NANCY DAWSON v. STATE OF ILLINOIS BOARD OF TRUSTEES SOUTHERN ILLINOIS UNIVERSITY (2011)

OPINION

Claimant, Nancy Dawson, brings this action against the Board of Trustees of Southern Illinois University (SIU), Respondent, alleging breach of employment contract and seeks compensatory damages as well as declarative and injunctive relief. This Court has jurisdiction pursuant to 7051LCS 505/8.

Procedural History and Agreed Facts

Claimant was employed by Respondent as Assistant Professor in the College of Liberal Arts (CoLA), Black American Studies (BAS) program from August, 1995 until July 31, 2001, in a tenure-track position. A promotion and tenure vote against Claimant's application occurred on November 1, 2000. Claimant appealed the denial of her promotion and tenure to the Judicial Review Board (JRB). The JRB recommended a new committee for review of Claimant's promotion and tenure. Respondent did not follow the JRB recommendation.

On March 5, 2001, Respondent notified Claimant that she was denied promotion and tenure. As a result of the denial, Claimant became eligible for a one-year term contract in the same position. Instead, Claimant took a new j ob at a different university on July 31, 2001. Claimant was terminated from that subsequent position approximately four years later.

In the meantime, on October 22, 2001, Claimant filed charges against Respondent with the Equal Employment Opportunity Commission (EEOC) and the Illinois Department of Human Rights alleging discrimination and retaliation. Claimant received her right to sue letter from the EEOC on February 19, 2003.

Claimant filed her initial Complaint in this Court on July 2, 2003, and an Amended Complaint on December 4, 2006. On January 17, 2006, this Court denied Respondent's Motion for Summary Judgment. In its order denying summary judgment, this Court struck Claimant's request for injunctive relief that sought the formation of a new promotion and tenure review committee as beyond the power of this Court. See Garimella v. The Board of Trustees of the University of Illinois, 50 Ill. Ct. Cl. 350 (1996). Accordingly, Claimant's cause of action was limited to the breach of contract claim for monetary relief.

Respondent filed its Answer to the First Amended Complaint on February 14, 2007, denying it breached the employment contract with Claimant.

A hearing was conducted April 15-18, 2008, before the assigned commissioner. At the hearing, the parties agreed that no motions or procedural issues were pending, including no exhaustion or timeliness issues.

Claims and Defenses

Claimant alleges breach of contract and asserts that the employment contract consists of the Employee Handbook, the 1995 BAS Operating Papers, and the 1999 CoLA Operating Papers.

Specifically, Claimant alleges the Respondent breached:

1) the Employee Handbook's promise of an objective and unbiased tenure and promotion review by including Father Joseph Brown, BAS Director, on her review committee and failing to allow Claimant to provide a corrected dossier for review; and

2) the 1995 BAS Operating Papers' promise of a promotion and tenure and review committee composed of five full professors by including Associate Professors Bean and Stockdale on her review committee; and

3) the 1999 CoLA Operating Papers' promise to consider with equal weight Claimant's professional service on the same level with teaching and research for promotion and tenure review.

Claimant also makes general allegations of retaliatory discharge for reporting her concerns of wrongful conduct by Father Brown. Claimant seeks an award of lost wages and fringe benefits totaling $175,481.48, and additional ““back-pay” until such time Respondent constitutes a new review committee.

Respondent claims that only the Employment Handbook represents the employment contract with Claimant and denies that the 1995 BAS Operating Papers posed a contractual obligation. Respondent also maintains the employment contract with Claimant was not breached and denies allegations of discrimination or retaliation. Instead, Respondent asserts that she was denied promotion and tenure because she did not meet the standards of the Employee Handbook, BAS Operating Papers and CoLA Operating Papers (regardless of their non-binding status), by failing to follow clear standards for scholarly research and publication. Further, Respondent argues that Claimant was given a proper and unbiased promotion and tenure review. Respondent also asserts that Claimant failed to timely participate in the dossier preparation and that all materials submitted with the dossier were considered.

Summary of Relevant Testimony

Dr. Nancy Dawson

At the hearing, Claimant testified that she received her Humanistic Studies Doctorate from State University in New York in 1995 and was hired August of that year as Assistant Professor of Black American Studies in a tenure track position at SIU. During her first year of employment, she was given the BAS Operating Papers, the Employee Handbook and CoLA Operating Papers all containing guidelines for promotion and tenure. Claimant testified that she reviewed each of those documents around the time she received them.

