Trimble v. Washington State University

Sanders, J.

(dissenting) — I would reverse the decision of the Court of Appeals and remand to the trial court for further proceedings because Dr. John Trimble has presented a triable issue of fact as to whether Washington State University (WSU) breached his employment contract.

*99The majority correctly states, hut ultimately misapplies, the principles that govern our review of a summary judgment.

This dispute centers on a provision in the WSU Manual (Faculty Manual), which both sides admit constitutes part of WSU’s employment contract with Trimble. The Faculty Manual states:

Regular annual reviews, as set forth below, shall be conducted to advise and direct progress toward tenure or, if for adequate cause, to terminate employment. Evaluations of non-tenured faculty members are to be conducted at the departmental level at least once a year. These are to involve all tenured faculty members, and student evaluations are to be included where applicable. The tenured members of the unit are expected to establish how the evaluation is to be accomplished (for example, in an open meeting, in written evaluations submitted directly to the department chair, or by other appropriate means). Following completion of the evaluations, the department chair, or equivalent, is to meet individually with each non-tenured faculty member to discuss results and implications of the evaluation. The purpose of the conference is to aid the faculty member in understanding how tenured members view his or her performance in light of the departmental criteria. A dated written summary of the discussion of these results and of the implications shall be signed by each nontenured faculty member and the department chair, or equivalent. The faculty member shall have the right to have a statement concerning this summary permanently attached to the summary. A copy of the signed summary is to be provided to the faculty member. This summary also shall be available, upon request, to each tenured member of the department.

Clerk’s Papers (CP) at 220. Written evaluations may be required by the tenured faculty members as per the Faculty Manual, and there is evidence in this record to demonstrate written evaluations were in fact required in this situation.4 But here the dispute is not only, as the majority would claim, whether the tenured members of the depart*100ment were required to evaluate Trimble each year in writing pursuant to this provision. Majority at 95. More fundamentally the dispute is whether the tenured members of the department evaluated Trimble at all.

In light of this policy the Faculty Status Committee commented on Trimble’s appeal from his tenure denial:

[T]he committee did find that Trimble’s department did not carry out yearly “dry-run” tenure balloting among the tenured faculty as specified on page 37 of the Faculty Manual. This was a procedural error, and thus the Faculty Status Committee recommends that the decision to deny Trimble tenure be set aside, and that he be allowed to resubmit his tenure materials for consideration.
Hal Kerr confirmed that there had been no annual balloting among the tenured faculty concerning Prof. Trimble’s progress toward tenure. This procedure is described on page 37 of the Faculty Manual. If such balloting had occurred, it is likely that Trimble would have taken drastic steps to either change his program or seek employment elsewhere (the mere two years before tenure consideration would have precluded leisurely solutions to problems identified by the tenured faculty). The two chairs under whom Trimble served, Goolsby and Kerr, had previous chair experience when the dry-run procedure was not in place; thus, while they did not intentionally violate tenure procedure, they did inadvertently violate it.

CP at 291, 294. Dr. William Goolsby also confirmed and expressed regret that he did not follow this procedure while acting as chair of Trimble’s department. CP at, 296.

The majority seizes upon the Faculty Manual language, “ ‘in an open meeting, in written evaluations ... or by other appropriate means.’ ” Majority at 95 (quoting CP at 220). But the majority, like WSU and the Court of Appeals, *101focuses solely on how the tenured faculty could submit their appraisals, the method of which is to be determined by the tenured faculty (in an open meeting, in writing, or by other appropriate means). The majority does not consider, however, whether the tenured members must participate at all. Given the plain language of the policy— evaluations “are to involve all tenured faculty members”— such participation is not discretionary. CP at 220. WSU’s only argument in this regard is that during both of Trimble’s annual evaluations, according to Dr. Goolsby and Dr. Kerr, the tenured members of the department were involved in Trimble’s reviews.

However this alleged fact is disputed. Trimble points out that both Drs. Goolsby and Kerr, as discussed above, admit the department did not follow the procedure for the annual performance reviews. Dr. Goolsby expressed his regret in not following the procedure during Trimble’s first annual review, CP at 296, and the Faculty Status Committee confirmed from Dr. Kerr that he did not follow the procedure during the second annual review. CP at 290. The record before us does not disclose whether Drs. Goolsby and Kerr, by acknowledging they failed to conduct annual “dry-run balloting” among the tenured faculty in Trimble’s department, meant they not only failed to get tenured faculty members’ input in writing but whether they also failed to get tenured faculty members’ input at all. The former is established without doubt, and there is evidence to support the latter as well. WSU’s primary argument that the Faculty Manual was substantially complied with is unavailing in light of the Faculty Status Committee’s report and the admissions from Drs. Goolsby and Kerr that they failed to follow the procedures for Trimble.5

Thus resolving the evidence in the record and all reason*102able inferences drawn therefrom in Trimble’s favor, Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982), there is clearly at least a dispute over a genuine issue of material fact. Resolving all reasonable inferences in favor of Trimble, we are left to conclude that he was denied the op*103portunity, contractually guaranteed by the Faculty Manual, to have the input of all tenured members of his department during his annual reviews.

