Samuels v. Tschechtelin

HOLLANDER, Judge. This matter, which is before the Court for the second time, has its genesis in the 1995 termination of Dr. Frank Samuels, appellant, from the position of Vice President of Academic Affairs for Baltimore City Community College (“BCCC” or the “College”). Pursuant to Md.Code (1978, 1999 Repl.Vol.), § 16-503(b) of the Education Article (“E.A.”), BCCC “is an institution of higher education of the State of Maryland.” 1 In 1996, appellant filed a multi-count complaint in the Circuit Court for Baltimore City against Dr. James D. Tschechtelin, President of BCCC; the Board of Trustees of the College (the “Board”); the individual members of the Board (the “Trustees”); 2 and the State of Maryland, appellees herein. As to all appellees, jointly and severally, Samuels challenged his termination, alleging breach of his employment contract (Count I); breach of the implied covenant of good faith and fair dealing (Count II); denial of procedural due process un^er the Fourteenth Amendment to the United States Constitution and the Maryland Declaration of Rights (Count III); denial of substantive due process under the Fourteenth Amendment to the federal Constitution and the Maryland Declaration of Rights (Count IV); defamation (Count V); racial discrimination, in violation of 42 U.S.C. § 1981 (Count VI); and racial discrimination, in violation of 42 ⁴⁹⁷ U.S.C. § 1983 (Count VII).

Over a,three-year period, the circuit court disposed of the entire complaint through dismissal and summary judgment. On appeal, Dr. Samuels does not challenge the court’s ruling in appellees’ favor as to Count VI. Moreover, with respect to the other counts, appellant disputes the lower court’s rulings only as to certain appellees. Dr. Samuels presents four questions for our review, which we have rephrased and reordered: I. Did the circuit court err in dismissing Counts III and IV as against Dr. Tschechtelin and the Trustees under the Maryland Declaration of Rights?

II

As to Counts I and II, did the circuit court err in granting summary judgment in favor of all appellees with respect to the claims for breach of contract and breach of the implied covenant of good faith and fair dealing?

III

Did the circuit court err in granting summary judgment in favor of Dr. Tschechtelin as to the defamation claim asserted in Count V?

IV

With respect to Count VII, did the circuit court err in granting summary judgment in favor of Dr. Tschechtelin and the Trustees as to the alleged violation of 42 U.S.C. § 1983 ? For the reasons that follow, we shall affirm in part, vacate in part, and remand for further proceedings. I. FACTUAL BACKGROUND A. Motion to Dismiss 3 Dr. Samuels, who is African-American, earned his Ph.D. in Sociology in 1970. Prior to joining the BCCC administration, Dr. Samuels held various administrative positions with the Wayne County Community College in Detroit, Michigan and ⁴⁹⁸ the Milwaukee Area Technology College in Wisconsin.

In 1991, Dr. Samuels was appointed Vice President of Academic Affairs for the College. The appointment was evidenced by a Letter of Appointment dated October 29, 1991, from Dr. Tschechtelin to Dr. Samuels. It was signed and dated by Dr. Samuels on November 3, 1991, and approved by the Board on or about November 20, 1991. Attached as an exhibit to the complaint, the Letter of Appointment stated, in pertinent part: I am pleased to offer you an appointment as Vice President of Academic Affairs.

I am confident that you will contribute significantly to our goal of building a model urban community college. Your appointment, which is subject to approval by the Board of Trustees on November 20, 1991, will begin on February 3, 1992.... This appointment is subject to the policies and procedures of the Board of Trustees of the New Community College of Baltimore, including those governing the terms and conditions of employment for administrators and professional staff and the Maryland State Department of Personnel. Please indicate your acceptance of this appointment by signing in the space provided below and returning this letter (original copy) to the Human Resources Office within five days.

You should retain the copy for your files. Dr. Samuels contends that he also entered into a written employment contract with the Board (the “Employment Contract”) in the Fall of 1991. The last page of the Employment Contract stated, in typed text: “Approved by Board of Trustees 3/20/91.” An unsigned copy of the Employment Contract, dated November 21, 1991, was attached as an exhibit to the complaint. 4 It provided that the appointment was “subject to the authority of the Board of Trustees and the President and ⁴⁹⁹ the policies and procedures of the College as they may be established, modified or amended from time to time.” Without further elaboration, appellant alleged that the Employment Contract was renewed for the 1993/1994 and 1994/1995 terms. Referring to Dr. Samuels as the “Administrator/Professional Staff Member,” the Employment Contract further provided, in part: 2.

Term: Unless otherwise terminated in accordance with the policies and procedures of the College, the term of this agreement shall commence on February 3, 1992, and terminate on February 2, 1993. 3. Notice: The President shall give written notice of intent to offer a new appointment 90 days before the termination date. Failure to provide advance notice shall not entitle an employee to renewal of the contract. 4. Dismissal During the Term of the Contract: A. The Board may dismiss the Administrator/Professional Staff Member for cause at any time on recommendation of the President of the College provided that the Administrator/Professional Staff Member is given at least thirty days written notice of the grounds for dismissal and afforded an opportunity for reconsideration by the President.

B. The President of the College may immediately suspend with pay an Administrator/Professional Staff Member who is recommended for dismissal as provided herein. C. An Administrator/Professional Staff Member who is dismissed by the Board shall have the right to file a grievance with the Secretary of Personnel for the State of Maryland. D. In the event that the Administrator/ Professional Staff Member is dismissed, this Contract shall automatically terminate as of the effective date of the dismissal and the College shall have no further obligation under this Contract. ⁵⁰⁰ E. Nothing in this contract shall be construed to limit the authority of the Board to terminate this agreement based on fiscal exigency. * * * 7. Non-applicability of Tenure or Similar Status: It is specifically understood and agreed that the Administrative/Professional Staff Member shall not be deemed to be granted tenure or similar status by virtue of entering into this agreement. 10.

Entire Agreement: This contract contains the complete agreement between the Administrator/Professional Staff Member and the Board. This agreement shall be governed by the laws of the State of Maryland and the policies and procedures of the College and, as of its effective date, shall supersede all other agreements between the parties. Any modification of this agreement shall be in writing and signed by both parties; however, nothing in this agreement shall be construed to limit the authority of the Board to establish, amend or modify the policies and/or procedures of the College. On January 22, 1992, prior to the commencement of Dr. Samuels’s service, the Board adopted a “Revised Policy for the Appointment and Evaluation of Administrators and Professional Staff’ (the “Revised Policy”), which was attached as an exhibit to the complaint.

The Revised Policy included a cover page that discussed its rationale, explaining that the Revised Policy “creates a plan for the appointment, evaluation, and retention of administrators and professional staff at [BCCC].” Moreover, the cover letter indicated that the Revised Policy made several “major changes,” including: 1. One-year contracts for administrators and professional staff will be replaced by letters of appointment offered by the President and accepted by the employees before ⁵⁰¹ beginning work. The appointments will have no end date; administrators and professional staff will serve at the pleasure of the President and the Board of Trustees. 2. Self-assessment and evaluation will be based on the employeef’s] performance in achieving their goals that were approved in their previous evaluation.

Letters of appointment will be offered to newly hired administrators and professional staff, effective immediately. Currently employed administrators and professional staff will be offered letters of appointment at the end of their current contract period, provided the College elects to continue their employment. The Revised Policy provided, in pertinent part: 1. DEFINITIONS a.

