Darrell Morris v. Yale University (2012)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

PROCEDURAL AND FACTUAL BACKGROUND:

The plaintiff Darrell Morris began his matriculation at the defendant Yale University's School of Medicine in August 2000.   The plaintiff was dismissed from the school in August 2004 after he failed to successfully complete an important examination which was required to allow him to progress in his education and graduate from the school.   The circumstances surrounding this failure provide the factual basis for both the complaint and the motion for summary judgment.   The following facts do not appear to be in dispute.

As a medical student, the plaintiff's academic and clinical abilities were found wanting in myriad ways which the court declines to recite here, except as necessary below.   In addition to these difficulties, on August 17, 2002, the plaintiff failed in his first attempt to pass “Step I of the United States Medical Licensing Examination” [“Step I”], administered by the National Board of Medical Examiners, a requirement for graduation from the School of Medicine.   On June 9, 2003, because of multiple deficiencies exhibited by the plaintiff, the defendant's “progress committee” unanimously decided to place the plaintiff on academic probation.   In addition, as a condition of resuming clinical rotations, the committee required the plaintiff to pass Step I by the end of July 2003.   Despite the deadline imposed by the committee, the plaintiff did not take the Step I examination until September 10, 2003, at which time he failed for a second time.   Thereafter, the progress committee conducted a further review and unanimously voted to dismiss the plaintiff from the school on October 27, 2003.

Upon the plaintiff's successful appeal, he was reinstated with conditions.   He was informed by Dr. Nancy Angoff, the associate dean of the defendant's school of medicine that one condition was that he must sit for the Step I examination no later than June 15, 2004.   The plaintiff was further informed by Angoff that he would be dismissed from the school if he failed the examination.   The plaintiff sought, and was granted, a further extension to June 30, 2004.   The plaintiff received similar notice of the requirement and deadline from Dr. Dennis Spencer, the interim dean.   The plaintiff failed to take the Step I examination by June 30, 2004.

The plaintiff next informed Angoff that he would take the Step I examination no later than July 14, 2004.   The plaintiff neither registered nor sat for the Step I examination by that self-awarded deadline.   In a letter dated August 2, 2004, the plaintiff was informed by Dr. Richard Alpern, the dean of the school of medicine, that he was dismissed from the school.

During the time the plaintiff was enrolled, the defendant maintained a “student handbook” which the plaintiff claims is a contract upon which he relied to his detriment.   The plaintiff alleges that, although the handbook expressly states that students have three opportunities to pass Step I, administered by the National Board of Medical Examiners, the defendant (1) did not actually allow the plaintiff to take Step I three times before dismissing him from the medical school, and (2) maintained the plaintiff's dismissal although he later passed the examination at another school on March 18, 2005.

The defendant admits maintaining the handbook but denies that it is a binding contract.   The defendant further asserts that, even if it was a binding contract, the contract was not breached;  the plaintiff did not rely on any promises or misrepresentations in the handbook;  and the plaintiff cannot establish any damages from any reliance on the handbook.

The plaintiff initially filed his action in federal district court.¹  That court granted the defendant's motion for summary judgment on the plaintiff's 42 U.S.C. § 1981 claim but declined to exercise pendent jurisdiction over the remaining state claims.   The plaintiff next filed the subject action in state court.

The plaintiff's action is in four counts.   Count One alleges breach of contract.   Count Two alleges negligent misrepresentation.   Count Three alleges breach of an implied covenant of good faith and fair dealing.   Count Four alleges promissory estoppel.   The defendant has moved for summary judgment on all counts.   The plaintiff opposes the motion.   Counsel presented argument in support of their respective positions on March 19, 2012.   Further facts will be set forth as necessary.

LEGAL STANDARD:

Summary judgment “․ shall be rendered forthwith if the pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  Practice Book § 17–49.   In deciding a motion for summary judgment a trial court must view the evidence in the light most favorable to the nonmoving party.  Hertz Corp. v. Federal Insurance Company, 245 Conn. 374, 381 (1998).  “The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under the applicable principles of substantive law, entitle him to a judgment as a matter of law ․ and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact ․ A material fact ․ [is] a fact that will make a difference in the result of the case ․ (Internal quotation marks omitted.)  Hurley v. Heart Physicians P.C., 278 Conn. 305, 314, 898 A.2 777 (2006).

“A motion for summary judgment is designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).   In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any issues exist.  Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988).   Summary judgment “is appropriate only if a fair and reasonable person could conclude only one way.”  Miller v. United Technologies Corp., 233 Conn. 732, 751, 660 A.2d 810 (1995).  “[A] summary disposition ․ should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”  (Internal quotation marks omitted.)  Id., 752.  “[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.”  Id.

