The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FILED
March 9, 1999
STEVEN MEREDITH GARMON, )
) Cecil Crowson, Jr.
Plaintiff/Appellant, ) Appellate Court Clerk
) Appeal No.
) 01-A-01-9803-CH-00132
VS. )
) Davidson Chancery
) No. 96-1749-I
FISK UNIVERSITY, )
HENRY PONDER, PRESIDENT, )
REAVIS L. MITCHELL, DEAN OF )
ACADEMIC AFFAIRS, )
)
Defendants/Appellees. )
APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
AT NASHVILLE, TENNESSEE
THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR
KENT M. WEEKS
2021 Richard Jones Road, Suite 350
Nashville, Tennessee 37215
Attorney for Plaintiff/Appellant
SUZETTE PEYTON
5317 Ashlawn Drive
Nashville, Tennessee 37211
RICHARD MANSON
1314 Fifth Avenue North, Suite 300
Nashville, Tennessee 37208
Attorneys for Defendants/Appellees
AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED
BEN H. CANTRELL
PRESIDING JUDGE, M.S.
CONCUR:
KOCH, J.
COTTRELL, J.
OPINION
A white college professor denied tenure sued his university employer for
breach of contract and racial discrimination. The Chancery Court of Davidson County
dismissed both claims. We reverse the judgment dismissing the contract claim and
affirm the ruling on the discrimination claim.
I.
Meredith Garmon, a graduate of the University of Virginia with a doctor’s
degree in philosophy, was employed by Fisk University on a four year tenure track in
1992. The university renewed his contract in 1993 and 1994 for the academic years
that followed.
Tenure at Fisk is governed by the Faculty Handbook. In accordance
with the handbook, the dean of academic affairs notified Dr. Garmon on October 18,
1994 that his probationary period would expire at the end of the 1995-96 academic
year and that he needed to begin the year-long application process immediately. The
process included the preparation of a dossier by Dr. Garmon containing the
information set out in the handbook. Dr. Garmon delivered the dossier to the first
reviewing committee on February 14, 1995.
The faculty handbook says that consideration for tenure shall be based
on teaching, scholarship other than teaching, service, and institutional need. The
review process goes through several stages. The first stage is a review by the Search
and Review Committee composed of the division chairperson, two senior faculty
members, a junior faculty member, and a student. The Search and Review
Committee makes a written recommendation to the Committee on Promotion and
Tenure, composed of five tenured full professors elected by the faculty. That
committee makes a recommendation to the dean of academic affairs, who in turn
forwards the recommendations of the two committees, along with his own
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recommendation, to the president of the university. The president recommends
tenure to the board of trustees.
Dr. Garmon’s application passed through the two committees with a
unanimous recommendation for tenure. The dean of academic affairs, however,
rejected the recommendation on the basis of institutional need. He stated that he
relied on the University Fact Book, which showed there were only three students
majoring in religious and philosophical studies, the department in which Dr. Garmon
was employed. Since that department already had one tenured professor, the dean
decided not to recommend tenure for another.
The fact book showed that the department had never had more than
seven majors, and the average for the five years ending in 1994 was 4.6. In 1992,
when Dr. Garmon was hired on a tenure track, the number was five. In a letter
addressed to the dean on May 1, 1995, just four days before the dean rejected Dr.
Garmon’s application, the division head reported that the number of majors in the
department was ten.
Before acting on Dr. Garmon’s request for tenure, the academic dean
requested some more information from the head of the division of Humanities and
Fine Arts. The head of the division responded one day before the dean had to make
his recommendation to the president. The letter reported that Dr. Garmon was
teaching less than a full load and that the projected teaching load for the fall semester
was the same. Dr. Garmon was not given the chance to refute that evidence and the
evidence at the trial showed that he had taught a full load every semester. The
university president relied solely on the negative recommendation of the academic
dean in making his recommendation to the board of trustees.
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After learning that his request for tenure had been turned down, Dr.
Garmon requested reconsideration. He also filed a grievance with the University
Grievance Committee as provided in the faculty handbook. The dean stopped any
reconsideration when Dr. Garmon filed the grievance, and he ignored the
recommendation of the grievance committee that Dr. Garmon’s application be re-
evaluated. Dr. Garmon taught one more year at Fisk and left when the university
failed to renew his contract.
II.
Breach of Contract
Tenure in most public institutions of higher learning is governed by
statute, see e.g. Tenn. Code Ann. § 49-8-301, et seq. The tenure rights of teachers
at private institutions, however, are governed by contract, Sawyer v. Mercer, 594
S.W.2d 696 (Tenn. 1980), and since the contracts vary from one institution to another,
tenure rights have to be decided on a case by case basis.
In this case the contract with Dr. Garmon began with an offer on June
19, 1992 when the then dean of academic affairs wrote to him as follows:
I am delighted at your decision to join the Fisk
faculty. This letter is to summarize the terms of your
appointment as approved by President Ponder and
conveyed in our recent discussions.
