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Meer v. Graham

April 29, 2009

MICHAEL MEER, PLAINTIFF,
v.
BRUCE GRAHAM, SYLVIA MANNING, MICHAEL TANNER, GENE SBALCHIERO, AND THE BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, DEFENDANTS.



The opinion of the court was delivered by: Elaine E. Bucklo United States District Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Michael Meer's amended complaint ("complaint") seeks a petition for mandamus, declaratory judgment, and injunctive relief (counts I-III, respectively), alleges violations of procedural due process, substantive due process, and equal protection under 42 U.S.C. § 1983 (counts IV-VI, respectively), and alleges retaliatory discharge (count VII); and, in the alternative, seeks a petition for mandamus, declaratory judgment, and injunctive relief for "[t]ermination of [c]ontract" (counts VIII-X, respectively) and alleges violations of procedural due process, substantive due process, and equal protection under § 1983 (counts XI-XIII, respectively). Defendants Bruce Graham ("Graham"), Sylvia Manning ("Manning"), R. Michael Tanner ("Tanner"), Gene Sbalchiero ("Sbalchiero") (collectively, "individual defendants"), and the Board of Trustees for the University of Illinois ("Board") have moved for summary judgment on all claims.*fn1 Plaintiff has cross-moved for summary judgment on counts I and III through VII. For the following reasons, defendants' motion for summary judgment on all counts is granted, and plaintiff's cross-motion for summary judgment on counts I and III through VII is denied.

I.

Meer is a former employee of the University of Illinois at Chicago ("UIC"). The Board governs the University of Illinois' three campuses, including UIC. Manning was Chancellor of UIC. Tanner is Provost of UIC. Graham is Dean of UIC's College of Dentistry ("COD"). Prior to September 14, 2006, Meer held the non-tenured positions of Clinic Chief and Director of the Post-Graduate Program ("Program Director") in the Oral and Maxillofacial Surgery ("OMFS") Department as well as Clinical Assistant Professor in UIC's COD.

Meer received annual appointments effective in August. The annual notifications of appointment are generated by the university's human resources department. Meer's appointed positions for August 16, 2006 through August 15, 2007 were Clinic Chief and Clinical Assistant Professor.*fn2 Graham attested that Meer's title of "Director of Post-Graduate Program in Oral Maxillofacial Surgery" is "a College of Dentistry bestowed title."*fn3

Meer's appointment as Clinic Chief for August 16, 2006 through August 15, 2007 was not a full-time appointment. Meer testified that, "[a]s far as I know[,]" the Clinic Chief appointment was academic professional. Graham attested that "Acad/Pro" on the notification of appointment form referred to Meer's "'academic professional' appointment." Meer's appointment as Clinical Assistant Professor for August 16, 2006 through August 15, 2007 was a 100% full-time appointment. Meer testified that it was "[c]orrect" that his understanding is that the clinical professor appointment was academic. Graham attested that "Acad 12 Mth" on the notification of appointment form referred to Meer's "'academic' appointment." When asked how his time was divided between the clinical assistant professor and program director duties, Meer "guesstimat[ed]" "maybe 60 percent clinical assistant professor, 40 percent program director."*fn4

Graham testified that Meer had "a faculty appointment as a clinical assistant professor at . . . 100% time[]" and "a program director-clinic chief role that's defined as zero percent commitment and there is a stipend attached to that." Graham further testified that "the university uses that method to be able to compensate program directors for their administrative responsibilities separate from their - basically that's all one role, but this allows us to pay someone who has that responsibility a little more than if we were just trying to pay them as a clinical professor." Meer participated in the "Dental Service Plan" ("DSP"), which is governed by its own bylaws. Under the DSP, Meer could earn additional income for performing certain dental surgeries. There is no provision in the DSP bylaws that reflects that participants can use residents to perform surgeries; services performed by residents do not generate income for participants.

In 2006 and 2007, Meer was neither tenured nor received probationary credit toward tenure. Graham attested that, during 2006 and 2007, Meer "did not hold an appointment as an administrative staff member."*fn5 Meer also did not hold any title as a dean or director of Endodontics, Oral Biology, OMFS, Oral Medicine and Diagnostic Sciences, Orthodontics, Pediatric Dentistry, Periodontics, Restorative Dentistry, or the Center for Molecular Biology of Oral Diseases. Graham attested that the only director in the COD is the Director of the Center for Molecular Biology of Oral Diseases, and Graham is the only dean in the COD.*fn6

The Program Director was "most directly responsible for the operations of the program[,]" which would include "[t]he education, the patient care rendered by the residents, the education of the residents, the academic progress through the program of the residents, the supervision by attending of the residents, appropriate supervision, outcome of the program, evaluation of the residents and their performance . . . . " As Program Director and Clinical Assistant Professor, Meer reported to the OMFS Department Head, Dr. Leslie Heffez ("Heffez"). Meer testified that, as Program Director, his responsibilities were "to oversee with Dr. Heffez the educational activities that were going on and within the [OMFS] department[.]" Meer testified that he was responsible for the "educational aspects[,]" meaning "scheduling the courses, teaching, arranging for course feedback on the rotations on the courses, on what's going on in the clinic on a daily basis[,]" and Heffez was responsible for "the rest[.]" The UIC COD website for "Oral and Maxillofacial Surgery 2008-09" states

The Advanced Educational Program in Oral and Maxillofacial Surgery at the University of Illinois at Chicago is a 48 month (4 year), postdoctoral program accredited by the Commission on Dental Accreditation of the American Dental Association. The last site accreditation visit occurred in October 2007.

