Giebel v. Mt System of Higher Educa

No. 96-393
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996
DOUGLAS GIEBEL,
Plaintiff and Appellant,
v.
MONTANA SYSTEM OF HIGHER EDUCATIONi MSU-NORTHERNi
JEFFREY BAKER, MONTANA COMMISSIONER OF HIGHER
,
EDUCATIONi WILLIAM DAEHLING, CHANCELLOR, MSU-NORTHERNi
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"
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STEPHEN SYLVESTER CHAIRMAN, DEPARTMENT OF HUMANITI&$;;,:,;.,;',·-;:,;; '\)('1'<,
AND SOCIAL STUDIES, MSU-NORTHERNi and JANE ¥..ATHLEEN ~. "-;'J';'~A
CURRY, ASSISTANT PROFESSOR, MSU-NORTHERN,
Defendants and Respondents.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable John Warner, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Douglas Giebel, pro se,
Big Sandy, Montana
For Respondents:
LeRoy H. Schramm, Legal Counsel,
Montana University System, Helena, Montana
Submitted on Briefs: October 24, 1996
Decided: December 10, 1996
Filed:
CIerI;.
Justice Terry N. Trieweiler delivered the opinion of the Court.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing Company and West Publishing
Company.
On June 13, 1995, Douglas Giebel filed a complaint in the
District Court for the Twelfth Judicial District in Hill County, in
which he alleged that he was denied fair consideration for
employment, was denied an appropriate grievance hearing in
violation of his rights to due process and equal protection, and
was injured by reliance on a promise of employment, retaliation,
blacklisting, malice, defamation, fraud, and a denial of freedom of
speech. Both Giebel and the University System defendants filed
motions for summary judgment. The District Court granted the
defendants' motion. Giebel appeals the District Court's order
which denied his motion for summary judgment and which granted the
defendants' motion for summary judgment. We affirm the order of
the District Court.
We address seven issues on appeal:
1. Did the District Court err when it concluded that Giebel
was not deprived of due process by MSU-Northern's employment search
and hiring process?
2
2. Did the District Court err when it concluded that Giebel
was not denied equal protection by MSU-Northern's employment search
and hiring process?
3. Did the District Court err when it concluded that Giebel
could not maintain a cause of action against MSU-Northern for a
breach of the covenant of good faith and fair dealing?
4. Did the District Court err when it concluded that Giebel
had failed to present a primafacie case of fraud?
5. Did the District Court err when it concluded that Giebel
had not properly raised a claim of malice?
6. Did the District Court err when it concluded that it had
no general right of review of university administrative decisions
or their administrative processes relating to these decisions?
7. Did the District Court err when it concluded that Giebel
had failed to exhaust his administrative remedies?
FACTUAL BACKGROUND
On June 15, 1993, Montana State Uni versi ty-Northern
(MSU-Northern) sent a letter to Douglas Giebel to confirm that he
had been hired as an assistant professor in the Theater jSpeech
Communication Division of the Department of Humanities and Social
Services pursuant to a "one-year temporary professional contract
for the 1993 school year." The letter made clear that the
appointment "extends for its fixed duration and carries no
implication of reappointment." The contract which accompanied the
letter of appointment indicated the term of Giebel's employment was
from August I, 1993 to May 31, 1994. On April 5, 1994, near the
3
end of Giebel's one-year term of employment, MSU-Northern sent
Giebel another letter confirming the school's intent to allow
Giebel's contract to expire. The letter stated: "[YJ our temporary
appointment. will be terminated as of the end of the 1993-94
academic year in accordance with the initial terms of your
appointment."
In the spring of 1994, the MSU-Northern campus conducted a job
search to secure a permanent faculty member for the position held
temporarily by Giebel in the Theater/Speech Communication
Department. Giebel applied for the permanent position, and was one
of 100 applicants considered for the job.
The search committee for the permanent position was chaired by
Dr. Stephen Sylvester, the head of the Department of Humanities and
Social Services. Syl vester had become acquainted with Giebel
during the 1993-1994 academic year. During that time, Sylvester
was generally satisfied with the Giebel's work performance and
anticipated that Giebel would have an excellent chance of being
hired for the permanent position. Sylvester informed Giebel that
his prospects for being hired were good.
