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Eckstein v. Fairleigh Dickinson University


April 7, 2008


On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3198-03.

Per curiam.


Argued December 5, 2007

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 at the time, FDU had "a practice [of] having faculty decide what they wanted to bring in or not bring in," regarding prior service credit.

On February 28, 2000, FDU's provost, Peter Falley, wrote to plaintiff advising that she was being "reappoint[ed] as an associate professor of accounting for the 2000-2001 academic year." Noting that plaintiff's student evaluations were below "college and thematic group averages," Falley urged plaintiff to improve and to become active in "[her] department and college." The next day, Falley sent a memo to Lerman noting "[t]here appears to be some question as to how many years of prior service [plaintiff] wants to claim toward the probationary period of tenure," and directed Lerman to resolve the "issue . . . before the end of this academic year."

On March 8, 2000, plaintiff sent a memorandum to Lerman as follows:

This memo is being sent as a confirmation of my decision not to carry forward prior years of teaching experience.

The starting date of my tenure clock should be in the Fall of 1999. If you have any questions, please contact me.

Lerman wrote "approved" on the memorandum, initialed it, and dated it April 28, 2000; apparently he simply placed it in plaintiff's file.

On October 9, 2000, the DPRC conducted its second-year review of plaintiff and unanimously voted for her continuation at FDU. On November 8, 2000, the CPRC did the same. In his November 13, 2000 recommendation, Lerman once again noted that plaintiff was being credited with three years prior service. The faculty action sheet completed for this review initially indicated "0" as to years of prior service, but that was crossed out and replaced with "3." In his deposition, Lerman acknowledged that his secretary most likely made this change in an effort to reconcile the two forms.

Falley's December 11, 2000 letter to plaintiff advising her of her reappointment was the first communication from FDU's administration after its receipt of plaintiff's March 8, 2000 request for a waiver of prior service. In his letter, the provost advised, "[s]ince you have received credit for three years of prior service, you have only one more year in which to meet the criteria for tenure." Despite this clear statement regarding her prior service credit being completely contrary to her earlier request, plaintiff did not lodge any objection with Lerman or anyone else at FDU. Instead, she proceeded to apply for tenure prior to the beginning of her third academic year.

In his October 2, 2001 review, plaintiff's departmental chairperson noted, "[t]his is [plaintiff's] third year at FDU. She had requested, when first joining the University, that the three years' prior service at other institutions not be credited. It was granted nevertheless against her will. That means that [plaintiff] must now be considered as if this is [y]ear [s]ix of a seven-year probationary period and therefore for tenure . . . ." He recommended plaintiff for reappointment and tenure. However, on November 28, 2001, the CPRC denied plaintiff tenure by a vote of three to two.

On January 15, 2002, plaintiff applied for a medical leave of absence for the spring semester. Three days later, on January 18, 2002, interim dean, Leo J. Rogers, Jr., who had replaced Lerman, agreed with the CPRC vote and declined plaintiff's tenure request. The faculty action sheet used in this round of evaluations listed plaintiff's years of prior service as two. On March 4, 2002, Falley wrote to plaintiff advising that he could not recommend tenure in light of the recommendations of the CPRC and Rogers. He noted that "[a]lthough [plaintiff] ha[d] a sufficient record of scholarship and university service," there were "inconsistencies in [plaintiff's] student evaluations." Falley told plaintiff her "2002-2003 contract w[ould] be a terminal one."

Pursuant to Section X of the handbook, on March 14, 2002, plaintiff addressed a grievance letter to Falley detailing her concerns about the process that led to the denial of her tenure. She noted that one of her two peer evaluations was not considered by the CPRC, that the CPRC was comprised of a small quorum resulting in a split vote, and that her fall 2001 student evaluations were not even considered. However, nowhere in the grievance letter did plaintiff object to being credited with three years prior service.

In April 2002, plaintiff met with Falley, CPRC Chairperson John Skarbnik, and Richard Chaplin, her faculty advisor, to attempt to resolve her grievance. In her deposition, plaintiff recalled only that the meeting concerned her "teaching effectiveness." No discussion apparently took place regarding the three years of service time that had been credited to plaintiff.

On April 17, 2002, Falley wrote plaintiff a three-page letter regarding her grievance and addressed every point plaintiff had raised. Most importantly, for purposes of this appeal, Falley noted,

I recognize that, because you brought prior credit toward the probationary period for tenure, you have only had a short period of time to demonstrate your effectiveness as a teacher here. However, as we discussed in our meeting, you have an extensive and varied record of prior teaching. In light of that long experience, there is no reason to assume that a longer probationary period at FDU would have resulted in any significant change in your teaching methods and in your ability to deal with or reevaluate our accounting undergraduates.

Falley refused to alter his original decision to deny tenure and informed plaintiff that she could "submit a formal request for review by the University Grievance Committee [the UGC]. . . ."

