Daley v. Wesleyan University

63 Conn. App. 119

772 A.2d 725

ANTHONY DALEY v. WESLEYAN UNIVERSITY

(AC 18983)

Appellate Court of Connecticut.

Argued October 31, 2000.

Officially released May 1, 2001.

Landau, Mihalakos and Daly, Js. Jacques J. Parenteau, for the appellant (plaintiff).

Felix J. Springer, with whom was Kenneth W. Gage, for the appellee (defendant).

Opinion

MIHALAKOS, J.

The plaintiff, Anthony Daley, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant, Wesleyan University, in this action concerning the alleged breach of an employment contract. On appeal, the plaintiff claims that the court improperly (1) instructed the jury concerning his breach of contract claim and (2) excluded expert testimony relating to his scholarship. We affirm the judgment of the trial court.

The record discloses the following facts and procedural history. On January 26, 1987, the defendant offered the plaintiff a four year initial appointment as an assistant professor in its department of government. The following month, the plaintiff accepted the offer, which included an annual salary of $26,500. The position commenced on July 1, 1987, and was scheduled to terminate on June 30, 1991.

When the plaintiff began his employment, the defendant provided him with a manual titled, "The Blue Book," which included the bylaws of the faculty. It is undisputed that the employment contract between the parties incorporated the provisions of The Blue Book, and that The Blue Book's terms and provisions apply to every faculty member.¹

During the third year of the plaintiffs initial appointment, the tenured faculty of the department of government (tenured faculty) evaluated his performance.² Three basic criteria were used: Teaching, scholarship and colleagueship.³ Overall, the tenured faculty's evaluation of him was favorable; however, concerns were expressed about the plaintiffs level of scholarship. On or about July 2, 1990, the plaintiff received a letter from the chairperson of the department of government (chairperson), informing him of the favorable evaluation and that he had been reappointed to a second four year term, which would expire on June 30, 1995.⁴ The letter also conveyed the tenured faculty's concerns about his scholarship: "We are concerned that you take the time to revise your dissertation before getting too far along in your new project. It is important to complete the dissertation project in its revision to a book manuscript and sent [sic] out for review. The dissertation is a little unwieldy in length and focus. You have proposed revisions that will make the work more sharply focused.... We are confident that you will be able to make the necessary changes, and that the resulting book will be first-rate."

During the next three years, the plaintiff, in an effort to generate a quality manuscript, revised his dissertation by adding five new chapters and modifying three existing chapters. The plaintiff, however, declined offers from the tenured faculty to review his manuscript and to counsel him on how to improve his scholarship.

In May, 1993, the plaintiff, who was nearing the end of his sixth year as an assistant professor, applied for tenure.⁵ The plaintiffs application included his manuscript, the names of three professors outside of Wesleyan and a request that the department of government consult them when evaluating his scholarship.⁶ In response, the department of government solicited appraisals of the plaintiffs scholarship from nine professors outside of Wesleyan, including the three named in the plaintiffs application. By October 12, 1993, each of the nine professors had responded by letter. Generally, the appraisals of the plaintiffs scholarship were mixed. Several of the professors criticized the manuscript for its lack of clarity and organization.

The tenured faculty convened eight times to consider the plaintiffs application for tenure.⁷ Again, the three basic criteria were used: Teaching, scholarship and colleagueship.⁸ The tenured faculty conducted a lengthy and thorough review of the plaintiffs record, which included (1) all the published and unpublished material that the plaintiff authored and submitted,⁹ (2) the plaintiffs statement about his research, teaching and scholarship, (3) syllabi from the courses that the plaintiff taught, (4) evaluations of the plaintiffs teaching and (5) the nine letters of appraisal from professors outside of Wesleyan. At the conclusion of its deliberations, the tenured faculty voted eight to one not to recommend the plaintiff for tenure. On October 26, 1993, the chairperson notified the plaintiff of the decision.

On November 2, 1993, the chairperson wrote a letter to the vice president for academic affairs, detailing why the plaintiff was not recommended for tenure.¹⁰ The letter also contained and discussed excerpts from several of the appraisals that had been received from professors outside of Wesleyan. In sum, eight of the nine tenured faculty members of the department of government did not consider the plaintiff's scholarship to be of sufficient strength to merit tenure.

