On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3198-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Sapp-Peterson and Messano.
Plaintiff Claire Eckstein appeals from the May 26, 2006 order granting defendant Fairleigh Dickinson University (FDU) summary judgment and dismissing her complaint. She contends that the judge misapplied the appropriate summary judgment standards, "sat as the trier of fact," resolved disputed facts against her, and "made conclusions . . . that were beyond the role of the court on summary judgment."
We have considered plaintiff's contentions in light of the record and applicable legal standards. We affirm.
When reviewing a grant of summary judgment, we employ the same standards used by the motion judge. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). We decide first whether there was a genuine issue of material fact; if not, we then decide whether the motion judge's application of the law was correct. Id. at 230-31.
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. [Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).]
We therefore assume the non-moving party's version of the facts as true and give that party the benefit of all favorable inferences available in the record. Id. at 536.
The record reveals that on July 19, 1999, plaintiff was offered the position of associate professor of accounting, commencing August 23, 1999, at FDU's Silberman College of Business Administration. Plaintiff's resume in support of her application indicated that she had served as an assistant professor at Touro College since 1997, as a visiting assistant and adjunct assistant professor at New York University from 1991 to 1995, and as an assistant professor at Hofstra University from 1986 to 1991. In his letter offering the position to plaintiff, Dean Paul Lerman wrote:
In accordance with the specifications as described in the Faculty Handbook, please be advised that demonstrated evidence of research publication and other activity related to the field of accounting, demonstrated high-level of teaching effectiveness, and service to the University are necessary for consideration of tenure.
Plaintiff accepted the position, was provided with a copy of the 1996 Faculty Handbook (the handbook), and commenced her first semester of instruction at FDU.
The provisions governing tenure for faculty members were contained in two relevant portions of the handbook. The first, found at Article VIII, Section 4.2, entitled "Probationary Period," provided:
A faculty member who completes a probationary period of fourteen (14) academic semesters of continuous active full-time contractual service shall have tenure effective with the first day of contractual service of the next academic semester (Fall or Spring) following the completion of such probationary period . . . .
Section 4.3 of Article VIII of the handbook set forth how a faculty member's prior academic experience would be considered in the computation of time accrued toward tenure. It provided:
The probationary period shall include all previous service at other regionally accredited institutions of higher learning which would have led to tenure at those institutions, except that such credit for prior service at other institutions shall in no case exceed a total of three (3) years. If the prior service claimed by the faculty member does not meet the forgoing standards, a determination of how many, if any, years of such service may be counted as part of the probationary period shall be made through the regular faculty personnel review process. Such determination shall be made during the faculty member's first year of service at the University. The crediting of prior service may be waived or reduced at the request of the faculty member if such prior service was in a significantly different institutional setting, involved significantly different responsibilities, or was prior to receipt of the terminal degree. Such waiver or reduction of prior service to be credited shall be agreed upon in writing between the faculty member and the University at the time of initial appointment. [Emphasis added.]
Read in pari materia, the handbook's provisions permitted a new professor to attain tenure after seven years of teaching at FDU; however, assuming arguendo the professor had three or more years of prior, applicable service at another institution, she would only have four years in which to obtain tenure.
Despite the handbook's explicit statement that any waiver or reduction in the application of prior service credit should be initiated by the faculty member and "agreed upon" by FDU and the professor in writing "at the time of initial appointment," it is undisputed that no such written request was submitted and no agreement was reached in plaintiff's case. Instead, FDU and plaintiff embarked upon the routine evaluations performed as to any new associate professor. The Departmental Peer Review Committee (DPRC) reviewed plaintiff's performance on November 29, 1999, near the end of her first semester of teaching, and voted unanimously to recommend the continuation of plaintiff's contract for the 2000-2001 term, as did the College Personnel Review Committee (CPRC). On February 10, 2000, Lerman signed the FDU "Faculty Action Sheet" already executed by the committee chairpersons; it indicated that plaintiff was credited with zero years of prior service.
In his February 14, 2000 cover letter to plaintiff, Lerman enclosed his recommendation and that of the CPRC; he requested plaintiff "contact [him] immediately" if there was "a misstatement of fact or if [she] ha[d] any questions." Despite the faculty action sheet's notation to the contrary, Lerman's recommendation memo that accompanied his cover letter to plaintiff clearly indicated that plaintiff had "[three] [y]ears [p]rior [s]ervice." In his deposition, Lerman claimed that the contradiction was an "inconsistency" and noted that ...