Administrators and Professional Staff For purposes of this evaluation policy, administrators and professional staff are full-time, permanent employees, including the Vice Presidents.... This policy does not apply to the President, who is evaluated by the Board of Trustees. 2. GENERAL POLICY a. Administrators and professional staff must accept letters of appointment offered by the President before beginning work.

The appointments will have no end date; administrators and professional staff will serve at the pleasure of the President and the Board of Trustees. b. [BCCC] -will conduct annual performance evaluations of administrators and professional staff in accordance with the policy and procedures stated in this document. ⁵⁰² c. Newly hired administrators and professional staff will be required to prepare, within the first 3 months of them employment, a list of 4 to 6 goals. These goals must represent specific, quantifiable objectives appropriate to the administrative/professional position; these goals must be approved by the employee’s supervisor. 3. EVALUATION POLICY Administrators and professional staff will be evaluated according to the procedures and criteria stated below.

Each evaluation will result in a rating of excellent, very good, [5] good, fair, or poor. a. Administrators and professional staff whose first evaluation results in a rating of fair or poor will be given a thirty day notice of termination at the conclusion of the evaluation process, which is defined as the date the Board of Trustees accepts the staff recommendation for termination. b. After the initial evaluation, administrators and professional staff who are rated fair will work with their supervisors to develop an action plan that will, if followed, result in measurably improved performance within a reasonable period of time, to be determined by the supervisor. If the next rating of an administrator or professional staff remains fair or descends to poor, the employee will be given a thirty day notice of termination at the conclusion of the evaluation process, which is defined as the date the Board of Trustees accepts the staff recommendation for termination. c.

After the initial evaluation, administrators and professional staff who are rated poor will be given a thirty day notice of termination at the conclusion of the evaluation process, which is defined as the date the ⁵⁰³ Board of Trustees accepts the staff recommendation for termination. The evaluation procedures referred to in the Revised Policy included responsibilities lor both the administrator/staff member and that individual’s supervisor. The administrator/staff member was to perform a self-assessment, list goals for the successive evaluation period, and prepare a current job description. The supervisor was required to rate the administrator/staff member upon review of the materials prepared by the administrator/staff member and an interview.

After completing an evaluation, the supervisor was required to submit his or her conclusions, along with the materials prepared by the administrator/staff member, to the supervisor’s superior. But, the Revised Policy made clear that “[ejvaluations conducted by the President are not subject to review.” In all cases other than a presidential review, the evaluation materials were ultimately submitted to the appropriate vice president who, upon satisfaction of the remaining criteria, was “responsible for taking the recommendations to the President.” Under the heading “EVALUATION PROCEDURES,” the Revised Policy concluded: e. Consultation with the Administrator or Professional Staff The supervisor who performed the evaluation should discuss the evaluation with the administrator or professional staff, give the employee an opportunity to make comments about the evaluation, have him or her sign the evaluation and provide him or her with a copy. The supeivisor should then pass the materials on to the appropriate Vice President who will be responsible for taking the recommendations to the President. g. [6] Reconsideration by the President Administrators and professional staff recommended for termination may request reconsideration by the President. ⁵⁰⁴ h.

Recommendations to the Board of Trustees by the President The President will make recommendations to the Board of Trustees for terminations at the next meeting of the Board. There is no appeal to the Board of Trustees of the President’s recommendation. As Dr. Samuels’s supervisor, Dr. Tschechtelin completed a written evaluation of appellant on August 26, 1993, for the period of Dr. Samuels’s first 18 months at BCCC, from February 3,1992 to June 30,1993. Dr. Tschechtelin rated Dr. Samuels as “very good” and recommended a salary increase.

The complaint suggested that this was the only occasion Dr. Samuels was evaluated, “despite the [Revised Policy’s] requirements” of an annual evaluation. Notwithstanding the favorable evaluation in August 1993, Dr. Tschechtelin “notified Dr. Samuels that he was terminated via correspondence dated January 17, 1995,” effective February 17, 1995. The termination was allegedly without cause. Although the correspondence was not attached to the complaint, appellant claimed it directed him “to remove his personal effects from his office within 3 days and provided no further information with respect to appeals, reconsideration, or otherwise.” No mention was made of any action by the Board in connection with the termination.

According to the complaint, Dr. Tschechtelin subsequently made a defamatory statement to Yvette Aldrich, a staff writer for The Baltimore Afro-American (the “Newspaper”), a newspaper circulated in the Baltimore metropolitan area with a readership of approximately 88,000 persons. The statement was published in an article on March 11, 1995, which attributed to Dr. Tschechtelin the comment “that Samuels had been terminated for poor performance.” The article was not included as an exhibit to the complaint. ⁵⁰⁵ On February 28, 1996, Dr. Samuels filed suit, seeking compensatory and punitive damages and attorneys’ fees. Appellees answered on June 13, 1996, asserting, inter alia, five affirmative defenses: (1) Dr. Samuels failed to state a claim upon which relief could be granted; (2) appellant’s suit was barred by sovereign immunity; (3) the individual Trustees and Dr. Tschechtelin were protected by qualified immunity; (4) appellees’ actions were based on “reasonable factors other than race, color or national origin”; and (5) Dr. Samuels “was terminated because of poor performance and an unwillingness to improve his performance.” Appellees’ answer was accompanied by a motion to dismiss all counts. On August 30,1996, appellees filed an amended answer that included as an additional affirmative defense the contention that Dr. Samuels’s contract claims (counts I and II) were barred by the statute of limitations.

Appellees again raised the statute of limitations in a “Reply Memorandum in Support of Defendants’ Motion to Dismiss,” filed on September 20, 1996. In a “surreply” filed in opposition to appellees’ reply memorandum, appellant claimed that appellees waived the defense of statute of limitations because they failed to raise it in the original answer. At a hearing on appellees’ motion to dismiss, the circuit court agreed with appellant’s waiver argument as to the statute of limitations. In addition, the court determined that there was a dispute between the parties as to the validity of the Employment Contract.

But, by orders dated December 23, 1996, and March 7, 1997, the circuit court (Dancy, J.) dismissed Counts III, IV, and VI against all appellees; Count V as against the State, the Board, and the Trustees; and Count VII as against the State and the Board. Accordingly, Count V, as against Dr. Tschechtelin, and Count VII, against the individual Trustees and Dr. Tschechtelin, remained viable. B. Motions For Summary Judgment On April 3, 1997, appellees filed their first motion for summary judgment with respect to those claims that the court had not dismissed in its orders of December 1996 and March ⁵⁰⁶ 1997. Appellees’ memorandum filed in support of their motion included numerous exhibits, including an affidavit by Dr. Tschechtelin dated April 3, 1997.

There, Dr. Tschechtelin referred to the August 26, 1993, evaluation mentioned in appellant’s complaint. The 1993 report, which was attached to Dr. Tschechtelin’s affidavit, highlighted various strengths and weaknesses of appellant, and said, in part: Dr. Samuels is a man of strong academic experience who is quite familiar with issues related to faculty and academic life. He expresses high expectations for excellence among students and faculty. He is friendly, hard working, and committed to the philosophy of the community college.

