Lynn Branham v. Thomas M. Cooley Law School

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0247p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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LYNN BRANHAM,

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Plaintiff-Appellant,

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No. 10-2305

v.

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THOMAS M. COOLEY LAW SCHOOL; DONALD

Defendants-Appellees. -

LEDUC,

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Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:07-cv-630—Robert J. Jonker, District Judge.

Argued: April 18, 2012

Decided and Filed: August 6, 2012

Before: MARTIN, COOK, and KETHLEDGE, Circuit Judges.

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COUNSEL

ARGUED: Peter Goldberger, Ardmore, Pennsylvania, for Appellant. Megan P. Norris,

MILLER CANFIELD, PADDOCK AND STONE, PLC, Detroit, Michigan, for

Appellees. ON BRIEF: Peter Goldberger, Ardmore, Pennsylvania, Julie H. Hurwitz,

William H. Goodman, GOODMAN & HURWITZ, P.C., Detroit, Michigan, for

Appellant. Megan P. Norris, Christopher M. Trebilcock, MILLER CANFIELD,

PADDOCK AND STONE, PLC, Detroit, Michigan, for Appellees.

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OPINION

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BOYCE F. MARTIN, JR., Circuit Judge. Lynn Branham, a former law professor

at the Thomas M. Cooley Law School, appeals the district court’s judgments concluding

that the tenure granted under her contract does not afford her rights beyond those

specified in her employment contract; concluding that the faculty conference process

1

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through which her termination was ratified complied with Cooley’s policy and with

Michigan law; denying her a jury trial on the issues of whether there was “good cause”

for her termination and whether she is due damages; and limiting her available remedy

to equity. For the reasons that follow, we AFFIRM the judgments of the district court.

I.

Branham was a tenured law professor at Cooley at the time of her termination.

She began teaching there in 1983, and primarily taught courses in criminal law. She

suffered from seizures on occasion. She signed an employment contract dated December

21, 2005, for a twelve-month employment period beginning January 1, 2006. For the

spring semester of 2006, Branham was assigned to teach classes in constitutional law

and torts. Branham told Cooley Dean Donald LeDuc that she did not want to teach

either class, citing health reasons and her preference for, and greater experience with,

teaching criminal law-related courses. Despite her complaint to LeDuc, she taught the

courses she was assigned through the spring semester of 2006. During the summer of

2006, Branham sold her house in Michigan, moved to Champaign, Illinois, and

requested and was granted a leave of absence from Cooley. Though she was assigned

to teach constitutional law after her return from leave, she refused to do so, instead

asking to be assigned a criminal law class.

LeDuc dismissed Branham from her position in December 2006. Her

employment contract required a process by which his decision to dismiss Branham

would be voted upon by the Cooley faculty. That process was not initially

followed—the Cooley faculty did not vote on her dismissal.

Branham filed suit, seeking damages for alleged violations of the Americans with

Disabilities Act and the Michigan Persons with Disabilities Civil Rights Act, intentional

infliction of emotional distress, and breach of contract. On cross motions for summary

judgment, the district court granted summary judgment against Branham on the first

three claims, but not on the contract-breach claim. The district court also denied

Branham’s motion for partial summary judgment on the contract-breach claim. After

the district court ruled on the summary judgment motions, Cooley filed a motion in

No. 10-2305 Branham v. Thomas M. Cooley Law Sch., et al. Page 3

limine to limit the remedy available on the contract-breach claim to equitable relief. The

district court granted this motion and subsequently requested briefing on whether either

party had a right to a jury trial. In response to the request for briefing, Branham waived

a jury trial. After a four-day bench trial, the district court held that Cooley had breached

the employment contract by not following the dismissal process required by the contract,

and ordered Cooley to comply with that process.

To comply with the district court’s order, Cooley held a faculty conference to

consider whether good cause existed to dismiss Branham from her position. The faculty

concurred with LeDuc’s decision to dismiss Branham, and the Board of Directors

unanimously upheld the faculty’s decision. The district court then ruled that Cooley had

complied with the process due Branham under her contract and that the process complied

with Michigan law. The district court entered final judgment against Branham.

Branham appeals.

II.

“On an appeal from a judgment entered after a bench trial, we review the district

court’s findings of fact for clear error and its conclusions of law de novo.” Lindstrom

v. A-C Prod. Liab. Trust, 424 F.3d 488, 492 (6th Cir. 2005). We review a district court’s

ruling on a motion in limine for an abuse of discretion. United States v. Talley, 194 F.3d

758, 765 (6th Cir. 1999).

III.

