2009-438, Mara Sabinson v. Trustees of Dartmouth College

The plaintiff, Mara Sabinson, appeals an order of the

Felmly & a. on the brief, and Mr. Felmly orally), for the defendant. McLane, Graf, Raulerson & Middleton, P.A., of Manchester (Bruce W.

and orally), for the plaintiff. Clauson Atwood & Spaneas, of Hanover (K. William Clauson on the brief to press. Errors may be reported by E-mail at the following address:

page is: http://www.courts.state.nh.us/supreme. MARA SABINSON

No. 2009-438 editorial errors in order that corrections may be made before the opinion goes Grafton Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New ___________________________

THE SUPREME COURT OF NEW HAMPSHIRE

a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as p. 2 Scherr did not disclose the committee’s findings to her during this meeting. changing her teaching assignments. Sabinson alleges that Grenoble, Folt and

professor in the Theater Department. with Harris against Scherr, Folt, Grenoble, and Margaret Spicer, another

suffered grievously from the presence of Mara Sabinson.” Specifically: authored a confidential letter concluding that “the Theater Department has projects, and professional and pre-professional alliances. The committee also 2 colleagues. meetings; of the threat she was felt to represent to junior and adjunct

findings of the committee, offering her an early retirement package and

constructively discharged her. Sabinson then filed a Grievance Report Form

and related issues, curriculum, performance experience and culminating

the opportunity to teach “Acting for the Camera and three first-year seminars, ideas of her colleagues; of her uncollegial behavior in Department On August 16, 2005, Grenoble sent Sabinson an email offering Sabinson

testified that they met with Sabinson on June 3, 2005, and discussed the

department to serve the needs of the students.” Dartmouth had violated Sabinson’s rights as a tenured professor and had On June 10, Sabinson’s counsel contacted Dartmouth and alleged that the President for Institutional Diversity and Equity, to discuss her situation. On June 6, 2005, Sabinson met with Ozzie Harris, Special Assistant to May 2005. The committee made a variety of recommendations about personnel Department, and produced a report detailing its findings (Committee Report) in a committee of three professionals conducted a partial review of the Theater rehearsal; of her unfavorable comments to students about the work and treatment of students both in class and (when she was directing) in influence of [Sabinson]. We heard various anecdotes of her harsh Provost Barry Scherr, Dean of the Faculty Carol Folt, and Grenoble

the faculty . . . to work together was interfering with the ability of the retirement package” and “marginalize[ ] [her] to certain courses.” The committee recommended that Dartmouth “persuasively offer[ ] [Sabinson] a

classes and her directorship of the 2005-2006 main stage production. In 2005,

Those interviewed, faculty and students alike, depict the corrosive

department, which suggested a need for “external leadership”; “the inability of into “receivership” because of the contentious atmosphere within the into “receivership.” Grenoble testified that the Dean placed the department

Subsequently, Grenoble reassigned one of Sabinson’s advanced acting

Theater Department because the Dean of the Faculty placed the department who was Associate Dean for the Faculty of the Humanities, became chair of the p. 3 The First Circuit Court of Appeals affirmed.

days to respond. to the motion for summary judgment and failing to grant her motion for thirty than the contract claim, over which it declined to exercise pendant jurisdiction. Dartmouth’s motion for summary judgment on the remaining claims other district court dismissed the constructive discharge claim, and granted

failing to rule upon her motion to strike Dartmouth’s response to her objection We review the trial court’s application of the law to the facts de novo. Id. the moving party is entitled to judgment as a matter of law, we will affirm. Id. material fact, retaliation, breach of contract, and wrongful discharge and demotion. The i.e., facts that would affect the outcome of the litigation, and if 159 N.H. 711, 715 (2010). If this review does not reveal any genuine issues of the light most favorable to the non-moving party. S.N.H. Med. Ctr. v. Hayes, the affidavits and other evidence, and inferences properly drawn from them, in When reviewing a trial court’s grant of summary judgment, we consider

