University of Baltimore v. Iz

• Citation: 123 Md.App. 135,716 A.2d 1107
• Decision Date: 01 September 1997
• Docket Number: No. 828,828
• Parties: , 136 Lab.Cas. P 58,492, 129 Ed. Law Rep. 377 UNIVERSITY OF BALTIMORE et al. v. Peri IZ. ,
• Court: Court of Special Appeals of Maryland

Page 135

123 Md.App. 135

716 A.2d 1107, 136 Lab.Cas. P 58,492,

129 Ed. Law Rep. 377

UNIVERSITY OF BALTIMORE et al. v. Peri IZ.

No. 828, Sept. Term, 1997.

Court of Special Appeals of Maryland.

Sept. 3, 1998.

Dawna M. Cobb, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on the brief) Baltimore, for appellants.

Peri Iz, Columbia, for appellee.

Argued before MOYLAN and HOLLANDER, JJ., and MARVIN H. SMITH, Judge (retired), Specially Assigned.

HOLLANDER, Judge.

This appeal concerns the decision of the University of Baltimore (the "University"), appellant and cross-appellee, to deny tenure and promotion to Peri Iz ("Dr.Iz"), appellee and cross-appellant. ¹ Appellee filed suit in the Circuit Court for Baltimore City against the University; its President, H. Mebane Turner ("President Turner"); its Provost, Ronald Legon; and former Dean of the Business School, Daniel Costello (collectively, the "Officers"). ² In her second amended complaint, Dr. Iz alleged that the Officers violated her constitutional rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. With respect to the University, Dr. Iz claimed that it violated the Civil Rights Act of 1964, breached its contract with Dr. Iz, and breached the implied covenant of good faith and fair dealing.

After a three week trial in July 1996, the jury found in favor of the University and the Officers on the civil rights and state and federal constitutional claims, but found in favor of Dr. Iz on the contract claims lodged against the University. The jury awarded appellee $425,000.00 in damages. After the parties' post trial motions were denied, the University timely noted its appeal. It presents four questions for our review, which we have reframed and reordered:

I. Did the trial court err in refusing to grant appellant's motion for judgment as a matter of law? ³

II. Did the trial court err in permitting appellee to testify as an expert on damages when she had not been named as an expert witness pursuant to the court's scheduling order for disclosure of experts?

III. Was the jury's award of $425,000.00 in damages excessive and speculative?

IV. Does sovereign immunity bar a claim for breach of the implied covenant of good faith and fair dealing?

In her cross-appeal, appellee presents one question for our consideration, which we have rephrased:

Did the trial court err in refusing to award specific performance of the contract?

In addition, the University has moved to dismiss appellee's cross-appeal as untimely filed. It has also moved to strike part of Dr. Iz's reply brief on the ground that it exceeds the scope of the University's response to the issue raised by Dr. Iz on her cross-appeal.

We shall answer appellant's first question in the affirmative. Therefore, we need not address appellant's remaining issues or the issue presented on the cross-appeal. Moreover, we shall deny appellant's motions. Accordingly, for the reasons that follow, we shall reverse.

Factual Background

The parties agree on most of the facts. Dr. Iz holds a Ph.D. in Decision Sciences, and her expertise lies in the study of decision-making in a business context. In 1989, the University hired Dr. Iz as a visiting assistant professor under a one-year contract. She was appointed to the University's Merrick School of Business (the "School" or "Merrick") in the Information and Qualitative Sciences ("IQS") Department.

In 1990, Dr. Iz received a tenure track contract. The agreement provided that she would be reviewed for tenure in the 1993 academic year in accordance with the terms and conditions of the University of Maryland System's Board of Regents' policy on appointment, rank, and tenure. The University of Maryland System's policy, in turn, requires each of its institutions to develop written procedures and criteria governing the promotion and tenure process. The University of Maryland System's policy also states:

[T]he terms described in the letter of appointment, together with the policies reproduced in the designated portions of the faculty handbook, shall constitute a contractually binding agreement between the institution and the appointee.

The University of Maryland System's tenure policy also provides that the President of the University is the only official actually authorized to award tenure and promotion to a faculty member. Such authority is also provided in Md.Code (1978, 1997 Repl.Vol., 1997 Cum.Supp.), § 12-109(e)(4) of the Education Article ("Educ.").

