The opinion of the court was delivered by: OBERDORFER
A September 30, 1986 Memorandum and Order (copy attached) stated the facts of this case as they had developed at that time and granted the University's motion to dismiss counts 1, 2 and 3 in plaintiff's complaint because they were time barred. The order denied the University's motion to dismiss count 4 which alleged that the Board of Trustees violated the University's Faculty Code when it failed to adopt the recommendation of the Appeals Panel of the Grievance Committee that plaintiff be promoted to professor even though neither the Faculty Personnel Committee, the Hearing Committee of the Grievance Committee nor the Appeals Panel had determined that plaintiff merited promotion. It is the essence of plaintiff's position on count 4 that when the Grievance Committee and the Appeals Panel recommend promotion of a person to professor, the Board is obligated to authorize the promotion. Plaintiff relies on the alleged fact (assumed to be true solely for the purpose of this pending motion) that in the past the Board has uniformly approved the promotion recommendations of the Hearing Committee which have been approved by the Appeals Panel.
Defendant's motion on this issue must prevail on the authority of the Faculty Code provision that:
When . . . the appeal process has been completed and a final decision has been rendered, the record of the case, including the decisions of the Hearing Committee and the Grievance Committee, shall be transmitted to the President and the Board of Trustees for final disposition.
Faculty Code, Procedures for the Implementation of the Faculty Code, E.5. at 26. The only plausible construction of this provision is that it contemplates that the Board will make the final decision, informed, but unfettered, by the decisions of the subordinate committees. The Hearing and Appeals Committees are authorized only to hold hearings, and provide a report and recommendation. Faculty Code, sections E.3.c.8 and E.4.d. Otherwise there would be no reason to send to the Board the record along with the decisions of the committees. Moreover, if the Code intended to reduce the Board to a rubber stamp, the Code would have omitted the Board from the grievance cycle, or used some other word than "disposition" to define its role. Nor does the assumed fact that the Board had approved all previous recommendations of this sort establish that it had allowed its power of "disposition" to atrophy. Indeed, both of the committees observed, and plaintiff recognized in the recent hearings, that this case was unique. Moreover, the Code provided clear authority for the Board's decision not to approve the promotion recommendation presented to it. The Faculty Code specifically requires that "promotions . . . shall be made solely on the basis of merit . . . ." Faculty Code, section IV.C. The promotion recommendations conspicuously failed to find that plaintiff merited promotion.
Plaintiff nevertheless persists with the contention that the Board's action in not approving the promotion recommendation was in bad faith. Insofar as this contention relates to the Board's failure to accept the recommendation of the Grievance Committees, it is frivolous. The Board has no legal duty to approve automatically the recommendation of the Grievance Committees. Insofar as the contention relates to the action of the Board in remanding the matter to the Faculty Personnel Committee, the contention is the subject of counts 5 and 6 of the amended complaint discussed below. The fact that on one occasion more than 10 years ago the defendant promoted to professor a faculty person, Ms. Bielski, who had been the victim of legally cognizable sex discrimination without a finding that she merited promotion is not material evidence that the Board's decision here was either discriminatory or in bad faith. Count 4 fails to state a claim on which relief can be granted. Accordingly, an accompanying order will grant defendant's motion for a summary judgment dismissing count 4 of the amended complaint.
Counts 5 and 6 have been the subject of discovery, an exchange of comprehensive pretrial briefs, and three extended pretrial conferences. This effort has yielded a much clearer picture of the contentions of the parties and the extent to which the facts relevant to the issues as so clarified are undisputed. Indeed, it may well be that no material facts remain in dispute so that the controversy can be resolved without a trial.
Plaintiff's pretrial brief states without contradiction by defendant, among other things, that:
1. A contract has existed between plaintiff and defendant throughout all times relevant.
2. The Code has been and is a key part of the contract.
3. The Code provides that promotions would be made solely on the basis of merit, or at least would not be denied on grounds other than merit.
4. The Code provides that promotions shall be made without regard to unlawful discrimination, that is, without regard to race, color, religion, sex, national origin, or other considerations prohibited by law.
5. The Code provides that each school or college and department shall establish and publish criteria on which promotion will be based.
6. The Code provides that each school, department or college shall establish and publish the procedures followed for making decisions concerning promotions.
7. The Code provides that each department or school shall establish procedures for periodically informing faculty members whether they are making satisfactory progress toward promotion.
Plaintiff's Pretrial Brief at 3-5 (filed February 5, 1987) (citations omitted).
Criteria of the school at which plaintiff taught provided that:
Significant scholarly merit may be evidenced by a single work of considerable importance or by a number of papers published, particularly in refereed journals.
The George Washington University School of Engineering and Applied Science, Criteria for Promotion and Tenure of Faculty and Research Staff at 1. The criteria further provided that:
To qualify for the rank of Professor, a person must possess outstanding ability and recognized standing in his field. Although a balance of teaching and research is highly desirable, an outstanding teacher or an outstanding researcher should be equally qualified for this rank.
Id. at 2 (emphasis added); see also Criteria for Hiring and Promotion of Full-time Faculty in the Department of Electrical Engineering at 3. These criteria plainly require that to be promoted to professor the candidate must be either an "outstanding" teacher or an "outstanding" researcher, preferably both.
Nor is there any material dispute about proffers in defendant's pretrial brief that:
17. In 1971, plaintiff requested a sabbatical leave from defendant. In his request, plaintiff stated that he would spend 50% of his time working on a book that he planned to publish.
18. In 1972, plaintiff was granted the sabbatical, which took place from September 1, ...