Michael E. Doron, Ph.D. v. Eastern Washington University ( 2014 )

FILED
DEC. 9,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
MICHAEL E. DORON, Ph.D., a single )
man, ) No. 31636-0-111
)
Appellant, )
)
v. )
) UNPUBLISHED OPINION
EASTERN WASHINGTON )
UNIVERSITY, a state of Washington )
public four year institution of higher )
education; UNITED F ACULTY OF )
EASTERN WASHINGTON )
UNIVERSITY, a public employee )
organization; UNITED FACULTY OF )
WASHINGTON STATE, a public )
employee organization; WASHINGTON )
EDUCATION ASSOCIATION, a state of )
Washington nonprofit corporation; )
ARSEN DJATEJ, a married man; SUSAN )
NIEGAARD, a married woman; )
DUANNlNG ZHOU, a married man; and )
ELIZABETH MURFF, a married woman; )
REX FULLER, a married man; NIEL )
ZIMMERMAN, a married man, )
)
Respondents. )
FEARING, J. - Eastern Washington University (EWU) hired Michael Doron for a
tenure-track position as an Assistant Professor of accounting. After his second annual
review, EWU offered Doron reappointment with an improvement plan. Doron refused to
participate in developing an improvement plan, after which EWU deemed Doron to have
No. 31636-0-111
Doron v. Eastern Washington Univ.
refused reappointment and the school terminated his services.
Michael Doron sued EWU and various university administrators alleging breach
of contract, violation of the covenant of good faith, violation of promises, wrongful
discharge in violation of public policy, disability discrimination, and wrongful
withholding of wages. The relevant contract is a collective bargaining agreement (CBA)
between EWU and Doron's union. Doron sued some ofEWU administrators also for
defamation. Doron also sued his union, United Faculty ofEWU (UFE), and the union's
state-wide bodies, United Faculty of Washington State and Washington Education
Association (WEA), for breach of the duty of fair representation and for tortious
interference with business expectancy. The trial court granted summary judgment on all
claims. We affirm.
FACTS
Because the trial court dismissed all of Michael Doron's claims on summary
judgment, we consider the facts in a light most favorable to him. Because of the many
claims of Doron, the outline requires an extensive review of written agreements,
documents, and correspondence.
Michael Doron graduated from Miami University in 1993 and then worked as an
accountant in Columbus, Ohio. He became a licensed Certified Public Accountant (CPA)
in 2000. That same year, Doron earned his masters in accountancy from Case Western
Reserve University. From 2003 to 2005, Doron taught a variety of undergraduate and
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graduate level accounting courses. In 2009, based on his dissertation titled, "The End of
the Disinterested Profession: American Public Accountancy 1927-62," Doron earned his
PhD in history from Texas A&M.
Michael Doron applied to EWU's College of Business and Public Administration
(CBPA) to become a professor of accounting in a tenure-track position. Rex Fuller was
then the dean of the business school, and Professor Arsen Djatej sat on the hiring
committee. Djatej had met Doron at a conference and encouraged Doron to apply for a
position with EWU.
Before offering Michael Doron employment, Dean Fuller and Professor Djatej
discussed whether Michael Doron would be "academically qualified" for purposes of
EWU's College of Business and Public Administration's accreditation with the
Association to Advance Collegiate Schools of Business (AACSB). The association is
regarded as the benchmark for gaging business school quality among the academic
community. According to Jerry Trapnell, Special Advisor to the President of AACSB,
the Association expects accredited business schools to employ "highly qualified" faculty
as effective classroom teachers committed to continuous improvement. Clerk's Papers
(CP) at 2591. A "qualified faculty member" is "one that demonstrates currency and
relevancy in hislher academic discipline to ensure that the classroom environment is
I supported by the recent and relevant information from theory and practice." CP at 2591.
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For accreditation purposes, schools must classify and justify each and every faculty
member.
According to EWU Provost Rex Fuller, "academically qualified" requires
publishing papers in the field of accounting. AACSB would consider Michael Doron,
with a degree in history, to hold a degree in a field other than accounting. Therefore, for
Doron to be "academically qualified" under AACSB standards, Doron "would have to
consider ways to publish in more direct areas of accounting, such as auditing and other
fields that he was assigned to teach." CP at 1423. Under AACSB standards: "The
greater the disparity between the field of academic preparation and the area of teaching,
the greater need for supplemental preparation in the form of professional development
1 linked to the area of teaching." CP at 2593. The standards also read: "Regardless of their
! specialty, work experience, or graduate preparation, the standard requires that faculty
1 members maintain their competence through efforts to learn about their specialty and
how it is applied in practice." CP at 2593. A potential problem arose with EWU's hiring
of Michael Doron since the Department of Accounting and Information Systems did not
offer an accounting history class.
Dean Rex Fuller spoke to Michael Doron about the need to publish in a direct area
of accounting. Doron asked if coauthorship with another would meet the requirement,
and Fuller answered "yes." Arsen Djatej also spoke to Rex Fuller about coauthoring with
Michael Doron.
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I
I To retain accreditation, 50 percent of a business school's instructors must be
"academically qualified under AACSB standards." Fuller and Djatej agreed that Doron's
II PhD in history, and dissertation in accounting history, would qualify as a "related field"
to accounting. So long as Doron's research and publications related to his field of
teaching and demonstrated "currency and relevancy," Doron could be academically
I qualified. Accounting research is more empirical in nature than historical research. The
I history of accounting is more history than accounting.
I
Arsen Djatej promised to train and help Michael Doron meet EWU's research
expectations. Djatej later testified:
1 And part of the reason he approached me, because we had a
I1 somewhat similar background, academically I mean. And I told [Doron]
that I did a transition myself to empirical study and I know the pattern, so I
will help him to do the pattern; I will train him and mentor him to do the
same thing. That was the discussion before [Doron was hired.]
I [T]he general idea when it comes to research was, when he comes, I
will be the one who would share my experiences making transitions from
what we call qualitative research to more quantitative, empirical type of
research. And that was the general understanding.
1
1
CP at 1436·37. Doron similarly testified:
I [Ilt was part of my understanding I was recruited to come to Eastern
to work with Arsen [Djatej]. He would be co· authoring papers. If you
want to say that was a promise of part of my employment, I guess it does
1
qualify as that, yes.
It was my expectation that when I came to Eastern, that's what
would be happening. Arsen has some projects, one or two of them he
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would bring me on, and I would be doing some work for him on those
projects and I would be co-author.
Q: And who do you claim made that promise to you?
A: [Doron continuing] There was-well, Arsen obviously, is the one
who had to make that promise.
CP at 1456.
On February 28, 2009, a member of the hiring committee, whose name is removed
from the message, e-mailed Arsen Djatej, writing:
Dinner went well with Mike [Doron]. He's talking about where to
locate in Spokane when he gets here. If we get an offer out soon, we
should have an excellent chance to hire him. Your assurances of support
for his research made a big difference in his attitude.
The dean [Rex Fuller] also made a good impression and discussed
summer support with Mike. The dean indicated that Mike's research in
accounting history will be accepted at EWU as long as it is in a [peer­
reviewed journal].
CP at 1463 (emphasis added).
On March 5, 2009, business school Dean Rex Fuller offered Michael Doron a
probationary, six-year tenure-track position with EWU as an Assistant Professor of
Accounting and Information Systems (AIS), a department within the School of Business
and Public Administration. A written offer set a base salary of $85,000 and allowed an
$8,000 increase "upon the acceptance/publication of two peer reviewed journal articles
(PJRs) in accounting," afforded summer research stipends, and granted reimbursement of
up to $2,500 in moving expenses. CP at 228. The offer letter specifically noted:
This offer is contingent upon receipt of satisfactory transcripts from
all institutions of higher education you have attended. All other conditions
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of employment are set forth in the Collective Bargaining Agreement
between Eastern Washington University and the United Faculty of Eastern,
University rules, policies and procedures, and applicable state and federal
laws.
CP at 228.
On March 17,2009, EWU re-extended the same offer, but with a starting salary of
$93,000. The March 17 letter stated: "If you believe you have been promised anything
that is not included in this letter, do not sign and return the letter until you have called the
Provost and Vice President for Academic Affairs." CP at 231. On March 30, 2009,
Michael Doron accepted EWU's offer. Doron later testified that he accepted based upon
Arsen Djatej's and Rex Fuller's promises that Djatej would be available to coauthor
academic papers with Doron.
The CBA between EWU and the UFE governed Michael Doron's employment.
Many sections of the agreement are critical to this appeal. Section 1.1 appointed UFE as
the "exclusive bargaining representative regarding matters of wages, hours, and terms
and conditions of employment ... [for] employees of the University who are designated
with faculty status." CP at 235. Section 3.3 of the CBA, "Authority for Appointment
and Reappointment," provides: "Only those terms of employment that are made in
writing to the appointees shall be binding upon the University." CP at 237-38.
Section 4.1.2 of the CBA imposed on Michael Doron, as a new professor, a
probationary period of six years. Under the CBA, probationary faculty must be reviewed
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and reappointed annually. Section 5.3.1, under "Retention of Probationary Faculty,"
states:
(a) Full-time faculty on probationary status will be evaluated
annually, regardless of contract length, by the chair and by the personnel
committee to determine reappointment. Probationary faculty will be
provided with timelines relative to retention decisions. Such evaluations
will be based upon progress in meeting goals outlined in the F AP. It is
expected that the F AP will be in effect throughout the probationary period
unless modified by mutual agreement between the faculty member, chair,
personnel committee, dean, and Chief Academic Officer.
(b) As part of the evaluation process, the department/library will
provide the faculty member with an annual assessment of progress on the
FAP and a recommendation regarding probationary status. The evaluation
will be signed by the faculty member and retained in her/his official
personnel file in the Human Resources Office. If performance
shortcomings are identified through the evaluation process, the
probationary faculty member shall be provided with a plan to correct the
performance shortcomings which includes timelines for improvement. The
plan will be created by the chair and the affected probationary faculty
member, and will be approved by the department/library personnel
committee, the college personnel committee (if applicable), the dean and
the Chief Academic Officer.
(c) The department/unit personnel committee and the chair shall
each forward a recommendation to the unit dean as to whether the faculty
member should be:
(i) Continued on probationary status.
(ii) Continued on probationary status with an improvement plan.
(iii) Removed from probationary status and continued as a special
faculty member, except as defined in Section 5.4.4(d).
(iv) Given notice that their appointment will not be renewed or will
be terminated according to the timelines described in Section 5.3.5
below.
CP at 242-43.
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Section 5.3.4 of the collective bargaining agreement, titled "Probationary Contract
for Third Year Faculty," states:
Following the third successful year of a probationary appointment,
faculty will be provided with a three-year probationary contract. If
performance shortcomings are identified through the annual evaluation
process during the term of such contract, probationary faculty shall be
provided with a plan to correct the performance shortcomings which
includes timelines for improvement. The plan will be created by the
department chair and the affected probationary faculty member, and will be
approved by the department personnel committee, the college personnel
committee (if applicable), the dean and the Chief Academic Officer.
Probationary faculty who do not resolve performance shortcomings
following an opportunity to do so may be terminated with notice as
provided in Section 5.3.5 below.
CP at 244. And Section 5.3.5, "Notice of Non renewal or Termination of Probationary
Contract," provides:
(b) Notice of intent not to renew an appointment for the following
year, or to terminate a three-year probationary contract, shall be given in
writing to the individual in accordance with the following standards:
(i) Not later than March 1 of the first academic year of service if the
appointment is to expire at the end of that year.
(ii) Not later than December 1 of the second year of the
probationary period if the appointment is to expire at the end of that
year.
(iii) For faculty in their third through sixth years of the probationary
period, notice of intent not to renew shall be given no later than June
1 for a terminal appointment that expires at the end of the next
academic year.
CP at 244.
Section 5.5 of the CBA, under the title "Reconsideration," provides: "In the event
of a negative recommendation by the Chief Academic Officer regarding retention, tenure
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or promotion, the faculty member may file a request for reconsideration with the Chief
Academic Officer" within five days receiving the negative recommendation. CP at 247.
Section 5.6 describes how a faculty member is to accept or not accept reappointment, and
provides in relevant portion:
5.6.2 Letter of Appointment. Upon reappointment or continuation of
appointment of a faculty member, an annual letter of appointment will be
issued. The letter of appointment signed by the appointee shall be returned
to the Chief Academic Officer within fifteen (I5) days of its receipt to
indicate the appointee's acceptance of the conditions of appointment.