right to teach certain courses; (3) failing to comply with RSA 491:8-a; and (4) procedural requirements; (2) finding that Sabinson did not have a contractual by: (1) ruling that Dartmouth was not required to comply with certain On appeal, Sabinson’s primary arguments are that the trial court erred court, alleging discrimination based upon her age, gender, and religion,

c ourt granted summary judgment in favor of Dartmouth. a breach of contract claim against Dartmouth in the superior court, and the Dartmouth College, 542 F.3d 1, 3 (1st Cir. 2008). Subsequently, Sabinson filed

Human Rights. Sabinson later filed suit against Dartmouth in federal district Opportunity Commission (EEOC) and the New Hampshire Commission on Subsequently, Sabinson filed a complaint with the Equal Employment

assigned to teach those courses.” ‘First Year Seminars’ would all be Theater Department Courses, if you are reference to teaching outside the department. ‘Acting For the Camera’ and the The next day, Grenoble responded that her “proposal does not contain any

harassment which you promised if I did not accept your terms. I regard your thought of courses outside of the department to be the You should pass your new thoughts on to the new chair. e mail of 11-18-2004 when you were chair of the department. I already heard from you as to my schedule for the current year by your

Sabinson replied: to be designed on the topic of your choice” for the 2005-2006 academic year. and to recommend appropriate action to the Trustees:

p. 4 when determining “whether adequate cause exists for any disciplinary action ordinary agreements.” The Agreement sets forth procedures to be followed other major changes in the conditions of employment that diverge from the

appointment with tenure . . . involuntary leave from College duties, or any

first be considered by the Dean of the appropriate faculty . . . . If

requires adequate cause.” “Such action may include termination of an

of the Organization of the Faculty of Dartmouth. The Agreement provides: that diverge from the ordinary agreements.” action” because it was not a “major change in the conditions of employment a. Allegations that adequate cause exists for disciplinary action shall

“Disciplinary action against a faculty member for unsatisfactory service . . .

Freedom, Tenure, and Responsibility of Faculty Members (Agreement) as part Dartmouth has promulgated an Agreement Concerning Academic the Agreement. Dartmouth counters that the assignment was not “disciplinary Theater 7, Spring 2009. Theater 7, Spring 2009 . . . Theater 7, Fall 2008, Theater for Social Change Theater 7, Spring 2008, Theater for Social Change Theater 7, Spring 2008, Theater for Social Change Theater 7, Winter 2008, Theater for Social Change Theater 21, Winter 2008, Topics in American Theater Theater 7, Spring 2007, Theater for Social Change Theater 10, Spring 2007, Cabaret Theater 7, Winter 2007, Theater for Social Change court erroneously concluded that she waived her procedural protections under Theater 10, Winter 2007, Newspaper Theater with the procedures set forth therein. Sabinson also contends that the trial Theater 10, Spring 2006, Edward Albee disciplinary action under the Agreement, and that Dartmouth failed to comply Theater 7, Spring 2006, Theater for Social Change Theater 7, Winter 2006, Acting Issues Theater 34, Winter 2006, Acting for the Camera

Since 2005, Sabinson has taught the following courses:

We first consider Sabinson’s argument that the reassignment constituted

debt cases. Iannelli v. Burger King Corp., 145 N.H. 190, 192 (2000). Summary judgment is most effectively used in breach of written contract or all, for [her] characterization.”

p. 5 evidence does not support any dispute of material fact, or factual support at assigned writing courses fell “outside of her department,” finding that “the something less.” The trial court also rejected Sabinson’s contention that the

than the default four courses per year,” or a “shift from a full-time position to

a “major change” because it was not “an inequitable division of labor, rather benefits. The trial court concluded that Sabinson’s course assignment was not reassignment was neither a reduction in employment nor a reduction in

compensation.” Unlike the enumerated actions in the Agreement, the

Agreement “entail discontinuation of employment” or “discontinuation of court reasoned that the disciplinary actions specifically described by the Agreement does not define “major change” or “ordinary agreements,” the trial

protections apply whether or not a faculty member files a complaint.