During the past year, he was instrumental in preparing for the successful Middle States self-study and subsequent accreditation team visit. He does a good job when he addresses student groups and organizations, encouraging them to do their best and motivating them to work hard. Among his major accomplishments during the past months are developing a program review and evaluation policy, improving the planning and budget development process for the division, and assisting with the development of a plan for assessing student learning outcomes. He also initiated the updating and standardizing of the course syllabus format for all College courses, a part-time faculty handbook, meetings of the Academic Advisory Councils, plans for tech prep, and the introduction of Supplemental Instruction in the developmental area.

Dr. Samuels needs to be more “PR conscious.” In addition to making sure that the fundamentals of sound academic life are in place, he needs to be sure that there are well publicized innovations that capture the imagination of people and that motivate sponsors to provide increased funding. He needs to continue to work on the improvement of teamwork with his peers. ⁵⁰⁷ He needs to increase his informal interaction and communication with the faculty members. I suggest that he visit classes and department meetings. I would also like him to become more active and visible in community activities and events.

His personal follow-up on projects the details of their implementation [sic] needs to be improved, as in the case of the [Student Instructional Report] data in faculty evaluation. Dr. Samuels needs to be careful to be objective in the evaluation of persons in his division. Dr. Tschechtelin’s report also documented a number of goals for Dr. Samuels for the coming year, including: • Taking steps to improve educational quality as measured by trends in the student success (retention to graduation), job placement among graduates of career programs, and academic success upon transfer. • Promoting teamwork among the College divisions. • Assuring proper and timely administration of the Student Instructional Report, using it in the performance evaluation process, and working with faculty about how to use it to improve instruction. • Developing plans for two new career programs. • Providing the oversight necessary to assure an excellent self-study and team visit of the Respiratory Technology program. • Coordinating the design and implementation of a faculty development program. • Evaluating the department chairs in their administrative capacity. • Making greater use of his personal computer, including using LAN mail, and checking it every day. As we noted, in the evaluation, Dr. Tschechtelin rated Dr. Samuels as “very good” and recommended a salary increase.

The last page of the report contains the signatures of Dr. Tschechtelin and Dr. Samuels. ⁵⁰⁸ Notwithstanding the positive characterizations of appellant’s work in the August 1998 report, Dr. Tschechtelin averred in his affidavit that Dr. Samuels failed to satisfy nearly all of the goals in that report, including: improving teamwork with his peers; improving his follow-up on projects and paying more attention to detail; assuring the proper and timely implementation of the Student Instructional Report in evaluating faculty members; developing plans for two new academic programs; providing oversight to assure an excellent self-study and successful visit of the accreditation team for the Respiratory Therapy program; and making greater use of his personal computer, including LAN mail (e-mail). According to Dr. Tschechtelin, Dr. Samuels’s alleged deficiencies prompted Dr. Tschechtelin to draft a memorandum targeting five areas of improvement. The memorandum, dated June 16,1994, provided, in part: There are several areas needing improvement that I would like'to discuss with you.... In the interest of clear communication, I have written about them; that way we can discuss them at our next bi-weekly meeting.

I would like you to: 1. Get closer to the details of the Academic Affairs Division. You need to be more involved in the key aspects of your division, asking questions, and making sure that what your staff does makes sense to you. For example, the budget proposal for two new faculty members in FY 1996 plus an honors program at $10,000 does not seem possible for $82,000.

I would like you to make increasing use of data tables to help guide decisions, such as the replacement of faculty when a vacancy occurs. 2. Understand and apply the principles involved in the new fiscal reality. I was disappointed that your division, with a budget of over $10 million, had not one idea about how funds could be recycled.... ⁵⁰⁹ 3. Be better organized and follow up on requests.

Specifically, I want you to maintain a list of the things that I have asked you to do and to report on the status of each of them when we have our bi-weekly meetings.... 4. Lead the Academic Affairs Division away from “divisionism” and toward a greater sense of teamwork. There are too many persons in the Academic Affairs Division who regard it as inherently superior to the other divisions of the College.... 5. Take initiative to think through the roots of key problems and challenges, outline the alternatives that we have for addressing them, summarize this in brief written form, and discuss it with me.

An example of this is the recent contention with the faculty and the evaluation process in particular. Dr. Tschechtelin further averred that he prepared this memorandum in anticipation of Dr. Samuels’s upcoming evaluation for the 1993/1994 term. On June 22, 1994, Dr. Samuels responded to the document with a seven-page memorandum addressing Dr. Tschechtelin’s points, and said: I am not someone recently off the streets who need [sic] close supervision. Present me with clear, agreed upon objectives, a timeline for their accomplishment, reporting deadlines and reasonable resources, and the objectives will be accomplished.

They will be accomplished. For reasons beyond my comprehension, my professional standing is being devalued. It is clear that we need to review the fit between myself and the current institutional environment. I welcome the opportunity to do so at our next meeting.

Although Dr. Samuels and Dr. Tschechtelin met on June 28, 1994, to discuss the memoranda, Dr. Tschechtelin stated that he saw little improvement during the ensuing three month period. Accordingly, on October 4, 1994, Dr. Tschechtelin informed appellant that he “needed to make a change in the vice presidency and that [Dr. Samuels] should look for a new position.” Dr. Tschechtelin offered to help Dr. Samuels find a ⁵¹⁰ new job, and gave him the option of resigning. Because Dr. Samuels had not yet vested in the college’s retirement program, Dr. Tschechtelin also told Dr. Samuels that he could remain at the College in a “professorial position.” On October 27, 1994, Dr. Samuels told Dr. Tschechtelin that he was convinced that Dr. Tschechtelin was motivated by “racial discrimination.” Dr. Tschechtelin claimed that he was both upset and surprised by the accusation, because “this was the first time [Dr. Samuels] had accused me of racial discrimination.” On November 10, 1994, Dr. Samuels rejected the various options offered by Dr. Tschechtelin. After detailing more than a dozen alleged deficiencies with respect to appellant’s performance, Dr. Tschechtelin recounted the following: At the Board meeting on December 21,1994,1 informed the Trustees of my decision to recommend Dr. Samuels’ termination.

At the meeting, I described the problems with Dr. Samuels’ performance and the series of meetings that I had held with Dr. Samuels. I also reported that Dr. -Samuels had rejected my offers of a faculty position or of assistance in finding a new job. During this December meeting, members of the Board questioned me as to the procedural correctness of his [sic] action, e.g., the steps I had taken to discuss the problems -with Dr. Samuels in an attempt to find solutions. Dr. Tschechtelin delivered a letter of termination to appellant on January 17, 1995, effective February 17, 1995.

The letter stated, in pertinent part: I have carefully considered your work at the Baltimore City Community College and have evaluated your performance as poor. You have, among other things, not taken sufficient initiative for innovation and change and have been out of touch with important details of the Academic Affairs Division. For these reasons, I plan to recommend to the Board of Trustees that you be dismissed from employment at the College, effective February 17,1995. ⁵¹¹ Effective immediately, you are relieved of further responsibilities and placed on administrative leave. Please remove your personal effects from your office by the close of business on January 20, 1995.

