Nicholas Kyriakopoulos v. George Washington University

438 unsafe, they presumably

III. Environmental so do in their own Consumer Claims self-interest. It is of no moment for the in- regulation Lax EPA of hazardous waste quiry at they hand that may be “forced” domes, maintains, disposal in salt HWTC competitive pressures to choose unsafe members, of its creates a dilemma for some methods; we cannot deem injured, them injury: and horns entail economic both the sense relevant under controlling prece- “[Mjembers provide cleanup services dent, by their own choice compete in kind. brokering for customers will ei- or waste they geo- not ther lose business if do use greater potential

logic repositories, or face Conclusion geolog- liability disposal unprotective for stated, petitions For the reasons for repositories.” Reply Brief of Petitioner ic review in these cases are dismissed. The (No. 88-1177). argument 4 At oral petitioners, precedent, under circuit lack vigorously HWTC asserted that members standing judicial The af- obtain review. would “forced” to utilize salt domes alleging membership of fidavits Chilek EPA-permitted “consumers” of become Coogan standing cannot establish HWTC’s disposal “lax” methods. In the event these challenge regulations under RCRA be- leak, allegedly repositories unsafe HWTC joined cause two individuals HWTC continued, using them would face members statutory period. Accordingly, outside the strict, liability joint, and several under the the motions to strike the two affidavits are Response, Comprehensive Environmental dismissed as moot. (CERC- Compensation, Liability Act It is so ordered. LA), (1982). 42 9601-9657 U.S.C. §§ however, potential liability, in This voluntarily, sofar as it is incurred is not an “

injury ‘fairly can be traced to the ” action,’ challenged required by Su interpreting

preme decisions Article Valley Forge

III of the Constitution. KYRIAKOPOULOS, Appellant, Nicholas College v. Americans United Christian State, Inc., Separation Church and v. 752, 758, 464, 472, 102 S.Ct. 70 454 U.S. GEORGE WASHINGTON (1982)(quoting L.Ed.2d 700 Simon v. East UNIVERSITY. Rights Org., 426 Kentucky ern Welfare 1917, 1925-26, No. 87-7202. 26, 41, 48 U.S. 96 S.Ct. Rather, (1976)). L.Ed.2d 450 to the extent Appeals, United States Court of self-inflicted, it is “so injury that this District Columbia Circuit. [complainant’s] completely due to the own Argued Sept. 1988. the causal chain.”5 Un fault as break II, 861 like “consumer” firm HWTC Decided Jan. 1989. geologic repos choosing F.2d members injury by itories can avoid the threatened they If

choosing safer methods. instead they disposal methods believe to be

choose attorney’s consequence arising day.” of his grounds such ninetieth fees was a after 6976(a)(1) (1982). exception This does U.S.C. “cannot § own decision to intervene cases, apply which the substan- in these fairly challenged, and be traced” to the law all, arose, petitions grounds if at tive for the standing); Pennsylva- cannot confer Article III expired. before the time limit 660, 664, Jersey, S.Ct. nia v. New 2333, 2335, (1976) (injuries to 49 L.Ed.2d 124 E. A. Miller & Cooper, 13 C. Wright, Federal "self-inflicted,” plaintiff states' fiscs were 3531.5, 2d § Jurisdiction Practice and Procedure: damage complain “can be heard to about state see, (2d 1984); e.g., ed. Diamond hand"). inflicted its own Charles, 54, 69-70, U.S. 106 S.Ct. (1986) 90 L.Ed.2d (party's liability professor’s

whether the claims are barred by the statute of limitations. For the rea- follow, part sons that we affirm in part vacate in remand for further ceedings.

I many years, Kyriakopoulos For Nicholas has as an served Associate Professor in the Engineering Computer Electrical and Sci- Department ence George Washington Engineering Ap- School plied assuming present Science. After his position appellant sought pro- in professor beginning motion to full in 1973 year each academic there- year, after until 1978. Each his effort rejections, Kyriak- failed. After successive opoulos appealed the adverse decisions ren- through dered in 1975 and 1976 the Univer- sity’s grievance procedure. internal A Hearing empaneled Committee was and in upheld due course promotion. denial of Hearing The Committee’s decision was sus- tained, turn, Faculty Senate Kyriako- Grievance in 1978. Committee poulos appealed pro- also his 1977 denial of motion, Hearing again which a Committee upheld. particular appeal

