Chan v. Miami University

652 N.E.2d 644, 73 Ohio St. 3d 52

• Court: Ohio Supreme Court
• Decided: August 16, 1995
• Docket: No. 93-2374
• Status: Published

Opinions

Moyer, C.J.

The issue presented by this appeal is whether the university breached its contract when it terminated Professor Chan’s employment pursuant to the university rule prohibiting sexual harassment rather than the rule providing for termination of tenured faculty.

We first address the university’s procedure for determining sexual harassment claims. Section 3.211 of the manual, which was incorporated into the contract between the university and Chan, states the following with respect to the working and learning environment of the university:

“It is Miami University’s position that employees and students should have a working and learning environment free from intimidation, hostility, or other offensive conditions. It is the policy of the University that sexual harassment shall not be condoned or permitted. It is also the University’s policy that false accusations of sexual harassment shall not be condoned or permitted, such behavior also being considered a form of intimidation. Individuals found to be in violation of this policy shall be subject to appropriate disciplinary action, including written warning, suspensipn, or dismissal, -within the guidelines of the grievance procedures of the appropriate authority. (Approved by the Board of Trustees October 15, 1981).”

Section 3.212 of the manual defines “sexual harassment” and suggests informal procedures to resolve complaints.¹ Section 3.212(E) provides that if informal resolution of the complaint is not achieved by the Office of Affirmative Action with the assistance of appropriate divisional affirmative representatives, then the university’s formal procedures for affirmative action grievances provided in Sections 3.7 and 3.71 of the manual are available. A careful review of Section 3.71 is critical to our determination, as it was that section of the manual rather than the section that expressly provided for termination of tenured faculty (Section 3.555) that was used to terminate Chan’s employment.

Section 3.71 of the manual, in combination with Section 3.211, provides the grievance procedure available to any employee and student of the university who believes that his or her rights under the university’s affirmative action policy have been violated. It begins with several precatory paragraphs:

“By means of the procedures described below, Miami University provides an opportunity for any employee to express a grievance and receive a fair hearing.

u * * *

“Most complaints can be resolved through discussion between staff member and immediate supervisor. Individuals are encouraged to engage in direct consultation with each other so that the problem can be solved through conciliation, if possible. Any retaliation against an employee for having made a complaint is grounds to file a second complaint based on retaliation.”

That language is followed by the formal procedures that are available if informal procedures are not successful.

Under the formal grievance procedures, set forth in Section 3.71 of the manual, a complainant may file a written complaint with the university’s Affirmative Action Officer, who provides the respondent with notice of the complaint, conducts a formal investigation of the complaint to make a finding of probable cause, and communicates that finding to the complainant and respondent.

If the formal complaint is not resolved and a finding of probable cause is made, then a hearing is set and a hearing panel of three persons is established from a pool of twenty-five retired university employees. Section 3.71 does not provide either the complainant or the respondent with the right to be represented by an attorney at the hearing, but each has the right to have the assistance of an advisor or counselor from the university faculty or staff. The hearing committee presents its findings and recommendations to the vice-president to whom respondent reports or the president’s designate, who makes a decision on the recommendation. Either party has a right to appeal the decision of the vice-president to the president, who has the final decision-making authority on the grievance.

It is important to note that all of the aforementioned procedures are subject to very short deadlines; even the complainant is required to file the grievance within forty-two calendar days from the date of the alleged act of “discrimination.” It seems clear that in adopting Section 3.71, the university believed it was important to resolve quickly complaints against university personnel that arose out of alleged acts of discrimination or sexual harassment.

We next review the sections of the manual that provide expressly for termination of a tenured appointment. Section 3.428 of the manual provides that “[termination of an appointment with tenure prior to retirement may be effected by the University for only two reasons: adequate cause or financial exigency.” “Adequate cause” is defined in subsection (A) as follows: “Adequate cause relates to performance of a faculty member in his or her professional activities as teacher or researcher.”

Section 3.553 of the manual, entitled “ Termination of Appointment or Tenure for Cause,” and Section 3.555, entitled “Procedures for Disciplinary Action,” describe the circumstances which might occasion termination for cause and indicate the procedures to be used. Section 3.555 states, “[t]he following procedures shall be adhered to in taking disciplinary actions against a member of the instructional staff.” The procedures for disciplinary actions applicable to non-reappointment and termination of appointments are summarized as follows: “When a question arises as to taking disciplinary action against a member of the instructional staff * * *,” a private conference following a notice to staff member is conducted with the president, the provost, appropriate academic dean and department chair, and the staff member is entitled to be represented by legal counsel. After the conference the president may dismiss the charges or administer a reprimand. If the charges are not dismissed, then the president or the staff member may request the Committee on Faculty Rights and Responsibilities to consider the matter. Subsequently, the committee makes a recommendation to the president that the charges be dismissed, that the reprimand be sustained, or that formal charges be initiated against the staff member seeking his or her dismissal or removal from tenure. If the president adopts the recommendation of the committee to dismiss or remove the tenured staff member from tenure, then the president files formal written charges against the staff member setting forth the grounds for dismissal or removal from tenure. In that instance, the rules provide for a hearing.

