John Trimble, Petitioner, v. Washington State University, Respondent, 140 Wash. 2d 88

Johnson, J. Dr. John Trimble, a former assistant professor at Washington State University (WSU), contests his denial of tenure. He alleges defects in the tenure review process that resulted in a breach of his employment contract, a breach of the implied covenant of good faith and fair dealing, and negligent misrepresentation. The trial court found Trimble had not established a prima facie case on any of his claims and granted

summary judgment in favor of WSU. The Court of Appeals affirmed in an unpublished opinion. Trimble v. Washington State Univ., No. 22022-9-II, 1998 WL 726481 (Wash. Ct. App. Oct. 16, 1998). We affirm. FACTS Trimble was hired as a tenure track assistant professor in the Department of Finance (Department) at WSU’s Vancouver campus in 1991. Because Trimble had over eight years teaching experience, the College of Business and Economics (College) offered to review him for tenure after three years rather than the usual six years.

Trimble was informed that obtaining tenure depended on teaching ability, research, and public service, and he would be reviewed on an annual basis until the tenure decision. Trimble accepted the offer and began work in September 1991. In 1992, ”at the end of his first year, Trimble was evaluated. The teaching evaluation scores for three of the four courses Trimble taught were below the College mean. Trimble’s overall merit rating for teaching was 3.5 on a scale of 5.0. The teaching evaluation noted that Trimble needed to improve his classroom performance.

Trimble’s evaluation for research stated his record for publications was “excellent”; however, there was concern for his scholarship, as Trimble had coauthored all of his articles rather than writing independently. Further, there were concerns expressed that Trimble’s articles had not been published in any top tier journals. Trimble’s second-year evaluation stated his teaching performance fell short of Department and College averages; Trimble’s merit rating for teaching was 2.7. The evaluation farther encouraged Trimble to seek publication in higher tier journals.

Shortly after his second-year performance review, Trimble began the formal application process for tenure. The WSU Manual (Faculty Manual) sets forth this process. The tenure review process includes the input of numerous people; however, these recommendations are not binding. The ultimate tenure decision is made by one person, the WSU Provost. Trimble commenced his tenure review process by submitting a tenure dossier that included his curriculum vitae, the annual reviews, his list of publications, and other relevant information. This process turned out to be very conflicted.

All five tenured Department faculty members voted in favor of granting tenure. However, the College Tenure Committee, comprised of representatives of other departments within the College, recommended against tenure, citing Trimble’s teaching scores and his coauthorship of articles in lower tier journals. The authority to resolve this conflict of opinion rested with the WSU Provost, who denied tenure.

In making this decision, the Provost relied on the College Tenure Committee’s recommendations, consulted with various tenured faculty members, reviewed Trimble’s teaching record from his former employer, reviewed Trimble’s teaching evaluations, and considered Trimble’s publication record. Trimble was notified of the denial of tenure on March 9, 1994. Trimble appealed this decision to the Faculty Status Committee on two grounds: (1) he was subjected to discrimination based on his age and sex; and (2) he should have received some preference as a Vietnam veteran.

Although the appeal was received several days after the 30-day appeal time period had ended, the Faculty Status Committee reviewed the tenure decision and found no evidence of discrimination. The Faculty Status Committee did, however, find a procedural error in the documentation of input from tenured faculty members and recommended allowing Trimble to resubmit his tenure application materials. The Faculty Manual requires that after a nontenured faculty has had his or her annual review, “[a] dated written

summary of the discussion of these results and of the implications shall be signed by each non-tenured faculty member and the department chair, or equivalent.” Faculty Manual at 37 (2 Clerk’s Papers at 220). The Faculty Status Committee was concerned this provision had not been properly complied with. A recommendation to set aside Trimble’s tenure denial was forwarded to the WSU President. On November 8, 1994, Trimble was informed that the President was not accepting the recommendation of the Faculty Status Committee and the tenure denial decision would stand.

The President found the Department chair had substantially complied with the requirements of the Faculty Manual and affirmed the decision to deny tenure. Trimble filed suit, claiming breach of contract, discrimination, and negligent misrepresentation. The trial court granted

summary judgment to WSU on all claims. The Court of Appeals affirmed and Trimble petitioned this court for review. We affirm. ANALYSIS The standard of review on

summary judgment is well settled. Review is de novo; the appellate court engages in the same inquiry as the trial court. Benjamin v. Washington State Bar Ass’n, 138 Wn.2d 506, 515, 980 P.2d 742 (1999).

Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Clements v. Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993); CR 56(c). All facts submitted and all reasonable inferences from them are to be considered in the light most favorable to the nonmoving party. Clements, 121 Wn.2d at 249. “The motion should be granted only if,, from all the evidence, reasonable persons could reach but one conclusion.” Clements, 121 Wn.2d at 249 (citing Wilson v. Steinbach, 98 Wn.2d 434, 656 P.2d 1030 (1982)). However, bare assertions that a genuine material issue exists will not defeat a

summary judgment motion in the absence of actual evidence. White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 (1997). I. Breach of Contract Trimble asserts three breach of contract claims:

(1) WSU failed to consider Trimble’s “entire record” in reviewing his tenure candidacy, as required by the terms of his employment contract;

(2) WSU failed to provide Trimble written documentation of input from members of his Department in violation of WSU’s Faculty Manual; and

(3) WSU did not review his tenure candidacy consistent with the WSU Faculty Manual. When an employer promises in writing specific treatment in specific situations, those promises may become an enforceable component of the employment relationship, even in an employment at will situation. Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 230, 685 P.2d 1081 (1984). “Once an employer announces a specific policy or practice, especially in light of the fact that he expects employees to abide by the same, the employer may not treat its promises as illusory.” Thompson, 102 Wn.2d at 230.

Trimble argues he was promised and denied specific treatment during his tenure review process. He argues the College had contractual duties to review his entire teaching record, to provide written documentation of faculty evaluations, and to use a flexible approach in its decision-making process in order to take into account the variations between job assignments and opportunities available on different WSU branch campuses. However, Trimble has not pleaded sufficient facts to prevail against a

summary judgment motion. The record establishes that Trimble’s Ml teaching and publication record was considered, that written faculty evaluations were not mandated by the Faculty Manual, and that Trimble’s location on the WSU branch campus was considered during tenure review. More than bare assertions that a genuine material issue exists are required to defeat a

summary judgment motion. See White, 131 Wn.2d at 9. A. Failure to Review “Full Record.” Even assuming the terms of the offer letter and various oral statements made established that tenure review would be based on Trimble’s, entire teaching and scholarship record, and assuming those statements became a part of the employment contract, Trimble still cannot prevail on this claim. The record contains evidence that this “full record” was considered and Trimble is not able to refute this.

There is testimony that Trimble’s curriculum vitae and record of publications written while at the University of Tennessee were considered in the tenure review process. Trimble asserts the Faculty Status Committee considered the early date for tenure consideration to be a “serious handicap,” which led to his being “unable” to put together a record of teaching improvement. However, this alone is insufficient to establish that Trimble’s entire record of teaching and scholarship was not considered. B. Written Documentation of Faculty Evaluations.

An employee manual in an employment at will situation provides specific obligations only if the language of the manual is specific. Drobny v. Boeing Co., 80 Wn. App. 97, 101, 907 P.2d 299 (1995). It is a question of fact as to “whether an employment policy manual . . . contains a promise of specific treatment in specific situations . . . .” Burnside v. Simpson Paper Co., 123 Wn.2d 93, 104, 864 P.2d 937 (1994). However, “if reasonable minds could not differ” in deciding this issue, it is “proper for the trial court to decide [it] ... as a matter of law.” Burnside, 123 Wn.2d at 105.

Trimble argues the Faculty Manual mandates written documentation from the tenured faculty members of Trimble’s Department. The Faculty Manual provides: [r]egular 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). Faculty Manual at 37 (2 Clerk’s Papers at 220) (emphasis added). While all tenured faculty members are to be involved in the annual evaluations, the emphasized clause vests discretion as to the manner of evaluation with the tenured members of a department. The clause does not promise that tenured faculty members will give their input in writing.

At best, written documentation is to be provided if the tenured faculty members believe it is appropriate. As this is a discretionary decision to be made by the tenured faculty, specific treatment was not promised. Therefore, no breach of the Faculty Manual was committed as a matter of law. C. Campus-wide Policy. The Faculty Manual recognizes that “variations in job assignments and opportunities among the campuses will require flexibility on a case-by-case basis in the weighing and application of promotion and tenure criteria.” Wash. State Univ.,

Interpretation of Faculty Personnel Policies & Procedures Within a Multicampus System, Mar. 14, 1991 Draft at 1 (2 Clerk’s Papers at 239). Due partially to his campus assignment in Vancouver, Trimble taught more video classes and had more preparations than average for a WSU Pullman based faculty member. Trimble claims this adversely affected student teaching evaluations, and required greater time by Trimble to prepare, thus decreasing the amount of time available for research and publication. The College viewed this issue as a purely speculative claim.