Between the time the permanent position was advertised in
March 1994, and the time the search committee finalized its
recommendation in mid-May, however , Sylvester had changed his
position and opposed Giebel's candidacy for the job. Sylvester
made his opposition to Giebel known to other search committee
members and recommended that Giebel not be granted an interview for
the position. In an affidavit filed with the District Court after
4
the selection process was complete, Sylvester cited several factors
which led to his opposition of Giebel for the permanent position,
including Giebel's trip to New York City with the student member of
the search committee and his presentation of a fictitious award to
that student during the University's Awards Day convocation;
Giebel's deteriorating relationship with a tenure-track member of
the Theater/Speech Communication Department; and the fact that
Giebel's application for the permanent position was less impressive
than those submitted by other candidates.
In mid-May 1994, after learning that he had not been selected
for the permanent position, Giebel wrote to the Commissioner of
Higher Education and voiced his objection to the University's
selection process. In his response, the Commissioner informed
Giebel that" [b]efore grievances may be submitted directly to the
Commissioner of Higher Education they must be filed with the
college chancellor." The Commissioner referred Giebel to the
Regent's appeals policy.
On June 10, 1994, Giebel filed a grievance pursuant to the
campus grievance procedure. Following a hearing before an
eight-person grievance committee on July 14, 1994, MSU-Northern's
Chancellor issued a written decision in which he denied Giebel's
grievance. Nearly four months later, Giebel appealed the
Chancellor's decision to the Commissioner on Higher Education. The
Commissioner denied Giebel's appeal on the grounds that it had not
been timely filed pursuant to Montana University System Policy
203.5.2, which requires that an appeal be filed "within 30 days of
5
the . [campus] decision." Giebel appealed the Commissioner's
decision to the Board of Regents; however, on May 19, 1995, the
Regents declined to entertain the appeal.
On June 13, 1995, Giebel filed two complaints in the Twelfth
Judicial District Court in which he alleged that he was improperly
denied fair consideration for employment, was denied an appropriate
grievance hearing in violation of his rights to due process and
equal protection, and was injured by reliance on a promise of
employment, retaliation, blacklisting, malice, defamation, fraud,
and a denial of freedom of speech. Both Giebel and the University
System defendants filed motions for summary judgment. The District
Court concluded that there were no genuine issues of material fact
and that the University System defendants were entitled to judgment
as a matter of law. The court therefore granted the University
System defendant's motion for summary judgment and denied Giebel's
cross-motion for summary judgment.
STANDARD OF REVIEW
In this case, the District Court granted summary judgment to
MSU-Northern and dismissed each of Giebel's claims. This Court
reviews a district court's grant of summary judgment pursuant to
Rule 56, M.R.Civ.P., based on the same criteria applied by the
district court. StateFarmFire&Cas.Co.v.Powell (1995),274 Mont. 92,
95, 906 P.2d 198, 200. Rule 56 (c), M.R.Civ.P., provides that
summary judgment is proper only when "there is no genuine issue as
to any material fact and . the moving party is entitled to a
judgment as a matter of law."
6
ISSUE 1
Did the District Court err when it concluded that Giebel was
not deprived of due process by MSU-Northern's employment search and
hiring process?
Giebel maintains that MSU-Northern denied him the right to due
process as guaranteed by both the Montana and United States
Constitutions. Both the Fourteenth Amendment to the United States
Constitution, and Article II, Section 17, of the Montana
Constitution, prohibit a governmental entity from depriving a
person of life, liberty, or property without due process of law.
In this case, Giebel contends that the University deprived him of
his "liberty right to contract for employment through the search
process and his right to protection from invidious discriminatory
actions." Giebel cites BoardofRegentsv. Roth (1972), 408 U.S. 564, to
support his broad definition of the term "liberty interest."
In Roth, the United States Supreme Court addressed the issue
of whether the nonrenewal of a nontenured state teacher's contract
without a hearing constituted the deprivation of a liberty or
property interest. In evaluating the teacher's "property interest, "
the Court stated:
To have a property interest in a benefit, a person
clearly must have more than an abstract need or desire
for it. He must have more than a unilateral expectation
of it. He must, instead, have a legitimate claim of
entitlement to it.
[T] he respondent's "property" interest in
employment at Wisconsin State University-Oshkosh was
7
created and defined by the terms of his appointment.
Those terms secured his interest in employment up to June
30, 1969. But the important fact in this case is that
they specifically provided that the respondent's
employment was to terminate on June 30. They did not
provide for contract renewal absent "sufficient cause."