“A genuine issue has been variously described as a triable, substantial or real issue of fact ․ and has been defined as one which can be maintained by substantial evidence.”  (Citation omitted;  internal quotation marks omitted.)  United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378, 260 A.2d 596 (1969).  “[T]he ‘genuine issue’ aspect of summary judgment procedure requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred.”  (Internal quotation marks omitted.)  Id., 378–79.  “Issue of fact encompasses not only evidentiary facts in issue but also questions as to how the trier would characterize such evidentiary facts and what inferences and conclusions it would draw from them.”  (Internal quotation marks omitted.)  Id.

ANALYSIS:

I. Count One—breach of contractA. Existence of a contract

In Count One, the plaintiff claims that the defendant's handbook constitutes a contract and the defendant breached the contract.   The defendant denies that the handbook is a contract and, even if it is a contract, denies that there was any breach.   The first issue, whether the handbook is a contract, is discussed in this section.

“The elements of a breach of contract action are the formation of an agreement, performance by one party, breach of the agreement by the other party and damages.”  (Internal quotation marks omitted.)  Keller v. Beckenstein, 117 Conn.App. 550, 558, 979 A.2d 1055, cert. denied, 294 Conn. 913, 983 A.2d 274 (2009).

In Gupta v. New Britain General Hospital, 239 Conn. 574, 687 A.2d 111 (1996), our Supreme Court noted that questions concerning the reasonableness of conduct by educational institutions in providing particular educational services to students are difficult, if not impossible, to apply in the academic environment.  Id., 590–91.  “Among other problems for adjudication, these claims involve the judiciary in the awkward tasks of defining what constitutes a reasonable educational program and of deciding whether that standard has been breached.”  Id., 591.

Nevertheless, “[t]here are, however, at least two situations wherein courts will entertain a cause of action for institutional breach of a contract for educational services.   The first would be exemplified by a showing that the educational program failed in some fundamental respect, as by not offering any of the courses necessary to obtain certification in a particular field.   The second would arise if the educational institution failed to fulfill a specific contractual promise distinct from any overall obligation to offer a reasonable program.”  (Internal citations omitted.)  Id., 592–93.

It is the plaintiff's claim that the latter situation is presented here.   The defendant asserts that the handbook is not a binding contract.   The plaintiff disputes this assertion.  “[T]he existence of a contract is a question of fact.”  (Internal quotation marks omitted.)  Stevenson Lumber Co–Suffield, Inc. v. Chase Associates, Inc., 284 Conn. 205, 216, 932 A.2d 401 (2007).  “It is a fundamental principle of contract law that the existence and terms of a contract are to be determined from the intent of the parties ․ The parties' intentions manifested by their acts and words are essential to the court's determination of whether a contract was entered into.. .” Auto Glass Express, Inc. v. Hanover Insurance Co., 293 Conn. 218, 225, 975 A.2d 1266 (2009).  “Whether the parties intended legally to bind themselves [to a contract] is to be determined from (1) the language used, (2) the circumstances surrounding the transaction, and (3) the purposes that they sought to accomplish.”  Fowler v. Weiss, 15 Conn.App. 690, 693, 546 A.2d 321, cert. denied, 209 Conn. 814, 550 A.2d 1082 (1988).

The basic legal relation between a student and a private university or college is contractual in nature ․ There seems to be no dissent from [the] proposition that the catalogues, bulletins, circulars, and regulations of the institution determine the contractual relationship between the student and the educational institution.   There is no Connecticut appellate authority as to whether such documents as a handbook can be considered a part of the educational contract.   Although Connecticut courts do not appear to have considered whether these documents are part of the educational contract, the Connecticut Supreme Court has given no indication it would not agree with the courts that have done so.   Because a student bases his or her decision to attend a college or university, in significant part, on the documents received concerning core matters, such as faculty, curriculum, requirements, costs, facilities and special programs, application of contract principles based on these documents and other express or implied promises, consistent with the limitations expressed in Gupta v. New Britain General Hospital, 239 Conn. 574, 687 A.2d 111 (1996), appears sound.

(Citations omitted;  internal quotation marks omitted.)  Johnson v. Schmitz, 119 F.Sup.2d 90, 93 (D.Conn.2000);  see Ross v. Creighton University, 957 F.2d 410, 416 (7th Cir.1992) (“catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant become a part of the [education] contract” [internal quotation marks omitted] );  see also Hope Academy v. Friel, Superior Court, judicial district of Ansonia–Milford, Docket No. CV 03 0081183 (July 22, 2004, Lager, J.) (37 Conn. L. Rptr. 535, 536 n.4) (“promises in documents such as ․ handbooks ․ concerning ‘core matters' of an educational program have been found to be part of an educational contract”);  Okafor v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV 98 0410320 (June 25, 2004, Corradino, J.) (disciplinary proceeding rights conferred on plaintiff by “Yale's Undergraduate Regulations” contractually binding on Yale).

