Nash v. Fla. Atl. Univ. Bd. of Trs., 4D15–3574

• Decision Date: 22 February 2017
• Docket Number: No. 4D15–3574,4D15–3574
• Citation: 213 So.3d 363
• Parties: Clarece NASH, Appellant, v. FLORIDA ATLANTIC UNIVERSITY BOARD OF TRUSTEES, Appellee.
• Court: Florida District Court of Appeals

213 So.3d 363

Clarece NASH, Appellant,

v.FLORIDA ATLANTIC UNIVERSITY BOARD OF TRUSTEES, Appellee.

No. 4D15–3574

District Court of Appeal of Florida, Fourth District.

[February 22, 2017]

Christina S. Gornail and Mark Richard of Phillips, Richard & Rind, P.A., Miami, for appellant.

Michael Mattimore and Mark L. Bonfanti of Allen, Norton & Blue, P.A., Tallahassee, for appellee.

Ciklin, C.J.

After a university professor's application for promotion and tenure was denied, the parties attended arbitration. The arbitrator granted the professor relief, but the circuit court vacated the award, resulting in this appeal and cross-appeal. We agree with the circuit court that the arbitrator exceeded his authority in awarding the professor tenure, but we reverse and remand for the circuit court to direct the appellee to review the professor's application for tenure utilizing the correct criteria. Likewise, on the cross-appeal, we reverse and remand for the circuit court to direct the appellee to review Nash's application for promotion utilizing the correct criteria.

In 2008, the appellee, Florida Atlantic University ("the University"), hired Clarece Nash as an assistant professor of accounting. During Nash's sixth year of employment, she applied for promotion to associate professor and for tenure status in the College of Business's School of Accounting.

According to the arbitration award, Nash's application took the following path:

[T]he Accounting Department faculty voted in favor of awarding tenure by a vote of six (6) in favor and two (2) opposed. The Director of the School of Accounting, Associate Professor Dr. Kimberly Dunn, also supported tenure. In accordance with the University's Guidelines for Appointment, Promotion and Tenure of Faculty, Dr. Dunn issued a letter citing the criteria used to evaluate the record of the Grievant and the reasons for supporting an award of tenure.

Following the departmental review, the College Promotion and Tenure Committee reviews the criteria, the candidate's file, and the recommendations made by both the faculty members and the chair/director. The college committee then votes and issues a written recommendation to the dean of the college. In this case, the College of Business Committee voted against tenure with a vote of two (2) faculty members in favor, and four (4) members opposed. The Dean of the College of Business reviews the aforementioned voting results and recommendations as part of the tenure review process. The Dean also considers department/school and college/university needs, and then forwards his own recommendation to the Provost.

On December 19, 2013, Daniel Gropper, Dean of the College of Business, issued his memorandum regarding the Grievant's tenure application to Diane Alperin, Vice Provost. Dean Gropper expressed his belief that a significant issue existed with respect to the Grievant's academic research quality. Specifically, Dean Gropper felt that the Grievant's academic articles did not represent high quality research, and instead amounted to descriptive or interpretive pieces. Dean Gropper cited the lack of publication in top quality journals as a reason for his lack of support, and in his judgment, "the totality of the quality of her academic research is the reason" that his recommendation was in the negative.

Following a college dean's recommendation, the faculty members of the University Promotion and Tenure Committee review portfolios, criteria, and prior recommendations, and then issue their own recommendation to the Provost. On January 17, 2014, the University Promotion and Tenure Committee considered the Grievant for promotion and tenure. The Grievant did not receive a single vote in her favor, and received eight (8) votes against granting tenure. The reason cited for the negative votes was "insufficient evidence of quality publications."

Based on his independent review of Nash's "materials and the recommendations from [Nash's] Department, [her] Director, the College Promotion and Tenure Committee, the Dean, and the University Promotion and Tenure Committee," the University's provost did not recommend Nash for tenure and promotion, and the University's president concurred.

Nash filed a grievance in which she alleged that the University violated Sections 14.2 and 15.1 of the collective bargaining agreement ("the CBA"), which governs the tenure and promotion procedure. The matter ultimately ended up in arbitration.

Nash made the following arguments:

• The University failed to follow any established criteria—including the Accounting Journals List—in evaluating the Grievant's application for promotion and tenure.

• The School of Accounting Journal List constitutes "criteria" under Articles 14 and 15 of the CBA.

• The Dean and Provost were not familiar with the process, thereby tainting the results.

• The Grievant's record clearly establishes that she met the established criteria for promotion and tenure.

After an evidentiary hearing, the arbitrator found in favor of Nash. In his opinion and award, the arbitrator found that the University violated Section 15.1(c) of the CBA, which stated that decisions relating to tenure shall be based on established criteria. The arbitrator found that "the overwhelming evidence points to the ‘School of Accounting Journal List’ as the criteria by which the Grievant's research should have been measured, but clearly was not." He also found that the University's application of new criteria rather than established criteria violated Articles 14 and 15 of the CBA. The arbitrator directed the University to "take the appropriate action to remedy its contract violation," to "follow the appropriate established criteria and to grant the Grievant's application for promotion and tenure," and to make Nash "whole for any loss of earnings or other benefits she has sustained."

The University petitioned the circuit court to vacate the arbitration opinion and award, asserting that the arbitrator exceeded his authority under the CBA. The court vacated the opinion and award, reasoning that under the CBA, tenure could not be awarded as a remedy by the arbitrator. The trial court awarded Nash an additional year of employment, permitted Nash to reapply for tenure, and directed the University to review Nash's application "in accordance with the collective bargaining agreement, and University policy and tenure criteria in existence during the 2013–2014 tenure application process, including the prior ‘School of Accounting Journal List.’ " In an amended order, the court confirmed the portion of the arbitration opinion and award which directed the University to award Nash a promotion.¹

Nash argues on appeal that the circuit court erred in finding that the arbitrator exceeded his jurisdiction in directing the University to award her tenure.

"The trial court's decision to confirm or vacate the arbitration award is reviewed for an abuse of extremely limited discretion." Commc'ns Workers of Am. v. Indian River Cty. Sch. Bd. , 888 So.2d 96, 99 (Fla. 4th DCA 2004...