On Appeal from the United States District Court for the District of New Jersey, D.C. Civil No. 85-3841.
Gibbons, Chief Judge, Seitz, Higginbotham, Sloviter, Becker, Stapleton, Mansmann, Greenberg, Hutchinson, Scirica, Cowen and Rosenn, Circuit Judges.
The Board of Trustees of the University of Medicine and Dentistry of New Jersey, Stanley Bergen, president of that University, Vincent Lanzoni, dean of its New Jersey Medical School, and Carroll M. Leevy, chairman of that Medical School's Department of Medicine, appeal from a district court order, filed June 27, 1986, in the suit against them by Margo P. Cohen. In that suit Dr. Cohen, relying on 42 U.S.C. § 1983, and on New Jersey law, contends that the university, and the president, dean, and department chairman, individually, violated her constitutional and common law rights by denying her tenure on the faculty of New Jersey Medical School. The order appealed from was entered as a result of cross-motions for partial summary judgment pursuant to Fed.R.Civ.P. 56(d). (158a, appendix). Dr. Cohen also moved "for a preliminary injunction preventing defendants from removing [her] from her position with the University . . . until disposition of the merits of the litigation." (150a). In relevant part, the order provides:
Ordered that defendants' motion for partial summary judgment be denied; and it is further
Ordered that plaintiff's motion for partial summary judgment as to the 42 U.S.C. § 1983 [claim] be granted, stating that plaintiff has a cognizable interest in tenure; and it is further
Ordered that plaintiff remain in her position until such time as a hearing be held and a determination reached that she should or should not be terminated for cause; . . .*fn1
Upon the entry of this order the defendants moved for an order amending it to include the statement pursuant to 28 U.S.C. § 1292(b) that the order involves a controlling question as to which there is a substantial ground for difference of opinion, and that an immediate appeal would advance the ultimate termination of the litigation. The district court denied the motion to amend. The defendants then filed a notice of appeal from the order "denying the individual defendants qualified immunity and enjoining the defendants from terminating plaintiff." (230a). We will reverse the order declaring that the plaintiff has a cognizable interest in tenure and enjoining the University to keep Dr. Cohen in her position until a hearing is held and a determination reached that she should or should not be terminated for cause.
The Summary Judgment Record
The summary judgment record is sparse. It consists of Dr. Cohen's initial three count complaint, filed on August 1, 1985, her amended eight count complaint filed on October 9, 1985,*fn2 the defendants' answer to the amended complaint, filed on November 14, 1985, the defendants' motion for partial summary judgment, and Dr. Cohen's motion for partial summary judgment and a preliminary injunction, which is supported by her affidavit, to which is attached six exhibits. The exhibits include Dr. Cohen's curriculum vitae, several letters, and one minute of a meeting of the tenured faculty of the department of medicine. The parties have included in the appendix to the briefs in this court a number of other documents, including other minutes, correspondence, answers to interrogatories, the bylaws of the University of Medicine and Dentistry of New Jersey and of the New Jersey Medical School, and the Guidelines and Procedures for Appointment and Promotion of the University of Medicine and Dentistry. These other documents have not been docketed as a part of the district court record, but apparently were before the district court, probably as a part of the appendix to defendants' district court brief. The contents of that appendix were not docketed. Many of the documents are referred to in the district court's opinion, and both sides rely on them here. Since the proceedings in the district court involved both a Fed.R.Civ.P. 56(d) motion and a Fed.R.Civ.P. 65(a) motion, the other documents might have been marked in evidence during a Rule 65(a) hearing, but apparently they were not. Since, however, the parties do not dispute the authenticity of the other documents, and the trial court relied on them in deciding the parties' respective motions, we will consider them to be part of the summary judgment record without requiring any formal proceedings under Fed. R. App. P. 10(e).
That record establishes that Dr. Cohen, a diplomat of the American Board of Internal Medicine and the American Subspecialty Board of Endocrinology and Metabolism, was formerly a tenured professor at the Wayne State University of Medicine. On April 22, 1982, Dr. Leevy wrote on behalf of the department of medicine offering Dr. Cohen "appointment to the rank of Professor with a three year probationary term for tenure which is the routine now in force for the University." The letter provided that if the conditions it outlines were satisfactory, Dr. Cohen should sign and return the original copy to Dr. Leevy, who would "then forward the recommendation for your appointment to the tenured faculty in the Department of Medicine, then to the Dean, Faculty Council, and Board of Trustees." (4, 5a). Dr. Cohen signed and returned the letter.
On July 30, 1982, Dean Lanzoni wrote to Dr. Cohen advising her that the board of trustees approved her full-time appointment as a professor for the period August 16, 1982 through June 30, 1985. Dean Lanzoni's letter states:
This appointment is subject to the By-Laws of the UMDNJ, the NJMS, and any other revisions thereof.
