Sack v. NORTH CAROLINA STATE UNIVERSITY

• Citation: 574 S.E.2d 120,155 NC App. 484
• Decision Date: 31 December 2002
• Docket Number: No. COA02-39.,COA02-39.
• Parties: Ronald H. SACK, Petitioner-Appellee, v. NORTH CAROLINA STATE UNIVERSITY; Marye Anne Fox, Chancellor; University of North Carolina; Respondents-Appellants.
• Court: Court of Appeal of North Carolina (US)

574 S.E.2d 120

155 NC App. 484

Ronald H. SACK, Petitioner-Appellee, v. NORTH CAROLINA STATE UNIVERSITY; Marye Anne Fox, Chancellor; University of North Carolina; Respondents-Appellants.

No. COA02-39.

Court of Appeals of North Carolina.

December 31, 2002.

Capitol District Law Offices by Reagan H. Weaver and Robert J. Harris, Raleigh, for petitioner-appellee.

Attorney General Roy Cooper by Assistant Attorney General Joyce S. Rutledge, for respondents-appellants.

BIGGS, Judge.

Respondents (N.C. State University; Marye Anne Fox, Chancellor of N.C. State University; University of North Carolina) appeal from an order vacating their dismissal of petitioner's grievance. For the reasons that follow, we reverse.

This appeal arises from a grievance filed by petitioner challenging a decision not to recommend him for a discretionary salary increase. The evidence in the record tended to show the following: Petitioner was employed by North Carolina State University (the university) as a history professor in 1971, and was tenured in 1974. In 1996, `academic enhancement' funds were made available to the university for discretionary pay raises to 50% of the history faculty. "The purpose of the academic enhancement funds was to reward highly productive faculty who [were] likely to receive counter offers elsewhere, [and] who could not be easily replaced because of the talents they had." Dean Zahn, the Dean of the College of Humanities and Social Sciences, asked Dr. Riddle, the chair of the history department, to identify the top 50% of the history faculty. Dr. Riddle was directed to consider several objective and subjective factors in making this determination, including: the number and quality of recent publications; service to the university and the community; special talents brought to the department; level of scholarship; likelihood of receiving an offer from another university; and the need to remedy existing salary inequities among history faculty. Dr. Riddle submitted his recommendations to Dean Zahn, who made the final decisions and awarded the discretionary salary enhancements. Petitioner was not among those recommended by Dr. Riddle.

In December, 1996, petitioner filed a grievance against Dr. Riddle, and requested a hearing before the university faculty grievance committee. He alleged that Dr. Riddle had (1) treated him unfairly "for personal reasons" with regards to scheduling of classes and had (2) "deliberately overlooked" him when making his recommendations regarding the discretionary salary enhancements, "again for purely personal reasons." Petitioner was granted a hearing, and on 29 December 1997, the committee submitted its report and recommendation to Chancellor Monteith, then Chancellor of the university. The committee "was unanimous in concluding that [petitioner] was treated fairly" with regard to both the scheduling of classes and the determination of who Dr. Riddle would recommend for a salary enhancement. The committee acknowledged that it had spoken by telephone with Dean Zahn to clarify the time period during which faculty publications were evaluated. The committee also offered an opinion that "perhaps if Dr. Riddle had been more forthright" with petitioner, "the issue of salary enhancement would have been resolved and would have not resulted in a grievance."

In June, 1998, Chancellor Monteith "accepted the committee's finding on [the] issue" of class schedules. With regards to the issue of salary enhancement, Chancellor Monteith noted that the committee's ex parte phone conversation with Dean Zahn violated the university's grievance procedure, which requires that all decisions of the committee "shall be based solely on material presented in the hearings." To correct this error, Chancellor Monteith remanded the grievance "for the limited purpose of receiving Dean Zahn's testimony on the record and providing each party the opportunity to cross-examine." Petitioner then wrote to university administrators asking whether he would be permitted to offer evidence to rebut Dean Zahn's testimony, and was informed that "the committee may entertain a request ... to present rebuttal to any relevant testimony that Dean Zahn may present regarding the issue of how enhancement monies were allocated."

The committee conducted its remand hearing in December, 1998, and submitted an addendum to its earlier report in May, 1999. The committee again concluded that petitioner "was treated fairly and properly with regard to the manner by which he was evaluated in 1996 for a salary enhancement." The committee also repeated its concerns about "the manner by which Dr. Riddle dealt with [petitioner] concerning this issue."