Of relevance to this is appellant’s effort in 1978 to secure a full professorship. During the course of what proved protracted to be internal proceedings respect appellant’s with Gagliardo, Thomas J. whom Robert application, Faculty Senate Hear- D.C., Meiser, Washington, N. was on the ing and eventually Grievance Committees brief, appellant. for Kyriakopoulos pro- recommended that professor moted to full as of the fall of Frazier, Jack M.H. with whom Thomas Although Hearing Jr., D.C., Quinn, Washington, D. was on appel- reached no conclusion as to whether brief, appellee. promotion, lant merited it concluded that WALD, Judge, Before Chief STARR departmental Personnel Committee had WILLIAMS, Judges. Circuit improperly applied governing criteria in considering Kyriakopoulos’ applica- filed Opinion for the Court Appeals tion. An Panel of the Grievance Judge Circuit STARR. Committee concurred in both conclusions. STARR, Judge: Circuit The matter then went before the Univer- Trustees, dispute George sity’s over This case involves Board of which determined Washington University’s refusal remand case for further considera- faculty professor findings mote to full tion and specific member on the issue during primary question appellant the 1970’s. The merited The Among other the Trustees. from remand was remand Trustees’ reason alleged that things, had appellant grievance proceedings faculty applied “inoper- had created finding that yield failed professor- full and had ato to his elevation criteria able” indeed brief, puts it its findings support appellant As ship. to provide failed advised were University’s trustees Finally, decision. adverse “[t]he that was attorney/members action) of its by one (in his sixth cause complained promote the contract under powerless duty University had breached merit under finding of without plaintiff performing con- faith good act in for Appellant Brief any circumstances.” tract. matter original). (emphasis at 18 entirely in favor ruled The District departmental to the back accordingly went University. its Memorandum In for reconsideration. Committee 30, 1986, the trial September Order filed consideration proceedings, In remand first three appellant’s held court be towas Kyriakopoulos’ of by the statute barred of action were causes 1978 as of in effect the criteria on based concluding, the court In so of limitations. year. as it stood that on his record stated: consideration, the Personnel further After course, is, highly desirable It of ap- again concluded once through disputes be settled academic under promotion not merit did pellant Ad- mechanisms. University grievance candi- criteria, namely operative be exhaust- should remedies ministrative ability.” outstanding possess “must date permit- is to the courts resort Kyriako- ed before (“J.A.”) 137. at Appendix Joint Appeals ... However, Court of Personnel Com- ted. of was informed poulos 1985. suggested that administrative plainly in November action has adverse mittee’s in a case exhausted any further internal be Eschewing need not remedies filed suit of Kyriakopoulos nature, statute that the proceedings, of this 1986. in March District Court such States to United resort is not tolled procedures. claims. various complaint set forth The sought action three causes The first Washington George Kyriakopoulos both (promotion), and performance specific (D.D.C.1987), 1525, 1534 Univ., F.Supp. 657 for damages punitive compensatory and J.A. 275. failing promote to of contract breach filed District Court April earlier) (and and for in 1978 addressing ap- Pretrial Order Supplemental of his by virtue reputation injury to theAs of action. fourth cause pellant’s The for being passed over Kyriak- portion this described trial court (both com- damages sought claim fourth plain- claim, the essence opoulos’ “[i]t the Trustees’ punitive) for pensatory and 4 that when on count position tiff’s the recommenda- to follow in 1985 failure Pan- Appeals Grievance to full promote tion to person aof promotion recommend el aof absence (notwithstanding the fessor obligated to autho- Board is professor, respond- merit). The finding of J.A. Id. promotion.” rize the summary judgment, a motion ed with opin- position, rejected this The court part granted court the trial which of the Fac- provision pertinent ing that the first dismissing the September that the Board “contemplate[d] ulty Code by the barred as of action causes three decision, final make will Trustees] [of were parties theAs of limitations. statute unfettered, by the decisions informed, but cause the fourth litigate over Id. at committees.” the subordinate second amended action, filed appellant Court went District at 780. The new claims. two added complaint “frivolous” condemn on to challenged action fifth cause The declination Board’s that the Committee, los’ contention the Personnel actions inwas recommendation promotion issue considered Id., faith. put decision-making process bad 781. The court from the kind of lay plaintiff way: it this intrusion seeks.” J.A. at 706. legal duty approve The Board has no appeal This followed. automatically the recommendation of the Grievance Committees.... The fact II years that on one occasion more than 10 Appellant’s first three causes of ac ago promoted professor the defendant tion founder on the statute of limitations. faculty person ... who had been the those, Kyriakopoulos As to seeks relief for legally cognizable victim of sex discrimi- promote failure to him to finding nation without a that she merited professor full as late as 1978. The trial promotion is not material evidence that correctly granted court summary judgment the Board’s decision here was either dis- respondent holding appellant’s claims criminatory or in faith. bad Count time Kyriakopoulos, barred. fails to state a claim on which relief can F.Supp. (at J.A. at 270-77 granted. order). subsequent tachment to