Branham argues the district court erred in (1) concluding that the tenure granted

under her contract does not afford her rights beyond those specified in her employment

contract; (2) concluding that the faculty conference process complied with Cooley’s

policy, American Bar Association standards, and Michigan and federal law; (3) denying

her a jury trial on the issues of whether there was “good cause” for her termination and

whether she is due damages; and (4) limiting her available remedy to equity.

No. 10-2305 Branham v. Thomas M. Cooley Law Sch., et al. Page 4

A. Tenure

As the district court noted, and as Branham concedes, “‘tenure’ [does not] mean[]

anything other than what [Branham’s] employment contract provides.” Further, under

Michigan law, “contracts for permanent employment are for an indefinite period of time

and are presumptively construed to provide employment at will.” Rowe v. Montgomery

Ward & Co., 473 N.W.2d 268, 271 (Mich. 1991). The term “tenure” is not defined in

Branham’s employment contract, but Branham contends that “tenure” means “lifetime

appointment” or “continuous employment.” Branham points to Cooley’s Policy 201,

discussed below, which is expressly incorporated in her employment contract, and to the

American Bar Association’s Appendix 1 to its Standards and Rules of Procedure for

Approval of Law Schools, to support her assertion that, under her contract, tenure means

a lifetime appointment or a guarantee of continuous employment. Branham argues that

the district court erred in not incorporating the American Bar Association’s suggested

tenure policies into the 2006 employment contract.

The contract expressly incorporates “[t]he current provisions of the American

Bar Association Standards governing approval of law schools as they relate to maximum

teaching loads and other rights, duties and prerogatives of faculty members.”

Appendix 1 to the American Bar Association’s Standards, titled Statements on Academic

Freedom and Tenure, states that “teachers . . . should have permanent or continuous

tenure, and their services should be terminated only for adequate cause.” American Bar

Association Standard 405, titled “Professional Environment,” states that a law school

“shall” have a policy regarding tenure, and notes that Appendix 1 “is an example [of a

tenure policy] but is not obligatory.” This provision alone is enough for us to conclude

that the Standards’ tenure policy in Appendix 1 is merely a tenure model, and is not

necessarily the “tenure” Branham held. Even if we were to hold that Appendix 1 is

incorporated into Branham’s contract, we find that the tenure held by Branham does not

afford her rights beyond those enumerated in her contract. The language in Appendix

1 suggests, but does not require, that law schools grant permanent or continuous tenure:

“teachers . . . should have permanent or continuous tenure.” (emphasis added). The

No. 10-2305 Branham v. Thomas M. Cooley Law Sch., et al. Page 5

language in the contract does not grant permanent or continuous tenure; rather, it merely

provides for a one-year period of employment.

Branham’s contract, including Policy 201, which refers to the concept of tenure

but does not go so far as to define tenure as a right to continuous employment, does not

create an obligation of continuous employment: her contract expressly limits its term to

a single year. While Branham may have had “tenure” in the sense that she had academic

freedom, and that she and Cooley generally expected that they would enter a new

employment contract in subsequent years, nothing in her employment contract, or the

documents incorporated by reference therein, provides for a term of employment greater

than one year. The district court did not err in concluding that Branham is due only the

employment protection and process specified in her contract.

B. Faculty Conference Process

After ruling that Cooley breached its employment agreement with Branham when

LeDuc dismissed her without the faculty review process required by her contract, the

district court ordered Cooley to hold a faculty conference to provide Branham with the

dismissal process specified by Policy 201. Branham contends on appeal that the faculty

conference process that Cooley held to comply with the district court’s order did not

comply with her rights under her employment contract, with her rights under the

American Bar Association’s Standards, or with federal and Michigan law.

1. Compliance with Process

Branham’s employment contract incorporates Cooley’s Policy 201. Policy 201

provides that:

No tenured faculty member shall be dismissed . . . prior

to the expiration of the term of his appointment, except

for good cause shown and in accordance with the

following procedure:

(a) Notice in writing by the dean of the reasons

and grounds for dismissal shall be served on the

faculty member at least fourteen days prior to a

meeting of the faculty conference at which the

No. 10-2305 Branham v. Thomas M. Cooley Law Sch., et al. Page 6

removal is to be considered, as provided in

subparagraph (b) herein.

(b) The Dean shall thereafter cause a meeting of

the faculty conference to be convened for the

purpose of considering removal of the faculty

member.

(c) If the faculty conference shall concur in

removal, the faculty member shall be removed,

subject to appeal to the academic committee of

the Board of Directors.

After the district court ordered Cooley to convene a faculty conference, LeDuc

notified Branham in writing of the reasons and grounds for her dismissal, called the

faculty conference, and presented the faculty with his reasons for her dismissal. The

faculty members present at the conference voted 85-19 to concur in LeDuc’s dismissal

of Branham. Upon appeal to the Board of Directors, the Board upheld the faculty

conference’s decision in a unanimous vote. Based on these facts, we find that the faculty

conference process complied with all of Policy 201’s enumerated requirements.

