APPEAL from the Circuit Court of Cook County; the Hon. NATHAN
M. COHEN, Judge, presiding.
MR. JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:
This action began as a suit by plaintiff Harry R. Rymer for specific performance of his contract of employment with defendant Kendall College. In the circuit court of Cook County, both parties filed motions for summary judgment and submitted affidavits and other materials in support of their motions pursuant to section 57 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 57). Judgment was entered for Kendall College. It is from this judgment that Rymer now appeals.
For the reasons stated below the judgment of the circuit court of Cook County is affirmed.
It is undisputed that Rymer was employed by the college from 1963 to 1976, that he obtained tenure in 1968, and that he was notified by the college administration in November 1975, that his services would not be needed after January 1976, and that as of August 1976, he would be placed on leave of absence without pay. During the first semester of the 1975-76 academic year, Rymer was teaching physics and data processing. The notice of his impending release stated that, in view of the dwindling number of students taking physics, that course would be discontinued as of fall, 1976, and with it, the position in physics would be abolished. It noted that Rymer's performance in teaching data processing had been unsatisfactory, and stated that he would be replaced in both physics and data processing for the second semester, but his pay would continue through August of 1976. His leave of absence was described as of indefinite duration, but he was told that, should the demand for physics justify re-introduction of that course, Rymer would be offered that position.
Later the college decided to pay Rymer for the period of September to November 1976, a full year beyond the date he was notified of his release.
During the second semester of the 1975-76 academic year, part-time instructors were used to teach physics and data processing. Tenured faculty members taught a number of mathematics courses in the college's day program and part-time instructors taught one basic mathematics course and one business mathematics course in the night program.
It is undisputed that Rymer's doctorate is in astronomy with equal hours in mathematics and that he taught many mathematics courses at Kendall College.
The parties agree that the contract between Rymer and the college incorporated by reference the policy manual of the college, and that the portions of that policy which are relevant are the following paragraphs dealing with protections afforded tenured faculty members:
"After the expiration of a probationary period, members of the full-time faculty shall have tenure. Their service shall be terminated only for adequate cause, except in the case of retirement for age, or under extraordinary circumstances because of financial exigencies of the College."
"6. Nothing in this section on Tenure shall in any way restrict or limit the power of the Board (of Trustees) to make reductions in the number of faculty members because of insufficient funds, decrease in enrollment, or discontinuance of particular courses of instruction; provided, however, that the discontinuance of a course of instruction shall not cause those teachers of this course who are qualified to teach other courses to be placed on leave of absence if positions are available in other courses of instruction which such teacher is qualified to teach. If a non-probationary appointment is terminated because of a financial emergency, the released faculty member's place shall not be filled by a replacement within a period of two years unless the released faculty member has been offered reappointment and has declined. Whenever it is necessary to decrease the number of faculty members, because of insufficient funds or decrease in enrollment, the Board of Trustees, upon recommendation of the President, may cause the necessary number of faculty members, beginning with those serving probationary periods, to be placed on leave of absence without pay, but only in the reverse order of the dates of appointment. If employment at Kendall College has been interrupted, the date of the most recent appointment shall be considered."
Rymer contends that the actions of the college in releasing him during the 1975-76 academic year constituted a breach of his contract of employment because these actions were inconsistent with the terms of the policy manual relating to tenure. In his pleadings, motion for summary judgment and brief on appeal, he makes a series of subsidiary contentions as to how his release violated these terms. We understand his contentions in the circuit court to have been that his release was improper because:
(1) If his release was a termination for cause, he did not receive any notice of charges and no grounds for such a termination existed;
(2) His release was not based on financial exigencies, insufficient funds, decreased enrollment or discontinuation of particular courses;
(3) If his release were based on any of these grounds, it was still improper because he was not given an opportunity to teach courses for which he was qualified that were still being offered at the college; and
(4) In any case the action of the college administration in releasing him was improper because only the board of trustees of the college has that power.
The circuit court found that Rymer's release did not constitute a breach of his employment contract because his being placed on leave of absence was properly grounded on discontinuation of a particular course, that there were no openings in courses he was qualified to teach, and that he was not entitled to displace any tenured faculty member teaching a course for which he was qualified. The court also found that the administration was not acting ultra vires when it released ...