In the
United States Court of Appeals For the Seventh Circuit ____________________ Nos. 18‐2559 & 18‐2579 OLIVER COLLINS, Plaintiff‐Appellee, Cross‐Appellant, v.
UNIVERSITY OF NOTRE DAME DU LAC, Defendant‐Appellant, Cross‐Appellee. ____________________
Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:10‐CV‐281 — Joseph S. Van Bokkelen, Judge. ____________________
ARGUED JANUARY 16, 2019 — DECIDED JULY 12, 2019 ____________________
Before BAUER, ROVNER, and HAMILTON, Circuit Judges. HAMILTON, Circuit Judge. Plaintiff Oliver Collins was a ten‐ ured professor of electrical engineering at the University of Notre Dame. In 2010, a faculty committee found after a hear‐ ing that Dr. Collins had misused grant money by purchasing equipment other than that in his grant proposals and then us‐ ing the equipment for personal purposes. The committee con‐ cluded that his actions warranted “dismissal for serious cause” under the Academic Articles incorporated in Dr. 2 Nos. 18‐2559 & 18‐2579
Collins’s faculty contract. At the end of the university’s inter‐ nal review processes, the president of Notre Dame ultimately dismissed Dr. Collins, who later pleaded guilty to a federal felony charge arising from his conduct. Before the criminal charges were filed, however, Dr. Col‐ lins filed this suit against Notre Dame alleging that it breached his contract by dismissing him. In 2012, before his guilty plea, the district court granted summary judgment for Dr. Collins on liability on the theory that Notre Dame breached the contract by allowing one faculty member both to play a role in the informal mediation process and then to serve on the hearing committee. The court did not decide whether the faculty committee’s findings added up to suffi‐ cient cause to dismiss a tenured faculty member like Dr. Col‐ lins. Following Dr. Collins’s 2013 guilty plea to a federal felony charge for theft of government grant funds in this same con‐ duct, Notre Dame re‐did Dr. Collins’s adjudication and dis‐ missed him again so as to establish a “damage cutoff date” in light of the district court’s finding of a procedural error in the first adjudication. After the guilty plea, the court held to its earlier finding that Notre Dame had breached the contract by the procedural error. After a court trial on damages, the court awarded Dr. Collins $501,367, calculated as his lost compen‐ sation from the date of his dismissal on June 2, 2010 until the date of his felony conviction on February 28, 2013. Notre Dame has appealed, and Dr. Collins has cross‐appealed on the amount of damages and other issues. We reverse both the district court’s grant of summary judgment to Dr. Collins and the award of damages. The contract did not prohibit one fac‐ ulty member from participating in informal mediation and Nos. 18‐2559 & 18‐2579 3
then serving on the hearing committee. Further, the undis‐ puted facts show “serious cause” sufficient to warrant Dr. Collins’s dismissal. Notre Dame is entitled to judgment in its favor. I. Factual & Procedural Background Dr. Collins started teaching at Notre Dame in 1995 and be‐ came a tenured professor of electrical engineering in 2001. Upon receiving tenure, Dr. Collins signed a faculty contract, which was “subject to the provisions of the University of Notre Dame Academic Articles and any future amendments thereto.” In the faculty contract, Notre Dame “reserves the right to terminate the services of any member of the faculty for serious cause” and explains that the “definition of serious cause and the procedures for establishing it … are set out in the Academic Articles.” The Academic Articles define “seri‐ ous cause” to include conviction of a felony: “Serious cause” consists of any of the following: academic dishonesty or plagiarism; misrepre‐ sentation of academic credentials; professional incompetence; continued neglect of academic duties, regulations, or responsibilities; convic‐ tion of a felony; serious and deliberate personal or professional misconduct (including, but not limited to sexual harassment or discrimination in violation of University policies); continual se‐ rious disregard for the Catholic character of the University; or causing notorious and public scandal. Academic Articles, Article III, § 8(b). 4 Nos. 18‐2559 & 18‐2579