Section 3.555(E) sets forth the hearing procedures, which include time limits for scheduling; a staff member’s right to be represented by legal or other counsel; representation of the president at the hearing; and presentation of evidence at hearing by witnesses, including cross-examination and production of a transcript of the hearing at the university’s expense. Pursuant to a time deadline, the committee reports its decision to the president and to the faculty member. A critical provision, Section 3.555(F), provides that within five days after receipt of the committee’s decision, either the president or the faculty member has the right to appeal the decision of the committee to the board of trustees of the university, which has the authority to make the final decision.

The university and Chan agree that the appropriate procedure and the procedure used to determine the sexual harassment complaint against Chan is Section 3.71 of the manual. Chan contends that in addition to the procedure prescribed for determining an affirmative action or sexual harassment grievance, he is entitled, by his contract, to the procedure set forth in Section 3.555, if the university desires to dismiss or remove him from tenure. Our analysis of the manual causes us to conclude that the university breached its contract with Chan when it terminated his employment, without affording him the procedures in Section 3.555 that apply to the nonreappointment and termination of appointment.

Chan’s employment contract, composed of letters of appointments that incorporate the university’s manual and resolutions adopted by the board of trustees, is expressly written and is therefore properly interpreted as a matter of law by the court. Alexander v. Buckeye Pipe Line Co. (1978), 53 Ohio St.2d 241, 7 O.O.3d 403, 374 N.E.2d 146, paragraph one of the syllabus. We are also bound by the consistent rule of law that “an instrument must be considered and construed as a whole, taking it by the four corners as it were, and giving effect to every part; but when one part is certain on a given subject, and all the other parts are uncertain on that subject, the certain will prevail over the uncertain[.]” Brown v. Fowler (1902), 65 Ohio St. 507, 523, 63 N.E. 76, 78.

The university argues that the procedure for resolution of sexual harassment-grievance complaints takes the place of the procedure for terminating the contract of a tenured professor and that the grievance procedure provides adequate procedural safeguards to the respondent. In support of this argument the university cites Section 3.211 of the manual, which states, “ * * * [individuals found to be in violation of this policy shall be subject to appropriate disciplinary action, including * * * dismissal, within the guidelines of the grievance procedures of the appropriate authority.”

There is nothing in that section that supersedes the clear direction of Section 3.555 that a disciplinary action hearing is “for dismissal or removal from tenure,” Section 3.555(D), and that the procedures in Section 3.555 “ * * * shall be adhered to in taking disciplinary action against a member of the instructional staff.” When the references to “the grievance procedure] of the appropriate authority” in Section 3.211 are read in pari materia with the commands of Section 3.55, it is clear that Section 3.555 controls the procedure for terminating a tenured professor.

The purposes of the two procedures are distinctly different. The grievance procedure under Section 3.7 is defined as “ * * * an opportunity for any employee to express a grievance and receive a fair hearing.” Section 3.71 of the manual, entitled Formal Procedures for Affirmative Action Grievances, is a procedure designed to enable an employee to file a personal grievance against another employee or member of the university staff. The procedure under this section applies to all affirmative action discrimination grievances. The ultimate determiner of that grievance is the president of the university. As the court of appeals correctly observed, the entire grievance process is expressly tailored to preserve a complainant’s rights and produce an eventual resolution of the grievance. The procedure does contemplate some form of disciplinary action, but does not expressly include the termination of a contract as under Section 3.555. Even the affirmative action director in this case appeared to recognize the difference. In his letter of finding he stated, “[bjased on this Letter of Finding, the chair of the department of history should recommend immediate and appropriate disciplinary action against Dr. Chan. If Dr. Chan contests this Letter of Finding, or if this matter is not resolved as a consequence of a[n] appropriate disciplinary action, the complainant * * * has the right to call for the convening of a Hearing Committee. * * * ”

Section 3.7(B)(2) states that “[o]ther members of the instructional staff may pursue a solution through appeal to the Faculty Rights and Responsibilities Committee if the grievance relates to the complainant’s role as a member of the instructional staff.” The focus of a Section 3.71 hearing is the resolution of a complainant’s grievance; it is silent with respect to the procedures to be used if it is determined that a grievance is well taken and that the conduct producing the grievance subjects a tenured faculty member to dismissal from the university. The time limits under the Section 3.71 procedure clearly indicate that the university desires to have grievances arising from affirmative action or sexual harassment claims resolved quickly. Also significant is the fact that there is no provision for a respondent to be represented by counsel in any of the grievance proceedings.