In 1997, Claimant developed an African Culture Continuities (ACC) program and worked on that program until her departure in 2001. Father Brown supported the program initially and was familiar with her duties within the program. Claimant believes the ACC program was popular and encompassed all three areas of her obligations as an Assistant Professor on tenure track, regarding research, teaching and service. She also believes Father Brown recognized the ACC program components of research, teaching and service.

At some point, Claimant's initial good relationship with Father Brown soured and eventually the office environment deteriorated into a “war zone.” According to Claimant, Father Brown was angry with Claimant over student relations and jealous of her role in the BAS program. She believes he retaliated with budgetary restrictions and testified that tensions continued to escalate.

Claimant contacted others within SIU to voice her concerns about Father Brown's role on her upcoming promotion and tenure review. She believes Father Brown was biased against her and should not serve on her review committee. Claimant made her concerns about Father Brown known to Dr. Seymour Bryson, Associate Vice Chancellor for diversity, Dr. Shirley Clay Scott, then Dean of the College of Liberal Arts, and Lynn Connley, University ombudsperson. Claimant was told by Ms. Connley and Dr. Clay Scott that Father Brown had made complaints against her, yet, she was never confronted with those allegations made by Father Brown and no fact finding proceeding was conducted.

Dr. Clay Scott, after consultation with the Provost, advised Claimant in writing that Father Brown would serve on Claimant's promotion and tenure review committee but not as the Chair. Claimant testified that she had requested Father Brown serve no role on the review committee, but, was advised that Father Brown must be on the committee even though he would not serve as Chair. Accordingly, Dr. Prudence Rice, former Chair of the Department of Anthropology, was appointed Chair of Claimant's promotion and tenure review committee. Claimant testified that she timely complied with all of Dr. Rice's requests for compilation of the dossier to be provided to the review committee.

According to Claimant, Dr. Rice did not show Claimant a completed version of her dossier and Claimant's first chance to review her dossier was around November 3, 2000, when she was asked to sign off on it. Claimant refused to do so because she had not participated in arranging or putting together the dossier and believed that parts were missing. Claimant understood the rules allowed her active participation in the preparation of her dossier as opposed to Dr. Rice putting it together. Claimant testified that she was not given the opportunity to provide information with her dossier for the review committee. Claimant did provide a rebuttal statement, addressing what information she believed to be missing or inaccurate. The review committee voted against Claimant's promotion and tenure due to lack of research. The recommendation against Claimant's tenure in the BAS Department was officially upheld by Respondent.

Shortly after the denial of her promotion and tenure, Claimant left the employ of SIU. From August 2001, through January 31, 2005, Claimant was employed as Associate Professor and Director of African-American Studies at Austin Peay State University. Since January 2005, Claimant has served as a consultant and adjunct teacher. Claimant summarized her earnings she believes she would have made during regular school semesters if she had continued to work at SIU as an Assistant Professor. Respondent objected to the summaries as speculative. Claimant received medical/dental benefits while employed at SIU and was required to pay out of pocket for her medical/dental expenses after her employment separated from SIU.

On cross-examination, Claimant testified that she had additional sources of income. Claimant agreed that during annual evaluations from 1996 to 2000, and in various departmental memorandums, she was directed to follow the promotion and tenure guidelines requiring a substantial body of published scholarly research, in addition to teaching performance. Claimant also attended workshops on guidelines and procedures for promotion and tenure.

With regard to missing information from her dossier, Claimant believes she was not given the opportunity to provide sufficient documentation. Claimant testified that there was confusion with the name of the journal containing her article accepted for publication because it was a special issue. Claimant gave Dr. Rice a stack of materials when they first met and, according to Claimant, Dr. Rice did not want certain items such as newspaper articles and conference brochures that Claimant believes would have given further clarification to her case for promotion and tenure.

Claimant believes she followed the advice given to her by the Dean and Director of BAS during various reviews and she did not know the 1995 BAS Operating Papers had not been approved. Finally, Claimant testified that she had applied for other university positions in her field, but, was unsuccessful. She is currently teaching as an adjunct professor, a position far below her employment at SIU and Austin Peay.