In 2002, Dr. Collins applied for and received $266,516 from the National Science Foundation (“NSF”) to purchase five pieces of “high speed, mixed signal test equipment” and a computer as part of a Major Research Instrumentation (“MRI”) grant. Notre Dame contributed matching funds. NSF later awarded Dr. Collins $240,000 to support a project titled Intrinsically Digital Radios. As part of that project, he pro‐ posed to use $20,000 to purchase a signal generator. Notre Dame also contributed matching funds to that project. In 2009, Notre Dame started to suspect that Dr. Collins was abusing his grants by purchasing equipment different from that identified in his proposals and by using the equip‐ ment for personal purposes. Notre Dame hired outside coun‐ sel to investigate and also informed the NSF. The NSF inves‐ tigated separately. It suspended Dr. Collins’s grants and re‐ ferred the matter to the Department of Justice, leading even‐ tually to Dr. Collins’s guilty plea to felony theft from a pro‐ gram receiving federal funds, in violation of 18 U.S.C. § 666. In the meantime, in August 2009, Notre Dame President Rev. John Jenkins suspended Dr. Collins with pay pursuant to the Academic Articles. In September 2009, Vice President and Associate Provost Donald Pope‐Davis sent Dr. Collins a letter pursuant to Arti‐ cle III, Section 8 of the Academic Articles, addressing “Severe Sanctions and Dismissal for Serious Cause.” The letter listed six charges: 1. Used NSF funds to purchase equipment sig‐ nificantly different than the equipment speci‐ fied in the grant documents, and that you did this on more than one grant, and over the course of several years; Nos. 18‐2559 & 18‐2579 5
2. Failed to inform NSF of the nature of the equipment you purchased; 3. Submitted a final report under one grant in which you falsely indicated that grant funds were used as intended; 4. Used equipment purchased with NSF funds for extensive personal purposes, with negligible if any scientific use of the equipment; 5. Took and stored sexually explicit and porno‐ graphic images using University computing re‐ sources; and 6. Failed to exercise care in maintaining Univer‐ sity equipment, including University equip‐ ment purchased with government funds. The letter further asserted: Your actions were dishonest and constitute seri‐ ous and deliberate misconduct of both a per‐ sonal and professional nature. Moreover, you have exhibited serious disregard for the Catho‐ lic character of the University; and you have ex‐ posed the University to notorious and public scandal, all of which, we believe, warrants the sanction of dismissal from the University. Finally, the letter informed Dr. Collins that the Office of the Provost intended to initiate election of a hearing committee to review the case and that, in the meantime, Dr. Collins was in‐ vited to attempt an informal resolution of the matter with Dr. Pope‐Davis. 6 Nos. 18‐2559 & 18‐2579
Dr. Pope‐Davis discussed informal resolution with Dr. Collins by telephone. When that did not lead anywhere, Dr. Pope‐Davis appointed two faculty members—Father John Coughlin and Dr. Paul Huber—to meet with Dr. Collins and “the relevant University administrator” “to attempt to resolve the issue to their mutual satisfaction.” After a telephone call with Dr. Collins, Father Coughlin and Dr. Huber informed Dr. Pope‐Davis of the recommendations Dr. Collins made for resolving the matter. On December 22, 2009, Dr. Pope‐Davis informed Dr. Collins by letter that none of his recommenda‐ tions were acceptable and Notre Dame would initiate the hearing process.1 Section 8(c)(3) of the Academic Articles sets forth the pro‐ cedure for selecting the hearing committee: The Executive Committee of the Academic Council elects a Hearing Committee of three elected, tenured members of the Academic Council to conduct a formal, closed‐door hear‐ ing. The Executive Committee also elects an al‐ ternate (who must also be an elected, tenured member of the Academic Council) to take the place of any member elected to the Hearing Committee who must recuse himself or herself because of bias or interest, including
1 Dr. Collins had recommended that Notre Dame: (1) remove the sus‐ pension and allow him to find a new faculty position, while continuing to pay his salary for a period of time; (2) pause Notre Dame’s process until the NSF completed its investigation; or (3) allow Dr. Collins to take an unpaid position at another university while Notre Dame continued to pay his salary for a period of time. Nos. 18‐2559 & 18‐2579 7
participation in the informal resolution process set forth above. The Executive Committee selected Dr. Laura Carlson, Father Coughlin, and Dr. Graham Lappin for the hearing committee, with Dr. Huber as the alternate. The hearing occurred on April 27, 2010. On April 30, 2010, the hearing committee issued its report. The committee sus‐ tained charges 1, 2, and 6 in full and sustained charges 3, 4, and 5 in part: Charge #1: “Used NSF funds to purchase equip‐ ment significantly different than the equipment specified in the grant documents, and that you did this on more than one grant, and over the course of several years;” Vote: The committee votes unanimously (3–0) that the charge is sustained by clear and convincing ev‐ idence. Factual findings: With respect to the Major Research Instrumen‐ tation grant (Exhibit 10), the committee deter‐ mines that the items listed in the original pro‐ posal and then appearing in the revised budget were not purchased using NSF funds as speci‐ fied. Part of the cost of these items was shifted to another source of funding (Exhibits 13 & 14), with $161,231 from the MRI grant going to budgeted items. In addition, NSF funds were di‐ verted to non‐budgeted purchases pursuant to 8 Nos. 18‐2559 & 18‐2579
