*1 v. JOHN AKHTAR, Plaintiff IQBAL Appellant, M. WETERING VAN al., Defendants et DE E. Respondents. No. 81-10. Dec. 1981.
Submitted 3, 1982. Decided March 642 P.2d *2 Boschert & Boschert, Boschert, Rosemary argued, Billings, for plaintiff appellant. H.
LeRoy Schramm, argued, Helena, defendants and respondents.
MR. JUSTICE HARRISON delivered the opinion Court.
M. Akhtar initiated this action Iqbal denial of his following (EMC). at Eastern Montana / He sought reinstatement with tenure and violations of backpay, claiming (2) sections 49-3-101(1), 49-3-201, MCA; Title IV Civil Act of Rights section U.S.C. 2000c and equal protection rights II, secured Article Section *3 4, of Con- stitution of the State of Montana and the Fourteenth Amend- ment to the United The States Constitution. District Court found the denial of Dr. Akhtar’s tenure resulted application from the defendants’ exercise of academic and did judgment not discriminate Dr. Akhtar either or against individually as a member of a that decision, class. From Dr. Akhtar appeals. is an in assistant of professor Department of EMC, Economics where has since taught appoint- his ment there citizen September 1975. He is naturalized States former United and a citizen Pakistan. Lyallpur, Akhtar received PhD degree agricultural his economics' from Texas A&M 1967. Prior to his University appointment one State at at Middle Stand appellant taught year EMC one State University. semester Idaho University tenure con- according Appellant applied tract in October 1978.-He submitted his procedure application to the unit rank and tenure After consideration, committee. college positive made a recommendation
the committee tenure committee. rank and January Dean of the 1979, McRae, 15, or Robert
On about recommenda- unfavorable forwarded an School, Liberal Arts application regarding appellant’s to the Col- tenure tion copy lege of that recom- and a and Tenure Committee Rank Larry Academic Jones, W. Vice-President. mendation sent a favorable and Tenure Committee The Rank regarding application appellant’s tenure recommendation vice-president 1, on or about March 1979. the academic appellant’s applica- vice-president The academic forwarded vice-president’s negative recommenda- the academic tion with Wetering on or about March tion to President John Van de 1979. president not to of his decision informed April on 1979.
award May president from Pro- received a letter 1, 1979, On Gaghan, Department Harry of Social Chairman of fessor presi- department, requesting on behalf Sciences, protesting the use to reconsider his decision and dent student instrument. evaluation ap- appellant’s president requested a reevaluation excluding
plication from evaluation test the student consideration. May his reevaluation 16,1979, Dean McRae submitted
On indicating appellant’s application Jones, to Vice-President remained unfavorable. Dean McRae’s recommendation May vice-president reevalua- submitted his 17,1979, On negative president recommen- tion to the which reaffirmed president tenure to then reaffirmed his denial of dation. The appellant. are before this Court:
Several issues rights pro- May appellant’s of due claim denial appeal? perly be heard *4 guaranteed process appellant when due so,
2. If was denied he was denied tenure? in that guarantees denied equal protection
8. Was appellant situated can- similarly other treated than differently he was at EMC? for tenure and promotion didates receive into in refusing err the District Court 4. Did a25, Exhibit No. on testimony and hear plaintiff’s evidence of Dr. in the tenure matter committee from an appeals report Hurley? Jerome to allow refusing err
5. Did the District Court Dr. Evans union activities regarding of Maury testimony other Akhtar and faculty? the rebuttal err in to allow refusing
6. Did the District Court of Dr. testimony Jay Kirkpatrick? due claim may
Respondents argue appellant’s process not at the be heard on since was raised properly appeal time to trial An which is for the first presented court. issue cannot be considered and untimely Court Supreme Northern Plains v. Board Natural Resources appeal. 666. The (1979), Mont., 594 P.2d St.Rep. question raised the due then, process before is whether us, below. issue sections violations of alleges
Appellant’s complaint (2) Title of the 49-3-101(1), 49-3-201, MCA; Rights and VI Civil the Four Act of 1964; guarantees and equal protection of the States teenth to the Constitution United Amendment of the Article State II, Section Constitution and makes never amended Montana. was complaint reference to due violations. process extensively refer to due does, however, process
Appellant And, of law. trial conclusions proposed both his brief and his 9: “Plain- in its of Fact No. Finding the District states said against regard tiff that he was discriminated alleges the same pro- that he was not accorded application other afforded tection and due process indication members . . .” We find this sufficient level to consider at the trial of the due issue presence it on appeal. were violated rights claims his due process hearing notice (1) prior not given adequate
because
*5
(2)
application,
of
denial
his tenure
the decision to
deny
arbitrary
capricious
tenure was
on
founded
a
appellant’s equal protection rights.