You are to be appointed Assistant Professor of
Philosophy, effective August 19, 1992. Your assignment
will include teaching duties in the Department of Religious
and Philosophical Studies, and you are also appointed to
the core Faculty. Depending on institution need as
determined in my office each term, it is anticipated that
your teaching assignment will normally include one or
more courses in the University’s Core Curriculum.
Your initial salary is to be $28,000 for the academic
year (August 19 through May 31), plus normal University
benefits. This is a probationary (i.e. tenure track)
appointment. Assigned probationary period is four years,
ending in 1995-96. Under our policies, a four-year
probationary appointment calls for a University decision
regarding award of tenure to be rendered prior to the end
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of your third year’s employment (i.e. by May 31, 1995),
presuming that you and we mutually agree to annual
contract renewals to carry you to that date.
If the foregoing terms are acceptable to you, you
may so indicate by signing in the space provided below,
returning one copy of this letter to my office and retaining
the other for your own records. I will then ask the
Business Office to prepare your formal faculty contract for
the President’s signature. This appointment letter must,
however, be signed and received in my office no later
than June 30, 1992; after that date the appointment can
no longer be guaranteed, and Fisk must reserve the right
to offer this position to another candidate.
Obviously Dr. Garmon accepted the proposal, and he began teaching
in the fall of 1992. The parties agree that the faculty handbook contains the factors
the university considers for tenure. It also outlines the procedure:
2. An evaluation for promotion and tenure
consideration is more searching and thorough than the
routine yearly evaluation which all faculty undergo. This
is accomplished through the role of two committees - the
divisional Search and Review Committee and the
Committee on Promotion and Tenure. The Committee on
Promotion and Tenure is a five-person committee
composed of tenured full professors who are elected to
the committee by the Faculty Assembly. The purpose of
the Committee on Promotion and Tenure is to make
recommendations of promotion and tenure to the dean.
3. The procedure followed during an evaluation for
promotion and tenure is as follows:
a. The divisional Search and Review Committee
arrives at a divisional decision.
b. The division director writes a letter to the dean of
academic affairs and to the Committee on
Promotion and Tenure, communicating the
divisional decision and summarizing the evidence
supporting it; this letter should indicate any
divergence of opinion within the Search and
Review Committee, and should be signed by each
member of that committee.
c. The Committee on Promotion and Tenure will
study the recommendations of the Search and
Review Committees. Cases in which the
Committee on promotion and Tenure feels an
inadequate review has been made will be referred
back to the Search and Review Committee for
further work. If the Promotion and Tenure
committee decides to make a recommendation to
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the dean which differs from that of the Search and
Review Committee, the Promotion and Tenure
committee will initiate a meeting with the Search
and Review Committee to discuss these
differences before final decision on what
recommendation to pass on to the dean. This
recommendation is to reflect any difference
between the Promotion and Tenure Committee
and the Search and Review committee.
d. The Committee on promotion and Tenure will
make its recommendation to the dean, who in turn
makes a recommendation to the president for
action.
As we have indicated, Dr. Garmon’s request for tenure was rejected
solely on the basis of institutional need. With respect to that factor the handbook
says:
4. Institutional need refers to the requirement that
the institution operate an educational program consistent
with its statement of purpose and within its financial
resources.
How does this vague provision apply to a tenure candidate who has met
all the other requirements? In Chapdelaine v. Torrence, 532 S.W.2d 542 (Tenn.
1975), a tenured teacher (under a statutory scheme) was discharged, and the
university defended on the ground that its budgetary limitations required a reduction
in force. The Supreme Court recognized that economic necessity could justify
dismissing tenured teachers but that “the burden was on the [university] to show that
their actions were fair and conformed to the tone and tenor of the tenure laws.” 532
S.W.2d at 549. In this case we think the same rule applies to the denial of tenure on
the basis of “institutional need.” The university has the burden of showing by
competent proof how the institutional need has changed since Dr. Garmon was hired
on a tenure track. Otherwise, after three years of pursuing tenure according to the
published criteria, the tenure candidate is at the mercy of the academic dean or the
president. The “tone and tenor” of the contract in this case does not allow such
arbitrary action.
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The only proof in this record of the institutional need shows that there
have been no significant changes since Dr. Garmon was hired in 1992. The record
does not indicate that the university was in a financial crisis -- or even how tenure
would affect the university’s financial health. The record is inconclusive on the
number of majors in Dr. Garmon’s department -- the one statistic the academic dean
says he relied on. From the evidence, one could conclude that the department had
from three to ten majors at the time of the decision to deny tenure. At the time Dr.
Garmon was hired the number was apparently five. The witnesses all testified that
it was nearly impossible to pin down the number of majors in a department at any
particular time. Students tend to change majors often, and the university’s records
were always slow in catching up.
