994.

Rehearing Denied Nov. 30, 1994.

Richard D. Crites, Springfield, for appellant.

John F. Black and John D. Hammons, Jr., Ellis, Ellis & Black, P.C., Springfield, for respondent.

CROW, Judge.

Plaintiff, Helen Muth, commenced this action October 7, 1987, against The Board of Regents ("Regents") of Southwest Missouri State University ("SMSU"). During the ensuing six years, the case languished through several periods of dormancy. On January 6, 1994, it was pending on Plaintiff's second amended petition and Regents' answer thereto. On that date, the trial court granted a motion by Regents for summary judgment. Plaintiff appeals.

An account of the pertinent facts is essential in addressing the issues. We have had to mine the facts from the 411-page record, unaided by Plaintiff's brief. The 16-page "Statement of Facts" in Plaintiff's brief consists wholly of a synopsis of the allegations in her eight-count second amended petition, which levels multitudinous constitutional attacks against the "employment policies and practices" and "tenure evaluation and determination procedures" at SMSU.

We would have been justified in dismissing Plaintiff's appeal because her brief lacks an acceptable statement of facts as required by Rule 84.04(a)(2) and (c), Missouri Rules of Civil Procedure (1994). White v. White, 846 S.W.2d 212, 213 (Mo.App.S.D.1993); Pemiscot County Memorial Hospital v. Missouri Labor and Industrial Relations Commission, 825 S.W.2d 61 (Mo.App.S.D.1992). However, Regents' brief contains a statement of facts that has helped us marshal the facts. We infer Plaintiff does not challenge Regents' version of the facts, as Plaintiff ignores the subject in her reply brief.

We shall therefore set forth the facts as we have gleaned them from the sources identified above. In doing so, we are mindful that inasmuch as Plaintiff is the party against whom summary judgment was entered, we review the record in the light most favorable to her. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993).

On May 19, 1982, SMSU hired Plaintiff as an assistant professor in the Department of Art and Design for academic year 1982-83. The letter confirming her appointment stated she could be reappointed on an annual basis until she received tenure if such was the recommendation of the department and the administration. The letter further stated that the regulations concerning faculty appointment, reappointment, tenure, promotion and merit pay appeared in the "Faculty Handbook 1982-84."

Plaintiff was reappointed for the 1983-84 and 1984-85 academic years.

By letter dated April 16, 1985, Norman Annis, Head of the Department of Art, informed Plaintiff that because of "the decreasing number of B.S. in Education art majors" and the declining enrollment in currently scheduled art education courses, he was recommending to the Dean of the College of Arts and Letters that Plaintiff "not be reappointed beyond the 1985-86 academic year."

At that time, the Faculty Handbook, mentioned earlier, defined a "grievance" as "an allegation by a faculty member" that there had been:

"a) a violation or misapplication of any existing laws, rules, regulations or policies; or

b) a violation or misapplication of the terms of any agreement jointly entered into by the University and any member of the faculty; or

c) an arbitrary or capricious action which is at variance with normal practices or procedures."

The Handbook provided two grievance procedures, "Informal" and "Formal." The Handbook described the informal procedure thus:

"Any faculty member ... is urged to communicate ... her grievance ... to the appropriate department head in conference. If a solution is not reached at this level, the grievant(s) may request a conference with the school dean. The school dean shall grant the conference within two weeks after receiving the request. Should the problem fail to be resolved, the grievant(s) may resort to the formal procedure."

The formal procedure required a written notice to the "appropriate school dean" within two weeks after failure of the informal procedure. If the grievant was dissatisfied with the decision of the dean, the grievant could pursue the grievance upward to the Dean of Faculties, then to the President of SMSU, and ultimately to the Regents.

Plaintiff filed an informal grievance on January 7, 1986. The result was evidently unsatisfactory to her, because on April 30, 1986, she sent a letter to Robert E. Norton, Dean of the College of Arts and Letters, asking that "formal grievance proceedings be instituted." In the letter, Plaintiff maintained she should have been granted tenure, that she was twice denied the opportunity to apply for promotion, and that she was "inappropriately terminated."

On July 30, 1986, Regents adopted a new "Faculty Handbook."