However, viewing the facts in the light most favorable to Trimble, it is reasonable that the more one devotes to scholarly activity the less time one can devote to being effective in the classroom. In fact, there has been recent scholarship devoted to this topic. However, even assuming the campus-wide policy promised specific treatment in specific situations, and that Trimble’s case merited “flexible” consideration due to the number and type of classes he taught, there is no evidence he was not given this “flexible” consideration.

Trimble’s annual reviews included information related to the number of video classes he taught and his work load. Also, the WSU Provost had Trimble’s full tenure package before him, which included these reviews. Therefore, Trimble has not alleged specific facts that would allow him to defeat a

summary judgment motion at this stage of the proceedings. II. Implied Covenant of Good Faith and Fair Dealing We need not decide whether a covenant of good faith and fair dealing is implied under these facts as Trimble simply realleges his breach of contract claim, which has already been found to be without merit. Washington courts have declined to broadly adopt such a covenant in an at-will contract. However, under some egregious circumstances an implied covenant of good faith may be appropriate. See Willis v. Champlain Cable Corp., 109 Wn.2d 747, 752-54, 748 P.2d 621 (1988).

But even assuming this is not a restatement of the breach of contract claim, such egregious circumstances are not presented here. III. Negligent Misrepresentation Where a person “ ‘in the course of his business, profession or employment . . . supplies false information for the guidance of others in their business transactions, [he is hable for losses caused by] their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.’ ” Hines v.

Data Line Sys., Inc., 114 Wn.2d 127, 150, 787 P.2d 8 (1990) (quoting Restatement (Second) of Torts § 552(1) (1977)). A defendant “ ‘(1) [must have had] knowledge of the specific injured party’s reliance; or (2) the plaintiff is a member of a group that the defendant seeks to influence; or (3) the defendant has special reason to know that some member of a limited group will rely on the information.’ ” Hines, 114 Wn.2d at 150 (quoting Haberman v. Washington Pub. Power Supply Sys., 109 Wn.2d 107, 162-63, 744 P.2d 1032, 750 P.2d 254 (1987)). Clear, cogent, and convincing proof is required for this claim to succeed.

Havens v. C&D Plastics, Inc., 124 Wn.2d 158, 180, 876 P.2d 435 (1994). Trimble alleges the chair of the Department failed to inform him that the offer of tenure consideration after three years, instead of the usual six, would present a serious handicap to obtaining tenure; Trimble was told he was “tenurable” at the time of hire. The record shows no representation to Trimble about how tenure review sifter three years, as opposed to six, would play out and there is no evidence that WSU misled Trimble on this matter. Thus, there was no “false information” supplied to Trimble.

Merely not discussing the downsides of various terms of employment in employment negotiations will not create a cause of action for negligent misrepresentation. Havens, 124 Wn.2d at 180-81. As to the statement on tenurability, Trimble has admitted he was aware he would not automatically be granted tenure. Therefore, we find he could not justifiably rely upon this representation. Generally, a college that hires a tenure track teacher hopes the person is “tenurable,” but this does not establish a promise to award tenure.

Even actual assurances of tenure do not create an expectation of continued employment when a written tenure system is in place. See Davis v. Oregon State Univ., 591 F.2d 493, 496 (9th Cir. 1978). Here, not only was a written tenure system in place, there was a statement only that Trimble was “tenurable” rather than an actual assurance of tenure. No promise of tenure can be inferred. CONCLUSION There is insufficient evidence to establish the claims asserted by Trimble.

Insufficient facts exist to support the claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent misrepresentation. The tenure process is a highly political one and is singularly unique to academia. However, we cannot undo a decision-making process that appears to, and does in fact, follow the terms of the employment contract where there is insufficient evidence to support the petitioner’s claims. Guy, C.J., Smith, Talmadge and Ireland, JJ., and Kennedy, J. Pro Tem., concur.

Trimble also alleges reverse discrimination; however, that claim was not accepted for review by this court. There is dispute as to whether this policy is a draft policy or not. However, we will assume for this analysis that it creates a part of the employment contract. Warious law review articles have addressed the effect of an over emphasis of scholarship at the expense of classroom effectiveness. See, e.g., Patrick J. Schiltz, Legal Ethics in Decline: The Elite Law Firm, the Elite Law School, and the Moral Formation of the Novice Attorney, 82 Minn. L. Rev. 705 (1998).