The following day, January 18, 1995, Dr. Tschechtelin recommended the dismissal of Dr. Samuels to the Board at a closed session. According to the minutes of the Board meeting, Dr. Tschechtelin “gave a chronology of his meetings with Dr. Samuels to discuss Dr. Samuels’ performance evaluations and areas needing improvement. Dr. Tschechtelin noted specific areas where Dr. Samuels did not exercise his leadership and management responsibilities.” The minutes also reflect that the Board was advised that Dr. Samuels “was given an opportunity to address the performance issues ... and failed to make improvement.” Moreover, the Board was told that Dr. Samuels disagreed “with almost all of the performance issues raised by Dr. Tschechtelin and claimed that [Dr. Tschechtelin’s] comments were racially motivated.” In the course of the Board’s discussion of the matter, “it became apparent that the night before the meeting, Dr. Samuels had called ... the African American members of the Board to request that he be permitted to address them directly.” The Board denied Dr. Samuels’s request to appeal to the Board, noting a previously approved policy governing such matters. On March 11, 1995, the Newspaper printed a story reporting Dr. Samuels’s termination, which said, in part: The [BCCC] African American Issues Committee, charging that the firing of the school’s vice president of academic affairs was “politically motivated” and has worsened racial and gender tensions at the school, has called for an investigation into the dismissal as well as other areas of the school’s administration.

Dr. Frank Samuels, the highest ranking African American at the college, was given a letter of termination on Jan. 17, and three days to clear his office and be off campus. The letter came from BCCC’s president, James Tschechtelin, and while the committee said that it was not ⁵¹² questioning his right to terminate employees, “we believe that the vice president was fired for the wrong reasons and that the manner in which he was fired destabilized the institution.” When asked about the complaint, Dr. Tschechtelin said it would be unethical to discuss the details of Dr. Samuels’ termination because it is a personnel matter. However, he did state that after long consideration the Board of Trustees concluded that Dr. Samuels’ performance was poor. * * * Dr. Samuels told the AFRO that among the problems he encountered at the school, racism was one of the largest. “When I was dismissed, the president reached down three levels to find a White male to replace me. Thus, bypassing the second in command, an African American female with extensive experience at the vice president’s level,” said Dr. Samuels.

Dr. Samuels also provided a list of 42 accomplishments he made at Baltimore City Community College which he feels proves that he was a strong advocate for change. (Emphasis added). In an attempt to defeat summary judgment, Dr. Samuels submitted a number of materials, including excerpts of deposition testimony. We focus here on his undated affidavit, which provides a detailed and lengthy recapitulation of his version of the central factual disputes.

In his affidavit, Dr. Samuels described his former position at BCCC and detailed his accomplishments. Additionally, he asserted that Dr. Tschechtelin told appellant on numerous occasions that appellant’s performance was excellent. Dr. Samuels continued: “Tschechtelin recognized my contributions were so extensive that whenever I advised Tschechtelin of other employment opportunities, including presidencies and vice chancellorships at other institutions, Tschechtelin told me that I was an asset to the college and that he wanted me to stay in my position.” Appellant claimed, however, that his ⁵¹³ relationship with Dr. Tschechtelin began to sour after a faculty meeting in May 1994. According to Dr. Samuels, the faculty protested the use of Student Instructional Reports in their evaluations, and criticized Dr. Tschechtelin for budget cuts that resulted in the loss of five teaching positions.

When the meeting became “heated,” and one professor accused Dr. Tschechtelin of lying, Dr. Samuels maintained that he “had to come to Tschechteliris aid to reestablish decorum.” The following paragraph from appellant’s affidavit is pertinent: It was clear to those present that Tschechtelin could not maintain order and that the teachers responded to and respected me. After this meeting, Tschechtelin complained to me that I was not “controlling the faculty” and to stop “this divisionism.” Tschechtelin threatened to withhold raises from the faculty because he thought them unappreciative. I advised him against this course. After this meeting, where it was apparent that I, an African American, had more influence and respect in the College than he, Tschechtelin and my relationship demonstratively cooled.

Dr. Samuels suggested that these incidents culminated in the June 16, 1994, memorandum from Dr. Tschechtelin to Dr. Samuels. Appellant explained that he drafted his June 22, 1994, reply memorandum because he “was suspicious of the timing of Tschechteliris memorandum.” Upon meeting to discuss the memoranda, appellant acknowledged that he and Dr. Tschechtelin apologized and shook hands. Nevertheless, appellant “noted [a] continuing deterioration” in his relationship with Dr. Tschechtelin, claiming that Dr. Tschechtelin became increasingly hostile and critical. Dr. Samuels attributed this behavior to racism, stating: Tschechtelin did not become hostile towards me until it became obvious that I, as an African American, had more influence than he at a predominantly African-American institution.

So long as I did not obviously display my abilities and so cast Tschechtelin into shadow, Tschechtelin was pleased with and complimentary about my contributions. ⁵¹⁴ After a court hearing on May 28, 1997, the circuit court (Mitchell, J.) issued an order, docketed on June 18, 1997, .granting summary judgment to appellees on the remaining parts of counts V and VII, and on counts I and II as against the Trustees and Dr. Tschechtelin in their individual capacities. But, the court denied appellees’ motion as to counts I and II against the Board and Dr. Tschechtelin in their official capacities. The court said, inter alia, that appellees “did not timely plead the statute of limitations defense and it is waived.” Thereafter, both sides filed motions for reconsideration. In addition, Dr. Samuels filed a “First Amended Complaint” on August 11, 1997, 7 seeking to reinvigorate the contract claims alleged in the initial complaint and adding a third count for wrongful discharge.

On August 25, 1998, appellees moved to dismiss or for summary judgment. At a hearing on December 8,1997, the circuit court (Mitchell, J.) dismissed the additional count in the amended complaint and denied the motions to reconsider. These rulings are embodied in an order of December 8, 1997, as clarified and amended by an order of December 15,1999. 8 After the disposition of the motions on December 8, 1997, the defendants appealed the court’s ruling as to the contract claims under the collateral order doctrine. They argued that Dr. Samuels’s contract claims were barred by sovereign immunity under Md.Code (1984, 1999 Repl.Vol.), § 12-202 of the State Government Article (“S.G.”).

Dr. Samuels filed a cross-appeal, challenging the disposition of most of his claims. We held that Dr. Samuels’s contract claims were barred by sovereign immunity and declined to review Dr. Samuels’s issues. Tschechtelin v. Samuels, 124 Md.App. 389, 400 , 722 A.2d 414 (1999) (“Tschechtelin I ”). In a per curiam order, the Court of ⁵¹⁵ Appeals reversed, concluding that the appeal was premature.

Accordingly, the appeal was dismissed. Samuels v. Tschechtelin, 353 Md. 508 , 727 A.2d 929 (“Tschechtelin II ”). On remand to the circuit court, appellees filed a second motion for summary judgment, relying on this Court’s reasoning in Tschechtelin I. After a hearing on September 27, 1999, the circuit court (Cannon, J.) agreed, concluding that summary judgment should be “granted on Counts I and II ... for the reasons stated by the Court of Special Appeals in Tschechtelin [/] ... and because the statute of limitations began to run on January 18,1995.” We shall include additional facts in our discussion.

II

DISCUSSION A. Motion to Dismiss 1. Standard of Review In reviewing the trial court’s grant of a motion to dismiss, we assume the truth of all well-pleaded facts in the complaint and reasonable inferences drawn therefrom. See Morris v. Osmose Wood Preserving, 340 Md. 519, 531 , 667 A.2d 624 (1995); Stone v. Chicago Title Ins. Co., 330 Md. 329, 333-34 , 624 A.2d 496 (1993); Fick v. Perpetual Title Co., 115 Md.App. 524 , 547 n. 4, 694 A.2d 138 , cert. denied, 347 Md. 153 , 699 A.2d 1168 (1997).

