Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

FERNANDEZ v. WOLFF

February 22, 1996

GARY J. FERNANDEZ, Plaintiff,
v.
PAULA WOLFF, ESTHEL ALLEN, THE BOARD OF GOVERNORS OF STATE COLLEGES AND UNIVERSITIES, and GOVERNORS STATE UNIVERSITY, Defendants.



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, Chief Judge:

 Plaintiff Gary Fernandez brings this four-count complaint against the Board of Governors of State Colleges and Universities ("the Board"), Governor's State University ("GSU"), the President of GSU, Paula Wolff, and the Dean of the College of Business and Public Administration at GSU, Esthel Allen. Fernandez claims that GSU's refusal to renew his tenure track employment for the 1993-94 academic year violated his rights under the Due Process Clause of the Fourteenth Amendment (Counts I and IV), Title VII of the Civil Rights Act of 1964 (Count III), and the state law of tortious interference with a business relationship (Count II). The defendants now move to dismiss the complaint, and for the reasons set forth below the motion is granted in part and denied in part.

 I. Background

 The following discussion reflects the well-pleaded allegations in Fernandez's complaint, which we must accept as true at this stage in the litigation, Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). In addition, we shall also take as true the additional factual assertions the plaintiff introduces in response to the instant motion to dismiss, see Hrubec v. National R.R. Passenger Corp., 981 F.2d 962, 963-64 (7th Cir. 1992), although we direct him to file an amended complaint incorporating these additional allegations within seven days. *fn1"

 At all times relevant GSU was an Illinois public institution governed by the Board. Compl. P 3. *fn2" The plaintiff, a Hispanic male, was first hired as a full-time accounting teacher by GSU for the academic year 1989-90, Compl. P 6, and was retained the following academic year in a tenure track position as a Professor in Accounting, id. P 7. Fernandez maintains that professors at GSU must satisfy certain requirements in order to be retained and eventually granted tenure on the faculty, and that these criteria are contained in GSU's "Faculty Agreement," which specifically incorporates the "Statement of Division Application of Criteria in the Division of Accounting/Finance/Economics" ("Statement"). Id. PP 8-9. Neither of these documents is attached to the complaint or the memoranda submitted regarding the instant motion. Although he is not explicit, the plaintiff apparently satisfied these specific criteria for the academic years 1990-91 and 1991-92, since he claims to have been endorsed by all the relevant authorities at GSU and granted one-year tenure track contracts during these two periods. Id. PP 10-11.

 Fernandez claims that when the time came to renew his contract for the 1992-93 academic year, Wolff and Allen recommended against his retention, notwithstanding several endorsements by faculty members both inside and outside his department. Id. PP 12-16. Plaintiff claims that he filed a grievance challenging these decisions, based on alleged violations of the Faculty Agreement. Id. P 17. It appears that on March 30, 1993, Fernandez learned that he would not be retained on GSU's tenure track, but would only be granted a terminal contract running until August 1994. Pl.'s Resp. at 7. Consequently, he filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on September 17, 1993, claiming that he was being terminated because of his sex and national origin. Id.

 On February 1, 1994, a settlement of his grievance was reached whereby the plaintiff would receive a positive retention decision for 1992-93, and would submit his portfolio to the Division of Accounting/Finance/Economics ("the Division") on March 25, 1994 for a determination of his status during the 1993-94 academic year. Compl. P 18-19. *fn3" Notwithstanding this settlement, Fernandez contends that the defendants failed to provide him with any meaningful process. In support of this contention he maintains that during a March 21, 1994 meeting of the Division, to which he was not invited, Dean Allen was asked by a faculty member why Fernandez was not in attendance. Allen allegedly told the professor that the plaintiff was not invited because he was being terminated from GSU. Compl. PP 21-22. Fernandez eventually received a positive recommendation from the Division and other faculty organizations at GSU, but Allen gave him a negative recommendation and Wolff sent him a termination letter on August 16, 1994. Id. PP 23-28. He contends that the defendants terminated him not because of his qualifications, but because of a policy at GSU of hiring and promoting females and African-Americans to the exclusion of males and non-blacks. Id. PP 32-36, 50-52.

 The plaintiff received his right to sue letter from the EEOC on March 29, 1995, id. P 31, and timely filed the instant action. He claims that he was denied his property (Count I) and liberty (Count IV) interests without due process of law, in contravention of the Fourteenth Amendment and 42 U.S.C. § 1983. He also maintains that he was mistreated and eventually terminated because of his sex and national origin, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Count III). Finally, Fernandez claims that Wolff and Allen tortiously interfered with his business relationship with GSU and the Board (Count II).

 Dismissal under Federal Rule of Civil Procedure 12(b)(6) should not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Chaney v. Suburban Bus Div. of the Regional Transp. Auth., 52 F.3d 623, 627 (7th Cir. 1995). In resolving a motion to dismiss under Rule 12(b)(6), "we read a complaint liberally and 'accept as true the well pleaded allegations of the complaint and the inferences that may be reasonably drawn from those allegations.'" Panaras v. Liquid Carbonic Indus. Corp., 74 F.3d 786, 1996 U.S. App. LEXIS 693, *14 (7th Cir. 1996) (quoting Palda v. General Dynamics Corp., 47 F.3d 872, 874 (7th Cir. 1995)).

 III. Discussion

 The defendants challenge each of the four counts of the complaint. Although the plaintiff maintains that at least portions of Counts I-III withstand these attacks, he concedes that Count IV must fail. Accordingly, as Fernandez has voluntarily dismissed this count, we ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.