Lynn Branham v. Thomas M. Cooley Law School

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0247p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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LYNN BRANHAM,
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Plaintiff-Appellant,
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No. 10-2305
v.
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THOMAS M. COOLEY LAW SCHOOL; DONALD
Defendants-Appellees. -
LEDUC,
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Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:07-cv-630—Robert J. Jonker, District Judge.
Argued: April 18, 2012
Decided and Filed: August 6, 2012
Before: MARTIN, COOK, and KETHLEDGE, Circuit Judges.
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COUNSEL
ARGUED: Peter Goldberger, Ardmore, Pennsylvania, for Appellant. Megan P. Norris,
MILLER CANFIELD, PADDOCK AND STONE, PLC, Detroit, Michigan, for
Appellees. ON BRIEF: Peter Goldberger, Ardmore, Pennsylvania, Julie H. Hurwitz,
William H. Goodman, GOODMAN & HURWITZ, P.C., Detroit, Michigan, for
Appellant. Megan P. Norris, Christopher M. Trebilcock, MILLER CANFIELD,
PADDOCK AND STONE, PLC, Detroit, Michigan, for Appellees.
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. Lynn Branham, a former law professor
at the Thomas M. Cooley Law School, appeals the district court’s judgments concluding
that the tenure granted under her contract does not afford her rights beyond those
specified in her employment contract; concluding that the faculty conference process
1
No. 10-2305 Branham v. Thomas M. Cooley Law Sch., et al. Page 2
through which her termination was ratified complied with Cooley’s policy and with
Michigan law; denying her a jury trial on the issues of whether there was “good cause”
for her termination and whether she is due damages; and limiting her available remedy
to equity. For the reasons that follow, we AFFIRM the judgments of the district court.
I.
Branham was a tenured law professor at Cooley at the time of her termination.
She began teaching there in 1983, and primarily taught courses in criminal law. She
suffered from seizures on occasion. She signed an employment contract dated December
21, 2005, for a twelve-month employment period beginning January 1, 2006. For the
spring semester of 2006, Branham was assigned to teach classes in constitutional law
and torts. Branham told Cooley Dean Donald LeDuc that she did not want to teach
either class, citing health reasons and her preference for, and greater experience with,
teaching criminal law-related courses. Despite her complaint to LeDuc, she taught the
courses she was assigned through the spring semester of 2006. During the summer of
2006, Branham sold her house in Michigan, moved to Champaign, Illinois, and
requested and was granted a leave of absence from Cooley. Though she was assigned
to teach constitutional law after her return from leave, she refused to do so, instead
asking to be assigned a criminal law class.
LeDuc dismissed Branham from her position in December 2006. Her
employment contract required a process by which his decision to dismiss Branham
would be voted upon by the Cooley faculty. That process was not initially
followed—the Cooley faculty did not vote on her dismissal.
Branham filed suit, seeking damages for alleged violations of the Americans with
Disabilities Act and the Michigan Persons with Disabilities Civil Rights Act, intentional
infliction of emotional distress, and breach of contract. On cross motions for summary
judgment, the district court granted summary judgment against Branham on the first
three claims, but not on the contract-breach claim. The district court also denied
Branham’s motion for partial summary judgment on the contract-breach claim. After
the district court ruled on the summary judgment motions, Cooley filed a motion in
No. 10-2305 Branham v. Thomas M. Cooley Law Sch., et al. Page 3
limine to limit the remedy available on the contract-breach claim to equitable relief. The
district court granted this motion and subsequently requested briefing on whether either
party had a right to a jury trial. In response to the request for briefing, Branham waived
a jury trial. After a four-day bench trial, the district court held that Cooley had breached
the employment contract by not following the dismissal process required by the contract,
and ordered Cooley to comply with that process.
To comply with the district court’s order, Cooley held a faculty conference to
consider whether good cause existed to dismiss Branham from her position. The faculty
concurred with LeDuc’s decision to dismiss Branham, and the Board of Directors
unanimously upheld the faculty’s decision. The district court then ruled that Cooley had
complied with the process due Branham under her contract and that the process complied
with Michigan law. The district court entered final judgment against Branham.
Branham appeals.
II.
“On an appeal from a judgment entered after a bench trial, we review the district
court’s findings of fact for clear error and its conclusions of law de novo.” Lindstrom
v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir. 2005). We review a district court’s
ruling on a motion in limine for an abuse of discretion. United States v. Talley, 194 F.3d
758, 765 (6th Cir. 1999).
III.
Branham argues the district court erred in (1) concluding that the tenure granted
under her contract does not afford her rights beyond those specified in her employment
contract; (2) concluding that the faculty conference process complied with Cooley’s
policy, American Bar Association standards, and Michigan and federal law; (3) denying
her a jury trial on the issues of whether there was “good cause” for her termination and
whether she is due damages; and (4) limiting her available remedy to equity.
