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TACKA v. GEORGETOWN UNIVERSITY

November 30, 2001

PHILIP TACKA, PLAINTIFF,
V.
GEORGETOWN UNIVERSITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Oberdorfer, District Judge.

  MEMORANDUM AND ORDER

The plaintiff in this case, Philip Tacka, a professor of music, is suing Georgetown University for defamation and breach of contract in connection with a failed application for tenure. Tacka's tenure application was voted upon and denied after an outside evaluator claimed that he had engaged in plagiarism. Georgetown ultimately found the allegations of plagiarism to be unfounded, and granted Tacka tenure the following year.

The university seeks summary judgment on the breach of contract claim, arguing that it adhered to procedures in the Georgetown University Faculty Handbook, and Tacka suffered no compensable loss even if a breach did occur. Defendant argues that summary judgment should also be granted on the defamation claim because (1) plaintiff consented to the tenure committee's review of all outside evaluations, giving rise to an absolute privilege; and (2) Georgetown enjoys a qualified, common interest privilege to review those evaluations and relay them to other campus entities. For the reasons set forth below, defendant's motion for summary judgment is denied.

The following material facts are not in dispute. Tacka began teaching at Georgetown in 1980, shortly after completing his doctoral studies at Catholic University. He was selected for a tenure-track position in 1994 and first applied for tenure in late 1997. On February 29, 1998, while his tenure application was pending, Tacka was notified by a source outside the university that a charge of plagiarism had been made against him by Dr. Jill Trinka, a non-tenured professor at the University of North Texas. Trinka had been retained by Professor Elizabeth Prelinger, the chair of Department of Art, Music and Theater, on behalf of the departmental rank and tenure committee, to provide an external review of Tacka's scholarly work in connection with his tenure application. Trinka accused Tacka of plagiarism in her tenure evaluation, claiming substantial portions of an article he had published in Studia Musicologica had been plagiarized from a book written by Professor Michael Mark, then at Catholic University. Tacka had taken several classes from Dr. Mark there, and Mark had served as Tacka's adviser. Tacka drew the purportedly plagiarized article from the introductory chapter of his own doctoral dissertation, which Mark had supervised.

Trinka's evaluation was sent to Prelinger in February 1998. On March 4, 1998, Tacka, alerted to the plagiarism charge, sent the first in a series of written communications to Prelinger, requesting that his application for tenure be delayed and the plagiarism charge be investigated in accordance with the procedures set forth in the faculty handbook. Despite these requests, the departmental rank and tenure committee twice considered and denied Tacka's application, and the university rank and tenure once considered and denied Tacka's tenure application — all without Tacka ever being given the chance to defend himself against the charge in person — before Prelinger referred the plagiarism charge to the Research Integrity Committee on July 22, 1998. That Committee issued a report on December 22, 1998 exonerating Tacka of plagiarism. The Committee, as well as a subsequently-convened Grievance Panel, both criticized the University for failure to adhere to its own procedures.

A party is entitled to summary judgment if the pleadings, depositions, and affidavits demonstrate that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See FED. R.CIV.P. 56(c). All reasonable inferences from the supporting records should be drawn in favor of the plaintiff, as the nonmoving party, although plaintiff must evince the existence of a genuine issue of material fact. A material issue is one capable of affecting the substantive outcome of the litigation; a genuine issue is one supported by sufficiently admissible evidence such that a reasonable trier-of-fact could find for the plaintiff. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

I. Count One: Breach of Contract

Plaintiff claims that Georgetown breached the contract created by the Faculty Handbook when it failed to adhere to the handbook's procedures, which require allegations of academic dishonesty to be referred to the Research Integrity Committee.