violation of
question
appellant
The first
to be answered is whether
ahad
property
liberty
process pro-
or
interest which is accorded due
tection
the Fourteenth Amendment to the United States
Constitution
II,
and Article
Section
17,
the Montana Con-
Regents
(1972),
stitution. Board
v. Roth
564,
408 U.S.
92
(1976),
2701,
Appellant request claims the denial of his tenure violates a liberty by imposing stigma impairs interest a on him which his employment. freedom to obtain other He makes no claim of defamatory being publicized false or statements him about grounds connection with his tenure evaluation but his claimon the sole fact tenure was denied. supra, Supreme
In Roth, the United States Court con- university sidered the case of an untenured teacher for a hired one-year provided fixed term. State statute tenure status was only years year-to-year employment. available after four process rights Nevertheless, Roth claimed denial his due given hearing prior because he was no notice or to his nonretention. liberty
The Court found Roth had not been denied a
interest
imposed any stigma
because the state had not
on him which
deprived
employment opportunities
him of other
nor had it
impinged
“good
reputation,
integrity.”
name,
honor or
408
U.S. at
92
573,
2707,
S.Ct. at
More v. Wood U.S. permanently employed S.Ct. 2074, 48 L.Ed.2d a policeman discharged pretermination hearing. without a city He claimed a due violation because of a ordinance grounds discharge permanent which limited employees inefficiency, negligence, unfitness or failure to perform employee’s duties. Court said the fact that an other employers him less attractive made discharge of a interest. a liberty not alone deprivation at EMC not receive tenure fact did While the it does other employment, not him in his pursuit will benefit a liberty him of deprive such him as to stigma a place interest. interest. property also claims protected in- an out a such
Roth, guide determining sets supra, In the Court held: Roth, terest. in a benefit, person
“. . To interest . have a property for it. must more than an need or have abstract desire clearly He of it. expectation He must have more than unilateral *6 instead, claim of entitlement to it...” must, legitimate have a at at L.Ed.2d at The source 577, 92 2709, 33 408 U.S. S.Ct. 561. of an entitlement interest be establishing may a property in be understandings existing found state law or rules and Roth, 577, and his at tween individual 408 U.S. employer. 92 at L.Ed.2d at 2709, S.Ct. 33
In Roth’s 408 case, v. Sinderman Perry companion 593, 570, 92 33 a teacher had 2694, taught U.S. S.Ct. L.Ed.2d in the Texas ten college state for under a series system years contracts. one-year When, following his public his contract disagreements college policies, was renewed, brought teacher an action the decision claiming his him to freedom of and denied infringed right speech pro for cedural due The Court found even a process. that, without mal in contractual tenure a provision, protected property a terest exist de facto tenure may through agreement pro of state mulgated by understandings rules and officials. also a de Court noted likelihood of the existence of such facto agreement greater explicit where tenure system 2700, exists. 92 33 at 580. 408 U.S. at S.Ct. at L.Ed.2d that, number taught Appellant argues having requisite rank of years pro- obtained academic assistant fessor, he has for tenure satisfied objective requirements to re- at EMC and has sufficient entitlement to tenure thereby due process quire protections.
212 McLendon v. Morton relies primarily
(W.Va.1978), S.E.2d in which an assistant professor a writ of she community college sought mandamus claiming denied due was decision not to process college’s grant her tenure. The college’s regulations the rank required of assistant six full- professor, years teaching service and time in order to status be eligible apply tenure. The further criterion tenure, for obtaining according teaching regulations, competence.
