Notre Dame Lawfully Fired Tenured Professor

 

By Samantha J. Wood October 8, 2019
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​The University of Notre Dame did not breach its contract by dismissing a tenured professor for "serious cause" after he misused grant funds, the 7th U.S. Circuit Court of Appeals held.

In 2009, the university suspected the plaintiff, one of its tenured professors, of abusing grant funds that he received for research purposes. After investigating the matter, the university notified the plaintiff that it would seek his termination for "serious and deliberate misconduct" on the basis that he purchased equipment other than for purposes identified in his research proposals; used equipment for personal use; stored pornographic images on computers that were improperly purchased using grant funds; and exposed the university to notorious and public scandal. The university notified the plaintiff that a hearing committee would convene to review and ultimately decide whether termination was appropriate.

In the meantime, the university invited the plaintiff to participate in an informal resolution process with two faculty members. However, the process was not fruitful and the plaintiff's case proceeded to a hearing.

In April 2010, a hearing committee was convened. The committee, which included a faculty member who was part of the informal resolution process, along with several others, sustained the charges against the plaintiff and unanimously agreed to dismiss the plaintiff for "serious cause," as defined by his faculty contract.

Federal criminal charges were also brought against the plaintiff. The plaintiff pleaded guilty and admitted to purchasing equipment with grant funds that were not part of the approved grant or project and using such equipment for both personal and professional purposes.

Thereafter, the plaintiff sued the university for breach of his faculty contract. First, the plaintiff asserted that the university violated the contract's procedural requirements by allowing a faculty member to participate in both the informal resolution process and the hearing committee's decision.

In making this argument, the plaintiff relied on the contract language, which stated "The executive committee also elects an alternate … to take the place of any member elected to the hearing committee who must recuse himself or herself because of bias or interest, including participation in the informal resolution process." The plaintiff argued that because the faculty member participated in the informal resolution process, he should have been excluded from participation in the hearing committee.

The plaintiff also asserted that the university breached its contract on the basis that the committee's findings did not meet the definition of "serious cause." Serious cause was defined in the contract as serious and deliberate personal or professional misconduct, continual serious disregard of the university's character, and conviction of a felony.

[SHRM members-only toolkit: Involuntary Termination of Employment in the United States]

The plaintiff prevailed in the district court, and the university appealed. The 7th Circuit reversed, finding in favor of the university. First, the court held that the proper reading of the contract was that while participation in the informal resolution process may lead to bias or interest requiring recusal, it did not necessarily do so. Recusal was not automatic without a showing of a substantial risk of or actual bias or interest.

In reaching this conclusion, the court read the contract as a whole. Other provisions, which also addressed recusal in the decision-making process, were much more explicit in requiring recusal. The clause at issue, however, only required recusal for participation in the informal resolution process if there was an actual showing of bias or interest. As there was no evidence of bias or interest, the court concluded that there was no procedural breach.

Finally, the court held that the university had serious cause to dismiss the plaintiff. As "serious cause" included conviction of a felony and the plaintiff had been convicted of a felony arising out of his conduct, the court held that his termination was lawful.

Collins v. Univ. of Notre Dame du Lac, 7th Cir., No. 19-2559 (July 12, 2019).

Professional Pointer: This case reminds employers of the importance of maintaining clear policies and contractual language regarding appropriate grounds and procedures for dismissal.

Samantha J. Wood is an attorney with Lindner & Marsack SC, the Worklaw® Network member firm in Milwaukee.

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