Branham submits that the court-ordered process could never have been adequate

because it occurred long after LeDuc had removed her from her position. For the

reasons discussed immediately above, the court-ordered faculty conference did comply

with Policy 201, and she fails to explain how a dismissal this is compliant with Policy

201 is “inadequate.”

Finally, Branham asserts that certain circumstances of the faculty conference,

such as votes by proxy and by faculty members who were not faculty members at the

time of her dismissal, should render the entire process void. Branham fails to explain

how any of these facts violate the requirements of the process set forth in Policy 201 or

even whether they changed the outcome of the faculty conference. For these reasons,

we find that Cooley complied with the procedures specified in Policy 201.

No. 10-2305 Branham v. Thomas M. Cooley Law Sch., et al. Page 7

2. Sufficiency of Process

Branham contends that Policy 201 is not sufficiently “fair” under Michigan law;

we find that Policy 201 complies with Michigan law. Under Michigan law, “[a]n

employer can provide a procedure for resolution of disputes concerning the discharge

of employees.” Carlson v. Hutzel Corp. of Mich., 455 N.W.2d 335, 339 (Mich. Ct. App.

1990). The Michigan Supreme Court recognized, in Renny v. Port Huron Hospital,

398 N.W.2d 327, 338 (Mich. 1986), that there is a certain amount of “elementary

fairness” due an employee in an employment termination context. Renny identifies five

elements essential to “elementary fairness”: (1) notice; (2) the right and opportunity to

present evidence and arguments, and to rebut the opposition’s evidence and arguments;

(3) a formulation of issues of law and fact; (4) a rule of finality; and (5) other procedural

elements as may be necessary, determined by the particulars of the case, including the

“complexity of the matter in question, the urgency with which the matter must be

resolved and the opportunity of the parties to obtain evidence and formulate legal

contentions.” Id. Cooley’s Policy 201, and the faculty conference held pursuant to its

provisions, do not run afoul of the requirements in Renny: Branham received notice of

the hearing; she had an opportunity to present evidence (indeed, she was given extra

time to speak); the issue before the conference—whether the faculty concurred in

Branham’s dismissal—was clear; and Policy 201 explicitly states the binding nature of

the Board’s decision to uphold the result of the conference. As to the fifth element, as

the district court stated, “the key facts of [Branham’s] assigned class load, the validity

of that load under her contract, and her refusal to teach the assigned classes were beyond

genuine dispute.” The particulars of this case, where the facts were clear and

straightforward, where Branham requested and was granted additional time to speak and

permission to distribute voluminous materials to the conference, and where over a dozen

faculty members spoke at the conference, cause us to conclude that the fifth element of

fairness was met by the faculty conference process.

On appeal, Branham also argues that she is due federal due process rights that

she was not afforded during the faculty conference, contending that she should have

been allowed to call witnesses and offer additional evidence. She contends these rights

No. 10-2305 Branham v. Thomas M. Cooley Law Sch., et al. Page 8

spring from general constitutional principles and from Interpretation 405-4 in the

American Bar Association’s Standards, which states that “principles of fairness and due

process” are required during tenure termination proceedings. She relies on Mitchell v.

Frankhauser, 375 F.3d 477 (6th Cir. 2004), and Carter v. Western Reserve Psychiatric

Habilitation Center, 767 F.2d 270 (6th Cir. 1985), for these arguments. Both Mitchell

and Carter discuss what process is due to an employee whose contract specifies that

termination must be for cause, and both involve the termination, for cause, of public

employees. See also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985)

(establishing the due process rights for “tenured public employee[s]” that are discussed

in Mitchell and Carter). Branham was employed by a private law school. The

distinction is important. “Procedural due process guarantees apply only in the presence

of a ‘property’ or ‘liberty’ interest within the meaning of the Fifth or Fourteenth

Amendment.” Garner v. Michigan State Univ., 462 N.W.2d 832, 836 (Mich. Ct. App.

1990). As we have discussed, Branham’s employment contract provided for a finite

term of employment with a private employer. “Any right to continued employment

enjoyed by an employee of a private employer arises out of the employment contract.

Such contractual rights do not rise to the level of a protected property interest.” Id.

Thus, Branham, a private employee, is not due any of the additional federal due process

rights discussed in Mitchell and Carter.

For these reasons, Branham’s arguments concerning Cooley’s compliance with

the contractual termination process, and the sufficiency and fairness under law of that

process, do not succeed.

