ROGERS, Associate Judge:
The controversy in this case arises out of the employment contract of Dr. Marie Best, appellee-cross-appellant, with Howard University.
Dr. Marie L. Best was a professor and chairperson of the Department of Pharmacy Practice at Howard University, appellant-cross-appellee, from July 1, 1976 to June 30, 1979. On December 14, 1978, she was notified that at the end of her three-year appointment, on June 30, 1979, she would not be recommended for reappointment. She filed suit on December 13, 1979, against the University and several named individuals (individually and in their official capacity), Dr. James Cheek, President of the University, Dr. Carleton Alexis, Vice President for Health Affairs at the University, and Dr. Wendell Hill, Jr., Dean of the College of Pharmacy and Pharmacal Services. She charged the various defendants with breach of contract, sex discrimination, defamation, and intentional infliction of physical and emotional distress, and sought to recover compensatory damages (including loss of future income), punitive damages, and to enjoin the defendants from failing to grant her indefinite tenure. At the close of her evidence, in a jury trial, the trial court directed a verdict against her on the claims of sex discrimination, intentional infliction of emotional distress, and defamation (thus dismissing the case as to the individual defendants). At the close of all the evidence the trial court directed a verdict against Howard University for breach of contract, and submitted the issue of damages to the jury. The jury returned an award of $851,000 to Dr. Best; the trial court subsequently granted a new trial on the ground the damages were excessive. A new trial on damages, before a second judge and jury, resulted in a verdict for Dr. Best for $375,000.
Howard University appeals the directed verdict on the issue of its liability for breach of contract, and also asserts that the first trial court improperly instructed the jury on the measure of damages. Dr. Best appeals the first trial court's ruling that the damages awarded as a result of the first trial were excessive, and contends the award of a new trial on that issue was an abuse of discretion. Alternatively, if the trial court's grant of a new trial is affirmed, she contends the trial court erroneously directed a verdict against her on her claims of sex discrimination, intentional infliction of emotional distress, and defamation. After a brief discussion of the factual background of this case, we examine the parties' contentions.
Dr. Marie L. Best holds a bachelor of science degree, master of science degree, and Ph.D in Pharmacy and has spent much of her career since 1959 in teaching and administration. In 1975, while an assistant professor at the University of Wisconsin, she was offered a position at Howard University as a full professor and chairperson (chair) of the Department of Pharmaceutical and Health Administration (later the Department of Pharmacy Practice) by then Dean Robinson. Correspondence between Dean Robinson and Dr. Best indicated that the University wanted Dr. Best to begin in January 1976, but she was unable to leave her responsibilities in Wisconsin until April 30, 1976, and suggested she could serve either as a consultant or visiting professor and assume her full-time duties on July 1,
In October 1976 Dean Robinson resigned. Dr. Best was appointed Acting Dean in November 1976 and served (and was considered for the position permanently) until September 1977 when Dr. Wendell Hill, Jr. was appointed Dean. Dr. Best continued to serve as professor and chair of her department. On December 14, 1978 she received notice from Dean Hill that upon the completion of her term on June 30, 1979, he did not intend to recommend renewal of her contract. During the next months she made a number of attempts to discover why the Dean did not intend to recommend renewal, and also sought the aid of Dr. Alexis. After her request for a hearing before the Grievance Committee was denied, she brought suit.
II. Breach of Contract
Dr. Best's claims for breach of contract arise from her contention, on alternative theories, that she was a professor with indefinite tenure. She contends that she was entitled to indefinite tenure by virtue of provisions of the Howard University Faculty Handbook (Handbook) (see appendix to this opinion), which were part of her contract with the University, because she was not "without previous appointment at the University" when she was reappointed on July 1, 1976 to the rank of professor (Handbook Section III(C)(3)(c)). Alternatively, she contends her maximum probationary year was 1978-1979 and she was therefore entitled under Handbook provisions to be notified by June 30, 1978 if the University chose to terminate her services, and in the absence of timely notice, she was entitled to reappointment, which at her rank assured indefinite tenure. (Handbook Sections III(C)(2) and (C)(3)(c)). The University contends that, as an accommodation to Dr. Best, her initial appointment on April 1, 1976, as a visiting professor was a special appointment, which is not a tenure track appointment within the meaning of a "previous appointment" that would result in her indefinite tenure on July 1, 1976. (Handbook Section I(B)(1)(d)). The University also contends that Dr. Best did not receive late notice of non-renewal, but that even if she did, such late notice does not result in an award of indefinite tenure. (Handbook Sections III(A)(1) & (2) and V(B)(1)(c) & (B)(4)).
The trial court granted a directed verdict against the University on the breach of contract claim at the close of all the evidence. It dismissed Dr. Best's first theory of indefinite tenure by virtue of reappointment without prejudice to her right to reassert it in the future and found that there were thus no factual issues in dispute, the only issue being the interpretation of the employment policies of the Faculty Handbook which, according to the testimony, was a part of Dr. Best's employment contract, along with her employment papers. The trial court ruled that it was clear under the applicable provision of the Handbook that Dr. Best was entitled to receive one year's notice of non-renewal, that late notice of non-renewal resulted in re-appointment, and that re-appointment, according to other provisions of the Handbook, gave Dr. Best indefinite tenure.
A directed verdict is appropriate only when the evidence is so clear that reasonable men could reach but one conclusion. Papanicolas v. Group Hospitalization, Inc., 434 A.2d 403, 404 (D.C.1981). This court has held that if a contract is ambiguous, and the evidence supports more than one reasonable interpretation, the interpretation is a question of fact for the jury. 1901 Wyoming Avenue Cooperative Ass'n v. Lee, 345 A.2d 456, 461 n. 8 (D.C.1975) (citing Rich v. Sills, 130 A.2d 920, 922 (D.C.1957)); 4 WILLISTON ON CONTRACTS § 616 at 660-62 (3d ed. 1961). See also 3 CORBIN ON CONTRACTS § 554, pp. 222-27 (1960 ed.). But if the meaning of a
This court adheres to the "objective law" of contracts, whereby the
Minmar Builders, Inc. v. Beltway Excavators, Inc., 246 A.2d 784, 786 (D.C.1968) (quoting Slice v. Carozza Properties, 215 Md. 357, 368, 137 A.2d 687, 693 (1958)). However, even when a contract is integrated, "where there is some lack of clarity in the terms of the contract, other testimony regarding the intent of the parties and the meaning of the terms in the context may be required, and will properly be admitted in order to reach an objective interpretation." Id.