Indeed, they made no provision for renewal whatsoever.
Thus, the terms of the respondent's appointment
secured absolutely no interest in re-employment for the
next year. They supported absolutely no possible claim
of entitlement to re -employment. Nor, significantly, was
there any state statute or University rule or policy that
secured his interest in re-employment or that created any
legi timate claim to it. In these circumstances, the
respondent surely had an abstract concern in being
rehired, but he did not have a property interest sufficient
to reauire the University authorities to give him a
hearing when they declined to renew his contract of
employment.
Roth, 408 U.S. at 577-78 (footnote omitted) (emphasis added). The
Court also declined to find a liberty interest in the nonrenewal of
the teacher's one-year contract. Specifically, the Court stated:
"It stretches the concept too far to suggest that a person is
deprived of 'liberty' when he simply is not rehired in one job but
remains as free as before to seek another." Roth, 408 U.S. at 575
(citing Cafeteria Workersv. McElroy (1961), 367 U.S. 886, 895-96).
Based on the principles of Roffi, the District Court concluded
that Giebel was not deprived of either a liberty interest or a
property interest by the expiration of his one-year contract and by
the Uni versi ty' s decision not to hire him for the permanent
tenure-track position. See also Lelandv. Heywood (1982), 197 Mont. 491,
643 P.2d 578. The court noted that, like the teacher in Roth,
Giebel was hired pursuant to a one-year contract for employment;
8
that his employment expired pursuant to the terms of his contract;
and that that expiration did not provide Giebel with a legitimate
claim of entitlement which would rise to the level of a protected
interest. The court further noted that Sylvester's alleged
assurances of future employment could not form the basis for a
claim of entitlement because "college administrators in this state
have no authority to contract with faculty members on terms
different than those approved by the Board of Regents." Leland, 197
Mont. at 497, 643 P. 2d at 581. The court therefore held that
Giebel was not unconstitutionally deprived of life, liberty, or
property without due process of the law.
We hold that the District Court correctly concluded that
Giebel had neither a liberty nor a property interest in continued
employment with MSU-Northern. We therefore uphold that portion of
the court's summary judgment order which concluded that Giebel was
not deprived of due process by MSU-Northern's employment search and
hiring process.
ISSUE 2
Did the District Court err when it concluded that Giebel was
not denied equal protection by MSU-Northern's employment search and
hiring process?
Giebel asserts that he was denied equal protection of the law
by MSU-Northern's employment search and hiring process.
Specifically, Giebel maintains that Sylvester's opposition to his
candidacy placed him at a serious disadvantage during the search
committee's deliberations. The District Court, however, summarily
9
denied Giebel's equal protection claim on the grounds that Giebel
had neither identified a "class" of individuals who had been
disadvantaged by the University's search and hiring practices nor
asserted the deprivation of a fundamental right from those
practices.
This Court has previously evaluated an equal protection claim
from a University System faculty member who claimed a denial of
equal protection based on the University's failure to grant him
tenure. Akhtarv. VandeWeter;ng (1982),197 Mont. 205,642 P.2d 149.
In Akhtar, we stated:
Appellant claims he was discriminated against in
that he was treated differently from other tenure
candidates because a different standard of excellence was
applied to his tenure evaluation than to others.
We agree with the Fourth Circuit which found that
"not every difference in promotion treatment rises to the
level of constitutional deprivation either under equal
protection or due process." Clarkv. WhWng (4th Cir. 1979),
607 F.2d 634, 638. In Clark, an associate professor
claimed he was denied equal protection because different
standards were used in evaluating his promotion
qualifications than were used in passing on promotions of
other faculty members.
President Van de Wetering testified that the tenure
evaluations demanded a weighing and balancing of all the
areas of consideration for all the candidates. Although
there was sharp disagreement among appellant's
colleagues, the final determination was that appellant's
professional performance did not meet the overall
professional academic standards needed to grant tenure.
The District Court concluded the denial of tenure
was not arbitrary but was an exercise of academic
judgment. It also found no evidence had been presented
which indicated the denial resulted from discrimination
10
or that the procedures followed were intended to penalize
a certain class. We agree.
Akhtar, 197 Mont. at 218-20, 642 P. 2d at 157.
