Murphy v. Duquesne Univ. of Holy Ghost

745 A.2d 1228

Cornelius F. MURPHY, Jr., Appellant, v. DUQUESNE UNIVERSITY OF the HOLY GHOST, Appellee.

Superior Court of Pennsylvania.

Argued April 21, 1999.

Filed December 29, 1999.

Reargument Denied March 10, 2000.

Philip A. Ignelzi, Pittsburgh, for appellant.

Martha H. Munsch, Pittsburgh, for appellee.

Before EAKIN, SCHILLER and BROSKY, JJ.

EAKIN, J.:

¶ 1 Cornelius F. Murphy, Jr., appeals from the order granting summary judgment against him and in favor of Duquesne University of the Holy Ghost on his breach of contract claim. Upon careful review of the record and the applicable law, we affirm the trial court's order.

¶ 2 The University first hired Professor Murphy to teach law in 1966. Once he was granted tenure, the parties executed a tenure contract, reviewable annually, which incorporates by reference the University Statutes and Faculty Handbook. Generally, a faculty member with tenure is entitled to annual renewal of employment until retirement or age 70, whichever occurs first. The Statutes and the Handbook contain provisions by which tenure is forfeited. Pertinent to this action is the following:

K. Termination of Tenure

1. Forfeiture for misconduct or for incompetence.

A faculty member's tenure may be forfeited by serious misconduct or for professional incompetence. In the event of proposed termination for reasons of serious misconduct..., tenured faculty shall be entitled to a hearing by a committee of the University Grievance Committee for Faculty (see Statute VII, B.1.d.ii). The member shall be informed before the hearing by the President in writing of facts upon which such proposed termination is based and shall have the opportunity to present a defense. The member and the University may be represented at the hearing by counsel. There shall be a record made of the proceedings by electronic or other appropriate recording process and the same shall be made available to the parties.... The committee shall advise the faculty member and the University President of its decision in writing within 30 days from the date of the termination of the hearing.... If the President terminates the affected faculty member either by approval of the committee recommendation or by his/her own decision, following a committee recommendation of retention, the affected faculty member may have the final decision of the President reviewed by the Board of Directors.

Faculty Handbook, Section 5.K.1, at 12. The University's Sexual Harassment Policy

in effect at the relevant time provides in pertinent part:

• Unwelcome sexual advances, requests for sexual favors, and other verbal or physical contact of a sexual nature constitute sexual harassment when:

• Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's initial employment, advancement or education;

• Submission to or rejection of such conduct by an individual is used as the basis for academic decisions affecting that individual;

• Such conduct has the purpose or effect of substantially interfering with an individual's academic or professional performance or creating an intimidating, hostile or offensive employment, educational, or living environment.

¶ 3 Bonita Lynch filed a sexual harassment claim against Professor Murphy in the fall of 1991. Ms. Lynch was a student in one of Professor Murphy's classes, a course required of all first-year students. Ms. Lynch filed her complaint with the University's Affirmative Action Officer, Dr. Judith Griggs, alleging Professor Murphy subjected her to unwelcome physical contact, attempted to have a sexual relationship with her, and implied her education would suffer if she did not cooperate with his advances. She also alleged Professor Murphy assisted her with a law school project assigned by another professor.

¶ 4 Dr. Griggs conducted an investigation; on December 3, 1991, she submitted her report to the University President, John E. Murray. Dr. Griggs' report concluded Professor Murphy had created a hostile environment for Ms. Lynch and provided her with improper assistance with her classwork.

¶ 5 By letter dated December 5, 1991, President Murray notified Professor Murphy that he accepted the conclusions of Dr. Griggs' report, and stated Professor Murphy would be permitted to complete his teaching assignments that semester, but then would be suspended until June 1, 1992. As a condition of reinstatement, Professor Murphy was to seek professional counseling with the goal of providing assurances his behavior would not be repeated. The letter also warned:

Should any future manifestation of such unacceptable behavior occur even outside the classroom with relation to any Duquesne student or other member of the Duquesne Community, or should other evidence of similar past behavior with students or members of the Duquesne Community be forthcoming, the University will immediately review such information and take appropriate action.

