On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5105-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2008
Before Judges Rodríguez and Waugh.
Plaintiff Dr. Ezegozie Eze, who was denied tenure as an assistant professor in the Business School at Rowan University, appeals the dismissal with prejudice of his complaint against defendants Rowan University (University), a "public entity" within the meaning of N.J.S.A. 59:1-3 and the "State" within the meaning of N.J.S.A. 59:13-2, and the Dean of its Business School, Dr. Edward Schoen. The complaint alleged breach of express contract; breach of implied contract and the implied covenant of good faith and fair dealing; and several theories of recovery sounding in tort. The complaint was dismissed for failure to comply with the notice provisions of the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1 to -10, and the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to :12-3. On this appeal, Eze appeals only the dismissal of his claims sounding in contract, arguing that he substantially complied with the notice requirements of N.J.S.A. 59:13-5. We agree and reverse.
We glean the following facts from the record. Eze was hired by the University in September 1999 as an assistant professor in the Business School's Department of Management and Information Systems (Department). It was a temporary, non-tenure track position for academic year 1999-2000. He was then rehired as an assistant professor, again in a non-tenure track position, for the academic years 2000-2001 and 2001-2002.
During the academic year 2001-2002, Eze applied for and was appointed as an assistant professor in a tenure track position for the 2002-2003 academic year. Pursuant to N.J.S.A. 18A:60- 8(b), even though Eze's first three academic years at Rowan had been in non-tenure track positions, his prior service as a full-time faculty member counted toward tenure. See Dugan v. Stockton State Coll., 245 N.J. Super. 567, 573 (App. Div. 1991).
On June 5, 2003, Schoen recommended Eze for reappointment, which would give him a tenured position. At the same time, Schoen pointed out to Eze what he perceived to be certain problems with his performance. In September 2003, Schoen urged Eze to postpone filing his tenure application from fall 2003 to spring 2004 to provide him the opportunity to raise his student evaluation scores. Eze was also advised to consider taking a year off to "reset" the tenure clock. In March 2004, Schoen wrote to Eze confirming certain guarantees with respect to his position if he took the year off, but explaining that the decision to do so was solely up to him. Eze chose not to take a break in service and applied for reappointment with tenure.
On April 15, 2004, the Department's Recontracting and Tenure Committee (Department Committee) issued its recommendation that Eze be recontracted at the rank of assistant professor with tenure. Of the six members of the Department Committee, three voted to recontract, two abstained from voting, and one voted not to recontract. The members of the Department Committee issued reports explaining their various positions and the reasons for them.
Eze's application for tenure and the Department Committee's recommendation were forwarded to the University Senate Tenure and Recontracting Committee (University Senate Committee), which recommended that Eze not be recontracted. The vote was one vote for recontracting, nine against, and one abstention. There were majority and minority reports explaining the positions of each grouping.
The report of the University Senate Committee and related documents were forwarded to the University's President, Dr. Donald Farish, and the University's Provost, Dr. Helen Giles-Gee. In May 2004, Giles-Gee wrote a letter to Farish, stating that she would not recommend Eze for tenure.
On June 10, 2004, Eze met with Farish to discuss his tenure application and his concerns about the process. Eze gave Farish a twelve page document, dated June 7, 2004, setting forth his position. By letter dated June 24, 2004, Farish advised Eze that he had reviewed his file in depth, considered the points made by Eze in his submission, and concluded that he did not find any unfairness in the procedures nor errors in judgment with respect to the negative recommendations concerning Eze's tenure application. He stated that he agreed with those who had evaluated Eze's file and that he did not recommend tenure because the data provided to him failed to support a positive determination.*fn1
On August 12, 2004, Eze's union, the American Federation of Teachers (AFT), filed a grievance on Eze's behalf, alleging that there had been union contract violations in connection with Eze's candidacy for tenure. On September 4, 2004, Farish wrote to the AFT denying the grievance and rejecting the alternative remedy sought, which was a break in ...