Johns Hopkins University v. Ritter

WILNER, Chief Judge. On October 25, 1994, appellees, Samuel Ritter and Rebecca Snider, sued appellant, Johns Hopkins University, for breach of contract. They claimed that Hopkins had agreed to employ them as full professors of pediatric cardiology at the Hopkins Medical School, with tenure, effective January 1, 1994, and that it breached that agreement by discharging them as of December 31,1994. Hopkins defended on the ground that the employment contract did not include a commitment to a full professorship and tenure and that, even if such a commitment had been made, the person negotiating the contract for Hopkins had no authority to make it.

After a fifteen-day trial in the Circuit Court for Baltimore City, the jury returned a verdict in favor of appellees in the aggregate amount of $822,844. In this appeal, Hopkins complains that the case should never have been submitted to the jury — that, as a matter of law, there was insufficient evidence to establish a contract promising a full professorship and tenure. For the reasons stated below, we shall reverse the decision of the circuit court. Introduction: Tenure This case concerns “tenure,” and it is therefore important to understand what is meant by that term.

In education circles generally, and especially at the collegiate level, it denotes a ⁸¹ commitment by the school, as a direct or implied part of its faculty employment agreement, that, upon a determination that the faculty member has satisfied the conditions established by the school, the member’s employment will be continuous, subject to termination only for adequate cause. Tenure is said to be “awarded” when, in accordance with its policies and procedures, the school determines that the conditions have been satisfied and the faculty member is entitled to the protected status. Well over 90% of American colleges and universities, public and private, have a tenure system. It is a core part of the college-faculty relationship.

Although most tenure systems are based, to some extent, on the 1940 Statement of Principles and Interpretive Comments developed by the Association of American Colleges and the American Association of University Professors, there is no uniform tenure system. There appears, rather, to be a significant variety in the particular plans used in the nation’s colleges. As noted in Faculty Tenure, a Report and Recommendations by the Commission on Academic Tenure in Higher Education (1973), the 1940 statement was a statement of principles, “not a prescription of substantive institutional practice.” Id. at 2-3. The authors observe: “On every aspect of tenure, institutional policies and practices vary: definition of tenure; its legal basis; criteria for appointment, reappointment, and award of tenure; length of probationary period; categories of personnel eligible for tenure; relationship between tenure and rank; procedures for recommending appointments and awarding tenure; procedures for appeal from adverse decisions; procedures to be followed in dismissal cases; role of faculty, administration, students, and governing board in personnel actions; methods of evaluating teaching, scholarship, and public service; and retirement arrangements.

In all these and many more, the range of variation among the 2600 institutions of higher education (and sometimes even within institutions — from division to division or even from department to department) is enormous.” ⁸² Tenure may be afforded in a number of ways — by law, by contract, by moral commitment under an accepted academic code, or simply “by courtesy, kindness, timidity, or inertia.” Handbook of College and University Administration (Academic) 6-64 (Asa S. Knowles, ed., 1970). When provided by contract, its terms are usually stated in by-laws adopted by the school and published in a handbook. The Hopkins Medical School has a tenure system established by contract. Its terms are set forth in a document entitled Policies and Guidelines Governing Appointments, Promotions, and Professional Activities Of The Full-Time Faculty Of The Johns Hopkins University School Of Medicine (1972), commonly referred to, by those who have reason to refer to it, as the Gold Book.

The Gold Book does not mention tenure by name. It identifies the categories of faculty ranks, which, for our purposes, include Instructor, Assistant Professor, Associate Professor, and Professor, and sets forth the criteria and procedures for appointment, reappointment, and promotion to those ranks. Normally, a person progresses through the ranks, beginning with that of Instructor. Instructors receive a one-year contract, renewable twice.

Generally, an Instructor’s contract is not extended beyond the third year; at the end of three years, the Instructor is evaluated and either recommended for promotion to Assistant Professor, let go, or, in special cases, retained for one more year. Assistant Professors receive contracts, of from one to five years but are not retained in that rank for more than 10 years. They are evaluated after seven and nine years for possible promotion to Associate Professor. Associate Professors generally receive a three-year contract.

