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ERICKSON v. NEW YORK LAW SCH.

April 3, 1984

NANCY S. ERICKSON, Plaintiff, against NEW YORK LAW SCHOOL, Defendant.


The opinion of the court was delivered by: CONNER

OPINION AND ORDER

CONNER, D.J.:

 Plaintiff Nancy S. Erickson ("Erickson"), who was formerly employed as a law professor by defendant New York Law School ("NYLS"), brought this action seeking injunctive relief and damages for alleged violations of the Equal Pay Act, 29 U.S.C. § 206(d), and breach of her employment contract. She charges in her complaint that NYLS intentionally discriminated against her by paying her less than it paid male professors who performed comparable work, and by denying her application for a tenured faculty position. Defendant has moved for summary judgment on the breach of contract claim *fn1" and has sought to have portions of the Equal Pay Act claim dismissed. *fn2" For the reasons set forth below, defendant's motions are granted in their entirety.

 I. Breach of Contract Claim

 Erickson alleges that NYLS breached the employment contract in several respects. She contends, first, that NYLS denied her application for tenure on the basis of her sex, thereby failing to apply its own Principles of Rank and Tenure in a nondiscriminatory manner, pursuant to the policies of the Association of American Law Schools ("AALS"). Complaint at PXIX. *fn3" Second, she charges that the NYLS Board of Trustees ("the Board") gave little or no consideration to the favorable tenure recommendation of the faculty Rank and Tenure Committee, and wrongfully considered "sexist, erroneous and uncredited oral information." Complaint at PXX. Finally, plaintiff asserts that NYLS violated its contractual obligations by denying her tenure and a proper salary without "procedural and administrative due process." Defendant responds that Erickson's contract contains no provisions incorporating AALS policies, that the contract does not require the Board to follow recommendations of a tenure committee, and that NYLS violated no stated procedures in making her tenure decision or setting her salary.

 Summary judgment is appropriate only where the Court is satisfied that there exists no genuine issue with respect to any material fact, and the moving party is entitled to judgment as a matter of law. Rule 56, F.R.Civ.P.; Friedman v. Meyers, 482 F.2d 435, 438-39 (2d Cir. 1973). Rule 56(e) provides for the submission of affidavits supporting and opposing summary judgment, made on personal knowledge and setting forth such facts as would be admissible in evidence. By considering these affidavits and other relevant materials, the Court can determine whether the non-moving party has any real support for its version of the facts. National Bank of North America v. Quest, 425 F. Supp. 186 (E.D.N.Y. 1977). Rule 56(e) further provides that

 [w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is no genuine issue for trial.

 Thus, when the moving party comes forward with supporting evidence, his opponent must "adduce factual material which raises a substantial question of the veracity or completeness of the movant's showing." Beal v. Lindsay, 468 F.2d 287, 291 (2d Cir. 1972).

 Based upon my review of the documents submitted by the parties in this action, I conclude that there is no genuine issue with respect to the following material facts: Nancy Erickson became an assistant professor at NYLS in the fall of 1975. She taught a variety of courses for three years, including sex-based discrimination, then took a leave of absence to pursue a graduate law degree. She returned to NYLS in the fall of 1979 and taught for one more year before leaving voluntarily to accept a position at another law school. Simon Aff. at P2.

 Each academic year Erickson signed a "Full-Time Faculty Appointment Contract," appointing her to a faculty position for a period of one year. Ex.B to Simon Aff. The last contract expired on August 31, 1980. Each of the yearly contracts incorporated by reference the NYLS Principles of Rank and Tenure. The Principles of Rank and Tenure state that "[t]he Law School grants tenure to those faculty members who, in the judgment of the Dean and Board of Trustees, have proved their competency. . . ." They go on to say that the decision whether to grant tenure "should ordinarily be made by specific act of the Board upon the recommendation of the Dean, which is in accord with the decision of the Tenure Committee of the Faculty." Ex.B. to Simon Aff. No mention is made of the Principles of Rank and Tenure of the AALS. There is a reference to principles and standards of the American Association of University Professors ("AAUP"), but this reference relates to the notice to be given a nontenured faculty member whose employment is terminated at the end of a contract period. Ex.B. to Simon Aff. The provisions of Erickson's contract and the NYLS Principles of Rank and Tenure set forth no particular procedure to be followed by NYLS in tenure selection or salary computation, nor do they address the issues of discrimination.

 In the spring of 1978, after having taught for less than three years, Erickson asked to be considered for tenure. Faculty members were not usually considered for tenure until they had taught for four years, Simon Aff. at P6, but by a vote of 4-3, the Faculty Tenure Committee recommended Erickson for tenure. The Dean of the law school recommended that tenure be denied, however, and the Board unanimously adopted the Dean's recommendation. Simon Aff. at PP6-7.Erickson was informed that her request was denied "'without prejudice to reconsideration de novo" after her leave of absence and an additional year of teaching at NYLS. Ex.C. to Simon Aff.

 Despite the Board's instruction that Erickson reapply for tenure after an additional year of teaching, she asked to be reconsidered immediately upon her return from leave. She declined to resubmit her application to the Faculty Tenure Committee because she believed that the Board's previous failure to act in conformity with the committee's decision was improper. Ex.D. to Simon Aff. By letter dated September 17, 1979, she also expressed concern regarding possible inaccuracies contained in certain documents considered by the Board during its original deliberations, and she requested copies of those documents. Id. The Board complied with Erickson's request. Ex.E to Simon Aff.

 Erickson was advised in October 1979 that the Board would consider her application but would prefer to have available an up-to-date review by the Faculty Tenure Committee as well as opinions from independent experts in her field, in accordance with recommendations of the AALS.Ex.E to Simon Aff. Erickson declined to follow the recommended procedure, and in December, was advised that the Board had once again denied her tenure.She filed a complaint with the Equal Employment Opportunities Commission ("EEOC") immediately, and shortly thereafter she accepted a position at Ohio State University Law School.Her contract with NYLS expired by its terms on August 31, 1980, having been neither renewed nor terminated. Erickson commenced the instant action on December 27, 1982.

 I am convinced, based upon the uncontroverted facts set forth above, that NYLS is entitled to judgment on the breach of contract claim as a matter of law. Erickson has failed to specify any provisions in her contract or the NYLS Principles of Rank and Tenure that require the Board to grant her tenure upon the recommendation of the Faculty Tenure Committee. It is clear from the terms of the Principles of Rank and Tenure that the faculty committee has an important but merely advisory role in the tenure process.Moreover, plaintiff has not shown that her contract provided for any specific procedure to be employed by NYLS in granting ...


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