The plaintiff testified in his deposition that he was issued the handbook in his first year of medical school.  (Def.'s Mem. Ex. 1, Pl.'s Dep. 82:12–13, December 18, 2007.)   Both parties have submitted portions of the handbook in support of their positions.   These excerpts show that the handbook touches on the “core matters” of a Yale medical student's educational experience, and that it is applicable to all enrolled Yale medical students.   The handbook describes, in detail, what courses students were expected to take, how students are to be taught and evaluated, and what requirements students must have satisfied in order to progress academically and ultimately receive a degree.   (Angoff Aff. Ex. E, Handbook Excerpts;  Pl.'s Aff. Ex. 3, Handbook Excerpts.)   The handbook memorializes what is expected of students during their medical school experience as well as what students could expect from the medical school.   Moreover, there is nothing in the handbook indicating that the medical school did not intend to be bound by the representations contained therein.   See Kent Literary Club of Wesleyan v. Whaley, Superior Court, judicial district of Middlesex, Docket No. CV 04 0104195 (September 16, 2004, Aurigemma, J.) (language in student handbook disclaiming that it is not contract “create[d] a legal impediment to the plaintiff's ability to prevail on their claim of breach of contract”);  cf.  Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 199 n.5, 520 A.2d 208 (1987) (“by including appropriate disclaimers of the intention to contract, employers can protect themselves against employee contract claims based on statements made in personnel manuals”), overruled on other grounds by Curry v. Burns, 225 Conn. 782, 626 A.2d 719 (1993).

The defendant claims that the handbook creates no contractual obligations because no “offer” or “acceptance” of its terms has taken place.   See K. Farnsworth, Contracts § 3.3, pp. 110–11 (4th Ed.2004) (“[b]y making an offer, the offeror thus confers upon the offeree the power to create a contract ․ Acceptance, then, is the name given to the offeree's action if the legal effect of that action is to make the offeror's promise enforceable”).

The defendant correctly asserts that, as to offer, the issuance of the handbook was not “a promise to the student that if the student matriculated at the school, his or her matriculation would thereafter be governed by the handbook” and, as to acceptance, “the plaintiff did not rely on the representations in the handbook when making his decision to matriculate at the Medical School.”   However, the defendant's analysis cannot be restricted to what occurred prior to the plaintiff's matriculation.   At his deposition, the plaintiff testified that he received the handbook in his first year of medical school while he was already a student.

An analogy to conditions of employment is appropriate.   Employers may be held to promises made in employee manuals issued after employment began, if the issuance of the manual “was an ‘offer’—i.e., that it was a promise to the employee that, if the employee worked for the company, his or her employment would thereafter be governed by those ․ written statements ․ [and] the employee accepted that offer ․ [T]he issue of subsequent handbooks must be evaluated by the same criteria.”  Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 13–14, 662 A.2d 89 (1995).

The defendant argues that the handbook is not a contract at all.   Rather, the defendant claims that the contents of the handbook reveal that it was “simply an informational guideline for students at the Medical School” and not a compendium of contract terms.   However, the contents of the handbook set forth mutual expectations on the part of the students and the medical school.   There is nothing in the handbook or in any evidence submitted by the defendant indicating the contrary, despite the self-serving contention in Angoff's affidavit, stating that the handbook “is not intended to create any contractual obligations” (Angoff.Aff.¶ 37).

In determining whether a contract was entered into, the court must look not at subjective intentions but rather to intentions “manifested by [a party's] acts and words ․” Auto Glass Express, Inc. v. Hanover Insurance Co., supra, 293 Conn. 225.   The defendant has presented no evidence of acts or words manifesting its intent not to be bound by the handbook.   The defendant has not established that the handbook did not constitute a contract and, therefore, the defendant has not met its burden to establish the lack of existence of a contract.

B. Breach of contract

Although the court finds the defendant has not established the nonexistence of a contract, the defendant may still prevail on summary judgment if it can demonstrate that, even if contractual duties were created, it did not breach the terms of the handbook as alleged by the plaintiff.

These are the relevant terms of the handbook at issue:  “All Yale medical students are required to pass Steps I and II in order to graduate.   If you fail Step I, you may reschedule it at any time before May of the third year.   Three failures of Step I will require consultation with the Progress Committee, and only in extraordinary circumstances will the student receive permission to take it a fourth time.   In the absence of that permission, the student will be terminated from the medical school.”  (Angoff Aff. Ex. E, Handbook Excerpt;  Pl.'s Opp. Bf. Ex. 3, Handbook Excerpt.)