Letter from President Murray to Professor Murphy, 12/5/91, at 3 (emphasis added).

¶ 6 In June, 1992, it was determined Professor Murphy complied with the University's disciplinary directives; he was reinstated to his tenured position and completed the 1992-93 school year without incident. The parties renewed their tenure contract for the 1993-94 academic year, but before the term began, the University learned of allegations involving Professor Murphy and four other students, in addition to Ms. Lynch. The essence of these allegations was that Professor Murphy engaged in a pattern of approaching selected female students and trying to create social relationships with them. The students' perceptions of these encounters made them uneasy to the point they tried to avoid Professor Murphy and elective courses he taught. While two of these students had been interviewed by Dr. Griggs in 1991, the University reopened its investigation and placed Professor Murphy on leave of absence with pay. The University subsequently notified Professor Murphy it was considering terminating his status as a tenured professor, but advised him he was entitled to a hearing before the University Grievance Committee for Faculty (USFG), and informed him of eight specific allegations on which their consideration was based.

¶ 7 Professor Murphy requested the hearing. The Faculty Handbook provides that at such hearing, the University had the burden of proving by clear and convincing evidence that Professor Murphy was guilty of serious misconduct. The hearing committee was to issue findings, a report and a recommendation to the University President, who would make the final decision; the President was not bound to accept the Committee's recommendation.

¶ 8 The hearing took two days. Professor Murphy was represented by counsel, who called witnesses and submitted exhibits on his behalf, and cross-examined witnesses, including the four students who alleged Professor Murphy engaged in improper conduct toward them. Bonita Lynch chose not to testify, as her lawsuit against the University was pending in civil court; the Committee did not have subpoena power. Ms. Lynch's story was presented through other witnesses; Professor Murphy testified their relationship was consensual, but admitted he provided academic assistance to her. He denied giving similar assistance to other students. Both sides submitted post-hearing briefs and proposed findings of fact.

¶ 9 The Committee found Professor Murphy provided substantial and improper assistance to Ms. Lynch. The Committee characterized his assistance as quid pro quo in the context of sexual harassment. With respect to the other students, the Committee found Professor Murphy engaged in a pattern of behavior by which he abused his role as professor and created a hostile environment, which they concluded was a form of sexual harassment. The Committee chastised Professor Murphy for his behavior: "The UGCF is offended by Professor Murphy's past conduct of repetitive approaches to his women students and dismayed by his apparent reluctance to comprehend the ethical and legal principles involved." Findings and Conclusions of Grievance Committee for Faculty, 12/2/94, at 10. The Committee concluded, however, that the University failed to meet its burden of proof with respect to six allegations, and concluded insufficient grounds existed for termination. The Committee based this recommendation against termination solely as "an application of the doctrine of laches." Id. The Committee reasoned that much of the evidence was available to the University when Ms. Lynch first filed her complaint, and Professor Murphy had since undergone suspension and counseling.

¶ 10 The University President accepted certain substantive findings of the committee but rejected the application of laches. In a letter to the Chairman of the committee, President Murray emphasized "[t]he directive to Professor Murphy to pursue counseling was expressly designed to forfend future misconduct for current students and was expressly not designed as a sanction for past misconduct." Letter of January 4, 1995, at 11. President Murray concluded: "The University has, by abundantly clear and convincing evidence, established more than sufficient grounds to support the finding of serious misconduct by Professor Murphy and consequent termination of Cornelius F. Murphy, Jr. as a tenured professor at Duquesne University." Id.

¶ 11 By letter dated January 4, 1995, President Murray terminated Professor Murphy as a tenured professor. Professor Murphy requested the University Board of Directors review the President's decision. Upon review, the Board affirmed the President's decision.

¶ 12 This lawsuit followed, initially filed in federal court. Professor Murphy asserted claims under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a), and the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 951 et seq. He also pleaded a claim for breach of contract, contending the University...