But we should also recognize that Dr. Garmon was hired to teach the
core curriculum also. There is no proof concerning the needs of the school as a
whole.
Were this a question of Dr. Garmon’s qualifications we would be very
careful not to second guess the teaching professionals. “Determinations about such
matters as teaching ability, research scholarship, and professional stature are
subjective, and unless they can be shown to have been used as the mechanism to
obscure discrimination, they must be left for evaluation by the professionals . . . .”
Kunda v. Muhlenberg College, 621 F.2d 532 at 548 (3rd Cir. 1980).
We conclude that the university failed to show a valid reason for denying
tenure to Dr. Garmon.
III.
Race Discrimination
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Dr. Garmon also sued for a violation of the Tennessee Human Rights
Act, Tenn. Code Ann. § 4-21-101, et seq. and the federal Civil Rights Act, 42 USC §
1981, et seq. He alleged that he was denied tenure because of his race. After
hearing the proof, the trial judge found that the evidence preponderated against a
finding of racial discrimination and in favor of a finding that the denial was grounded
on institutional need. That finding is presumed to be correct. Rule 13(d), Tenn. R.
App. Proc.
Dr. Garmon cites the various tests to determine whether a prima facie
case of discrimination has been made out and the burden shifting rules applied in
discrimination cases. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), and our
cases of Mangrum v. Wal-Mart Stores, Inc., 950 S.W.2d 33 (Tenn. App. 1997) and
Brenner v. Textron Aerostructures, 874 S.W.2d 579 (Tenn. App. 1993). But we are
beyond the summary judgment stage; we are at the point of deciding whether Dr.
Garmon carried his burden of showing that the reason he was denied tenure was in
fact racial discrimination.
Dr. Garmon points to several factors that tend to support his claim: that
eighty-seven percent of the tenure awards in the period of 1989-1995 went to African-
Americans; that the only person granted tenure in 1995 was an African-American
male who had been denied tenure earlier and had less than unanimous support in the
reviewing committees; that two white applicants with better credentials (himself
included) were denied tenure in 1995; that the previous academic dean testified that
he and the president of the university routinely discussed race as a factor in making
promotion and tenure decisions.
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The president and the current academic dean both denied making race-
based decisions in hiring and tenure, and we should point out that one of the
applicants denied tenure in 1995 was an African American woman.
With the testimony in conflict, the trial judge’s finding necessarily
involved a determination of the academic dean’s credibility. That determination is
exclusively for the trial court, unless other real evidence compels a contrary
conclusion. State ex rel Balsinger v. Town of Madisonville, 435 S.W.2d 803 (Tenn.
1968).
We do not find that the evidence in the record preponderates against the
trial judge’s conclusion that the decision to deny tenure to Dr. Garmon was based on
considerations other than race.
Although we have found that institutional need was not proven to be a
valid reason to deny Dr. Garmon tenure, it does not follow as a matter of course that
race was the real reason. Even if “the proferred reason was false does not
necessarily mean that the true motive was the illegal one argued by the plaintiff.”
Fisher v. Vassar College, 114 F.3d 1332 (2nd Cir. 1997). Each case must be
examined on its facts to determine where the preponderance lies. We are satisfied
that the trial judge made the proper finding.
V.
The Remedy
A tenured teacher dismissed without compliance with the tenure laws
may be entitled to reinstatement, back pay, and “other damages.” Sanders v. Vinson,
558 S.W.2d 838 (Tenn. 1977). The denial of tenure for reasons violating Title VII of
the Civil Rights Act of 1964 as amended, may result in an award of back pay and
reinstatement along with other equitable relief. Kunda v. Muhlenberg College, 621
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F.2d 532 at 549 (3rd Cir. 1980). Title VII vests the courts with broad powers in order
to “make persons whole for injuries suffered on account of unlawful employment
discrimination.” Id. Under our decisions the remedies for a breach of an employment
contract may include reinstatement and damages for lost wages. Hooks v. Gibson,
842 S.W.2d 625 (Tenn. App. 1992).
We think the only judgment that would make Dr. Garmon whole for the
university’s breach of contract is an order of reinstatement with back pay, and a fair
consideration of his application for tenure. We realize that four years have now
elapsed and conditions at the university may have changed dramatically, but he is
entitled to a good faith decision on his tenure application.
The judgment of the court below is reversed in part, affirmed in part, and
remanded to the Chancery Court of Davidson County for the entry of a judgment for
back pay and for other proceedings in accordance with this opinion. Tax the costs on
appeal to the appellee university.
_________________________________
BEN H. CANTRELL,
PRESIDING JUDGE, M.S.
CONCUR:
_____________________________
WILLIAM C. KOCH, JR., JUDGE
_____________________________
PATRICIA J. COTTRELL, JUDGE
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