into an employee handbook or other document; (3) the plaintiff rejected offers of other employment in reliance on these assurances; and (4) the plaintiff was instructed to comply with the handbook because employees could only be discharged for just cause. Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 465-66, 457 N.Y.S.2d 193, 443 N.E.2d 441 (1982).
These factors are not exclusive, however; "federal courts in this Circuit have weighed the totality of the circumstances to determine the existence of an express contractual right limiting the employer's right to discharge under New York law." Townsend v. Harrison Radiator Div., GMC, 760 F. Supp. 286, 289 (W.D.N.Y. 1991).
After reviewing the Handbook relied upon by plaintiff, I find that he has not stated a cause of action for breach of contract. The Bylaws and Guidelines lack the kind of clear-cut limitation on the Colleges' discretion in the tenure review process that would give Romer the contractual rights he attempts to assert here.
The facts of this case are in many ways similar to those in De Simone v. Skidmore Coll., 159 A.D.2d 926, 553 N.Y.S.2d 240, (3d Dep't 1990). In that case, the plaintiff professor's faculty handbook, which was expressly incorporated into his employment contract, contained a provision entitled "standards for continued service." The handbook grouped the standards into the same three categories as those in the instant case (teaching effectiveness, professional accomplishment and community service). The court held that the plaintiff had failed to establish a breach of contract because the handbook did not contain any express limitation on the college's discretion in deciding whether to renew the plaintiff's employment contract after the initial three-year term expired.
In some respects, the facts of this case are even weaker than those in De Simone. For one thing, nowhere in the record does there appear any statement that the Bylaws and Guidelines were actually incorporated into Romer's contract. Cf. Weiner, 57 N.Y.2d at 460 (job application specified that plaintiff's employment would be subject to employer's policy and procedure handbook).
Moreover, assuming that defendants did undertake to abide by the terms of the Handbook, the Handbook does not contain the explicit assurances to tenure candidates that would give rise to a contract claim under the circumstances presented here. While the Bylaws do declare that the faculty "agree to conduct all proceedings" according to the Bylaws, (Bylaws p. 1), and that the tenure review procedure is intended to protect teachers from "abusive or arbitrary treatment," (Bylaws p. 6), there is no express promise that a teacher can guarantee himself tenure by meeting particular discrete, quantifiable criteria. In short, "the method of evaluating performance fairly as prescribed in the handbook does not impose express limitations on defendant's right to terminate." Brumbach v. Rensselaer Polytechnic Inst., 126 A.D.2d 841, 843, 510 N.Y.S.2d 762 (3d Dep't 1987). See Townsend, 760 F. Supp. at 290 (statements in handbook that employees were entitled to "Protection from Unilateral Action" to ensure that personnel decisions would be "fair and equitable" did not constitute contractual limitations on employer's right to discharge employees).
To the contrary, both the Bylaws and the Guidelines disclaim any attempt to make tenure review a purely mechanical procedure. Both note that a candidate's qualifications "cannot be accomplished entirely by rule but [that] certain guidelines should systematically be invoked." Bylaws p. 6; Guidelines p. 12. The message is clear that tenure review should be guided by certain precepts, but that ultimately the method of deciding tenure cannot be reduced to a mathematical formula.
In addition, although the Handbook does list certain criteria for tenure, it does not indicate that the list is intended to be exclusive or exhaustive. See Novinger v. Eden Park Health Serv., 167 A.D.2d 590, 591, 563 N.Y.S.2d 219 (3d Dep't 1990) (personnel policy manual's list of grounds for termination did not create contractual limitation on employer's right to discharge employee, since list was not exhaustive and manual did not indicate that stated procedure would be followed in all cases), app. denied, 77 N.Y.2d 810 (1991); Marvin v. Kent Nursing Home, 153 A.D.2d 553, 554, 544 N.Y.S.2d 210 (2d Dep't 1989) (same). Rather, the descriptions seem designed only to sketch the general parameters of the evaluation procedure.