Id. designed statute of limitations is

Finally, in an Order prevent and Memorandum exactly the litigation sort of em- 22,1987, September filed bodied in the the District first three causes of action— protracted quarrels long events, past over granted summary judgment in favor of the records, based on stale allowing parties the appellant’s as to fifth and sixth repose preventing healing the of old doing, causes of action. In so the trial wounds. For these well-understood rea- court held that Kyriakopoulos had failed to sons, others, among the District of Colum- any competent adduce evidence that he in recovery upon bia delimits actions such as promotion. fact merited J.A. at 704. In contract, those before simple us—“on a particular, emphasized the District Court express implied” years. or three D.C. —to appellant pub- had failed to meet the 12-301(7) (1981); Code Ann. see Carter § lishing requirements as enumerated Washington Metropolitan Area Transit Personnel Committee. the trial court’s Authority, (D.C.Cir.1985) 764 F.2d 858 words, “[Kyriakopoulos] repeatedly applied (“[T]he general glean rule that one can promotion only to be told more or less from all the cases discussed above is that thing: the same publish he needed to apply courts should of Colum- [District promoted. Yet, order undisputed to be it is statute of strictly, limitations even bia] responded he has not to the Universi- [that] though barring actions often seems arbi- ty’s suggestion publish.” that he Id. at trary inequitable.”) (and cited, cases id. appellant’s proffered 707. As for evidence 855-57). statutory period begins expert testimony by engineering pro- an party run when the reasonably harmed has (Professor fessor Robert Newcomb of the See, notice of the breach. e.g., Prouty v. University Maryland), testify who would National R.R. Passenger Corp., 572 to the effect that inwas F.Supp. (D.D.C.1983); 205 Ehrenhaft qualified fact George Price, Inc., v. Malcolm 483 A.2d Washington, the rejected trial court (D.C.1984). 1198-99 evidence, elaboration, incompe- without as Here, appellant had notice of the events tent. Id. at 706. The trial court also stat- underlying principal allegation his at the ed, in the wake of this court’s decision in latest April when he received a letter in University, McConnell v. Howard 818 informing 1979 him again that he had once (D.C.Cir.1987), F.2d any that “if there is Yet, been denied prerogative protect- institutional academic los did not file this suit until March Amendment, ed the First Univer- [the (obviously) an interval far exceeds sity] persuasively is, contends there it years. three reasonably gain- It cannot ought protect a University’s claims, academic said that the statute thus bars such 498, 505, 250, 261, 101 S.Ct. Ricks, action, predicat- causes first three as the (1980) (“[T]he pendency of a 66 L.Ed.2d events. long-past upon such ed running not toll ... grievance does impediment, formidable this Faced with The existence of periods. the limitations does the statute argues that fairness to assure procedures careful action causes particular these not bar prin- should not obscure decision tenure in 1985 di- Trustees Board of because normally com- periods ciple that limitations make a rected decision is employer’s mence when evaluating quali- decision” “retroactive omitted) (Title VII con- made.”) (citations Reply Brief for 1978. See as of fications (“The text); Fitzgerald, 553 F.2d at Neither disagree. We at 5-7. Appellant remedy or pursue one of whether choice dating losses ability to recover the renewed both, other, may difficult.... or to recon- the 1985 direction nor from 1978 reme- judicial But administrative the bite avoids decision sider the independent. And limitations dies were factor Neither provision. indepen- remedy judicial ran on the period action rest causes of first three makes Service dently Commission] [Civil initial denial than upon a breach proceeding.”). seen, oc- which, as we have promotion, observed, rightly trial court As the Kyr- years before than three more curred most, mandatory, at Faculty Code makes than Rather to court. repaired iakopoulos procedures; claims, preliminary reviving earlier “relating back” require institution manifestly does analyzed, act actions, properly later Kyriakopoulos, proceedings. formal merely as a failure earlier actions upon the 273-75. J.A. at F.Supp. at of contract —a previous breach to cure nothing in contract importantly, More a new constitutes neither failure procedures grievance that the suggests claims from appellant’s saves breach nor Thus, as remedy. an exclusive Fitz- constitute bar. of the limitations operation held, appellant correctly (D.C. District Court 220, the Seamans, F.2d v. gerald to the straightaway repaired have right a could to failure (“[T]he Cir.1977) mere exhausting con- courthouse, rather than be cannot plaintiff whole make wrong and redress. of provided avenues tractually the statute tolls wrong purpose of limitations, the that is for Ill oblit- exception would and the any lawsuit v. Howard Press rule.”); accord erate the cause of action fourth Appellant’s (D.C.1988) 733, 735 University, 540 A.2d failure relief for Trustees’ seeks continuing breach theory of (rejecting recommendation the favorable follow finding suspension, ongoing an and Grievance based Hearing of the the initiation to run from com filing of the the statute Because Committee. breach). years three within followed plaint action, statute Board’s contention Kyriakopoulos’ If However, allegation. attends this problem that viewed, as claim generously, that concluded correctly the District Court toll the procedures grievance establish Kyriakopoulos failed like limitations, argument statute of any contractu breached disposition Board’s itself deter contract short. The wise falls right. al annointed parties have mines whether that, upon the provides Faculty Code exclusive as remedies contractual Committees, “the record of the (and decisions alleged breaches redress means to of the case, including the decisions contrac courts until access thus bar Grievance and the exhausted). Hearing Committee procedures are tually ordained Committee, be transmitted shall however, agreement, explicit Without for of Trustees Board and the begins President normally of limitations the statute Code, Faculty Proce disposition.” final existence despite the run Faculty Implementation for College v. dures State Delaware procedures. Cf. E.5, solely Faculty at 129. As the trial on the of merit.” Code basis Code observed, nothing provision IY.C, in this long court So