Murphy v. Duquesne University of the Holy Ghost

EAKIN, J.:

¶ 1 Cornelius F. Murphy, Jr., appeals from the order granting summary judgment against him and in favor of Duquesne University of the Holy Ghost on his breach of contract claim. Upon careful review of the record and the applicable law, we affirm the trial court’s order.

¶ 2 The University first hired Professor Murphy to teach law in 1966. Once he was granted tenure, the parties executed a tenure contract, reviewable annually, which incorporates by reference the University Statutes and Faculty Handbook. Generally, a faculty member with tenure is entitled to annual renewal of employment until retirement or age 70, whichever occurs first. The Statutes and the Handbook contain provisions by which tenure is forfeited. Pertinent to this action is the following:

K. Termination of Tenure

1. Forfeiture for misconduct or for incompetence.

A faculty member’s tenure may be forfeited by serious misconduct or for professional incompetence. In the event of proposed termination for reasons of serious misconduct..., tenured faculty shall be entitled to a hearing by a committee of the University Grievance Committee for Faculty (see Statute VII, B.l.d.ii). The member shall be informed before the hearing by the President in writing of facts upon which such proposed termination is based and shall have the opportunity to present a defense. The member and the University may be represented at the hearing by counsel. There shall be a record made of the proceedings by electronic or other appropriate recording process and the same shall be made available to the parties .... The committee shall advise the faculty member and the University President of its decision in writing within 30 days from the date of the termination of the hearing_ If the President terminates the affected faculty member either by approval of the committee recommendation or by his/her own decision, following a committee recommendation of retention, the affected faculty member may have the final decision of the President reviewed by the Board of Directors.

Faculty Handbook, Section 5.K.1, at 12. The University’s Sexual Harassment Policy in effect at the relevant time provides in pertinent part:

• Unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact of a sexual nature constitute sexual harassment when:

• Submission to such conduct is made ■ either explicitly or implicitly a term or condition of an individual’s initial employment, advancement or education;

• Submission to or rejection of such conduct by an individual is used as the basis for academic decisions affecting that individual;

• Such conduct has the purpose or effect of substantially interfering with an individual’s academic or professional performance or creating an intimidating, hostile or offensive employment, educational, or living environment.

¶ 3 Bonita Lynch filed a sexual harassment claim against Professor Murphy in the fall of 1991. Ms. Lynch was a student in one of Professor Murphy’s classes, a course required of all first-year students. Ms. Lynch filed her complaint with the University’s Affirmative Action Officer, Dr. Judith Griggs, alleging Professor Murphy subjected her to unwelcome physical contact, attempted to have a sexual relationship with her, and implied her education would suffer if she did not cooperate with his advances. She also alleged Professor Murphy assisted her with a law school project assigned by another professor.

¶ 4 Dr. Griggs conducted an investigation; on December 3, 1991, she submitted her report to the University President, John E. Murray. Dr. Griggs’ report concluded Professor Murphy had created a hostile environment for Ms. Lynch and provided her with improper assistance with her classwork.

¶ 5 By letter dated December 5, 1991, President Murray notified Professor Murphy that he accepted the conclusions of Dr. Griggs’ report, and stated Professor Murphy would be permitted to complete his teaching assignments that semester, but then would be suspended until June 1, 1992. As a condition of reinstatement, Professor Murphy was to seek professional counseling with the goal of providing assurances his behavior would not be repeated. The letter also warned:

Should any future manifestation of such unacceptable behavior occur even outside the classroom with relation to any Duquesne student or other member of the Duquesne Community, or should other evidence of similar past behavior with students or members of the Du-quesne Community be forthcoming, the University will immediately review such information and take appropriate action.

Letter from President Murray to Professor Murphy, 12/5/91, at 3 (emphasis added).

