PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 97-8902 FILED
-------------------------------------------- U.S. COURT OF APPEALS
D. C. Docket No. 2:95-CV-152 ELEVENTH CIRCUIT
08/21/98
THOMAS K. KAHN
JILL GRAY, CLERK
Plaintiff-Appellant,
versus
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF
GEORGIA; DELMAS ALLEN, in both his official and
individual capacity, et al.,
Defendants-Appellants.
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Appeal from the United States District Court
for the Northern District of Georgia
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(August 21, 1998)
Before EDMONDSON and CARNES, Circuit Judges, and CLARK, Senior Circuit
Judge.
EDMONDSON, Circuit Judge:
This appeal involves a denial of tenure to a state college
professor and the professor’s claims of a violation of
procedural due process, breach of contract, sexual
discrimination, and age discrimination. Plaintiff-Appellant
appeals the district court’s grant of summary judgment for
defendants and the court’s denial of partial summary
judgment in her favor. We affirm.
Background
Plaintiff Jill Gray is a fifty-two year old woman formerly
employed as an assistant professor at North Georgia College
& State University. North Georgia is governed by the Board of
Regents of the University System of Georgia.
Plaintiff was hired to teach in the Mathematics and
Computer Science Department in September 1985 even though
she had a B.S. and M.A. in philosophy. As a nontenured
2
assistant professor, plaintiff was given a one-year employment
contract each academic year.
Plaintiff first applied for tenure during the 1989-90
academic year. She discussed her application with defendant
Dr. Delmas Allen, who was then Vice President of Academic
Affairs. On the advice of Allen, plaintiff withdrew her 1989-90
application for tenure to pursue an advanced degree in either
mathematics, computer science, or another closely related
field.
After completing her seventh year of teaching, plaintiff was
granted a leave of absence during the 1992-93 academic year
to attend graduate courses full-time at the University of
Georgia. Plaintiff taught no classes during this time but was
paid half her salary and received financial assistance to help
pay her tuition.
Plaintiff returned to full-time teaching at North Georgia
under an eighth contract for the 1993-94 academic year. During
3
that year, plaintiff again applied for tenure. In September 1993,
plaintiff received a letter from Allen, who was then President of
North Georgia, notifying Gray that her contract would be
renewed for the 1994-95 year pending the decision of the tenure
committee. After considering Gray’s tenure application, the
Promotion and Tenure Committee of the Mathematics and
Computer Science Department recommended that plaintiff be
granted tenure. But, the Institutional Promotion and Tenure
Committee recommended that plaintiff not be granted tenure.
Allen notified plaintiff of this latter decision in a letter dated 25
January 1994.
In May 1994, plaintiff received and signed a contract for her
ninth year of teaching at North Georgia -- marked as her “final
contract.” With this contract, Gray enclosed a letter informing
Allen that, by signing the contract, she was not waiving her
rights to challenge the adverse tenure decision. Plaintiff’s
4
employment ended in June 1995; and she brought suit in
November 1995.
The district court granted summary judgment for
defendants on all grounds and denied plaintiff’s motion for
partial summary judgment.1
Discussion2
North Georgia has an established practice for formally
awarding tenure. The basic criteria for tenure at North Georgia
include (1) excellence in teaching; (2) service; and (3) academic
1
Defendants’ motion for summary judgment on the
grounds of immunity (11th Amendment and qualified) was
denied as moot because the district court dismissed plaintiff’s
federal and constitutional claims. We do not consider these
immunity issues.
2
We only discuss the tenure issue; we see no reversible
error on the other claims, including the sex and age
discrimination claims.
5
achievement and professional growth. North Georgia expects
the applicant for tenure to present evidence of excellence in
two of the three areas; and to present evidence of average or
better performance in the third. Superior performance in
teaching is essential; otherwise, no order of importance is
indicated by the college.
Each year department heads request that all eligible
faculty who choose to apply for tenure submit a dossier and
document file. The Department Head sends all documentation
to members of the Department Promotion and Tenure
Committee. This committee interviews the applicant,
deliberates, and returns the package to the Department Head
with a written recommendation. The Department Head reviews
the recommendation, adds a personal statement about the
applicant, and forwards the entire package to the Vice President
of Academic Affairs.
6
The Vice President submits all tenure materials to the
Institutional Promotion and Tenure Committee -- which reviews
each candidate and makes a recommendation to the Vice
President. These recommendations, along with his own, are
then forwarded to the President for his consideration. The
President’s recommendations are forwarded to the Chancellor,
and the Chancellor’s recommendations are forwarded to the
Board of Regents for the final approval of tenure.
