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January 13, 1994

FRANK E. ROMER, Plaintiff,

The opinion of the court was delivered by: DAVID G. LARIMER

 Plaintiff, Frank E. Romer, is a former classics professor at defendant Hobart & William Smith Colleges ("the Colleges"). He has sued the Colleges and the Colleges' Board of Trustees ("the Board"), alleging that he was denied tenure in 1990 based upon an improper tenure review process. Romer asserts causes of action for breach of contract, estoppel, and intentional infliction of emotional distress. He seeks damages totaling one million dollars and an order directing defendants to reevaluate him for tenure. Jurisdiction is premised on diversity of citizenship under 28 U.S.C. ยง 1331(a)(1).

 Defendants move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b) and 12(c). In the alternative, defendants move for summary judgment under Fed. R. Civ. P. 56.

 Both sides have submitted extensive materials outside the pleadings, and a full understanding of the case requires reference to some of those materials, particularly certain documents relating to the tenure review process. I will therefore treat the motion as one for summary judgment under Fed. R. Civ. P. 56. *fn1"


 I. Tenure Review Procedure

 Plaintiff accepted appointment to a tenure-track position at the Colleges in 1986, and began teaching in 1987. He had no formal, written employment contract expressly denominated as such, but the nature of the agreement was reflected in correspondence between Romer and Minor Myers, Jr., who was then the Provost and Dean of Faculty of the Colleges. See Answer to Complaint, Ex. 1-3.

 Section III of the Bylaws provides that successive reviews of a candidate for tenure are to be made by the Departmental Committee from the candidate's department, an Individual Committee which checks the Departmental Committee's report for completeness, and the Committee on Tenure and Promotion ("COTAP"). After reviewing the file and the Departmental Committee's report, COTAP makes its own recommendation to the President of the Colleges. This recommendation is deemed to be the faculty's recommendation on the case. Bylaws, p. 4. Based on a review of COTAP's recommendation, the President decides whether to submit the candidate's name to the Board of Trustees, which has the final authority to grant tenure.

 The Bylaws enumerate the general criteria upon which the recommendations of the Departmental Committee and COTAP are to be based, namely: "1) continuing professional competence as a teacher, 2) noteworthy service to the College community or curriculum, [and] 3) scholarly and professional contributions." Id. The Bylaws elaborate at some length concerning the type of matters that should be considered under the general criteria. See Bylaws p. 5-8.

 The Guidelines also list the criteria which COTAP should consider in making its recommendation. Again, these are divided into three categories: teaching, scholarly and professional work, and community service. The Guidelines set forth both evidence and the types of qualities that are considered relevant to each category. Guidelines p. 8-11. Quoting from the Bylaws, the Guidelines add that "the weighing of a person's several contributions to the College community cannot be accomplished entirely by rule but certain guidelines should systematically be invoked." Guidelines p. 12.

 II. Plaintiff's Tenure Review

 Romer was considered for tenure in the 1989-90 academic year. The Departmental Committee, which undertook the first review, issued reports on November 20, 1989 and February 20, 1990, recommending that Romer be granted tenure. *fn2" Complaint Ex. C.

 COTAP then began its review, during which it met with Rebecca Fox, Dean of the Colleges. She expressed certain concerns about Romer, which she memorialized at COTAP's request in a letter to COTAP dated March 12, 1990. Complaint Ex. D.

 Dean Fox's letter dealt mostly with what she called the "extremely volatile relationship" between Romer and another classics professor, Paula Sage. Plaintiff alleges that at one time he and Sage had a personal relationship, which he contends ended prior to his and Sage's employment at the Colleges. Complaint P 12. Whatever their relationship may have been in the past, however, by the time of Romer's tenure review, that relationship had become decidedly unpleasant.

 In her letter, Dean Fox related that a particular student who was serving on the tenure review committees for both Romer and Sage had made a "complete retreat" from her classics studies because of the strain she felt due to "the public enmity between her two teachers . . ." Complaint Ex. D. Fox added "as a private, personal opinion . . . not to be taken as 'advice' on a tenure decision," that she found it "highly problematic for faculty members not to be able to keep their private difficulties contained," and that "the highly public nature of Professor Romer's and Sage's problems with one another . . . is highly debilitating in terms of their relationships--both singly and as a department--to the community." Fox concluded that "what bearing all of this has on the processes of review for tenure and renewal of contract is for you [i.e., COTAP] to decide." Id.

 On May 17, 1990, COTAP issued its recommendation to the President, stating that four of its six members (the other two abstained) "found Professor Romer's candidacy deficient in teaching, scholarship, and community service," and that they did not recommend tenure. Complaint Ex. G. The report did not elaborate on the basis for the finding.

 In a letter dated May 22, 1990, the President of the Colleges advised plaintiff that he would not recommend plaintiff for tenure to the Board. Complaint Ex. H. A copy of COTAP's report accompanied the letter. On June 3, 1990, the Acting Provost and Dean of Faculty notified Romer that his contract would be allowed to expire at the end of the 1990-91 academic year. See Answer Ex. 5.

 Romer filed a grievance with the Colleges' Grievance Committee, which consists of seven faculty members who are elected each spring for a one-year term. *fn3" Any individual teacher may request that the Grievance Committee review any decision adversely affecting the teacher's status if the teacher believes the decision to have been made with ...

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