¶ 6 In June, 1992, it was determined Professor Murphy complied with the University’s disciplinary directives; he was reinstated to his tenured position and completed the 1992-93 school year without incident. The parties renewed their tenure contract for the 1993-94 academic year, but before the term began, the University learned of allegations involving Professor Murphy and four other students, in addition to Ms. Lynch. The essence of these allegations was that Professor Murphy engaged in a pattern of approaching selected female students and trying to create social relationships with them. The students’ perceptions of these encounters made them uneasy to the point they tried to avoid Professor Murphy and elective courses he taught. While two of these students had been interviewed by Dr. Griggs in 1991, the University reopened its investigation and placed Professor Murphy on leave of absence with pay. The University subsequently notified Professor Murphy it was considering terminating his status as a tenured professor, but advised him he was entitled to a hearing before the University Grievance Committee for Faculty (USFG), and informed him of eight specific allegations on which their consideration was based.

¶ 7 Professor Murphy requested the hearing. The Faculty Handbook provides that at such hearing, the University had the burden of proving by clear and convincing evidence that Professor Murphy was guilty of serious misconduct. The hearing committee was to issue findings, a report and a recommendation to the University President, who would make the final decision; the President was not bound to accept the Committee’s recommendation.

¶ 8 The hearing took two days. Professor Murphy was represented by counsel, who called witnesses and submitted exhibits on his behalf, and cross-examined witnesses, including the four students who alleged Professor Murphy engaged in improper conduct toward them. Bonita Lynch chose not to testify, as her lawsuit against the University was pending in civil court; the Committee did not have subpoena power. Ms. Lynch’s story was presented through other witnesses; Professor Murphy testified their relationship was consensual, but admitted he provided academic assistance to her. He denied giving similar assistance to other students. Both sides submitted post-hearing briefs and proposed findings of fact.

¶ 9 The Committee found Professor Murphy provided substantial and improper assistance to Ms. Lynch. The Committee characterized his assistance as quid pro quo in the context of sexual harassment. With respect to the other students, the Committee found Professor Murphy engaged in a pattern of behavior by which he abused his role as professor and created a hostile environment, which they concluded was a form of sexual harassment. The Committee chastised Professor Murphy for his behavior: “The UGCF is offended by Professor Murphy’s past conduct of repetitive approaches to his women students and dismayed by his apparent reluctance to comprehend the ethical and legal principles involved.” Findings and Conclusions of Grievance Committee for Faculty, 12/2/94, at 10. The Committee concluded, however, that the University failed to meet its burden of proof with respect to six allegations, and concluded insufficient grounds existed for termination. The Committee based this recommendation against termination solely as “an application of the doctrine of laches.” Id. The Committee reasoned that much of the evidence was available to the University when Ms. Lynch first filed her complaint, and Professor Murphy had since undergone suspension and counseling.

¶ 10 The University President accepted certain substantive findings of the committee but rejected the application of laches. In a letter to the Chairman of the committee, President Murray emphasized “[t]he directive to Professor Murphy to pursue counseling was expressly designed to for-fend future misconduct for current students and was expressly not designed as a sanction for past misconduct.” Letter of January 4, 1995, at 11. President Murray concluded: “The University has, by abundantly clear and convincing evidence, established more than sufficient grounds to support the finding of serious misconduct by Professor Murphy and consequent termination of Cornelius F. Murphy, Jr. as a tenured professor at Duquesne University.” Id.

¶ 11 By letter dated January 4, 1995, President Murray terminated Professor Murphy as a tenured professor. Professor Murphy requested the University Board of Directors review the President’s decision. Upon review, the Board affirmed the President’s decision.

¶ 12 This lawsuit followed, initially filed in federal court. Professor Murphy asserted claims under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a), and the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 951 et seq. He also pleaded a claim for breach of contract, contending the University breached both substantive and procedural provisions of the tenure contract. By order dated June 30, 1998, the district court granted the University’s motion for summary judgment on the ADEA claim, and did not retain jurisdiction of the two remaining state law claims. Professor Murphy transferred the case, by praecipe, to the Court of Common Pleas of Allegheny County, and voluntarily discontinued the PHRA claim, leaving the breach of contract claim as the sole remaining cause of action. The University filed a motion for summary judgment as to that claim, which the trial court granted by Order dated November 4,1998.

