Trimble v. Washington State University

• Decision Date: 24 February 2000
• Docket Number: No. 67409-4.,67409-4.
• Citation: 993 P.2d 259,140 Wash.2d 88
• Court: Washington Supreme Court
• Parties: John TRIMBLE, Petitioner, v. WASHINGTON STATE UNIVERSITY, Respondent.

993 P.2d 259

140 Wash.2d 88

John TRIMBLE, Petitioner, v. WASHINGTON STATE UNIVERSITY, Respondent.

No. 67409-4.

Supreme Court of Washington, En Banc.

Argued October 12, 1999.

Decided February 24, 2000.

Donald Potter, Richard Busse, Scott Hunt, Portland, OR, for Petitioner.

Christine Gregoire, Attorney General, Lorretta Lamb, Asst. Atty. Gen., Seattle, for Respondent.

JOHNSON, J.

Dr. John Trimble, a former assistant professor at Washington State University (WSU), contests his denial of tenure. He alleges defects in the tenure review process that resulted in a breach of his employment contract, a breach of the implied covenant of good faith and fair dealing, and negligent misrepresentation.¹ The trial court found Trimble had not established a prima facie case on any of his claims and granted summary judgment in favor of WSU. The Court of Appeals affirmed in an unpublished opinion. Trimble v. Washington State Univ., No. 22022-9-II, 92 Wash.App. 1045, 1998 WL 726481 (Oct.16, 1998). We affirm.

FACTS

Trimble was hired as a tenure track assistant professor in the Department of Finance (Department) at WSU's Vancouver campus in 1991. Because Trimble had over eight years teaching experience, the College of Business and Economics (College) offered to review him for tenure after three years rather than the usual six years. Trimble was informed that obtaining tenure depended on teaching ability, research, and public service, and he would be reviewed on an annual basis until the tenure decision. Trimble accepted the offer and began work in September 1991.

In 1992, at the end of his first year, Trimble was evaluated. The teaching evaluation scores for three of the four courses Trimble taught were below the College mean. Trimble's overall merit rating for teaching was 3.5 on a scale of 5.0. The teaching evaluation noted that Trimble needed to improve his classroom performance. Trimble's evaluation for research stated his record for publications was "excellent;" however, there was concern for his scholarship, as Trimble had co-authored all of his articles rather than writing independently. Further, there were concerns expressed that Trimble's articles had not been published in any top tier journals. Trimble's second-year evaluation stated his teaching performance fell short of Department and College averages; Trimble's merit rating for teaching was 2.7. The evaluation further encouraged Trimble to seek publication in higher tier journals.

Shortly after his second-year performance review, Trimble began the formal application process for tenure. The WSU Manual (Faculty Manual) sets forth this process. The tenure review process includes the input of numerous people; however, these recommendations are not binding. The ultimate tenure decision is made by one person, the WSU Provost.

Trimble commenced his tenure review process by submitting a tenure dossier that included his curriculum vitae, the annual reviews, his list of publications, and other relevant information. This process turned out to be very conflicted. All five tenured Department faculty members voted in favor of granting tenure. However, the College Tenure Committee, comprised of representatives of other departments within the College, recommended against tenure, citing Trimble's teaching scores and his co-authorship of articles in lower tier journals.

The authority to resolve this conflict of opinion rested with the WSU Provost, who denied tenure. In making this decision, the Provost relied on the College Tenure Committee's recommendations, consulted with various tenured faculty members, reviewed Trimble's teaching record from his former employer, reviewed Trimble's teaching evaluations, and considered Trimble's publication record. Trimble was notified of the denial of tenure on March 9, 1994.

Trimble appealed this decision to the Faculty Status Committee on two grounds: (1) he was subjected to discrimination based on his age and sex; and (2) he should have received some preference as a Vietnam veteran. Although the appeal was received several days after the 30-day appeal time period had ended, the Faculty Status Committee reviewed the tenure decision and found no evidence of discrimination. The Faculty Status Committee did, however, find a procedural error in the documentation of input from tenured faculty members and recommended allowing Trimble to resubmit his tenure application materials. The Faculty Manual requires that after a nontenured faculty has had his or her annual review, "[a] dated written summary of the discussion of these results and of the implications shall be signed by each non-tenured faculty member and the department chair, or equivalent." Faculty Manual at 37 (Clerk's Papers vol. II, at 220). The Faculty Status Committee was concerned this provision had not been properly complied with. A recommendation to set aside Trimble's tenure denial was forwarded to the WSU President.