They must be reviewed after six and nine years, with four possible options: promotion, but at the same rank, for three years; “contract to retirement,” which is the Hopkins articulation of tenure; reappointment at rank, without promotion, for three years; or a terminal two-year contract. ⁸³ There is a five-step process for appointment or promotion to the rank of full Professor. First, the Director of the Department reviews the candidate’s credentials with the aid of a departmental or interdepartmental committee and forwards a recommendation to the dean. Second, the dean forwards a recommendation to the Professorial Promotions Committee, a committee appointed by the dean. That committee, as a third step, reviews the dean’s recommendation and makes a recommendation to the Advisory Board of the Medical Faculty.

The advisory board reviews the committee’s recommendation and sends any favorable recommendation to the Board of Trustees of the University for approval. That is the fifth and final step. If the Board of Trustees approves, the dean notifies the candidate of his or her appointment/promotion. The Facts The dispute here arises from an attempt by Hopkins to strengthen its division of pediatric cardiology which, according to appellees, had fallen into, at best, a state of mediocrity.

Hopkins once had a first-class division of pediatric cardiology; it was founded by Dr. Helen Taussig. After her death in the 1980’s, however, the division suffered a significant decline. According to Dr. Ritter, by 1992, Hopkins no longer had a “national presence” in that field — in clinical research, in the care of patients, or in the attracting and training of physicians. Hopkins was especially behind in the use of echocardiogra-phy, a non-invasive procedure using sound waves to provide data about the structure of the heart and the severity of any heart defects.

Although that procedure was widely used in other comparable institutions, Hopkins was deficient in it and, instead, relied primarily on cardiac catheterizations, which is an invasive procedure. In an effort to correct this deficiency in capacity and service, the chief of pediatric cardiology was let go and Dr. Frank Oski, Director of the Department of Pediatrics, formed a search committee in January, 1993, to find a new chief. ⁸⁴ At the time, Dr. Ritter was a tenured professor of pediatrics at Cornell University. He served as Chief of the Cornell Medical Center’s Department of Pediatric Cardiology and was a recognized leader in the field of pediatric cardiology. Among other accomplishments, he had developed and perfected the field of transesophageal echocardiography and had lectured extensively throughout the country and around the world on pediatric cardiology.

Doctor Snider’s credentials were equally impressive. When Hopkins began its search, she was serving as a tenured professor of pediatrics, with a subspecialty in cardiology, at Duke University. She had previously served as a tenured professor of pediatrics at the University of Michigan and had designed and built echocardiograph laboratories at both facilities. In addition to her contributions in the area of engineering echocardiograph equipment, she was recognized as an outstanding contributor to clinical research and an accomplished teacher on the subject of pediatric cardiology.

Drs. Ritter and Snider were married in January 1993 and thereafter began searching for an institution at which they both could teach. In February, 1993, when apprised of Hopkins’ search, Dr. Ritter contacted Dr. Oski by letter and informed him of both his and Dr. Snider’s interest in joining the Division of Pediatric Cardiology. On April 29, Ritter and Snider came to Baltimore at Hopkins’ request and expense, and engaged in two days of extensive interviews with Dr. Oski and other members of the search committee and faculty.

At the end of June, they returned for a second set of interviews, in the course of which, according to Dr. Ritter, Dr. Oski offered them both positions as professors of pediatrics. 1 Dr. ⁸⁵ Ritter was to be Director of Pediatric Cardiology and the Helen Taussig Professor of Pediatrics and Dr. Snider was to be Director of Echocardiography. Following this second meeting and the offers made, Dr. Ritter resigned his position at Cornell, effective September 1, 1993, and engaged in a round of correspondence with Dr. Oski regarding the terms of the new positions. During July and August, several letters were exchanged. In the first letter, of July 6, 1993, Dr. Ritter expressed his understanding that he and Dr. Snider would be “coming on board as full tenured professors of pediatrics in the university.” The rest of the letter concerned a variety of matters, including the personnel, equipment, and space needed for the division and for the echocardiography laboratory.