¶ 13 The trial court reasoned the propriety of summary judgment depends largely on the standard of review. If it was obliged to consider Professor Murphy’s claims de novo, summary judgment was not appropriate, as material issues of fact were yet to be resolved. Although the trial court found no Pennsylvania law precisely on point, it determined the better approach to be a limited review, since Pennsylvania law generally favors a deferential review of internal university decisions. See Baker v. Lafayette College, 516 Pa. 291, 532 A.2d 399 (1987). The trial court also cited the limited standard of review set forth in two Ohio decisions. Brahim, v. Ohio College of Podiatric Medicine, 99 Ohio App.3d 479, 651 N.E.2d 30 (1994) and Yackshaw v. John Carroll University Board of Trustees, 89 Ohio App.3d 237, 624 N.E.2d 225 (1993). That standard is described as follows:

[Wjhen the parties’ contract defines the procedure to be used to determine termination of a tenured professor’s contract at a private university, the standard of review is whether the contract and the United States Constitution have been adhered to, and whether there is substantial evidence in the record to support the termination.

Brahim, at 35 (quoting Yackshaw, supra). Applying this standard, the trial court concluded summary judgment was proper: “No reasonable person could dispute that the record compiled by the fact finders in this case contains substantial evidence of serious misconduct by Professor Murphy.” Trial Court Opinion, 11/4/98, at 17.

¶ 14 The trial court observed it was within the President’s discretion to reject the committee’s recommendation. The trial court also found no breach of the procedural provisions of the contract simply because the decision to terminate was partly based on conduct pre-dating his suspension. Professor Murphy suggested he had been disciplined for all pre-suspension misconduct, but the court found nothing in the Handbook to suggest further action was barred unless preserved in writing. The court pointed to President Murray’s letter of December 5, 1991, which expressly warned Professor Murphy if evidence of similar past behavior came to light, the University would review it and take appropriate action. The court also concluded any claim of breach of the procedural provisions of the contract was barred by collateral estoppel, as that issue was conclusively decided by the federal court.

¶ 15 Professor Murphy raises three issues for our review:

1. Whether the trial court erred as a matter of law in granting summary judgment against a tenured university professor by failing to grant de novo review of his substantive and procedural contract claims?

2. Wfiiether the trial court erred in granting summary judgment where genuine issues of material fact existed, even under a limited standard of review as to whether Plaintiffs conduct viewed in the light most favorable to him amounted to “serious misconduct” necessary to terminate the ongoing contract?

3. Whether the trial court erred in applying collateral estoppel to bar litigation of the procedural aspects of Plaintiffs breach of contract claim based upon statements in an opinion dealing with an age discrimination claim?

¶ 16 Our review of the trial court’s grant of summary judgment is plenary. Juniata Valley Bank v. Martin Oil Company, 736 A.2d 650, 655, 1999 Pa.Super. LEXIS 2351 at **3 (Pa.Super.1999). Summary judgment is proper where the pleadings, depositions, answers to interrogatories, admissions and affidavits and other materials show there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Swartley v. Hoffner, 734 A.2d 915, 918 (Pa.Super.1999); see Pa.R.C.P. 1035.1-1035.5. We must view the record in the light most favorable to the opposing party and resolve all doubts as to the existence of a genuine issue of material fact in favor of the nonmoving party. P.J.S. v. Pennsylvania State Ethics Commission, 555 Pa. 149, 723 A.2d 174, 176 (1999). We will reverse the trial court’s grant of summary judgment only upon an abuse of discretion or error of law. Moses v. T.N.T. Red Star Express, 725 A.2d 792, 795 (Pa.Super.1999), appeal denied, 559 Pa. 692, 739 A.2d 1058, 1999 Pa. LEXIS 1755 (1999).

¶ 17 We first address the contention that the University’s internal grievance procedures should be subject to de novo judicial review. A June 2, 1993 letter, offering the terms for tenure for the 1993-94 school year, sets forth Professor Murphy’s salary and incorporates by reference certain sections of the University Statutes and Faculty Handbook. See Handbook 5.K.I. and 7.D; Statute IV.K.L These provide that grounds for termination include “serious misconduct,” although they do not define the term, and set forth specific grievance procedures to which a faculty member is entitled.

