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Kakaes v. George Washington University

January 31, 2002

APOSTOLOS K. KAKAES, APPELLANT
v.
GEORGE WASHINGTON UNIVERSITY, APPELLEE



Appeal from the Superior Court of the District of Columbia (CA-12090-93) (Hon. Ann O'Regan Keary, Trial Judge)

Before Schwelb, Farrell, and Reid, Associate Judges.

The opinion of the court was delivered by: Schwelb, Associate Judge

Argued January 3, 2002

This case is before us for the second time. See Kakaes v. George Washington Univ., 683 A.2d 128 (D.C. 1996) (Kakaes I). It arises from the refusal of George Washington University (the University) in 1993 to award tenure to the plaintiff, Professor Apostolos K. Kakaes, who had been on a "tenure accruing" track at the University since his appointment in September 1987 as an Assistant Professor in the Department of Electrical Engineering and Computer Science (EECS). Following our remand of the case to the Superior Court in Kakaes I, a non-jury trial was held before that court. After hearing extensive testimony which established that the University had failed to provide Dr. Kakaes with timely notice, as required by the Faculty Code, of its decision to deny tenure, and after further proceedings relating to the issue of relief, the judge declined to order the University to grant Dr. Kakaes tenure. The judge held instead that Kakaes was entitled to an award of damages in the amount of $75,018, as well as costs and interest. Dr. Kakaes appeals, contending that the contract between the parties required the University to grant him tenure and that the amount of damages awarded by the judge was inadequate. We affirm.

I.

Most of the historical facts relevant to the dispute between Dr. Kakaes and the University are set forth in our opinion in Kakaes I. Section IV.A.3.1.c of the University's Faculty Code, which constitutes the contract between the parties, see Kakaes I, 683 A.2d at 129 n.1, provides in pertinent part that

[a] faculty member of the rank of assistant professor or higher who will not be granted tenure at the end of the final year of his or her maximum term of appointment shall be so notified in writing no later than June 30 preceding the year in which his or her appointment will expire. . . . Any such faculty member who is not so notified shall acquire tenure at the end of the term. Kakaes I, 683 A.2d at 130.

On June 28, 1993, the University's vice president, Roderick French, wrote a letter *fn1 to Dr. Kakaes advising him that "you will not be granted tenure at the conclusion of your current appointment." Id. at 131. In the same letter, however, Vice President French further advised Dr. Kakaes:

The President and I are in the process of transmitting the report of the Executive Committee to the Board of Trustees for its consideration. You will be notified of the outcome as soon as possible. Id.

In a separate letter written on the same date to the Chairman of the EECS department, Vice President French wrote that

[b]y so informing [Dr. Kakaes], the question of [his] ultimate tenuring or termination remains to be resolved.

On October 22, 1993, Dr. Kakaes brought suit against the University for breach of contract, alleging that he had not been provided the timely notice required by the Faculty Code of the decision to deny him tenure. *fn2 The University filed a motion for summary judgment, claiming that Vice President French's letter of June 28, 1993, constituted the notice contemplated in the Faculty Code. The judge who was then assigned to the case granted the University's motion. On appeal, however, this court reversed, holding that an impartial trier of fact could reasonably find that the University had not complied with the Faculty Code, and that summary judgment was not warranted. Kakaes I, 683 A.2d at 135-36. We remanded the case to the trial court for further proceedings consistent with our opinion.

On remand, as we have noted, a different trial judge found that the University had breached its contract with Dr. Kakaes, but she declined to order the University ...


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