Moreover, we must consider those facts and inferences in the light most favorable to appellant. See Berman v. Karvounis, 308 Md. 259, 264-65 , 518 A.2d 726 (1987); Parker v. Kowalsky & Hirschhorn, P.A., 124 Md.App. 447, 458 , 722 A.2d 441 (1999). If the complaint fails facially to disclose a legally sufficient cause of action, then we must affirm the dismissal order of the motion court. See Lubore v. RPM Assocs., 109 Md.App. 312, 322 , 674 A.2d 547 , cert. denied, 343 Md. 565 , 683 A.2d 177 (1996); Hrehorovich v. Harbor Hosp.

Ctr., Inc., 93 Md.App. 772, 785 , 614 A.2d 1021 (1992), cert. denied, 330 Md. 319 , 624 A.2d 490 (1993). This means that we must affirm the court-ordered dismissal if, even assuming the truth of the facts alleged, Dr. Samuels is not ⁵¹⁶ entitled to relief as a matter of law. See Lubore, 109 Md.App. at 322 , 674 A.2d 547 . 2. Due Process Claims Against Dr. Tschechtelin and the Trustees—Counts III and IV Preliminarily, we begin with a clarification of those issues that Dr. Samuels has abandoned on appeal.

Counts III and IV of the complaint asserted due process claims against Dr. Tschechtelin, the Board, the Trustees, and the State, under the Fourteenth Amendment to the United States Constitution and Article 24 of the Maryland Declaration of Rights. At oral argument, Dr. Samuels conceded that the trial court properly dismissed the federal due process claims under the Fourteenth Amendment, because appellant had an alternative avenue for relief under 42 U.S.C. § 1983 , as asserted in Count VII, which was duplicative of the federal constitutional claim. Moreover, Dr. Samuels does not challenge the dismissal of the alleged State constitutional violations in Counts III and TV as against the State and the Board. Therefore, as to counts III and IV, we consider only whether the court erred in dismissing the claims against Dr. Tschechtelin and the Trustees for alleged violations of Article 24 of the Maryland Declaration of Rights.

Article 24 provides “[t]hat no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land.” Appellees counter that the court properly dismissed appellant’s claims. They aver that Dr. Samuels failed to allege facts showing the personal involvement or individual actions of the Trustees with respect to appellant’s termination. Appellees also maintain that “the record is devoid of evidence that guarantees under either the due process or equal protection clauses were violated.” 9 ⁵¹⁷ We begin by reviewing the pertinent portions of counts III and IV. COUNT III Procedural Due Process 37.

Based upon Plaintiffs Employment Contract with the College and Plaintiffs compliance therewith, Plaintiff had legitimate liberty and property interests protected by the due process clauses of the Maryland Declaration of Rights and the 14th Amendment to the United States Constitution. 38. These constitutionally protected interests may not be terminated without procedural due process. The fundamental requirements of due process include: the opportunity to be heard at a meaningful time and in a meaningful manner; a hearing conducted by an impartial tribunal; compliance with the established provisions of the Policy for the Evaluation of Administrative and Professional Staff; and a full and fair opportunity to be heard on all pertinent issues prior to a final determination regarding termination of employment. 39. Despite the express provisions of Plaintiffs Employment Contract and the policies and procedures of the College with respect to the evaluation and termination of administrative and professional staff, Defendants failed to perform the required annual evaluations of the Plaintiff, failed to provide Plaintiff the opportunity to seek reconsideration of the decision to terminate him, and otherwise terminated the Plaintiffs employment without cause. ⁵¹⁸ These actions and/or omissions among other things denied Plaintiff procedural due process. 40.

Likewise, the Defendants individually owed the Plaintiff the duty to comply with all of the College’s own rules, regulations and policies, including the policy of the evaluation of administrative and professional employees as well as to comply with constitutional due process requirements ..., the Defendants deprived the Plaintiff of his due process rights by failing to perform the required annual evaluations, failing to follow established policies and procedures, failing to make a reasonable determination of cause for dismissal, failing to provide Plaintiff the opportunity to seek reconsideration of the recommendation to terminate him and otherwise in terminating the plaintiff other than for cause. * * * COUNT IV Substantive Due Process * * * 45. Based upon Plaintiffs Employment Contract with the College and Plaintiffs compliance therewith, Plaintiff had legitimate property and liberty interests protected by the due process clauses of the Maryland Declaration of Rights and the 14th Amendment to the United States Constitution. 46. These protected interests may not be terminated without substantive due process. The protection of substantive due process include [sic] the right to be free from deprivation of protected liberty and/or property interests through arbitrary and capricious státe action. 47.

Defendants denied Plaintiff substantive due process by, among other things, failing to perform the required annual evaluations, failing to make a determination of cause for dismissal, failing to provide Plaintiff the opportunity to seek reconsideration of the recommendation to terminate ⁵¹⁹ his employment, failing to terminate the Plaintiff for cause and otherwise failing to comply with the policies and procedures of the College and the requirements of substantive and procedural due process. 48. Likewise, the Defendants individually, owed a duty to comply with all of the College’s own rules, regulations and policies including the Policy for the Evaluation of Administrative and Professional Staff, as well as to comply with constitutional due process requirements. Responding to these allegations through their motion to dismiss, appellees contended that appellant failed to state a claim upon which relief could be granted, stating: 3. Counts III (Procedural Due Process) and IV (Substantive Due Process) fail to state a claim upon which relief can be granted as to all Defendants, with respect to the claims based on the 14th Amendment.

Where an alternate avenue of relief exists, a claim cannot be brought based directly on the Constitution. Bivens v. Six Unknown Names [sic] Agents [of Fed. Bureau of Narcotics ], 403 U.S. 388 [, 91 S.Ct. 1999 , 29 L.Ed.2d 619 ] (1971). Counts III and IV should also be dismissed because they are duplicative to the due process claims in Count VII (§ 1983). 4. Counts III and, IV, alleging violations of rights guaranteed under the Maryland Declaration of Rights, fail to state a claim upon ivhich relief may be granted.

Constitutional claims are barred by the doctrine of sovereign immunity and Counts III and IV hence must be dismissed with respect to the institutional defendants. The Mainland constitutional claims must be dismissed as to the defendants named in their individual capacities because they fail to allege sufficient facts to support the claims that the defendants were personally involved in the allegedly violative conduct. (Emphasis added). Although it is clear that the circuit court dismissed counts III and IV in their entirety, it does not appear that the court actually considered the State constitutional claims under Arti ⁵²⁰ cle 24.

The court’s memorandum accompanying the order of December 23,1996, provided, in relevant part: The Defendants contend[ ] that the constitutional claims under Counts 3 and 4 for Procedural and Substantive Due Process should be dismissed for failure to state of [sic] claim since they are based directly on the 14th Amendment due process clause of the U.S. Constitution and these claims can be asserted under § 1983 and are duplications of the claims brought under Count 6[sic], which is under § 1983. It is agreed that these counts should be dismissed. Section 1983 claims si óuld be dismissed as to the college and as to the State of Maryland. Dismissal is appropriate as to the college because it is a state entity.