In 2006, there were twelve oral surgery residents (also referred to as post-graduate residents) in the OMFS residency program. Meer also taught some of the COD's approximately 300 pre-doctoral and international students.

"The educational policy, organization, and governance" of the University of Illinois are promulgated in the "University Statutes" ("Statutes"). Article II, § 3a of the Statutes provides

(1)

The faculty of the University and any of its units except for the Graduate College consists of those members of the academic staff with the rank or title in that unit of professor, associate professor, or assistant professor who are tenured or receiving probationary credit toward tenure, and those administrators in the direct line of responsibility for academic affairs (persons who hold the title director or dean in an academic unit, provost, chancellor and president). Administrative staff members not in the direct line of responsibility for academic affairs are members of the faculty only if they also hold faculty appointments. The bylaws of any academic unit may further mandate a minimum percent faculty appointment in that unit for specified faculty privileges, such as voting privileges.

(2)

The bylaws of a unit may grant specified faculty privileges to selected faculty of other units. The bylaws may also grant specified faculty privileges to members of the academic staff of the unit or of other units who are not included in subsection 1 above (i.e., neither tenured nor receiving probationary credit toward tenure), and who have the rank or title of professor, associate professor, assistant professor, instructor, or lecturer. The bylaws may also grant specified faculty privileges to members of the academic staff of the unit or of other units who have the rank or title of professor, associate professor, assistant professor, instructor, or lecturer modified by the terms "research," "adjunct," "clinical," "visiting," and/or "emeritus" (e.g., "research professor," "adjunct assistant professor," "clinical associate professor," "visiting professor"). Only academic staff with titles listed above may be extended faculty privileges. Voting on these provisions of the bylaws is limited to those named in subsection 1 above.

Article III, § 2a of the Statutes states that, "The college is an educational and administrative group comprised of departments and other units with common educational interests." Article III, § 2b of the Statutes states that

The faculty of a college shall be constituted as specified in Article II, Section 3a(1). The college shall be governed in its internal administration by its faculty under bylaws established by the faculty, as specified in Article II, Section 3b.

Article III, § 4a provides that, "In addition to colleges and departments, there may be other units of a campus, such as a school, institute, center, hospital, and laboratory, of an intermediate character designed to meet particular needs." Article III, § 4c states that

The school organized within a college is an educational and administrative unit composed primarily of academic subunits. The subunits are related and have common interests and objectives but emphasize academically distinct disciplines or functions . . . .

Article IV, § 3a of the Statutes states The head of a department shall be appointed without specified term by the Board of Trustees on recommendation by the chancellor and the president after consultation with the dean of the college and all members of the department faculty. The head may be relieved of title and duties as head of the department by the chancellor on the recommendation of the dean of the college. The performance of the head shall be evaluated at least once every five years. As one component of this evaluation, views shall be solicited from the entire department faculty.

Article IX, § 6a of the Statutes provides

Severe sanctions other than dismissal for cause may be imposed on a member of the faculty, as defined in Article II, Section 3a(1) of the Statutes, provided that procedures on a campus adopted by the campus chancellor in consultation with that campus senate are followed. In all cases, the chancellor or the chancellor's designee shall exercise the duties assigned to the president for academic staff who are members of campus units, and in all cases the process to be followed will be that of the campus on which the unit resides.

Article IX, § 6b lists the "minimum" "[c]ampus procedures[,]" stating that they "are the exclusive process for determining whether severe sanctions other than dismissal for cause may be imposed." Article IX, § 6c states, in part, that "The campus procedures will be initiated only after discussions are held between the faculty member and appropriate administrative officers looking toward a mutual settlement." Article IX, § 6d limits "[a]dequate due cause for severe sanctions other than dismissal" to specified actions. Article IX, § 6e of the Statutes states that, "When misconduct is determined to have occurred, a severe sanction other than dismissal consists of suspension with or without salary (full or partial) for a period not to exceed one-half of the individual's normal appointment period . . . . "

The COD "Faculty Bylaws" ("Bylaws") describe methods of implementation of Article III, Section 2, Paragraph 2b of the Statutes of the University of Illinois within the College of Dentistry. That paragraph states "..the college shall be governed in its internal administration by its faculty under Bylaws established by the faculty." Nothing in these Bylaws shall be interpreted as contravening actions of the Board of Trustees of the University or the Statutes of the University . . . .

Article III of the Bylaws provides that"[t]he College shall be governed in its internal administration by the following, referred to, for the ...


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