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WARING v. FORDHAM UNIV.

February 11, 1986

Mary Waring, Plaintiff
v.
Fordham University, Defendant



The opinion of the court was delivered by: LEVAL

OPINION AND ORDER

This is a diversity action. The plaintiff, Mary Waring, a former teacher at Fordham University, alleges that her denial of tenure violated the University's established policies and procedures and was, in addition motivated by unlawful discrimination against her illness, tinnitus, in violation of N.Y. Exec. Laws § 296 (McKinney's 1982.) The defendant denies any wrongdoing and moves for summary judgment on all six remaining counts of the complaint. *fn1" The plaintiff opposes this motion, and cross-moves for summary judgment on the four contract counts. Defendant's motion is granted as to all counts.

Background

 The history of Mary Warning's employment at Fordham University was complicated, but undisputed in all material respects.

 Plaintiff joined the faculty at defendant's Graduate School of Social Service (the School) at the start of the 1977-78 academic year. In the Fall of 1978, early in the second year of her teaching at Fordham, she requested and was granted medical leave for the remainder of the year. Plaintiff then actuely suffering from what was later diagnosed as tinnitus, or, ringing in the ears. Shortly after her leave began, the School granted plaintiff a reappointment for the following year, 1978-79. In October 1979, after plaintiff's return to the full-time faculty of the School, the School's tenured faculty voted against recommending plaintiff for reappointment for the 1980-81 academic year. The Dean of the School, Marty Ann Quaranta, concurred in this negative evaluation. Nevertheless, in March 1980, the University administration offered the plaintiff a one-year reappointment. Plaintiff accepted this reappointment, and shortly thereafter instituted grievance proceedings on the "issue of whether [she] was given adequate consideration for reappointment." (D. Ex. S) The Tenure and Reappointment Appeals Committee (TRAC) denied plaintiff's appeal.

 In July 1981, in order to ensure that plaintiff received at least one year's and was granted medical leave for the remainder of the year. Plaintiff was then acutely suffering from what was later diagnosed as tinnitus, or ringing in the ears. Shortly after her leave began, the School granted plaintiff reappointment for the following year, 1978-79. In October 1979, after plaintiff's return to the full-time faculty of the School, the School's tenured faculty voted against recommending plaintiff for reappointment for the 1980-81 academic year. The Dean of the School, mary Ann Quaranta, concurred in his negative evaluation. Nevertheless, in March 1980, the University administration offered the plaintiff a one-year reappointment. Plaintiff accepted this reappointment, and shortly thereafter instituted grievance proceedings on the "issue of whether [she] was given adequate consideration for reappointment." (D. Ex. S) The Tenure and Reappointment Appeals Committee (TRAC) denied plaintiff's appeal.

 In July 1981, in order to ensure that plaintiff received at least one year's notice of termination as well has have an opportunity to apply for tenure, the University once again extended to plaintiff a one year reappointment. Early in the next Spring semester plaintiff applied for tenure. On February 22, 1982, the Tenure Committee of the Graduate School of Social Service considered the tenure applications of three candidates: Pauline Zischka, Thomas Hopkins, and the plaintiff. All three professors were recommended for tenure by the Committee and subsequently by Dean Quaranta. Of the three candidates, plaintiff received the fewest affirmative votes.

 Fordham University police attempts to maintain a balance between tenured and non-tenured faculty by limiting the proportion of tenured faculty in any School to sixty percent. *fn2" In "rare cases and for compelling reasons" *fn3" the University Tenure Review Committee (UTRC) is permitted to approve the grant of tenure in excess of the sixty percent ceiling. BEcause granting tenure to the three candidates recommended by the School's Tenure and Dean in 1982 would have resulted in the School's being more than sixty percent tenured, the Vice President for Academic Affairs referred all three cases to the UTRC to determine whether any "compelling reasons" existed to grant tenure. The UTRC concluded that none of the cases presented compelling justification for tenure and consequently recommended to the President that tenure be denied in each case. *fn4" Upon this recommendation, the President informed the three candidates in May 1982 that their applications for tenure had been denied.

 Over the summer of 1982, plaintiff and Dr. Zischka filed separate appeals with TRAC. *fn5" while her appeal was pending, plaintiff was given an appointment as an adjunct faculty member despite University policy that a grievance proceeding not affect the date of termination. *fn6" TRAC determined that insufficient attention had been paid to the possibility of ranking the professors and recommended that the three applications for tenure be remanded to the UTRC. After the UTRC declined to reconsider, TRAC recommended that the two cases on appeal be remanded to the Tenure Committee. The President included Dr. Hopkins' application and remanded all three applications to the School (D.Ex.K). In January 1983 when the Tenure Committee met, they understood that there were two positions available within the sixty percent guideline. The School reconsidered the three applications, unanimously approved Dr. Zischka for tenure, narrowly approved Dr. Hopkins, and recommended against tenure in the plaintiff's case. According to the Chairwoman of the Tenure Committee, the Committee was primarily concerned with plaintiff's "deficiencies in relationship skills" a problem considered especially acute since these skills are "taught at part of the School curriculum." (Dermody aff'd) Dean Quaranta concurred in the Tenure Committee's recommendations with respect to plaintiff, noting "reservations about interpersonal relationships." (D.Ex.M)

 In March 1983, plaintiff was notified by the University that she would not be receiving tenure. In June she instituted the present action alleging that defendant's handling of her tenure application violated University Statutes and thus was sin breach of contract, and reflected unlawful discrimination against her because of her physical disability (tinnitus).

 Discussion

 I.

 Plaintiff's contract claims, set forth in the first four counts of the complaint, rest on her reading of the University Statutes and her perception of administrative precedent. None of the claims are meritorious, and all can be disposed of on summary judgment. *fn7"

 Count One alleges that defendant University's system of tenure quota is inconsistent with the "1940 Statement of Principles" of the American Association of University Professors (AAUP) which the University has adopted (Art. 6.3(a)). Without resolving the quibbling over whether the defendant's sixty percent policy amounts to a quota, plaintiff's claim is patently false. Nothing in the "1940 Statement" precludes the use of tenure quotas (D.Ex.A), and nothing in the defendant's opinion of that statement can be construed, as the plaintiff suggests, as binding defendant to a later 1973 Statement by the AAUP opposing such quotas. The fact ...


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