1901 Wyoming Avenue Cooperative Ass'n v. Lee, supra, 345 A.2d at 461-62 (footnotes omitted).
The parties disagree about whether Dr. Best's contract with the University was integrated. However, in construing contracts of employment in a university setting, we follow the instruction that such employment contracts "comprehend as essential parts of themselves the hiring policies and practices of the University as embodied in its employment regulations and customs." Greene v. Howard University, 134 U.S.App.D.C. 81, 88, 412 F.2d 1128, 1135 (1969).
Id. As noted by this court, in the absence of an express term to the contrary, the usual practices surrounding a contractual relationship can become the contractual obligation. Bason v. American University, 414 A.2d 522, 525 (D.C.1980); Pride v. Howard University, 384 A.2d 31, 35 (D.C. 1978). Thus, if we find that the meaning
We first examine the trial court's ruling that Dr. Best was entitled to tenure by virtue of receiving late notice of non-renewal.
The trial court ruled that Section III(C)(2) of the Handbook, requiring one year's notice of non-renewal of an appointment, applied to Dr. Best. Specifically, the trial court held that Dr. Best was covered by Section III(C) because she was a regular, full-time faculty member in her final probationary year, and was entitled to tenure under Section III(C)(3)(c) due to the University's failure to provide her with timely notice. Accordingly, we must first determine whether Dr. Best's contract provided that she was entitled to receive one year's notice of non-renewal; if so, then we must determine whether that late notice resulted in her automatic re-appointment with automatic tenure.
The evidence amply supports the trial court's conclusion that Dr. Best was a regular full-time faculty member from July 1, 1976 to June 30, 1979, who, at the time she received notice of non-renewal, in December 1978, was in her final probationary year as a professor with a three-year appointment at Howard and no prior appointment at the University. See Handbook Section I. Dean Hill testified that Dr. Best was a full-time regular faculty member who would have received tenure had she been reappointed in July 1979. William Harris, an assistant professor of pharmacy, Captain Bosdekian, former assistant dean to Dean Robinson, and Ralph Arline, a former instructor of Pharmacy Practice, all testified that Dr. Best was a full professor as of July 1, 1976.
The University asserts, however, that the one-year notice provision of Section III(C)(2) did not apply to Dr. Best because, by custom and practice, it only applies to persons who must serve a probationary appointment of seven years or more. Dr. Best, having had prior experience at another university, could not be required to serve a seven-year probationary term; under Section III(C)(3)(c) of the Handbook she would serve three years and, if reappointed, would receive tenure. The University argues that since the Handbook is subject to more than one reasonable interpretation the issue of what period of notice it was required to give Dr. Best should have been allowed to go to the jury. From our review of Dr. Best's contract we think the language is unambiguous under standard principles of contract construction and that extrinsic evidence regarding custom and practice is unnecessary.
It is clear from the Handbook that the one-year notice provision of Section III(C)(2) is "subject to the provisions below" and the provisions below the one-year notice provision include Section III(C)(3)(c) on professors who have previously served at other institutions. The University asserts, however, that Dr. Best was entitled to only six month's notice of non-renewal under Section V(B)(1)(c). This provision, however, which is applicable to all regular probationary faculty members regardless of rank, cannot reasonably be applied to professors in their final probationary year, as was Dr. Best, unless one ignores the more specific one-year notice provision which clearly applies to faculty in their
The University also asserts that late notice of non-renewal did not, as a matter of law, result in indefinite tenure for Dr. Best, and the trial court erred in ruling to the contrary. The trial court ruled that the University had the option of giving either one year's notice of non-renewal or of reappointing Dr. Best, that its failure timely to notify her of non-renewal resulted in her reappointment, and under the Handbook, her reappointment brought tenure according to Section III(C)(3)(c). The University does not contest that if Dr. Best were reappointed she would receive indefinite tenure.
It has been previously held in this jurisdiction that a faculty member who is not informed of non-renewal of his appointment in accord with the time limits set out in his Faculty Handbook has a legitimate expectancy of re-employment arising from the University's custom and practice. Greene v. Howard University, supra, 134 U.S.App.D.C. at 87, 412 F.2d at 1134. Other jurisdictions have similarly construed notice provisions for termination and non-renewal. Pima College v. Sinclair, 17 Ariz.App. 213, 215, 496 P.2d 639, 641 (1972) (failure to give college teacher proper notice of contract termination caused his contract to be automatically renewed under explicit Handbook provision that teacher may assume invitation to continue teaching); Thomas v. Ward, 529 F.2d 916 (4th Cir.1975) (handbook which provided that probationary status lasted three years, and that after 1967-68 school year teachers were employed on continuing contract with dismissal only for incompetence or disreputable conduct, created a legitimate expectancy of employment and a teacher with five years experience was no longer probationary). At least one court has granted tenure as a result of late notice, where a state statute was construed as intending to
Dr. Best argues that she was entitled to reappointment because of a reasonable expectation inferred from the requirement in Section V(B)(3) of the Handbook that a faculty member must notify the dean if he wishes to decline a renewal in the absence of notice of non-renewal. She also relied on the inference that regular professors have greater rights than specially appointed faculty and that Section III(B) of the Handbook limits its disclaimer of a presumption of renewal to special appointments. The University argues that the purpose of the notice provision is not to grant tenure and in the absence of an express contract provision providing for renewal of a contract for a like term in the event of untimely notice, Dr. Best cannot claim de facto tenure or recover damages for her dismissal in the absence of injurious reliance on University assurances of tenure, as there were in Soni v. Board of Trustees of University of Tennessee, 513 F.2d 347 (6th Cir.1975) and Bruno v. Detroit Institute of Technology, 51 Mich.App. 593, 215 N.W.2d 745 (1974).
We have carefully reviewed Dr. Best's contract, which includes letters of offer and acceptance, employment papers prepared by the University, and the Handbook's statement of employment policies. Of significance in our analysis of her claim of a reasonable expectancy of reappointment is the recognition that the trial court was of the view that the University's obligation to Dr. Best could be derived solely from the contract documents, and that Dr. Best's claim to an expectancy is not based on any express provision in her contract, as was her claim to entitlement to receive one year's notice, but on inferences from language referring to faculty members who are not of her same status. Accordingly, we examine the basis on which it can properly be determined whether a person in Dr. Best's position would have a reasonable expectancy of reappointment.
In Greene v. Howard University, supra, 134 U.S.App.D.C. at 86, 412 F.2d at 1133, the D.C. Circuit relied on the language of the faculty member's contract "buttressed by affidavits and depositions" that "the usual practice of the University was to inform non-tenured faculty members by January or April depending on the length of their appointments, whether they would be reappointed for the next school year." The accompanying footnote commented that "this usual practice, of course, can be raised to the level of a contractual obligation." The court further noted that the contract language of the Handbook made it clear that a faculty member, if untimely notified of non-renewal, "had a legitimate reason to believe he could rely on returning to Howard the following semester." Id.