By way of rebuttal, Claimant testified that she was never told encyclopedia articles did not count as scholarly work. In fact, she had been told the opposite by a previous Dean. Claimant believes the review committee misunderstood that her encyclopedia work included an entire chapter of primary research, instead of just several entries. Further, regarding her review committee members, she disagrees that Dr. Bean's research was in any way similar to her research. Claimant testified further that Father Brown referenced her museum exhibit as scholarly work and her documentary as creative activity with merit. Claimant believed the three book chapters listed in her vita were peer-reviewed publications. Also, Claimant emphasized that she made presentations on both the international and national levels.

Claimant specifically denied encouraging students to speak badly about BAS faculty and denied she made any negative comments about Dr. Smoot. She admits being concerned about Father Brown's interactions with students and confronted him with those concerns. She made those concerns known also to the Dean and the ombudsperson but did not make any written complaints other than with the EEOC.

Marvin Zeman

Marvin Zeman, president of SIU Faculty Association since 2004 and former Chair of the Grievance Committee since 1998, represented Claimant during her grievance hearing on the issue of whether policies and procedures were followed for her promotion and tenure review. Zeman testified that the JRB panel report found that Claimant's research and creative activities “equivalent in scope to the publication of at least one major journal article per year,” the benchmark for assistant professors applying for promotion and tenure at SIU.

According to Zeman, the Employee Handbook set forth guidelines for promotion and tenure, and, those guidelines become more specific at the college and departmental levels. It was Zeman's experience at grievance hearings that Claimant's case was the only one that Respondent did not present a case in its defense. Zeman knew of no case where the Respondent took the position that the operating papers for either the department or the College were nonbinding. Zeman testified it was not common procedure to research issues about an applicant's dossier after the review committee had voted on promotion and tenure. Zeman clarified on cross-examination that it is outside the purview of the JRB to rule on a candidate's research activities or otherwise make a qualitative judgment.

Dr. Seymour Bryson

Seymour Bryson, Ph.D. in Educational Psychology, is the former Dean of the College of Human Resources and has been Associate Chancellor for Diversity at SIU since 1988. He served on Claimant's promotion and tenure review committee and voted in favor of Claimant because, in his professional judgment, she met the standards. Dr. Bryson has been very familiar with the BAS program.

Dr. Bryson agreed that, after having met with Claimant, Father Brown. Dr. Clay Scott, Ms. Lamb and Ms. Connley in May, 2000, the conflict between Claimant and Father Brown had reached a point that the two of them could never have a civil relationship. Dr. Bryson testified that he recalled Claimant expressed concerns that Father Brown could not be fair or impartial and requested Father Brown not serve on her review committee during the review committee meeting. Dr. Bryson does not recall any discussion regarding Claimant's work on the ACC program as part of her research assignment or whether the B AS program weighed an applicant's service activities on equal ground with teaching and research.

Dr. Prudence Rice

Prudence Rice, Ph.D. in Anthropology, is employed at SIU as Associate Vice Chancellor for Research and Director of the Office of Research, Development and Administration. She has been employed at SIU since 199l and holds the title of Distinguished Scholar. Previous to serving as Chair of Claimant's promotion and tenure review committee, Dr. Rice had helped candidates put together dossiers for promotion and tenure and had served on review committees at the CoLA level. At the time of her service on Claimant's review committee, she considered herself to be very familiar with the standards for promotion and tenure.

Dr. Rice met with Claimant and believes it was clear what needed to be included in the dossier. She testified that Claimant did not timely submit her materials. Further, Dr. Rice does not recall Claimant ever complaining that she was not allowed participation in the process of compiling her dossier.

Claimant's review committee found that her research and published scholarly activity (both quality and quantity) did not satisfactorily meet the criteria for promotion and tenure. Dr. Rice voted to promote Claimant based upon her teaching and service strengths.

On cross-examination, Dr. Rice admitted that it was not the general practice to research the contents of a dossier after a committee vote as was done in Claimant's review process. At the time of the committee vote, Dr. Rice concedes that she had an imperfect understanding of the crossover of Claimant's service, research and teaching components for review. Dr. Rice also testified that at the time of the committee vote, she was not aware the ACC program was part of Claimant's research assignment. According to Dr. Rice, the review committee for Claimant followed the traditional approach weighing teaching and research components more heavily than the service component. As Chair, Dr. Rice believed Claimant was disadvantaged by the unapproved status of the BAS Operating Papers because they placed equal weight on all three components. Ultimately, Dr. Rice believed Claimant's review process was as fair as possible given the unusual circumstances, including Claimant's lack of promptness in providing the materials needed for her dossier.