As to the individual defendants, there [sic] qualified immunity and the extent to which they possess it in this instance would be a question of fact. Nevertheless, the corresponding order of the same date said nothing about counts III and IV. Rather, it stated: ORDERED, that Defendant’s Motion to Dismiss is GRANTED, as to Counts V as to all Defendants] except Tschechtelin, VII (1983) as to the individual Defendants, Count VII (1981 and Maryland Declaration of Rights), and it is further; ORDERED, that Defendants’ Motion to Dismiss is DENIED, as to all other Counts. Recognizing these and other inconsistencies, appellees filed a motion to correct the order on January 2, 1997.

That motion alleged: 1. The Memorandum states that Counts III and TV (counts based directly on U.S. Constitution) should be dismissed. The order does not refer to Counts III and IV and should be corrected to include these two counts. 2. The Order grants the Motion to Dismiss “as to Count VII (1983) as to the individual Defendants.” Based on the text of the Memorandum, that should be corrected to “Count VII (1983) as to the institutional defendants.” ⁵²¹ 3.

The Order grants the Motion to Dismiss “as to Count VII (1981 and Maryland Declaration of Rights.)” It is Count VI that states the claim under § 1981. Based on a reading of the Court’s decision and order, it appears that the Court intended to grant the motion to dismiss as to: Counts III, IV and VI in their entirety; Count V (defamation) as to all defendants with the exception of James D. Tschechtelin; and Count VII as to all claims except the § 1983 claims against the individual defendants. By order of March 7, 1997, the court adopted appellees’ proposed revisions and stated, in part: “ORDERED, that Defendants’ Motion to Dismiss is GRANTED as to: Counts III, IV, and VI (§ 1981) in their entirety....” Under Md. Rule 2-322(c), a motion to dismiss is treated as one for summary judgment if “matters outside the pleading are presented to and not excluded by the court.” See Green v. H & R Block, 355 Md. 488, 501 , 735 A.2d 1039 (1999). There is no indication, however, that the court considered any material outside of appellant’s complaint, including the exhibits attached and incorporated by reference, or that it treated the motion as one for summary judgment.

See Md. Rule 2-303(d) (“A copy of any written instrument that is an exhibit to a pleading is a part thereof for all purposes.”); Allied Inv. Corp. v. Jasen, 123 Md.App. 88 , 95 n. 2, 716 A.2d 1085 (1998), rev’d on other grounds, 354 Md. 547 , 731 A.2d 957 (1999); Bell Atlantic-Md., Inc. v. Maryland Stadium Auth., 113 Md.App. 640, 651 , 688 A.2d 545 (1997); McIntyre v. Guild, Inc., 105 Md.App. 332 , 354 n. 6, 659 A.2d 398 (1995). Therefore, our review of the propriety of the dismissal of the State constitutional claims alleged in counts III and IV depends on the content and adequacy of appellant’s complaint, including the exhibits appended to it. The College, along with its governing Board, is a State agency afforded the protections of sovereign immunity.

Tschechtelin I, 124 Md.App. at 398, 722 A.2d 414 , rev’d on other grounds, Tschechtelin II, 353 Md. 508 , 727 A.2d 929 (1999); E.A. § 16-503(b); cf. Board of Trustees of Howard ⁵²² Community College v. John K. Ruff, Inc., 278 Md. 580, 591 , 366 A.2d 360 (1976) (concluding that the Board of Trustees of Howard Community College “was an agency of the State” for purposes of sovereign immunity). The State has waived sovereign immunity in a contract action as to “a written contract that an official or employee executed for the State or 1 of its units while the official or employee was acting within the scope of the authority of the official or employee.” S.G. § 12-201(a); see ARA Health Servs. v. Department of Pub. Safety & Corr. Servs., 344 Md. 85 , 685 A.2d 435 (1996).

Absent legislative waiver, the doctrine of sovereign immunity precludes a damages action against the State for alleged violations of Article 24. See Ritchie v. Donnelly, 324 Md. 344, 369 , 597 A.2d 432 (1991). But, a public official who violates a plaintiffs Maryland constitutional rights may be personally liable for compensatory damages. See Okwa v. Harper, 360 Md. 161, 199-200 , 757 A.2d 118 (2000); Ritchie, 324 Md. at 370 , 597 A.2d 432 ; Clea v. Mayor of Baltimore, 312 Md. 662, 680 , 541 A.2d 1303 (1988).

Thus, an individual who has been deprived of his liberty or property interests in violation of Article 24 “may enforce those rights by bringing a common law action for damages.” Widgeon v. Eastern Shore Hosp. Ctr., 300 Md. 520, 538 , 479 A.2d 921 (1984). Moreover, punitive damages against a public official are recoverable upon a showing of actual malice. Clea, 312 Md. at 680 , 541 A.2d 1303 .

It is also settled that, in one complaint, a plaintiff may bring separate causes of action under § 1983 and Article 24. Widgeon, 300 Md. at 534 , 479 A.2d 921 . 10 Both Article 24 and the Due Process Clause of the ⁵²³ Fourteenth Amendment 11 protect an individual’s interests in substantive and procedural due process. See Office of People’s Counsel v. Maryland Pub. Serv.

Comm’n, 355 Md. 1, 26-27 , 733 A.2d 996 (1999) (discussing substantive due process); Roberts v. Total Health Care, Inc., 349 Md. 499, 508-09 , 709 A.2d 142 (1998) (discussing procedural due process). Accordingly, our courts have long equated the Due Process Clause and Article 24. See Comm’n on Med. Discipline v. Stillman, 291 Md. 390 , 414 n. 9, 435 A.2d 747 (1981); Pitsenberger v. Pitsenberger, 287 Md. 20, 27 , 410 A.2d 1052 (1980); City of Annapolis v. Rowe, 123 Md.App. 267, 270 , 717 A.2d 976 (1998) (stating that Article 24 “ ‘protects due process rights and is construed in pan materia with the federal Due Process Clause’ ” (citation omitted)).

Consequently, Supreme Court decisions interpreting the Due Process Clause “are practically direct authority for the meaning of the Maryland provision.” Garnett v. State, 332 Md. 571 , 613 n. 20, 632 A.2d 797 (1993); accord Owens v. State, 352 Md. 663 , 669 n. 3, 724 A.2d 43 , cert. denied, 527 U.S. 1012 , 119 S.Ct. 2354 , 144 L.Ed.2d 250 (1999). Counts III and IV implicate what we have termed “categories” of due process actions, namely: (1) a procedural due process claim premised on the deprivation of a property interest; (2) a procedural due process claim premised on the deprivation of a liberty interest; (3) a substantive due process claim premised on the deprivation of a property interest; and (4) a substantive due process claim premised on the deprivation of a liberty interest. To be successful in an action alleging denial of procedural due process in violation of a property interest, a plaintiff must demonstrate that he had a protected property interest, that he was deprived of that interest, and that he was afforded less process than was due. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-41 , 105 S.Ct. 1487 , 84 L.Ed.2d 494 (1985); Rowe, 123 Md.App. at 275-76 , 717 A.2d 976 .

In ⁵²⁴ Board of Regents v. Roth, 408 U.S. 564 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (1972), the Supreme Court discussed what constitutes a protected property interest: To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined.

It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims. Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. Id. at 577 , 92 S.Ct. 2701 ; see Bannum, Inc. v. Town of Ashland, 922 F.2d 197, 200 (4th Cir.1990) (“The Fourteenth Amendment does not grant property interests; rather, it protects those interests, derived from an independent source, from deprivation by the state without due process.”).