the terms of the grant (cameras and computing equipment and accessories, $240,115, Exhibits 15 & 16). The non‐budgeted purchases are dis‐ connected from the scope and objectives of the grant, and should have received authorization from NSF. With respect to the Digitally Intrinsic Radio grant (Exhibit 18), the committee determines that the principal piece of equipment (signal generator) that was budgeted was not pur‐ chased. Instead, funds were diverted to non‐ budgeted purchases pursuant to the terms of the grant (cameras and computing equipment and accessories, $42,730, Exhibits 25 & 26). A negative implication of this change is that the proposed equipment was not available for re‐ search and teaching as presented in the broader impact statement of the NSF proposal. Charge #2: “Failed to inform NSF of the nature of the equipment that you purchased;” Vote: The committee votes unanimously (3–0) that the charge is sustained by clear and convincing ev‐ idence. Factual findings: The record shows that Professor Collins failed to contact and inform NSF about the non‐budg‐ eted equipment ($282,845) that was purchased from the MRI and Digitally Intrinsic Radio grants. Nos. 18‐2559 & 18‐2579 9
Charge #3: “Submitted a final report under one grant in which you falsely indicated that grant funds were used as intended;” Vote: By a unanimous vote (3–0) the committee is un‐ able to determine whether the report was inten‐ tionally false. However, by a unanimous vote (3–0) the committee finds that the final report failed to provide an adequate account of how the grant funds were used. Factual findings: The committee determines that Professor Col‐ lins was negligent in the preparation of the final report for the MRI NSF grant. The report (Ex‐ hibit 17) fails to contain a list of the equipment purchased. The committee found the photo‐ graphs of the laboratory equipment in the final report to be misleading. Charge #4: “Used equipment purchased with NSF funds for extensive personal purposes, with negligible, if any scientific use of the equip‐ ment;” Vote: By a unanimous vote (3–0) the committee finds that there was some personal use of this equip‐ ment. Moreover, there was a lack of documen‐ tation supporting a scientific use of this equip‐ ment. 10 Nos. 18‐2559 & 18‐2579
Factual findings: Professor Collins took and stored thousands of photographic images (some of a personal na‐ ture, Exhibits 28–34) using cameras and com‐ puters purchased under NSF grants (Exhibits 15, 16, 25 & 26). At the hearing and in the re‐ spondent’s written statement, Professor Collins asserted that the use of the equipment was jus‐ tified as part of his investigation to create a da‐ tabase for list decoding. However, the commit‐ tee was not presented with a formal record orig‐ inating from Professor Collins’ laboratory sup‐ porting the scientific use of the equipment. Charge #5: “Took and stored sexually explicit and pornographic images using University computing resources;” Vote: By a unanimous vote (3–0), the committee does not find by clear and convincing evidence that Professor Collins took sexually explicit and por‐ nographic images. However, by a unanimous vote (3–0) the committee finds by clear and con‐ vincing evidence that sexually explicit and por‐ nographic images were stored on University computers for which he was responsible. Factual findings: Sexually explicit and pornographic images were found on at least 4 University computers for which Professor Collins was responsible (Lap‐ tops L3 and L4; Desktops D1 and D4). Nos. 18‐2559 & 18‐2579 11
The meta‐data indicate that some of the sexually explicit and pornographic images were taken with a Canon EOS IDs camera purchased from the NSF MRI grant (Exhibits 15 & 29). In addi‐ tion, the committee found a number of discrep‐ ancies about the images allegedly taken on 10/16/2006: 1. In the respondent’s written statement, it states that “On Octo‐ ber 16, 2006 the camera was either be‐ ing serviced or had already been dropped off in a NY office where it was waiting for Dr. Collins to pick it up”. 2. The committee noted that Pro‐ fessor Collins asserted in the hear‐ ing and in the respondent’s writ‐ ten statement that he was in Washington, DC on 10/16/2006, but did not present any persua‐ sive evidence to support this as‐ sertion. Charge #6: “Failed to exercise care in maintain‐ ing University equipment, including University equipment purchased with government funds.” Vote: The committee votes unanimously (3–0) that the charge is sustained by clear and convincing ev‐ idence. 12 Nos. 18‐2559 & 18‐2579