The West court Virginia considered whether claimed interest or an property unilateral entitle- expectation ment. It noted that rules or existing understandings between the institution individual could rise to a give claim entitlement held legitimate that satisfaction of the basic eligibility standards for tenure apply gave suffi- cient entitlement due require process protection. S.E.2d at 925.
In its the West adopting position, Virginia court recognized it was rule more establishing a restrictive than that of the United States Court and Supreme that was its guided by distinctive state constitutional due process provision, S.E.2d at 922. That states: provision
“No shall life, be or person deprived liberty property without due law and the judgment of peers.” Constitution, West Article Virginia III, Section 10. Thorson, Schend v. As was established this *7 the one of whether a has supra, question right become then vested. is it Only protected due This by process. there found that a police officer no probationary had property under right Montana law and could have none until confirma- of tion aas position permanent employee.
“The Fourteenth Amendment’s
of
procedural protection
is a
of
safeguard
the
of
that a
property
security
interests
per-
has
son
already
Roth,
benefits.”
408
acquired
specific
U.S.
576,
92
2708,
S.Ct. at
In essence, argues with the existence of these tenure procedures policies acquired protected prop- in them. erty interest this claim: Hills v. relies three cases to support
Meister (1971),
v.
Abramson
474,
1314;
82 N.M.
483 P.2d
Board Regents
Hawaii
University
56 Haw.
(1976),
v.
Trustees
State
253;
548 P.2d
Ofsevit
California
et
al.
University
College,
Cal.3d
1,
These are not authorities this instance. persuasive contract an assistant supra, interpreted teaching between and Eastern New Mexico The court professor University. found that the course of of the through conduct parties, of the of their provisions faculty handbook had become part contract. The con- court did not consider whether contract stituted a interest. property Abramson, supra,
In found Supreme Court Hawaii that the tenure of an educational institution published policy be into the contract of a might pro- incorporated found, however, member. The court bationary faculty no force of faculty handbook had law provisions because there had been showing compliance
214 pro- making procedures of the state’s administrative
rule- establishing provisions. The also found act in court cedure university provided policies none of the of written pro- employment as to of continued so establish assurance property interest. tected supra, Supreme California, Ofsevit, of found
The Court reappoint- faculty improperly had been denied that a member University on of the basis ment at San Francisco State rights. political of his First Amendment activities violation Although to enforce- the court found teachers were entitled by regulations adopted of educa- a board ment of rules and teaching they part contract, of the tion because effect were constitutionally protected property finding of a it made interest. regula-
Through appellant argues that these rules and cases adopted by higher of an institution tions which have been expressly part faculty impliedly or of a education are and, such, member’s contract as are the source of property his claimed interest. argument applied appellant’s raises three case,
As this president’s questions: the codification and state- Were pro- part faculty the contract ment contract? Were pro- contract not, If does the establish cedures followed? property interest? tected recently employee held that an handbook
This Court part employee after hired not become distributed an does employee’s employment contract. v. Mon- Gates Life of St.Rep. P.2d Mont., tana Insurance 39 Co. employment contract breach- 16. Gates claimed her had been provisions employee not been ed because handbook had This found the handbook constituted a followed. Court company policies. The terms unilateral statement handbook bargained meeting not for and there was no were part also found the handbook minds. contract she was hired and did not constitute Gates’ when contract there no new and in- modification the because consideratipn dependent Gates, at 1066, its terms. 638P.2d St.Rep. at drafted codification which relies was Rank and Tenure Committee both the specifically clarify contract and handbook. The document was approved *9 the not in conflict by Coalition/Administration Committee as with the contract or The handbook. document also was as for the manual the Rank and Tenure specified operating to Committee, limited reference and informational use and to future contract the subject negotiations. codifica- Although tion is its a pseudo-extension contract, nature of the by using the Crates it is not the rationale, contract. part
The contract faculty for specifies procedure granting set which is out below: “The for procedure granting tenure shall be as follows: “(1) A committee of the unit, administrative appropriate which shall include tenured if faculty members, available, and the including Administrative Unit shall Head, recommend to the Rank and Tenure Committee the names of eligible those members the unit whom consider to they be for qualified tenure. The recommendation the ad- appropriate ministrative unit committee shall be later than completed December that date the by administrative appropriate unit committee shall the notify writing eligible faculty who members have not been for recommended tenure and the committee shall send a of the to President, notice the copy but the of all shall be applications eligible faculty members for- warded to the Rank and Tenure Committee.