Appellant argues that he was not an at-will employee. Rather, he contends that the State was bound by the terms of the written Employment Contract, as supplemented by the Revised Policy. Moreover, he claims these documents created constitutionally protected property and liberty interests. Referring to ¶ 4 of the Employment Contract, he averred in the complaint that the Board could only terminate him “for cause,” upon thirty days written notice, and after an opportunity for reconsideration by the President.

He claims that the College attempted to satisfy the “for cause” component of the contract by discharging appellant for “poor performance.” Presumably relying on ¶ 2(C) of the Revised Policy, he also alleged that appellees were obligated to conduct an annual performance evaluation. According to the complaint, appel ⁵²⁵ lees failed to comply with the terms of the documents, which led to “severe economic damage, the loss of [appellant’s] job, the loss of self-esteem and stature in the community, the loss of professional opportunities, [and] extreme emotional pain and suffering.” Appellees vigorously maintain that appellant was an at-will employee with “no interest in continued employment.” Therefore, they insist that appellant had no constitutionally protected property or liberty interest. In making that argument, they rely on the contention that the Employment Contract was never signed. Rather, appellees assert that the only contract provided to Dr. Samuels was the Letter of Appointment, which made him an at-will employee because it had no fixed duration.

Similarly, appellees argue that the Revised Policy, which had “no end date,” was not enforceable as a contract, because it was not signed by a State official or employee. Alternatively, appellees argue that the termination did not violate the evaluation procedure in the Revised Policy, because the Revised Policy does not preclude termination at any time when an administrator’s performance is inadequate. An employment agreement may either be for a fixed term or at-will. Hrehorovich, 93 Md.App. at 790 , 614 A.2d 1021 .

An agreement is deemed at-will, and thus terminable without cause, when it fails to specify a particular time or event terminating the employment relationship. Shapiro v. Massengill, 105 Md.App. 743, 754 , 661 A.2d 202 , cert. denied, 341 Md. 28 , 668 A.2d 36 (1995). As the designation implies, an employer may ordinarily terminate an at-will employee at any time, for almost any reason or for no reason. Suburban Hosp., Inc. v. Dwiggins, 324 Md. 294, 303 , 596 A.2d 1069 (1991); University of Baltimore v. Iz, 123 Md.App. 135, 170 , 716 A.2d 1107 , cert. denied, 351 Md. 663 , 719 A.2d 1262 (1998); Shapiro, 105 Md.App. at 754 , 661 A.2d 202 .

But, at-will employment is subject to modification “by the provisions of an employee handbook or the provisions of a personnel policy.” Iz, 123 Md.App. at 171 , 716 A.2d 1107 ; see Bagwell v. Peninsula Reg’l Med. Ctr., 106 Md.App. 470, 490 , 665 A.2d 297 ⁵²⁶ (1995), cert. denied, 341 Md. 172 , 669 A.2d 1360 (1996); Elliott v. Board of Trustees, 104 Md.App. 93 , 655 A.2d 46 (1995); Staggs v. Blue Cross of Md., Inc., 61 Md.App. 381, 392 , 486 A.2d 798 , cert. denied, 303 Md. 295 , 493 A.2d 349 (1985). Nevertheless, an important exception limits the termination of an at-will employee. An at-will employee may pursue a claim for wrongful discharge if the termination violates a “clear mandate of public policy....” 12 Adler v. American Standard Corp., 291 Md. 31, 47 , 432 A.2d 464 (1981); see Molesworth v. Brandon, 341 Md. 621 , 672 A.2d 608 (1996) ; Ewing v. Koppers Co., 312 Md. 45 , 537 A.2d 1173 (1988); Bleich v. Florence Crittenton Servs. of Baltimore, Inc., 98 Md.App. 123 , 632 A.2d 463 (1993).

Thus, an at-will employee cannot be “discharged for exercising constitutionally protected rights.” Castiglione v. Johns Hopkins Hosp., 69 Md. App. 325, 338 , 517 A.2d 786 (1986), cert. denied, 309 Md. 325 , 523 A.2d 1013 (1987). Nor can an at-will employee be terminated for “refusal to engage in illegal activity, or the intention to fulfill a statutorily prescribed duty.” Adler v. American Standard Corp., 830 F.2d 1303, 1307 (4th Cir.1987). In contrast to employment at-will, when an employment agreement specifies a definite term, it may only be terminated prior to the end of that term for “just cause.” Shapiro, 105 Md.App. at 754 , 661 A.2d 202 ; see Chai Mgmt., Inc. v. Leibowitz, 50 Md.App. 504, 513 , 439 A.2d 34 (1982). In Shapiro, 105 Md.App. at 760 , 661 A.2d 202 , we explained: The concept of “just cause” does not lend itself to a mathematically precise definition.

Indeed, “[tjhere is no single definition of what constitutes good cause for discharge.” Rather, whether conduct amounts to “just cause” necessarily varies with the nature .of the particular employment. Simply put, what satisfies just cause in the context of one kind of employment may not rise to just cause in another employment situation. ⁵²⁷ Accord Sachs v. Regal Sav. Bank, 119 Md.App. 276, 284 , 705 A.2d 1 (1998), aff'd, 352 Md. 356 , 722 A.2d 377 (1999). A public employment contract may confer a constitutionally protected property interest in continued employment.

See Perry v. Sindermann, 408 U.S. 593, 601 , 92 S.Ct. 2694 , 33 L.Ed.2d 570 (1972); Roth, 408 U.S. at 576-77 , 92 S.Ct. 2701 ; cf. Marriott v. Cole, 115 Md.App. 493 , 509-510 & n. 9, 694 A.2d 123 (discussing state university faculty member’s claim that she was terminated in contravention of protected property interest evidenced by contract), cert. denied, 347 Md. 254 , 700 A.2d 1215 (1997). Moreover, a public employee with a property interest in continued employment is ordinarily entitled to a limited hearing prior to termination and a more comprehensive hearing after termination. See Rowe, 123 Md.App. at 276 , 717 A.2d 976 ; see also Loudermill, 470 U.S. at 542 , 105 S.Ct. 1487 ; Roth, 408 U.S. at 569-70 , 92 S.Ct. 2701 . Appellant concedes that “[i]f, under State law, Dr. Samuels was purely an at-will employee, his contract could not give rise to a constitutionally protected property interest” in his employment.

See Bishop v. Wood, 426 U.S. 341, 344 , 96 S.Ct. 2074 , 48 L.Ed.2d 684 (1976); Elliott v. Kupferman, 58 Md.App. 510, 520 , 473 A.2d 960 (1984). But, appellant maintains that he was not an at-will employee and that, at the very least, a factual question existed as to his status, rendering dismissal inappropriate. Although appellees deny that the State executed a written Employment Contract, we pause to reiterate that, on a motion to dismiss, the motions court was required to assume the truth of all facts alleged in the complaint, and to consider the facts and inferences in the light most favorable to appellant. Nor was it the function of the motions court to consider matters outside the pleadings in order to resolve disputed facts.

Therefore, the lower court could not determine from the pleadings whether appellant actually had a contract. Nor could it decide if appellant was terminated for cause or, instead, for a bogus or illegal reason. Similarly, the complaint ⁵²⁸ does not reveal on its face that the terms of the contract were satisfied. For example, it is not evident from the complaint that Dr. Samuels received thirty days written notice or an opportunity for reconsideration by the College President.