Factual findings: The record shows that there were a number of computers purchased with NSF grant money that can no longer be located. The University policy about disposal of equipment was not properly followed. Cameras that were in Professor Collins’ care and under his responsibility were used to take sexually explicit and pornographic images. Computers that were in Professor Collins’ care and under his responsibility contained sexually explicit and pornographic images. The committee concluded unanimously that Dr. Collins should be dismissed for “serious cause” that had been shown by clear and convincing evidence. At the next step of the process, under § 8(c)(3) of the Aca‐ demic Articles, Dr. Pope‐Davis confirmed Dr. Collins’s dis‐ missal for serious cause.2 Under § 8(c)(4), Dr. Collins then ap‐ pealed to the president of the university. The president first directed the Executive Committee to choose an Appeal Board of “three tenured members of the Academic Council, none of whom served on the Hearing Committee.” The Executive Committee chose Professor Anthony Bellia, Jr., Dr. William Nichols, and Dr. Joseph Powers. The Appeal Board reviewed the written record and transcript of the hearing and unani‐ mously concluded that “record evidence sufficiently supports
2 Dr. Pope‐Davis was the associate provost, and the Articles provide that the provost makes this decision. Art. III, § 8(c)(3). The Academic Ar‐ ticles also, however, allow associate and assistant provosts to perform du‐ ties and exercise authority delegated by the provost. Art II, §§ 1 & 2. Nos. 18‐2559 & 18‐2579 13
the Hearing Committee’s factual findings on each of the six charges” and that “adequate cause exists for the sanction of dismissal.” On June 2, 2010, President Jenkins informed Dr. Collins that he accepted the Appeal Board’s findings and dis‐ missed him immediately for serious cause. In July 2010, invoking federal jurisdiction based on diver‐ sity of citizenship, Dr. Collins filed this suit against Notre Dame for breach of contract. The parties filed cross‐motions for summary judgment on a stipulated record containing the official transcript and exhibits to the faculty committee hear‐ ing. In his motion, Dr. Collins argued that Notre Dame breached his contract because the hearing committee’s find‐ ings did not meet the definition of “serious cause.” In its mo‐ tion, Notre Dame argued that the court should defer to its de‐ cision because it followed the contractual procedures and the hearing committee’s findings were supported by substantial evidence. Notre Dame also argued that in any event, undis‐ puted facts showed “serious cause” under § 8(a) of the Aca‐ demic Articles. In reply in support of his summary judgment motion, Dr. Collins argued for the first time that Notre Dame had violated the contract’s procedural requirements. He ar‐ gued that Father John Coughlin’s service as hearing commit‐ tee chair “unduly biased” the committee’s process and deci‐ sion because he had also participated in the informal media‐ tion effort. Dr. Collins argued that § 8(c)(3) of the Academic Articles requires a member of the hearing committee who par‐ ticipated in informal mediation to recuse himself.3
3 The parties disputed in the district court and on appeal whether Dr. Collins had raised a timely objection to Fr. Coughlin’s participation on the hearing committee. Because we decide the appeals on different grounds, 14 Nos. 18‐2559 & 18‐2579
In May 2012, the court granted summary judgment to Dr. Collins on the procedural issue, explaining: “Under the plain language of the contract, a Hearing Committee member must recuse himself if he takes part in informal dispute resolution procedures.” The court did not decide whether there was “se‐ rious cause” for dismissal. This civil case proceeded, and the court explained at the next status conference that it did not intend to rule on the is‐ sue of “serious cause” because the ruling on the procedural issue made that unnecessary. In October 2012, Dr. Collins pleaded guilty to 18 U.S.C. § 666. In his allocution in support of his guilty plea, Dr. Collins stated: I purchased a camera valued at over $5,000 in United States Currency in July of 2005 with funds granted by NSF for a science project through the University of Notre Dame. The pro‐ ject had received over $10,000 in United States Currency in a one year period under the grant. This camera was purchased by myself for per‐ sonal, professional use, and to assist myself on the grant work. However, the camera was not part of the approved grant or project approved by the NSF nor did I get approval to use the camera for personal matters. In a March 2013 status conference in the civil case, Notre Dame argued that since Dr. Collins had admitted that his con‐ duct constituted a felony, “we know to a certainty that … any procedural defect … doesn’t change the outcome on the