In this case, as in Akhtar, no evidence was presented which
indicated that the decision not to hire Giebel "resulted from
discrimination or that the procedures followed were intended to
penalize a certain class." First, as the District Court correctly
noted, Giebel has not asserted that he was a member of a particular
"class" of individuals which was disadvantaged by the school's
hiring process. Second, there is no evidence of any discrimination
in the committee's decision to hire another candidate. There was
ample evidence presented to the District Court to establish that
that chosen candidate was better qualified and had a more
impressive resume than Giebel.
Therefore, because we hold that Giebel did not demonstrate
that the search committee's procedures were discriminatory or that
those procedures were intended to penalize a certain class, we
affirm that portion of the District Court's summary judgment order
which concluded that "Giebel's complaint is insufficient for a
claim of a violation of his equal protection rights."
ISSUE 3
Did the District Court err when it concluded that Giebel could
not maintain a cause of action against MSU-Northern for a breach of
the covenant of good faith and fair dealing?
In his amended complaint, Giebel asserted that MSU-Northern's
search and hiring process failed to "conform to the covenant of
11
good faith and fair dealing." Specifically, Giebel maintained that
the University did not follow its established hiring policies and
did not act in good faith during the hiring process. The District
Court, however, dismissed Giebel's claim on the ground that a claim
of a breach of the covenant of good faith and fair dealing "may
arise only from a termination of employment." Because the court
determined that Giebel was merely a job applicant for a permanent
position with the University, the court concluded that Giebel's
claim could not form the basis for recovery.
In this case, Giebel was employed by MSU-Northern pursuant to
a one-year employment contract and was specifically informed that
the term of his employment "extends for its fixed duration and
carries no implication of reappointment." In addition, prior to
the expiration of his fixed employment contract, Giebel was
notified of the University's intention to terminate his
appointment "as of the end of the 1993 - 94 academic year in
accordance with the initial terms of [his] appointment." Giebel
does not, however, challenge the University's decision to allow his
one-year contract to expirej instead, Giebel challenges the
University's allegedly unfair treatment of him as a job applicant
for a permanent position. Neither this Court nor the Legislature
has extended the covenant of good faith and fair dealing to the
hiring process. We will not do so on the basis of the facts in
this case.
12
Therefore, we affirm the District Court's decision to grant
summary judgment and dismiss Giebel's claim for breach of the
covenant of good faith and fair dealing.
ISSUE 4
Did the District Court err when it concluded that Giebel had
failed to present a primafacie case of fraud?
In his original complaint before the District Court, Giebel
generally alleged that he had been defrauded by Sylvester's
guarantees of employment. More than five months later, after
discovery had closed and the University had filed a motion for
summary judgment, Giebel filed a document entitled, "Motion to
Accept Amended Complaint II." In that document, Giebel alleged
with particularity that the search committee had been defrauded by
a secret ballot which had been employed during the vote on Giebel's
candidacy. Before the District Court could rule on Giebel's motion
to amend his complaint, however, Giebel filed a cross-motion for
summary judgment. Giebel never renewed or briefed his motion and
the District Court neither ruled on the motion nor accepted that
document as a part of the record. In an exceptional effort to
accommodate Giebel, the District Court analyzed Giebel's claim of
fraud as set forth in both his original complaint and in his
attempted amendment. The court concluded, however, that (1) Giebel
could not allege fraud based on any statements by Sylvester of a
promise of future intent and (2) that Giebel did not have standing
to allege fraud on behalf of the search committee. The court
13
therefore granted summary judgment to MSU-Northern and dismissed
Giebel's claim of fraud.
Rule 9(b), M.R.Civ.P., provides that" [i]n all averments of
fraud . the circumstances constituting fraud. . shall be
stated with particularity." In his original complaint, Giebel
alleges in only the most general of terms that he was defrauded by
Sylvester's promises of future employment. That allegation was
insufficient to satisfy either Rule 9 (b), M.R.Civ.P., or this
Court's requirement that a plaintiff must allege the requisite
elements of fraud. See, e.g., Barrett v. Holland & Hart (1992), 256 Mont. 101,
106, 845 P.2d 714, 717 i Grenz v. Medical Management Northwest (1991), 250
Mont. 58, 63, 817 P.2d 1151, 1154. Furthermore, as the District
Court correctly noted, even if Giebel's claim had been pled with
the requisite particularity, "[t]he rule is that fraud cannot be
based on and allegation of a promise of future intent." Braun v. Glade
Valley School (N.C. Ct. App. 1985), 334 S.E.2d 404, 407. See also Davis v.