Following a similar analysis in this case, we find that the only language in Dr. Best's contract which refers explicitly to the effect of late notice is Section V(B)(4) of the Handbook which provides that late notice of non-renewal entitles a faculty member to a statement of the reasons for non-renewal. Other than this provision, the Handbook states that there is no presumption of renewal for special appointments (Section III(B)(2)), and that for regular classes of academic positions a professor without previous appointment who is appointed for a period of three years, shall "if reappointed" be given indefinite tenure. (Section III(C)(3)(c)). The parts of the Handbook in the record before us do not describe the procedures for reappointment or indefinite tenure.
Dr. Best presented evidence regarding her own expectations of permanency in coming to Howard University from the University of Wisconsin, but did not offer evidence that in other similar cases late notice had resulted in indefinite tenure through reappointment. She testified that it was her understanding that full time professors are tenured. While she was aware she had only a three year contract she viewed it as relating to her appointment as chair. (See Administrative Policies Relating to Selection of Deans and Department Chairman, Section F. Handbook at 44). She admitted she had not received any document from the University indicating she had indefinite tenure, but contended that her expectancy was reasonable since she had continued to serve during her final probationary year as full professor and chair.
The University presented evidence, through the testimony of Dr. Alexis, and buttressed by the deposition of the President of the University, that the general custom and practice under Section III(C)(3)(c) called for the appropriate dean to make a recommendation for reappointment to the President of the University who would decide whether or not to submit the recommendation to the Board of Trustees which had to make the final decision on all reappointments and grants of indefinite tenure; the process was not followed in Dr. Best's case because the dean did not recommend her reappointment. Dr. Alexis further testified it was the custom and practice of the University to appoint professors with experience elsewhere to an initial three-year term so that the University could use that period for observation in order to determine, prior to making a decision on a reappointment and thereby indefinite tenure, whether a faculty member lived up to his reputation and how he fit into the University. The decision whether to reappoint a person with tenure is, he testified, "the single most critical decision [of] the board [of trustees]." Dr. Heman-Ackah testified that he worked closely with Dean Robinson and that Dr. Best was appointed in accordance with the regular practice of the University in hiring outside professors, noting that he had initially received a three-year appointment, and became tenured when he was reappointed after a favorable recommendation by the dean.
Reading Dr. Best's contract as a whole, we conclude it is ambiguous on its face with respect to the effect of late notice of a reappointment resulting in indefinite tenure. The meaning of the phrase "if reappointed" in Section III(C)(3)(c) of the Handbook was open to several reasonable interpretations. A genuine issue of material fact was thus presented and should have been allowed to go to the jury. 1901 Wyoming Avenue Cooperative Ass'n v. Lee, supra, 345 A.2d at 461.
In Dr. Best's view, any ambiguity about the meaning of the phrase "if reappointed" in Section III(C)(3)(c) is resolved by the inferences drawn from Section V(B)(3), which she contends indicate that continuous service is tantamount to reappointment in the absence of timely notice of non-renewal, and in Section III(B) which expressly disclaims automatic renewals for special appointments. However, to the extent she relies on Section V, Termination of Service, to obtain rights under Section II, Types of Appointments, she faces a problem in the absence of proof of such a custom and practice. Viewing her contentions in light of the language in Section III(A)(1), that the terms and conditions of appointment must be in writing, her three-year appointment would expire automatically on June 30, 1979, pursuant to Section V(A), in the absence of some other action by the University. Moreover, insofar as Section V(B)(3) can provide a basis for Dr. Best's claim of a reasonable expectation of reappointment, it applies, for reasons noted in our discussion of her entitlement to one year's notice, only to probationary appointments not in their final probationary year; Dr. Best's status "if reappointed" would no longer be that of a probationary appointment. But even accepting her contention that she is entitled to rely on the inference from Section V(B)(3), her contract would only entitle her upon late notice of non-renewal to a statement of reasons for non-renewal (Section V(B)(4)), not to reappointment much less indefinite tenure. Further, by giving her six months notice under Section V(B)(1)(c), the University had, arguably, effectively rebutted the reasonableness
Section III offers little explicit support for Dr. Best's position. In addition to requiring that the terms and conditions of appointment be in writing, the language of Section III(C)(3)(c) makes reappointment conditional. As regards notice, Section III(A)(1)(2) provides only that the University must give notice of promotions or other changes in terms and conditions of service "as promptly as possible" (Section III(A)(1)(2)). Nor is the language of Section III(B) for special classes of academic appointments any more explicit in resolving the meaning of the phrase "if reappointed" for regular classes of academic positions when notice of non-renewal is untimely; at most Section III(B) rebuts any inference under Section V(B)(3) for special appointments. On the other hand, the University argues that purpose of the notice requirement is to give a faculty member sufficient time to find employment and is independent of the award of tenure. It would resolve any ambiguity in the phrase "if reappointed" by reference to the evidence it presented on the custom and practice for reappointments and granting tenure as defeating an expectancy of indefinite tenure based solely on service following late notice of non-renewal.
While we do not question the University's assertions about the significance of granting indefinite tenure, the University no less than Dr. Best is bound by the contracts it makes. It is clear, however, that the disputed issue between them cannot be resolved without reference to the University's custom and practice for making reappointments and granting indefinite tenure generally as well as its custom and practice specifically, if any, when a faculty member whose reappointment would result in indefinite tenure receives late notice of non-renewal. Contrary to Dr. Best's contentions, her contract documents do not elevate timely notice to a contractual right whereby late notice results in automatic reappointment; the express terms of her contract required her to receive a reappointment in order to gain indefinite tenure and limited her rights upon late notice to a statement of reasons for non-renewal. Unlike the contracts, statutes or university regulations present in the cases on which Dr. Best relies to support her claim of reasonable expectation of reappointment, her contract does not expressly state that tenure is automatic upon successful completion of a three-year term
Therefore, in the absence of explicit language on the effect of late notice where a reappointment would result in indefinite tenure, and in the absence of specific assurances to that effect by the University, the University's custom and practice become a part of Dr. Best's contract. Bason v. American University, supra, 414 A.2d at 525; Pride v. Howard University, supra, 384 A.2d at 35. A factual determination of that custom and practice is required to resolve whether Dr. Best had a reasonable expectancy of reappointment if she received late notice and if so, then whether it was the custom and practice of the University to view service as resulting in an automatic reappointment with indefinite tenure. 1901 Wyoming Avenue Cooperative Ass'n v. Lee, supra, 345 A.2d at 461-62 & n. 11. Following the analysis in Greene v. Howard University, supra, we agree with the trial court that because Dr. Best was entitled to receive timely notice, the University's failure to do so put a "different dimension" on their relationship. But we disagree with the trial court's conclusion that under her contract, without reference to custom and practice, the language was only susceptible to the interpretation that the University had two options available to it: timely notice or automatic reappointment with indefinite tenure. Under Greene v. Howard University, 134 U.S.App.D.C. at 88, 412 F.2d at 1135, custom and practice are relevant in the absence of an explicit provision that reappointment resulting in indefinite tenure is automatic upon late notice of non-renewal. Not only did her contract contain an explicit provision limiting her rights under Section V as a result of late notice, but a determination of whether her expectancy of reappointment under Section III was nevertheless reasonable depended on the University's custom and practice for making reappointments resulting in indefinite tenure. The trial court properly admitted extrinsic evidence on the University's custom and practice,
Accordingly, we hold it was error for the trial court to direct a verdict against the University on the grounds that late notice entitled Dr. Best to reappointment, and thence indefinite tenure. Dr. Best's expectancy may have been real, but we hold that it was only a hypothetical expectancy at the time the trial court directed a verdict, and not an entitlement because of the absence of key findings of fact. A jury might find that the University's custom and practice entitled Dr. Best to such an expectancy, but it is not clear from her contract documents alone.