we do not resolve this issue but merely assume there was a timely objec‐ tion. Nos. 18‐2559 & 18‐2579 15
substance.” The court adhered to its view that the procedural breach meant that the decision made by the hearing commit‐ tee in 2010 was void, regardless of the merits. Later in March 2013, the court issued an order saying that the procedural breach meant that Dr. Collins had been wrong‐ fully terminated. In an order in November 2013, the court again explained that it “did not deem it appropriate to review the merits of Notre Dame’s decision to dismiss Collins be‐ cause the composition of the Hearing Committee whose find‐ ings were the cornerstone of the decision violated Notre Dame’s Academic Articles, thereby tainting the decision.” Notre Dame then conducted a second adjudication of Dr. Col‐ lins’s case to establish a “damage cutoff date” if the first adju‐ dication were ultimately deemed void because of the proce‐ dural issue. A new hearing committee unanimously found “serious cause” to dismiss Dr. Collins given his guilty plea and the conduct that was the subject of the first adjudication. In January 2014, Provost Thomas G. Burish informed Dr. Col‐ lins that, upon review of the documents upon which the hear‐ ing committee relied, clear and convincing evidence of seri‐ ous cause warranted the termination and maintained the sanction of dismissal. After a bench trial on damages, the court issued findings of fact and conclusions of law. The court found that “a num‐ ber of items that were not in the budget for either grant were purchased with MRI grant funds” and that Dr. Collins “used some of the camera equipment to take pictures that he said he needed to establish a statistical database” but “never ex‐ plained … how the database supported the research specified in his NSF grants,” that Dr. Collins took “pictures of nude models” “with MRI grant equipment” and “submitted 16 Nos. 18‐2559 & 18‐2579
pictures of Innisfree Garden that he took with that equipment to commercial publications such as Conde Nast,” that Dr. Col‐ lins “did not seek or receive permission from anyone at Notre Dame to take the camera equipment he bought on the MRI grant away from the campus or to make personal use of the equipment,” and that Dr. Collins “was not able to locate and return to Notre Dame all of the equipment he bought with the MRI grant.” As for damages, the court rejected Notre Dame’s argu‐ ment that the procedural breach found by the court was not material. The court wrote that it was “impossible to know what would have happened if someone other than Fr. Cough‐ lin had served on the Committee.” The court then found that Dr. Collins was entitled to lost compensation from the date of his dismissal from Notre Dame on June 2, 2010, until the date of his felony conviction on February 28, 2013. The court awarded $501,367 to Dr. Collins. On appeal Notre Dame argues that the district court erred: (1) in its summary judgment ruling that Notre Dame breached the contractual procedure by allowing Father Coughlin to serve in the informal mediation and on the hearing commit‐ tee; (2) by ruling that Dr. Collins was wrongfully terminated because of the procedural breach even though there was “se‐ rious cause” to fire him; and (3) by awarding Dr. Collins dam‐ ages even though he did not show that the supposed breach caused the damages he claimed. In his cross‐appeal, Dr. Col‐ lins argues the district court erred: (1) by cutting off his dam‐ ages upon his conviction and failing to award damages of at least $4,995,495, the amount he claims he would have earned until his retirement; (2) by dismissing his constructive fraud claim, that Notre Dame had been in a superior position Nos. 18‐2559 & 18‐2579 17
regarding grant administration and he had relied on Notre Dame’s advice; and (3) by not allowing him to amend his complaint a month before trial to add counts of negligence and negligent misrepresentation, as well as a claim under In‐ diana’s Wage Claim Statute. II. Discussion Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the mo‐ vant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We review the legal conclusions of summary judg‐ ment rulings de novo, construing all evidence and drawing all reasonable inferences in favor of the non‐moving party. Roberts v. Columbia College Chicago, 821 F.3d 855, 861 (7th Cir. 2016). The district court’s damage award to Dr. Collins depends entirely on the court’s finding that Father Coughlin’s partici‐ pation in the hearing committee violated § 8(c)(3) of the