By letter of April 24, 2002, plaintiff did so. After being told the hearing would be delayed until the fall, plaintiff wrote to the chair of the UGC asserting that the central issue of her grievance was the CPRC's failure to review all of her peer evaluations, some of which had apparently been misplaced and were later found. Plaintiff felt that the CPRC's refusal to reconsider her tenure application was an "invalid procedure" in light of the missing documents. Once again, plaintiff did not raise any issue with respect to her prior service credit.

In her October 15, 2002, submission to the UGC, plaintiff argued for reconsideration of the tenure denial based upon the missing peer reviews. She also addressed the issue of her prior service credit as follows:

During my second interview, I met with Dean Paul Lerman and Associate Dean Ronald Heim. Dean Heim suggested that it would be to my benefit to accept the title of Assistant Professor. Waiver of prior service would dramatically increase the odds of being granted tenure. I found the suggestion to be reasonable and agreeable, and appreciated the consideration accorded to me by Professor Heim. Dean Lerman was quite upset with the suggestion, and quickly overruled it. When I received a reappointment letter the following year that mentioned my acceptance of prior service, I responded in writing requesting that prior service be waived. Dean Lerman denied my request, although no written documentation or reason for denial were provided. [Emphasis added.]

The UGC met and determined that the CPRC should have reconsidered its decision after the missing evaluations were found. It recommended that FDU's president "return the case to CPRC for reconsideration," and "reevaluate [FDU's] position regarding the waiver of previous service." The new interim provost, Kenneth Greene, referred the matter back to the CPRC and requested that "the reevaluation [for tenure] [] begin as quickly as possible, since [plaintiff] is currently in the terminal year of her contract."

The CPRC convened on November 6, 2002 for reconsideration of plaintiff's tenure application and voted 7-1 to grant her tenure. The new dean of the business school, David Steele, and Greene both recommended plaintiff for tenure and the matter was scheduled for a vote by FDU's Board of Trustees (the Board) at its March 2003 meeting. On February 10, 2003, the Educational Affairs Committee of the Board recommended approval of plaintiff's application for tenure, but because plaintiff was still listed as a full-time professor on Touro College's website, the Board agreed to delay further action pending resolution of that issue.

However, in the interim, on February 7, 2003, a professor at the University of Georgia wrote Steele and accused plaintiff and fellow FDU faculty members Philip Siegel and Gary Kleinman of plagiarism involving three articles. Plaintiff had cited these publications on her tenure application as evidence of her scholarly pursuits. Plaintiff responded to the plagiarism accusation by essentially denying that she had any knowledge of the underlying research materials supporting the publications in question and claimed her contribution was primarily editorial assistance on the articles. Steele responded on February 24, 2003 by appointing a special committee to investigate the plagiarism complaint. On March 5, 2003, the Board resolved to "rescind its recommendation . . . that [it] award a contract of tenure." It recommended "denial of tenure pending the outcome of an investigation . . . with the proviso that the Committee reconsider [plaintiff] for tenure after investigation and with the further proviso that the Committee remand [plaintiff's] application to the [CPRC] for a tenure recommendation before reconsidering [plaintiff] for tenure."

In May 2003, the special committee appointed by Steele determined that the articles had indeed been plagiarized by one of plaintiff's colleagues, but it exonerated plaintiff of the charges and found her participation in the authorship of the pieces to have been primarily editorial in nature. Pursuant to the Board's request, Greene advised plaintiff that her tenure application would once again be reviewed by the CPRC to "ascertain whether they continue to stand by their original recommendation in light of the plagiarized publications on your record of scholarly activity." Plaintiff responded to Steele on May 26, 2003, writing that she was "extremely disturbed" to hear that a new review of her tenure status was to occur and claimed that it was a violation of the handbook and "her rights as a [p]rofessor."

Ultimately, the CPRC re-convened and voted again; four members voted against plaintiff's tenure application, two members abstained, and one member did not vote. The committee report reflects that "[t]he [four] committee members voting against tenure were of the opinion that [plaintiff's] publication record without the articles co-authored with Kleinman and Siegel was not sufficient to justify tenure." This sentiment was echoed in the re-evaluation furnished by Rogers.

On June 11, 2003, the Board formally denied plaintiff's application for tenure because of the "lack of a sufficient record of scholarly publications." By letter of June 13, 2003 to plaintiff, Greene confirmed the Board's decision to deny her tenure because "[her] record of scholarly publications, when stricken of the three plagiarized publications and related presentations, is insufficient to merit tenure." The letter reiterated that because plaintiff had not obtained tenure, her employment was terminated at the conclusion of the spring 2003 semester.