Dr. Best's alternate theory of her entitlement to indefinite tenure was based on the Handbook provision which provided that she would have indefinite tenure if she was not without previous appointment
The Handbook, Section III(C)3(c), states Associate Professors and Professors shall be appointed with indefinite tenure, except that such persons "without previous appointment at the University shall be appointed for a period of three years ...." The disputed issue is the meaning of the words "previous appointment." The employment papers for Dr. Best's July 1, 1976 appointment refer to a "reappointment," and another way to frame the issue is, what was the nature of her first (April 1 to June 30, 1976) appointment? Her employment papers reflect that she received a part-time, three month appointment in April 1976 and a full-time, three year appointment in July 1976. On its face, the July 1, 1976 appointment does not repeat the previous appointment; nor do her employment papers specifically indicate the reappointment is with indefinite tenure.
Dr. Best testified that the procedure of two appointments was intended by Dean Robinson and herself to give her tenure.
To summarize: we affirm the trial court's directed verdict holding that the University breached the contract by giving Dr. Best late notice of non-renewal, and also its ruling there was a disputed issue of fact as to the meaning of the two appointments. We reverse the trial court's ruling that Dr. Best had indefinite tenure as a result of late notice and remand the case for a new trial on the issue of her status as a tenured or non-tenured faculty member, and any damages to which she may be entitled.
We now address Dr. Best's assignments of error by the first trial court in directing verdicts against her claims of sex discrimination, intentional infliction of emotional distress, and defamation.
A. Sex Discrimination
Dr. Best contends that the evidence which she presented in the trial court stated a cause of action for sex discrimination under the D.C. Human Rights Act.
on the basis of, inter alia, sex. It is substantially similar to Title VII, 42 U.S.C. § 2000e-2(a)(1) (1966) which also makes it an unlawful employment practice:
In Bundy v. Jackson, 205 U.S.App.D.C. 444, 452, 641 F.2d 934, 942 (1981) the United States Court of Appeals for the District of Columbia held that Title VII
The D.C. Circuit found this conclusion followed "ineluctably from numerous cases finding Title VII violations where an employer created or condoned a substantially discriminatory work environment, regardless of whether the complaining employees lost any tangible job benefits as a result of the discrimination." Id. 205 U.S.App.D.C. at 453-54, 641 F.2d at 943-44. Following the view that "conditions of employment" include the psychological and emotional work environment, the court quoted with approval from the opinion of the Fifth Circuit Court of Appeals in Rogers v. EEOC, 454 F.2d 234, 235, 238 (5th Cir.1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972) noting that while the express language of Title VII did not mention the situation, Congress had chosen "the path of wisdom by being unconstrictive, knowing that constant change is the order of the day and that the seemingly reasonable practice of the present can easily become the injustice of the morrow." The "terms, conditions, or privileges of employment"
Bundy v. Jackson, supra, 205 U.S.App. D.C. at 454, 641 F.2d at 944. The D.C. Circuit proceeded to ask rhetorically "how then can sexual harassment, which injects the most demeaning sexual stereotypes into the general work environment and which always represents an intentional assault on an individual's innermost privacy, not be illegal?" Id. 205 U.S.App.D.C. at 455, 641 F.2d at 945. The Court noted that unless Title VII is not limited to disparate treatment and the holding in Barnes v. Costle, 183 U.S.App.D.C. 90, 95, 561 F.2d 983, 988 (1977) extended, "an employer could sexually harass a female employee with impunity by carefully stopping short of firing the employee or taking any other tangible actions against her in response to her resistance, thereby creating the impression... that the employer did not take the ritual of harassment and resistance seriously." Bundy v. Jackson, supra, 205 U.S.App.D.C. at 455, 641 F.2d at 945. Other courts have recently held that sexual harassment is a violation of Title VII. Katz v. Dole, 709 F.2d 251 (4th Cir.1983); Henson v. City of Dundee, 682 F.2d 897 (11th Cir.1982); Cummings v. Walsh Construction Co., 561 F.Supp. 872 (S.D.Ga. 1983); Robson v. Eva's Supermarket, Inc., 538 F.Supp. 857 (N.D.Ohio 1982).
The legislative history states the reason for enacting what was then Title 34 of the D.C.Rules and Regulations as part of the District of Columbia Code: "Enactment of Title 34's provisions as the Human Rights Act would underscore the Council's intent that the elimination of discrimination within the District of Columbia should have the `highest priority.'" Report of the Council of the District of Columbia, Committee on Public Services and Consumer Affairs, July 5, 1977 at 3. The statute provides a private cause of action for any individual claiming to be aggrieved by an unlawful discriminatory practice. D.C. Code § 1-2556.
Elements of Prima Facie Case of Sex Harassment. To establish a prima facie case of sexual harassment under Title VII, a plaintiff must demonstrate that (1) she is a member of a protected class; (2) she has been subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of affected a term, condition, or privilege of employment; (5) respondeat superior. Henson v. City of Dundee, supra, 682 F.2d at 903-04; Cummings v. Walsh Construction Co., supra, 561 F.Supp. at 877.
To define "sexual harassment" Henson turned to guidelines then recently promulgated by the Equal Employment Opportunity Commission:
29 C.F.R. § 1604.11(a) (1981). See also Bundy v. Jackson, supra, 205 U.S.App. D.C. at 457, 641 F.2d at 947. The District Government has also defined "sexual harassment." Mayor's Order No. 79-89 (May 24, 1979), which required all District of Columbia government agencies to investigate and adjudicate claims of sexual harassment, defined sexual harassment as:
These guidelines, which are more specific than the EEOC guidelines (though by no means exhaustive), offer assistance to a trial court faced with the question whether the plaintiff has established a prima facie case.