No. 10-2305 Branham v. Thomas M. Cooley Law Sch., et al. Page 4
A. Tenure
As the district court noted, and as Branham concedes, “‘tenure’ [does not] mean[]
anything other than what [Branham’s] employment contract provides.” Further, under
Michigan law, “contracts for permanent employment are for an indefinite period of time
and are presumptively construed to provide employment at will.” Rowe v. Montgomery
Ward & Co., 473 N.W.2d 268, 271 (Mich. 1991). The term “tenure” is not defined in
Branham’s employment contract, but Branham contends that “tenure” means “lifetime
appointment” or “continuous employment.” Branham points to Cooley’s Policy 201,
discussed below, which is expressly incorporated in her employment contract, and to the
American Bar Association’s Appendix 1 to its Standards and Rules of Procedure for
Approval of Law Schools, to support her assertion that, under her contract, tenure means
a lifetime appointment or a guarantee of continuous employment. Branham argues that
the district court erred in not incorporating the American Bar Association’s suggested
tenure policies into the 2006 employment contract.
The contract expressly incorporates “[t]he current provisions of the American
Bar Association Standards governing approval of law schools as they relate to maximum
teaching loads and other rights, duties and prerogatives of faculty members.”
Appendix 1 to the American Bar Association’s Standards, titled Statements on Academic
Freedom and Tenure, states that “teachers . . . should have permanent or continuous
tenure, and their services should be terminated only for adequate cause.” American Bar
Association Standard 405, titled “Professional Environment,” states that a law school
“shall” have a policy regarding tenure, and notes that Appendix 1 “is an example [of a
tenure policy] but is not obligatory.” This provision alone is enough for us to conclude
that the Standards’ tenure policy in Appendix 1 is merely a tenure model, and is not
necessarily the “tenure” Branham held. Even if we were to hold that Appendix 1 is
incorporated into Branham’s contract, we find that the tenure held by Branham does not
afford her rights beyond those enumerated in her contract. The language in Appendix
1 suggests, but does not require, that law schools grant permanent or continuous tenure:
“teachers . . . should have permanent or continuous tenure.” (emphasis added). The
No. 10-2305 Branham v. Thomas M. Cooley Law Sch., et al. Page 5
language in the contract does not grant permanent or continuous tenure; rather, it merely
provides for a one-year period of employment.
Branham’s contract, including Policy 201, which refers to the concept of tenure
but does not go so far as to define tenure as a right to continuous employment, does not
create an obligation of continuous employment: her contract expressly limits its term to
a single year. While Branham may have had “tenure” in the sense that she had academic
freedom, and that she and Cooley generally expected that they would enter a new
employment contract in subsequent years, nothing in her employment contract, or the
documents incorporated by reference therein, provides for a term of employment greater
than one year. The district court did not err in concluding that Branham is due only the
employment protection and process specified in her contract.
B. Faculty Conference Process
After ruling that Cooley breached its employment agreement with Branham when
LeDuc dismissed her without the faculty review process required by her contract, the
district court ordered Cooley to hold a faculty conference to provide Branham with the
dismissal process specified by Policy 201. Branham contends on appeal that the faculty
conference process that Cooley held to comply with the district court’s order did not
comply with her rights under her employment contract, with her rights under the
American Bar Association’s Standards, or with federal and Michigan law.
1. Compliance with Process
Branham’s employment contract incorporates Cooley’s Policy 201. Policy 201
provides that:
No tenured faculty member shall be dismissed . . . prior
to the expiration of the term of his appointment, except
for good cause shown and in accordance with the
following procedure:
(a) Notice in writing by the dean of the reasons
and grounds for dismissal shall be served on the
faculty member at least fourteen days prior to a
meeting of the faculty conference at which the
No. 10-2305 Branham v. Thomas M. Cooley Law Sch., et al. Page 6
removal is to be considered, as provided in
subparagraph (b) herein.
(b) The Dean shall thereafter cause a meeting of
the faculty conference to be convened for the
purpose of considering removal of the faculty
member.
(c) If the faculty conference shall concur in
removal, the faculty member shall be removed,
subject to appeal to the academic committee of
the Board of Directors.
After the district court ordered Cooley to convene a faculty conference, LeDuc
notified Branham in writing of the reasons and grounds for her dismissal, called the
faculty conference, and presented the faculty with his reasons for her dismissal. The
faculty members present at the conference voted 85-19 to concur in LeDuc’s dismissal
of Branham. Upon appeal to the Board of Directors, the Board upheld the faculty
conference’s decision in a unanimous vote. Based on these facts, we find that the faculty
conference process complied with all of Policy 201’s enumerated requirements.
