POLLALIS v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff, Spiro Pollalis, a Harvard University professor, appeals from a judgment entered in Superior Court in favor of defendants President and Fellows of Harvard College (Harvard) and the dean of the Graduate School of Design. The plaintiff only appeals from so much of the judgment as dismisses his claims for breach of contract, breach of the covenant of good faith and fair dealing, and his request for declaratory judgment. We affirm.

Background. We summarize the undisputed facts appearing in the record. As with all motions to dismiss, the facts of the complaint are read in the light most favorable to the plaintiff.³ Nader v. Citron, 372 Mass. 96, 98 (1977).

The plaintiff, Spiro Pollalis, had been a tenured professor at the Harvard University Graduate School of Design since 1994. In 2011, Pollalis was presented with the opportunity to work on a prominent privatization and development project in Athens, Greece. The project was unrelated to his employment with the Harvard University Graduate School of Design. Although he intended to work on the project part time, Mohsen Mostafavi, the dean of the Design School, “insisted” that Pollalis take leave and work on the project full time in Greece.

Halfway through Pollalis's first year in Greece, Mostafavi requested that he return to Harvard for the upcoming year or sacrifice his tenure. In response, Pollalis asked to extend his leave for another year. Mostafavi rejected the request and instead sent Pollalis a letter outlining four employment options for the professor to consider.⁴ On May 3, 2012, after “months” of “frustrating communications” and “under extreme pressure,” Pollalis felt he had “no choice” but to agree to Mostafavi's “demands.” As a result he chose one of the options and decided to stay in Greece, work for four years as a part-time professor with tenure, then retire in 2016. Pollalis also would have the option of serving as a research professor for a further five years. In his letter sent to Mostafavi to accept the new agreement (accelerated retirement agreement), he summarized the option he selected as follows:

“Agree to the fairly new retirement package offered to tenured professors at the discretion of schools, which allows for part-time status for up to four years followed by retirement. The Design School has not offered it in the past because it feels it already has too many part-time faculty, but is willing to offer this in my case. I would retain tenure during the four years (July 1, 2012-June 20,2016) but be allowed to drop down to part-time and would have to sign a retirement agreement now. I am eligible because I will have reached the age of [sixty] and have been employed at Harvard for [fifteen] years by the time I retire. After I retire, I could choose to be a Research Professor for a maximum of five years, which allows me to serve as a [principal investigator] and raise my own salary through sponsored research. The [s]chool would permit me to limit my residency in the Boston area, on average, to two days a week during each academic year for [fifty percent full time equivalent] and to one day a week for [twenty-five percent full time equivalent], for up to four years, as part of this phased retirement transition.”

In 2015, assumedly after the project in Greece was completed,⁵ Pollalis asked Harvard whether his tenure would still be revoked in 2016, citing Harvard's failure to comply with the written terms and conditions expressed in its faculty handbook provided to him upon his employment. Harvard replied that it expected Pollalis to abide by the terms of the accelerated retirement agreement, and in June 2016, revoked Pollalis's tenure in accordance with that contract. In turn, Pollalis initially submitted a complaint with the Massachusetts Commission Against Discrimination, but ultimately withdrew the complaint and filed a civil action in Superior Court.

In that complaint, Pollalis alleged age discrimination, retaliation, breach of contract, and breach of the implied covenant of good faith and fair dealing. Pollalis also requested a declaratory judgment to void the agreement for lack of consideration, lack of authority, and public policy reasons. His contractual claims rested on the theory that the Harvard-issued academic appointment handbook (handbook) and the handbook of the Graduate School of Design (GSD handbook) created a contract between Harvard and its faculty, and under that contract, Mostafavi was “required” to consult with the senior faculty council before altering Pollalis's tenure status.⁶ Harvard and Mostafavi filed a motion to dismiss all of the claims pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974).

In a thorough and thoughtful opinion, a Superior Court judge granted the motion to dismiss in full. On appeal, Pollalis only presses the judge's dismissal of the breach of contract claim, the implied covenant claim, and the denial of the declaratory judgment request. Each of his arguments rest on Mostafavi's alleged lack of authority to enter into the accelerated retirement agreement.