That the harassment complained of be based on sex, Henson, supra, 682 F.2d at 903, seems obvious if not redundant. "The essence of a disparate treatment claim under Title VII is that an employee is intentionally singled out for adverse treatment on the basis of a prohibited criterion." Id. Henson recognized that where a male supervisor
The harassment complained of must affect a "term, condition, or privilege of employment." Bundy v. Jackson, supra. "For sexual harassment to state a claim under Title VII, it must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working
Thus, we hold that a plaintiff establishes a prima facie case of sexual harassment upon demonstrating that unwelcome verbal and/or physical advances of a sexual nature were directed at him/her in the workplace, resulting in a hostile or abusive working environment. Katz v. Dole, supra, 709 F.2d 251; Bundy v. Jackson, supra, 205 U.S.App.D.C. 444, 641 F.2d 934; Continental Can Co., Inc. v. State, 297 N.W.2d 241 (Minn.1980). The test to determine whether the plaintiff has met her burden is essentially a balancing test, in which the trier of fact should consider, inter alia, the amount and nature of the conduct, the plaintiff's response to such conduct, and the relationship between the harassing party and the plaintiff. In other words, the totality of the circumstances must be considered.
Dr. Best, the only female faculty member in the College of Pharmacy, recounted numerous instances of unwanted physical harassment and verbal propositions by Dean Hill. For example, in October 1977, Dr. Best and other members of the Howard University Department of Pharmacy Practice attended a meeting of the American Association of Colleges of Pharmacy in Silver Spring, Maryland, with faculty from eight states. While Dr. Best was talking to a colleague, Dean Hill approached her, put his arms around her, and massaged her neck; when she told him to take his hands off her, he laughed. This incident was corroborated by Captain Bosdekian, who further testified that he found such conduct unprofessional and embarrassing. In February 1978, during a faculty meeting, Dean Hill whispered to Dr. Best that "if you keep dressing this way you are going to be raped"; in January 1978, at a reception he had "toyed" with the fur and jewelry she was wearing, and then sat down at a table with Dr. Best and some colleagues, saying "I see what I want and she is wearing," describing her clothing. In May 1978 at the senior class party Dean Hill threw his arms around Dr. Best's shoulders and patted her behind. Additionally, after she was the only full-time faculty member not invited to the College's anniversary celebration, Dean Hill asked her to go to lunch with him so he could "get [her] drunk and importune" her. Dr. Best also presented sufficient evidence that she repeatedly informed Dean Hill that she disliked and was offended by his advances and that he was aware of her dislike of his behavior.
That Dr. Best was subject to such physical and verbal harassment was corroborated by Professor Harris, a member of the Department of Pharmacy Practice, who saw Dean Hill make a "male-female type grab" of Dr. Best and heard Dr. Best, who was adamant, tell him to take his hands off of her. Captain Bosdekian witnessed the incident in Silver Spring and testified that he regularly saw Dean Hill touch Dr. Best, who would withdraw from such physical contact. Captain Bosdekian also testified that no other female staff members were touched by Dean Hill. Ralph Arline, a former instructor of pharmacy, also witnessed the incident in Silver Spring, which he characterized as more than friendly, testifying that Dr. Best appeared very embarrassed and concerned, and that he was also chagrined by it; there were other incidents as well although the details were hazy in his mind.
We hold that Dr. Best stated a cause of action and presented a prima facie case of sexual harassment under the D.C. Human Rights Act, D.C.Code § 1-2512, and remand the case for a new trial. Katz v. Dole, supra, 709 F.2d 251 (female air traffic controller who was object of sustained and non-trivial harassment, including use of obscenities, and reference to her sexual abilities, which actions were corroborated by witnesses, proved sexual harassment under Title VII); Continental Can Co., Inc. v. State, supra, 297 N.W.2d 241 (plaintiff who was subject to male co-workers' comments that based on their sexual prowess she would leave her husband, that women who worked at factory were tramps, and who was grabbed between her legs, demonstrated sexual harassment under Minnesota Human Rights Act).
Liability of Howard University. We turn now to Howard University's liability for the actions of Dean Hill. Courts have taken two approaches to employer liability for the acts of their employees in sexually harassing other employees. One approach, recognized in the EEOC guidelines, 29 C.F.R. § 1604.11(c), imposes strict liability when the harassing misconduct is committed by the plaintiff's supervisor. See Miller v. Bank of America, 600 F.2d 211, 213 (9th Cir.1979), which held the employer responsible where "the action complained of was that of a supervisor, authorized to hire, fire, discipline or promote, or at least to participate in or recommend such actions, even though what the supervisor is said to have done violates company policy." Bundy v. Jackson, supra, suggested this standard when it cited the EEOC guidelines and held that "an employer is liable for discriminatory acts committed by supervising personnel." 205 U.S. App.D.C. at 453, 457, 641 F.2d at 943, 947. See also Cummings v. Walsh Construction Co., supra, 561 F.Supp. at 878; Robson v. Eva's Supermarket, Inc., supra, 438 F.Supp. at 863 (employer liable where supervisor of plaintiff acquiesced in sexual harassment by co-employee). A strict liability standard relieves the plaintiff from the burden of demonstrating that personnel above her supervisor knew of and failed to investigate, or otherwise acquiesced in, sexual harassment. EEOC guidelines, 29 C.F.R. § 1604.11(c) (employer is liable for acts of supervisory personnel "regardless of whether the employer knew or should have known of their occurrence").
The second approach, which narrows the scope of employer liability, holds an employer liable for an abusive environment only if "the plaintiff ... prove[s] that higher management knew or should have known of the sexual harassment." Henson v. City of Dundee, supra, 682 F.2d at 910. In Katz v. Dole, supra, the plaintiff was required to demonstrate "not only that the employer knew or should have known of the existence of a sexually hostile working environment," but also that the employer "took no prompt and adequate remedial action." 709 F.2d at 256.