Aca‐ demic Articles. That section, after requiring the executive committee to choose a hearing committee, states: “The Execu‐ tive Committee also elects an alternate … to take the place of any member elected to the Hearing Committee who must recuse himself or herself because of bias or interest, including participation in the informal resolution process set forth above.” The proper reading of this sentence is that “bias or interest” warrants recusal, and that while participation in the informal resolution process may give rise to bias or interest, it does not necessarily do so. This section did not require Father Coughlin’s recusal from the hearing committee, as nothing in the record shows that he had any bias or interest in Dr. Col‐ lins’s proceeding. 18 Nos. 18‐2559 & 18‐2579
And while the district court did not reach the substantive issue, the undisputed facts show “serious cause” to dismiss Dr. Collins. Notre Dame was on firm ground when it deter‐ mined that his actions fell within § 8(b)’s definition of “serious cause.” The hearing committee’s report set out detailed find‐ ings on six charges—sustaining three in full and three in part—and recommended dismissal for serious cause. The ap‐ peal board unanimously affirmed the hearing committee’s de‐ cision. If the evidence of wrongdoing in the hearing record were not clear enough, Dr. Collins later pleaded guilty to a felony arising from this same conduct. The undisputed evi‐ dence thus shows “serious cause” sufficient as a matter of law to support dismissal. We are not receptive to Dr. Collins’s at‐ tempts to blame Notre Dame for his conduct.4 Because Notre Dame did not breach procedural requirements in the contract, and because Dr. Collins’s actions clearly constitute “serious cause” warranting dismissal under the Academic Articles, we reverse. A. Procedural Issue To prevail on a breach of contract claim, a plaintiff “must prove the existence of a contract, the defendant’s breach of that contract, and damages resulting from the breach.” Hae‐ gert v. University of Evansville, 977 N.E.2d 924, 937 (Ind. 2012). The record here does not show a procedural breach of Dr. Col‐ lins’s contract with Notre Dame. The Indiana “rules governing the construction, interpreta‐ tion, and breach of contracts govern this action, and we will
4 Dr. Collins attempts at length to blame Notre Dame’s grant approval
process for his criminal misconduct. This effort at blame‐shifting is not persuasive. Nos. 18‐2559 & 18‐2579 19
go outside the terms of the relevant contract only when abso‐ lutely necessary.” Id. The contract at issue here is Dr. Collins’s tenure faculty contract, which incorporates Notre Dame’s Ac‐ ademic Articles. In interpreting the provision on selection of the hearing committee, “clear and unambiguous language is given its or‐ dinary meaning.” Ryan v. TCI Architects/Engineers/Contractors, Inc., 72 N.E.3d 908, 914 (Ind. 2017). The Indiana Supreme Court has explained: “Indiana courts recognize the freedom of par‐ ties to enter into contracts and, indeed, presume that contracts represent the freely bargained agreement of the parties.” Fresh Cut, Inc. v. Fazli, 650 N.E.2d 1126, 1129 (Ind. 1995). Thus, when the terms of a contract are drafted in clear and unambiguous language, we will apply the plain and ordinary meaning of that language and en‐ force the contract according to those terms. Sheehan Const. Co., Inc. v. Cont’l Cas. Co., 935 N.E.2d 160, 169 (Ind. 2010). This approach best effectuates the primary goal in appellate review of contract cases: “to ascertain and give effect to the mutual intention of the parties.” Hutchinson, Shockey, Erley & Co. v. Evansville–Vanderburgh Cnty. Bldg. Auth., 644 N.E.2d 1228, 1231 (Ind. 1994). This also makes contract cases particu‐ larly suited for summary judgment. Haegert, 977 N.E.2d at 937. The decisive issue here is whether any participation by a faculty member in the informal resolution process 20 Nos. 18‐2559 & 18‐2579
automatically requires recusal from a hearing committee. Again, the provision reads: “The Executive Committee also elects an alternate … to take the place of any member elected to the Hearing Committee who must recuse himself or herself because of bias or interest, including participation in the in‐ formal resolution process set forth above.” Linguistically, the key is the link between the phrase “bias or interest” and the following clause, “including participation in the informal resolution process.” Neither the language nor the grammatical structure of that sentence makes plain whether participation in the informal resolution process nec‐ essarily amounts to “bias or interest” or instead merely may result in bias or interest. The district court found that this lan‐ guage requires automatic recusal by any member of the hear‐ ing committee who