“(2) College The Rank and Tenure Committee shall review all tenure received from applications shall, the units and by March submit its recommendations (positive or to negative) the Academic Vice President.
“(3) Those recommendations which are approved shall President be to the Regents submitted Board final action. Board of Upon Regents affected approval, faculty be members shall effective awarded tenure com- mencement of the next academic year.
“(4) No member shall be awarded tenure solely because the aforesaid were not The procedures followed. right independently com- if the to act have the
President shall mittee(s) specified.” limit to act time fail within by appellant procedure primary is an claimed The breach by the forwarded recommendation which was unfavorable academic vice- Arts Dean of the Liberal School argues sequence. Appellant proper ac- president out cording procedure, have been letter should dean’s Rank and Tenure Committee forwarded together academic then, recommendations, with all vice-president. president received the academic vice- Instead, only and, later, recommendation the dean’s unfavorable the committee’s favorable review. received sequence refers, however, to which specified not in the contract document but codification. part Assuming arguendo con that the codificationwas provision regar tract, find no we still breach. codification ding the “The and Tenure Committee will deans states: Rank applicant’s request respective examine each then deans to *10 package by a make recommenda December and written requested one.” the made the recom Here, tion each dean copy mendation to the committee sent his recommen and president. not to the academicvice- The codificationdid dation preclude find no action, restrict or the dean’s and we breach appellant’s procedure. contract president’s is a statement,
The contends which part “published policy” contract, of his was and therefore Report May 23, made 1977via a memorandum entitled Final report and Tenure for The included of Promotion 1977-78. president pro upon of the basis which the statement reviewed year. president acknowledg motion The and tenure cases importance the the of the recommendation of candidate’s ed colleagues department in these matters stated: “It would inappropriate recommenda be for me interfere with that procedural except than reasons under extraor tion other dinary circumstances.” ad- EMC
This made at time flux statement was college vice- ministration when the had administrative Wetering only president the ad- Van and President de in The statement also was made ministrative step process. the contract codification was statement completed. before ongoing not to be or as a strict and presented intended cannot the context in which it was made policy given be construed as such. logically statement, however, of the title we
Regardless given fact, not to it. In find action president’s contradictory here extraordinary. circumstances the faced were president No reasonable construction of the statement could president’s infer an intent to recommendations procedurally ignore of the members administration all cases. President Van de testified that the tenure he Wetering ordinarily applications Here, received had consistent recommendations. was faced not with inconsistent recommendations but also with a only tie-vote that his final contradict necessitated determination recommendations two four reviewing this situation, bodies. Given both president requested dean the vice- reevalüate Dr. Akhtar’s president ap- the student evaluation. Their recommen- plication excluding dations remained the same. then all considered president the information before him and determined that Dr. Akhtar should not receive tenure. We find actions did president’s nor contradict his statement did breach they appellant’s contract. Keiser v. Board
This Regents recently held, P.2d that the Mont., 194, 38 St.Rep. provisions of a tenured contract professor’s which set out employment term and contract were tenured with academic salary along rank. The Court’s concern there was construction of contract which Dr. Keiser “continuous granted tenure”. The on a based, Court’s decision was two-fold part, of tenure: academic economic security. freedom and purpose *11 Keiser is to the case us. not, however, before applicable Dr. in- There, granted Keiser had been tenure. Her property in that tenure had to be clearly terest vested and question resolved what tenure consisted of. Here the is an question a has entirely right different one—whether vested. protected Dr. Akhtar for tenure at Eastern Montana applied to the formal tenure Those according procedures. procedures evaluation the tenure at the time of provided applicant on the in application basis excellence research and teaching, service, and public community service. The did procedures establish a in legal continued but expectancy rather set out a means which a decision by discretionary would be made. We find interest due property requiring here. process as error the District
Appellant specifies Court’s failure to conclusion of number seven adopt appellant’s proposed law which states respondents’ II, conduct violated Article Section Montana State Constitution the Fourteenth and Amendment United States Constitution that ap pellant was treated than other situated differently similarly candidates for tenure and EMC. promotion neither
While party specifically argues protection equal issue to be in the other con- appeal, appears merged siderations before us. For reason, we will consider it here. Board has control Regents general and supervision