Whether Summary Judgment Was Appropriate
Plaintiff acknowledges that she was not awarded tenure in
the usual way. But Gray argues she had tenure or its
equivalent and, therefore, a property interest in continued
employment at North Georgia (subject to the Fourteenth
Amendment’s due process guarantees) under two theories: (1)
the express language of her contract automatically granted
7
plaintiff tenure in her eighth year of teaching; and (2) the
conduct of and documents of defendants plus the institutional
understanding of tenure gave plaintiff de facto tenure.
The success of due process arguments depends upon the
finding of a constitutionally protected property interest in the
expectation of continued employment or of a liberty interest
having been infringed upon by the State; absent such interest,
no due process protections attach. Board of Regents v. Roth,
408 U.S. 564, 569-70 (1972). A person claiming a property
interest in a benefit “must have more than an abstract need or
desire for it . . . . He must . . . have a legitimate claim of
entitlement to it.”
Id. at 577. Moreover, property interests, by
their nature, are “created and their dimensions are defined by
existing rules or understandings that stem from an independent
source such as state law.”
Id.
Theory 1 - Tenure with a Grant of the Eighth-Year Contract
8
Plaintiff brings out that her written employment contracts
expressly provided that they were made subject to the
bylaws/policies of the Board of Regents, which is the only place
where tenure is described. And, Gray says that her mere
presence as a member of the faculty beyond a seven-year
probationary period demonstrates she was protected by the
tenure system.
At all times, Gray was an employee within an employment
system that uses a formal tenure system. The policies of the
system are written and widely-circulated. Each yearly contract
signed by Gray, including the last, contained the following
provisions:
I HEREBY ACKNOWLEDGE THAT THIS CONTRACT AND
THE ATTACHED EXHIBIT ‘A’ [the regulations of North
Georgia and the bylaws/policies of the Board of Regents]
CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE
PARTIES AND SHALL NOT BE CHANGED, MODIFIED,
AMENDED, WAIVED OR DISCHARGED EXCEPT BY AN
INSTRUMENT IN WRITING SIGNED BY THE PARTIES
HERETO.
9
I UNDERSTAND THAT AT THE EXPIRATION OF THE TERM
OF THIS CONTRACT I WILL NOT BE REEMPLOYED
UNLESS THERE IS A NEW AND SEPARATE OFFER BY
THE BOARD OF REGENTS ON BEHALF OF NORTH
GEORGIA COLLEGE AND ACCEPTANCE THEREOF BY
ME.
Gray’s “property” interest in employment, if any, was
created and defined by the terms of her contract.3 By contract,
her interests in employment were secured for one college term
only. Like Roth, the contract specifically provided that Gray’s
employment expired on a set date (the end of the term). And,
the contract had no provision for renewal: it expressly negates
future employment absent a new and separate offer by the
Board of Regents. Thus, the terms of the contract on the
contract’s face secured no interest in reemployment for the
future.
3
Interpretation of a contract is a question of law. Wheat,
First Securities, Inc. V. Green,
993 F.2d 814-817 (11th Cir.
1993); Irvin v. Laxmi. Inc.,
467 S.E.2d 510, 512 (Ga. 1996).
10
Plaintiff points beyond the face of the contract. She claims
university system policy, incorporated by reference into the
contract, created her right to reemployment. She relies directly
on section 803.09(F) of the Board of Regents Policy Manual,
which states:
The maximum time that may be served at the rank of
assistant professor or above without the award of tenure
shall be seven years, provided, however, that a terminal
contract for an eighth year may be proffered if an
institutional recommendation for tenure is not approved by
the Board of Regents.
But nothing in the words upon which plaintiff relies says
that the professor, after seven years, must be viewed as
tenured if the professor receives another ordinary contract for
an eighth year.4 The words create no entitlement for professors
4
Plaintiff’s eighth-year contract says
nothing about its being a “final
contract.” Nor does the evidence show
that plaintiff was told when the contract
was proffered to her that this contract
11
and, at most, create a duty for local college and university
officials not to do something: not to keep giving contracts to
nontenured faculty members.
We find it helpful to refer to the laws of Georgia’s public
school system for elementary and secondary education to see
how something very much like “tenure” is conferred in that
system:
A teacher who accepts a school year contract for the
fourth consecutive school year from the same local
board of education may be demoted or the teacher’s
contract may not be renewed only for those reasons
set forth in subsection (a) of Code Section 20-2-940.