employment that diverge from the ordinary agreements.” Noting that the

trial court concluded that, under these circumstances, the procedural 5 conditions of employment that diverge from the ordinary agreements.” The involuntary leave from College duties, or any other major changes in the Council on Academic Freedom and Responsibility for further action. for disciplinary action. This statement shall be transmitted to the

Agreement and did not constitute a “major change[ ] in the conditions of

termination of a nontenured appointment before the end of its specified term,

allegations are substantially true, they might constitute adequate cause

constitute “[d]isciplinary action” because it was not enumerated in the

“[s]uch action may include termination of an appointment with tenure, may be effected by the College only for adequate cause.” Under the Agreement, “[d]isciplinary action against a faculty member for unsatisfactory service . . . reasonable particularity, citing their sources and the reasons why, if the evidence warrants, the Committee shall state the allegations with However, the trial court concluded that the reassignment did not on a satisfactory disposition is not reached and the Committee finds the

The trial court considered the portion of the Agreement that provides that

complaints against faculty. preliminary, informal proceedings. If agreement with the faculty member Dartmouth also has procedures for “Equal Opportunity Grievances” and contains a grievance procedure for complaints regarding faculty members. The Handbook of the Faculty of Arts and Sciences (Handbook) also appropriate committee of his or her faculty.

b. The Committee shall examine the allegations and their sources in

the faculty member, the Dean shall transmit the allegations to the mutually agreeable arrangements cannot be made between the Dean and involuntary leave from College duties, or any other major changes in the p. 6 termination of a nontenured appointment before the end of its specified term, cause. Such action may include termination of an appointment with tenure,

against a faculty member for unsatisfactory service . . . requires . . . adequate

reasonable person would give to it. Agreement. Dartmouth was not required to follow the procedures set forth in the was “outside the ‘ordinary agreements.’” matter of law, the reassignment was not a “major change.” Accordingly, evidence; and (5) the reassignment after the beginning of the academic year common meanings of the words “major” and “change,” we conclude that, as a determining what constitutes a “major change” required hearing factual writing courses. Based upon the plain language of the contract and the terminated nor placed on involuntary leave, but has been assigned to teach employment and/or compensation. Here, Sabinson has neither been change.” As noted above, the Agreement provides that “[d]isciplinary action “major changes,” which involve, as the trial court noted, the cessation of status, course, or direction to.” Id. at 373. The contract lists examples of “change” is “to make different . . . alter, modify . . . to give a different position, International Dictionary 1363 (unabridged ed. 2002). The common meaning of ascertain the intended purpose of the contract based upon the meaning that a or scope . . . considerable, principal . . . serious.” Webster’s Third New common meaning of “major” is “large, great . . . notable or conspicuous in effect conditions of employment that diverge from the ordinary agreements.” The

similar to the enumerated examples in the Agreement of a “major change”; (4)

We agree with the trial court that the reassignment was not a “major

Dartmouth did not discipline Sabinson. Id. course assignments, and argues that the evidence demonstrates that the words and phrases used by the parties their common meaning, and the parties’ intent from the plain meaning of the language used. Id. We assign at the time of the agreement, and, in the absence of ambiguity, we determine interpretation of a contract de novo. Id. We focus on the intent of the parties Servs. of N.H., 157 N.H. 487, 492 (2008). Accordingly, we review a trial court’s punishment; (3) the reassignment destroyed her career and was therefore question of law for this court to decide. Foundation for Seacoast Health v. HCA department; (2) the assignment was both unprecedented and a humiliating Dartmouth and Sabinson. The interpretation of a contract is ultimately a courses were part of a separate first year writing program outside of the theater We assume without deciding that the Agreement was a contract between

has failed to offer evidence of any “ordinary agreements” that would govern her

reassignment was a “major change.” Specifically, she argues that: (1) the Sabinson makes several arguments in support of her contention that the facts under the doctrine of collateral estoppel. p. 7 findings,” but that, if the trial court did so rely, both parties are bound by those

must determine whether a reasonable basis exists to dispute the facts claimed

ignored certain statements and evidence.