The major impropriety alleged by plaintiff is COTAP's consideration of information concerning his relationship with Professor Sage. Plaintiff contends that the matters concerning Sage do not fall within any of the three categories of criteria contained in the Handbook. The question before this court, however, is whether the Handbook expressly limits or precludes the Colleges' right to consider such matters, thereby giving plaintiff a contractual right in this regard. I find that there is no such limitation. In fact, there is explicit authority in the Bylaws that relationships with students and faculty are an important aspect of a teacher's function. The Bylaws state that "teaching involves not only one's students but one's colleagues, and requires mutual respect and consideration." Bylaws p. 7.
The information before COTAP concerning Romer and Sage did not relate only to their private, off-campus relationship. There is no indication that COTAP was motivated simply by malicious curiosity into Romer's personal affairs. Rather, the information related to the effect that Romer's problems with Sage had on his students, other faculty members, and the Colleges as a whole. Even if the Bylaws and Guidelines did impose some limits on COTAP's discretion, it cannot be said that COTAP's opinion that this type of information relative to Romer's fractitious relationship with a colleague was relevant to the written criteria was an abuse of that discretion.
Romer also contends that he received oral assurances from the then-provost of the Colleges that scholarship, teaching and community service were the "three and only three" criteria for tenure, and that if Romer "wrote a book review each year to show that [he] was not 'brain dead,'" tenure would be conferred after three years. Romer Aff. PP 5, 9. Even if true, however, those allegations cannot save plaintiff's breach of contract claim.
Although an employer's oral assurances of job security are an important factor to consider in deciding whether the employer has subjected itself to contractual obligations, such assurances "are not by themselves sufficient evidence of an express agreement" to create a contract. Cucchi v. New York City Off-Track Betting Corp., 818 F. Supp. 647, 652 (S.D.N.Y. 1993). Instead, oral assurances are but one factor among several that must be taken into account. Id.; Weiner, 57 N.Y.2d at 465-66. Given the previously-discussed failure of proof of express limitations on defendants' right to deny Romer tenure, I find that the alleged oral promises do not establish contractual rights or duties. At most, these were general assurances of job security, which New York courts have found insufficient to create contractual commitments. Townsend, 760 F. Supp. at 291.
Furthermore, even if oral promises alone could give rise to contract rights, the alleged assurances here would not support the first cause of action. The provost's statement that only three factors would be taken into account adds nothing to what is contained in the Handbook; the salient question is whether defendants had the right to interpret those three categories to include information concerning a candidate's relationships with his colleagues. See De Simone, 553 N.Y.S.2d at 243.
The statement that Romer would get tenure as long as he published book reviews to show that he was not "brain dead" cannot seriously be construed to mean that book reviews alone would guarantee him tenure. In fact, such an interpretation would conflict with the provost's alleged statement that there were three types of factors that mattered. The only reasonable understanding of the provost's words is that he was referring to the "scholarship" category.
Romer's allegation that defendants did not follow the proper procedures for tenure review (as opposed to consideration of improper information) likewise fails to state a contract claim. Romer contends that defendants violated the Bylaws by allowing the personal opinions of Dean Fox to be raised before COTAP instead of before the Departmental Committee. Complaint P 29. He also alleges that William G. Thalmann from the University of Southern California was appointed to the Departmental Committee, whereas the Bylaws do not provide for outside faculty members to serve on the Committee. Complaint P 25.
As with the criteria for tenure, however, the Bylaws do not expressly state that tenure review must invariably follow a specified, rigid procedure, or that a tenure decision could be invalidated if any variations in the procedure occurred. Furthermore, assuming that defendants could not legitimately have wholly abandoned all semblance of adherence to the prescribed procedures, the claimed deviations in Romer's case were too slight to sustain a breach of contract claim. COTAP forwarded Dean Fox's opinions to the Departmental Committee, which submitted its comments to COTAP. As to Thalmann, it is difficult to see how Romer could allege any harm to himself even if Thalmann were ineligible to serve on the Department Committee. Thalmann supported Romer's candidacy, and vehemently protested to the Colleges when he learned that Romer had been denied tenure. See Complaint Ex. I.