the Montana university system including duty appoint both for each president institution. Section 20-25-301(1),(11), MCA. The of an individual institu- president tion, turn, is charged with immediate control and of that unit. management 20-25-305(1), Section MCA. The tenure system among maintained procedures Therefore, under this actions authority. president actions, Board tenure are Regents regarding state of the tenure would discriminatory application result an unconstitutional denial of equal protection. U.S. Art. Const., XIV, 1; Const., II, Amend. Section Mont. Section claims he was in that he against discriminated from other was treated tenure candidates because differently of excellence different standard his tenure applied than to others. In of his claim, evaluation support and other can- most points specifically comparisons *12 record. his at Eastern dictates’ Since publication one had article. Two College, appellant published Montana no articles were candidates who had while EMC published tenure. granted found that “not
We Fourth Circuit which agree difference in a every dif- promotion particularly treatment — in ference not facts but in resolving questions primary facts— rises to the level of constitutional evaluating depriva- v. tion either under Clark or due equal protection process.” (4th Clark, Whiting 1979), Cir. 607 F.2d 638. In an associate he claimed was denied professor protection equal because different in standards were used evaluating pro- motion than were used qualifications passing promotions of other faculty members.
At EMC evaluation tenure candidates made in was three basic areas: teaching, research and public service, service. Publication community was one of a number of factors in the considered process.
Dean McRae testified that he evaluated all tenure can- eight didates using basic criteria of research and ser- teaching, vice and to measure their attempted each performance in at a category least partially manner. Because of quantifiable of some inevitability dean subjectivity process, testified made a for each candidate and then composite reevaluated the materials submitted to him. He then a rank order candidates in which Dr. Akhtar developed ranked eighth.
President de Van testified that the tenure evalua- Wetering tions demanded a weighing and of all the areas of balancing consideration for all the candidates. there was Although sharp the final disagreement among appellant’s colleagues, deter- mination was that appellant’s did professional performance not meet the overall academic standards needed professional to grant tenure.
The District Court concluded the denial of tenure but an arbitrary exercise of academic It also judgment. found no evidence had been which indicated the presented or that from discrimination procedures
denial resulted agree. a certain class. We followed were intended penalize interest strong maintaining quality The state has higher education system. and academic freedom its evaluating that dual tenure serves purpose, broad number of basis performance provides areas determination. discriminatory ap- an or treatment arbitrary
Absent we can find no denial equal pellant’s application, protection. *13 in refusing the District erred contends
Appellant on his Exhibit No. testimony to into evidence and hear receive of in the tenure matter 25, a from an committee appeals report Dr. Jerome We Hurley. disagree. of the District Court lack by
The evidence was refused in that the was relevant argues relevance. evidence Appellant error, “a of the it would have shown procedural pre- pattern the error that tainted tenure process and factual judice [his] from the beginning”. make the existence of which has to “any tendency
Evidence of is to the ac- fact that of the determination any consequence it be tion or less than would without more probable probable the relevant. evidence” is Rule Mont.R.Evid. error the of a of which
Here, procedural existence pattern the evidence was by claims would have been shown committee whose the ap- not issue. The appeals report not Dr. Akhtar’s offered in existence during was pellant the acted tenure Whether academic vice-president evaluation. of a different tenure application impermissibly contract in a different academic under a different individual tenure to his actions appellant’s is relevant year evaluation. erred in refus claims the District Court also
Appellant union ac testimony Maury regarding to allow Evans ing This too was Dr. other evidence faculty. tivities of Akhtar and as irrelevant. refused District Court by through the proof testimony made an offer Appellant one member of Eastern Montana Evans that Maury applied Akhtar same time Dr. for tenure at the who college’sfaculty AAUP, an member active did was resigned organization, negotiating from the he team; its shortly applied which negotiating for tenure he before team granted; union, in his remained active Akhtar, Dr. who was granted tenure. was not original complaint a violation sec- claimed requires promotion evaluation 49-3-201,MCA,
tion which government be “on the basis local officials made of state and political regard qualifications to ... ideas merit without apparent political could be infer- . that certain ideas . .” It activity, evidence and, therefore, offered red from union to was relevant a fact at issue. only testimony, have shown however,
The offered would Maury resigned position on from the union that negotiating Evans his prior ap-
team, AAUP, not from plication granted and that he was tenure. Had the evidence been have that one union member admitted, would shown granted tenure and another not. We affirm ruling. District Court’s specify
Respondents as cross-error the District Court’s Jay testimony Kirkpatrick’s garding refusal admit Dr. re statement attributed him Dr. Akhtar.