5.6.3 Resignation. Faculty members who intend to resign their
appointments should provide written notice to their unit dean at the earliest
possible date. Faculty members who intend not to accept reappointment
shall provide written notice thereof not later than fifteen (15) days after
receipt of the letter of appointment.
CP at 250.
Michael Doron's Faculty Activity Plan (FAP) is at the center of this dispute. The
CBA requires each faculty member to develop a F AP. Section 7.3 of the CBA reads:
7.3.1 Plan Content
The FAP shall be consistent with the University mission and
Strategic Plan, college, library, and department strategic plans, [Policies
and Procedures (P&P)], and the [CBA]. The FAP shall include all areas of
professional activity, development, and expected performance; describe an
equitable workload; and include any other expectations as required by
department or college/library P&P. Where the FAP is intended to lead to
tenure and/or promotion the plan shall so state.
7.3.2 Development of the FAP
(a) Development of the FAP is a collaborative process. All
continuing faculty members shall, in consultation with the
department/library personnel committee and the department/library chair,
prepare a F AP specifying areas of activity for the period of the plan. A new
faculty member's FAP shall be prepared no later than the conclusion of the
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first academic quarter covered by the plan.
7.3.3 Approval of the FAP
(a) The FAP, including any agreed amendments or revisions made
as a result of the collaborative development process described in Section
7.3.2, must be signed by the faculty member, and approved by the
department/library personnel committee, chair, dean and the Chief
Academic Officer. At the option of the college, and as expressed in the
college P&P, FAPs may also require approval by the college personnel
committee. A copy of all approved FAPs will be retained in the Human
Resources Office.
(b) If a FAP is not approved by the department/library personnel
committee, the chair, the college personnel committee (if required by the
college P&P), the dean or the Chief Academic Officer, the faculty member
will prepare a revised plan in consultation with the department/library
personnel committee and the chair. If an acceptable plan is not prepared by
the end of the subsequent quarter, the chair and department/library
personnel committee will revise the plan in a manner that meets with the
approval of the college personnel committee (if applicable), the dean and
the Chief Academic Officer. Any dispute over the contents of the revised
FAP will be resolved by the Chief Academic Officer. The revised FAP will
govern the faculty member's approved activity for the period of the plan.
CP at 251-52. The initial term for an 'assistant professor's FAP is six years.
Section 7.3.5 allows modifications of a F AP. The section reads:
Modification of the Plan. F APs may be modified during their term.
A faculty or the chair may request in writing a modification. All
modifications are subject to the same approval process as the original FAP.
CP at 252.
Article 13 of the collective bargaining agreement addresses discipline of a faculty
member. The article reads in part:
13.1 Just Cause. No faculty member shall be disciplined or
discharged without just cause. Just cause guidelines commonly used by
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arbitrators are set forth in Appendix A.
13.2 Progressive Discipline. The University shall apply where
appropriate the principles of progressive discipline which include, but are
not limited to, the following steps: verbal warning, written warning,
suspension without pay and, finally, discharge. The University will not be
required to apply progressive discipline where the nature of the offense
calls for immediate discharge or imposing discipline without progression.
CP at 1843
Meanwhile, as Dean Rex Fuller, Professor Arsen Djatej, and Michael Doron
negotiated EWU hiring Doron; Djatej sought and interviewed for a teaching position at
Colorado State University. Djatej did not inform Doron that he might leave EWU for
Colorado prior to Doron accepting the position at EWU.
On March 15,2009, another member of the hiring committee e-mailed Arsen
Djatej, writing:
1. Since Mike Doron agreed to come here mostly to work with you,
you ought to let him know if/when you decide to accept the position at CO.
2. As Rex [Fuller] already knows about the offer [from Colorado], is
it ok with you if! let Sue [Megaard] and Bill know you've got a $ 120K/yr
offer with tenure? I'd like to see if we might be able to match the $ and
tenure.
CP at 1465. Dean Rex Fuller thus knew before Michael Doron accepted employment
with EWU that Professor Djatej might leave EWU for Colorado, but did not inform
Doron ofthis possibility. Fuller testified: "I didn't think it was something I needed to
talk to Michael about. Michael and Arsen had ongoing conversations, and my
assumption was that that was made known through their conversations." CP at 1425.
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Three weeks after Michael Doron accepted EWU's offer, Doron learned that
Arsen Djatej was leaving for Colorado. In summer 2009, Michael Doron expressed
concerns to Rex Fuller that Djatej no longer had an incentive to work with him. Fuller
insisted that, given modem technology, Doron and Djatej would still be able to coauthor
papers together.
On October 9,2009, Michael Doron e-mailed Arsen Djatej, "This is the paper I
presented in Cardiff. The section I want to expand into a separate paper is pp. 21-4." CP
at 1468. Within an hour, Djatej responded: 'Thanks Mike, I will read it over the
weekend and get back to you some time next week." CP at 1468. Djatej did not.
In November 2009, in his first quarter of teaching, Michael Doron developed his
Faculty Activity Plan. In relevant portion, Doron's FAP provides:
2. Quality of Teaching
I must demonstrate acceptable levels of quality in teaching
effectiveness, curriculum development, and student advising.
I am currently in the eighth week of my first quarter at EWU. I am
teaming ACCT 450, Auditing I, and BADM 560, MBA Accounting. My
goal this quarter, in addition to competently teaching the material, is to
develop a familiarity with the skills and needs of the students in these
courses. This will provide me with the perspective to develop these courses
further in the future.
The CBPA [College of Business and Public Administration]
prioritizes excellence in the classroom. When I interviewed for this
position, I was impressed with the dedication and coordination among the
faculty to preparing both undergraduate accounting majors for careers in
accounting and future managers in the MBA program to understand and
evaluate accounting information they confront in their work. I intend to
contribute to this commitment to our students. To assess my teaching
effectiveness, my plan is to use the metric built into the IDEA instrument,
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in particular Question 41 on the IDEA form, "Overall, I rate this instructor
as an excellent teacher" which has a five point scale. My objective is to
maintain an average of median ratings of3.0 for my classes over the plan
period.
I hope to teach all sections offered of ACCT 450, Auditing I, and
BADM 560 and 505, the MBA Accounting courses. This will require a
thorough understanding of the CBPA's and the AIS [Accounting and
Information Systems] department's objectives for these courses and the
skills and needs of our students. This quarter, I am relying both on my
experience of the objectives of these courses and on the advice of my
colleagues in the CBPA. In the Winter 2010 quarter, I will be teaching
ACCT 450 again as well as BADM 505, and in Spring 2010 I will be
teaching BADM 560. By the end of my first year, based on my experiences
along with feedback from students and my colleagues, my goal is to
prepare a comprehensive plan of how to meet the objectives of these
courses and have a procedure in place to stay current on topics relevant to
these courses.
My workload has been set via the EWU Collective Bargaining
Agreement, so that it may not exceed 36 credit hours. The College of
Business and Public Administration Assigned Time Policy allows a
reduction of teaching load for appropriate research activities that assist the
College. Under this policy, I expect a teaching load no greater than 28
credit hours, provided I meet the eligibility requirements set forth in the
College Policy.
I understand that I must be available to my students for career
advising and for assistance with their coursework. The currently accepted
norm is to be available to students and faculty in my offices for at least five
hours per week. I will also be regularly available via email and voice mail.
3. Quality of Research and Scholarship
I must demonstrate an acceptable level of research and
scholarship centered on the business aspects of my areas of interest.
Minimally, five journal articles must be published during the six years
prior to my tenure consideration. These must be in blind-refereed
journals or in journals of national stature, with the provision that up to
two may be replaced by publications in refereed conference
proceedings at a rate of two proceedings for one refereed article ....
I currently have one publication in a blind-refereed journal,
Accounting History, in August, 2009. In September, 2009, I published a
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paper, adapted from my dissertation, in the refereed conference proceedings
of the Accounting, Business, and Financial History conference in Cardiff,
Wales.
Based on the suggestions I received at the ABFH conference, I plan
to revise this paper and submit it to the Accounting Historians Journal, a
blind-refereed journal, before the beginning of academic year 2010-11, with
the expectation that it will be accepted during the 2010-11 year.
I am currently writing a third paper adapted from my dissertation. I
hope to submit this in March, 2010, for presentation at the Accounting
History conference in Wellington, New Zealand in August, 2010. This is
also a refereed conference proceeding. My goal would be to submit this
paper to a blind-refereed accounting history journal in 2011, with the
expectation that it would be accepted during the academic year 2011-12.
If I am able to meet the above goals, I will have three sole-authored
publications in blind-refereed journals and two presentations at conferences
with referred proceedings at the end of my third academic year at EWU.
I have plans for a second project upon completion of the above
work. I have identified the sources to be used. These include trade journals
from the nineteenth century that span several decades and have never been
utilized for accounting history research. I expect this work to yield
multiple sole-authored publications in blind-refereed accounting history
journals, which I can begin to submit before my probationary status at
EWU ends in 2015.
CP at 314-15 (emphasis in original). By the end of 2009, all necessary university
administrators approved Doron's FAP.
On December 6,2009, Michael Doron e-mailed Arsen Djatej about another article
idea, and possibly submitting it to the March 2010 conference in New Zealand.
After one quarter of teaching at EWU, the AIS Department Chair Elizabeth Murff
and the AIS Department Personnel Committee both recommended retaining Michael
Doron. On January 7, 2010, Murff wrote Dean Rex Fuller to recommend retaining
Doron for the 2010-11 academic year. Murff noted that Doron had published one peer­
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reviewed article, and she commented: "At this rate, he is on track at this time towards
meeting the requirements set forth in his F AP for attaining promotion and tenure." CP at
380. Murff also noted that student evaluations were not yet available. On January 19,
2010, the AIS Department Personnel Committee wrote Fuller also recommending
"Michael Doron's contract be renewed." CP at 382. The committee wrote: "We
acknowledge that Professor Doron has successfully satisfied all requirements of a first-
year assistant professor." CP at 382.
On February 3, 2010, Department Chair Elizabeth Murff summarized her peer
evaluation of Michael Doron's teaching to Dean Rex Fuller. Murffwrote: "Dr. Doron is
developing into an excellent instructor as he is rigorous in his expectations, current in
terms of course content, well organized in presenting this content and rapidly developing
beyond the presentation and engagement skills ofa new assistant professor." CP at 385.
On February 4,2010, Dean Rex Fuller wrote EWU's Provost and Vice President
for Academic Affairs John Mason to recommend "renewal of Dr. Doron's contract for
201O-1l." CP at 388. Fuller's memorandum addressed Doron's service to the
community, teaching, and research. For service, Fuller noted that Doron served on the
Graduate Affairs Council, which was sufficient for a first year faculty member. For
teaching, Fuller wrote: "The student comments are mixed; however, like many new
faculty [Doron] is adjusting his teaching approach to the level of students in the senior
and MBA courses." And for research, Fuller wrote:
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Dr. Doron completed his dissertation, published one peer review
journal article, and presented one paper. These scholarly works are directly
related to his discipline and are appropriate in meeting accreditation
expectations for academically qualified faculty. In addition, he has several
works in progress, suggesting an on-going research agenda. At this
juncture he is meeting expectations in this area of responsibility.
CP at 388. In short, during Doron's first year of service, his research program produced a
peer reviewed journal article and two international conference papers based on his
dissertation research.
On February 15,2010, Arsen Djatej responded to Michael Doron's October 9,
2009 e-mail:
Dear Mike, I finally read the article. I think there are some really
good ideas in it. Now the question is where and how do you want to take
it? We can rapidly convert it to an empirical research but I need some kind
of data. Also, I am preparing for NZ conference in summer do you want to
do something together? I have some ideas. Give me a call when you can.
CP at 1467.
On May 20,2010, Michael Doron signed his "Faculty Workload for A Y 2010·
2011," which covered his second year at EWU. The document described his intended
scholarship:
I will be presenting a paper at the 6th Accounting History
International Conference in Wellington, NZ in August, 2010. This is a
refereed, published conference proceeding. I have submitted a paper to the
Accounting Historians Journal that I hope to have accepted in 2010. This
summer I hope to complete another paper, "The AICP A and the Campaign
for the Natural Business Year," that I will submit to the journal Accounting
History in 2010 with the hope that it will be accepted in 2011. I have
begun work on another paper, covering the original intent of the accounting
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provisions of the Securities Acts of 1933 and 1934. I am currently reading
the eleven-volume Legislative History of the Securities Acts, and am
planning a trip to the Library of Congress in Washington, DC to study the
papers of James Landis, the chief author of the Securities Acts.
Both Elizabeth Murff and Rex Fuller approved Doron' s 2010-11 faculty workload. CP
392.