it based reserved to dilutes the traditional discretion specified in its decision on criteria the Code mandates that the Board the Trustees or complied provi- with other contractual accept committees’ recom mechanically sions, simply rejected the Board could have principles of mendations. Basic contract compromise proffered by the Grievance interpretation, buttressed the District of pro- Kyriakopoulos Committee and denied insistence that a contract’s Columbia’s Instead, dispo- motion. the Board’s “final rights and obli written terms establish inquiry sition” mandated further into thereunder, gations underlie our reluctance appellant actually pro- impose upon the Board not im duties Lloyd motion. from See Letter President practice or posed by the Code or Elliott to Prof. Nicholas et sure, agreement.1 To the Board’s “final (June 28, 1984), al. J.A. at 377. Not a disposition” informed must be suggests shred of evidence Board reasoning record of the and the improper acted for reasons or did otherwise are to be conclusions of the committees permissibly exercise its discretion. Un- provisions are before the Board. These circumstances, summary judg- der these grievance pro intended to ensure that appropriately lay. Corp. ment See Celotex that the Board cedure is not a sham and Catrett, 106 S.Ct. acts on the of full information. But basis (1986). L.Ed.2d 265 transmogrify the the contract does not stamp Board into a rubber of committee IV decisions. Kyriakopoulos’ fifth and sixth another, yet reason There is fact-bound action, principally causes of chal interpretive ap- declining appellant’s lenge the Personnel Committee’s considera proach. The Grievance Committee’s rec- tion of his (that ommendation Trustees, upon remand from the Board of being moted without the satisfaction reflection, give greater pause.2 us On we promotion, Opinion deemed to merit of the persuaded are that the District Court too Appeals Panel Grievance and, narrowly appellant’s construed claim 29, 33-34, 93, 97-98) J.A. at was consequence, parts did not evaluate of is, compromise. nature of a That there might reasonably the record which specific finding was no tending support viewed as to that claim. Yet, appellant as him- grant summary judg The trial court’s of recognizes, self the Board knew itself to be University stipula- ment favor of the on these contractually by bound the Code’s “promotions provides ... shall be made two claims little articulation for tion that ‘objective inquiries. Wyoming Coop. adheres to the law’ of such See 1901 Ave. 1. This court contracts, language whereby Lee, (D.C.1975). the 'written em- Ass’n v. 345 A.2d 456 agreement govern bodying the terms of an will action, irrespec- rights parties, Appellant’s and liabilities of the fifth and sixth causes of for they parties tive of the intent of the at the time duty breach of contract and for breach of the or contract, entered the unless the written lan- faith, implied good covenant of arise from the guage susceptible is not of a clear and definite relationship underlying same contractual and fraud, undertaking, unless there is duress or or together events. We be consider claims mutual mistake.’ inquiries by each are identi cause called for 958, Best, (D.C. Howard A.2d 967 Univ. v. 484 good performance cal: doctrine of faith ”[T]he Builders, 1984) (quoting Beltway Inc. v. Minmar finding a contract an is a means of within Excavators, Inc., (D.C.1968)); 246 A.2d 786 implied obligation engage particu in the to Univ., (D.C. A.2d 733 Press v. Howard cf. hand, which, in the case at lar form of conduct 1988). Tymshare, 'bad faith.'” Inc. v. Co constitutes language suggests No evidence the contractual vell, (D.C.Cir. 1984); 727 F.2d see id. sufficiently contrary to be to "norms of conduct 1152-55; (implications p. of con infra them," expectations upon founded Greene v. and agreement judge promotions "solely tractual to (D.C.Cir. Univ., Howard 412 F.2d IV.C, Faculty on the basis of merit.” Code if, 1969), even unlike this the contract 120). "ambiguous justifying such terms" contained using other criteria poulos’ application to con Yet, we are reluctant the decision. by the permitted or was those dictated disposition than court’s trial that the clude thereby contract, of desidera the Committee would In view the clearly in error. conduct independent considered breach. orderly and an have committed of tum embark we are loathe Personnel Com litigation, if in 1985 the example, civil For of record of the evaluation plenary upon deny promotion had mittee determined the trial court’s of the benefit without on the appellant’s of skills on the basis find ourselves Accordingly, we analysis. 1978), (as of team Department’s softball fur these causes to remand constrained than have done more would the Committee consideration, light of con but ther This past to cure breaches. simply fail forth. set we hereinafter cerns appellant’s lack punishing “fresh” breach— comparable par- prowess in this of softball claim Appellant’s contractual —would University comply spe that the other failure one: is a narrow ticular of denial as the fail appeal provision, such contractual disposed cific and remand requirement. Board’s 1984 procedural promotion, to follow a ure subsequent de- Univ., Personnel Committee’s 818 F.2d v. Howard See McConnell the con- 1985, in a manner that report cision (failure to transmit at 66-67 appellant Specifically, permit. did not tract Board, required as Grievance Committee valid, non-time-barred make would out Code, violation would by Faculty constitute show able to if he were contractual claim short, contract). although these two disposed of his claim that the (unlike causes appellant’s first three claims he reasons unrelated 1985 for bar, they do action) the limitations avoid bias, use (e.g., promotion actually merited actions, recent only recent so because like). is, That and the improper criteria alone, provide the basis actions not to for the decision extraneous basis an asserted breach. would, appears, promote however, Court, character- District guarantees Faculty Code’s violate seeking pro- one appellant’s claim as ized solely on shall be made “promotions ... motion, a claim see J.A. dependent “shall be of merit” the basis character- at 706. Neither retaliation. Id. as evidenced competence professional upon think, gist ization, fully captures we scholarship, ability, productive by teaching Com- claim, namely that the Personnel professional leadership in participation Kyriakopoulos’ disposed of in 1985 mittee University, and societies, to the service for reasons