During following examination, ex- Dr. Akhtar’s direct change place: took *14 Jay Kirkpatrick you tenure, After denied did make
“Q. were any to for the statements as reasons denial? he Dr., Yes he oh is a Ma’am, that,
“A. at one occasion said very much, fine I like him but he been associated fellow. has wrong people. that occasion, Another he if with said you caught wrong politics fence, end of the that’s are got.” objection you get, exactly he what No what and that’s question or the at that time to either answer. was raised respondents Kirkpatrick in the trial was called Later testimony. respondents’ context, Akhtar’s In that rebuttal to regarding Kirkpatrick questioned the statement counsel having Kirkpatrick: you recall con- Akhtar to “Do attributed objected Appellant’s counsel versation Akhtar?” with Mr. 222
claiming Kirkpatrick’s testimony limited to rebuttal and Akhtar had not testified about any conversation between Akhtar and Kirkpatrick. an Following overruling objec- tion, counsel respondents’ asked whether had Kirkpatrick a conversation pertaining decision to Akhtar deny tenure. Kirkpatrick answered that he had a conversation such awith personal friend Akhtar and a local veterinarian. At that the court point asked Kirkpatrick whether the conversa- tion involved Akhtar. When Kirkpatrick responded that Akhtar had not been present, court sustained appellant’s previous objection.
The source of this
issue is
reference
appellant’s
statements
is set
by Kirkpatrick which
out above. No objec
tion was made to
statement
appellant’s
when was made.
Therefore,
this Court will not determine error. Green v. Green
(1978),
Appellant’s fact, Kirkpatrick, did indicate to whom were made. The then they question becomes whether offered Kirkpatrick’s testimony was proper- within the ly rebuttal. scope Respondents argue Kirkpatrick would have testified that the context of the state- ment to him appellant attributed was a discussion of ap- adherence pellant’s the no-research, no-publication of a faction of the In philosophy context, EMC ac- faculty. cording respondents, Kirkpatrick would have testified he had discussed his disappointment research appellant’s record.' publication
While set respondents out this in their carefully argument brief, made no such offer to the they District Court. In the absence of an offer to the District proof Court, this Court will not review v. John ruling. Tague (1903), Co. Caplice 51, 72 297; 28 Mont. P. Trogdon v. Hanson Sheep (1914), Co. 14, 139 792; Mont. P.2d v. Runkle Northern Burlington Mont., P.2d St.Rep.