In July, 1999, Chancellor Fox, who had succeeded Chancellor Monteith, wrote to the committee, petitioner, and Dr. Riddle, stating her intention to accept the committee's recommendation that "no remedial action [was] required" on either of petitioner's grievances. Before finalizing her decision, Chancellor Fox requested that the committee prepare a memo clarifying why it had neither permitted petitioner to present certain rebuttal testimony on the issue of faculty scheduling of classes, nor considered certain documents submitted by petitioner at the remand hearing. Petitioner had proffered documents to show that, although Dr. Riddle testified that he evaluated faculty publications for the previous 2 years, he had recommended certain faculty members for enhancement money whose publication records would not, standing alone, have qualified them unless Dr. Riddle had included their publications for the previous 3 years.

The committee responded that it excluded the testimony regarding rescheduling of classes, because the proposed witness "was not involved in the decision making process... [and] was not privy to [petitioner's] interactions with Dr. Riddle" regarding scheduling issues. The committee further explained that it excluded petitioner's proffered documentation as "irrelevant and immaterial" to its resolution of either of the issues it considered dispositive: whether petitioner had shown by a preponderance of the evidence "that Dr. Riddle acted out of deliberate, personal malice," or whether Dr. Riddle's recommendations "evidence[d] unfairness to [petitioner]." The committee made findings of fact that Dr. Riddle was directed to "give very heavy weight" to "the question of whether a given faculty member was both likely to be lured away by another university and was worth retaining." Therefore, the committee determined that Dr. Riddle's review of the number of publications of each faculty member, whether for two or three years, would not necessarily be "the final word on even his initial recommendation to the Dean." The committee also found that the Provost's guidelines "require[d] that Dr. Riddle exercise reasonable judgment" and make a "broader assessment" of an individual faculty members "overall likelihood of being made an offer worth countering." Finally, the committee noted that it had evaluated whether Dr. Riddle's recommendations to Dean Zahn "reflected a reasonable determination of [petitioner's] relative value to his department[,]" and "agreed unanimously and without reservation, that Dr. Riddle's recommendation was indeed reflective of a reasonable determination." On 17 December 1999, Chancellor Fox issued her final decision accepting the committee's conclusions.

Petitioner then appealed to the President of the University of North Carolina. He reiterated his original complaints, and added new allegations of age discrimination, breach of contract, and violation of his due process rights. President Broad found no evidence that "the process or decisions reached in [petitioner's] appeal were wrongly made or otherwise in error" and, accordingly, found "no basis for reversing or otherwise modifying" Chancellor Fox's decision. President Broad declined to address petitioner's age discrimination and breach of contract allegations, as these were not raised before the committee. Thereafter, petitioner appealed to the UNC Board of Governors, who referred the matter to their Committee on University Grievance. That committee found "no compelling basis ... for disturbing the president's decision" and recommended that the board sustain the president's decision and dismiss petitioner's appeal. The Board of Governors approved the recommendation on 10 November 2000.

From the decision of the Board of Governors, petitioner on 15 December 2000 appealed to the superior court for review. Petitioner's appeal was heard in superior court on 7 June 2001. On 1 October 2001, the trial court issued an order vacating the Board of Governors decision upholding Chancellor Fox's dismissal of petitioner's grievance. The court remanded petitioner's grievance "to the Grievance Committee" with instructions directing the committee to list all history faculty publications between specific starting and ending dates, and to assign "points" for publications of various types, according to the system that Dr. Riddle testified he used. The committee was ordered to prepare "a master list of all the faculty members ... in rank order" and "determine the position occupied by the Petitioner" according to the "point" system for the quantity of publications during the specified time period. If petitioner was in the top half of this list, the court ordered that "[petitioner's] name and position in the ranking will be submitted to the Chancellor with a recommendation that he was not treated fairly." Conversely, if petitioner was not in the top 50%, the court ordered that "[petitioner's] grievance will be recommended for dismissal[.]" The court also ordered that "the Grievance Committee shall not consider the age of any faculty member, or any other factor" besides the publications each faculty member had during the specified time period, and directed the committee to take testimony and rebuttal evidence on the issue of whether respondent had...