Dr. Margaret “Peggy” Stockdale

Peggy Stockdale, Ph.D. in Industrial Organization Psychology, is employed as a full professor in the SIU psychology department. She currently serves as Faculty Senate President and was asked by Dr. Clay Scott to serve on Claimant's promotion and tenure review committee. Dr. Stockdale did not believe that Claimant's research and scholarly work met the standards for promotion and tenure. She admitted to giving more weight to the research and teaching components than service when reviewing Claimant's dossier.

Dr. Jonathon Bean

Jonathon Bean, Ph.D., has been employed by SIU in the History Department since 1995. He served on Claimant's promotion and tenure review committee at the request of Dr. Clay Scott. Dr. Bean voted against Claimant's promotion and tenure because of weaknesses in Claimant's research. He recalled that the review committee used the CoLA Operating Papers as criteria for their decision. As such, more weight was afforded to research than teaching and service.

Dr. Don Rice

Don Rice, Ph.D., has been employed by SIU since 1991 and serves as Interim Provost and Vice Chancellor of the University. During the year 2000, Dr. Rice was the Associate Dean in the College of Liberal Arts and conducted workshops for the process of promotion and tenure. Dr. Rice testified that a candidate's dossier should only be reviewed after the candidate has signed off on its contents. Dr. Rice testified that his belief is that a candidate should have access to his or her dossier up until the time of the review committee vote. Regarding Operating Papers, Dr. Rice testified that until revisions are done and approved, the existing Operating Papers for a department should remain in effect. If a promotion and tenure candidate is denied, then that candidate is appointed to a one-year term after which employment is terminated.

Father Joseph Brown, Ph.D.

Father Joseph Brown testified for Respondent. He received his Ph.D. in American Studies in 1984, and received his Master's degree in African-American Studies at Yale University in 1979. He also received a Master's degree in Writing Seminars from Johns Hopkins in 1969, and became an ordained priest in 1972 after completing theological studies. Currently, he holds the position of Director of the BAS program and is a tenured full professor at SIU.

When Father Brown arrived at SIU in 1997, Claimant was a faculty member in the BAS program and initially their relationship was positive. Sometime prior to 2000, Father Brown and Claimant developed conflicts on both personal and professional levels, which included budgetary issues. Father Brown believes that Claimant launched a campaign against him by making comments about his personal life, his past work record and the danger he may present to students. Father Brown never pursued advice from University counsel about Claimant's campaign because he did not want to involve the students. At one point, Claimant stood over Father Brown and shouted at him which caused him to feel unsafe.

Regarding the BAS Operating Papers, Father Brown believes that Claimant was involved in the Operating Papers revision. Father Brown expressed his opinion to the provost and Dr. Rice that service should be given the same weight as research and teaching in the BAS program with no intention that any one component dominate. Claimant was offered guidance by Father Brown and, in general, he advised her to do less service work if it ever conflicts with scholarly work. Father Brown testified that research supports teaching and vice-versa. Specifically, Father Brown believes that he objectively evaluated Claimant's case for promotion and tenure. He offered Claimant help to prepare her dossier but did not receive a response.

Dr. Clay Scott asked Father Brown, as Director of the BAS department, to submit his own letter of judgment for Claimant's promotion and tenure candidacy and he submitted his honest reflections. Some confusion was created with respect to Claimant's promotion and tenure review committee because the committee needed to have some understanding of the nature of the BAS program. There being no other tenured faculty in the BAS department, it was necessary for Father Brown to be on Claimant's review committee notwithstanding Claimant's request for Father Brown's exclusion. In his letter of judgment, Father Brown expressed his opinion that Claimant's scholarly output was insufficient, lacking meritorious significance, and, he had concerns about her teaching and coordination of the ACC program.