Branham submits that the court-ordered process could never have been adequate
because it occurred long after LeDuc had removed her from her position. For the
reasons discussed immediately above, the court-ordered faculty conference did comply
with Policy 201, and she fails to explain how a dismissal this is compliant with Policy
201 is “inadequate.”
Finally, Branham asserts that certain circumstances of the faculty conference,
such as votes by proxy and by faculty members who were not faculty members at the
time of her dismissal, should render the entire process void. Branham fails to explain
how any of these facts violate the requirements of the process set forth in Policy 201 or
even whether they changed the outcome of the faculty conference. For these reasons,
we find that Cooley complied with the procedures specified in Policy 201.
No. 10-2305 Branham v. Thomas M. Cooley Law Sch., et al. Page 7
2. Sufficiency of Process
Branham contends that Policy 201 is not sufficiently “fair” under Michigan law;
we find that Policy 201 complies with Michigan law. Under Michigan law, “[a]n
employer can provide a procedure for resolution of disputes concerning the discharge
of employees.” Carlson v. Hutzel Corp. of Mich., 455 N.W.2d 335, 339 (Mich. Ct. App.
1990). The Michigan Supreme Court recognized, in Renny v. Port Huron Hospital,
398 N.W.2d 327, 338 (Mich. 1986), that there is a certain amount of “elementary
fairness” due an employee in an employment termination context. Renny identifies five
elements essential to “elementary fairness”: (1) notice; (2) the right and opportunity to
present evidence and arguments, and to rebut the opposition’s evidence and arguments;
(3) a formulation of issues of law and fact; (4) a rule of finality; and (5) other procedural
elements as may be necessary, determined by the particulars of the case, including the
“complexity of the matter in question, the urgency with which the matter must be
resolved and the opportunity of the parties to obtain evidence and formulate legal
contentions.” Id. Cooley’s Policy 201, and the faculty conference held pursuant to its
provisions, do not run afoul of the requirements in Renny: Branham received notice of
the hearing; she had an opportunity to present evidence (indeed, she was given extra
time to speak); the issue before the conference—whether the faculty concurred in
Branham’s dismissal—was clear; and Policy 201 explicitly states the binding nature of
the Board’s decision to uphold the result of the conference. As to the fifth element, as
the district court stated, “the key facts of [Branham’s] assigned class load, the validity
of that load under her contract, and her refusal to teach the assigned classes were beyond
genuine dispute.” The particulars of this case, where the facts were clear and
straightforward, where Branham requested and was granted additional time to speak and
permission to distribute voluminous materials to the conference, and where over a dozen
faculty members spoke at the conference, cause us to conclude that the fifth element of
fairness was met by the faculty conference process.
On appeal, Branham also argues that she is due federal due process rights that
she was not afforded during the faculty conference, contending that she should have
been allowed to call witnesses and offer additional evidence. She contends these rights
No. 10-2305 Branham v. Thomas M. Cooley Law Sch., et al. Page 8
spring from general constitutional principles and from Interpretation 405-4 in the
American Bar Association’s Standards, which states that “principles of fairness and due
process” are required during tenure termination proceedings. She relies on Mitchell v.
Frankhauser, 375 F.3d 477 (6th Cir. 2004), and Carter v. Western Reserve Psychiatric
Habilitation Center, 767 F.2d 270 (6th Cir. 1985), for these arguments. Both Mitchell
and Carter discuss what process is due to an employee whose contract specifies that
termination must be for cause, and both involve the termination, for cause, of public
employees. See also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985)
(establishing the due process rights for “tenured public employee[s]” that are discussed
in Mitchell and Carter). Branham was employed by a private law school. The
distinction is important. “Procedural due process guarantees apply only in the presence
of a ‘property’ or ‘liberty’ interest within the meaning of the Fifth or Fourteenth
Amendment.” Garner v. Michigan State Univ., 462 N.W.2d 832, 836 (Mich. Ct. App.
1990). As we have discussed, Branham’s employment contract provided for a finite
term of employment with a private employer. “Any right to continued employment
enjoyed by an employee of a private employer arises out of the employment contract.
Such contractual rights do not rise to the level of a protected property interest.” Id.Thus, Branham, a private employee, is not due any of the additional federal due process
rights discussed in Mitchell and Carter.
For these reasons, Branham’s arguments concerning Cooley’s compliance with
the contractual termination process, and the sufficiency and fairness under law of that
process, do not succeed.