C. Remedy

Branham argues she is due economic damages for at least the period between her

dismissal and the faculty concurrence in that dismissal three years later. The district

court ruled that the only available remedy for Cooley’s contract breach was an equitable

remedy. We review that decision for an abuse of discretion. Talley, 194 F.3d at 765.

As we have discussed, Branham’s contract was for a one-year term of employment. The

contract also provided for a process governing the method by which she could be

No. 10-2305 Branham v. Thomas M. Cooley Law Sch., et al. Page 9

terminated prior to the end of this one-year term. LeDuc’s dismissal of Branham did not

comply with that process, and thus breached the employment contract. The district court

determined that Branham was due a remedy for this breach. As a remedy for the harm

caused by the breach, the district court ordered Cooley to comply with the process

provided by Branham’s employment contract. The aim of a contractual remedy is to put

the harmed party in the position in which she would have been absent the breach. Corl

v. Huron Casings, Inc., 544 N.W.2d 278, 280 (Mich. 1996). Here, the way to put

Branham in the position she would have been absent the breach was to provide Branham

with the faculty conference process; the district court ordered Cooley to provide the

process, and Cooley did. Had Branham prevailed at the faculty conference, it is certainly

possible that she could have subsequently recovered damages. But, because the faculty

found there was cause for dismissing Branham and concurred in LeDuc’s dismissal of

her, there remains no basis, under her contract, for a claim for damages.

The district court did not abuse its discretion in limiting the available remedy to

an equitable one.

D. Right to Jury Trial

Branham argues that the district court deprived her of her Seventh Amendment

right to a jury trial on the questions of good cause and damages. The right to a jury trial

may be waived. Fed. R. Civ. P. 38(d). In response to the district court’s request for

briefing on Branham’s right to a jury trial after it limited the available remedy to an

equitable one, Branham filed a “Jury Waiver” that stated she waived “trial by jury only

with respect to the trial herein scheduled for September 1, 2009.” As noted, a bench trial

was conducted beginning on September 1. At this bench trial, the district court

determined that Cooley had breached the employment contract and the district court

ordered Cooley to provide Branham the faculty conference process required by Policy

201.

Branham argues that her right to a jury trial on the question of good cause—a

question she alleges is outside the context of the September 1 trial—was not waived

because the “Jury Waiver” expressly limited the scope of the waiver to issues covered

No. 10-2305 Branham v. Thomas M. Cooley Law Sch., et al. Page 10

at that trial. Under Michigan law, “[w]here an employer has agreed to discharge an

employee for just cause only, its decision to terminate the employee is subject to judicial

review . . . . [but,] [b]y establishing an internal grievance procedure an employer may

avoid judicial review.” Renny, 398 N.W.2d at 335. Here, as the district court correctly

concluded, Cooley and Branham agreed to an internal grievance procedure in her

employment contract. Where an internal grievance procedure such as Cooley’s is in

place, and where it is followed, this Court does not have “the authority to second-guess

[Cooley’s] determination [of good cause].” Thomas v. John Deere Corp., 517 N.W.2d

265, 267 (Mich. Ct. App. 1994).

Had Branham prevailed at the faculty conference, she might have been due

damages, and, as she argues, she has not waived her right to a jury trial on the issue of

damages. But that is not what happened. She consented to a bench trial in which the

district court determined that Cooley had breached her employment contract. She was

granted a remedy by the district court for this breach. She received the remedy from

Cooley, in the form of a hearing and a faculty conference vote on her dismissal, as

prescribed by her contract. The faculty conference concurred in her dismissal; the Board

of Directors upheld this decision. As discussed above, Cooley’s termination process

complies with Michigan and federal law, and Cooley followed the prescribed process.

Because we conclude that the process by which she was removed was lawful, the

decision to dismiss Branham is final and binding. Renny, 398 N.W.2d at 338. She is left

without a claim for damages under her contract; thus, she is not due a jury trial on

damages.

Branham waived her right to a jury trial; at the bench trial she received the right

to a remedy, and Cooley provided that remedy. The binding result of that remedy left

Branham with no remaining claim, and thus no claim for which she might have a right

to a jury trial. With respect to the bench trial for which she waived her right to a jury

trial, we hold that Branham’s Seventh Amendment rights were not violated.

No. 10-2305 Branham v. Thomas M. Cooley Law Sch., et al. Page 11

IV.

Branham’s tenure does not provide additional privileges or protections other than

those specified in her employment contract. The process by which the faculty

conference reviewed and concurred in LeDuc’s dismissal of Branham was sufficient to

comply with Branham’s employment contract and federal and Michigan law. The

district court did not abuse its discretion in ruling that the remedy available to Branham

was limited to equitable relief. Branham’s Seventh Amendment right to a jury trial was

not violated. For these reasons, we AFFIRM the judgments of the district court.