During the plaintiff's eighth and final year as an assistant professor, the department of government permitted him to apply for reconsideration of its decision. The tenured faculty unanimously found that the plaintiff's scholarly record failed to meet "the exceptional standards required for an eighth year reconsideration." Subsequently, the plaintiff exercised all of the procedural rights of review afforded to him under The Blue Book. The decisions of the tenured faculty were affirmed, and the plaintiff's employment ended on June 30, 1995.

On December 5, 1995, the plaintiff brought the action that is the subject of this appeal. On January 11, 1996, the plaintiff filed a four count amended complaint, alleging, inter alia, that the defendant had breached its employment contract with him. Additional facts and procedural history will be provided as necessary.

I

The plaintiff's first claim consists of several related challenges to the jury instructions concerning his breach of contract claim. The plaintiff alleges that the court improperly instructed the jury to find in his favor on his breach of contract claim only if he proved by a preponderance of the evidence that the defendant's decision denying his application for tenure was made arbitrarily, capriciously or in bad faith. The plaintiff also argues that (1) the court, in its instructions, failed to "`unlink' what could be considered two separate contract claims" and that (2) neither of those contract claims required him to prove that the defendant acted arbitrarily, capriciously or in bad faith to prevail. We disagree.

In part I A, we will examine the plaintiff's amended complaint and determine (1) the scope of his contract claims, (2) which facts properly were alleged in support of those claims and (3) of those facts, which were placed at issue by virtue of the evidence in the case. In part I B, we determine, given our conclusions in part I A, that the plaintiff did have the burden of establishing, inter alia, that the defendant acted arbitrarily, capriciously or in bad faith.

A The Amended Complaint and the Evidence

"A court's charge is not to be examined in a vacuum. Rather, it is to be viewed in the context of the factual issues raised at the trial." (Internal quotation marks omitted.) State v. Austin, 244 Conn. 226, 237, 710 A.2d 732 (1998). Because "[f]acts found but not averred cannot be made the basis for a recovery"; Malone v. Steinberg, 138 Conn. 718, 721, 89 A.2d 213 (1952); accord Tedesco v. Stamford, 20 Conn. App. 51, 57, 563 A.2d 1046 (1989), rev'd on other grounds, 215 Conn. 450, 576 A.2d 1273 (1990); "[i]t is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint." (Internal quotation marks omitted.) Matthews v. F.M.C. Corp., 190 Conn. 700, 705, 462 A.2d 376 (1983). Consequently, "[t]he plaintiff was entitled to have the jury correctly, fairly and adequately instructed in accordance with the matters and law in issue by virtue of the pleadings and the evidence in the case"; Faulkner v. Reid, 176 Conn. 280, 281, 407 A.2d 958 (1978); and "[t]he trial court need charge only on those points of law that arise pursuant to the claims of proof advanced by the parties in their pleadings." Drummond v. Hussey, 24 Conn. App. 247, 248, 588 A.2d 223 (1991); accord Nesbitt v. Mulligan, 11 Conn. App. 348, 351, 527 A.2d 1195, cert. denied, 205 Conn. 805, 531 A.2d 936 (1987); see Goodmaster v. Houser, 225 Conn. 637, 648, 625 A.2d 1366 (1993) ("[t]he court should, however, submit to the jury all `issues as outlined by the pleadings and as reasonably supported by the evidence'"). Accordingly, our analysis begins with an examination of the pleadings.

The second count of the amended complaint consists of the plaintiffs allegation that the defendant breached its contract with him. The facts alleged by the plaintiff as constituting the breach are contained in paragraphs eighteen and nineteen. They state as follows: "18. The University has breached the contract of employment between itself and Daley, including the implied covenant of good faith and fair dealing, by violating the specific and implicit promises made to Daley with respect to the methods to be employed by the University to determine his eligibility for tenure.

"19. More specifically, the University failed to make a good faith effort to determine the quality of Daley's work by ignoring the opinions of those qualified to judge the merits of Daley's work. Instead, the University relied upon the recommendations of the Government Department which were biased, inexpert, and inaccurate." (Emphasis added.)

"[T]he interpretation of pleadings is always a question of law for the court .... [Our Supreme Court has] pointed out that [t]he burden [is] upon the pleaders to make such averments that the material...