attempt to secure IV.B.l, Faculty Code public service.” merit, were scholarly than his IV.C, contract. grounds ordained only action, appellant’s fourth cause Unlike upon focused The trial court only that requires of claim this sort merit, may impor- be scholarly los’ of the express terms examine court (though proof of finding of breach tant to a the Univ- nature of discern the contract to necessary to establish may only be merit Faculty pertinent The obligation. ersity’s However, sought). remedy particular us, establish, it seems provisions Code Dis- evidence, some of which additional part the Univer- on the continuing duty 706-07, mentioned, at see id. trict Court that con- contravenes sity; action which supporting, interpreted as possibly could be estab- therefore would tractual command Commit- the Personnel argument independent separate, breach. lish Kyriakopoulos’ in 1985 defeated tee University from consid- contract barred impermissible improper and upon motion an Kyriakopoulos’ than ering factors department’s history of the (e.g., basis deci- in the initial scholarly merit gener- see Kyriakopoulos, hostility toward considering extrane- sion, those from Appeals Panel ally, Opinion the contrac- execution of in its ous factors 63; Committee, the over- at J.A. Grievance procedure. tually guaranteed earlier, alleg- membership of lapping Board the Thus, upon remand from the if and the edly tainted Personnel Kyriako- upon acted Personnel Committee, 202, poulos beyond solitary 1985 Personnel see J.A. statement 380, 418; unchanged generally Deposition nature of the Per- trial court cites. See Newcomb, Kyriako- treatment of In sonnel of Dr. Robert J.A. 448. addi- Committee’s 1985, Minutes, tion, poulos’ Supreme long see as the held not (Nov. 6, Meeting ago, Full the nonmovant’s evidence need not Professor 380-81; 1985), entirely “in Letter from Prof. a form that would be admissi- J.A. Chairman, Dep’t, E.E. Lang, summary judg- R.H. & C.S. ble at trial order to avoid (Nov. 11, 1985), ment,” Celotex, 324, Kyriakopoulos Nicholas 477 U.S. at 106 S.Ct. 2553, 414; only evidence that could be but need the exist- J.A. at establish proposition genuine supporting viewed as ence of a issue as to material 56(c). Kyriakopoulos promotion, did in fact merit facts. See Fed.R.Civ.P. 446-47). pp. see In view, our infra Second, the trial court did not address grant summary judgment to the Univer- other, seemingly pertinent evidence. The should, articulating why sity in addition to opinion respect is silent to various fact-finder could conclude no reasonable aspects (e.g., Kyriakopoulos’ of the record Kyriakopoulos promotion, merited writing scholarship; record of and related why proffered demonstrate evidence annual Kyriakopoulos’ evaluations of genuine disputes does not raise over mate- teaching; others’ work and records of rial issues of fact. promoted; comparisons those of various records, especial professors’ illustrating Of concern is the trial court’s directed to Kyriakopoulos governing promotion) treatment of in fact the relevant criteria promotion. Throughout opin- suggest Kyriakopou- that could taken ion, qualified its con- the District Court focused on los be as as other scholars who promotion. See, e.g., clusion that did not merit secured “List of 1-5, promotion, by Type” could maintain no con- Plaintiff’s and thus Exhibits J.A. at 341-45; upon University’s tractual claim based “Statement of Plaintiff of Material evaluating applications im- allegedly on Facts as to Which There is a Is- Genuine sue, 1-3, In proper grounds. Very J.A. at 704-07. at the Least” at 407-09. conclusion, reaching this the court failed to Third, fundamentally, the trial set forth a for its evaluation of sever- basis fully, court should now consider the record might al items of evidence that allow a conception uninhibited that the First person reasonable to reach a “factual con- (or special Amendment nature of a clusion the dis- other than that reached university) University’s pro shields the court,” Tymshare, trict 727 F.2d at scrutiny motion decision from the neces possibly and thus entitle sary protection of contractual for summa- survive the motion rights. Contrary suggestions in both the ry judgment. opinion granting summary memorandum First, judgment the District the basis for fifth and sixth causes of action, disparagement Court’s of Prof. Newcomb’s see J.A. at and comments ac proffered testimony compe companying grant summary judg expert as not cause, Kyriakopou tent and is not at all clear. ment on the fourth see inadmissible los, Contrary F.Supp. to the trial See J.A. at fail intimation, fully court’s First Amendment con to reflect this circuit’s law. McConnell, 67-71, incompetent not the evalu 818 F.2d this court cerns do render at scholar, explained rights Kyriakopoulos’ ation of merits as a that contractual are to be pp. (and see 446-47. Less globally, diligently enforced are any as valued as infra highly) university setting any incompetency flowing putative from a ex a as in pert’s familiarity specific why the other: do not understand univ lack of “[W]e cannot, University ersity deserving judicial more applied by criteria the affairs are reason, testimony the entire ad deference than the affairs of other extend to dressing standing profession.... or if there Kyriakopoulos’ the business [E]ven field, equipped ill provided support Kyriako- are issues on which courts are However, University’s own the is a contract rule, interpretation arbitrary faulted as at 69. McConnell’s Grievance of them.” Id. not one pro- both encompasses printed criteria from its readily departures reasoning disciplinary emphasis upon as the setting as well Committee’s motion the Personnel reason principled no can discern con- one. We failure to publications its refereed latter delimited to be why it should extensive non-refer- Kyriakopoulos’ sider to the McConnell gave rise setting, which Ap- Opinion of the publications. See eed here course, do not ex- we Of litigation. Grievance Committee Panel of the peals McConnell’s, aspects of scope to all tend Yet, 16-17, on remand at 80-81. J.A. does not This case decision. promotion again highlighted Personnel of the Univ- recalculation judicial involve a publica- lack of refereed Kyriakopoulos’ scholar- professor’s a ersity’s evaluation discussion of than fulsome in its less tions scrutiny need factfinder’s merit. The ly Let- promotion. merit did not why he that the enough to ensure only far extend Chairman, Lang, E.E. from Prof. F.H. ter duty— contractual its University perform Prof. Dep’t, to Nicholas & C.S. as procedure grievance applies to 1985), 414. That mis- 11, (Nov. J.A. los decision—to promotion initial to the well as to the itself emphasis could lend placed applica- promotion professor’s dispose aof that the interpretation Person- unflattering scholarly merit. than other on no basis tion merely ratified in 1985 nel Committee issue, University cannot As we see methodology in consid- impermissible prior, it drafts contract of the claim the benefit least, At the question. ering the designed to hold inquiries spared the but publications Kyriakopoulos’ the extent bargain. to its the institution Personnel Commit- of the propriety and the notwithstanding the District Fourth, publica- upon refereed tee’s renewed focus see J.A. suggestions, contrary Court’s to be seem, juncture, material at this tions F.Supp. at 703-04; Kyriakopoulos, against weighing rather dispute, facts 791-92, 786, are of we 1530, 1528, summary judg- grant of supporting a than derive should that the view ment. committees’ the various from no comfort poulos merited failure, two-fold: pressly disavowed tee’s adverse because ance Committee initial ond, the two committees fessional pears to clusion to Opinion of lications fact Hearing Committee gument that eed sis on suades us Kyriakopoulos, did not merit Finally, our 71; Report and Recommendation publications consideration Kyriakopoulos’ prior have merit, first, misplaced. University had promotion. See Kyriakopoulos’ accepted the promotion. See drawn about determination Appeals analysis the District Court’s the record clearly indicated appeals F.Supp. at lack of refereed Kyriakopoulos’ J.A. at Panel J.A. at The trial find allowed University’s ar- concluded committees ex- so lack id. of the Griev- erred 79-92; record reason court Kyriako- Commit- that he empha- refer- inhe in its pub- con- per- 707; sec- see ap- is peated breaches tions. tion when dissent the one that a from breach mittees members) application beling the earlier committee issue years fessor’s If, even part in this prohibition of though a contract $ later, university consider each him, allWith Continuing duties hand, and, confuses of a composed of tolling or from of five hypothetical concerning promotion contract ^[*] triggers they constitute an action respect, we subsequently later actions (e.g., of a arises, members analysis of defamatory on the $ and issues breach the statute establishes provision proceeding several legal may arise sjt other, even believe that considers fewer and libel. are actionable does so sources repetition of professional statements). though alleged re $ university providing of limita report duty on by com a than directly evalua single again j¡c (e.g., pro No li may proceedings bar a suit based tions in the K-l and K-2 in- statute of limitations volving earlier actions. upon Kyriakopoulos). the committee’s Prof. This result one, ensuring will be usual that no tolling and The issues “exception” swallows the limitations rule. however, arise, when the court is breach do Yet, grievance pro- if in the course of the upon decide an act constitut- called when ceedings, University breaches a con- triggers ing single of contract breach tinuing duty, that act would not be time- portion of statute of limitations. The merely barred because breach resem- dissent, Op. cited Diss. at 449 Ricks separate, earlier bled breach. 261,101 (quoting Ricks, S.Ct. 505), question addresses the interpreted In this have we triggers initial denial of tenure that continuing duty, contract to establish a period. breach’s limitations Press involved we direct the trial court to determine inquiry, alleged “the a similar because University’s whether the 1985 actions inde- suspension contract—the breach of pendently continuing duty. that breached —oc- once; only curred Press was not resus- approach, policies underlying Under our during pended regular intervals both the statute of limitations and contract period.” A.2d at three-year law are served: the statute of limitations claims, all old is bars but However, (nor neither Ricks nor Press recent, held accountable for distinct tolling) suggests indeed the entire notion of That, us, lights breaches. as our lead repeated and distinct breaches of con- faithfully reflects the decisional law of this trigger tract their own limitations do not jurisdiction. The District acted in periods. despite states that the time- Ricks approach proceed- accord with this when barred, allegedly discriminatory denial of through ed to consider the fourth sixth tenure, Ricks could have maintained a suit interpreting causes of action after the stat- discriminatory discharge if he had “al- ute of limitations to bar the first three lege[d] prove[d] the manner Similarly, counts. own ar- employment was terminated dif- which his gument separate assumes that a contractu- discriminatorily from the manner in fered trigger al breach 1985 would its own College profes- which the terminated other period. Appellee Brief for denied tenure.” sors who also had been (For at 20 the fifth and sixth causes of Press, 449 U.S. at S.Ct. action, “appellant’s unsup- claims ... are too, suggests that the court would have ported by any requirement contractual im- (with distinctly found distinct breaches posed upon University” premise [a periods) if it triggered limitations had been result, opinion rejects], this “[a]s acts, presented repeated with “a series of again claimed breaches are the fourth [like single extending long not a act over a cause], most, a refusal to cure the 1978 indicated, period” (or, presented if with breach, separate and not a of con- breach re-suspensions). 540 A.2d at 735. tract.”). interpretation If we err our Attending this distinction underscores law, company D.C. decisional we are in fine way analysis the fact that our no eviscer- indeed. limitations. As are ates the statute of we JUDGMENT ACCORDINGLY. agreed, Kyriakopoulos all Professor litigating alleged barred from WILLIAMS, F. STEPHEN Circuit supra pp. Any 442-43. breaches. See dissenting in Judge, concurring part, merely University action that declines to part: breach, long remedy that so as that action George Washington University, independently applicable provi- In 1978 breaches contract, acting through the Personnel Committee of gives sion of the rise to no action. Department Engineering provides such an ex- of Electrical Board’s decision Science, promote ample, any grievance Computer refused to as would decision professor. to full complied provi- other contractual Professor thereafter, years (e.g., committees’ ac- For seven sions