LDS Church (1993), 258 Mont. 286, 2 93, 852 P. 2 d 640, 644 i Marlin v. Drury
(1951), 124 Mont. 576, 584, 228 P.2d 803, 807.
We hold that the District Court properly dismissed Giebel's
original claim of fraud based on the fact that the allegation of
fraud was not pled with the requisite particularity, and based on
the general rule that promises of future intent cannot form the
basis for a claim of fraud. We further hold that the District
Court properly dismissed Giebel's amended claim of fraud based on
its conclusion that Giebel did not have standing to allege fraud on
14
behalf of the search committee. Such a holding is consistent with
the settled law that "if a false statement is made to one person to
induce him to act, the balance of the world has no legal right to
rely on it." 37 Am. Jur. 2d Fraud and Deceit § 244 p. 324 (1968)
(citations omitted). We therefore affirm that portion of the
District Court's order which granted the University summary
judgment and dismissed Giebel's claim of fraud.
ISSUE 5
Did the District Court err when it concluded that Giebel had
not properly raised a claim of malice?
In this case, Giebel has alleged "malice" as a separate cause
of action. However, as the District Court noted in its summary
judgment order, "malice, by itself does not form the basis for a
separate cause of action."
"Malice is basically no more than a state of mind."
52 Am. Jur. 2d Malice § I, p. 161 (1970) (citation omitted). As
such, it cannot alone form the basis for a cause of action. The
existence of malice may either serve to prove a necessary element
of a particular offense or cause of action, or may serve as a
factor to enhance damages. See, e.g., First Bank v. Clark (1989), 236 Mont.
195, 204, 771 P.2d 84, 90 (requiring existence of malice as element
of malicious prosecution) i Section 27-1-221, MCA (providing that
punitive damages may be available when actual malice is proven) .
It is, in fact, well established that" [a] legally permissible act
does not give rise to an actionable injury simply because it is
15
performed with evil intent or an improper motive." 1 Am. Jur. 2d
Actions § 54, p. 758 ( 19 94) .
In Montana, "malice" is defined as a "wish to vex, annoy, or
injure another person or an intent to do a wrongful act,
established either by proof or presumption of law." Section
1-1-204(3), MCA. However, whether Sylvester "intended to injure
Giebel," as Giebel alleges, is irrelevant unless that state of mind
led to conduct which gives rise to a judicially cognizable claim.
As the District Court correctly concluded: "Mr . Sylvester's
actions in not supporting Mr. Giebel as a candidate for the open
tenure faculty position, and his alleged actions of discouraging
other members of the search committee from pursuing him as a
candidate, do not constitute an illegal, impermissible act against
Mr. Giebel."
We therefore hold that the District Court's conclusion that
Giebel's allegation of malice did not state a claim for which he
was entitled to recover, is correct. We affirm that portion of the
District Court's summary judgment which dismissed this claim.
ISSUE 6
Did the District Court err when it concluded that it had no
general right of review of university administrative decisions or
their administrative processes relating to these decisions?
When Giebel was not hired for the permanent position at
MSU-Northern, he filed an internal grievance pursuant to the
University System grievance procedure. Giebel's grievance was
denied by the MSU-Northern Chancellor on July 25, 1994. Giebel's
16
appeal of his grievance was denied by the Commissioner of Higher
Education on March 3, 1995, on the ground that it was untimely.
After the Board of Regents declined to entertain Giebel's appeal of
the Commissioner's decision, Giebel attempted to invoke the
jurisdiction of the District Court to review the University's
policies and its grievance and appeals process. In its order
granting the Uni versi ty' s motion for summary judgment, however, the
court concluded that there exists no general statutory right of
review of a University System's administrative actions.
Ordinarily, administrative decisions are subject to judicial
review pursuant to the Montana Administrative Procedure Act (MAPA).
See §§ 2-4-101 through -711, MCA. Pursuant to § 2-4-102 (2) (a) (iii) ,
MCA, however, both the Board of Regents and the Montana University
System are exempt from MAPA's provisions. Therefore, no independent
right of judicial review of University administrative decisions
exists pursuant to MAPA, nor has that right been created by some
other means. "In Montana, only the legislature may validly provide
for judicial review of agency decisions." Nye v. Department of Livestock
(1982), 196 Mont. 222, 226, 639 P.2d 598, 498, 500. As evidenced
by MAPA, however, the Legislature has chosen not to provide for a
general review of University System decisions.