I conclude, therefore, that plaintiff has not stated a claim for breach of contract. The documents relied upon by plaintiff do not contain any express limitation on the Colleges' right to deny tenure. Moreover, even to the extent that the Bylaws and Guidelines can be read as setting forth certain mandatory procedures and criteria for tenure review, the facts alleged here do not show any departure from those procedures significant enough to support plaintiff's claim. The relief requested here, if available at all, could be sought only in an Article 78 proceeding. See Faillace v. Port Authority of New York and New Jersey, 130 A.D.2d 34, 43, 517 N.Y.S.2d 941 (1st Dep't) (appropriate vehicle for plaintiff to assert claim that he was wrongfully terminated from public office was Article 78 proceeding and not an action at law), app. denied, 70 N.Y.2d 613 (1987). Since that avenue was not timely pursued and is now precluded by the statute of limitations, the first cause of action must be dismissed. See Gertler, 107 A.D.2d 481, 487 N.Y.S.2d 565.
II. Equitable Estoppel
In his second cause of action, plaintiff alleges that he relied upon the Handbook with respect to the procedures for obtaining tenure, and that defendants should be estopped from following that procedure concerning his candidacy.
This cause of action must be dismissed as well. "The New York courts have concluded that 'the issuance of a manual by the employer . . . does not create an equitable estoppel which would preclude the employer from terminating an employee's employment except in compliance with the manual.'" Sherman v. St. Barnabas Hosp., 535 F. Supp. 564, 573 (S.D.N.Y. 1982) (quoting Edwards v. Citibank, 100 Misc. 2d 59, 418 N.Y.S.2d 269 (1979), aff'd, 74 A.D.2d 553, 425 N.Y.S.2d 327 (1st Dep't), app. dismissed, 51 N.Y.2d 875 (1980)). To allow plaintiff to circumvent New York's "express limitation" rule of employment contracts by casting this claim as an estoppel claim would virtually eviscerate the rule.
Furthermore, the merits of this claim are closely tied to those of the first cause of action, since both claims are premised on the allegation that defendants breached their obligations under the Handbook. For the reasons given in the preceding discussion of the contract claim, I find that plaintiff has failed to show such a breach.
Plaintiff has also failed to show a false representation or concealment of material facts, which is an essential element of estoppel. Deutsch v. Health Ins. Plan of Greater New York, 573 F. Supp. 1433, 1440 (S.D.N.Y. 1983); Gratton v. Dido Realty Co., 89 Misc. 2d 401, 391 N.Y.S.2d 954, aff'd, 63 A.D.2d 959, 405 N.Y.S.2d 1001 (2d Dep't 1978). To establish this element, plaintiff would have to show that defendants knew that they were not going to follow the procedures in the Handbook, and that they concealed that fact from him. That plainly has not been shown here. While defendants obviously differ in their interpretation of certain provisions in the Handbook, there is no basis for a finding that they concealed a willful departure from those provisions from plaintiff.
III. Intentional Infliction of Emotional Distress
Plaintiff's claim for intentional infliction of emotional distress cannot stand. Plaintiff's allegations do not meet the standards for such a claim under New York law.
In Murphy, 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86, the plaintiff claimed that he had been fired because of his age and because of his disclosure to top management of alleged accounting improprieties on the part of other employees. The Court of Appeals held that the plaintiff's allegations "regarding the manner of his termination fell far short of the strict standard" for this tort, which requires a showing of "conduct [which] has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. at 303 (quoting Restatement (Second) of Torts § 46 cmt d).
Plaintiff's allegations in the instant case likewise fall short of the mark. Even assuming the truth of plaintiff's factual allegations, there is no basis here for an emotional distress claim.
Defendants' motion for summary judgment is granted as to all causes of action, and the complaint is dismissed with prejudice.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT JUDGE
Dated: Rochester, New York
January 13, 1994.