O.C.G.A. § 20-2-942(b)(1). Thus, Georgia has provided in no
uncertain terms what the consequence is for public school
teachers who are awarded a contract for a fourth consecutive
school year: they get definite rights that look much like
“tenure.”
was a final contract.
12
In sharp contrast, the Board of Regents manual to which
Gray points says nothing about a professor getting new rights
or new protections or a new status if the professor is awarded
an eighth contract. To the contrary, the words relied on by
plaintiff in the manual signal that an award of tenure is
something apart from getting a contract for a particular year
and that tenure requires the approval of the Board of Regents.5
The manual tells local college and university officials that
no regular eighth-year contract should be given unless an
award of tenure has been made already; that idea is a very
different idea than saying that proffering a contract for an
5
For tenure, the need for approval of the Board of Regents is
stressed in a related and earlier part of section 803.09:
D. Tenure may be awarded, upon recommendation by
the president and approval by the Board of Regents,
upon completion of a probationary period of at least
five years of full-time service at the rank of assistant
professor or higher.
(emphasis added).
13
eighth year vests a professor with tenure. And, particularly
considering that Georgia -- although in not exactly the same
context -- has demonstrated a style of speaking more plainly
when educators are to get continuing contracts, we see no
ambiguity in the Board of Regents Policy Manual that helps
plaintiff at all.
The Board of Regents Policy Manual and Gray’s
employment contracts make it clear to us, as a matter of law,
that a professor is nontenured until she, upon approval of the
Board of Regents, is awarded tenure and that getting an
eighth-year contract, by itself, is not getting tenure or the
equivalent of tenure. Without being granted tenure, plaintiff
had no right to reemployment, either under the terms of her
contract, under the regulations of North Georgia, or under the
bylaws and policies of the Georgia Board of Regents.
14
Theory 2 - De Facto Tenure
Still, plaintiff advances another theory that might support
a claim to continuing employment. The Supreme Court in Perry
v. Sindermann acknowledged that a professor might obtain de
facto tenure even though tenure has never been formally
conferred.
408 U.S. 593 (1972). This result is possible under a
theory of implied contracts whereby “[e]xplicit contractual
provisions may be supplemented by other agreements implied
from the promisor’s words and conduct in the light of the
surrounding circumstances. . . .The meaning of [the promisor’s]
words and acts is found by relating them to the usage of the
past.”
Id. at 602 (internal quotations and citations omitted).
The Sindermann Court concluded that just as there may be
a “common law of a particular industry or of a particular plant
. . . there may be unwritten common law in a particular
university that certain employees shall have . . . tenure.” Id.
15
(internal quotations omitted). Thus, a property interest might
be manifested by an employer’s historical practices and past
conduct which rise to the level of a “common law,” or
institutional understanding, of the employment relationship that
both parties recognize and rely on as establishing their
respective rights and responsibilities.
Although the Board of Regents never formally conferred
tenure upon Gray, we will consider whether some pre-existing
practice by the college gave rise to a legitimate claim of
entitlement to continued employment for Gray. Plaintiff
contends such an entitlement exists because of an institutional
understanding that a faculty member receives tenure by default
under the Board of Regents’ policy if one serves as assistant
professor for more than seven years. After considering the
record -- with the evidence viewed in favor of the plaintiff -- we
cannot agree.
16
The evidence advanced to support an institutional
understanding of automatic tenure is Dr. Allen’s deposition
testimony: “My interpretation [of the Board of Regents Policy
Manual section 803.09(F)] is that if a faculty member is here
without applying for tenure and resides or isn’t picked up within
seven years and there’s been no break in time, yes, they’re
entitled to automatic tenure.”6 Assuming for the sake of
argument that Georgia law will allow some kind of de facto
tenure, we conclude plaintiff’s evidence is legally insufficient.7
In so concluding, we have considered, among other facts, that
the college does have an explicit and formal tenure system.
6
Dr. Allen gave similar testimony at other points in his
deposition. But this statement is the one chiefly discussed by
the parties.
We note that in Gray’s situation there seemingly had
been a break in time: the 1992-93 academic year. This fact,
however, is not critical to our decision.
7
We do not decide today whether Georgia law precludes
altogether the possibility of an implied contract where explicit
tenure is available.