The University agrees that the faculty handbook creates an enforceable contract. See McConnell v. Howard Univ., 818 F.2d 58, 62-63 (D.C.Cir. 1987). However, according to defendant, there is no breach because neither the handbook nor common practice at Georgetown University require suspension of a tenure review process when an allegation of academic dishonesty, such as plagiarism, is received. But Tacka has also alleged that the University breached its contract with him when the Department addressed the plagiarism allegation internally in connection with his application for tenure before forwarding it to the Research Integrity Committee, an allegation premised on a specific provision of the faculty handbook.

While the handbook does not explicitly require the suspension of a tenure review process when an allegation of plagiarism is received, the handbook may be fairly read to require an allegation of plagiarism to be promptly submitted to the Research Integrity Committee. Adherence to the proper procedure likely would have resulted in suspension of the tenure review process, the second aspect of the breach alleged by plaintiff. See Memorandum from the Georgetown University Research Integrity Committee to Dorothy Brown, Vice President 9 (December 22, 1998) ("The Research Integrity Committee should have become involved at an earlier date and the application for tenure and promotion should have been put on hold throughout the duration of the investigation."). Instead, the departmental rank and tenure committee "agreed to pursue the matter, providing Professor Tacka with the opportunity to respond to the [accusation of plagiarism]." See Rank and Tenure Meeting for Professor Philip Tacka, Department of Art, Music & Theater 4 (June 1, 1998).

Appendix E, Section C of the faculty handbook, which calls for allegations of academic dishonesty to be referred to the Research Integrity Committee, is the exclusive, specific provision for resolving allegations of academic misconduct. Under general principles of contract law, a specific provision in a contract must be given due weight in the context of the contract as a whole. See GLM P'ship v. Hartford Cas. Ins. Co., 753 A.2d 995, 999 (D.C. 2000), quoting Bolling Fed'l Credit Union v. Cumis Ins. Soc., Inc., 475 A.2d 382, 385 (D.C. 1984) (a "contract should be construed as a whole `so as to give meaning to all of the express terms'").

Defendant argues there is no breach because the complaint was "eventually" forwarded to the Research Integrity Committee after a delay from February 1998 to July 1998, and the handbook does not require an allegation to be submitted to the Committee within any particular period of time. A common sense reading of the faculty handbook precludes the notion that an unresolved charge of plagiarism would be allowed to linger indefinitely, particularly in light of handbook provisions requiring the Committee's prompt action. A member of the Committee who initially receives a complaint "shall immediately transmit the allegation to the Chairperson"; the Chairperson "shall promptly supply a copy" to the Executive Vice President; the respondent must be informed of the particulars of the complaint within ten days; a subcommittee must be convened within three days; and a recommendation must be issued within 30 days. Faculty Handbook at 93-94.

The University acknowledges that the Research Integrity Committee and Grievance Panel were critical of the failure to follow proper procedures, but argues these views should not affect the court's analysis. While the Committee's report and the Panel's decision are not controlling, their conclusions are germane and helpful in construing the faculty handbook in the absence of unambiguously clear provisions. Our Court of Appeals has instructed that: "It is undoubtedly correct that ambiguous contract terms `must be construed in keeping with general usage and custom at the University and within the academic community.' Accordingly, we may look to the decisions of the Grievance Panel and Grievance Code Committee to gain an understanding of the issues before us. . . ." Katz v. Georgetown Univ., 246 F.3d 685, 689 (D.C.Cir. 2001).

Here, the faculty handbook is clear in requiring allegations of plagiarism to be addressed through the exclusive mechanism of the Research Integrity Committee. "This code applies to any person holding a University appointment or otherwise employed by the University who is alleged to have engaged in misconduct in research, including sponsored research. This code applies to all campuses and subdivisions of Georgetown University." Faculty Handbook at 93. The handbook is less clear — and is in fact silent — on the issue of whether a tenure review must be halted when an allegation of plagiarism is received. In these circumstances, the Research Integrity Committee's and Grievance Panel's interpretation are relevant, under Katz, to construe the terms of the contract created by the Faculty Handbook in accordance with the University's understanding, and create a question of ...


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