The plaintiff alleges in his complaint, and reiterates in his brief, that the handbook “expressly states that students will have three opportunities to pass the examination before dismissal”;  and, consequently, the defendant breached the handbook by “not allow[ing] the plaintiff to take the examination three times before dismissal” and by “maintain[ing] its dismissal” even though the plaintiff ultimately passed on his third attempt.  (Emphasis added.)  (Compl. ¶ ¶ 18–20;  Pl.'s Opp'n Bf. 14, 15.)

In evaluating a contract, “[t]he intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction ․ is to be ascertained by a fair and reasonable construction of the written words and ․ the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract.”  (Internal quotation marks omitted.)  Fusco v. Fusco, 266 Conn. 649, 655, 835 A.2d 6 (2003).

A fair and reasonable construction of the pertinent language in a light most favorable to the plaintiff, reveals that the handbook does not expressly state, nor suggest, that “students will have three opportunities to pass the examination” before that student may be dismissed by the medical school.   It merely states that, absent extraordinary circumstances, three failures of Step I will cause a student to be dismissed.   The plaintiff, himself, acknowledged at his deposition that it was his understanding, based on “common sense,” that a Yale medical student could in certain cases be legitimately terminated from the program even without taking Step I three times.  (Def.'s Mem. Ex. 1, Pl.'s Dep. 135:6–136:7, December 18, 2007.)

Angoff attested that the progress committee has the discretion to place students on academic probation and to dismiss them if the committee, using its judgment, determines that the student is not performing to the standards expected of Yale medical students.  (Angoff Aff. ¶ 20.)   The discretion of universities to make academic decisions concerning its students without judicial interference is widely recognized and predicated on sound policy.  “On the question of determining whether a student has failed to meet the academic requirements of a school, there is an absolute discretion permitted the school authorities and the courts will not interfere unless such authorities are shown to have acted in bad faith or exercised their discretion arbitrarily or capriciously ․” 15A Am.Jur.2d, Colleges and Universities § 34 (2011).  “When judges are asked to review the substance of a genuinely academic decision, such as the dismissal of a student, they should show great respect for the faculty's professional judgment, and they may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.”   Okafor v. Yale University, Superior Court, judicial district of New Haven, Docket No. 98 0410320 (June 25, 2004, Corradino, J.).   This is because “in matters of scholarship, the school authorities are uniquely qualified by training and experience to judge the qualifications of a student, and efficiency of instruction depends in no small degree upon the school faculty's freedom from interference from other noneducational tribunals ․ A medical school must be the judge of the qualifications of its students to be granted a degree;  [c]ourts are not supposed to be learned in medicine and are not qualified to pass opinion as to the attainments of a student in medicine.”  Connelly v. University of Vermont, 244 F.Sup. 156, 160–61 (D.Vt.1965).

In her affidavit, Angoff states that the plaintiff was ultimately dismissed not only because he failed Step I twice, but because he exhibited a pattern of poor academic performance and lack of effort which culminated in the plaintiff's failure to take the exam by the agreed upon date, which had been a condition of his reinstatement.  (Angoff Aff. ¶ 36.)   When viewed in the light most favorable to the plaintiff, Angoff's statement about the plaintiff's poor academic performance, clinical skills, lack of knowledge and preparation are well-supported by other evidence provided by the defendant and uncontested by the plaintiff.   Even after he was placed on academic probation, dismissed and then reinstated, the plaintiff failed to meet conditions of his reinstatement, e.g., his unexplained failure to take the Step I exam by June 30, 2004 and his failure to even register to take the exam within his own self-instituted deadline.

The plaintiff relies on the language of the handbook to establish a claim of breach of contract.   The defendant has established that there is no genuine issue of material fact that the language, plainly read in a light most favorable to the plaintiff, does not give rise to the contractual obligation asserted by the plaintiff.   The defendant has the discretion to dismiss the plaintiff and the exercise of this discretion is not a breach of the terms of the handbook.

Similarly, there is nothing in the subject text of the handbook which obligates the defendant to readmit the plaintiff upon his successful completion of Step I on his third attempt, nor has the plaintiff introduced any evidence disputing this.

The defendant's motion for summary judgment is granted as to Count One.²

II. Count Two—negligent misrepresentation

In Count Two, the plaintiff incorporates Count One's allegations of breach of contract and further alleges that the plaintiff “relied on the defendant's aforesaid representations in the student handbook to his detriment.”  (Compl., Count Two, ¶¶ 1–21.)   The defendant has moved for summary judgment on the grounds that it did not make false representations in the handbook and that the plaintiff did not rely on such representations.