Arsen Djatej returned to EWU from Colorado in the summer of 20 10 when EWU
offered him tenure, new databases for research, and a bigger office. On July 1,2010, Rex
Fuller transitioned from Dean of the School of Business and Public Administration to
Eastern Washington University's Interim Provost and Vice President for Academic
Affairs. In this role, Fuller also served as Chief Academic Officer. Niel Zimmerman
replaced Fuller as Dean ofEWU's College of Business and Public Administration.
The AIS department personnel committee for Michael Doron's second annual
review consisted of Arsen Djatej, Sue Megaard, and Duanning Zhou. The committee
reviewed Doron based on his service to the community, teaching, and research. On
October 18, 2010, the committee wrote Department Chair Elizabeth Murff to outline their
concerns and recommendations. The committee's review of Doron was negative.
The personnel committee wrote that Doron attempted to modify one Masters of
Business Administration (MBA) course, and eliminate another, unilaterally. "[Doron]
was informed by a senior accounting faculty member, Dr. McGonigle, that he did not
own the courses that he is attempting to modify or eliminate and that he needed to discuss
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such plans and get the approval of the accounting faculty and AIS Department Chair
before he went forward. According to Dr. McGonigle, Dr. Doron became indignant
when he heard these comments." CP at 395. The committee "recommended that a
different accounting faculty member be appointed to the MBA Committee." CP at 396.
The personnel committee further wrote, in its October 18 review:
Overall, Dr. Doron's teaching effectiveness is weak at this point of
his career. Although it is understandable for a first year faculty member
trying to identify relevant teaching methods, there are some significant
concerns from this committee:
1. In BADM 560 (MBA Accounting) class, Dr. Doron's students
evaluation declined from 3.8 in the fall of2009 to 2.8 in the spring of2010,
which is the bottom 10% comparing to peers.
2. Students complained that Dr. Doron only taught 2 hours in 4 hour
classes.
3. Students complained that Dr. Doron didn't leave the classroom
when students were conducting teaching evaluations.
4. Students complained that Dr. Doron didn't make prior
arrangement to cover his classes when he left for a conference.
5. Students complained that Dr. Doron didn't give clear paper/case
grading instructions.
Considering the results ofthe students['] evaluation and the
comparison results from IDEA, it is apparent that Dr. Doron is unable to
effectively teach BADM560 and ACCT 251 courses. Due to the staffing
specifics of the accounting program ofCBPA, faculty are required to teach
in different accounting subject areas. Unfortunately, at this point,Dr.
Doron's capacity cannot be utilized outside of teaching Auditing I course,
which is only offered two sections per year.
CP at 395.
The personnel committee also wrote:
Dr. Doron has published two peer reviewed journal articles in
accounting history in his first year at EWU. He has also presented his
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papers at conferences. The Academy of Accounting Historians has
awarded Dr. Doron the 2010 Vangermeersch Manuscript Award for his
paper "I Ask the Profession to Stand Still: The Evolution of American
Public Accountancy, 1927-62." Dr. Doron is commended for his
publication efforts in his first year at EWU.
However, both the CBPA and AIS Policies and Procedures require
faculty to publish in the subjects of their teaching responsibility. No
accounting history courses exist at EWU for Dr. Doron to teach. Therefore,
he will need to publish articles related to current auditing and accounting
topics to be clearly within CBPA and AIS department policies.
The College Policies and Procedures state that faculty with Dr.
Doron's qualifications will be considered academically qualified (AQ) "if
they maintain active involvement in the areas of teaching responsibility
through writing ..." These policies are intended to be fully compliant with
AACSB-International standards for AQ status in order to assist in
maintenance ofEWU's business accreditation.
The AIS Department Personnel Committee recommends that Dr.
Doron engage in appropriate research and publication in current accounting
and/or auditing to clearly support his AQ status under AACSB standards.
In essence the committee is recommending a balanced approach between
publications in accounting history and peer reviewed publications of
accounting and auditing research related to his teaching areas.
CP at 394. The evaluation did not mandate that Michael Doron cease research and
writing on the history of accounting, but noted the lack of connection between the
research and writing, on the one hand, and his teaching assignments, on the other hand.
At the end of the October 18, 20 I 0 evaluation, the personnel committee
commented on Michael Doron's collegiality:
Dr. Doron has clearly rejected needed input from his colleagues.
The AIS department chair and college dean arranged for Dr. Djatej to
mentor Dr. Doron this year upon his return to EWU. However Dr. Doron
demonstrated a lack of interest in being mentored. For example, when Dr.
Djatej attempted to counsel Dr. Doron on appropriate and official ways of
dealing with perceived issues in MBA-related accounting courses, Dr.
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Doran v. Eastern Washington Univ.
Doron appeared reluctant to accept the input on these matters. This again
demonstrates that Dr. Doron is not a team player and that he lacks
collegiality. It is recommended that Dr. Doron be mentored by a different
suitable tenured faculty member, provided that faculty member agrees.
Furthermore, Dr. Doron's unwillingness to cooperate has amplified his lack
of collegiality to the point that written communications of this nature are
unfortunately the best means of communication.
CP at 396. After giving "serious consideration to non-renewal" the AIS Department
Personnel Committee recommended that Michael Doron "continues on probationary
status but with an improvement plan." CP at 396.
In an October 25,2010, letter to Business School Dean Niel Zimmerman,
Elizabeth Murff echoed the AIS Department Personnel Committee's concerns and
recommendations concerning Michael Doron. Murff recommended that Doron:
1. Continue on probationary status with an improvement plan (see
part 4) in accordance with section 5.3.1 (c )(ii) of the Collective Bargaining
Agreement.
2. Keep the same teaching load next year as he had this year (24
credits), although different courses may be assigned to reduce the time
stress by reducing the number of preps.
3. Have his workload rebalanced immediately by reallocating time
into research by reducing his service component to serving as faculty
advisor to Beta Alpha Psi only.
4. Must develop an improvement plan in accordance with section
5.3.I(b) of the Collective Bargaining Agreement by the first week of
Winter Quarter 2011. As my discipline is not accounting, I am requesting
that Dr. Doron develop this plan with input from a senior accounting
faculty mentor familiar with teaching and research in the accounting
discipline. It is Dr. Doron's responsibility to identify this mentor. This
plan needs to specifically address the deficiencies noted above in teaching
effectiveness and research in current accounting/auditing practices. The
plan must include specific benchmarks for evaluating progress, including
appropriate deadlines, and needs to be approved by the department chair,
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Doron v. Eastern Washington Univ.
the department personnel committee, the dean, and the chief academic
officer at EWU. Progress with respect to this improvement plan will be
evaluated during the 3rd to 3-year reappointment process in the spring of
2012 so that an appropriate decision with respect to retention can be made
at that time.
CP at 403-04 (emphasis in original).
Both the AIS Department Personnel Committee and Department Chair Elizabeth
Murff stated that each would respectively recommend nonrenewal the following year if
Michael Doron did not successfully complete an improvement plan.
On October 29,2010, Elizabeth Murff and Sue Megaard, as member of the AIS
Department Personnel Committee, met with Michael Doron to present their concerns and
recommendations. At the meeting, Murff told Doron "there are problems with your
teaching and research," "we don't teach accounting history here," and you "may be a bad
fit" at EWU. CP at 472. Doron replied that, ifEWU did not want him researching
accounting history, "someone made a mistake in hiring me." CP at 173,472. Michael
Doron feared he might "be immediately fired." CP at 718. Doron also feared that an
improvement plan would change the direction of his academic research.
After his meeting with Elizabeth Murff and Sue Megaard, Michael Doron phoned
Provost Rex Fuller. Fuller recommended Doron contact Gary Krug, president of Doron's
union, the United Faculty ofEWU, to discuss his concerns regarding his second year
evaluation.
On October 30, 2010, Michael Doron e-mailed Gary Krug:
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Doran v. Eastern Washington Univ.
Rex Fuller recommended I get in touch with you. My relationship
with my colleagues and dept. chair in the Accounting and Information
Systems Dept. has become strained over issues relating to my F AP and
reappointment. I need to know my rights and responsibilities in the
process. If it would be possible for you to meet with me this weekend, that
would be very helpful as the dept. is asking me to begin developing an
improvement plan on Monday. Thanks very much.
CP at 1052. Doron and Krug met twice to discuss Doron's concerns. Doron provided a
copy of his FAP to Krug. Doron expressed his concern that any improvement plan would
be inconsistent with his approved FAP .
On November 5, 2010, the AIS Department Personnel Committee wrote Elizabeth
Murff to recommend that Michael Doron no longer teach two upper level accounting
courses. The committee wrote: "Before he can return to BADM 505 or 560, he needs to
complete this remediation in ACCT 252 and possibly teach ACCT 356 and 357 as well."
CP at 2364.
On November 9,2010, Gary Krug and UFE Chief Steward Chris Kirby met with
Elizabeth Murff, Niel Zimmerman, and Arsen Djatej "to discuss the issues raised by Dr.
Doron, to try to understand the position of the department and the dean, and to begin
trying to talk through a resolution to the problem." CP at 1027. Krug did not invite
Michael Doron to attend this meeting. Those attending agreed that any modification to
Doron's FAP would require Doron's approval.
On November 10,2010, Dean Niel Zimmerman wrote Provost Rex Fuller: "With
the understanding that an Improvement Plan will be in place no later than the end of the
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Doron v. Eastern Washington Univ.
first week of Winter Quarter 2011, I support the retention of Dr. Michael Doron for his
3rd year at EWU." CP at 406. Zimmerman sent copies of this letter to Elizabeth Murff
and Michael Doron.
Michael Doron met with Elizabeth Murff and Arsen Djatej twice in November
2010. Doron testified about those meetings:
I said that what I wanted done was that my second-year evaluations
be redone and state that I am meeting all of the standards in my FAP. And
I said once that's taken care of, then we will start talking about how to
improve my teaching and my research. I said if you want me doing
research in areas outside of accounting history for AACSB standards, that
makes perfect sense. When I was hired, it was understood that I would be
working with Arsen, and we can do that again. I will work with Arsen.
You want me teaching other courses, I will teach other courses.
Coauthoring a paper with Arsen, it was impossible until Arsen got in
touch with me and said, ~'Here's the project we're coauthoring." As I said,
it's Arsen's project; it's dependent on Arsen. I had said very clearly, "I'm
open to that. I've always been open to that. I was hired to do that. Let's
go for it." But Arsen is the one who would have to go ahead and make that
happen."
CP at 722, 740.
Michael Doron further testified:
Q Was there anything you asked him [Arsen Djatej] to do
specifically that he didn't do?
A No.
CP at 1457.
In a critical passage in his deposition, Michael Doron declared:
Q At any point in time did he refuse to co-author papers with you?
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No. 3 I 636-0-III
Doron v. Eastern Washington Univ.
A As I said, there was no explicit rejection of that. That didn't
happen, no.
Q So was there ever an explicit promise made by Arsen that he
didn't fulfill?
Mr. Kirby: Objection: asked and answered.
A I would like to give a longer answer to that. That's not something
that I can say yes or no.
Q By (Ms. Clemmons): Okay.
A I was hired explicitly with the understanding that I would be co­
authoring with Arsen, and he left. Then I was left to start at Eastern
without being able to rely on him because he was no longer employed at
Eastern.
So I have got my research going on which is this accounting history,
what I do. So I wrote up my FAP talking about what I can do, what I plan
to do with accounting history, and it gets approved. And everything is fine
for a year.
Then the second year evaluations, they say that what I have been
doing for the last year, what they explicitly signed off on isn't working.
And so I offer right away in those first meetings that Beth [Chair Murff!
and Arsen were at, you want me co-authoring papers with Arsen like I
originally was hired to do, that's no problem. I will do that. And the idea
never goes anywhere.
Q Arsen had returned. Was there anything that would prevent you
from co-authoring papers with Arsen after he returned to Eastern
Washington University?
A As I said, I was working on my stuff. Everyone had signed off on
it. I thought what I was doing on my own was fine. I didn't need more
projects working with Arsen. I wasn't refusing. There was no need for it.
As soon as they told me there is a need for it, I offered: That's fine.
You want me brought in on Arsen's projects? No problem. Just tell me
what to do.
Q I understand what you are saying that you started your own
projects so you didn't see a need to co-author anything and you were not
eliciting co-authoring. Correct?
A Except as we've already gone through. I did try to get him to co­
author that one paper of mine.
Q And I simply want to know if you're contending Arsen didn't do
something that he explicitly promised he would do?
MR. KIRBY: Objection, asked and answered.
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No. 31636-0-III
Doran v. Eastern Washington Univ.