Discussion. A motion to dismiss is reviewed de novo to determine whether the plaintiff has stated claims upon which relief may be granted. Okerman v. VA Software Corp., 69 Mass. App. Ct. 771, 774 (2007). The complaint must state “more than labels and conclusions” and contain allegations of fact sufficient “to raise a right to relief above the speculative level ․ [based] on the assumption that all of the allegations in the complaint are true.” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). We address each one of Pollalis's claims in turn.

a. Breach of contract. Pollalis argues that his employment contract with Harvard, as defined by the terms of the handbook, was breached while the accelerated retirement agreement was being negotiated.⁷ To establish a breach of contract claim, the plaintiff must show the existence of a valid contract, that the defendants failed to perform the terms of the agreement without legal excuse, and that the breach caused the plaintiff to suffer damages. See Loranger Constr. Corp. v. E.F. Hauserman Co., 1 Mass. App. Ct. 801, 801 (1973). In Massachusetts, courts have granted a measure of deference toward a college's academic affairs and are cautious to “interfer[e] with academic and disciplinary decisions made by private colleges and universities.” Berkowitz v. President & Fellows of Harvard College, 58 Mass. App. Ct. 262, 269 (2003). In examining the terms of the handbook, we use “the standard of ‘reasonable expectation -- what meaning the party making the manifestation, the university, should reasonably expect the other party to give it.’ ” Cloud v. Trustees of Boston Univ., 720 F.2d 721, 724 (1st Cir. 1983), citing Lyons v. Salve Regina College, 565 F.2d 200, 202 (1st Cir. 1977), cert. denied, 435 U.S. 971 (1978). We hesitate to read in restrictions when the language of a university handbook fails to explicitly limit an administrative action. See Berkowitz, 58 Mass. App. Ct. at 274.

Like the lower court, we conclude that Mostafavi had the authority to enter into the accelerated retirement agreement without consulting the senior faculty council. The handbook does not require consultation with the senior faculty council every single time a professor's status is changed, as Pollalis seems to allege, but only when a faculty member wishes to leave for an “extended [period] of time at levels greater than permitted for full-time appointees.” Pollalis was not seeking leave of that magnitude. Instead, the complaint alleges he was seeking a second consecutive year of leave, which is a possibility explicitly contemplated in the GSD handbook: “a second successive year of unpaid professional leave may be granted to tenured faculty only under unusual circumstances such as for national service or other reasons of strong public benefit.” The dean holds the discretion to grant a second year of leave, and is not required to consult with the senior faculty council to do so.⁸ As such, the language that Pollalis relies upon was not triggered and is inapplicable to the case at bar. Mostafavi gave Pollalis a menu of options, including the opportunity to return to Harvard with his tenure intact, and Pollalis for reasons important to him elected to change his status. As such, the plaintiff has failed to plead sufficient facts that a breach of contract occurred.

b. Implied covenant. In a contract, pursuant to the implied covenant of good faith and fair dealing, “neither party shall do anything that will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.” Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 471-472 (1991). As described above, in this instance Harvard and Mostafavi were not obliged to consult with the senior faculty council, and Pollalis's rights were neither destroyed nor injured in the process. Beyond that, the record is devoid of any evidence of bad faith aside from the bare assertions made in the complaint. Thus, on this record there was no breach of the implied covenant of good faith and fair dealing.

c. Declaratory judgment. Finally, Pollalis appeals the judge's decision to dismiss his request for declaratory judgment. Pollalis argued that a declaratory judgment was proper for three reasons: lack of consideration, lack of authority to enter the accelerated retirement agreement, and for public policy reasons. Here he only challenges Mostafavi's authority to enter the accelerated retirement agreement. For reasons articulated infra, we conclude that Mostafavi had the authority to negotiate and enter into the accelerated retirement agreement with Pollalis. As a result, the request for declaratory judgment was properly dismissed.

Judgment affirmed.

FOOTNOTES

3.   Because Pollalis relies on the language of the employment handbook in his complaint, and the authenticity of that language is not challenged, a court may consider that language without converting the motion to dismiss into a motion for summary judgment. See Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d. 30, 33 (1st Cir. 2001).

4.   As summary of the options presented to Pollalis, we quote from the Superior Court judge's memorandum: “The [a]greement offered four options to Pollalis: (1) maintain his status as a full-time tenured professor with residency in the Boston area; (2) agree to a retirement package in which the plaintiff would retain tenure during his four years as a part-time professor with residency in Greece and following this four years he would retire, with the option of being a [r]esearch [p]rofessor for a maximum of five years; (3) resign the plaintiff's tenure and become a part-time [a]djunct [p]rofessor for a first term of five years and renewable only one time; or (4) resign his Harvard appointment.”

5.   The record does not state when Pollalis's involvement with the project in Greece formally came to an end, if it ended at all.

6.   The full language from the relevant provision of the handbook: “Activities outside the university are limited, and members of the faculty who wish to engage in professional, research, or other activities for extended periods of time at levels greater than permitted for full-time appointees will be required to change the status of their appointments. The Dean of the Faculty of Design, after consultation with the Senior Faculty Council, will determine on a case-by-case basis, whether a change of status is warranted.”

7.   The motion judge found that the accelerated retirement agreement was supported by valid consideration and acceptance.

8.   We note that if Pollalis was seeking three consecutive years of leave, that request may have required consultation with the senior faculty council. The GSD handbook states: “Leave for more than two successive years will not be granted; resignation from the Harvard appointment is the only alternative to returning to regular academic status at the university after two successive years of leave.”