The letter requested that Dr. Cohen indicate her agreement with it by signing and returning the original to Dr. Lanzoni. She did so. In August of 1982, she moved from Wayne State to New Jersey Medical School.
On December 8, 1983, Dr. Cohen wrote to Dr. Leevy:
In that approximately 15 months have elapsed since I joined the Faculty at the University of Medicine and Dentistry of New Jersey, it seems prudent to me to implement the necessary paper work at this time to effect tenured status on my behalf. To this end, I am therefore enclosing a copy of my updated curriculum vitae, as well as a separate list of publications and grants awarded during the interval since my appointment at the University of Medicine and Dentistry of New Jersey.
I trust that you will let me know if any further information is needed so that I can supply such without delay.
(26a). Dr. Leevy responded on January 13, 1984:
The timing and procedure for giving you tenure have been investigated. Your appointment by the Board of Trustees was June 30, 1982, and, in accordance with the three year probationary period, you will be proposed for receipt of tenure in June of 1985.
(101a). Dr. Leevy advised Dr. Cohen as to the information that should be made available to the tenured faculty in the fall of 1984. She was advised of the necessity for information on her contributions to patient care. Dr. Leevy observed that her accomplishments were "quite praiseworthy" and opined that if the faculty committee was advised of her achievements in education, patient care, research and administration, "I am sure there will be no problem." Id.
On June 25, 1984, the tenured faculty in the Department of Medicine met
to vote on a proposal that Dr. Margo Cohen, who had been appointed Professor of Medicine in the Department of Medicine with a three year probationary period for tenure, be recommended for tenure at this time.
(145a). This would have shortened the probationary period by a year. Dr. Leevy reported favorably on Dr. Cohen's research program, but noted that there were complaints from course directors about her educational activities and that there was no report on her patient care performance since she had not served as an attending physician at University Hospital. The tenured faculty voted (17-0) "that Dr. Cohen be recommended for tenure in one year." The effect of this vote was to decline to accelerate the tenure decision. After the meeting, Dr. Leevy wrote to Dean Lanzoni:
Based on the recommendation of the tenured faculty (17-0-0) the Department plans to propose Dr. Margo Cohen for tenure during the next academic year. In a discussion by this group it was felt that Dr. Cohen is fulfilling her education and research responsibilities. Although she has served as a subspecialty consultant and physician, it was noted that Dr. Cohen has not been an attending [physician] as required of all full-time faculty in the Department each year. She is scheduled to serve in this capacity in Firm C during the month of October and this should allow her to fulfill the general medicine patient care responsibilities.
(27A). A copy of this letter was sent to Dr. Cohen.
On April 4, 1985, the tenured faculty met again to consider whether to recommend Dr. Cohen for tenure. The tenured faculty noted that there were three criteria for tenure: clinical (patient care) activities, educational activities, and research activities. While her research activities were praised, some members of the tenured faculty found deficiencies in her patient-care activities and in her teaching. The faculty voted not to recommend Dr. Cohen for tenure. The vote was 21 against, 2 for, and 1 abstention. The tenured faculty then voted to recommend Dr. Cohen for a terminal year as a paid faculty member as a clinical professor of medicine. On April 15, 1985, Dr. Leevy wrote to Dean Lanzoni, with a copy to Dr. Cohen, as follows:
Members of the tenure faculty in the Department of Medicine have reviewed Dr. Margo Cohen's activities in education, patient care and research to determine if she should receive tenure. After formal deliberations, it was concluded (2 for, 21 against, 1 abstention) that she not receive tenure. Therefore, based on consultation with the tenured faculty and their recommendation, she is not proposed for reappointment with tenure at the New Jersey Medical School.
Dr. Cohen's current faculty appointment expires on June 30, 1985. In agreement with the tenured faculty (17 for, 1 against, 2 abstentions), it is recommended that she receive a change of title to Clinical Professor of Medicine and be given a one year terminal appointment.
(148a). Dean Lanzoni concurred in the recommendation of the department chairman and the tenured faculty.
On June 13, 1985, the board of trustees adopted the recommendation that Dr. Cohen not be granted tenure, and that she be given a one-year appointment as a clinical professor. Dr. Cohen was so advised in a June 14, 1985 letter from Dean Lanzoni. The letter notes that the appointment at clinical professor rank "does not carry tenure nor does it constitute a probationary period for tenure." (74a).
The appendix contains bylaws of both the University of Medicine and Dentistry of New Jersey (231a) and the College of Medicine and Dentistry of New Jersey. (277a).*fn3 The University bylaws were adopted by its board of trustees pursuant to N.J.S.A. 18A:64G-6(8). The University bylaws provide:
Article I. Construction and Application.
1. 1 These bylaws shall constitute rules of the Board of Trustees for governance of the University of Medicine and Dentistry of New Jersey (UMDNJ) as authorized by law. Nothing in these bylaws shall be construed as an infringement upon the powers and authority of the Board of Trustees or of the President. Where the faculty and administration exercise their authority to establish ...