We need not decide what standard to apply when the plaintiff is harassed by co-employees rather than supervisory personnel because on the record before us Dean Hill was the agent of the University and possessed and exercised the power and authority to terminate Dr. Best on behalf of the University. Cf. Collins v. Barner, 50 App.D.C. 109, 268 Fed. 699 (1920) (employee acting as vice-principal). The Articles of Organization for the College of Pharmacy and Pharamacal Sciences provide that the Dean "is directly responsible to the Vice President for Health Affairs and serves as agent for the observance and execution of the rules and regulations of the University and of the College." Article IV (Plaintiff's Exhibit 20). The definition of "employer" under the D.C. Human Rights Act supports this interpretation of the evidence. D.C.Code § 1-2502(10) defines employer to include "any person acting in the interest of such employer, directly or indirectly." Dean Hill testified (at the first trial) that he made the decision not to renew or continue Dr. Best's employment and did so without consulting the Committee on Faculty Appointment, Promotion and Tenure (Articles of Organization § VI(a)(ii) (Plaintiff's Exhibit 20)). There was also testimony from Dr. Alexis that, although the custom and practice at the University regarding tenure decisions was to send the recommendation to the college dean, to Dr. Alexis, and then to the President, who would decide whether to submit his recommendation for decision by the Board of Trustees, this was not done in Dr. Best's case because there was no recommendation for tenure by Dean Hill. In effect, Dr. Alexis simply adopted Dean Hill's recommendation of non-renewal and hence no tenure. Dr. Alexis, in his deposition, which is part of the record on appeal, stated that, in the case of department chairs, such as Dr. Best, the tenure recommendation was made by the dean. An aide to former Dean Robinson also testified that, as a general matter, chairs of departments at the University are directly responsible to their deans, and answerable to them. Further, Dean Hill testified that he made the decision not to continue Dr. Best's employment; his deposition, which is also part of the record, demonstrates that he had sole authority to recommend Dr. Best's reappointment to the University, and that his decision not to reappoint her was based on his personal evaluation of her, without reference to objective criteria.
There can be no doubt, then, that the college dean had a critical role in personnel affairs and as the evidence indicates, Dean Hill used his role, with the full knowledge of and acceptance by, the University, to make the final decision not to renew Dr. Best's contract. Miller v. Bank of America, supra, 600 F.2d at 213. Accordingly, upon plaintiff's establishing a case of sexual harassment at a new trial,
Equal Pay. Dr. Best also claimed she was discriminatorily paid less than her predecessors and successors as dean and department chair in violation of the D.C. Human Rights Act, D.C.Code § 1-2512, which makes it an unlawful discriminatory practice to "discriminate against any individual, with respect to his compensation." Upon review of the record, we agree with the trial court that Dr. Best failed to so demonstrate, but because we disagree with the reasons given by the trial court, we discuss our findings further below.
As with Dr. Best's claim of sexual harassment, we have looked to federal law for instruction. The prima facie elements of a claim of unequal pay for equal work are the same under Title VII and the Equal Pay Act of 1963, 29 U.S.C. § 206(d)(1).
Dr. Best's testimony and exhibits demonstrated that in 1976-77 when she served as Acting Dean and full professor, her salary was $35,840, while the salary of her predecessor, Dean Robinson, had been $39,025.25 in 1974-75 (Plaintiff's Exhibit 62). Dr. Best also testified that a 1978 study of department faculty salaries revealed the salary range in her department to be $31,000-$36,000 with an average salary of $33,000; this was corroborated by Dean Hill. In contrast, Dr. Best's salary as a professor in 1978 was $29,000; she received a $1500 stipend for serving as department chair and another $2500 stipend as acting dean. Her total salary, however, remained less than Dean Robinson's, and less than that of the man who replaced her as a professor and department chair. She testified her successor received $46,000; Dean Hill testified that her successor earned approximately $40,000. On cross-examination Dr. Best testified that she negotiated
The trial court erred in ruling that the evidence that Dr. Best negotiated her salary with her employer was fatal to her claim of sex discrimination in compensation. An employer cannot negotiate away an employee's statutory rights to equal pay. Laffey v. Northwest Airlines, Inc., 185 U.S.App.D.C. at 340, 567 F.2d at 447. Nevertheless, we affirm the trial court's directed verdict against Dr. Best because we find, upon this record, that crucial elements of a prima facie case are missing. The record does not, for example, include evidence of the comparative duties and skills of former and successor deans and chairs as contrasted to those of Dr. Best; nor was there any comparison of her education, experience, training and ability, with that of the other faculty members, deans and department chairs. She also presented no evidence of her teaching responsibilities, such as the number of courses or students, or the difficulty of her courses, compared to the teaching responsibility of her male colleagues. There is thus no evidence on which the jury could have determined that Dr. Best was performing "equal work, on jobs the performance of which requires equal skill, effort and responsibility." Corning Glass Works, supra; see Pearce, supra (female credit manager who presented evidence that her successor, a male, earned more when he started than she did when she was fired, although she had 20 years experience and a high school degree while he had a high school degree but no experience, established sex bias in pay). We affirm the trial court's dismissal of this claim at the close of Dr. Best's case.
B. Intentional Infliction of Emotional Distress
Dr. Best alleged that Dean Hill interfered with her responsibilities as chair of the Department of Pharmacy Practice and subjected her to the aforementioned pattern of unwanted sexual harassment, and that, taken together, this conduct constituted intentional infliction of emotional distress. After she testified that Dean Hill prevented her from attending workshops, recalled administrative proposals she had submitted to the Board of Trustees, and dismissed faculty members without consulting her the trial court refused to permit any more evidence of the dean's interference with her performance of her duties, ruling that it was irrelevant to a claim of intentional infliction of emotional distress. Thereafter, at the close of plaintiff's case, the trial court ruled that no juror could reasonably find outrageous conduct sufficient to support the cause of action for intentional infliction of emotional distress.
Intentional infliction of emotional distress consists of "(1) `extreme and outrageous' conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff `severe emotional distress.'" Sere v. Group Hospitalization, Inc., supra note 26, 443 A.2d at 37 (citations omitted). Intent or recklessness can be inferred from the outrageousness of the acts. Id.; Anderson v. Prease, 445 A.2d 612, 613 (D.C.1982). A plaintiff need not prove actual physical injury. Waldon v. Covington, supra note 26, 415 A.2d at 1076. It is for the trial court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, Sere v. Group Hospitalization, Inc., supra, 443 A.2d at 38. The case should be submitted to the jury if reasonable people could differ on whether the conduct is extreme and outrageous. Boyle v. Wenk, 378 Mass. 592, 392 N.E.2d 1053 (1979); Harris v. Jones, 281 Md. 560, 380 A.2d 611, 615 (1977) (en banc). We hold
Contreras v. Crown Zellerbach Corp., supra, 88 Wash.2d at 741-42, 565 P.2d at 1177. Accord Cummings v. Walsh Construction Co., supra (allegations of repeated sexual solicitation state cause of action, under Georgia law, for intentional infliction of emotional distress); Robson v. Eva's Supermarket, supra (same under Ohio law); Rogers v. Loew's L'Enfant Plaza Hotel, supra (District of Columbia law).