449 normally com- periods limitations the Univer- through grievance pursued employer’s decision the when Faculty mence The procedures. sity’s internal made. Committees Hearing and Grievance Senate University matter, then the the at 505-06. heard 101 S.Ct. 449 U.S. Person- Trustees, finally the and of Board tak- cases have Columbia District of The in remand it on considered nel Committee v. See, e.g., Clark same en the view. against again decided It 1985. (D.C.1974) (pursuit 445 Scott, 329 A.2d diversity suit filed this stat- not toll remedies does permissive of 1986. Seamans, F.2d Fitzgerald v. 553 ute). In court, interpreting court’s this (D.C.Cir.1977), the district affirms 220 This court directly limita- three-year on statute of the based D.C.Code’s claims the decision that rule: under the tions, explanation for be dismissed offered denial must an 1978 the wrong and three-year stat- right failure to mere of Columbia’s the District “[T]he finds that court cannot be continu- plaintiff The make whole of limitations. ute griev- of limita- of the statute pendency wrong tolls ing law the under District any purpose denial did of lawsuit tions, the 1978 the after for that is proceedings ance the 443. Maj.Op. exception So would obliterate the statute. not toll the v. Howard Press Id. far, agree. rule.” I Cf. (reject- (D.C.1988) A.2d 733 University, 540 however, as a new court, treats The breach, but the theory of ing 1985 re- Committee’s the breach ap- did not procedures available grievance solu- This decision. its 1978 to fusal alter plaintiff the claim which on pear to address wholly under- tion, appealing, however court). sought relief pendency rule the District’s mines rejecting not toll the these cases proceedings panel does reads The grievance of permissive of pendency theory that statute. the statute procedures tolls grievance has inter- case law body of A discrete claims concern- Kyriakopoulos’s finds thus context of limitations preted statutes Al- to be barred. 1978 decision ing the decisions, particularly employment wise, self-evidently is not the rule though relations. university-faculty realm of in the oddly ears certainly sounds State Delaware 442-43. Maj.Op. dismissing the claims judges accustomed 250, 101 S.Ct. Ricks, College exhaust failed to have litigants who college profes- (1980), a L.Ed.2d remedies, to be District appears such their violat- his denial tenure alleged that sor law. Act of Rights of the Civil Title VII ed both rule negates (1981), majority seq. et But 2000e 42 U.S.C. § consider court Supreme instructing the district (1982). The 42 U.S.C. § regarding claims merits remand the applicable statute held plain- flaws that As the 1985 decision. time run at began limitations nothing add tenure, 1985 decision tiff finds deny its College decision made is one process, the situation to 1978 that the new argument professor’s rejecting the simply has failed defendant tolled procedures grievance pendency F.2d Fitzgerald, wrong. See right a period: running of the claim, timely a valid and To assert complaining grievance [Ejntertaining new allege that some must suggest does decision tenure mere from the failure illegality, distinct any re- inwas earlier decision decision, Universi- caused cure proce- spect tentative. disposi- original in its persistence ty’s 1985 remedy for a nature, is a dure, by tion. to in- decision, opportunity not an prior easy will be principle it is made. this before Application that decision fluence example, For cases. proce- in some of careful existence ... The the Board count, alleging that fourth los’s tenure fairness in assure dures to procedures violated of Trustees principle obscure should not decision running the recommenda could start the statute anew so in 1984 it overrode when Hearing long brought and Grievance Commit as whatever was novel in it tion of the tees, Maj. Op. see at alleges rejection. the continued If about the Per- all) (if wrong rejected Kyriakopoulos distinct error which sonnel Committee would constitute a new breach.1 in 1978 because of undue insistence on publications, straight- in refereed but spectrum, if At the other end of reject ened out that error and went on to in Kryiakopoulos had claimed that 1978 the him because of an excessive reliance on Personnel Committee denied evaluations, I classroom would have no dif- improper insistence on refereed because ficulty finding originating a claim in 1985. then in 1985 did so for the publications and remand, claims same reason on both would analysis, appears thisOn essential The same would of course be time-barred. rule, preserve Kyriakopou- the District’s illegality com- true if the identical were fifth and causes are los’s sixth of action by university body. Un- mitted a second These claims time-barred. resemble the allegations less are considered both hypothetical university of successive deter- every appeals panel affirms untimely, minations that make the same substantive original automatically cre- decision will complaint, Kyriakopoulos error. In his breach, thereby negating the ate a new claims that in and in relevant Ricks, Fitzgerald rule articulated university improper authorities focused on the other cases. majority criteria. Neither he nor the iden- any alleged tifies error made 1985that is easy classify hypothetical These are distinct from the 1978 flaws. On the con- are either iden- because the errors involved trary, majority espe- states that “[o]f diffi- clearly tical or dissimilar. The more cial concern the resolution of the fifth [in allegations in- arise cult cases when and sixth causes of is the trial action] degrees or manifestations volve different court’s treatment of whether example, type of error. For same promotion,” Maj.Op. los fact merited alleges that one Professor primary and its concern seems to be properly merit assessed reason his was plaintiff’s allegations of undue reliance 1978 and 1985 is that the Personnel both publications, Maj.Op. on refereed 447. or Committee was motivated bias bad allegations These are no different from might concerning claims faith. When arising those from the 1978 decision. See escape the bias in the 1985 decision bar Complaint (alleging Second Amended at 4 If the the statute of limitations? evidence “ig- that in 1978 the Personnel Committee professor joined indicated that new expressly nored stated criteria for 1978 and Personnel Committee between plaintiff’s motion in such as that stat- against Kyr- 1985 and that she was biased ing teaching that a balance between why her iakopoulos, I can see reason desirable, research while instead was re- wrong, would not constitute a new bias quiring plaintiff higher meet ... levels prevail could he if (defendant performance”); see also id. prove pres- could that the new member’s promote plaintiff refused to “for ... other the adverse outcome in ence determined merits”); reasons unrelated to the at 6 id. increase in the bias of one 1985. Even an (defendant implied breached covenant of or committee members more good by “failing grant faith to consider and claim, long could create a new so as the merits”). plaintiff’s promotion on the the in- plaintiff could show was per- caused the committee to crease that majority suggests that Delaware error. severe supports College State v. Ricks its view. Maj.Op. 448. There the Court held Similarly, even where the two errors take that the statute started to run on the ten- relying on “reasons unrelated the form of denial, later; discharge year actually promotion,” ure not the to whether he phase occurred at the tenure Maj.Op. at the error the later discrimination majority’s disposition I of this count. concur falling short qualify as that would Perhaps the end discharge denial, respect independent breach of an ineluctable conse simply an was year next errors, although strictly as the substantive at 101 S.Ct. at 449 U.S. quence. depend on it seem to logical matter would a that for the Court observes When 503-04. the decider’s approval of initial panel’s the the dis with start anew statute to the is thin for the But this solace approach. allege and have to would charge, “Ricks gave employ- university; if the contract employ manner which that the prove university this right a to review ee discriminatorily differed terminated ment might a court strongly suspect that body, I College ter in which the manner from of to be breach silent a find the treatment also who had professors minated obligations. university’s procedural 258, 101 tenure,” at denied been Moreover, panel is the review even when for this says only that event it at S.Ct. explain to its deci- legal obligation under no statute, involve a new it must restart natural sion, so out of likely it do orig in the discrimination, inherent one not why he to tell the loser impulse and decent my position fit That seems to decision. inal virtually certain Thus, to me it seems lost. reading of majority’s exactly.2 The analysis pro- of majority’s mode that the the Court’s wholly undercuts sentence plaintiffs can cir- method which vides a griev pendency of that the statement clear its application of the District’s cumvent toll the statute. does not proceedings ance proce- grievance of limitations statute S.Ct. Id. proce- where those every dures case a of posit class majority seems The employed. are dures “merely university body where some cases procedure] to grievance declines [in breach,” opposed to remedy initial] [the “independently breach- where instances Maj.Op. at the contract. provision of a es” the Board of It cites the action 448. But of example. here as an