Moreover, although the Revised Policy provided for an annual evaluation, the complaint does not reflect that this occurred. Accordingly, based on what was before the court at the motion to dismiss, we must assume, arguendo, that appellant was not an at-will employee. Therefore, for purposes of the motion to dismiss, it appears that appellant had a property interest in his employment. If appellant had a property interest in continued employment, as alleged, the question arises as to what process, if any, he was due.

That determination generally depends on a balancing of three factors: (1) “the private interest that will be affected by the official action;” (2) “the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards;” and (3) the governmental interest. Mathews v. Eldridge, 424 U.S. 319, 335 , 96 S.Ct. 893 , 47 L.Ed.2d 18 (1976); accord Gilbert v. Homar, 520 U.S. 924, 931-32 , 117 S.Ct. 1807 , 138 L.Ed.2d 120 (1997); Rowe, 123 Md.App. at 276 , 717 A.2d 976 . In the posture of a motion to dismiss, we are persuaded that the court erred in dismissing appellant’s procedural due process claim against Dr. Tschechtelin in Count III. As the President of the College, Dr. Tschechtelin was responsible for conducting an annual evaluation.

Appellant also averred in the complaint that he was terminated without “an opportunity for reconsideration,” and Dr. Tschechtelin was allegedly implicated in the termination of Dr. Samuels, without an opportunity for reconsideration. Even assuming Dr. Samuels had a contract-based property interest in his employment, however, we discern no legally sufficient cause of action against the individual Trustees. The Trustees are simply listed by name in a preliminary paragraph in the Complaint and defined collectively as the “Trustees.” Thereafter, they are lumped under the general ⁵²⁹ title of “Defendants” and summarily included in each of appellant’s seven counts. “Bald assertions and conclusory statements by the pleader will not suffice.” Bobo v. State, 346 Md. 706, 708-09 , 697 A.2d 1371 (1997); accord Campbell v. Cushwa, 133 Md.App. 519, 534 , 758 A.2d 616 (2000). Indeed, appellant’s response filed on August 27, 1996, in opposition to appellees’ motion to dismiss, does little to advance Dr. Samuels’s claims: Counts III[and] IV ... clearly state that each member of the Board of Trustees individually owed a duty to comply with the rules, regulations and policies.

The Complaint sets forth allegations that the Board of Trustees, individually and collectively, by going outside of the Board’s stated policies, deprived the Plaintiffs [sic] of their due process rights by, among other things, failing to follow college policies, failing to give Plaintiffs [sic] a formal review of their termination and denying them the reasonable opportunity to a fair and meaningful hearing. In acting as they did, the members individually failed to follow the Board’s own directives set forth in the policy manual, despite Dr. Samuels’ request for a hearing. Furthermore, the Complaint alleges that the acts were done deliberately and maliciously. An agent who' acts with malice is not protected from personal liability and an agent will be held accountable to third persons for his own misconduct.

As the individual Board members have been alleged to have departed from their scope of their authority, there has been a sufficient allegation that the Board members are individually liable for their misconduct in reviewing Plaintiffs’ [sic] termination. Thus, the Complaint adequately states a claim for ... due process violation by the individual members of the Board of Trustees. (Citations omitted). We next consider the second due process “category,” which focuses on the purported denial of due process based on the deprivation of a liberty interest.

Dr. Samuels alleged in his complaint that Dr. Tschechtelin “made a statement to ⁵³⁰ Yvette M. Aldrich, a staff writer for the Newspaper ... indicating that Samuels had been terminated for poor performance,” which was published on March 11, 1995. Appellant contends that the publication of the statements resulted in a deprivation of his liberty interest, in violation of the Due Process Clause. 13 A liberty interest is not the same as a property interest. See Roth, 408 U.S. 564, 572-78 , 92 S.Ct. 2701 , 33 L.Ed.2d 548 (discussing the distinction between liberty and property interests). “In the context of dismissals from employment, one’s liberty interest may be implicated where the employee has no cognizable right to the continued employment, but the dismissal serves to fetter some other Constitutional right that he does have.” Elliott v. Kupferman, supra, 58 Md.App. at 519 , 473 A.2d 960 . For example, dismissal based on illegal discrimination may violate a liberty interest.

Poolaw v. City of Anadarko, 660 F.2d 459, 463-64 (10 th Cir.1981). Similarly, termination of employment in retribution for the exercise of First Amendment rights implicates a liberty interest. Perry, 408 U.S. at 597-98 , 92 S.Ct. 2694 . An employee’s liberty interest may also be implicated when a dismissal “is accompanied by charges that might damage the employee’s reputation in the community and [the employee] is given no opportunity to respond” or when “it imposes [on the employee] some stigma or disability that forecloses other employment opportunities (such as barring him from other public employment).” Elliott, 58 Md.App. at 519 , 473 A.2d 960 ; see Paul v. Davis, 424 U.S. 693, 709-10 , 96 S.Ct. 1155 , 47 L.Ed.2d 405 (1976); Roth, 408 U.S. at 573 , 92 S.Ct. 2701 ; Leese v. Baltimore County, 64 Md.App. 442 , 461- ⁵³¹ 63, 497 A.2d 159 , cert. denied, 305 Md. 106 , 501 A.2d 845 (1985), overruled in part on other grounds, Harford County v. Town of Bel Air, 348 Md. 363 , 704 A.2d 421 (1998).

As the Supreme Court explained in Wisconsin v. Constantineau, 400 U.S. 433 , 91 S.Ct. 507 , 27 L.Ed.2d 515 (1971), “Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Id. at 437 , 91 S.Ct. 507 ; see Bishop v. Wood, 426 U.S. at 348 , 96 S.Ct. 2074 ; Beckham v. Harris, 756 F.2d 1032, 1038 (4th Cir.), cert. denied, 474 U.S. 903 , 106 S.Ct. 232 , 88 L.Ed.2d 231 (1985). In that situation, due process would allow the employee “an opportunity to refute the charge,” or “to clear his name.” Roth, 408 U.S. at 573 & n. 12, 92 S.Ct. 2701 ; see Codd v. Velger, 429 U.S. 624, 627 , 97 S.Ct. 882 , 51 L.Ed.2d 92 (1977). Invocation of an employee’s liberty interest is generally dependent on the following: [T]he terminated employee must show that his former employer has published false statements about him. He must also show that these untruths are preventing him from securing similar employment.

Lastly, it must appear that the false information was of such a stigmatizing nature that it virtually “foreclosed his freedom to take advantage of other employment opportunities.” Leese, 64 Md.App. at 460-61 , 497 A.2d 159 (citations omitted). Whether a dismissal is “stigmatizing” depends on the charge used as grounds for termination, not the actual consequence of the charge. Id. at 461 , 497 A.2d 159 (citing Stretten v. Wadsworth Veterans Hosp., 537 F.2d 361, 365 (9th Cir.1976)). A false statement that merely offers an evaluation of an employee’s work performance is not violative of the employee’s liberty interest, however.

Leese, 64 Md.App. at 462 , 497 A.2d 159 . Moreover, as recently reiterated by the federal district court in Maryland, “even if ... statements ‘may have been defamatory under state law, that tort alone does not constitute a