Actions which violate public policy may constitute outrageous conduct sufficient to state a cause of action for infliction of emotional distress. Macey v. New York State Electric and Gas Corp., 436 N.Y.S.2d 389, 391, 80 A.D.2d 669 (1981) (where plaintiff alleged defendant refused to turn on her electricity unless she, inter alia, separated from her husband, plaintiff stated cause of action for intentional infliction of severe emotional distress because such a condition would be against public policy and would constitute outrageous conduct). The Council of the District of Columbia declared, upon enacting the D.C. Human Rights Act, that "the elimination of discrimination within the District of Columbia should have `the highest priority.'" Report of the Council of the District of Columbia, Committee on Public Services and Consumer Affairs, supra at 3.
We reject Dr. Best's contention that Dean Hill's alleged interference with her professional responsibilities as department chair was also evidence of intentional infliction of emotional distress. To be actionable, conduct must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency." Jackson v. District of Columbia, 412 A.2d 948, 957 (D.C.1980) (quoting RESTATEMENT (SECOND) OF TORTS § 46, Comment d (1965)). Dr. Best's evidence demonstrated, at most, that she and Dean Hill disagreed about the administration of her department. Such employer-employee conflicts do not, as a matter of law, rise to the level of outrageous conduct. Cf. Beidler v. W.R. Grace, Inc., 461 F.Supp. 1013, 1016 (E.D.Pa.1978) (on defendant's motion to dismiss, held that plaintiff's averment he was excluded from staff meetings, was never
Dr. Best also sought to hold the University liable for Dean Hill's alleged intentional tort. An employer may be held liable for the intentional tort of its employee if the tort arises out of the employment. District Certified TV Service, Inc. v. Neary, 122 U.S.App.D.C. 21, 22, 350 F.2d 998, 999 (1965). Courts will impute liability to the master (employer)
Penn Central Transp. Co. v. Reddick, 398 A.2d 27, 31 (D.C.1979) (quoting Lyon v. Carey, 174 U.S.App.D.C. 422, 426, 533 F.2d 649, 653 (1976) (emphasis in original). Liability may be extended to situations "where the employment provides a `peculiar opportunity and ... incentive for'" the tortious activity. Penn Central Transp. Co. v. Reddick, supra, 398 A.2d at 31 (citations omitted). The critical question is whether the conduct "was foreseeable as being within the range of responsibilities entrusted to the employee." Johnson v. Weinberg, 434 A.2d 404, 408 (D.C.1981). Thus, in assault cases, it has been held that the master may be liable for an assault arising out of and committed in the course of employment even though the assault is motivated in part by passion, savagery or personal revenge. Lyon v. Carey, supra, 174 U.S.App.D.C. at 427, 533 F.2d at 654.
The evidence before the trial court demonstrated that many of the incidents of alleged sexual harassment occurred during faculty, administrative or other professional meetings attended by Dean Hill and Dr. Best in their professional capacities. The jury could reasonably have found that Dean Hill's actions, if they constituted intentional infliction of emotional distress, arose out of and in the course of employment, thereby subjecting the University to liability.
To summarize: we reverse the trial court's directed verdict for all defendants, at the close of Dr. Best's case, on her claim of intentional infliction of emotional distress
In December 1978 the College of Pharmacy Management Committee (of which Dr. Best was a member) received a report about the Department of Pharmacy Practice, prepared by a team of outside consultants who had visited the Department in October 1978 to survey it and report to the Department in advance of a formal accreditation visit scheduled for November 1978. The report was prepared at Dean Hill's request, and discussed a number of problems in the College of Pharmacy, including some faculty opposition to the administration. The report also discussed problems in the Department of Pharmacy Practice, of which Dr. Best was the chair; these problems included a low faculty morale, understaffing, inadequate support staff, and conflicts between the chair and the administration. The report read "the present chairman is actively opposed to the present administration. This lack of cooperation has forced the college administration into leadership activities which more appropriately should have been handled by this department." (Plaintiff's Exhibit 63). The report urged corrective measures, but did not recommend any in particular.
Dr. Best disputed the characterization of her in the report and testified that although she spoke to members of the survey team three times, she never discussed her degree of cooperation because she was not asked. Professor Harris testified that Dr. Best was very cooperative with Dean Hill before and after he became dean, even though he would ignore her at faculty meetings; he acknowledged, as did Dr. Best, however, that there were disagreements between them over the administration of her department but still claimed Dr. Best was not hostile to the administration. Captain Bosdekian also testified that she cooperated with Dean Hill. The Management Committee voted, over Dr. Best's objection, to circulate the report to the faculty after marking each page "confidential." The report was circulated to the faculty. Dr. Best contended that the report's conclusion that she was "actively opposed to the present administration" was defamatory and was circulated outside the University. She testified that at several professional meetings around the country she was told "I understand you can't get along with the dean, that they had to can you"; that after she left Howard University people asked her what had happened that caused her to leave, and that she was not contacted by several universities about job openings. On cross-examination she testified, however, that she did not know who had circulated the report beyond the faculty and could not identify anyone, outside of the faculty, who had seen the report.
The trial court directed a verdict against her on the grounds that the evidence established a qualified privilege; there was insufficient evidence of publication outside of the faculty; and the report was not defamatory on its face and Dr. Best had not proved a defamatory meaning. We affirm on the grounds that the report was not demonstrated to be defamatory and there was insufficient evidence of publication.
A publication is defamatory "if it tends to injure plaintiff in his trade, profession or community standing, or lower him in the estimation of the community."
Although Dr. Best testified that people outside of Howard University had heard she did not get along well with Dean Hill and was leaving the University before she had left, she did not testify to any defamatory meaning attached by anyone to the contents of the report. At best, others only reiterated the words contained in the report. But those words are not defamatory on their face. Compare Washington Annapolis Hotel Co. v. Riddle, 83 U.S. App.D.C. 288, 171 F.2d 732, 736 (1948) (imputation of crime is defamatory) with Sullivan v. Meyer, supra, 67 U.S.App.D.C. 228, 91 F.2d 301 (article portraying plaintiff as engaging in "farcical" campaign to prevent students from learning about Russia not defamatory). That people outside of the faculty committee knew the contents of the report does not establish that the report itself made her appear "odious, infamous or ridiculous." Johnson v. Johnson Publishing Co., supra, 271 A.2d at 697.