On July 9, 2003, plaintiff again filed a grievance of the denial of her tenure application; however, on July 22, 2003, FDU President J. Michael Adams responded that the requested grievance was denied because the handbook did not provide for UGC review of a "decision of the Board of Trustees" which was "final." Plaintiff was not offered a contract for a fifth year of teaching at FDU; the effective result was her discharge from the faculty.

On November 25, 2003, plaintiff filed her complaint against FDU alleging: (1) age discrimination in violation of the New Jersey Law Against Discrimination (the LAD), specifically N.J.S.A. 10:5-12(a); (2) gender discrimination in violation of the LAD; (3) breach of contract; (4) breach of the implied covenant of good faith and fair dealing; and (5) promissory estoppel. FDU answered and after discovery was completed moved for summary judgment.

On May 26, 2006, the parties appeared for oral argument on FDU's motion. In an oral opinion issued that day, the motion judge concluded initially that plaintiff had failed to prove any breach of contract by FDU. She noted first that under the express provisions of the handbook, specifically subsection 4.3, plaintiff was not contractually entitled to a waiver of prior service time. The judge then reviewed the various correspondences and concluded that FDU had provided plaintiff with "the outward manifestation that in fact she was not getting that waiver" of her prior service time. The judge rejected plaintiff's claim that Lerman's April 2000 note was an approval of plaintiff's request, and noted:

The fact that an application for this type of letter of waiver was taken by the Dean, circled and put in a file does not a contract make. Our contract law establishes that for there to be a clear contract, an offer and acceptance, that acting upon that contract and enforcing it, it has to be the objective manifestation of an agreement between the parties as to what it meant . . . .

In that context then, I cannot find nor . . . consider this to be an enforceable contract, not to include her time. So in that sense, it was a piece of paper. It sat in [a] file. There was no outward manifestation that [FDU] was waiving that prior service as part of her probationary period.

The judge went on to find plaintiff failed to establish a valid claim for promissory estoppel because there was no evidence that FDU made a "clear and definitive promise" to plaintiff regarding the waiver of her prior service credit. As to plaintiff's discrimination claim, the judge found, "there's simply nothing in this case to establish . . . that [FDU] [acted as it did] because of her age or gender." The judge granted FDU's motion, dismissed the complaint in its entirety, and this appeal ensued.


Plaintiff argues that the motion judge erred by failing to recognize the existence of disputed material facts, or else resolved such disputes against her, contrary to the well-recognized standards governing consideration of a summary judgment motion. Plaintiff concedes that the "waiver issue" is essentially the lynchpin of her complaint, i.e., that she was granted a waiver of her prior service credit and thus had seven and not four years to obtain tenure. If FDU indeed had waived her prior service, she argues, then she was not offered another contract after four years at FDU, not provided with the full seven years of probationary time, and this constituted a breach of her contract with the university. Furthermore, she contends that since FDU's non-discriminatory reason for termination was the expiration of her "tenure clock," if a fact finder could find the university breached its agreement, then her LAD allegations should also survive summary judgment.

FDU claims that plaintiff failed to establish a viable breach of contract claim because she was not contractually entitled to a waiver and her conduct and the record demonstrate her understanding of this fact. FDU also submits that plaintiff failed to exhaust the internal administrative remedies available to her through the handbook. Lastly, FDU asserts that plaintiff failed to establish viable claims of age or sex discrimination under the LAD.

We disagree with plaintiff that the motion judge failed to appreciate the existence of disputed facts or that she improperly resolved any such disputes against plaintiff. We accept arguendo that the record reflects a clear desire on plaintiff's part to seek the waiver of her prior service time and the fact that she conveyed this to certain supervisors at FDU. However, the record is also undisputed that it was not until March 8, 2000 that plaintiff requested the waiver in writing. Plaintiff argues that certain notations on various documents evidence FDU's decision to grant her waiver request. In particular, she argues that Lerman's handwritten notation on her March 8, 2000 written request at least raises a material factual dispute regarding the university's acceptance.

First, we note that pursuant to the terms of the handbook, the burden was squarely upon plaintiff to request the waiver, which she could only seek "if [her] prior service was in a significantly different institutional setting, involved significantly different responsibilities, or was prior to receipt of the terminal degree." Although plaintiff now argues FDU had the burden and failed to demonstrate that any of her prior service at other institutions did not fit into these categories, we disagree based upon the clear language of the handbook. The record is bereft of any evidence that plaintiff's prior service at the other institutions actually fit into these categories of exemption.

More importantly, it is clear from the language of the handbook that any waiver or reduction of prior service time required a written agreement between plaintiff and FDU. Therefore, plaintiff's requests, whether made informally and orally, or made for the first time in writing in March 2000, cannot create any contractual rights until FDU agreed to waive the prior service time.