On August 20, 1986, Donald E. Bowen, Vice President for Academic Affairs, sent a letter to Plaintiff stating, in pertinent part:

"I am willing to extend your maximum limit of eligibility for service without automatic tenure by one year if this is acceptable to you. This means that a decision as to whether or not you will be recommended to the Board of Regents for tenure will have to be made no later than the spring of 1988. As matters currently stand, this decision would have to be made during the spring of 1987.

... please notify me in writing within two weeks of your receipt of this letter as to whether or not you are willing to have your limits for eligibility for service without automatic tenure extended by one year."

Plaintiff responded by letter dated September 5, 1986, stating, in pertinent part:

"... I accept the one year extension of the maximum limit of my eligibility for service without automatic tenure."

On May 7, 1987, Vice President Bowen sent Plaintiff a memorandum stating:

"This is to notify you that in accordance with Section 2.2.6 of the Faculty Handbook, I am recommending to the President that you be reappointed for the 1987-88 academic year.

I regret to inform you, however, that I am also recommending to President Gordon, in concurrence with Dean Kenworthy's recommendation, that the 1987-88 academic year be your last year at [SMSU]."

At the time of that memorandum, the Faculty Handbook that had taken effect July 30, 1986, provided a comprehensive grievance process. We henceforth refer to that Handbook as "the new Handbook," and to pertinent parts of it by the symbol "p."

p 2.4.5.2 of the new Handbook read:

"A formal appeal of a promotion, tenure, or reappointment recommendation may be made through the grievance process."

The grievance process established by the new Handbook began at p 2.15, which read:

"To ensure the consistent, fair, and valid application of the Faculty Handbook and other personnel policies to the University's academic employees, an internal review process for the settlement of contested personnel actions is hereby established."

p 2.15.1, which defined certain terms for the purpose of the grievance process, read, in pertinent part:

"2. action means any binding personnel decision directly affecting the complainant(s).

. . . . .

4. complaint means an allegation that a person's employment rights and/or entitlements have been adversely affected, either substantively or procedurally, due to a violation, misapplication, or misinterpretation of the University's personnel rules."

p 2.15.4 established an informal procedure for resolving complaints. p 2.15.5 established a formal procedure for resolving complaints. p 2.15.6 established a procedure to be followed when a complaint "constitutes a contested case as determined by statute." Such a complaint was to be "processed in accordance with sections 536.063 et seq, R.S.Mo."

On deposition, Plaintiff conceded she could have used the grievance process to obtain review of her "nonreappointment" for academic year 1988-89. She explained she did not pursue that remedy because she "didn't have very much faith in the process." Instead, Plaintiff filed this suit.

In granting Regents' motion for summary judgment, the trial court ruled:

"The Motion for Summary Judgment specifically sets out ... material facts which the Court finds to be undisputed. Under those facts Plaintiff is barred from proceeding for the reason that her remedy is under the Missouri Administrative Procedures Act and she failed to follow the review procedures set forth in [SMSU's] Regulations and Chapter 536, Missouri Revised Statutes. See Byrd v. Board of Curators, 863 S.W.2d 873 (Mo. banc 1993)."

Plaintiff maintains Byrd, relied on by the trial court, is inapplicable. In Byrd, a tenured professor at Lincoln University was fired by that university's board of curators. He sued. The trial court dismissed the suit. The Supreme Court of Missouri affirmed, holding a tenured professor has a property interest in continued employment. 863 S.W.2d at 875. Consequently, a tenured professor has a due process right to a hearing regarding termination of employment. Id. at . Thus, the professor's case was a contested case, and the Missouri Administrative Procedure Act applied. Id. at . Because the decision to fire the professor would have been subject to judicial review under the Act, § 536.100-.110, RSMo 1986, the professor could not forego that remedy in favor of a contract action. Id. at 876. Because he failed to file his petition in the trial court within thirty days after the decision of the board of curators, § 536.110.1, RSMo 1986, the trial court properly dismissed the suit. Id. at .

Plaintiff insists Byrd does not apply because she was never a tenured professor at SMSU, hence "the law did not require the issue of whether [Plaintiff] would be reappointed to be...