address them.

advance . . . and because of her contract of tenured employment. relied upon facts established by the federal district court. Dartmouth counters

weigh the contents of the parties’ affidavits and resolve factual issues, but When considering a motion for summary judgment, the trial court cannot when it relied upon facts established by the federal district court; and (2) party is entitled to judgment as a matter of law. Iannelli, 145 N.H. at 192. that there is no genuine issue as to any material fact, and that the moving provide adequately developed legal argument and legal support,” we will not Under RSA 491:8-a, III, the moving party has the burden to demonstrate

“[n]o faculty member has a vested right in any course”). the needs of the department and the capabilities of other faculty members” as budgetary policy of establishing course allocations one year in We first consider Sabinson’s argument that the trial court improperly publication of the 2005-2006 course offering list . . . and [Dartmouth’s] specific contract to teach those four courses formed by [Dartmouth’s]

491:8-a because the court erroneously: (1) applied the wrong burden of proof court, Sabinson argued that Next, Sabinson alleges that the trial court failed to comply with RSA upon on appeal. We decline to speculate. Because Sabinson has failed “to

1977) (noting that faculty members must “adapt their schedules to conform [to] courses. Cf. Cussler v. Univ. of Maryland, 430 F. Supp. 602, 608 (D. Md. proposition that a tenured professor has a contractual right to teach specific Theater 31 and Theater 34 . . . and Theater 30 . . . because of both a __, __ (decided April 9, 2010). Moreover, Sabinson cites no authority for the

See Motorsports Holdings, LLC v. Town of Tamworth, 160 N.H.

Grenoble assigned her to teach three first year writing courses. Before the trial Sabinson has failed to explain which of these arguments, if any, she relies

she had substantive rights to teach her preapproved, published courses,

Dartmouth breached that agreement when, following her EEOC complaint, certain courses] as of the beginning of the academic year on July 1, 2005,” but Sabinson next argues that she had a specific “assignment [to teach

p. 8 summary judgment on her contract claim,” and that the trial court relied upon

the trial court erroneously ignored her affidavit, which “is obviously relevant to

of credibility” that should be resolved by a jury. Finally, Sabinson alleges that

Grenoble’s affidavit contains “false” statements and claims, these are “[i]ssues because the Grenoble and Sabinson affidavits contradict each other, and assigned to teach” a first year writing seminar. Sabinson also alleges that,

judgment to Dartmouth omitted that “no tenured professor had ever been

and counsel for Dartmouth in June 2005; and (5) the order granting summary complaint with the EEOC; (4) the trial court ignored her complaint to Scherr assignment for the 2005-2006 academic year until shortly after she filed a

class and that the faculty did not suggest that she change her teaching

breached that agreement. contract between Sabinson and Dartmouth; and (2) whether Dartmouth the primary issues in this case, which are: (1) the nature and existence of a

trial court erred. omitted her statement that she would “never again” teach a first year writing the committee’s report with Sabinson on June 3, 2005; (3) the trial court in the first place”; (2) it is “untrue” that Grenoble, Folt and Scherr discussed

allegations, none of the factual disputes that she highlights are “material” to

applied the wrong standard of proof. or existence of these documents, and there is no indication that the trial court Department of Theater at Dartmouth.” Sabinson does not dispute the contents affects outcome of the litigation). Accordingly, we cannot conclude that the

“Saccio’s testimony and notes . . . that these were the Committee’s instructions

breach of contract claim.” We agree. Even assuming the truth of Sabinson’s Sabinson contends requires credibility determinations is not material to her were no genuine issues of material fact “because the affidavit testimony [that] Dartmouth contends that the trial court correctly concluded that there