Dr. Oski responded on July 21. His letter also covered a number of items, but of particular interest here is his statement: “You will be proposed for appointment as Professor of Pediatrics and be designated as the Helen Taussig Professor of Pediatric Cardiology. Dr. Snider will also be proposed for appointment as Professor of Pediatrics. Appointments at the rank of Professor carries tenure.

As I mentioned to you during our phone conversation, I cannot promise you the rank of Professor. That must be decided by the Professors Appointment and Promotions Committee and approved by the Medical Advisory Board and the Dean. Your annual salary will be $150,000 plus fringe benefits, and the salary for Dr. Snider will be $135,000 plus fringe. These salaries are contingent on your appointments as Professors.” (Emphasis added.) Hopkins asserts that Dr. Oski enclosed a copy of the Gold Book with his letter, but it appears that the book was not sent ⁸⁶ until some time later. 2 Dr. Ritter responded to the July 21 letter on August 12, 1993, acknowledging the point made by Dr. Oski.

He said: “I will be proposed for an appointment as Professor of Pediatrics and designated as the Helen Taussig Professor of Pediatric Cardiology. Dr. Snider will be proposed for appointment as Professor of Pediatrics. Appointment at the rank of Professor carries tenure. We clearly understand that you cannot promise the rank of Professor: that must be decided by the Professors Appointment and Promotions Committee and approved by the Medical Advisory Board and the Dean. ...

The salaries [offered in the letter] are contingent upon appointments as professors.” (Emphasis added.) The correspondence between Drs. Ritter and Oski dealt with more than the issue of tenure; indeed, most of it concerned other matters, such as space, equipment, supporting personnel, and budgets for the new operation. On August 31, 1993, Dr. Oski wrote to Dr. Ritter regarding these matters. In that letter, however, he again addressed the subject of faculty appointments.

He confirmed that both Dr. Ritter and Dr. Snider would be “proposed” as Professors of Pediatrics and advised that the Professor’s Appointment and Promotions Committee meets on a routine basis, “and therefore we will not have a definitive decision until they have reviewed your curricula vitae.” The letter ended with Dr. Oski’s effusive hope and expectation that Drs. Ritter and Snider would provide the leadership necessary to rebuild the Division of Pediatric Cardiology. Drs. Ritter and Snider testified that, although they were well aware of the formal process for attaining professorial ⁸⁷ rank and tenure, they were repeatedly assured by Dr. Oski that their appointments would be “rubber stamped” and would not be a problem.

Dr. Snider said that, based on Dr. Oski’s statements to her during the recruitment process “that there would be no problem at all with regard to my achieving full tenured professor at Hopkins,” she resigned her tenured professorship at Duke and sold her home in North Carolina. Dr. Ritter was even more direct. He said that Dr. Oski “assured me that the procedure would simply be a rubber stamp and there would be no problem going through the process.” That assurance must have come in July, 1993, for it was then that Dr. Ritter resigned his tenured position with Cornell. Dr. Ritter said that he accepted Dr. Oski’s assurances because he knew that Oski chaired the Professorial Promotions Committee.

He and Dr. Snider were also relying on their own past experiences. Dr. Snider testified that, when she was recruited by Duke in 1992, which involved her resigning a tenured professorship at the University of Michigan, she was told by the chairman of the recruitment committee that he had shown her credentials to the chairman of the promotions committee, that there was no question that she would be awarded a full tenured professorship, that it was “just a matter of rubber-stamping to go through the committee,” and that, on that basis, she accepted the offer. She said that, when recruiting tenured professors from other universities, as opposed to promotions through career tracks, that was the general procedure. Dr. Ritter also asserted that this was the general practice around the coúntry, at least with respect to the recruitment of pediatric cardiologists: “The recruitment implies that one has the credentials to be recruited to such a position, and that, especially if one is recruited from a faculty position such as professor of pediatrics to another university as professor of pediatrics ... it needs to be presented formally, but the implication and universal acceptance amongst professors and heads of divisions is that this is essentially a done deal once the offer is ⁸⁸ made, that it’s simply a rubber stamp to go through the further committee work, and indeed, if it were otherwise ... it would virtually stifle any kind of interchange between universities and the recruitment process.” To some extent, Dr. Ritter’s view was confirmed by Dr. Douglas Moody, the head of pediatric cardiology at Cleveland Clinic.