As made clear by the District Court, although no specific
right of judicial review is provided by MAPA, a plaintiff may still
challenge a University System administrative decision by alleging
a judicially-cognizable cause of action. In this case, the court
17
merely refused to review the general decision reached by the
University System; the court did, however, address Giebel's
specific allegations against the University when it reviewed
Giebel's claims of denial of due process, denial of equal
protection, denial of freedom of speech, breach of the covenant of
good faith and fair dealing, fraud, defamation, intentional
infliction of emotional distress, and blacklisting.
We hold that the District Court correctly concluded that it
had no general right of review of University administrative
decisions or their administrative processes relating to those
decisions. We therefore affirm that part of the District Court's
summary judgment order in which the court declined to review the
general administrative decision process of the Montana University
System.
ISSUE 7
Did the District Court err when it concluded that Giebel had
failed to exhaust his administrative remedies?
In this case, the District Court held that Giebel had "failed
to follow both common law and state statutory mandates which
require that he exhaust all administrative remedies before bringing
a claim in district court." Specifically, the court concluded that
Giebel had failed to abide by both the Board of Regent's appeals
policy and the common law doctrine of exhaustion of remedies. The
court therefore concluded that several of Giebel's claims which
were informally alleged in Giebel's numerous and lengthy filings
were barred by the doctrine of exhaustion.
18
It is the general policy of this state, as set forth in both
statute and case law, to require a complainant to exhaust his
administrative remedies before he may access the judicial system.
The Administrative Procedure Act, in fact, allows judicial review
only to "[a] person who has exhausted all administrative remedies
available within the agency." Section 2-4-702, MCA. Because the
University System is exempted from the Administrative Procedure
Act, Giebel's claim is subject to only the common law doctrine of
exhaustion, which this Court has recognized as "the general
principle that ordinarily administrative remedies must be exhausted
before applying for judicial review." State ex rei. Sletten Constr. Co. v. Great
Falls (1973), 163 Mont. 307, 311, 516 P.2d 1149, 1151.
In this case, Giebel failed to avail himself of the
appropriate administrative remedy in a timely fashion.
Specifically, Giebel failed to comply with Section 203.5.2 of the
Montana University System Policy, which requires that an appeal of
a campus grievance decision must be filed within thirty days of
that decision. Instead, although the Chancellor's decision was
rendered on July 25, 1994, Giebel did not file his appeal of that
decision until November 22, 1994. Although Giebel corresponded
with the Commissioner of Higher Education several times during the
intervening months, the Commissioner responded with only general
statements of policy and continuously advised Giebel that his
appeal would have to conform with Section 203.5.2 of the University
19
System Policy. The Commissioner denied Giebel's appeal on March 3,
1995, on the ground that the appeal was not timely filed.
It is well established that failure to make a timely appeal of
an administrative decision may result in a failure to exhaust
administrative remedies. As one treatise has noted:
If the petitioner once had an opportunity to pursue a
then-available administrative remedy within a specified
time period, but the petitioner did not pursue the remedy
within the time it was available, the agency action may
be final by the time the court decides whether to review
the action. Yet, in that situation, the court still may
decline to review the final agency action because of the
petitioner's failure to have exhausted the administrative
remedies that were previously available.
Kenneth Culp Davis & Richard J. Pierce, Jr., Administrative Law
Treatise, vol. II, § 15.1 at 306 (1994) (citation omitted)
(emphasis added). The Montana University System Policy also
reflects this proposition. It states: "When a party fails to
exercise the appeal rights guaranteed by this policy the party
accepts the lower level decision as final and waives the right to
contest the matter further." Montana University System Policy,
Section 203.5.2.
In this case, the District Court correctly concluded that
Giebel did not exhaust his administrative remedies because he did
not file a timely appeal of the Chancellor's decision. On that
basis, the court correctly concluded that Giebel had waived his
right to contest several claims which were resolved by the
University Chancellor and the campus grievance committee. We
therefore affirm that portion of the District Court's decision
20
which concluded that several of Giebel's claims were barred by the
doctrine of exhaustion and could not be addressed by the court.
Based on our conclusions that there are no genuine issues of
material fact presented in this case, and that the Uni versi ty
System defendants are entitled to judgment as a matter of law, we
affirm the District Court's order which granted the defendants'
motion for summary judgment and denied Giebel's cross-motion for
summary judgment.
We concur:
Justices
21