Agreement, the Handbook, and a document entitled “Overview of the

marginalized to certain courses” but ignored her affidavit and Professor

when the trial court addressed the parties’ arguments, it relied upon the the federal courts that decided Sabinson’s original claims, relevant.” However, summary judgment order, that it “finds the following facts, as determined by the trial court relied upon the Committee Report recommending that she “be ignored certain statements and evidence. Specifically, Sabinson argues that: (1) We next consider Sabinson’s argument that the trial court erroneously

The trial court stated, in the “Factual Background” section of its

(2003). outcome of the litigation. Weeks v. Co-Operative Ins. Cos., 149 N.H. 174, 176 motion for summary judgment. Id. at 191-93. A fact is material if it affects the in the moving party’s affidavits at trial; if so, the trial court must deny the p. 9 Neither party has provided us with Sabinson’s motion to strike Dartmouth’s

court had the discretion to permit it. that RSA 491:8-a does not prohibit its responsive pleading, and that the trial “contrary to RSA 491:8-a” and her due process rights. Dartmouth counters court to function effectively and do its job of administering justice.” of the court and the environment of the court is absolutely necessary for a

discretion when it permitted Dartmouth to file a supplemental pleading.

however, does not specifically identify the testimony to which she is referring, respond.” Sabinson also contends that this testimony is “untrue.” Sabinson, obstructed by imaginary barriers of form.” respond. Sabinson contends that Dartmouth’s response to her objection was testimony in its Reply to which Professor Sabinson never had an opportunity to Dartmouth in its reply, and contends that “Dartmouth cites deposition control its own proceedings, the conduct of participants, the actions of officers reply. Sabinson disputes arguments and factual representations made by

before us, we cannot conclude that the trial court unsustainably exercised its her case. State v. Lambert, 147 N.H. 295, 296 (2001). Based upon the record demonstrate that it was clearly untenable or unreasonable to the prejudice of proceedings before it. To show that the trial court’s decision is not sustainable, Sabinson must

Procedure, 139 N.H. at 516 (quotation omitted).

suppress before or during trial). “[J]udgment, and any necessary process for court erroneously permitted Dartmouth to file its responsive pleading without Dartmouth’s motion for summary judgment. Sabinson argues that the trial pleading, as both are silent on the subject. “The power of the judiciary to Super. Ct. R. 94 (trial court has discretion to decide whether to hear motion to and scope of pre-trial discovery left to the sound discretion of trial court); Petition of Haines, 148 N.H. 380, 381 (2002) (generally, control over breadth and as justice may require, the court may waive the application of any rule.”);

513 (1995). As such, the trial court enjoys the discretion to regulate the of the courtroom”); see In re Proposed Rules of Civil Procedure, 139 N.H. 512, LaFrance, 124 N.H. 171, 179-80 (1983) (noting that “the judiciary is in charge

responsive pleading, Sabinson moved to strike. The trial court granted Court Rules prohibit the trial court from permitting Dartmouth to file such a was within the trial court’s discretion. Neither RSA 491:8-a nor the Superior We conclude that the decision to permit Dartmouth’s responsive pleading

Dartmouth’s motion for summary judgment. Following Dartmouth’s permitted Dartmouth to file a responsive pleading to her objection to Finally, we consider Sabinson’s argument that the trial court erroneously

RSA 490:3, concurred. HICKS, J., concurred; BROCK, C.J., retired, specially assigned under

Affirmed

N.H. 321, 322 (1993). are without merit and do not warrant further discussion. Vogel v. Vogel, 137 We have reviewed Sabinson’s remaining arguments and hold that they

when it permitted Dartmouth to file its reply. cannot conclude that the trial court unsustainably exercised its discretion untenable or unreasonable to the prejudice of [her] case.” Id. Accordingly, we and does not explain how the admission of this testimony was “clearly