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Valparaiso Univ. Law School

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Tuesday, February 24, 2009

Tenure and Contract

Moriarty
The American Association of University Professors, which is like a lioness defending her cubs when it comes to tenure is roaring about its recent success (as an amicus) in the First Circuit case, Otero-Burgos v. Inter-American University.

That case did not involve the tenure struggles of Professor Moriarty (pictured), but of Professor Edwin Otero-Burgos, who was dismissed from Inter American University in 2003 after having worked there for nearly 30 years. He was awarded tenure in 1994. In 1999, one of Professor Otero-Burgos's students complained that his grade of "D" was undeserved. The student demanded an opportunity to improve the grade, but the professor refused. The student appealed to the administration, which determined that the student was entitled to a supplemental evaluation. Professor Otero-Burgos refused to participate in this process and so the university designated an alternate. The student did additional work, was evaluated and received a "C" for the course.

Otero-Burgos was dissatisfied with this resolution, so he filed a grievance, alleging that the university's actions interfered with his academic freedom. A Faculty Appeals Committee supported Professor Otero-Burgos's claim, but the University Chancellor nonetheless considered it meritless. There followed a flurry of letters and accusations sent to the University President. The upshot was an investigation into Professor Otero-Burgos's conduct by an Ad Hoc Committee comprised of three professors chosen by the Professor's Dean. That Committee concluded that Professor Otero-Burgos was insubordinate and had violated all sorts of rules, policies, and norms, as well as his colleagues' rights. As a result, in 2002, the Dean notified Professor Otero-Burgos that he was terminated.

Otero-Burgos appealed that decision, and a new Faculty Appeals Committee entertained that appeal. It concluded that there was no cause for terminating Professor Otero-Burgos, but that view was overruled by the Chancellor. The President backed the Chancellor, and Otero-Burgos was dismissed.

On appeal, the issue was whether Puerto Rico's Law 80 limited Otero-Burgos's remedy to severance pay. It appears that Law 80 was intended to protect "at-will" employees and it provides severance benefits to workers who are hired for no fixed term, so long as they are not fired for cause. The case turned on whether Law 80 would apply to tenure and whether a tenured professor falls under the law because he has "contracted without a fixed term."

The court looked at the intention behind Law 80 and found that it was "a measure that would provide employees with a baseline level of economic protection from the consequences of arbitrary dismissals." It concluded that tenure contracts are "not remotely the at-will employment arrangement to which Law 80 is addressed." But the court proceeds with a very scrupulous inquiry into the purposes of tenure and the compatibility of those purposes with the notion that Law 80 should limit remedies available to dismissed professors. It then concludes that Law 80 could not possibly apply to this situation. It reinstated Professor Otero-Burgos's breach of contract claim, noting that if he can establish that he was fired without adequate cause, "he will be eligible for the panoply of generally available contract remedies."

The full opinion in the case can be found here (go to opinions and type in case no. 07-2501).

[Jeremy Telman]

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