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BRESNICK v. MANHATTANVILLE COLLEGE

July 19, 1994

ROBERT BRESNICK, Plaintiff,
v.
MANHATTANVILLE COLLEGE, Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

MEMORANDUM ORDER

 VINCENT L. BRODERICK, U.S.D.J.

 I

 This diversity of citizenship case presents the repetitive challenge of treatment of academicians who are denied tenure and seek judicial review of the decision of the institution, relying on breaches of contract because of alleged departures from criteria listed in institutional documents as relevant to the decision.

 II

 In May 1987 the defendant Manhattanville College (the "College") hired plaintiff Robert Bresnick ("Bresnick") as a full-time faculty member in the Dance and Theater department. His tenure review was scheduled for, and held in, the fall of 1992 at which time tenure was denied. This lawsuit was thereafter brought, alleging breach of contract and breach of the duty of good faith and fair dealing. Both parties have moved for summary judgment. The College's motion is granted.

 The College's 1973 By-Laws stated that tenure is awarded on the basis of "teaching excellence, scholarship and service to the College." The Faculty By-Laws in effect at relevant times provided decisions "granting tenure are made by the President upon recommendation of the Department, the Committee on Faculty Status and the appropriate administrative officer."

 The Committee is called upon to consider the recommendation of the Department "and all other pertinent materials." In case of disagreements, the department is to be consulted. In 1982 the Status Committee reaffirmed criteria for tenure involving categories of teaching, scholarly research, professional development, and service to the College, making "excellence in teaching of first importance."

 The results of reviews by the Status Committee, Provost, and President are set forth in Appendix A to this memorandum order. While the Committee voted four-to-one for tenure, the majority indicated that they were "concerned with the lack of interdisciplinary dance/theater productions . . ."

 The Provost stated that Bresnick had difficulty working with colleagues, and the President expressed concern about unwillingness to work with colleagues "in a sufficiently collegial and collaborative manner," raising "doubts about his ability to offer the necessary leadership . . ."

 IV

 Bresnick's principal argument is that collegiality or working with colleagues in a collaborative manner are not part of the criteria listed in the College's documents.

 Cooperation and collegiality are essential to a department which may be called upon to work with other departments, and to train students to collaborate in the difficult task of orchestrating dance or drama programs in the outside world. Where what is mentioned is clearly within a relevant category, it would be blind in the extreme to require the category to be specified in haec verba. See Avis Rent-A-Car System v. Hertz, 782 F.2d 381, 385-86 (2d Cir 1986) (Friendly, J.) (referring to the "tyranny of literalness"); Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir 1944) (L. Hand, J. concurring), aff'd 324 U.S. 244, 65 S. Ct. 605, 89 L. Ed. 921 (1945) ("There is no surer way to misread any document than to read it literally."); The ...


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