¶ 18 Murphy does not dispute that the prescribed procedures were followed, nor does he suggest they failed to comport with due process. District Court Judge Cindrich found the procedure “roughly comported with due process of law.” District Court Memorandum Opinion, 7/15/98, at 23. Murphy challenges President Murray’s final conclusion that he committed serious misconduct and claims he is entitled to full judicial review of that decision.

¶ 19 Pennsylvania law favors limited judicial review of internal university decisions. In Baker v. Lafayette College, supra, a professor appealed to the college president when his two-year appointment was not renewed. Pursuant to college procedures, an advisory committee was appointed and reviewed the matter. Despite the committee’s challenge to the reliability of evaluations conducted by the department chair and the dean, the president denied the professor’s appeal, and the board of trustees affirmed that decision. The professor sued for breach of contract. The trial court granted summary judgment in favor of the college and the Supreme Court affirmed:

As in all aspects of life, no procedure is fool proof. In our judicial system we have various appeals to review lower court determinations alleged to be improper or unwise. The purpose of appellate review is to correct any prior wrongdoings. Likewise, The Faculty Handbook sets forth review procedures. In accordance with these procedures, the Appellant appealed to the president of the College and ultimately to the board of trustees. We would be hard-pressed to conclude that the College acted in bad faith when it followed the required review procedures. This Court has no jurisdiction to review the factual determinations of a college’s governing body unless it can be clearly demonstrated that that body violated its own procedures.

Id., at 403 (emphasis).

¶ 20 Although the professor in Baker was not tenured, he did have an employment contract, which he claimed the college breached. His failure to be reappointed was subject to prescribed review procedures, including the right to an internal appeal. The critical factor is that the college had in place specific review procedures which the Supreme Court declined to review absent a demonstration that the procedures were not followed.

¶ 21 Our reading of Baker is supported by “clear sentiment reflected in our case law” favoring limited judicial review of college or university determinations. See, e.g., Psi Upsilon of Philadelphia v. University of Pennsylvania, 404 Pa.Super. 604, 591 A.2d 755, 760 (1991) (courts should not interfere with university’s internal procedure and discipline in the absence of real prejudice, bias or denial of due process), appeal denied, 528 Pa. 637, 598 A.2d 994 (1991); Schulman v. Franklin & Marshall College, 371 Pa.Super. 345, 538 A.2d 49, 52 (1988)(“A college is a unique institution which, to the degree possible, must be self-governing and the courts should not become involved in that process unless the process has been found to be biased, prejudicial or lacking in due process”); Sola v. Lafayette College, 804 F.2d 40, 42 (3d Cir.1986)(where faculty member who was denied tenure brought breach of contract and wrongful discharge claims, the Third Circuit expressed reluctance “to interfere with the internal operations of academic institutions absent direction from the legislature” and warned that such judicial evaluation “may threaten the college’s institutional academic freedom”).¹

¶ 22 We do not conclude that no review is appropriate, or that the University’s grievance procedure is Professor Murphy’s exclusive binding forum. However, we must accord deference to a private institution’s internal factfinding and appeals procedures, if they comport with due process.²

¶23 While Professor Murphy did not have the opportunity to cross-examine Ms. Lynch, the record suggests her evidence alone would not have been dispositive. President Murray focused on the testimony of the four students, on the pattern of conduct, and the evidence that Professor Murphy abused the power of his role as a professor, creating a hostile environment for female law students. It was the testimony of the four other students that demonstrated the pattern of behavior and the environment it created. While Professor Murphy admitted improperly doing academic work for Ms. Lynch, it was not merely the allegations of the absent Ms. Lynch that led to President Murray’s decision.

¶ 24 Professor Murphy next argues that even under a limited standard of review, the trial court erred in finding no genuine issues of material fact exist; this is premised on a claim the court failed to view matters in the light most favorable to him as the non-moving party.

