Sabet v. Eastern Virginia Medical Authority

• Decision Date: 22 February 1985
• Docket Number: Civ. A. No. 84-294-N.
• Citation: 611 F. Supp. 388
• Parties: Dr. Sohair F. SABET, Plaintiff, v. EASTERN VIRGINIA MEDICAL AUTHORITY, c/o Dr. William D. Mayer, President, Board of Commissioners of the Eastern Virginia Medical Authority, c/o Lawrence Smith, Chairman, Lawrence Smith, in his Official Capacity as President of the Eastern Virginia Medical Authority, Dr. William D. Mayer, in his Official Capacity as President of the Eastern Virginia Medical Authority, and Donald J. Merchant, Ph.D., Chairman of the Department of Microbiology and Immunology of Eastern Virginia Medical School, Defendants.
• Court: U.S. District Court — Eastern District of Virginia

611 F. Supp. 388

Dr. Sohair F. SABET, Plaintiff, v. EASTERN VIRGINIA MEDICAL AUTHORITY, c/o Dr. William D. Mayer, President, Board of Commissioners of the Eastern Virginia Medical Authority, c/o Lawrence Smith, Chairman, Lawrence Smith, in his Official Capacity as President of the Eastern Virginia Medical Authority, Dr. William D. Mayer, in his Official Capacity as President of the Eastern Virginia Medical Authority, and Donald J. Merchant, Ph.D., Chairman of the Department of Microbiology and Immunology of Eastern Virginia Medical School, Defendants.

Civ. A. No. 84-294-N.

United States District Court, E.D. Virginia, Norfolk Division.

February 22, 1985.

COPYRIGHT MATERIAL OMITTED

Stanley E. Sacks, Robert L. Samuel, Jr., Sacks, Sacks & Larkin, Norfolk, Va., for plaintiff.

Richard A. Saunders, Furniss, Davis and Rashkind, Norfolk, Va., for defendants.

OPINION

DOUMAR, District Judge.

The plaintiff, Dr. Sohair F. Sabet, a former member of the faculty of the Medical School operated by the Eastern Virginia Medical Authority (EVMA), filed this action allegedly pursuant to 28 U.S.C. §§ 1331, 1343(3) and 1343(4) and 42 U.S.C. § 1983 against EVMA, its Board, its officers and Donald J. Merchant, her supervisor and the person by whom she was hired.

The plaintiff claims that the defendants violated her fourteenth amendment due process rights when her teaching contract was not renewed. She also claims through an alleged pendent state cause of action that the defendants fraudulently misrepresented their tenure policy at the time of her initial hiring, causing her damages. The plaintiff does not seek reinstatement but seeks monetary damages of $4,000,000.00.

The defendants collectively filed several motions to dismiss and/or motions for summary judgment, and this matter was heard on oral argument. Upon consideration of the argument, the memoranda of counsel, the briefs, depositions and documents, the Court hereby DISMISSES this action entering judgment for the defendants for the reasons below.

THE PARTIES' POSITIONS

The plaintiff, Dr. Sohair Sabet, taught and performed research in the microbiology field at the Eastern Virginia Medical School (EVMS). The defendant, Eastern Virginia Medical Authority (EVMA), is a regional authority located in Norfolk, Virginia which, inter alia, operates the medical school which first accepted students in 1973.

In May, 1982 the plaintiff was sent, by letter, two years notice that her then current three-year faculty contract would not be renewed. The letter did not state any reason for the nonrenewal.

Relying upon 42 U.S.C. § 1983, plaintiff claims in Counts I and II of her complaint that she obtained certain lifetime tenure property rights;¹ and, therefore, that her termination without "cause" and without a hearing was in violation of her due process rights under the fourteenth amendment. Count III asserts a pendent state law claim of fraudulent misrepresentation, alleging that the medical school's officials concealed the true nature of tenure rights.

The defendants deny that there is any lifetime tenure of any nature at the medical school. In response to the plaintiff's allegations, they set forth the EVMS policy with regard to tenure adopted January 15, 1973 which provides that all EVMS full-time faculty are employed under either two, three or five year contracts. These provisions were in the faculty handbook under the heading "Tenure Policy". Moreover, the defendants claim that the decision not to renew Dr. Sabet's contract was one of many tough decisions which were a product of the 1982 recession. Under Virginia law, EVMA was required to achieve a balanced operating budget. In giving notice of nonrenewal to the plaintiff and other faculty members, the administration sought to streamline the faculty while retaining as many of the core curriculum courses as possible.

It is uncontested that Dr. Sabet was qualified for her position and that her nonrenewal was unrelated to her job performance.

BACKGROUND

Dr. Sohair Sabet is a microbiologist who received her Ph.D. from the University of Virginia Medical School in Charlottesville, Virginia in 1972. At Massachusetts Institute of Technology between 1972 and 1974 she performed post-doctorate work in molecular biology.