The majority cannot seriously propose as a matter of law that the WSU Faculty Manual procedures were followed when the two department chairs during Trimble’s professorship, who were charged with applying the procedures, admit the procedures were not followed and their failure to apply the Faculty Manual procedures in Trimble’s case was confirmed by an independent university appeals committee.

Clearly WSU did not choose, for whatever reason, to extend Trimble an offer of tenure. And while the tenure review process is certainly “a highly political one and is singularly unique to academia,” Majority at 98, the law of contract admits of no status exemption for colleges and universities. Requiring WSU to play by the rules it itself established in its own Faculty Manual does not strip the university of its prerogative to choose its tenured faculty members, but simply requires the college to abide by the procedure it has imposed on itself and its faculty. Trimble has demonstrated a genuine factual dispute over whether WSU played by its own rules in his case by showing evidence that three of its agents — Goolsby, Kerr, and the Faculty Status Committee — agree the university ran afoul of its Faculty Manual. Summary judgment is accordingly inappropriate.

I dissent.

Madsen and Alexander, JJ., concur with Sanders, J.

The Faculty Manual gives the tenured faculty the responsibility to select the method of evaluation, e.g., in writing, and once they have selected the method *100they are bound by it. They do not have the “discretion” to handle the annual review process differently. Here there was clearly a practice of written evaluations, which may imply the election of that method. For example, Trimble’s ultimate tenure review by Dr. Hal Kerr, taking into account the input of the tenured faculty, was done in writing. See Clerk’s Papers (CP) at 255-67. Nothing put forth by WSU tells us that the faculty did not select written evaluations as its method of input by tenured faculty during the annual review process.

Of further interest is the fact that another professor in Trimble’s department, Li-Ming Han, was up for tenure at the same time as Trimble. Han was initially denied tenure, like Trimble, and like Trimble she appealed to the Faculty Status Committee. The committee found procedural error in that the tenured faculty members of her department did not meet yearly to discuss and evaluate her progress as an untenured member. CP at 312. “Thus,” the committee wrote,

*102“Professor Han relied on the assessments she received in Annual Reviews which were at best ambiguous.” Id. This was Trimble’s situation as well.

However in Li-Ming Han’s case, unlike the outcome in Trimble’s case, Provost Tom George (whom WSU President Sam Smith asked to review the Faculty Status Committee’s report, CP at 311) was persuaded by the committee’s report of the same procedural error as in Trimble’s case and on that basis set aside LiMing Han’s tenure denial. This decision was made notwithstanding an apparently confidential memorandum from Chair Hal Kerr to Provost George dated one week before the latter made his decision. The memorandum stated in part:

If the petition is denied, Professor Han will either leave voluntarily or will retain legal council [sic]. In the latter case, the institution would likely have a shaky defense given the acknowledged procedural error. While we could argue that Professor Han was adequately informed in prior annual reviews and in the third year review that her classroom performance was deficient, the fact remains that she did not receive separate annual tenure reviews as prescribed by the WSU Faculty Manual. Thus, I feel that Geoff Gamble is correct in his view that the procedural violation could negate any case we might muster, however appealing and logical. Before capitulating to the threat of a lawsuit, however, we ought to assess the odds of such an outcome. Specifically, would Han sue? ... I personally think the chances are fairly low that she would seek legal redress. Han is a mild-mannered, non-confrontational person. Her challenge of the tenure denial was, I feel, more of a face-saving response than a pressure tactic to obtain tenure. . . .
The other alternative is to accept the FSC’s recommendation, lay aside last years’ tenure decision and reconsider the case this year. While this avoids the specter of a lawsuit, it could establish a precedent where by [sic] any faculty denied tenure might be motivated to challenge the decision on procedural grounds[1]. . . .
Finally, we might speculate as to the likely outcome should Han’s tenure be reconsidered this year. . . . Given her performance over the past year I would have to recommend against tenure should we reconsider the case this year. Thus, to grant a reprieve would, in my opinion, only postpone the inevitable. Thus I urge you to reject the FSC’s recommendation.

1] I am advised that Professor John Trimble of the Vancouver Program has also contacted the FSC to appeal his tenure denial. I assume the basis for Trimble’s appeal is similar to Han’s.

CP at 315-16. Although this evidence is more probative of Trimble’s original discrimination claim (Han was his comparator) upon which this court did not grant review, the Kerr memorandum nevertheless demonstrates WSU’s inconsistent application of the same employment criteria to two similarly situated employees. It would further lend to the inference that Trimble’s tenure review, like Han’s, was deficient in that the tenured members of Trimble’s department did not meet annually to discuss his tenure process at all.