¶ 25 While the term “serious misconduct” is not defined in the contract or University Statutes, the trial court determined “No reasonable person could dispute that the record compiled by the fact-finders in this case contains substantial evidence of serious misconduct by Professor. Murphy.” Trial Court Opinion, at 17. Upon a thorough review of the record, we agree. The record contained substantial evidence of a pattern of conduct that by any reasonable definition constitutes “serious misconduct,” particularly when committed by the authoritative figure of a law school professor against firsb-year students. The factual findings of Professor Griggs and the committee, the extensive analysis of the evidence by President Murray, together with Professor Murphy’s own admissions and testimony, adequately support the trial court’s conclusion.

¶ 26 Professor Murphy identifies a number of issues of fact which he maintains preclude summary judgment.

• Whether “serious misconduct” can include conduct known to the parties when the contract was formed;

• Whether the UGCF found the “serious misconduct” standard was met when the committee rejected six out of the eight allegations brought against Professor Murphy;

• Whether President Murray’s letter of December 5,1991 restricted Professor Murphy’s contract rights;

• Whether Ms. Farkas’ testimony was credible in light of the fact her name was revealed only six days before she testified (suggesting the University recruited her to testify against Professor Murphy);

• Whether the University terminated Professor Murphy to protect its position in the threatened Lynch lawsuit;

• Whether the American Association of Law Schools’ determination, that the University breached the contract by punishing Professor Murphy for pre-suspension conduct, precludes summary judgment.

¶ 27 Some of these are questions of law decided by the trial court and now addressed by this Court. Some are not material to the alleged breach of contract or, in light of all the evidence of record, are insufficient to preclude summary judgment. For example, by letter dated April 18, 1995, the Executive Director of the Association of American Law Schools (AALS) notified the University and Professor Murphy of its subcommittee determination “that there is probable cause to believe that there has been a violation of the Association’s Bylaws concerning academic freedom and tenure .... ” Professor Murphy contends AALS standards are incorporated into the contract and the AALS determination its Bylaws were violated is evidence of breach of contract. However, the contract expressly states the AALS Articles of Association are incorporated in the contract; those Articles do not expressly address termination of tenure. Professor Murphy conceded, in deposition testimony, the “AALS standards do not explictly prohibit punishing a faculty member twice for the same offense.” Professor Murphy Deposition, 2/25/97, at 293-94. Thus, the AALS subcommittee determination is not material to whether the University breached procedural aspects of its contract with Professor Murphy.

¶ 28 Professor Murphy also relies on Bernstein v. Lipper Manufacturing Company, 307 Pa. 36, 160 A. 770 (1932), for the proposition that in a claim for breach of an employment contract, a jury must decide whether cause for termination exists where the supporting evidence is in dispute. In Bernstein, the court held: “What constitutes a sufficient cause for the discharge of a servant is a question of law, and where the facts are undisputed or admitted it is for the court, but where the evidence to sustain the justification for discharge is disputed, the jury must pass on it.” Id., at 771. Bernstein is distinguishable from this case in that it did not involve a written contract; there was no provision agreed to by the parties providing how cause was to be determined, and by whom. Moreover, Bernstein did not involve a limited standard of review; under a limited standard there are no issues of fact to submit to a jury, where there is sufficient undisputed evidence of record to support a finding of serious misconduct.

¶ 29 Professor Murphy also contends the trial court erred in finding his breach of contract claim was barred by collateral estoppel. To determine whether collateral estoppel applies, we determine whether:

(1) An issue decided in a prior action is identical to one presented in a later action;

(2) The prior action resulted in a final judgment on the merits;

(3) The party against whom collateral estoppel is asserted was a party to the prior action, or is in privity with a party to the prior action; and

(4) The party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior action.

Rue v. K-Mart Corporation, 552 Pa. 13, 713 A.2d 82, 84 (1998).

¶ 30 In finding the elements for collateral estoppel in this case, the trial court relied on the following from Judge Cind-rich’s opinion:

[T]he process employed in seeking out. the truth concerning the charges was in accordance with the established contractual provisions and University policy and procedure, which roughly comported with due process of law.

District Court Memorandum Opinion, at 23.