Father Brown testified that summer employment for faculty was not guaranteed at SIU and, due to budget problems, the BAS department has had to curtail its current summer programs to just one course. Father Brown testified further that it would have been inevitable to have a formal review of Claimant's stewardship of the ACC program because of accounting irregularities and notices of unpaid bills in Ghana. Most likely, Claimant would have been replaced by another faculty member to assume coordination of the ACC program.

On cross-examination, Father Brown testified that he reviewed several documents reflecting his favorable judgment of Claimant's performance as a faculty member. Father Brown admitted that by May 1, 2000, that Claimant was primarily responsible for extensive damage to his reputation. He considered how to proceed to make a formal complaint against Claimant but did not do so. He testified that the situation between himself and Claimant did not improve at any time prior to Claimant's departure in July 2001.

Father Brown testified that, being the only member of Claimant's review committee from her academic discipline, he was aware of various publications in the field of Black Studies as well as the importance of service in the BAS program. He testified he did not discuss those specifics with the review committee and chose, instead, to allow his letter to the Chair to stand on its own. It was Father Brown's understanding that the BAS Operating Papers were a part of Claimant's dossier. Father Brown agreed that the BAS Operating Papers state that teaching, research, creative activity and service are of equal significance.

Dr. Pamela Smoot

Pamela Smoot, Ph.D. in History, has worked at SIU since 1999 as a faculty member in the BAS program and currently serves as Clinical Assistant Professor and Director of Educational Enhancement for Minority Students. She had a good working relationship with Claimant initially, but that relationship deteriorated around the year 2000.

Dr. Smoot testified that during the fall and spring semesters after she first arrived at SIU, she attended CoLA promotion and tenure work shops with Claimant. During those work shops, Dr. Smoot recalls being told clearly that publications were more important than service and teaching. Further, she testified that the workshops specifically informed candidates that encyclopedia articles do not count as publications and a book or six articles were required to meet the standards of promotion and tenure.

Dr. Shirley Clay Scott

Respondent called to testify Shirley Clay Scott, Ph.D. in History, who became Dean of the College of Liberal Arts at SIU, 1999 through 2006. Dr. Clay Scott testified that she recalls issues in the BAS program over copying costs, bills and interpersonal tensions between Father Brown and Claimant.

Dr. Clay Scott testified that on February 7, 2000, she held a meeting with Father Brown, Claimant, Dr. Bryson, Mary Lamb, and Lynn Connley, to talk through the issues with the hope of improving relationships between Father Brown and Claimant. At that time, Claimant requested that Father Brown not be the Chair of her promotion and tenure committee as would usually occur. Dr. Clay Scott discussed Claimant's request with the Provost and Associate Provost and decided that, given the history, Father Brown would not be the Chair of Claimant's promotion and tenure review committee. However, the SIU Employee's Handbook and the contract between the administration and SIU faculty require that a tenured faculty member cannot be denied the right to participate in the tenure process and have a vote. As such, Father Brown had to have a role in Claimant's tenure process even though he was not going to Chair Claimant's committee.

After discussion with Claimant, Dr. Clay Scott selected Claimant's review committee and agreed to Claimant's request for Father Brown not to Chair the committee. Since there were no other tenured faculty members other than Father Brown in the BAS Program, and only tenured faculty can vote on tenure, Dr. Clay Scott had to choose tenured faculty from other departments within the CoLA to serve on Claimant's promotion and tenure committee. She chose people with some disciplinary or research expertise. Dr. Clay Scott believed that each appointed committee member would make an independent judgment of Claimant's case for promotion and tenure. Claimant did not object to any committee member ultimately selected.

Dr. Clay Scott testified that during the preparation of Claimant's dossier, Dr. Rice, Chair of Claimant's review committee, expressed a concern that Claimant was not submitting her dossier materials as promptly as needed. Dr. Clay Scott testified that the BAS Operating Paper was not official at the time of Claimant's review so, the CoLA Operating Paper was used as a default, although both Operating Papers were allowed to be included.

Dr. Clay Scott testified that Claimant wanted to add an updated vita and other materials to her dossier after it was submitted. Dr. Clay Scott stated that it was her understanding that only a letter of rebuttal is allowed to be added to a dossier after it is turned in for consideration at which time it is sealed. Dr. Clay Scott testified that Claimant did submit a letter of rebuttal.