Dr. Moody testified that, because the applicant needs to make a decision about moving, the prospective institution negotiates with them “their position as they’re coming into your institution.” To be able to do that, he continued, the recruiter needs to have cleared the offer with the institution. “In other words,” he said, “I don’t go out and state to somebody that you’re going to be a full professor, at least at the Cleveland Clinic, if I don’t have the full agreement, as part of the negotiation process in that recruitment, that they come in as a full professor.” Dr. Moody confirmed that the formal approval process can occur later, but that the result has been assured: “So it’s done honorably between people in the negotiation process that you negotiate that honorably with the individual that you come in as ... professor, because you have already told your institution, ‘This is how it has to be,’ and then in my experience they rubber-stamp that.” On September 13, 1993, the Administrator of Hopkins Children’s Center, Edward Chambers, wrote to Drs. Ritter and Snider, confirming their employment “at the Professor level” and stating their agreed salaries. Two weeks later, in response to a request for employment verification from a mortgage lender, he confirmed their appointments as “Professor” and stated that the probability of continued employment was “Excellent.” Dr. Oski advised Dr. Ritter to address himself professionally as “Professor” and allowed him to use the title “Professor of Pediatrics.” The formal appointment process began in October, 1993. On October 11, Dr. Oski wrote to Dean Michael Johns, formally proposing Dr. Ritter for appointment to the rank of Professor and enclosing a copy of his curriculum vita.

On November 1, he sent a similar letter with respect to Dr. Snider. ⁸⁹ Drs. Ritter and Snider started work at Hopkins on January 1, 1994, as agreed. By letter dated March 24, 1994, Dean Johns confirmed their 1993-94 faculty appointment as “Visiting Professor of Pediatrics.” Dr. Snider was aware that the title “Visiting Professor” was often used for someone awaiting formal approval as a full Professor. At some point not clear from the record, Dean Johns forwarded his favorable recommendations to the Professorial Promotions Committee, which then, through two investigative subcommittees, proceeded to review Dr. Ritter’s and Dr. Snider’s qualifications.

On July 14, 1994, the subcommittee reviewing Dr. Snider’s record presented to the full Committee its recommendation that she be appointed a full professor. The Committee immediately and unanimously endorsed that recommendation. On July 26, the subcommittee investigating Dr. Ritter’s qualifications similarly recommended his appointment as full professor. The full committee was not scheduled to meet again until the fall, however, so no action was taken.

Unfortunately, even as the professorial appointment process was proceeding, the relationship between Drs. Ritter and Snider, on the one hand, and other professional personnel in the cardiology unit at Hopkins was not progressing as had been anticipated. The reasons for the growing dissension were very much in dispute. One problem, it appears, was that Dr. Oski, the main force in bringing Ritter and Snider to Hopkins, was required to take a period of medical leave and was therefore unavailable to monitor the rift that began to develop between them and most of the rest of the faculty and clinical staff.

According to the plaintiffs, some of the promises made by Hopkins with respect to the resources that would be allocated to the division were simply not kept. The space allocated for the new echocardiography lab was not satisfactory to Drs. Ritter and Snider. The rooms were very small, poorly ventilated, and had inadequate climate controls.

The equipment in the laboratory often overloaded the electrical circuits. In ⁹⁰ vain, Dr. Snider sent numerous letters to persons in the University administration. Other professionals at Hopkins saw the matter differently; they viewed Drs. Ritter and Snider as creating more problems than they were solving in the Division of Pediatric Cardiology.

Various members of the staff complained to the Vice Dean for Faculty Affairs, Dr. Catherine DeAngelis.. Some of the complaints had to do with Ritter’s and Snider’s inability to get along with their colleagues and staff, but they extended beyond that. In September, 1994, the Director of Pediatric Cardiac Surgery complained to the Cardiac Surgeon-in-Chief that “in nine months they have alienated most of the physicians and administrators from whom they need support to succeed.” He