¶ 31 Professor Murphy argues “[t]he issue here is whether Duquesne breached ... any procedural requirement of the contract.” Appellant’s brief, at 47. Before the district court, Professor Murphy argued that an employer’s failure to follow its own procedures is evidence of pretext. Since pretext was an essential element of Professor Murphy’s age discrimination claim, see District Court Memorandum Opinion, at 12-13, the court’s determination that the University followed its own procedures was essential to the judgment in that case. This is identical to Professor Murphy’s procedural breach of contract issue raised herein, making Professor Murphy’s reliance on Zinman v. Prudential Insurance Company of America, 909 F.Supp. 279 (E.D.Pa.1995), unfounded.³ The court in Zinman was asked to decide whether the plaintiff was entitled to a jury trial, an issue wholly incidental to whether he could recover disability benefits. By contrast, the issue raised by Professor Murphy in the federal action went to an element of his substantive claim.

1132 Regarding the second element, there was a final judgment on the merits when the district court granted summary judgment in favor of the University, a ruling Professor Murphy did not appeal. The parties were identical in both the federal and state cases, satisfying the third element.

¶ 33 Finally, Professor Murphy had a full and fair opportunity to litigate the issue in the federal action, since he plainly relied on evidence of the process accorded him to support his contention of pretext. He had the opportunity to argue the University’s proceedings (including the President’s decision to terminate) were arbitrary because they were motivated by age discrimination. His argument in this case is the same, that the University’s termination proceedings were arbitrary and evidenced a breach of contract. Accordingly, Professor Murphy’s suggestion the district court failed to fully review the breach of contract claim is unavailing. Collateral estoppel precludes relitigation of an issue in a later action, even though based on a cause of action different from the one previously litigated. Balent v. City of Wilkes-Barre, 542 Pa. 555, 669 A.2d 309, 313 (1995); see also McNeil v. Owens-Corning Fiberglas Corporation, 545 Pa. 209, 680 A.2d 1145, 1148 (1996)(“[I]ssue preclusion serves the twin purposes of protecting litigants from assuming the burden of re-litigating the same issue with the same party, and promoting judicial economy through preventing needless litigation”).

¶ 34 Both the federal and state actions necessarily involved an examination of the University’s termination proceedings to determine whether they were arbitrary and non-compliant with the University Statutes, Faculty Handbook and the contract. Accordingly, the trial court did not err in its application of collateral estoppel.

1135 For the foregoing reasons, we affirm the trial court’s grant of summary judgment.

¶ 36 Order affirmed.

¶ 37 BROSKY, J., files a Dissenting Opinion.

1 . We acknowledge McConnell v. Howard University, 818 F.2d 58 (D.C.Cir.1987), which suggests limited review would be inappropriate in this case. Although certain reasoning in McConnell is facially attractive, Baker and the Pennsylvania cases cited above convince us a deferential, limited review is the law in this Commonwealth.

2 . "The essential elements of due process are notice and opportunity to be heard and to defend oneself in an orderly proceeding adapted to the nature of the case before a tribunal having jurisdiction over the matter. Due process also requires an opportunity to confront and cross-examine adverse witnesses.” Lewis v. School District of Philadelphia, 690 A.2d 814, 816 n. 12 (Pa.Commw.1997).

3 . Professor Murphy also contends an exception to Section 28 of the Restatement (Second) of Judgments precludes application of collateral estoppel. He cites no Pennsylvania case law, but relies on Zinman for this proposition: "an issue is not estopped from relit-igation when (a) it is an issue of law, and (b) the two actions involve claims that are substantially unrelated or 'a new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws.’ ” Id., at 282 (quoting Restatement (Second) of Judgments § 28(2)). In Zinman, the court in the prior action applied the law of the Eighth Circuit to determine the plaintiff's right to a jury trial; this differed from the law of the Third Circuit applicable in the subsequent action. Murphy argues the "uncertainty” regarding what standard of review Judge Cindrich applied to procedural aspects of the contract justifies application of this exception, but this speculation is baseless. Judge Cindrich plainly set forth at the outset of his analysis a traditional summary judgment standard of review. Murphy thus suggests no appropriate basis for application of this exception.