C. Remedy
Branham argues she is due economic damages for at least the period between her
dismissal and the faculty concurrence in that dismissal three years later. The district
court ruled that the only available remedy for Cooley’s contract breach was an equitable
remedy. We review that decision for an abuse of discretion. Talley, 194 F.3d at 765.
As we have discussed, Branham’s contract was for a one-year term of employment. The
contract also provided for a process governing the method by which she could be
No. 10-2305 Branham v. Thomas M. Cooley Law Sch., et al. Page 9
terminated prior to the end of this one-year term. LeDuc’s dismissal of Branham did not
comply with that process, and thus breached the employment contract. The district court
determined that Branham was due a remedy for this breach. As a remedy for the harm
caused by the breach, the district court ordered Cooley to comply with the process
provided by Branham’s employment contract. The aim of a contractual remedy is to put
the harmed party in the position in which she would have been absent the breach. Corl
v. Huron Casings, Inc., 544 N.W.2d 278, 280 (Mich. 1996). Here, the way to put
Branham in the position she would have been absent the breach was to provide Branham
with the faculty conference process; the district court ordered Cooley to provide the
process, and Cooley did. Had Branham prevailed at the faculty conference, it is certainly
possible that she could have subsequently recovered damages. But, because the faculty
found there was cause for dismissing Branham and concurred in LeDuc’s dismissal of
her, there remains no basis, under her contract, for a claim for damages.
The district court did not abuse its discretion in limiting the available remedy to
an equitable one.
D. Right to Jury Trial
Branham argues that the district court deprived her of her Seventh Amendment
right to a jury trial on the questions of good cause and damages. The right to a jury trial
may be waived. Fed. R. Civ. P. 38(d). In response to the district court’s request for
briefing on Branham’s right to a jury trial after it limited the available remedy to an
equitable one, Branham filed a “Jury Waiver” that stated she waived “trial by jury only
with respect to the trial herein scheduled for September 1, 2009.” As noted, a bench trial
was conducted beginning on September 1. At this bench trial, the district court
determined that Cooley had breached the employment contract and the district court
ordered Cooley to provide Branham the faculty conference process required by Policy
201.
Branham argues that her right to a jury trial on the question of good cause—a
question she alleges is outside the context of the September 1 trial—was not waived
because the “Jury Waiver” expressly limited the scope of the waiver to issues covered
No. 10-2305 Branham v. Thomas M. Cooley Law Sch., et al. Page 10
at that trial. Under Michigan law, “[w]here an employer has agreed to discharge an
employee for just cause only, its decision to terminate the employee is subject to judicial
review . . . . [but,] [b]y establishing an internal grievance procedure an employer may
avoid judicial review.” Renny, 398 N.W.2d at 335. Here, as the district court correctly
concluded, Cooley and Branham agreed to an internal grievance procedure in her
employment contract. Where an internal grievance procedure such as Cooley’s is in
place, and where it is followed, this Court does not have “the authority to second-guess
[Cooley’s] determination [of good cause].” Thomas v. John Deere Corp., 517 N.W.2d
265, 267 (Mich. Ct. App. 1994).
Had Branham prevailed at the faculty conference, she might have been due
damages, and, as she argues, she has not waived her right to a jury trial on the issue of
damages. But that is not what happened. She consented to a bench trial in which the
district court determined that Cooley had breached her employment contract. She was
granted a remedy by the district court for this breach. She received the remedy from
Cooley, in the form of a hearing and a faculty conference vote on her dismissal, as
prescribed by her contract. The faculty conference concurred in her dismissal; the Board
of Directors upheld this decision. As discussed above, Cooley’s termination process
complies with Michigan and federal law, and Cooley followed the prescribed process.
Because we conclude that the process by which she was removed was lawful, the
decision to dismiss Branham is final and binding. Renny, 398 N.W.2d at 338. She is left
without a claim for damages under her contract; thus, she is not due a jury trial on
damages.
Branham waived her right to a jury trial; at the bench trial she received the right
to a remedy, and Cooley provided that remedy. The binding result of that remedy left
Branham with no remaining claim, and thus no claim for which she might have a right
to a jury trial. With respect to the bench trial for which she waived her right to a jury
trial, we hold that Branham’s Seventh Amendment rights were not violated.
No. 10-2305 Branham v. Thomas M. Cooley Law Sch., et al. Page 11
IV.
Branham’s tenure does not provide additional privileges or protections other than
those specified in her employment contract. The process by which the faculty
conference reviewed and concurred in LeDuc’s dismissal of Branham was sufficient to
comply with Branham’s employment contract and federal and Michigan law. The
district court did not abuse its discretion in ruling that the remedy available to Branham
was limited to equitable relief. Branham’s Seventh Amendment right to a jury trial was
not violated. For these reasons, we AFFIRM the judgments of the district court.