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University of Louisville v. Britt

Court of Appeals of Kentucky

May 3, 2019



          BRIEFS FOR APPELLANT: Donna King Perry Jeremy S. Rogers Matthew Barszcz Louisville, Kentucky

          BRIEF FOR APPELLEE: Alton D. Priddy Thomas J. Schutz Louisville, Kentucky




         The sole issue in this interlocutory appeal is whether the Franklin Circuit Court erred in denying the University of Louisville's motion for summary judgment predicated upon its alleged entitlement to the protection of sovereign immunity on appellee's breach of contract claim. Because we are convinced that the contract at issue in this appeal is an implied contract which does not fall within the waiver of sovereign immunity set out in the Kentucky Model Procurement Act, Kentucky Revised Statute ("KRS") 45A.245, we reverse the decision of the circuit court.

         The facts are not in dispute. Appellee Britt was initially employed by the university in 2003 as a visiting assistant professor in Art History, a division of the Fine Arts Department in the College of Arts and Sciences. This initial appointment was a non-tenure track appointment for a single academic year. Thereafter, in October 2003, the dean of the College of Arts and Sciences wrote appellee stating his intention to recommend her appointment to a tenure-track position for a one-year term commencing in the summer of 2004. The letter stated that this initial tenure-track appointment was probationary, that she was subject to annual reviews for a period of five years, and outlined the appointment's "Teaching, Research, and Service Commitments," as well as referencing the "Redbook" which sets out conditions governing employment at the university and the college's Personnel Policy and Procedures. The letter also notified appellee that she could accept the terms of the recommendation by signing and dating her acceptance in the space provided and returning the signed acceptance to the university.

         Of particular pertinence to this appeal, the letter set out the following regarding tenure:

You will be subject to a pretenure review during the academic year 2006-07. Your review for tenure will be no later than the academic year 2009-10, with tenure to be effective July 1, 2011. If your review during the year 2009-10 results in a decision not to grant tenure, your contract for 2010-11 would be terminal. Termination of your appointment prior to that time would be subject to the provisions of the Redbook.

         Following her conversion to tenure-track, appellee received annual letters notifying her of the continuation of her appointment. However, after being reviewed for tenure in 2009, the dean of the College of Arts and Sciences recommended that appellee be denied tenure due to insufficient research and creative activity. The provost concurred in the dean's recommendation and denied appellee tenure. Appellee then filed a grievance which resulted in a hearing by the University Grievance Committee. The committee determined that appellee's workload from teaching and student advising/mentoring was excessive and deviated from the department's usual practice and custom. Although the grievance committee requested that the dean and provost reconsider the denial of tenure, neither decided to change their recommendations. The committee then asked the university president to intercede but, after a review of the matter, the president's designee declined to override the initial decisions of the dean and provost concerning tenure.

         Following the denial of tenure, appellee took a leave of absence in the fall semester of the 2010-2011 academic year and returned to teach in the 2011 spring semester. At the conclusion of that semester, appellee's employment with the university was terminated. She filed a complaint in Franklin Circuit Court on January 31, 2012, alleging that her denial of tenure resulted from gender discrimination; arbitrary and capricious action on the part of the university; and a violation of her rights under the equal protection clause. She also asserted a claim for breach of contract. In support of her breach of contract claim, appellee asserted that the initial recommendation letter and subsequent appointment letters constituted express written contracts with the university.

         In response, the university argued that there was no written contract sufficient to waive its sovereign immunity protection under the Model Procurement Code. The university also maintained that, even if the dean's recommendation letter and the provost's annual appointment letters could be construed to constitute written contracts sufficient to come within the waiver set out in the code, it would nevertheless be afforded the protections of sovereign immunity because appellee failed to file suit within the one-year period set out in KRS 45A.260.

         After conducting two hearings on the issue of whether an express written contract existed sufficient to waive the university's sovereign immunity shield, the circuit court entered an order denying the university's motion for summary judgment. The circuit court determined that the dean's initial tenure-track recommendation letter contained all the essential elements of a contract: 1) it appointed appellee to a one-year term; specifying her salary; 2) it required that she abide by an annual work plan describing the distribution of her efforts in teaching, research, creative activities, and service; and 3) contained a section allowing appellee to accept the terms of the recommendation. The circuit court also found that the parties intended the terms of the Redbook to be incorporated into appellee's employment agreement.

         On the basis of these factors, as well as the fact that appellee continued to be reappointed to her position every year, the circuit court concluded that appellee was "party to a valid and lawfully authorized written contract for employment with the University of Louisville" sufficient to fall under the waiver of sovereign immunity contained in the Model Procurement Code. The circuit court also determined that because appellee had been performing under the terms of her most recent appointment letter and was challenging her denial of tenure within one year of filing suit, her complaint was ...

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