“Our Supreme Court has long recognized liability for negligent misrepresentation ․ The governing principles [of negligent misrepresentation] are set forth in similar terms in § 552 of the Restatement (Second) of Torts (1977):  One who, in the course of his business, profession or employment ․ supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.”   (Internal quotation marks omitted.)  Rafalko v. University of New Haven, 129 Conn.App. 44, 52, 19 A.3d 215 (2011).  “Accordingly, an action for negligent misrepresentation requires a plaintiff to prove that (1) the defendant made a misrepresentation and (2) the plaintiff reasonably relied upon that misrepresentation.”  (Internal quotation marks omitted.)  Giametti v. Inspections, Inc., 76 Conn.App. 352, 363–64, 824 A.2d 1 (2003).

Again, the plaintiff claims reliance on the defendant's handbook, asserting that the handbook provides students three opportunities to pass Step I, that the defendant failed to honor this representation and that the “plaintiff relied on said [representation] in making his decisions throughout his tenure at the Medical School to his detriment.” ³

As discussed in Part I, above, a fair and reasonable construction of the pertinent language in a light most favorable to the plaintiff, reveals that the handbook does not expressly state that students are allowed three opportunities to pass Step I. As the plaintiff has offered no evidence that the defendant made a misrepresentation, he cannot prevail on his claim of negligent misrepresentation.   As to this, there is no genuine issue of material fact and the defendant is entitled to summary judgment on Count Two of the complaint.   Because the court finds the plaintiff cannot satisfy the first element of negligent misrepresentation, it does not reach the second ground of the defendant's motion for summary judgment, namely, that the plaintiff did not rely on the defendant's misrepresentation.

III. Count Three—breach of covenant of good faith and fair dealing.

In the plaintiff's third count, he asserts a cause of action of breach of the implied covenant of good faith and fair dealing.   In so doing, the plaintiff incorporates the allegations of Count One and alleges that “[i]n the manner described above, the defendant breached its [implied covenant of good faith and fair dealing] and did so in bad faith.”  (Compl., Count Three ¶¶ 1–22.)

“[I]t is axiomatic that the ․ duty of good faith and fair dealing is a covenant implied into a contract or a contractual relationship ․ In other words, every contract carries an implied duty requiring that neither party do anything that will injure the right of the other to receive the benefits of the agreement ․ The covenant of good faith and fair dealing presupposes that the terms and purpose of the contract are agreed upon by the parties and that what is in dispute is a party's discretionary application or interpretation of a contract term.”  (Citations omitted;  internal quotation marks omitted.)  De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432–33, 849 A.2d 382 (2003).

“[W]hen one party performs the contract in a manner that is unfaithful to the purpose of the contract and the justified expectations of the other party are thus denied, there is a breach of the covenant of good faith and fair dealing, and hence, a breach of contract, for which damages may be recovered ․” (Internal quotation marks omitted.)  Landry v. Spitz, 102 Conn.App. 34, 44–45, 935 A.2d 334 (2007), quoting 23 S. Williston, Contracts (4th Ed. Lord 2002) § 63:22, p. 514.

“To constitute a breach of [the implied covenant of good faith and fair dealing], the acts by which a defendant allegedly impedes the plaintiff's right to receive benefits that he or she reasonably expected to receive under the contract must have been taken in bad faith ․ Bad faith in general implies both actual or constructive fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or some contractual obligation, not prompted by an honest mistake as to one's rights or duties, but by some interested or sinister motive.”  (Citation omitted;  internal quotation marks omitted.)  De La Concha of Hartford, Inc. v. Aetna Life Ins. Co., supra, 269 Conn. 433.  “Whether a party has acted in bad faith is a question of fact ․ (Internal quotation marks omitted.)  Renaissance Management Co., Inc. v. Housing Finance Authority, 281 Conn. 227, 240, 915 A.2d 290 (2007).

In moving for summary judgment as to Count Three of the complaint, the defendant argues that (1) this covenant is not a “specific contractual promise” and therefore does not meet the exception defined in Gupta v. New Britain General Hospital, supra, 239 Conn. 593;  (2) there was no contract under the handbook;  (3) the defendant did not breach any contractual promise;  and (4) the medical school justifiably dismissed the plaintiff.   In his opposition, the plaintiff responds only that a triable issue of fact remains.

The plaintiff relies on the language of the handbook as the basis for his cause of action in Count Three.   As stated in Parts I and II, above, although the handbook may be deemed to be a contract, its express language did not guarantee or even suggest that the plaintiff would not be dismissed unless he took Step I three times and failed each attempt.   In relying on the handbook, the plaintiff had no justifiable expectation of such a benefit.   See Landry v. Spitz, supra, 102 Conn.App. 47 (“[m]ost courts decline to find a breach of the covenant apart from the breach of an express contract term”).