participated at all in informal efforts to resolve the dispute. That is a permissible reading of that pro‐ vision, at least in isolation. With respect, though, we disagree with our colleague on the district court, primarily because of other textual signals in closely related provisions in the Aca‐ demic Articles. Those provisions persuade us that the better reading is that, if participation in the informal process led to bias or interest, then the hearing committee member must recuse, but that recusal is not automatic without actual bias or interest or at least a substantial risk of bias or interest. When analyzing contractual language, “we accept an in‐ terpretation of the contract that harmonizes all its provi‐ sions.” Ryan, 72 N.E.3d at 914, citing Kelly v. Smith, 611 N.E.2d 118, 121 (Ind. 1993); see also Trustees of Indiana University v. Cohen, 910 N.E.2d 251, 258 n.6 & 259 n.10 (Ind. App. 2009) (granting summary judgment to university and interpreting provisions of terminated professor’s employment contract in Nos. 18‐2559 & 18‐2579 21
manner that harmonized its provisions as a whole); Vincennes University ex rel. Board of Trustees of Vincennes v. Sparks, 988 N.E.2d 1160, 1167 (Ind. App. 2013) (granting summary judg‐ ment to university and interpreting terminated basketball coach’s employment contract in manner that harmonized pro‐ visions regarding tenure and a zero‐tolerance misconduct policy); Vesuvius USA Corp. v. American Commercial Lines LLC, 910 F.3d 331, 334 (7th Cir. 2018) (applying Indiana law and noting potential “linguistic inconsistencies” in specific provi‐ sion, but explaining that when court construed contract as a whole, proper interpretation was clear); Restatement (Sec‐ ond) of Contracts § 202 (1981) (“Words and other conduct are interpreted in the light of all the circumstances,” and “A writ‐ ing is interpreted as a whole”). We have explained in a case applying Illinois law that “when parties to the same contract use such different lan‐ guage to address parallel issues …, it is reasonable to infer that they intend this language to mean different things.” Tar‐ acorp, Inc. v. NL Industries, Inc., 73 F.3d 738, 744 (7th Cir. 1996) (different contractual language in indemnification obligations regarding two different facilities supported inference that provisions had different meanings). This is a common, if not automatic, presumption in interpreting both contracts and statutes. See, e.g., Vendura v. Boxer, 845 F.3d 477, 485 (1st Cir. 2017) (different language in parallel ERISA plan provisions on accrual of years of service signaled different meanings); Great American Ins. Co. v. Norwin School Dist., 544 F.3d 229, 246 (3d Cir. 2008) (different language in different retainage provisions in construction contract signaled different meanings); Penncro Assocs., Inc. v. Sprint Spectrum, L.P., 499 F.3d 1151, 1156–57 (10th Cir. 2007) (“When a contract uses different language in proximate and similar provisions, we commonly understand 22 Nos. 18‐2559 & 18‐2579
the provisions to illuminate one another and assume that the parties’ use of different language was intended to convey dif‐ ferent meanings.”); see also Right Field Rooftops, LLC v. Chicago Cubs Baseball Club, LLC, 870 F.3d 682, 690 (7th Cir. 2017) (ap‐ plying similar reasoning to parallel provisions in agreement regarding expansion of bleachers near Wrigley Field); Frew v. Janek, 820 F.3d 715, 729 & n.60 (5th Cir. 2016) (similar reason‐ ing to interpret parallel provisions in consent decree).5 Other provisions in the Academic Articles address parallel issues regarding who may participate in decisions to revoke, grant, or deny tenure. Those provisions impose explicit and automatic requirements of recusal or non‐participation in ten‐ ure decisions, using unmistakably clear language. For exam‐ ple, with respect to a committee that reviews a decision on reappointment, promotion, or tenure, Article III, § 6(a) pro‐ vides: “Any person who has had prior involvement with the case, either directly or indirectly, must recuse himself or her‐ self.” And in § 8(c) itself, the subsection on appeals specifies that the Appeal Board shall consist of three tenured members
5 Contract interpretation bears many similarities to statutory interpre‐
tation, and in that context the Supreme Court has “often noted that when ‘Congress includes particular language in one section of a statute but omits it in another’ … this Court ‘presume[s]’ that Congress intended a difference in meaning.” Loughrin v. United States, 573 U.S. 351, 358 (2014), quoting Russello v. United States, 464 U.S. 16, 23 (1983). Our decision in Taracorp and other cases cited above drew on principles of statutory inter‐ pretation to support this inference of different meaning from different lan‐ guage. As noted, however, the inference is not automatic. See Robinson v. Shell Oil Co., 519 U.S. 337, 341–42 (1997) (use of different and clearer lan‐ guage in other provisions of Civil Rights Act of 1964 did not require dif‐ ferent meaning for scope of retaliation prohibition that would undermine protection of former employees from retaliation). Nos. 18‐2559 & 18‐2579 23