Beginning September 1974 the plaintiff was employed as an Assistant Professor in the Microbiology Department of the Medical College of Virginia (MCV) in Richmond. (Complaint at p. 2). As part of her job search prior to her MCV employment, she had written the Chairman of the Microbiology Department at EVMS, Dr. Merchant, a defendant herein. She also visited with Dr. Merchant in 1973; however, there were no openings at EVMS at that time. (Deposition of plaintiff, pp. 12-13). As a partial consequence, she accepted the MCV position.

In January, 1976, Dr. Merchant wrote the plaintiff and invited her to present a seminar at EVMS on her research field. Dr. Sabet was the seminar coordinator at MCV, as well as a faculty member, and had been in contact with EVMS officials prior to that time on other similar affairs. It is clear that on this occasion there was an available position in the Department of Microbiology and Immunology at EVMS. Extending an invitation to present a seminar, and viewing the actual seminar, is one way in which a medical school determines its interest in a potential faculty member. (Deposition of plaintiff, pp. 24-25).

By letter dated August 14, 1976 the plaintiff was offered a full-time position, effective May, 1977, in EVMS' Microbiology and Immunology Department, while she was still at MCV. (Complaint at p. 7).

According to the complaint at paragraphs 18, 19 and 26:

18. That subsequent thereto, at the end of the plaintiff's first year of employment on the faculty of the Eastern Virginia Medical School, she was promoted from Assistant Professor to Associate Professor in the Department of Microbiology of the said Eastern Virginia Medical School and appointed for a three year term in such position.

19. Thereafter, on September 20, 1981, plaintiff was advised by the defendants that she had been reappointed as a faculty member of the said Eastern Virginia Medical School with the rank of Associate Professor for the period of July 1, 1981, through June 30, 1984.

* * * * * *

26. Notwithstanding her tenured position on the faculty of the said defendant's medical school, the plaintiff was advised in writing by said defendants on May 5, 1982, that upon the expiration of her current faculty appointment contract on June 30, 1984, said contract would not be renewed....

Though the plaintiff's employment contracts were all entered on a one year or three year term, she claims that she believed she was hired on a tenure-track as contemplated by the American Association of University Professors (AAUP) guidelines on academic tenure.² These guidelines are adopted at many, but not all, colleges. EVMA has not adopted these AAUP tenure guidelines. The AAUP provision recognizes a probationary employment period, followed by a "lifetime" tenure terminable only for cause, retirement or financial exigency. On the other hand, the defendants' answer cites the EVMS faculty handbook provision which expressly rejects AAUP tenure guidelines and reflects a limited two, three and five year contractual tenure at EVMS:

SUBJECT: TENURE POLICY

1. Only full-time faculty may attain tenured status. (Full-time faculty implies 100 per cent of the funding and time is controlled through the Dean's Office.)

2. Any faculty appointment may be made without tenure, provided the appointment is so designated by the Dean and the Commissioners.

3. Tenure status will be conferred after a probationary period as follows:

(a) Professors at the time of their appointment.

(b) Associate professors at the time of their appointment.

(c) Assistant professors after two years employment.

4. Tenure in the Eastern Virginia Medical School is limited according to the following schedule:

(a) Professor—five years.

(b) Associate professor—three years.

(c) Assistant professor—two years.

5. Annual appointments will be made on a fiscal year basis from July 1st to June 30th. Tenured appointments will ordinarily be from July 1st to June 30th of the separation year.

6. Renewal of annual appointments will be made by March 21st of each year. Renewal of tenured appointments will be made by December 31st of the last fiscal year of the tenured period.

7. Appointments occurring after July 1st of any fiscal year will be counted as a full year for purposes of tenure status if made before December 21st of that fiscal year. If made after January 1st, the tenured period will be counted as of the succeeding July 1st for renewal purposes.

8. Accept (sic) as outlined here for tenure purposes, the "Policy, Documents, and Reports" of the American Association of University Professors as a guideline for faculty purposes. Variations of it will be established by the Norfolk Area Medical Center Commissioners if indicated.

(emphasis added). Plaintiff states in her deposition that by April 1978 she learned that EVMS retained its faculty exclusively under contracts of varying lengths (deposition of plaintiff, p. 37), pursuant to the faculty handbook provision and that there was no lifetime tenure. This case must be based on whether EVMS misrepresented its true tenure policy prior to 1978 to the plaintiff and/or whether EVMS fostered some sort of de facto tenure program with the plaintiff in spite of the handbook provisions.

A defendant who moves for summary judgment such as in this case bears the burden of showing both the absence of a genuine issue of fact and that judgment is warranted as a matter of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Phoenix Savings & Loan, Inc. v. Aetna Casualty & Surety Co., 381 F.2d 245 (4th Cir.1967). The reviewing court must draw inferences most favorable to the party opposing the motion when deciding whether this showing...