A Yeah. I have explained exactly what did happen. Was there a
moment when I said please bring me in on one of your projects, and he said
no? That didn't happen. But I've explained what did happen, and I feel
that that is him not sticking with the terms I was hired under.
Q (By Ms. Clemmons) What did Arsen do wrong to change the
terms?
A The understanding was that I would be co-authoring with him.
Once they brought it to my attention that what I was doing was no longer
good, I said fine. Let's go back to what we originally agreed to when I was
hired. 1'11 co-author with him.
At that point he had a responsibility to fulfill the promise he made to
me. Had he said, Here is the project I am working on, this is exactly what I
want you to do, and you do this, and it will be co-authored and everything
will be fine, and he didn't do that. And I explicitly offered I will do that if
that's what you want. He never followed up.
Q Did you ever go to him to say let's co-author something and this
is what we should do other than the e-mails you referred to?
MR. KIRBY: Objection to the form of the question. It's been asked
and answered several times.
Q (By Ms. Clemmons) Dr. Doron, what I just simply want to
understand is - there is a general understanding you are going to work
together and co-author something, but you haven't identified specifically
what. Correct.
A It never was identified specifically what, yes.
Q In the discussions did you identify this is how I am going to
approach you and it is my responsibility to tell you what to do and how the
co-authoring would occur?
A We never got into those kinds of details.
Well, to some extent these were his projects. I told him I do not
have a strong background in econometrics and computer programming. He
said, That's fine. What you can do is maybe collect data for me, maybe
write the literature review for the paper. And I figured, yeah, okay, I can do
that.
Q So you have this general understanding that you are going to
work with someone. He is amendable [amenable] to working with you,
correct?
A What do you mean he is amendable [amenable] to working with
me? I don't know that that's correct, no.
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No. 31636-0-111
Doron v. Eastern Washington Univ.
Q At the time that you reached this understanding with him, he was
amendable to working with you?
A Well, that's what he promised to do. So I would have to assume
he was amendable, yes.
Q And you promised to work with him, too, correct?
A It was the understanding when I was hired that I would be doing
that with him, yes.
Q Other than the general understanding that the two of you would
work together, was there any specific terms as to how that would occur that
anyone violated?
A We never set explicit terms like that.
CP at 1458-59.
On November 18, 2010, UFE President Gary Krug and Michael Doron met with
Elizabeth Murff and Arsen Djatej. Doron asserted that his approved F AP remained
viable, and should be enforced as part of any improvement plan. Krug commented that
he represented every person there. According to Krug, he searched for "a satisfactory
agreement that would protect Dr. Doron, that would ensure the department accreditation
standards and the CBA was not violated." CP at 1011. To this end, Krug proposed that
Doron rewrite his FAP. Doron declined since he wanted his existing FAP "enforced as
written." CP at 1018.
In a November 19, 2010 e-mail message to Gary Krug, Michael Doron expressed
his disappointment with the November 18 meeting and with the assistance from Krug:
As I told you last night, I am very disappointed in how the meeting
went, particularly in your performance. I will try to schedule another
meeting with Beth and Arsen to repair the damage that was done. I do not
want you in attendence [sic] at this meeting. Because they obviously do not
understand that their evaluations need to be based on my progress in
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No. 3 I 636-0-III
Doran v. Eastern Washington Univ.
meeting my FAP, it appears they do not intend to rewrite their evaluations.
If I am able to change their minds, we can move forward from there. If not,
I need to know that you are willing to help me file a formal grievance
stating that the evaluations are in violation of the CBA. I need you to give
me a firm answer on this before I meet again with them, so I am not left in
a position of waiving my rights.
I also need to address your statement at the meeting last night that
you are there to represent "everyone's interests." That was not my
understanding when I came to you and is not what you told me in our many
conversations. My understanding is that your role as union rep. is to ensure
that my rights are protected under the collective bargaining agreement. Is
this correct or not? I would like a firm answer so that I can assess whether
I can trust you going forward. I will be anxiously waiting for your
response, as I have to continue working on this.
CP at 1058.
Gary Krug responded to Michael Doron on November 21:
I strongly advise against your taking unilateral action in your case.
You are always free to conduct your own case if you so desire, but UFE
cannot represent you once you begin to do so. Be further advised that the
filing of grievances is solely the decision of UFE based on our assessment
ofa case.
You have some misconceptions about how these matters are
conducted. UFE represents and enforces the contract. All members and
entities in the bargaining unit receive equal protection and advice regarding
the enforcing of the contract. I am not your attorney. I work for the CBA.
Your case is complex and is based upon the FAP you presented to
me as well as other matters raised by the Dean and the chair of the DPC
[Department Personnel Committee]. I will tell youfrankly that after
consultation with others in the UFE Executive Board I have deep concerns
regarding your FAP as a document. It seems to fail meeting specific CBA
criteria for an FAP given in 7.3.1, and parts of it are vague in the extreme
making assessment difficult ifnot impossible. We are currently taking
advice regarding the best way to proceed. I am available discuss this with
you on Tuesday 1:00 PM in my office when I may have further knowledge.
CP at 1058. Gary Krug copied UFE's President of Bargaining Suzanne Milton and WEA
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Doron v. Eastern Washington Univ.
Organizer Gary McNeil on his response to Doron.
On November 22, in the same e-mail thread, Doron wrote Krug:
I still do not understand what you are telling me. I came to you to
have an advocate in dealing with a violation of the CBA by my supervisors.
I asked you when we first met if I needed a lawyer and you said no, the
union would provide me with one if I needed it, but I wouldn't need it
because my case was "an easy one." You will also recall that prior to the
meeting with my chair and DPC you waited in my office with me and then
we walked into the meeting together. This is what an advocate would do.
The last paragraph of your email is particularly troubling. We have
discussed many times that my FAP is crystal clear on the standards I am to
be evaluated on. I would also remind you that it is an approved FAP, all
the way up through the Provost of Eastem Washington University. It
would certainly not be my fault or my responsibility if the document I
signed in good faith and have been following for a full year did not meet
CBA standards.
Finally, who are these people you are all ofa sudden cc'ing in your
email to me?
CP at 1061. Krug replied:
As I said, working a problem is a process. On first glance, the 3.0
median score looked ok, but it is stated as an "objective." Further, as I
noted this FAP falls short on points of 7.3.1 and possibly other areas. The
mission of the UFE, again, is to clarify and enforce the contract, the FAP,
being a document under that contract. As such, if the FAP does not meet
the CBA it is not a valid document. It does not matter who signed this
document. This is the first time UFE has seen it and has had opportunity to
study it in detail. UFE will recommend that the existing F AP be rejected
and that a new one that meets the requirements of the CBA be drafted by
the end of Winter quarter.
Regarding your question of persons cc'd. Suzanne is VP for
Bargaining, Gary McNeil is our state organizer. All communications
copied to them are confidential.
CP at 1061.
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No. 31636-0-111
Doron v. Eastern Washington Univ.
WEA representative Gary McNeil first heard of the dispute between Michael
Doron and EWU when Gary Krug forwarded him a copy of the November 21 e-mail
message. As an organizer for WEA, McNeil helped to negotiate the EWU CBA. Krug
later testified: "Gary McNeil is someone I will consult with from time to time regarding
cases from time to time. He sometimes has some very good ideas." CP 1012. Krug kept
McNeil apprised of the dispute between Doron and EWU, stating "I valued his advice
and I found him-I found him to be a good person to sound ideas from, particularly the
idea ofthe-ofunderstanding the role of the FAP in all this." CP at 1014.
On November 22,2010, Gary Krug asked for Gary McNeil's feedback on a
proposed e-mail to EWU officials, which outlined the purported deficiencies in Michael
Doron's FAP. When later deposed, Krug could not remember whether McNeil answered
his request for feedback. There is no evidence in the record that he answered. Less than
one hour after requesting McNeil's feedback, Krug sent the e-mail to Michael Doron,
Department Chair Elizabeth Murff, and Arsen Djatej, with a copy to Provost Rex Fuller,
Business School Dean Niel Zimmerman, and McNeil. Krug wrote:
It is the opinion ofUFE that the Faculty Activity Plan for Michael
Doron, dated November 20, 2009 is flawed, indefensibly vague, and not in
compliance with the requirements for an FAP stated in the Collective
Bargaining Agreement in effect 2009-2013. In particular the document is
not in compliance with Article 7.3.1 and subheadings of that article.
"7.3.1 Plan Content. The FAP shall be consistent with the University
mission and Strategic Plan, college, library, and department strategic plans,
P&P, and the Agreement. The FAP shall include all areas of professional
activity, development, and expected performance; describe an equitable
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Doran v. Eastern Washington Univ.
workload; and include any other expectations as required by department or
college/library P&P. Where the FAP is intended to lead to tenure and/or
promotion the plan shall so state."
Doron's F AP does not state that it is intended to lead to tenure and
promotion.
Doron's F AP is not consistent with the college P&P.
Doron's F AP presents assessment criteria that cannot be measured
and it does not include metrics from the college P&P.
We do not hold this list to be exhaustive or complete.
UFE proposes that either the Chair of ACIS or Dr. Doron requests a
new FAP to be negotiated as is set forth in the CBA 7.3.5. This process
should be completed by the end of Winter Quarter.
CP at 1065. Section 7.3.5 is the previously quoted section that allows for modification of
a FAP at the request of either the faculty member or his or her department chair.
On November 24, 2010, Department Chair Elizabeth Murff e-mailed Michael
Doron notifying him of his new teaching load, consisting of lower level classes and the
need to develop an improvement plan by January 7,2011. Murff attached a revised
faculty workload to this e-mail, which described Doron's scholarship goals as submitting
for publication and presenting at a conference "at least one article clearly related to
current accounting/auditing practice." CP at 787. Murffs e-mail also stated:
In accordance with article 7.3.5 of the CBA dated 10/8/09-8/31113
and Gary Krug' s email of 1112211 0, as department chair I am requesting a
modification of your current FAP in order to bring it into agreement with
the various documents mentioned in article 7.3.1 of the CBA and with
standard 10 of our AACSB Accreditation. This process needs to be
completed by the end of Winter quarter, March 18, 2011.
CP at 784.
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Doron v. Eastern Washington Univ.
On December 1, 2010, EWU Provost Rex Fuller, as Chief Academic Officer,
approved the reappointment of Michael Doron, writing:
I am pleased to inform you that I concur with the recommendations
of your departmental colleagues, your department chair, and your dean and
approve you for appointment, with an improvement plan, to an additional
year in your probationary period through the 2011-2012 academic year.
You will be reviewed for tenure and promotion during your final year of
your probationary appointment.
As noted by the DPC, department chair, and dean, you are required
to develop an improvement plan by no later than the end of the first week
of Winter Quarter 2011, pursuant to section 5.3.l.b of the Collective
Bargaining Agreement. You should focus this plan on ways to improve
your teaching effectiveness and demonstration of scholarly activities related
to the expectations outlined in the department and college policies and
procedures and your FAP. As you know, the CBA enables you to revise
your Faculty Activity Plan for consistency with these expectations. In
order for you to be eligible for tenure and promotion, you will need to
demonstrate effective teaching and produce appropriate peer-reviewed
scholarly works as outlined in your department and college policies and
procedures.
CP at 793. Under section 5.5 of the CBA, Michael Doron had five days from the date of
this letter to petition Provost Fuller for reconsideration of the "negative
recommendation." Also, under section 5.6.2 of the CBA, Doron had fifteen days to
accept "the conditions of appointment," or, under section 5.6.3 of the agreement, fifteen
days to provide notice of his intent to "resign." CP at 250.
On December 1,2010, Michael Doron replied to Elizabeth Murffs November 24,
2010 e-mail and asked that his teaching load not change. Murff denied Doron' s request
later that afternoon.
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Doron v. Eastern Washington Univ.
Section 7.5.6 of the CBA governs "Disputes Over Workload" and initially requires
UFE to contact the department chair to arrange a meeting. "If the meeting does not result
in a mutually agreed resolution, and the UFE chooses to pursue the dispute," the union
president refers the dispute to the Faculty Review Committee (FRC). CP at 257.
On December 6, 2010, Michael Doron e-mailed Gary Krug to expressly request
that UFE file a grievance against EWU for revising Doron's faculty workload without his
consent. Krug refused to file a grievance, because he believed Doron would be best
served by renegotiating his FAP. Doron further requested Krug refer the dispute to the
Faculty Review Committee under Section 7.5.6 of the CBA. Krug also refused this
request, later testifying: "Any Faculty Review Committee would have simply come back
to the FAP, the CBA, and the P & Ps on this. With, in my opinion, a fatally flawed FAP,
it would be a waste of time and wouldn't lead to a satisfactory resolution." CP at 1025.