On November 8, 1994, Trimble was informed that the President was not accepting the recommendation of the Faculty Status Committee and the tenure denial decision would stand. The President found the Department chair had substantially complied with the requirements of the Faculty Manual and affirmed the decision to deny tenure.

Trimble filed suit, claiming breach of contract, discrimination, and negligent misrepresentation. The trial court granted summary judgment to WSU on all claims. The Court of Appeals affirmed and Trimble petitioned this court for review. We affirm.

ANALYSIS

The standard of review on summary judgment is well settled. Review is de novo; the appellate court engages in the same inquiry as the trial court. Benjamin v. Washington State Bar Ass'n, 138 Wash.2d 506, 515, 980 P.2d 742 (1999). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Clements v. Travelers Indem. Co., 121 Wash.2d 243, 249, 850 P.2d 1298 (1993); CR 56(c ). All facts submitted and all reasonable inferences from them are to be considered in the light most favorable to the nonmoving party. Clements, 121 Wash.2d at 249,850 P.2d 1298. "The motion should be granted only if, from all the evidence, reasonable persons could reach but one conclusion." Clements, 121 Wash.2d at 249,850 P.2d 1298 (citing Wilson v. Steinbach, 98 Wash.2d 434, 656 P.2d 1030 (1982)). However, bare assertions that a genuine material issue exists will not defeat a summary judgment motion in the absence of actual evidence. White v. State, 131 Wash.2d 1, 9, 929 P.2d 396 (1997).

I. Breach of Contract

Trimble asserts three breach of contract claims: (1) WSU failed to consider Trimble's "entire record" in reviewing his tenure candidacy, as required by the terms of his employment contract; (2) WSU failed to provide Trimble written documentation of input from members of his Department in violation of WSU's Faculty Manual; and (3) WSU did not review his tenure candidacy consistent with the WSU Faculty Manual.

When an employer promises in writing specific treatment in specific situations, those promises may become an enforceable component of the employment relationship, even in an employment at will situation. Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 230, 685 P.2d 1081 (1984). "Once an employer announces a specific policy or practice, especially in light of the fact that he expects employees to abide by the same, the employer may not treat its promises as illusory." Thompson, 102 Wash.2d at 230, 685 P.2d 1081. Trimble argues he was promised and denied specific treatment during his tenure review process. He argues the College had contractual duties to review his entire teaching record, to provide written documentation of faculty evaluations, and to use a flexible approach in its decision-making process in order to take into account the variations between job assignments and opportunities available on different WSU branch campuses. However, Trimble has not pleaded sufficient facts to prevail against a summary judgment motion. The record establishes that Trimble's full teaching and publication record was considered, that written faculty evaluations were not mandated by the Faculty Manual, and that Trimble's location on the WSU branch campus was considered during tenure review. More than bare assertions that a genuine material issue exists are required to defeat a summary judgment motion. See White, 131 Wash.2d at 9,

929 P.2d 396.

A. Failure to Review "Full Record."

Even assuming the terms of the offer letter and various oral statements made established that tenure review would be based on Trimble's entire teaching and scholarship record, and assuming those statements became a part of the employment contract, Trimble still cannot prevail on this claim.

The record contains evidence that this "full record" was considered and Trimble is not able to refute this. There is testimony that Trimble's curriculum vitae and record of publications written while at the University of Tennessee were considered in the tenure review process. Trimble asserts the Faculty Status Committee considered the early date for tenure consideration to be a "serious handicap," which led to his being "unable" to put together a record of teaching improvement. However, this alone is insufficient to establish that Trimble's entire record of teaching and scholarship was not considered.

B. Written Documentation of Faculty Evaluations.

An employee manual in an employment at will situation only provides specific obligations if the language of the manual is specific. Drobny v. Boeing Co., 80 Wash. App. 97, 101, 907 P.2d 299 (1995). It is a question of fact as to "whether an employment policy manual ... contains a promise of specific treatment in specific situations...." Burnside v. Simpson Paper Co., 123 Wash.2d 93, 104, 864 P.2d 937 (1994). However, "if reasonable minds could not differ" in deciding this issue, it is "proper for the trial court to...