of the Council, “none of whom served on the Hearing Com‐ mittee.”6 It would be odd to treat the very different language in § 8(c)(3) as equivalent to these strong, clear, and automatic rules, at least when there is another sensible reading that fo‐ cuses more on the issue of bias or interest, rather than to im‐ pose an automatic rule of recusal. The better interpretation is that § 8(c)(3) requires recusal based on informal mediation only if there is actual bias or in‐ terest. There is no evidence in the record of any actual bias or interest on the part of Father Coughlin arising from his role in the informal mediation or anything else. As best we can tell, Dr. Collins did not try to prove actual bias on the part of Fa‐ ther Coughlin, whether arising from the brief attempt at me‐ diation or otherwise. Accordingly, we conclude that the un‐ disputed facts show that Notre Dame complied with the con‐ tractual procedures in Dr. Collins’s adjudication. There was no procedural breach of the contract in the 2010 dismissal. We must therefore reverse the judgment of the district court, which was based on an erroneous finding of such a proce‐ dural breach.
6 We have observed that, in general, Indiana “courts have quite properly exercised the utmost restraint in applying traditional legal rules to disputes within the academic community.” Sung Park v. Indiana Univ. Sch. of Dentistry, 692 F.3d 828, 831 (7th Cir. 2012), citing Gordon v. Purdue Univ., 862 N.E.2d 1244, 1248 (Ind. App. 2007). Often, “literal adherence to internal rules will not be required where the dismissal rests upon expert judgments as to academic or professional standards.” Sung Park, 692 F.3d at 831, citing Neel v. Indiana Univ. Bd. of Trustees, 435 N.E.2d 607, 612 (Ind. App. 1982). We need not rely on any sort of restraint or deference here since it is clear that Notre Dame complied with the contractual proce‐ dures. 24 Nos. 18‐2559 & 18‐2579
B. Serious Cause The next question is whether Notre Dame was entitled to summary judgment on whether Dr. Collins’s dismissal was substantively justified based on “serious cause.” The district court did not decide this issue, but we conclude that Dr. Col‐ lins’s guilty plea removes any ground that a judge or jury might have for disagreeing with Notre Dame’s decision. Notre Dame’s Academic Articles define “serious cause” to in‐ clude serious and deliberate personal or professional miscon‐ duct, continual serious disregard for the Catholic character of the University, causing notorious and public scandal, and conviction of a felony. Article III, § 8(b). The undisputed facts here show that Dr. Collins’s actions, as a matter of law, con‐ stituted “serious cause” to remove him. Further, Dr. Collins has now been convicted of a felony arising out of this course of conduct.7 The undisputed facts found in the hearing committee’s findings fall squarely within the Academic Articles’ definition of “serious cause.” These facts show that Collins misrepre‐ sented his intended use of the grant funds, purchased equip‐ ment other than that listed in his grant proposals and used the equipment for unrelated purposes, stored pornographic im‐ ages on computers that were improperly purchased using grant funds, and clearly exposed Notre Dame to notorious
7 Tying into footnote 6, we have previously explained that courts “must not second‐guess the expert decisions of faculty committees in the absence of evidence that those decisions mask actual but unarticulated reasons for the University’s action.” Vanasco v. National‐Louis Univ., 137 F.3d 962, 968 (7th Cir. 1998). However, we decide this dispute solely through the breach of contract lens, without giving the sort of deference we might in an academic dispute over whether to grant or deny tenure. Nos. 18‐2559 & 18‐2579 25
and public scandal. Dr. Collins later pleaded guilty to a felony arising from the grant problems. Given that a felony convic‐ tion is listed as an event that constitutes serious cause, we see no room for debate about whether his firing was substantively justified. Since there was no procedural breach, and since there was “serious cause” as a matter of law, Notre Dame is entitled to summary judgment. Dr. Collins is entitled to no damages. Our ruling renders moot all of the issues in Dr. Collins’s cross‐ appeal. Accordingly, that appeal is dismissed. The district court’s judgment is REVERSED and the case is REMANDED with instructions to enter judgment in favor of Notre Dame.