On December 10,2010, union president Gary Krug met with Dean Niel
Zimmerman and Provost Rex Fuller. At that meeting, all agreed that Doron's FAP could
not be changed without Doron's consent. Krug did not inform Michael Doron of this
consensus. Krug warned Zimmerman and Fuller that if EWU pushed an improvement
plan on any issue other than teaching, United Faculty would file a grievance. On
December 15, 2010, UFE President Gary Krug e-mailed Michael Doron to encourage
him to renegotiate his FAP in good faith with his colleagues.
On December 21,2010, Michael Doron e-mailed Department Chair Elizabeth
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No. 31636-0-111
Doron v. Eastern Washington Univ.
Murff, outlining his continuing concerns. Doron began: "I have determined that
rewriting my approved Faculty Workload, signed by you, Rex and myself last spring,
would be a violation of the Collective Bargaining Agreement that I would not be
comfortable colluding in." CP at 795. Doron noted that his workload had changed
without his input, that he did not receive sufficient notice in violation of the CBA, and
that the revised workload set goals in a scholarship exceeding the scope of his FAP.
Doron concluded: "If I am forced to teach ACCT 252, it will be with the understanding
that I believe this to be a violation of the Collective Bargaining Agreement and that I am
not waiving any rights to pursue legal remedies in the future." CP at 795. Doron
forwarded this e-mail to Gary Krug.
On January 1,2011, Niel Zimmerman e-mailed Michael Doron to confirm that
Doron would teach Accounting 252. Zimmerman noted that Doron was "free to continue
to dispute this assignment," but failure to "show up ... may be the basis for discipline."
CP at 820. Doron confirmed that night that he would teach the class.
On January 3, 2011, Elizabeth Murff e-mailed Michael Doron to remind him that
he needed to develop an improvement plan by January 7. Doron responded on January 5:
The Collective Bargaining Agreement states that "Full-time faculty
on probationary status will be evaluated annually" and that these
"evaluations will be based upon progress in meeting goals contained in the
FAP" (Article 5.3.la). In discussing Improvement Plans, the CBA goes on
to explain that "if performance shortcomings are identified through the
evaluation process, the probationary faculty member shall be provided with
a plan to correct the performance shortcomings" (Article 5.3.1b). As I have
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No. 31636-0-111
Doron v. Eastern Washington Univ.
pointed out several times, I am meeting, in fact exceeding, all of the
standards in my approved F AP. It would therefore be a violation of both
the spirit and the letter of the Collective Bargaining Agreement for an
Improvement Plan to be prepared in my case. I will not participate in this
process and will not agree to any changes to my F AP. I am enclosing a
discussion of the issues identified in our conversations and emails.
CP at 822. In the attached document, Doron summarized that he was hired to conduct
research in accounting history, his FAP embodies that expectation, and EWU encouraged
him when he successfully presented a paper on accounting history in New Zealand.
In a deposition, EWU questioned Michael Doron:
Q: Request for Admission No. 16 states: "Please admit that you
refused to accept Eastern Washington University's conditional offer of
reemployment for the 201112012 school year."
Your response after an objection states: "Admit that Doron
believed that EWU violated the CBA by conditioning renewal of Dr.
Doron's probationary appointment upon Dr. Doron developing an
Improvement Plan which required Dr. Doron to revise his approved F AP
without Dr. Doron's consent.
"Further admit that Dr. Doron did not develop an
Improvement Plan after EWU refused to provide assurances that Dr. Doron
would not be required to revise his approved F AP."
"Otherwise deny."
That really doesn't respond to the question.
Did you refuse to accept a conditional offer from EWU of
reemployment that would have included an Improvement Plan for the
201112012 school year?
A: I did finally -- that e-mail --well.this one that you have already
shown me, I said I will not participate in writing an Improvement Plan.
They then went ahead and didn't reappoint me on that basis.
Q: Didn't they, in fact, draft an Improvement Plan for you and make
an offer that any reemployment would be conditioned upon the
Improvement Plan?
A: Beth [Chair Elizabeth Murff] did write up -- well, I don't know if
it was an Improvement Plan. It was a new workload.
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Doron v. Eastern Washington Univ.
Well, yeah, I don~t know that that was an Improvement Plan.
She sent me a workload that she had written up. I don't know that they
ever sent me an Improvement Plan.
Q: Did you get a conditional offer of reemployment for the
201112012 school year from Eastern Washington University?
A: Yeah. I believe a letter from Rex said with the understanding
that you develop an Improvement Plan. Yes, I think that's right.
Q: Do you consider that a conditional offer of reemployment?
[Doron~s Counsel]: Objection to the form of the question. It
requires a legal conclusion.
Try to answer it.
A: Yes, that's how I understood it.
Q: (By Ms. Clemmons) Did you reject the conditional offer of
reemployment for the 201112012 school year?
[Doron's Counsel]: Objection to the form of the question. It
requires a legal conclusion.
A: Again, in this e-mail here I say I refuse to do an Improvement
Plan. And I say -- well, I didn't say -- but I guess my implication was you
guys go ahead and do what you're going to do based on that. You want to
not reappoint me because of that, then do that.
Q: I am looking for you to simply say I either accepted the offer or I
rejected the offer.
And you were made a conditional offer of reemployment for
the 201112012 school year. Did you accept it or reject it?
[Doron's Counsel]: Objection to theform of the question. It
requires a legal conclusion; asked and answered.
One more time.
A: I never explicitly wrote a letter "I reject this." So I guess my
answer is, no, I didn't accept or reject.
Q: (By Ms. Clemmons) In the letters you did write, did you consider
yourself to be rejecting it?
A: That's what I was implying, yes.
Q: At any point in time did you write anything indicating that you
were accepting that conditional offer?
A: Again, I would point to the suggestions I tried to make about
what -- how we could justify my work, how we could change things, what I
wanted to see us do. So I don't know. I would take that as my trying to
negotiate on that point.
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Doron v. Eastern Washington Univ.
But, no, I never accepted the conditional offer of
employment.
CP at 1660-63 (emphasis omitted).
Michael Doron testified regarding his January 5,2011 e-mail:
Q. Did you meet the time line~ provided by Eastern Washington
University to develop an improvement plan?
A. That's a long answer. I made many efforts to negotiate with
them over time. As we've said, finally -- when they made it clear to me,
when Niel Zimmerman made it clear to me that the whole process was
meaningless, I finally said, "I will not participate in this anymore."
Q. And that was January 5th, 2011, correct?
A. I believe the memo we looked at Wednesday, yes, I think
January 5th.
Q. And did you understand at that time that it was clearly the
university's position that if you did not participate in developing an
improvement plan, that you would not be renewed for the following year?
A. They did clearly state that was their position.
CP at 1677-78 (emphasis omitted).
On January 9, 2011, Michael Doron e-mailed Gary Krug:
You may recall the email below, dated nearly a month ago, where
you ask for my "continued indulgence" and plead that "many people are
working hard on this case to bring about a resolution." Since I have heard
nothing from you since, I am assuming this email, like everything else
you've done in my case, was some sort ofjoke. In the meantime, I
continue to fight single-handed against the entire administration of the
College as they tear my "contract" to shreds. Anytime the UFE would like
to get involved, let me know.
CP at 1085.
Gary Krug responded on January 12:
Several members of UFE executive have met and reviewed your
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Doron v. Eastern Washington Univ.
case on multiple occasions. We have also consulted with EWU
administration regarding your case, and we have considered all
communication from you.
UFE has been clear that the central document in your contract, your
FAP, is deeply flawed. UFE has found nothing to grieve in your case with
the exception of the FAP itself, and as neither you nor administration have
expressed any interest in this solution, there is no action for UFE to take.
We have encouraged you to develop a compliant FAP that would
clearly define the conditions of your employment. You have declined to
take this advice and have followed your own counsel. UFE cannot advise
you on actions that you take contrary to our recommendations.
Throughout, UFE has acted in what we believe is your best interest
and the best interest of the CBA.
CP at 1085.
On January 20, 2011, Business College Dean Niel Zimmerman e-mailed Michael
Doron to extend the deadline for developing an improvement plan and outline the
consequences for not doing so. Zimmerman wrote:
Your email of 115/11 regarding the requested improvement plan and
revised FAP indicated that you "will not participate in this process and will
not agree to any changes to [your] FAP." That email has been read and
given due consideration. However, the situation remains as follows:
As significant issues were noted during the evaluation process in the
areas of teaching and research, your annual evaluation resulted in
recommendations for continuation on probationary status with an
improvement plan [CBA 5.3.1(c)(ii)] by the dean (dated 11110/10), the
department chair (dated 10/25/10), and the department personnel committee
(dated 10/18/10). Though thepreviously set deadline (1/7/11) for
completion of a meaningful improvement plan that leads to tenure [CBA
5.3.l(b)] has now passed we would like to extend one last opportunity to
develop an improvement plan that addresses the issues noted and provides
direction for you concerning your progress toward tenure and promotion.
As your department chair is not of your discipline and the issues noted are
primarily discipline based, Dr. Arsen Djatej is available to assist you in
developing the plan. Your department chair, Dr. Elizabeth Murff, will act
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No. 31636-0-111
Doran v. Eastern Washington Univ.
in oversight and approval roles. This process must begin by February 1,
2011 with a completion date of February 18,2011. Failure to develop an
improvement plan may lead to progressive discipline lCBA 13.2].
At the recommendation of the UFE (dated 11/22/10), the department
chair requested a modification of your current F AP in order to bring it into
agreement with the CBPA Policies and Procedures, CBA 3.6.1 and 7.3.1
and AACSB Standard 10. This request was made to you in accord with
CBA 7.3.5 on 11124110. The DPC [Department Personnel Committee]
would like to meet with you before February 28, 20 II to get this
collaborative process going. Please confirm to me your willingness to
proceed, and we will arrange a meeting with the DPC. The deadline for
completion of this process [CBA 7.3.2 and CBA 7.3.3] was given as March
18,2011. If a revised FAP in accord with CBA 3.6.1, and 7.3.1 and
AACSB Standard 10 is not prepared by this date, then your existing
FAP will be revised by the department chair and the department
personnel committee such that it meets the approval of the dean and
the Chief Academic Officer [CBA 7.3.3(b)].
Please let me know, in writing, by January 28, 2011 whether or not
you agree to participate in the development of the improvement plan and
the revised FAP.
CP at 413-14 (emphasis in original).
Michael Doron responded to Niel Zimmerman's January 20, 2011, e-mail on
January 25:
Thank you for your email. 1 would need to be assured that these
meetings are good faith negotiations and not simply steps towards
disciplinary action. Particularly, the points 1 have raised in my previous
communications must be addressed:
1.) Beth [Murff] already prepared a new Faculty Workload for me.
I discussed the problems with this document in my email of Dec. 21 st and
have received no response.
2.) Your email does not even acknowledge the six-page memo 1 sent
on January 5th. This suggests that my concerns are not being taken
seriously.
3.) 1 am still unclear on what the terms of this renegotiation will be.
Once my FAP and Workload have been rewritten, what assurance will I
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No. 31636-0-II1
Doran v. Eastern Washington Univ.
have that these documents will remain in force for the remainder of my
probationary period? Does the administration reserve the right to
unilaterally change the terms of my employment whenever it sees fit?
CP at 416 (emphasis omitted).
Dean Niel Zimmerman responded on January 27 by both e-mail and letter. In his
e-mail response, Zimmerman explained that Elizabeth Murff responded to Michael
Doron's December 21,2010 e-mail on December 23, and that Murffs e-mail noted the
"draft" nature of Doron' s revised workload. Zimmerman reiterated the position that
Doron needed to produce some intellectual contributions related directly to current
accounting practice in order to demonstrate qualification to teach in those areas and
Doron's intellectual contributions in accounting history did not accomplish that.
In his January 27 letter, Niel Zimmerman reminded Doron that his "reappointment
for the 2011-12 academic year was offered based on the requirement that [he] develop an
improvement plan." CP at 848. Zimmerman continued:
Despite your failure to work with the Department chair to create an
improvement by the January 7, 2011 due date, the University offered you a
later date.
The CBA language requires that you develop an Improvement Plan,
in conjunction with the chair, CBA 5.3.1(b). Your letter of reappointment
requires that you develop that plan as a condition of your reappointment.
Therefore, I am directing you to participate in that process, consistent with
the provisions of the CBA, which include meeting with Dr. Murff by
February 1,2011, and completing an Improvement Plan no later than
February 18, 2011. As previously communicated, if you fail to develop
an Improvement Plan, this may lead to discipline. Furthermore, if
your [sic] fail to begin participation in the development of an
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No. 31636-0-III
Doran v. Eastern Washington Univ.