17
To show a “custom” or institutional understanding,
plaintiff must show some historical basis for believing the
custom existed. But, plaintiff introduced no evidence that the
kind of automatic tenure she now claims had ever been used at
North Georgia before she filed this lawsuit. She has pointed to
no one who in the past got tenure in this manner. Also, none of
the many deponents from the college testified about the
existence of such a custom. And, as a matter of law, one
administrator’s stated “interpretation” of the Board of Regents
Policy Manual -- an interpretation not based on concrete
experience with someone actually getting tenure by default --
cannot rise to the level of “common law” of the university that
Sindermann demands. Thus, Gray’s de facto tenure claim must
also fail.
Conclusion
18
We agree with the district court’s decision that Gray never
had tenure (and therefore no property right entitled to
protection under the Fourteenth Amendment).8 “The institution
of tenure has an inexorable internal logic: the very existence of
a tenure system means that those teachers without tenure are
not assured of continuing employment.” Staheli v. University
of Mississippi,
854 F.2d 121, 124 (5th Cir. 1988). “The whole
purpose of the distinction between tenured and non-tenured
faculty [is to give the college] discretion over the employment
of non-tenured teachers.”
Id. at 125; See Megill v. Board of
Regents,
541 F.2d 1073, 1078 (5th Cir. 1976) (because Florida
college had explicit written tenure program teacher had no
reasonable expectation of reemployment). Gray is unhappy
with the way the college exercised its discretion. But the
Our decision is in agreement with a similar Sixth Circuit
8
case. See Edinger v. Board of Regents,
906 F.2d 1136 (6th Cir.
1990) (professor remaining employed beyond probationary
period did not acquire tenure).
19
circumstances she has evidenced do not create a protected
property interest.9
AFFIRMED.
CLARK, Senior Circuit Judge, dissenting:
9
Gray says that Allen, when Vice President of Academic
Affairs, made particular representations and assurances to
her that she was progressing toward tenure (by taking
advanced courses). She argues that these statements
created a constitutionally protected property interest. But
one’s reliance on a person’s “promises” to one specifically is
quite different from relying on an established custom or
general institutional understanding at the college. And, even if
a definite promise was made (which is unclear even from
plaintiff’s own testimony), Allen’s representations about tenure
cannot bind North Georgia and the Board of Regents beyond
the terms of the written contracts. See generally Brown v.
State Bd. of Exam’rs of Psychologists,
378 S.E.2d 718 (Ga.
Ct. App. 1989) (state agency not estopped by agent’s
representations).
20
I disagree that the evidence was insufficient to create a genuine
issue of material fact in this case, and I would therefore find that the district
court erred in granting summary judgment. The majority concludes that
nothing in the language of the policy manual says that after seven years a
professor who continues to teach has tenure, and no words in the
employment contract created an entitlement. I think that this conclusion
misses the point of a de facto argument: if the express language was
present, then a de facto analysis would be unnecessary.
The Board of Regents policy manual provided that an assistant
professor could serve only seven years without tenure, except that a final
contract for an eighth year could be allowed. Gray taught for seven years,
then was given a year off to return to school to work toward the degree that
she had been told would enhance her application for tenure. The college
paid for at least part of her tuition and paid half her salary during that year
off, and they had an agreement with Gray that she would return to full-time
teaching. She returned to full-time teaching for two years after her year off,
teaching for a total of nine years.
The Supreme Court stated in Board of Regents of State Colleges v.
Roth:10 “[p]roperty interests, of course, are not created by the Constitution.
10
408 U.S. 564,
92 S.Ct. 2701,
33 L.Ed.2d 548 (1972).
21
Rather they are created and their dimensions are defined by existing rules
or understandings that stem from an independent source such as state
law--rules or understandings that secure certain benefits and that support
claims of entitlement to those benefits.”11
The policy manual says that professors should not be teaching more
than seven years unless they are tenured. Not only did Gray teach more
than seven years, after her seventh year of teaching the college paid half
her salary while she attended school and assisted her with tuition. This is
not the behavior of an employer who does not intend to retain an
employee. Moreover, the college president, a most persuasive authority,
testified in his deposition that his interpretation of the Board of Regents
policy manual was that a faculty member who continued teaching after
seven years was entitled to automatic tenure. The majority finds this
evidence insufficient because one administrator's interpretation of the
manual did not provide evidence of a custom or institutional understanding.
That statement alone may not be conclusive, but when combined with the
other facts, could provide enough evidence for a jury to find that Gray had
received tenure de facto.
11
Id. at 577, 92 S.Ct. at 2709 (emphasis added).
22
I think that the evidence is sufficient to create a genuine issue of fact.
I cannot say that Gray will definitely prevail, but I think that an issue of fact
exists and that summary judgment was erroneously granted.
23