It is a fundamental principle of contract law that there must be an outward manifestation of assent for an offer to be transformed into a binding agreement. The Supreme Court has held, "[i]t is requisite that there be an unqualified acceptance to conclude the manifestation of assent . . . ." Weichert Co. Realtors v. Ryan, 128 N.J. 427, 435-36 (1992) (quoting Johnson & Johnson v. Charmley Drug Co., 11 N.J. 526, 539 (1953)). We have said that "an acceptance must be 'unequivocal' or . . . 'positive and unambiguous.' The acceptance 'must comply exactly with the requirements of the offer.'" Looman Realty Corp. v. Broad St. Nat'l Bank of Trenton, 74 N.J. Super. 71, 82 (App. Div. 1961), certif. denied, 37 N.J. 520 (1962) (internal citations omitted).

Plaintiff did not receive an "unequivocal," "positive," or "unqualified" acceptance of her request from FDU's administration. She points to the contradictions between Lerman's cover memoranda and the faculty action sheets as evidence of material disputes in this regard. Most importantly, she argues Lerman's handwritten "approval" in April 2000 reflects FDU's acceptance of her waiver request.

However, plaintiff admitted in deposition testimony that she never received a response from FDU on her waiver request of March 8, 2000 and was not sure it had even been acted upon. In fact, the record reveals that the first official reaction conveyed to plaintiff was Falley's December 2000 letter to her in which he specifically told her she was being credited with three years of prior service, and, therefore, was required to obtain tenure within the next year.

We also agree with defendant that plaintiff's actual conduct thereafter evidences knowledge of the fact that her request for a waiver had been denied. For example, as suggested by Falley, plaintiff applied for tenure consideration as required under the terms of the handbook. When that was initially denied, in her statement of appeal to the UGC, plaintiff acknowledged that "Dean Lerman denied [her waiver] request, although no written documentation or reason for denial was provided."

In short, there was no disputed fact that, if resolved in favor of plaintiff, could have led a reasonable fact finder to the conclusion that FDU had accepted her request for a waiver of prior service credit and thereafter breached its contract of employment by refusing to extend further offers for annual positions to plaintiff. "[W]hen the evidence 'is so one-sided that one party must prevail as a matter of law,'" summary judgment is entirely appropriate. Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986)). Because we reach this result, we need not consider FDU's claim that plaintiff failed to exhaust her administrative remedies.

It follows that in the absence of any agreement between plaintiff and FDU waiving her prior service credit, plaintiff's claim of a violation the implied covenant of good faith and fair dealing can not prevail. Wade v. Kessler Institute 172 N.J. 327, 340-41 (2002). As to the claim of promissory estoppel, we agree that it was appropriately dismissed essentially for the reasons expressed by the motion judge. R. 2:11-3(e)(1)(A).


At oral argument, plaintiff conceded that her claims for violations of the LAD were essentially premised upon her claim that FDU breached her contract, and, hence, based its refusal to offer her another yearly contract upon a pretext. Since we conclude that FDU did not breach any contractual rights of plaintiff, our analysis of her LAD claims may be summarized in short order.

We acknowledge that plaintiff, a sixty-seven year old woman at the time of her last employment with FDU, can establish a prima facie case of age and gender discrimination under the LAD. However, FDU asserts that all decisions as to faculty hiring and promotion are left to the discretion of the educational institution and that in plaintiff's case, it had a legitimate, nondiscriminatory reason for not offering plaintiff tenure, i.e., the insufficiency of her record of scholarly publications. It submits that plaintiff has shown no specific facts demonstrating unlawful, discriminatory animus and that the motion judge correctly recognized that plaintiff's discrimination allegations were without merit.

We have noted that "[w]hen a decision to hire, promote or grant tenure to one person rather than another is reasonably attributable to an honest even though partially subjective evaluation of their qualifications, no inference of discrimination can be drawn." Chou v. Rutgers, 283 N.J. Super. 524, 539-40 (App. Div. 1995), cert. denied, 145 N.J. 374 (1996) (citations omitted); see also Dixon v Rutgers, 110 N.J. 432, 449 (1988). Therefore, defendant advanced a legitimate non-discriminatory reason for refusing to offer plaintiff tenure. Under the LAD analytic framework, in order to defeat summary judgment, "[o]nce the employer produces evidence of a legitimate reason for the [action], the presumption of discrimination disappears, and the burden shifts back to plaintiff to prove that the employer's reasons were a pretext for discrimination." DeWees v. RCN Corp., 380 N.J. Super. 511, 523-24 (App. Div. 2005)(citations omitted).

Plaintiff's argument was that the refusal to offer her another annual contract was a violation of her contractual rights, and thus evidence of the discriminatory animus FDU bore towards her. However, as we have noted, plaintiff failed to demonstrate proof that FDU breached any of her contractual rights, and she has failed to marshal any other evidence of discriminatory intent. Therefore, the dismissal of her LAD claims was proper.



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