January 16, 2019
Appeals from the United States District Court for the
Northern District of Indiana, South Bend Division. No.
3:10-CV-281 - Joseph S. Van Bokkelen, Judge.
Bauer, Rovner, and Hamilton, Circuit Judges.
HAMILTON, CIRCUIT JUDGE.
Oliver Collins was a tenured professor of electrical
engineering at the University of Notre Dame. In 2010, a
faculty committee found after a hearing that Dr. Collins had
misused grant money by purchasing equipment other than that
in his grant proposals and then using the equipment for
personal purposes. The committee concluded that his actions
warranted "dismissal for serious cause" under the
Academic Articles incorporated in Dr. Collins's faculty
contract. At the end of the university's internal review
processes, the president of Notre Dame ultimately dismissed
Dr. Collins, who later pleaded guilty to a federal felony
charge arising from his conduct.
the criminal charges were filed, however, Dr. Collins filed
this suit against Notre Dame alleging that it breached his
contract by dismissing him. In 2012, before his guilty plea,
the district court granted summary judgment for Dr. Collins
on liability on the theory that Notre Dame breached the
contract by allowing one faculty member both to play a role
in the informal mediation process and then to serve on the
hearing committee. The court did not decide whether the
faculty committee's findings added up to sufficient cause
to dismiss a tenured faculty member like Dr. Collins.
Dr. Collins's 2013 guilty plea to a federal felony charge
for theft of government grant funds in this same conduct,
Notre Dame re-did Dr. Collins's adjudication and
dismissed him again so as to establish a "damage cutoff
date" in light of the district court's finding of a
procedural error in the first adjudication. After the guilty
plea, the court held to its earlier finding that Notre Dame
had breached the contract by the procedural error. After a
court trial on damages, the court awarded Dr. Collins $501,
367, calculated as his lost compensation from the date of his
dismissal on June 2, 2010 until the date of his felony
conviction on February 28, 2013. Notre Dame has appealed, and
Dr. Collins has cross-appealed on the amount of damages and
other issues. We reverse both the district court's grant
of summary judgment to Dr. Collins and the award of damages.
The contract did not prohibit one faculty member from
participating in informal mediation and then serving on the
hearing committee. Further, the undisputed facts show
"serious cause" sufficient to warrant Dr.
Collins's dismissal. Notre Dame is entitled to judgment
in its favor.
Factual & Procedural Background
Collins started teaching at Notre Dame in 1995 and became a
tenured professor of electrical engineering in 2001. Upon
receiving tenure, Dr. Collins signed a faculty contract,
which was "subject to the provisions of the University
of Notre Dame Academic Articles and any future
amendments thereto." In the faculty contract, Notre Dame
"reserves the right to terminate the services of any
member of the faculty for serious cause" and explains
that the "definition of serious cause and the procedures
for establishing it ... are set out in the Academic
Articles." The Academic Articles define "serious
cause" to include conviction of a felony:
"Serious cause" consists of any of the following:
academic dishonesty or plagiarism; misrepresentation of
academic credentials; professional incompetence; continued
neglect of academic duties, regulations, or responsibilities;
conviction of a felony; serious and deliberate personal or
professional misconduct (including, but not limited to sexual
harassment or discrimination in violation of University
policies); continual serious disregard for the Catholic
character of the University; or causing notorious and public
Articles, Article III, § 8(b).
2002, Dr. Collins applied for and received $266, 516 from the
National Science Foundation ("NSF") to purchase
five pieces of "high speed, mixed signal test
equipment" and a computer as part of a Major Research
Instrumentation ("MRI") grant. Notre Dame
contributed matching funds. NSF later awarded Dr. Collins
$240, 000 to support a project titled Intrinsically Digital
Radios. As part of that project, he proposed to use $20, 000
to purchase a signal generator. Notre Dame also contributed
matching funds to that project.
2009, Notre Dame started to suspect that Dr. Collins was
abusing his grants by purchasing equipment different from
that identified in his proposals and by using the equipment
for personal purposes. Notre Dame hired outside counsel to
investigate and also informed the NSF. The NSF investigated
separately. It suspended Dr. Collins's grants and
referred the matter to the Department of Justice, leading
eventually to Dr. Collins's guilty plea to felony theft
from a program receiving federal funds, in violation of 18
U.S.C. § 666. In the meantime, in August 2009, Notre
Dame President Rev. John Jenkins suspended Dr. Collins with
pay pursuant to the Academic Articles.
September 2009, Vice President and Associate Provost Donald
Pope-Davis sent Dr. Collins a letter pursuant to Article III,
Section 8 of the Academic Articles, addressing "Severe
Sanctions and Dismissal for Serious Cause." The letter
listed six charges:
1. Used NSF funds to purchase equipment significantly
different than the equipment specified in the grant
documents, and that you did this on more than one grant, and
over the course of several years;
2. Failed to inform NSF of the nature of the equipment you
3. Submitted a final report under one grant in which you
falsely indicated that grant funds were used as intended;
4. Used equipment purchased with NSF funds for extensive
personal purposes, with negligible if any scientific use of
5. Took and stored sexually explicit and pornographic images
using University computing resources; and
6.Failed to exercise care in maintaining University
equipment, including University equipment purchased with
letter further asserted:
Your actions were dishonest and constitute serious and
deliberate misconduct of both a personal and professional
nature. Moreover, you have exhibited serious disregard for
the Catholic character of the University; and you have
exposed the University to notorious and public scandal, all
of which, we believe, warrants the sanction of dismissal from
the letter informed Dr. Collins that the Office of the
Provost intended to initiate election of a hearing committee
to review the case and that, in the meantime, Dr. Collins was
invited to attempt an informal resolution of the matter with
Pope-Davis discussed informal resolution with Dr. Collins by
telephone. When that did not lead anywhere, Dr. Pope-Davis
appointed two faculty members-Father John Coughlin and Dr.
Paul Huber-to meet with Dr. Collins and "the relevant
University administrator" "to attempt to resolve
the issue to their mutual satisfaction." After a
telephone call with Dr. Collins, Father Coughlin and Dr.
Huber informed Dr. Pope-Davis of the recommendations Dr.
Collins made for resolving the matter. On December 22, 2009,
Dr. Pope-Davis informed Dr. Collins by letter that none of
his recommendations were acceptable and Notre Dame would
initiate the hearing process.
8(c)(3) of the Academic Articles sets forth the procedure for
selecting the hearing committee:
The Executive Committee of the Academic Council elects a
Hearing Committee of three elected, tenured members of the
Academic Council to conduct a formal, closed-door hearing.
The Executive Committee also elects an alternate (who must
also be an elected, tenured member of the Academic Council)
to take the place of any member elected to the Hearing
Committee who must recuse himself or herself because of bias
or interest, including participation in the informal
resolution process set forth above.
Executive Committee selected Dr. Laura Carlson, Father
Coughlin, and Dr. Graham Lappin for the hearing committee,
with Dr. Huber as the alternate.
hearing occurred on April 27, 2010. On April 30, 2010, the
hearing committee issued its report. The committee sustained
charges 1, 2, and 6 in full and sustained charges 3, 4, and 5
Charge #1: "Used NSF funds to purchase equipment
significantly different than the equipment specified in the
grant documents, and that you did this on more than one
grant, and over the course of several years;"
The committee votes unanimously (3-0) that the charge is
sustained by clear and ...