Even if we were to disagree with the trial court that Dr. Best did not offer any evidence of defamatory meaning, we would affirm the dismissal of the claim on the ground there was insufficient evidence of publication. Dr. Best testified only that she was asked, at various professional meetings, by unnamed persons, about her inability to get along with Dean Hill (who was not named in the report, which referred not to the dean, but to the administration) and about the status of her litigation against the University (which was not in the report at all). Thus, her evidence failed to identify anyone who received or circulated the report and to establish that the contents of the report were otherwise circulated. Because Dr. Best's evidence failed to identify a single person who received or read the report outside of the University, and because she also failed to establish any defamatory meaning, she failed to meet her burden of proving publication. Greenya v. George Washington University, 167 U.S.App.D.C. 379, 386, 512 F.2d 556, 563, cert. denied, 423 U.S. 995, 96 S.Ct. 422, 46 L.Ed.2d 369 (1975).
The following provisions of the Faculty Handbook (as modified February 1, 1969) are referred to in the opinion.
Academic Tenure Regulations
SECTION I: CLASSES OF ACADEMIC POSITIONS: Academic positions are those where the principal services performed by the holders of said positions are teaching, independent research, or a combination of either of these with related professional services, approved by the University.
A. Regular: Professor, Associate Professor, Assistant Professor, and Instructor (except as provided in B, C, and D below).
1. All other academic positions shall be considered special. They include:
2. The paragraphs above covering certain types of special positions are merely illustrative and do not purport to constitute a complete listing of such positions.
3. No number of reappointments to any special position or any term positions shall create a presumption of a right to reappointment.
C. Emeritus; Professor and Associate Professor.
SECTION II: NON-ACADEMIC POSITIONS: The administrative functions, titles and status of such administrators of academic services as deans, vice deans, associate deans, and assistant deans of schools or colleges, directors, department heads or chairmen, shall be distinct from their functions, titles and status, if any, as holders of academic positions.
SECTION III: TYPES OF APPOINTMENTS: The following principles, standards, and procedures shall apply with regard to appointments and reappointments.
A. STATEMENTS OF TERMS AND CONDITIONS
1. The precise terms and conditions of every appointment to the faculty will be stated to the applicant in writing by the President of the University, or his delegate. An appointment will be consummated upon receipt by the President, or his delegate, of a letter of acceptance within the period stated in the letter of appointment. The offer of an appointment shall be made null and void unless it is accepted by the applicant within the time stated in the letter of appointment, or by revocation of the offer by the University by mailing notice of same to the applicant prior to receipt of his acceptance.
2. Notice of promotion and other changes in terms and conditions of service shall be given by the University as promptly as possible.
B. SPECIAL CLASSES OF ACADEMIC POSITIONS
C. REGULAR CLASSES OF ACADEMIC POSITIONS
1. With the exception of temporary appointments for specifically limited terms, all full-time appointments will be of two kinds: (1) probationary appointments, and (2) appointments with indefinite tenure.
2. Probationary appointments may be for one year, or for other stated periods, subject to renewal; but the total number of years on such probationary appointments shall not exceed seven, except that a faculty member with previous full-time service of three years or more at another institution may be required as a term or condition of his initial appointment as stated in the letter of appointment to serve a probationary period not to exceed four years, even though his total probationary period in the academic profession is thereby extended beyond seven years. Leaves of absence to engage in authorized teaching of research activities at another institution of higher learning shall be included in the total probationary period of seven years. Leaves of absence for study toward a degree, military or other national services, or for personal affairs will not be included in the calculation of this period.
Subject to the provisions below, a regular full-time member of the faculty shall be notified in writing on or before June 30, preceding his final (i.e. maximum), probationary year that he will be granted indefinite tenure or that his regular full-time service will be terminated at the completion of that year.
3. Stated Periods by Rank:
D. STANDING COMMITTEE ON TENURE
There shall be a Standing Committee of the Senate on Tenure with one representative elected regardless of rank or tenure from each of the several schools and colleges, charged with the responsibility of reviewing tenure regulations, studying policy regulations from other schools and colleges, and recommending to the University Steering Committee such revisions as appear necessary.
SECTION IV: PROMOTION
A. Promotion in rank is dependent upon growth in professional competence and is based on such criteria as teaching ability, scholarship, participation and leadership in professional societies, and public and community service to the University at large.
B. Recommendations for promotions are initiated at the Department level by majority vote of the tenured members of the Department, or by an executive committee assigned this responsibility. All faculty members eligible for promotion shall have their credentials evaluated annually.
SECTION V: TERMINATION OF SERVICE:
A. Expiration of Definite Period Appointments.
All appointments for a definite period of service (one semester, one, two, or three years), expire automatically with the completion of such period of service.
B. Termination of Probationary Appointments.
1. Notice of Non-Renewal of Probationary Appointments: Written notice that a probationary appointment is not to be renewed will be given to regular full-time faculty members in advance of the expiration of their appointments, according to the following minimum periods of notice:
2. If a faculty member on probationary appointment alleges that a decision not to reappoint him is caused by consideration violative of academic freedom, his allegation shall be given preliminary consideration by the Grievance Committee. The faculty member will be responsible for establishing the grounds on which he bases his allegations and the burden of proof will rest on him. If then the committee concludes that there is probable cause for the faculty member's allegations, the matter shall be heard in the manner set forth in Section VI of this Handbook.
3. If a member of the faculty desires to terminate an existing appointment at the end of the academic year, or to decline a renewal in the absence of notice or non-renewal, he shall give notice in writing at the earliest opportunity but not later than April 15; but he may properly request a waiver of this requirement in case of hardship or in a situation where he would otherwise be denied substantial professional advancement.
4. Late Notices of Non-Renewal of Probationary Appointments. If notice of non-renewal of a probationary appointment is given after the dates specified for such notice, the faculty member concerned may request from the appropriate dean a written statement of reasons for non-renewal.
Second, the University contends the first trial court erred in refusing to instruct the jury that Dr. Best's damages for loss of future income had to be reduced to present value. The University did not raise the issue until the discussion on instructions at the end of trial, and did not submit a written request or any proposed instruction, Super.Ct.Civ.R. 51; thus neither side had presented any evidence on the issue. At the second trial, evidence of present value was produced by both parties and the trial court so instructed the jury. While we need not decide whether the first trial court erred in ruling that the University had failed to comply with Super. Ct.Civ.R. 51, Ceco Corp. v. Coleman, 441 A.2d 940, 945 (D.C.1982), we hold, for purposes of retrial, that evidence of present value of any future damages to which Dr. Best may be entitled is required. District of Columbia v. Jones, 442 A.2d 512, 524 (D.C.1982).
Finally, the University claims the second trial court erred when, in its instruction to the jury on Dr. Best's duty to mitigate her damages, it refused to instruct that she had a duty to accept lesser employment after an extended period of unemployment. We find no error in the instruction given by the trial court. District of Columbia v. Jones, supra, 442 A.2d at 524; Sade v. Staley, 212 F.Supp. 631, 632 (D.D.C.1963).