Dr. Clay Scott testified that after the review committee vote, Claimant's application for promotion and tenure was submitted to the CoLA committee. Claimant's rebuttal was included in her dossier when the CoLA committee conducted its review. Dr. Clay Scott testified that the updated vita was also submitted in Claimant's dossier, but could not have official status.

Regarding standards, Dr. Clay Scott testified that all faculty members in the CoLA have to meet the college-wide guidelines for promotion and tenure regardless of their particular department. The college-wide committee for promotion and tenure review used the normal standards of satisfactory performance in research or scholarship, teaching and service as stated in the CoLA Operating Papers to evaluate Claimant's dossier.

Dr. Clay Scott testified that the next step in the promotion and tenure review process is for the college-wide committee to advise the Dean after their vote on a dossier. Dr. Clay Scott, as Dean of CoLA, would meet with the committee as necessary. The college-wide committee recommended to Dr. Clay Scott that Claimant not receive promotion and tenure because of deficiencies in the area of research.

Dr. Clay Scott reviewed all of the materials carefully, talked with the review committee, reviewed the recommendations and ultimately decided that she could not recommend Claimant for promotion and tenure. Her concern was chiefly was that Claimant's scholarly record that did not meet the standards applied in the CoLA.

On cross-examination, Dr. Clay Scott recalled giving Claimant a Dean's appreciation award in January, 2000, for the purpose of appreciation and encouragement of her work on the ACC program. Also, Dr. Clay Scott recalled that she requested Claimant familiarize herself with the BAS program tenure and promotion guidelines without referencing which Operating Papers were to be used.

As part of Claimant's promotion and tenure process, Dr. Clay Scott considered the 1995 BAS Operating Papers, the revised draft of the 1998 papers and the CoLA Operating Papers at the time of Claimant's review. Dr. Clay Scott testified that the standing of the BAS Operating Papers was problematic because they had not been fully endorsed.

Dr. Clay Scott agreed that Claimant requested Father Brown's removal from her committee altogether. She tried to acquiesce to Claimant's request but could only ask Father Brown to step aside as Chair, instead of removal, because of the University contract.

Dr. Clay Scott testified that Father Brown's letter recommending against Claimant's promotion and tenure was included in Claimant's dossier and, therefore, available to the college-wide committee, along with the 1995 BAS Operating Papers and Claimant's updated vita. Dr. Clay Scott considered Father Brown's letter to be normal procedure and fair. Ultimately, Dr. Clay Scott weighed Claimant's research and teaching at a somewhat higher level than service in accordance with the CoLA Operating Papers.

ANALYSIS

The law is clear and it is undisputed by that parties that Respondent's Employee Handbook creates and governs its employment contract with Claimant at all relevant times with respect to the issues now before the Court. See, Duldulao v. Saint Mary of Nazareth Hospital, 115 Ill. 2d 482 (1987). According to Respondent's Employee Handbook, the written procedures, standards and guidelines for each college and academic unit are incorporated by reference. As such, promises contained in every college and department operating paper constitute a portion of the entire employment contract if they contain a clear offer, disseminated to employees and reasonably relied upon by employees as they continue to work. See, Duldulao at 490.

Here, Claimant testified that she received and reviewed the CoLA and BAS Operating Papers at the beginning of her employment in 1995. The validity of the CoLA Operating Papers is not challenged and, in fact, Respondent admits that the CoLA Operating Papers outline procedures for promotion and tenure review within the college. Those procedures clearly become part of the employment contract at issues using the Duldulao analysis.

Although the CoLA Operating Papers are fairly considered part of the employment contract, Claimant's argument that Respondent breached its promise to consider with equal weight all three components of service, teaching and scholarship fails. First, the CoLA Operating Papers call for teaching and scholarly research to be given a greater significance than service when assessing an applicant for tenure with allowance for a department to give service greater credit than usual in appropriate disciplines. This standard is somewhat contrary to Claimant's position that her review committee was required to follow BAS guidelines weighing all three components of service, teaching and scholarly research with the same significance. Claimant cannot dispute the fact that she was also subject to the college-wide standards for her review. Second, notwithstanding the level of significance given to her admirable service by all accounts, Claimant's scholarly research was insufficient to warrant tenure according to the majority of her reviewers. In the end, this same conclusion was reached by Dr. Clay Scott, Dean of the College of Liberal Arts, after reviewing Claimant's dossier in its entirety (which included claimant's rebuttal and all Operating Papers) along with the recommendation of the committee. Simply put, Claimant's argument that service should have been elevated to the level of significance given to teaching and scholarship would not cure the “procedural flaw” she claims since Claimant also failed to meet the standard required for scholarship. For that reason, this Court finds Respondent did not breach its promises contained in the CoLA Operating Papers with regard to the proper weight to be given the components for Claimant's tenure evaluation.