Affirmed. *15 DA- MR. CHIEF JUSTICE HASWELL and JUSTICES LY ROBERT M. and WEBER and DISTRICT JUDGE SHEEHY) (sitting for concur. HOLTER JUSTICE dissenting: JUSTICE MORRISON MR. majority opinion. respectfully the
I dissent from they forth the as are set I not take issue the facts with do supplemented. they majority opinion. need to be However, majority opinion, in the it is set forth In addition facts signed important appellant, Iqbal Akhtar, to note that the M. May year a contract for the school 1978-79.On president of Eastern issued a memorandum Montana part: containing policy. provided, in tenure That document “By long primary responsibility tradition, the for tenure colleagues department must rest one’s in his decisions with qualified judge faculty they probationary for are best to plans in the future of the assess his role for the member department. upon much of the The ‘Redbook’ which AAUP Bargaining clearly, has been based states Collective Contract page on Procedural Standards nine, ‘Statement Faculty Appointment’, or that Renewal Non-renewal faculty ‘Faculty primarily a status and related matters are Any regarding responsibility. renewal of recommendation appropriate group tenure should be reached faculty.’ procedures approved by accordance judgment further that ‘The conscientious ‘Redbook’ states departmental autonomy professional candidate’s prevail.’ inappropriate judgments (p.12) It is to would be pro- for other than me interfere with that recommendation except extraordinary reasons under circumstances.” cedural added.) (Emphasis although received denied college and tenure from “rank
favorable recommendation previously policy such ac- committee”. Under the announced appeared president only tion would be taken where overriding “extraordinary existed for circumstances” committee’s recommendation. policy subject
The effect of such an announced *16 by this discussion Gates v. Montana In- Life of (1982), Rep. Nye 1063, 16, surance Co. 638 P.2d 39 v. St. and Department St.Rep. 498, Livestock 639 P.2d 39 of employer promulgated personnel In the Gates, had certain policies subsequent employee to the time the was hired. The promulgated policies part Court held of such were not the employment employee contract, but the was entitled to the following policies. excerpt benefit of those The is taken from opinion: the Court’s employee
“The circumstances of are this case that employment into entered an contract terminable at the will party any employer promulgated either at time. The later personnel policies establishing pro- handbook certain regard employer cedures with to terminations. The need not sought presumably orderly, so, have done but to secure an cooperative loyal by establishing and force work uniform policies. employee, having The faith that she would be treated fairly, developed peace job then of mind associated with security. employer policies, has its own If failed follow peace employees mind its is shattered and an in- justice is done. good dealing hold that a
“We covenant of faith and fair was implied employment appellant. contract to the There re- genuine precludes mains issue of material fact which a sum- mary jugdment, respondent i.e., whether the failed to afford process required respon- if so, and whether thereby good dent breached the covenant of faith and fair dealing.” St.Rep. (Emphasis at Gates, 639P.2d at 20. added.) employer
The crux of that, is once an Gates has announced a policy, employer policy though must follow even is part “good contract. held that We faith dealing” process. and fair mandates such Nye, employee promoted In a state then fired. One appeal “wrongful discharge” issue was whether a claimfor employment policies could lie. This Court held must be may employer followed and that so render the failure do employee discharge.” in- “wrongful the tort for liable followingex- subject at will.” to “termination volved opinion: recent cerpts from Court’s are taken arises of action the cause of whether determination “The unjustified termination was upon or an unfair whether rests policy. public violation
U discipline punitive
“Policy that ‘when states 3-0130 necessary, just of facts and due cause, documentation required.’ are apply Department failed to of Livestock that the find
“We Margaret Nye, regulations therefore violated its own St.Rep. policy.” Nye, at 53-54. public 639 P.2d Nye employer, its own fails to follow that an who We held discharge. wrongful may employment policies, be liable together, expanded Nye, the Montana taken have Gates relationships. employer-employee The law *17 pertaining to law Akhtar the outcome of two cases controls enunciated these College. v. Eastern Montana which of evidence in the case before us is devoid
The record “extraordinary Under circumstances”. constitute could college president on employment policy articulated only provide “extraordinary May circumstances” 23,1977, overriding of the rank and a recommendation basis of the committee was the recommendation Here, committee. extraordinary circumstances were followed, shown. sought
Although denied, tenure and was this The case his services. to terminate result Nye. distinguished from Gates and be cannot, therefore, in- level with to the administrative I remand this case would college existing implement structions to findings. appropriate policies fact and make joins in the dissent. MR. JUSTICE SHEA