Improvement plan by February 1,2011 and/or fail to complete an
Improvement Plan by February 18,2011, this may be treated as
insubordination and may also lead to discipline as provided by Article
. 13 of the CBA.
In closing, the University is interested in working with you to
complete an Improvement Plan as provided by the terms of the CBA.
Therefore, I truly hope that you will consult with Dr. Arsen Djatej and
work with Dr. Murff to develop a plan.
CP at 848-49 (emphasis in original).
On February 2, 2011, Michael Doron responded to Niel Zimmerman's January 27
letter, again refusing to participate:
Thank you for your email. I asked for "assurance that the meetings
would be good faith negotiations and not simply a step towards disciplinary
action. " You have answered my question plainly . Your email ignores most
of my concerns and offers risible rejoinders to the rest. What is consistent
is the complete absence of any attempt at conciliation, any concession that
anyone but myself bares any responsibility for this situation. You have
made it clear that these "meetings" would simply be a pretense to begin
disciplinary action. Let me save you the time: I will not participate in this
process, and will not agree to any changes to my approved FAP or Faculty
Workload.
CP at 425.
On February 7, 2011, Provost Rex Fuller wrote Michael Doron:
The purpose of this letter is to inform you of my conclusion that you
have rejected the conditions of your reappointment for the 2011-2012
academic year. My conclusion is based upon your repeated refusal to
participate in the development of a performance improvement plan, which
is a required term of your reappointment.
By these responses, [referring the January 5 and February 2
refusals,] you have rejected your reappointment for the 2011-2012
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No. 31636-0-III
Doran v. Eastern Washington Univ.
academic year. Accordingly, your employment at the University will
terminate at the end of your current term of appointment, June 15, 2011.
CP at 427-28. Fuller did not support this conclusion with "just cause" or follow the
discipline procedures in Section 13 of the CBA.
On February 9, 2011, Michael Doron forwarded Rex Fuller's February 7 message
to UFE President Gary Krug, writing: "The university has terminated me effective June
for not writing a new F AP. This is something the union will have to act on. Let me
know." CP at 1087.
Gary Krug forwarded Michael Doron's e-mail to WEA's Gary McNeil, writing:
"Have the procedural, contractual steps been followed here? Is just causes [sic] for
dismissal shown. I'll look at this later tonight and tomorrow, but please share your
thoughts in the meantime." CP at 1087. McNeil replied to Krug: "Gary: [t]he CBA
covers both progressive discipline and just cause. Has this faculty person been
disciplined before?" CP at 1089. From this point on, Gary McNeil assumed a leadership
role in Doron's case.
On February 11,2011, WEA's Gary McNeil e-mailed UFE's Gary Krug with his
assessment that "[t]ermination is a stretch. We could grieve progressive discipline. The
remedy would probably have to include an improvement plan. . .. The union does not
have to file a grievance. We have to deliberate the case, not decide anything on
personalities." CP at 1092-93. McNeil later declared:
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No. 3 1636-0-III
Doron v. Eastern Washington Univ.
In an email dated February 11, 2011, I outlined the various issues
that were associated with the letter dated February 7,2011 that Dr. Fuller
wrote to Dr. Doron informing him that he had rejected the conditions of his
reappointment by refusing to participate in the development of an
improvement plan. This email only contained my initial impressions of Dr.
Fuller's letter. Although I stated in the e-mail that "Termination is a
stretch", we later determined that Dr. Doron had refused to accept the offer
of reappointment EWU made to him because he refused to agree to
participate in the development of an improvement plan. Therefore, he had
not been terminated and a grievance was not warranted because he had
refused to accept EWU's offer of employment.
CP at 2695.
On February 16,2011, Gary Krug informed Michael Doron that "UFE is
requesting from EWU administration all documents relevant to their decision. We will
review these regarding procedures ofjust cause, discipline, dismissal and related
matters." CP at 1095.
On March 11,2011, WEA's Gary McNeil e-mailed UFE President Gary Krug and
UFE Grievance Chair Elizabeth Kissling. McNeil wrote:
I spoke with a WEA attorney on this issue today. His initial reaction
to the situation is as follows:
1. Get Doron to accept the contract; management has the right to
terminate him for not agreeing to the proposed contract. Without a
contract, no work. Doron's refusal does not leave a status quo F AP-it
leaves him without a contact.
2. Ifhe signs, then there is the matter ofthe improvement plan. We
could pursue grieving the actual improvement plan that is devised or
initiate meetings with Fuller to explore ways to have a coherent
FAP/improvement plan. Can an improvement plan become a new FAP-is
that doable? Of course, Professor Doron would have to agree to work with
this reality.
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No. 31636-0-111
Doron v. Eastern Washington Univ.
3. Now my reflections. Management does have a solid argument.
He is in probationary status. They have the right under the CBA to offer a
contract with an improvement plan.
4. Crafting an improvement plan based on a flimsy FAP does
produce a problem. If Professor Doron wants to work at EWU, he will
have to see the opportunity to work here by crafting a plan that re-writes the
FAP. His one solid point is that how you can have specifics in an
improvement plan when there are little specifics in the FAP. Of course, if
you want a job, you can bend a good bit.
5. So we meet with him and tell him the "facts on the ground." His
argument-no need for an improvement plan--does not recognize that he is
an [sic] probationary employee working on probationary contracts.
Comments?
CP at 1102. Michael Doron claims this e-mail conveys "advice from the WEA to UFE
that EWU Provost Fuller had the authority under the CBA to 'conditionally' reappoint
Doron, and terminate Doron' s reappointment if Doron does not accept an improvement
plan." Br. of Appellant at 27.
On March 16, 20 11, Gary McNeil, Elizabeth Kissling, and Michael Doron met to
draft a "Counter-Improvement Plan" as a gesture of good faith. McNeil presented the
plan to Carol Hawkins, in EWU's human resources department, and Laurie Connelly, an
Assistant Attorney General representing EWU. McNeil discussed the plan with Rex
Fuller over the phone. Fuller found the plan "lacking," because he thought it did not
address the shortcomings identified previously.
On March 17,2011, Hawkins e-mailed McNeil:
Thank you for meeting with Laurie Connelly and I yesterday to
discuss and review the proposal you dropped off on behalf of Michael
Doron. Laurie and I met with Provost Fuller this morning and discussed it
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No. 31636-0-III
Doron v. Eastern Washington Univ.
with him. He has conferred with the Dean and Department Chair, and after
careful consideration, he has determined to proceed with the nonrenewal.
Please let me know if I can provide any additional information or
assistance.
CP at 1120. In his deposition, Michael Doron admitted that his employment came to an
end because he rejected the improvement plan offer, not because he was disciplined or
terminated.
On April 16, 2011, Michael Doron received an offer to teach at California
Southern University at Northridge, which he accepted. Doron's employment with EWU
ended June 15,2011.
PROCEDURE
On June 27, 2011, Michael Doron filed suit against EWU, UFE, United Faculty of
Washington State, WEA, Arsen Djatej, Susan Megaard, Duanning Zhou, and Elizabeth
Murff. Doron claimed that EWU violated the collective bargaining agreement and the
covenant of good faith. He claimed that EWU wrongfully discharged him in violation of
public policy, wrongfully withheld wages, and is liable in promissory estoppel. Doron
alleged UFE breached its obligation of fair representation. He contended that United
Faculty of Washington State and the WEA interfered with his business expectancies.
Finally, Michael Doron alleged Arsen Djatej, Susan Megaard, Duanning Zhou, and
Elizabeth Murff defamed him.
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No. 31636-0-111
Doron v. Eastern Washington Univ.
Michael Doron amended his complaint on September 24,2012. The amendment
added a claim for disability discrimination against EWU, UFE, and Department Chair
Elizabeth Murff. The amendment also added Provost Rex Fuller and Dean of Business
School Niel Zimmerman as defendants for purposes of the disability discrimination
claim.
Over a period of three months, the court granted dismissal, on summary judgment,
of all claims asserted by Michael Doron against all defendants. In turn, the trial court
denied Michael Doron's motion for summary judgment. On appeal, Doron does not
challenge the dismissal of his claims for defamation or disability discrimination.
LA W AND ANALYSIS
Breach ofContract
The target of Michael Doron's breach of contract claim is EWU and the claim is
based on the collective bargaining agreement between his union, UFE, and the university.
Washington courts apply contract law to interpret collective bargaining agreements.
Navlet v. Port ofSeattle, 164 Wash. 2d 818, 842, 194 P.3d 221 (2008). In construing a
written contract, the basic principles require that (1) the intent of the parties controls, (2)
the court ascertains the intent from reading the contract as a whole, and (3) a court will
not read an ambiguity into a contract that is otherwise clear and unambiguous. Mayer v.
Pierce County Med. Bureau, Inc., 80 Wash. App. 416, 420,909 P.2d 1323 (1995). This
court interprets an agreement in a manner that gives effect to all the contract's provisions.
46
No. 3 I 636-0-III
Doron v. Eastern Washington Univ.
Nishikawa v. u.s. Eagle High, LLC, 138 Wash. App. 841, 849, 158 P.3d 1265 (2007).
Interpretation of a contract provision is a question of law only when (1) the interpretation
does not depend on the use of extrinsic evidence, or (2) only one reasonable inference can
be drawn from the extrinsic evidence. Tanner Elec. Co-op. v. Puget Sound Power &
Light Co., 128 Wash. 2d 656, 674, 911 P.2d 1301 (1996).
Michael Doron asserts EWU violated the CBA in four respects. First, EWU had
no prerogative to reappoint him "contingent" on an improvement plan under the CBA.
Second, he had no obligation to formally accept or reject reappointment and thus EWU
could not terminate his employment because he failed to respond to the December 1,
2010 reappointment letter. Third, the December 1, 20 10 reappointment letter did not
require him to accept the reappointment for it to become effective. The second and third
arguments run together. Fourth, EWU could not terminate his employment without
following the CBA's disciplinary process. Unambiguous terms of the CBA defeat
Doron's contentions.
Under section 5.3.1 of the CBA, a faculty member's annual review results in one
of four options, one option which is the member continuing on probationary status with
an improvement plan. Doron provides no testimony that the CBA was intended by the
parties to mean other than what it says.
Under section 5.6 of the CBA, a faculty member must accept reappointment or
notify EWU of his or her intent to resign. Subsection 5.6.2 demands that the
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No. 31636-0-II1
Doron v. Eastern Washington Univ.
reappointment letter be signed by the appointee and returned to the Chief Academic
Officer within fifteen (15) days of its receipt to indicate the appointee's acceptance of the
conditions of appointment. Thus, EWU followed the contract, rather than breached it,
when demanding that Michael Doron accept in writing his reappointment on the
condition of preparing an improvement plan.
Michael Doron emphasizes that his December 1, 2010 reappointment letter did not
inform him that he needed to accept reappointment. But the law does not require an
employer to remind the employee of the terms of a collective bargaining agreement.
Michael Doron contends an issue of fact as to whether he rejected the
reappointment offer precludes a summary judgment ruling. The undisputed evidence,
however, is to the contrary. EWU offered Michael Doron reappointment with an
improvement plan twice, and Doron twice rejected the offer. Doron first rejected
reappointment when he e-mailed Elizabeth Murff on January 5, 2011, stating: "I will not
participate in this process and will not agree to any changes to my FAP." CP at 822.
Doron later testified that he understood the December 1, 2010 reappointment letter as a
conditional offer of employment, which he implicitly rejected with his January 5, 2011 e-
mail. After the deadline for developing an improvement plan passed, EWU extended
Doron "one last opportunity to develop an improvement plan." CP at 413. Doron again
responded, "Let me save you the time: I will not participate in this process, and will not
agree to any changes to my approved FAP or Faculty Workload." CP at 425.
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No. 31636-0-III
Doron v. Eastern Washington Univ.
In repeatedly rejecting the conditions of his reappointment, Michael Doron
emphasized his belief that EWU cannot unilaterally modify his faculty activity plan. In
this lawsuit, he advocates this belief by arguing any insistence that he amend his FAP
violated the CBA. In fact, on November 24, 2010, Elizabeth Murff requested a
modification to Michael Doron' s FAP by March 18, 2011. She cited the CBA section
that allowed amendments to the plan.