Additionally, in support of its motion for summary judgment, the defendant has provided much evidence of its efforts to address and correct the plaintiff's academic, clinical and personal shortcomings as well as the plaintiff's unwillingness or inability to bring himself to acceptable standards.   As much is admitted by the plaintiff.   For example, the plaintiff had received a failing evaluation in his Medicine I clerkship.   In his own affidavit, the plaintiff testified, “Angoff continuously encouraged me to participate in [a tutorial] ․ I believed that this tutorial would prepare me for the Step I examination as well as educate me on my strengths and weaknesses in preparing to retake the Medicine I clerkship.”  (Pl.'s Aff. ¶ 16.)   Other examples of good faith and fair dealing include the following:  When the plaintiff was placed on academic probation, Angoff informed the plaintiff in a letter that she had “arranged for a mentor/advocate who is a trusted and respected member of the faculty who can meet with you periodically to offer advice and counsel.”  (Angoff Aff. Ex. H., Angoff's Letter to Pl., July 3, 2003.)   Angoff concluded by stating:  “Darrell, we want very much for you to succeed.   Please let me know if there is anyway that I can be of help in providing access to resources that you feel would aid you in your endeavor to successfully complete the required work towards your MD degree.”  (Angoff Aff. Ex. H., Angoff's Letter.)

After the progress committee unanimously decided to dismiss the plaintiff following his second Step I failure, the medical school considered his appeal and, electing to give him another chance, reinstated him as a student.   Finally, although the medical school initially imposed a deadline of June 15, 2004, for the plaintiff to pass Step I, Angoff extended this deadline to allow the plaintiff to take an additional review course.

The plaintiff does not state specifically in his brief how the defendant breached the implied covenant of good faith and fair dealing.   However, in various portions of his brief, the plaintiff makes assertions which might be viewed as such a contention.   These assertions are discussed seriatim.

First, the plaintiff claims that “[o]ther students have been permitted to take the examination three or more times.”  (Pl.'s Opp'n Bf. 15.)   As stated previously, it was not that the defendant dismissed the plaintiff without allowing him to sit for the Step I examination three times.   It is the failure of the plaintiff to take the Step I examination in a timely fashion, coupled with his academic and clinical deficiencies which led to his dismissal.   The defendant not only afforded the plaintiff the opportunity to take Step I for the third time, there is uncontroverted evidence that the defendant encouraged the plaintiff to do so but the plaintiff was unwilling or unable to comply.   Interim dean Spencer's letter of reinstatement clearly conveyed to the plaintiff that “[t]he date which you must successfully pass Step I is June, 30, 2004 ․ your failure to successfully perform and comply with the guidelines ․ will be cause for your dismissal ․” (Angoff Aff. Ex. O, Spencer's Letter to Pl.;   Pl's Aff. ¶ 27.)   Once again, the plaintiff, himself, has acknowledged his own culpability for the dismissal.   In an email to Angoff, the plaintiff stated, “It was a huge blunder to not take the exam by the set deadline.   I can understand how missing this deadline ․ would cause you, and the committee, to have concerns regarding my fitness to be a Yale student and doctor.”  (Angoff Aff. ¶ 35, Ex. R, Pl's Email to Angoff, January 11, 2005.)

Second, in the spring of 2003, the plaintiff was assigned to perform a remedial Medicine 1 rotation under Dr. Barry Wu. According to Wu, the plaintiff performed poorly.   While the plaintiff asserts that the defendant's utilization of this evaluation is “unfair,” it is further evidence of the remedial efforts made by the defendant to raise the plaintiff to a level where he could continue his matriculation.   Once more, the plaintiff, himself, admits as much.   At his deposition, the plaintiff testified that he “didn't perform up to [his] capabilities” (Def.'s Mem. Ex. 2, Pl.'s Dep., March 27, 2006) and, in an email to Angoff, he conceded that he could see how “my performance on Dr. Wu's rotation would cause you, and the committee, to have concerns regarding my fitness to be a Yale student and doctor.”  (Angoff Aff. Ex. R, Pl.'s Email to Angoff, January 11, 2005.)