After the University discovered a miscalculation of Dr. Iz's initial tenure review date, the contract was amended to change the tenure review date to the 1994 academic year. Nevertheless, Merrick's policy permitted Dr. Iz to seek early tenure review without penalty. Against the advice of her tenured colleagues in the IQS Department, Dr. Iz decided to undergo tenure review in academic year 1993, one year earlier than provided in her contract.

Merrick's policy does not appear to require a vote on whether to recommend early tenure review. Nevertheless, in a memorandum to Dean Costello, Dr. Milton Jenkins, the chair of the IQS Department, stated that he "need[ed] a letter signed by the department's tenured faculty concerning [Dr. Iz's] request for a change of [tenure review] date." In September 1993, by secret ballot, the tenured IQS faculty voted five to one, with one abstention, to recommend against early review. After learning of the IQS faculty's decision, Dean Costello also recommended against early review. Consequently, Dr. Iz appealed to the provost and President Turner to obtain early review. President Turner informed Dr. Iz that she could seek early review, but he advised Dr. Iz that if she were denied tenure, she would not receive another review. Because Dr. Iz persisted in undergoing early review, Provost Legon instructed the School, in the fall of 1993, to consider her for tenure and promotion to the rank of associate professor.

At Merrick, a faculty member seeking tenure and promotion submits his or her credentials in a portfolio for review by several groups and individuals. The procedures and time frame for each step in the review process are included in the School's policies and procedures. The faculty member is evaluated by: (1) the professor's tenured colleagues who hold the desired rank or higher; (2) the department chairperson; (3) the Tenure and Promotion ("T and P") Committee, a ten member panel consisting of two members from each of Merrick's five departments; (4) the dean; (5) the provost; and (6) the president.

If the provost recommends against tenure, the faculty member may appeal the recommendation to the University-wide Faculty Appeals Committee (the "FAC"), consisting of seven tenured faculty members. If an appeal is made to the FAC, it may interview witnesses and review documents, after which it may make one of the following recommendations to the president:

1. follow the provost's recommendation;

2. reverse the provost's recommendation;

3. send the case back to an appropriate earlier stage of the tenure and promotion process for reconsideration.

The FAC may not substitute its judgment for those involved in the tenure review process, however.

At the first stage of review, Dr. Iz's tenured colleagues in the IQS Department considered whether to recommend her for tenure and promotion. According to the written report of the IQS tenured faculty, they voted three to two against tenure, with one abstention. They also voted five to one against promotion. ⁴ Their written report relied heavily on the Department's recent review of Dr. Iz's accomplishments in the areas of teaching, research, and service, and noted that Dr. Iz "has been showing progress and would have a stronger case next year." Dr. Rao Vemuganti, the former IQS Department chairperson, who held the position for 17 years and had hired Dr. Iz, e-mailed his vote while he was away on sabbatical; he recommended against tenure and promotion. Dr. Vemuganti opined that, although Dr. Iz was a good teacher, had publications, and was involved in professional activities, he was concerned about "her attitude and collegiality."

While the tenured IQS faculty was reviewing Dr. Iz's portfolio, Dr. Jenkins was conducting his review. Contrary to the recommendation of the IQS faculty, Dr. Jenkins recommended the award of tenure and a promotion, stating that Dr. Iz met or exceeded the necessary qualifications. Dr. Jenkins's recommendation was forwarded to the T and P Committee.

The T and P Committee voted six to four in favor of tenure and five in favor and five opposed to promotion to associate professor. Half of the Committee found Dr. Iz's teaching to be "good," while the other half found it to be "satisfactory." Moreover, the T and P Committee found Dr. Iz's accomplishments in research were "very good" and that her record of service was "good." Following the T and P Committee's review, all three recommendations were forwarded to Dean Costello and to Dr. Iz.

Dean Costello recommended against tenure and promotion. Although he believed that Dr. Iz met or exceeded the qualifications for research and service, he thought she did not meet the qualifications for teaching. He also observed that Dr. Iz was reluctant to accept "peer evaluation" and that her colleagues had "strongly recommended that she not apply early for tenure and promotion." Dean Costello's recommendation was then sent to Provost Legon and Dr. Iz.

Dr. Iz provided a written response to Dean Costello's report, disputing many of his observations. She also met with Provost Legon to discuss the Dean's recommendation. Before making his recommendation, the provost met with Dr. Jenkins, the Chair of the IQS Department. Provost Legon asked Dr. Jenkins to clarify statements made in his recommendation concerning Dr. Iz's disagreements with colleagues. The provost also sought to...