Claimant also asserts that Respondent breached the obligations of the 1995 BAS Operating Papers by allowing associate professors on her review committee. Respondent challenges the validity of the 1995 BAS Operating Papers claiming they were unapproved as well as superseded by the new Collective Bargaining Agreement with the Faculty Association. As it is undisputed that the 1995 BAS Operating Papers had not been approved, such documentation does not constitute a part of the employment contract. In an unapproved state, the 1995 BAS Operating Papers cannot be deemed to contain a clear offer, disseminated to employees and reasonably relied upon by employees. See, Duldulao v. Saint Mary of Nazareth Hospital, 115 Ill. 2d 482 (1987). Also significant is the fact that Claimant participated in the draft revisions of the 1995 BAS Operating Papers on the issue of associate professor participation in tenure evaluation. In the face of the new Collective Bargaining Agreement, Claimant could not have reasonably relied upon the 1995 BAS Operating Papers and, in that respect, the promise of full professors on her review committee is not part of her employment contract, regardless the status of the 1995 BAS Operating Papers as a whole. Moreover, Claimant did not object to associate-level professors on her review committee at the time of its formation. Claimant's reliance on an invalid and unenforceable promise of full professors (instead of associate-level professors) on her review committee does not constitute a breach by Respondent with regard to her review committee staff qualifications.

Claimant's foremost allegation of Respondent's breach of employment contract hinges upon the “war” with Father Brown. However, Respondent did not breach its contract with Claimant by allowing Father Brown to participate on her review committee. Specifically, Father Brown, as Director of the BAS program and a tenured professor, was properly included on Claimant's review committee. It should be noted that, at Claimant's request, Father Brown's participation was limited by Dr. Rice and Father Brown acquiesced. Now, Claimant appears to argue that Father Brown should have had a greater voice in her tenure review because he had specific knowledge about the particular field of study she deems authorized her promotion and tenure.

This Court finds that Dr. Clay Scott obviously gave much thought to the proper composition of Claimant's review committee, conducted a thorough and objective review of all materials submitted by Claimant in her dossier, with rebuttal, and ultimately found Claimant's application for tenure and promotion should be denied. It is improper for this Court to substitute its judgment for that of Respondent. See Bulloch v. The State of Illinois, 54 Ill Ct Cl 292 (2002).

Claimant also alleges that her promotion and tenure denial was, in effect, a retaliatory discharge for reporting her perceived wrongdoing by Father Brown. To substantiate a claim for retaliatory discharge, Claimant must show by a preponderance of the evidence that she was discharged in retaliation for her activities and such discharge violates a clear mandate of public policy in favor of reporting misconduct. See McCoppin v. State, 53 Ill Ct Cl 153 (2001). Respondent's multi-level reviews of Claimant's qualifications for promotion and tenure concluded that Claimant lacked the scholarly research necessary for promotion and tenure. On the evidence before this Court, it is apparent that Claimant's denial of promotion and tenure was based upon Claimant's failure to meet the legitimate qualification standards. As such, Claimant fails to carry her burden of proof that she was discharged in retaliation for reporting alleged misconduct, and her retaliatory discharge claim fails.

No breach of employment contract or retaliatory discharge can be found on the facts before this Court, so damages are not considered. Even if Claimant had prevailed on her claim for breach of contract, Claimant immediately found a position with another university at least comparable to her employment with SIU and concedes that she essentially earned the same salary in the new position for almost four years, thus wholly mitigating any damages. See Umbaugh v. Board of Trustees of Southern Illinois University, 37 Ill Ct Cl. 151 (1984). In addition, there is absolutely no showing by Claimant that her termination four years later from her new employer was due to any fault on the part of Respondent.

CONCLUSION

For the foregoing reasons, this Court finds that Claimant's Complaint is denied.

STORINO, J.