Two provisions of the CBA promote Michael Doron's argument and cause us
caution when affirming the trial court. Section 5.3.l(a) reads, in part, that "[i]t is
expected that the FAP will be in effect throughout the probationary period unless
modified by mutual agreement between the faculty member, chair, personnel committee,
dean, and Chief Academic Officer." CP at 242-43 (emphasis added). The term "mutual
agreement" is strong language in favor of Doron. Section 7.3.3(a) of the CBA, under
which any agreed amendments or revisions to the FAP made as a result of the
collaborative development process must be signed by the faculty member, promotes
Michael Doron's argument and causes us further caution when affirming the trial court.
Other sections of the collective bargaining agreement suggest the administration
may demand a change in the FAP and only administration members need approve the
changes. Section 7.3.5 of the CBA states: "FAPs may be modified during their term. A
faculty or the chair may request in writing a modification. All modifications are subject
to the same approval process as the original FAP." CP at 252. Section 7.3.4 requires
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No. 31636-0-III
Doron v. Eastern Washington Univ.
approval of a FAP by the department personnel committee, the department chair, the
school dean, and the Chief Academic Officer. The section does not speak of approval by
the faculty member. Although development of the FAP is a collaborative process, and
the FAP must be signed by the faculty member, section 7.3.3 rests ultimate decision
making authority with the Chief Academic Officer.
We need not resolve whether the CBA requires approval by the faculty member of
a modification to his F AP, since we find this resolution unimportant to resolving the
appeal. In the reappointment letter, EWU did not demand a change in the FAP. The
school, instead, demanded an improvement plan. Although Michael Doron resisted an
improvement plan on the ground that he did not desire a change or only desired limited
change in the FAP, the two plans are separate. An improvement plan could be entered
without impacting the FAP. Michael Doron may have had the right to resist any change
in the FAP, but he had no right, under the CBA, to ignore EWU's demand for an
improvement plan. The undisputed facts show Doron rejected a legitimate offer of
retention from EWU.
Michael Doron's argument that EWU violated the disciplinary provisions of the
CBA hinges on his view that Rex Fuller's reappointment letter could not and was not
conditioned on an improvement plan, that he need not expressly accept the
reappointment, and thus he had a vested right to his professorship the following year.
Therefore, according to Doron, any dismissal needed to follow the disciplinary provisions
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No. 31636-0-III
Doron v. Eastern Washington Univ.
in the CBA. Our prior analysis shows that Doron's underpinnings for this argument
render it unsound. EWU possessed the prerogative to reappoint on condition of an
improvement plan and Michael Doron was obligated to accept in writing the
reappointment.
Michael Doron terminated his employment by failing to accept in writing the
reappointment. He was not discharged as a matter of discipline. In his deposition, Doron
admitted that his employment came to an end because he rejected the improvement plan
offer, not because he was disciplined or terminated. Article 13 applies in situations of
discipline and discharge for cause, not in Doron's circumstances. Instead section 5.3 of
the agreement addresses retention of probationary faculty.
Even viewing, the facts in a light most favorable to Michael Doron, Eastern
Washington University did not violate its collective bargaining agreement with the UFE
in this case. Since we so hold, we need not address EWU's argument that Doron's suit is
barred because of his failure to exhaust his contractual grievance remedies.
Promissory Estoppel
Michael Doron next assigns error to the trial court's dismissal on summary
judgment of his claim for promissory estoppel against EWU. Doron contends that EWU
Provost Fuller and Professor Djatej promised Doron, during the hiring process, that
Doron could meet any academic research requirements and be successful at EWU with
Djatej's help by allowing Doron to coauthor with Djatej. Doron argues that the promise
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No. 31636-0-III
Doron v. Eastern Washington Univ.
was broken when Djatej transferred to another university and did not coauthor with him.
After Djatej returned to EWU, Doron met with AIS Department Chair Elizabeth Murff
and Djatej to discuss their concerns in his second annual evaluation, and Doron offered to
coauthor academic papers with Djatej, but Doron's suggestions were ignored. Doron
further contends that, when accepting EWU' s offer, he rejected other job offers and
moved to Spokane based on the promises of Djatej and Fuller. According to Michael
Doron, EWU walked away from its promise to help Doron succeed in meeting his
academic research requirements when EWU Provost Fuller withdrew Doron's
reappointment.
In response, EWU contends Michael Doron's promissory estoppel claim fails, as a
matter oflaw for four reasons. First, no specific promise, let alone an enforceable
promise, was given to Michael Doron. Second, Doron could not rely on any promise
because of a provision in the CBA warning a faculty member that any oral promises are
not binding. Third, Arsen Djatej had no authority to bind EWU to a promise. Fourth, a
party may not recover in promissory estoppel when a written contract controlled the
parties' relationship. We agree with EWU's first argument and thus do not address the
remaining contentions.
Promissory estoppel relates to promises which have no contractual basis in that
there was no bargain. Klinke v. Famous Recipe Fried Chicken, Inc., 94 Wash. 2d 255, 261
nJ, 616 P.2d 644 (1980). The purpose of promissory estoppel is to make a promise
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binding, under certain circumstances, without consideration in the usual sense of
something bargained for and given in exchange. Klinke, 94 Wash. 2d at 261 n.4. The
doctrine of promissory estoppel was developed to cover certain circumstances in which
consideration is lacking, but the enforcement of the promise is appropriate because the
promisor should expect the promise to induce detrimental reliance on the part of the
promisor. Hatfield v. Columbia Fed. Savs. Bank, 57 Wash. App. 876, 885, 790 P.2d 1258
(1990). The doctrine of promissory estoppel, unlike equitable estoppel, can be used as a
"sword" in a cause of action for damages. Klinke, 94 Wash. 2d at 259; Flower v. T.R.A.
Indus. Inc., 127 Wn. App. 13,31, 111 P.3d 1192 (2005).
In Washington, promissory estoppel has five elements:
"(1) [a] promise which (2) the promisor should reasonably expect to
cause the promisee to change his position and (3) which does cause the
promisee to change his position (4) justifiably relying upon the promise, in
such a manner that (5) injustice can be avoided only by enforcement of the
promise."
Havens v. C&D Plastics, Inc., 124 Wash. 2d 158, 171-72,876 P.2d 435 (1994) (quoting
Klinke, 94 Wash. 2d at 259 n.2)
Obviously, promissory estoppel requires a promise. Elliott Bay Seafoods, Inc. v.
Port ofSeattle, 124 Wash. App. 5, 13,98 P.3d 491 (2004). "A promise is 'a manifestation
of intention to act or refrain from acting in a specified way, so made as to justify a
promisee in understanding that a commitment has been made.''' Elliot Bay Seafoods,
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Inc., 124 Wash. App. at 13 (quoting RESTATEMENT (SECOND) OF CONTRACTS § 2(1)
(1981).
Not every promise qualifies for promissory estoppel. "A statement of future intent
is not sufficient to constitute a promise for the purpose of promissory estoppel. An
intention to do a thing is not a promise to do it." Elliot Bay Seafoods, 124 Wash. App. at
13. Importantly, promissory estoppel requires the existence of a promise that is "clear
and definite." Havens, 124 Wash. 2d at 173. Another necessary condition is that the
promise be worded consistently with an intent for it to be enforceable. Wash. Educ.
Ass'n v. Wash. Dep't ofRet. Sys., 181 Wn.2d 212,225,332 P.3d 428 (2014); Workman v.
United Parcel Serv., Inc., 234 F.3d 998, 1001 (7th Cir. 2000) (applying Indiana law);
Bouwens v. Centrilift, 974 P.2d 941,947 (Wyo. 1999); Phipps v. IASD Health Servs.
Corp., 558 N.W.2d 198,204 (Iowa 1997). The condition is similar in nature to
promissory estoppel's element that the speaker should reasonably expect that the
promisee change his or her position based on a promise.
Under Michael Doron's version of the facts both Arsen Djatej and Rex Fuller
"promised" that Djatej would coauthor publications with Doron and thereby assist Doron
in fulfilling his publishing requirements. Nevertheless, Doron points to no specific time
or date when an express promise was made. Doron repeatedly conceded he heard no
specifics of any promise. He does not provide testimony as to the specific words used so
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that one could conclude that the terms and contexts showed an intent to render a binding
promIse.
Rex Fuller and Arsen Djatej characterize their speech as leading to a general
understanding rather than specific promises. Fuller's, Djatej's, and Doron's
understanding never rose above general statements of intent of conduct in the future.
Arsen Djatej never offered or identified a specific research project Michael Doron could
coauthor with him. Doron testified that they "never set explicit terms." CP at 1459.
Doron's claim would command more attention ifhe had facts that he explained to Djatej
and Fuller that he might reject other offers of employment upon an assurance by the two
that Djatej would commit to coauthoring one or more articles and, in response, one or
both expressly stated that Djatej would copublish a certain article by a set date in order to
fulfill Doron's publishing requirements. But even then, the promise is in the nature of
future intent.
The law has not provided definitive guidelines for determining what promises are
enforceable in promissory estoppel. Therefore, we look to analogous cases for guidance.
We believe the Washington case most helpful in resolving EWU's summary
judgment motion is Elliott Bay Seafoods, Inc. v. Port o/Seattle, 124 Wash. App. 5,98 P.3d
491 (2004). The Port adopted a comprehensive scheme of harbor improvements
including the redevelopment of Pier 66 as a "mixed-use" or working fishing pier that
would include a maritime museum, conference center, fish processing, boat moorage,
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cruise ship terminal and various retail facilities. The port envisioned the pier becoming a
tourist attraction similar to Fisherman's Wharf in San Francisco. In response to the port's
announcement and plans, Elliott Bay Seafoods signed a lease for office space for its fish
retail business at Pier 66. Before signing the lease, Port officials told Elliott that plans for
the redevelopment of the pier included a working fishing pier concept. The Port
informed Elliott that it was in final negotiations with a business for an interactive exhibit
space as well as actual fish processing. Elliott then spent $400,000 constructing its store
and purchasing necessary equipment and appliances and opened its retail store. The
expected mixed-uses for other portions of the pier did not materialize to the detriment of
Elliott and Elliott sought to recover damages in promissory estoppel. This court affirmed
the trial court's grant of summary judgment to the port on the ground of a lack of genuine
issues of material fact, since the port made no promise. "What the parties hoped would
happen simply did not. That unfortunate tum of events does not support the claims
asserted." Elliott, 124 Wash. App. at 8.
Havens also supports affirmation of the summary judgment order in favor of
EWU. 124 Wash. 2d at 174. The employer rendered many interview statements upon
which the employee staked a claim for promissory estoppel. The court considered the
statements as typical of those often made in the interviewing process, such as what it
would take to get the plaintiff to leave his present job and statements relating to the
nature of the job for which he was hired.
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We may fault EWU for failing to warn Michael Doron of the impending departure
of Arsen Djatej and Djatefs failure to timely reply to Doron's fall 2009 request for
assistance. But no express promise was made to Doron ofDjatej's remaining in
employment with EWU, and faculty members sometimes move. What the parties
initially expected to happen did not come to fruition, but expectations do not suffice for
promissory estoppel.
Wrongful Termination
Michael Doron next assigns error to the trial court's dismissal on summary
judgment that he was discharged in violation of public policy. He claims that EWU fired
him for exercising his rights under the collective bargaining agreement and public policy
dictates that an employee be able to protect his bargained rights.
To prevail on a claim of wrongful discharge, a plaintiff must show: (1) the
existence of a "clear public policy" ("clarity" element), (2) whether discouraging the
conduct in which the employee engaged would jeopardize the public policy ("jeopardy"
element), (3) whether the conduct caused the discharge ("causation" element), and (4)
whether the employer offers an overriding justification for the discharge ("absence of
justification" element). Piel v. City ofFed. Way, 177 Wash. 2d 604, 610, 306 P.3d 879
(2013) (quoting Gardner v. Loomis Armored, Inc., 128 Wn. 2d 931,941,913 P.2d 377
(1996)). Implicit in the cause of action is that the employer discharges the employee or
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the employee shows a constructive discharge. Korslund v. DynCorp Tri-Cities Servs.,
Inc., 121 Wn. App. 295,315,316, 88 P.3d 966 (2004).
Doron's claim fails because, as discussed above, EWU did not discharge him. The
undisputed facts are that EWU reappointed Michael Doron on the condition of an
improvement plan and Doron rejected the reappointment. Doron does not allege
constructive discharge.
Doron emphasizes that he twice asserted that modifying his F AP would violate the
CBA, on December 21,2010 and January 5, 2011. Assuming, without deciding, a breach
of agreement, EWU still retained the prerogative to insist on an improvement plan.
Doron inconsistently expressed acceptance and rejection of an improvement plan, but,
more importantly, never signed the reappointment letter. Upon signing the
reappointment letter, he could have stated that he was not agreeing to a change in his
FAP.