Third, the plaintiff claims that, according to his official transcript, he was given an additional thirty days, until July 30, 2004, to pass the Step I exam, but was never informed of that extension.  (Pl.'s Opp'n Bf. 8.) This claim is not supported by the evidence.   While the transcript contains a notation that the plaintiff “was approved for periods of extended study from 6/23/2003–6/21/2004 and 6/21/2004 to 7/30/2004,” the transcript, is silent as to any deadline to take Step I. (Pl.'s Opp'n. Bf. Ex. 7, Transcript.   The plaintiff was clearly instructed that he had until June 30, 2004 to sit for Step I. Although the plaintiff gave himself an extension of that deadline to July 14, 2004, he did not sit for the Step I examination in that time, nor did he even register for it.

Fourth, the plaintiff contends that he was not afforded an opportunity for the “In Absentia to Submit” (IAS) provision of the handbook.   Although the plaintiff asserts that the IAS provision affords a student three years in order to complete a requirement with which he or she is “having difficulty,” (pl.'s Opp'n Bf. 9, Ex. 3, Handbook Excerpt), to the contrary, a fair reading of this provision discloses that a student who has neglected to complete a requirement will be placed on IAS status, and thereafter will be dismissed if the requirement is not completed within three years, unless an extension is provided.   Nothing in the provision indicates that the School of Medicine must give a reinstated student on academic probation, such as plaintiff, three years in order to fulfill the conditions of his reinstatement.

The plaintiff has offered no evidence to support his claim of a breach of the covenant of good faith and fair dealing.   All of the presented evidence is to the contrary.   There is no genuine issue of material fact and the defendant is entitled to summary judgment on Count Three.

IV. Count Four—promissory estoppel

In Count Four, the plaintiff incorporates the allegations of Count One and further alleges that “[i]n the manner described above, and notwithstanding the existence or nonexistence of a contract, there existed clear and definite promises by the defendant which were made to induce action by the plaintiff.”   (Compl., Count Four ¶¶ 1–21.)   This is a claim of promissory estoppel.

“Under our well-established law, any claim of estoppel is predicated on proof of two essential elements:  the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief;  and the other party must change its position in reliance on those facts, thereby incurring some injury ․ It is fundamental that a person who claims an estoppel must show that he has exercised due diligence to know the truth, and that he not only did not know the true state of things but also lacked any reasonably available means of acquiring knowledge.”  (Citations omitted;  internal quotation marks omitted.)  Connecticut National Bank v. Voog, 233 Conn. 352, 366–67, 659 A.2d 172 (1995).

The defendant asserts that no promise was made guaranteeing the plaintiff three chances to pass Step I and, moreover, the plaintiff did not change his position in reliance on any promise made by the defendant.   The plaintiff maintains his position that the medical student handbook “cited that students have at least three attempts at Step I.” ⁴

The plaintiff's reliance on the handbook to establish that the defendant did or said something calculated or intended to induce him to believe that he would have “three opportunities to pass the examination before dismissal” is misplaced.   As discussed in Parts I, II and III, above, a fair and reasonable construction of the pertinent language in a light most favorable to the plaintiff, reveals that the handbook does not expressly state that students are guaranteed three opportunities to pass Step I, nor is that implied.

Further, the defendant did not preclude the plaintiff from taking the examination a third time.   The provided evidence is clear that the defendant assisted, encouraged and, ultimately, demanded, that the plaintiff do so or face dismissal, yet the plaintiff, himself, was unable or unwilling to do so.   With the number of communications as to his responsibilities made by the defendant to the plaintiff, the plaintiff cannot establish that he exercised due diligence to know the truth, that he did not know the true state of things but or lacked any reasonably available means of acquiring knowledge.   Again, all evidence is to the contrary.

Any claim that the plaintiff was induced by the defendant to repeatedly fail to meet the requisite standards and deadlines, in the face of the proffered evidence, is completely without merit.   The plaintiff has failed to demonstrate any genuine issue of material fact as to the lack of evidence in this regard and the defendant is entitled to summary judgment on Count Four.

ORDER:

The defendant's motion for summary judgment (108.00) is granted.

Robert E. Young, J.

FOOTNOTES

FN1. Morris v. Yale University, 477 F.Sup.2d 450 (D.Conn.2007)..  FN1. Morris v. Yale University, 477 F.Sup.2d 450 (D.Conn.2007).

