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July 19, 1994


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




 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.


 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 . . ."


 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 Federalist No 37 (Madison) ("No language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas.").

 Courts, including those of New York the law of which is applicable in this diversity of citizenship case, are reluctant to intrude into decisions of this type, because doing so would substitute judicial evaluation of teaching effectiveness for the judgment of those charged with that function by the institution. See Faro v. New York University, 502 F.2d 1229 (2d Cir 1979); Pauk v. Board of Higher Education, 62 A.D.2d 660, 406 N.Y.S.2d 46 (1st Dept 1978), aff'd 48 N.Y.2d 930, 425 N.Y.S.2d 92, 401 N.E.2d 214 (1979).

 While the American Association of University Professors, representing one side of the inherent tension in such matters contends that the "precise terms and conditions of every appointment should be stated in writing and be in the possession of both institution and teacher before the appointment is consummated," *fn1" stress on overly detailed written criteria can act as a straitjacket preventing consideration of sometimes critical but more subjective factors. Courts accordingly decline to impose either regime on an institution, or distort language used to force an institution into a more paperwork-based mode. Shields v. School of Law, Hofstra University, 77 A.D.2d 867, 431 N.Y.S.2d 60 (2d Dept 1980). Indeed, in enforcement of antidiscrimination laws as well as contract law, subjective factors are neither per se improper nor a valid excuse for illegal behavior. See Watson v. Ft. Worth Bank & Trust Co, 487 U.S. 977, 101 L. Ed. 2d 827, 108 S. Ct. 2777 (1988).

 Bresnick also points out that the Provost had waxed eloquent in praise of Bresnick in a "To Whom It May Concern" letter dated January 6, 1992, but was highly critical of Bresnick in evaluating him for tenure in the fall of that year. It appears likely from the nature of the letter "To Whom It May Concern" that it was intended to help Bresnick obtain another job outside the College. Inability to work with those in the College would be a permissible reason for finding ineffective teaching and service to the College in that particular environment, but would not necessarily mean that Bresnick lacked the ability to perform well in another environment. Hence the inconsistent evaluations might each be correct when differing audiences and circumstances are taken into account.

 No evidence or suggestion of any improper reason for the Provost's change of mind has been furnished or suggested. Nor is the Provost the final deciding authority.


 Under Fed.R.Civ.P. 56, summary judgment can be granted against a party with the burden of proof who fails to support its case with facts. Celotex Corp v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); SEC v. Research Automation Corp, 585 F.2d 31, 33 (2d Cir 1978). Bresnick has presented no evidence of breach of contract or of good faith by the College. Accordingly, plaintiff's motion for summary judgment is denied and that of the defendant College is granted. The complaint is dismissed; the clerk is directed to close this case.


 Dated: White Plains, New York

 July 19, 1994

 /s/ John S. Martin, USDJ for


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