The trial court did not err when it dismissed on summary judgment Michael
Doron's claim for wrongful termination.
Duty ofFair Representation
Michael Doron assigns error to the trial court's dismissal on summary judgment of
his claim that UFE breached its duty of fair representation.
The federal courts created the doctrine of a union's duty of fair representation.
The duty of fair representation evolved as a judicial response to the broad power granted
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to unions, under the National Labor Relations Act (NLRA), 29 U.S.C. § 159(a). Steele v.
Louisville & Nashville R.R., 323 U.S. 192,65 S. Ct. 226, 89 L. Ed. 173 (1944); Peterson
v. Kennedy, 771 F.2d 1244, 1253 (9th Cir. 1985). That duty extends to "all the
employees in such unit. ..." 29 U.S.C. § 159(a) (emphasis added). The duty of fair
representation exists because a single labor organization represents the interests of all
employees within a unit, and "if individual employees are not to be deprived of all
effective means of protecting their own interests, it must be the duty of the representative
organization to 'serve the interests of all members without hostility or discrimination
toward any, to exercise its discretion with complete good faith and honesty, and to avoid
arbitrary conduct.'" DelCostello v. Int'l Bhd. ofTeamsters, 462 U.S. 151,164 n.14, 103
S. Ct. 2281, 76 L. Ed. 2d 476 (1983) (quoting Vaca v. Sipes, 386 U.S. 171, 177,87 S. Ct.
903,17 L. Ed. 2d 842 (1967)).
Michael Doron was a state employee and thus Washington law controlled his
relationship with his union. Washington law echoes federal law. RCW 41.56.080, like
29 U.S.C. § 159(a), contains a provision that grants the union the power of exclusive
representation. The statute reads:
The bargaining representative which has been determined to
represent a majority of the employees in a bargaining unit shall be certified
by the commission as the exclusive bargaining representative of, and shall
be required to represent, all the public employees within the unit without
regard to membership in said bargaining representative
, ...
In State ex rei. Washington. Federation ofState Employees, AFL-CIO v. Board of
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No. 31636-0-III
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Trustees o/Central Washington University, 93 Wn.2d 60,67,605 P.2d 1252 (1980), our
high court observed that where Washington's Public Employees Collective Bargaining
Act, ch. 41.56 RCW is substantially similar to the NLRA, decisions under that act, while
not controlling, are persuasive. See also Public Empl. Relations Comm 'n v. Kennewick,
99 Wash. 2d 832, 664 P.2d 1240 (1983).
The burden of proving a breach of the duty of fair representation is on the plaintiff.
Vaca, 386 U.S. at 193; Beck v. United Food & Commercial Workers Union, Local 99,
506 F.3d 874, 879 (9th Cir. 2007). A reviewing court affords substantial deference to the
union's determination not to represent a member because the union must balance the
individual interests against the collective interests. Schmidtke v. Tacoma Sch. Dist. No.
10,69 Wash. App. 174, 181,848 P.2d 203 (1993). In accordance with the broad discretion
traditionally owed to unions, courts do not scrutinize the quality of a union's decisions.
Slevira v. Western Sugar Co., 200 F.3d 1218, 1221 (9th Cir. 2000); Muir v. Council 2
Wash. State Council o/County & City Emp., Local 1849, 154 Wash. App. 528, 533,225
P.3d 1024 (2009).
The duty of a union is dissimilar to the duty of an attorney whose obligation lies
solely to one discrete client. The collective bargaining system of necessity subordinates
the interests of an individual employee to the collective interests of all employees in a
bargaining unit. Allen v. Seattle Police Officers' Guild, 100 Wash. 2d 361, 370,670 P.2d
246 (1983).
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"A union breaches its duty of fair representation when its conduct is
discriminatory, arbitrary, or in bad faith." Muir, 154 Wash. App. at 531. On appeal,
Michael Doron does not argue that UFE's conduct was discriminatory. He argues the
union's conduct was arbitrary and in bad faith. "Conduct can be classified as arbitrary
'only when it is irrational, when it is without a rational basis or explanation.' This
deferential standard for arbitrary conduct 'gives the union room to make discretionary
decisions and choices, even if those judgments are ultimately wrong.'" Beck, 506 F.3d at
879 (citations omitted). "To establish that the union's exercise ofjudgment was in bad
faith, the plaintiff must show 'substantial evidence of fraud, deceitful action or dishonest
conduct.'" Beck, 506 F.3d at 880 (quotingAmalgamatedAss'n ofSt. , Elec. Ry. & Motor
Coach Emp. ofAm. v. Lockridge, 403 U.S. 274, 299, 91 S. Ct. 1909,29 L. Ed. 2d 473
(1971)). A union's conduct constitutes an exercise ofjudgment entitled to deference
even when the union's "judgments are ultimately wrong." Marquez v. Screen Actors
Guild, Inc., 525 U.S. 33,45-46, 119 S. Ct. 292, 142 L. Ed. 2d 242 (1998).
Michael Doron first argues that UFE breached his duty of fair representation when
UFE President Gary Krug insisted that Doron modifY his FAP. Viewing the evidence in
a light most favorable to Michael Doron, it could be said that UFE President Gary Krug
repeatedly failed to represent Doron's interests. For Krug's conduct to be actionable,
however, it would have to be arbitrary or in bad faith. There is no evidence that Krug
acted without a rational basis or explanation or engaged in fraud, deceitful action or
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No. 31636-0-III
Doron v. Eastern Washington Univ.
dishonest conduct. Krug's conduct was motivated by a desire to create a FAP sufficient
in detail to base judgments of teaching performance and consistent with other faculty
FAPs. In deference to Krug and UFE, this ground was rational. Krug needed to balance
individual interests against the collective interests of the union and its many members.
Krug also believed Michael Doron would be better served by a modified F AP.
Michael Doron expressed his disappointment with Krug because, at the November
18,2010 meeting, Krug stated he represented "everyone's interests." CP at 1058. Krug
appropriately responded that the UFE represents and enforces the contract and that all
members of bargaining unit receive equal protection and advice regarding the enforcing
of the contract. Doron and Krug's relationship quickly soured. But Doron lacks
evidence that Gary Krug acted in bad faith.
Michael Doron next argues that UFE breached its duty of fair representation when
it failed to grieve his termination. As discussed above, EWU did not terminate Doron.
Even in a light most favorable to Doron, the evidence shows that UFE discharged its duty
to investigate the possibility of grieving his dispute.
The duty of fair representation prohibits a union from ignoring a meritorious
grievance or processing that grievance perfunctorily. Lindsey v. Mun. o/Metro. Seattle,
49 Wash. App. 145, 149, 741 P.2d 575 (1987). But a union has no duty to arbitrate every
grievance; it may screen its members' grievances and process only those it determines
have merit. Muir, 154 Wash. App. at 531-32. A union satisfies its duty of fair
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representation if it conducts at least a minimal investigation into the merits of the
grievance. Lindsey, 49 Wash. App. at 150. "A union's duty requires some minimal
investigation of employee grievances, the thoroughness depending on the particular case;
only an egregious disregard for union members' rights constitutes a breach of the union's
duty." Muir, 154 Wash. App. at 532 (internal quotation marks and citations omitted). A
union's conduct may not be deemed arbitrary simply because of an error in evaluating the
merits of a grievance or in interpreting particular provisions of a collective bargaining
agreement. Peterson, 771 F.2d at 1254; Muir, 154 Wash. App. at 533.
In Muir, this court reversed the trial court's denial of the union's summary
judgment motion and directed that summary judgment be granted the union. The
undisputed evidence showed that the union investigated, deliberated, and provided a
rational reason for declining Muir's demand to file a grievance concerning the amount of
his pay. In Schmidtke, 69 Wash. App. 174, this court affirmed a summary judgment
dismissal in favor of the union. The union reasonably concluded that its member's
grievance lacked merit.
On February 9, 2011, Michael Doron forwarded Rex Fuller's February 7 message
to UFE President Gary Krug, writing: "The university has terminated me effective June
for not writing a new FAP. This is something the union will have to act on. Let me
know." CP at 1087. Krug forwarded Doron's e-mail to WEA's Gary McNeil, writing:
"Have the procedural, contractual steps been followed here? Is just causes [sic] for
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dismissal shown. I'll look at this later tonight and tomorrow, but please share your
thoughts in the meantime." CP at 1087. McNeil replied to Krug: "Gary: The CBA
covers both progressive discipline and just cause. Has this faculty person been
disciplined before?" CP at 1089. WEA's Gary McNeil e~mailed UFE's Gary Krug with
his assessment that "[t]ermination is a stretch. We could grieve progressive discipline.
The remedy would probably have to include an improvement plan. . .. The union does
not have to file a grievance. We have to deliberate the case, not decide anything on
personalities." CP at 1092-93. Krug informed Doron that "UFE is requesting from EWU
administration all documents relevant to their decision. We will review these regarding
procedures ofjust cause, discipline, dismissal and related matters." CP at 1095.
Congruent with its duties, UFE thus promised Doron to investigate the dispute for
violations of the CBA. Through that investigation, as Gary McNeil testified,
[UFE] determined that Dr. Doron had refused to accept the offer of
reappointment EWU made to him because he refused to agree to participate
in the development of an improvement plan. Therefore, he had not been
terminated and a grievance was not warranted because he had refused to
accept EWU's offer of employment.
CP at 2695. The evidence cannot be construed to show that UFE ignored Doron's plight
or processed his request for action in a perfunctory manner.
The trial court did not err when it dismissed Michael Doron's claim for breach of
the duty of fair representation on summary judgment.
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Tortious Interference with Business Expectancy
Michael Doron assigns error to the trial court's dismissal on summary judgment of
his claim that WEA tortiously interfered with Doron's business expectancies with UFE.
In Washington, tortious interference with a business expectancy has five elements:
(1) there exists a valid contractual relationship or business
expectancy, (2) the defendant had knowledge of the same, (3) the
defendant's intentional interference induced or caused a breach or
termination of the relationship or expectancy, (4) the defendant's
interference was for an improper purpose or by improper means, and (5) the
plaintiff suffered damage as a result.
Evergreen Moneysource Mort. Co. v. Shannon, 167 Wash. App. 242, 258, 274 P.3d 375
(2012) (citing Pleas v. City ofSeattle, 112 Wn.2d 794,800-05, 774 P.2d 1158 (1989)).
A cause of action for tortious interference arises from either the defendant's
pursuit of an improper objective of harming the plaintiff or the use of wrongful means
that in fact cause injury to plaintiff's contractual or business relationships. Pleas, 112
Wash. 2d at 803-04. A claim for tortious interference is established when interference
resulting in injury to another is wrongful by some measure beyond the fact of the
interference itself. Pleas, 112 Wash. 2d at 804. Plaintiff must show not only that the
defendant intentionally interfered with his business relationship, but also that the
defendant had a duty of noninterference; i.e., that he interfered for an improper purpose
or used improper means. Pleas, 112 Wash. 2d at 804.
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A complete failure of proof concerning any element necessarily renders all other
facts immaterial. Janaszak v. State, 173 Wash. App. 703, 727, 297 P.3d 723 (2013). The
plaintiff must show that the defendant's interference induced or caused a breach. Hoffer
v. State, 110 Wash. 2d 415, 433, 755 P.2d 781 (1988), reconsidered in part, 113 Wash. 2d 148,
776 P.2d 963 (1989); Burkheimer v. Thrifty Inv. Co., 12 Wash. App. 924, 927, 533 P.2d
449 (1975); Holman v. Coie, 11 Wn. App. 195,215,522 P.2d 515 (1974).
Michael Doron generally contends that WEA employee Gary McNeil's advice to
Krug improperly interfered with UFE's duty of fair representation owed to Doron. We
question whether Doron shows any conduct of WEA to be improper, but we do not rest
our decision on this ground. UFE did not breach its duty of fair representation.
Therefore, Doron cannot show any conduct of WEA that caused a breach of contract.
Without further analysis, Michael Doron also argues, in one sentence in his
opening brief, that WEA also induced EWU to violate the CBA. We previously ruled
that EWU did not violate the CBA. Thus, Doron' s additional argument must also fail.
The trial court did not err when it dismissed Michael Doron's tortious interference
claim on summary judgment.
Attorney Fees and Costs
Michael Doron asks for attorney fees and costs on appeal. Since Doron does not
prevail, we decline an award. RAP 18.1; RCW 49.48.030.
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No. 31636-0-111
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CONCLUSION
We affirm the trial court's grant of summary judgment dismissing all claims
against EWU, UFE, and WEA.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
bl1ffW71, Ac. r
Brown, A.C.J.
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, J.
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