Trustees Petitioner, BONILLA, Amelia no substantive here Board made course all; Person- it remanded decision (and agree that that we all nel DIRECTOR, OF OFFICE WORKERS’ violation, would constitute act, if a contract PROGRAMS, U.S. COMPENSATION breach). LABOR, George fresh a OF DEPARTMENT Hospital Aetna town ais sub- hard to conceive I find What Respon Surety Company, Casualty & would not remedy that failure stantive dents. majori- breach under a new constitute on remand here Suppose view. No. 87-1748. ty’s said, simply “We Appeals, States Court United Pre- in the initial decision.” error find Circuit. District Columbia endorse- represent an would sumably that 19, 1989. Jan. reasoning of fact-finding and of the ment decision, WALD, Judge, be infected and thus initial Chief Before: GINSBURG, they were even Circuit Suppose errors. and D.H. MIKVA taciturn, only “No relief.” and said Judges. more by univer- libels made by any to successive brief as

2. I do not read proce- Compare sity majority’s University’s argument in the course accepting view. bodies means Maj.Op. suits Maj.Op. 448. defamation dure. See most, "at are causes action tort. fifth and sixth new publication each constitutes breach, and not Smolla, the 1978 to cure § 4.13[4] a refusal Rodney of Defamation A. Law contract,” Appellee Brief for separate breach Here, that the (1986). prevailing cases hold contention that me in context seems to pan- panel initial persistence aof review a new is not persistence in old error mere contract a new opinion constitute does not el’s breach. breach. majority’s the relevance I do see statute hypothetical

Case Details

Case Name: Nicholas Kyriakopoulos v. George Washington University

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jan 13, 1989

Citation: 866 F.2d 438

Docket Number: 1989

Court Abbreviation: D.C. Cir.