FN2. The court declines the plaintiff's invitation to consider additional claims introduced in his opposition brief but not alleged in the complaint.It is axiomatic that a plaintiff may rely only upon what he has alleged [and] the right of a plaintiff to recover is limited to the allegations of his complaint ․ What is in issue is determined by the pleadings and these must be in writing ․ [P]leadings have their place in our system of jurisprudence.   While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them ․ The purpose of a complaint ․ is to limit the issues at trial, and such pleadings are calculated to prevent surprise ․ It is fundamental in our law that the right of a [party] to recover is limited to the allegations in his [pleading] ․ Facts found but not averred cannot be made the basis for a recovery.”(Citations omitted;  internal quotation marks omitted.)  Connecticut Education Ass'n, Inc. v. Milliman USA, Inc., 105 Conn.App. 446, 460, 938 A.2d 1249 (2008).   The plaintiff, in Count One, alleges only that the defendant breached the handbook by “not allow[ing] the plaintiff to take the examination three times before dismissal” and “maintain[ing]” that dismissal even though the plaintiff passed the examination on his third attempt.   Any additional claims contained in the opposition to summary judgment cannot be considered..  FN2. The court declines the plaintiff's invitation to consider additional claims introduced in his opposition brief but not alleged in the complaint.It is axiomatic that a plaintiff may rely only upon what he has alleged [and] the right of a plaintiff to recover is limited to the allegations of his complaint ․ What is in issue is determined by the pleadings and these must be in writing ․ [P]leadings have their place in our system of jurisprudence.   While they are not held to the strict and artificial standard that once prevailed, we still cling to the belief, even in these iconoclastic days, that no orderly administration of justice is possible without them ․ The purpose of a complaint ․ is to limit the issues at trial, and such pleadings are calculated to prevent surprise ․ It is fundamental in our law that the right of a [party] to recover is limited to the allegations in his [pleading] ․ Facts found but not averred cannot be made the basis for a recovery.”(Citations omitted;  internal quotation marks omitted.)  Connecticut Education Ass'n, Inc. v. Milliman USA, Inc., 105 Conn.App. 446, 460, 938 A.2d 1249 (2008).   The plaintiff, in Count One, alleges only that the defendant breached the handbook by “not allow[ing] the plaintiff to take the examination three times before dismissal” and “maintain[ing]” that dismissal even though the plaintiff passed the examination on his third attempt.   Any additional claims contained in the opposition to summary judgment cannot be considered.

FN3. In responding to the defendant's motion for summary judgment as to count two, the plaintiff again asserts new claims that were not alleged as causes of action.   In particular, the plaintiff claims that (1) the defendant misrepresented that students will have at least three attempts to pass Step I because (i) all letters sent from the medical school reinstating the plaintiff conditioned his return to the clerkships upon his successful passage of Step I and (ii) the medical school extended the plaintiff's eligibility to sit for Step I as reflected in his transcript;  and (2) the defendant misrepresented that the plaintiff would have six years to complete his requirements because (i) the handbook allowed for this time frame and (ii) Angoff communicated this time frame to the plaintiff.   Count two, however, incorporates the allegations of count one and alleges only that “[t]he plaintiff relied on the defendant's aforesaid representations in the student handbook to his detriment.”  (Emphasis added.)  (Compl., Count Two, ¶¶ 1–21.)   There are no allegations that the plaintiff relied on representations made beyond those in the handbook and there is no allegation that the handbook promised that the plaintiff would be given six years to complete his studies before he could be dismissed.   Therefore, for the same reasons outlined in footnote two of this memorandum, the court declines to consider these additional claims in opposition to the defendant's motion..  FN3. In responding to the defendant's motion for summary judgment as to count two, the plaintiff again asserts new claims that were not alleged as causes of action.   In particular, the plaintiff claims that (1) the defendant misrepresented that students will have at least three attempts to pass Step I because (i) all letters sent from the medical school reinstating the plaintiff conditioned his return to the clerkships upon his successful passage of Step I and (ii) the medical school extended the plaintiff's eligibility to sit for Step I as reflected in his transcript;  and (2) the defendant misrepresented that the plaintiff would have six years to complete his requirements because (i) the handbook allowed for this time frame and (ii) Angoff communicated this time frame to the plaintiff.   Count two, however, incorporates the allegations of count one and alleges only that “[t]he plaintiff relied on the defendant's aforesaid representations in the student handbook to his detriment.”  (Emphasis added.)  (Compl., Count Two, ¶¶ 1–21.)   There are no allegations that the plaintiff relied on representations made beyond those in the handbook and there is no allegation that the handbook promised that the plaintiff would be given six years to complete his studies before he could be dismissed.   Therefore, for the same reasons outlined in footnote two of this memorandum, the court declines to consider these additional claims in opposition to the defendant's motion.

FN4. In response to the defendant's motion for summary judgment as to count four, the plaintiff once again asserts additional claims which are not pleaded.   For the reasons stated in footnotes two and three, the court declines to consider these additional claims in opposition to the defendant's motion..  FN4. In response to the defendant's motion for summary judgment as to count four, the plaintiff once again asserts additional claims which are not pleaded.   For the reasons stated in footnotes two and three, the court declines to consider these additional claims in opposition to the defendant's motion.

Young, Robert E., J.