The procedure prescribed for termination of tenured employees pursuant to Section 3.555 is different in focus and purpose from the grievance procedure. The most striking difference is the fact that in a Section 3.555 procedure, it is the university president who files the formal complaint against the faculty member and it is the board of trustees that makes the ultimate decision if the faculty member does not agree with the recommendation of the hearing committee. The staff member in the disciplinary hearing is expressly given the right to be represented by counsel both in the first meeting with the university president to discuss the discipline matter and in the hearing on the formal charges against him.

It is simply not reasonable to assume or conclude that a procedure established for the resolution of affirmative action grievances between or among members of the university is intended to take the place of a procedure that expressly provides for the determination of whether conduct by a tenured faculty member constitutes grounds for terminating the university’s contract with the faculty member. Likewise, it is unreasonable to assume that the university considers discrimination or sexual harassment to be a less serious offense against a person than an offense that does not constitute an affirmative action grievance. The purpose of the two procedures is different, the due process afforded the tenured faculty member is different, and the entity rendering the final decision is different.

The university’s argument would result in a tenured professor who is accused of an affirmative action grievance being given less due process in determining whether the tenured professor will be terminated than a tenured professor accused of any other offense rising to the level of “adequate cause.” The university does not appear to view an allegation of sexual harassment as less significant than an allegation constituting some other basis for “adequate cause” offenses. As a matter of law, the university may not tailor procedural due process to the offense charged rather than the right deprived.

Although the issue before us can be decided upon an interpretation of the contract between Chan and the university, we will also dispose of the due-process argument raised by Chan. There is no dispute that the granting of tenure creates an expectation of continued employment subject to discharge for cause. The United States Supreme Court stated in Perry v. Sindermann (1972), 408 U.S. 593, 601, 92 S.Ct. 2694, 2699, 33 L.Ed.2d 570, 580, that “[a] written contract with an explicit tenure provision clearly is evidence of a formal understanding that supports a teacher’s claim of entitlement to continued employment unless ‘sufficient cause’ is shown.” Tenure has the status of a property right and may be revoked only pursuant to constitutionally adequate procedures defined by the right itself. Cleveland Bd. of Edn. v. Loudermill (1985), 470 U.S. 532, 538-541, 105 S.Ct. 1487, 1491-1493, 84 L.Ed.2d 494, 501-503; Perry, supra.

Nor is there any question that Chan was entitled to retain legal counsel of his choosing to assist in his defense of his tenured status in an administrative proceeding. Goldberg v. Kelly (1970), 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. “The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law.” Powell v. Alabama (1932), 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158, 170. Indeed, the university’s procedure for termination of a tenured professor expressly gives the professor a right to be represented by counsel at all stages in the proceeding.

The university argues that because Chan was permitted in the grievance procedure to have the assistance of an advisor or counselor from the university faculty or staff and because the person selected by Chan happens to be an attorney, his due process rights were protected. As the court of appeals observed, the fact that Chan was represented by a faculty advisor who is licensed to practice law is of no significance, since the record clearly reveals the advisor was permitted to act only in his capacity as faculty advisor during the grievance. Our review of the record supports that conclusion of the court of appeals.

We conclude that the contract between the university and Chan provided a procedure under which the complaint of sexual harassment against Chan was resolved in favor of the complainant and against Chan. The contract also provides a separate procedure to determine whether the finding of sexual harassment against Chan constituted “adequate cause” (see Section 3.428 of the manual) for disciplinary action resulting in the termination of his tenured status with the university. Because the university terminated Chan’s contract without complying with its express procedure for termination of tenured faculty, the university breached its contract with Chan and denied him due process of law.

For the foregoing reasons the judgment of the court of appeals is affirmed.

Judgment affirmed.

Moyer, C.J., Wright, Pfeifer and Cook, JJ., concur. Douglas, Resnick and F.E. Sweeney, JJ., dissent.

1 . In 1991, the university amended Section 3.212 to strongly urge informal resolution of sexual harassment complaints by setting forth a procedure for mediation. The amendment does not apply to the grievance herein.