Procedural Posture

Procedural Posture and the Legal Significance of UM Non-Discrimination Policies

The Complaint: The Complaint in Hammer v. University of Michigan was filed in January 2005. Count one alleges breach of contract, predicated on representations of non-discrimination during pre-employment negotiations, as well as University policies and by-laws prohibiting discrimination on the basis of sexual-orientation. Count Two pleads the same facts in the form of an equitable claim of promissory estoppel. Count three is a de facto tenure claim, based upon the Law School’s failure to comply with University procedures and notice requirements for employees who have acquired the equivalent of 8 years or more of service.

Defendant’s Motion for Summary Disposition: On February 17, 2006, Defendant University of Michigan moved for Summary Disposition. Among other things, Defendant argued that University by-laws and policies prohibiting discrimination were not binding on the University and created no legal rights.

The University of Michigan’s policy of equal opportunity for individuals regardless of sexual orientation is not a contract and not a discharge policy. The Faculty Handbook, which Hammer received, specifically states that is does not constitute contractual obligations but instead represents a commitment by the University. The University commitment does not rise to the level of a contractual undertaking nor does it constitute a promise capable of instilling a legitimate expectation. Defendant University of Michigan’s, Motion for Summary Disposition at 11.

Hearing on Defendant’s Motion: The Court held a hearing on Defendant’s Summary Disposition Motion on March 16, 2006. The Court responded skeptically to the University’s legal position. Richard Seryak is the University’s Lawyer.

The Court: So in other words, if you tell me that you’re not going to discriminate, I can’t really rely on that, if you’re an employer – -

Mr. Seryak: That’s correct, judge. Its not a basis for contract – -

The Court: And it particularly a public employer, that’s just puffing?

Mr. Seryak: Your honor, its – -

The Court: It’s a scam to get me to come to work for you?

Mr. Seryak: Judge, when we say that this is not a contract and we say that it can be modified, that’s an awfully general statement. And I submit to Your Honor that is not the basis for a contract, a damage contact. It says it’s a commitment. That’s our intent. But that doesn’t – -

The Court: So we can just disregard it at our whim? When we put there in writing, right there, that the University is committed to a policy of non-discrimination, equal opportunity for all persons regardless of race, sex, color, religion, creed, national origin, or ancestry, age, marital status, sexual orientation, we’re just kidding? We don’t really mean that?

Mr. Seryak: We’re not saying that, Your Honor.

The Court: And the Courts in this state should sanction the disregard of that language by a publicly funded, highly respected, University?

Mr. Seryak: I’m not saying that, Your Honor. I’m not going to make that – -

The Court: Well, then what does it mean?

Transcript, Defendant University of Michigan’s Motion for Summary Disposition at 6-7. The Court denied the Defendant’s Motion in its entirety.

Defendant’s Motion for Reconsideration: On May 17, University of Michigan filed a Motion for Reconsideration of the Denial of its Motion for Summary Disposition. The University continued to assert that is non-discrimination policies created no legal rights.

As with other governance documents, such as the Standard Practice Guides and Regent By-Laws, the University reserved to itself the right to interpret how policies are to apply. . . . The University’s commitment to implement its equal employment opportunity policies through various formal and informal mechanisms of internal governance does not rise to the level of a contractual undertaking enforceable in the courts nor does it constitute a promise capable of instilling a legitimate expectation [of non-discrimination]. Defendant University of Michigan’s Brief in Support of Motion for Reconsideration at 16-17.

The Motion was heard on July 27, 2006. The Court denied the University’s motion with respect to Counts One and Two (discrimination), but granted the University’s motion with respect to Count Three (de facto tenure).

Defendant’s Application for Interlocutory Appeal: On September 5, 2005 Defendant University of Michigan a filed a Motion for Immediate Consideration of Application for Leave to Appeal and Application for Leave to Appeal in the Michigan Court of Appeals. The University’s principal legal argument in seeking leave continued to be that its non-discrimination policies created no legally enforceable rights.

The University’s commitment to implement its equal employment opportunities policies through various formal and informal mechanisms of internal governance does not rise to the level of a contractual undertaking enforceable in the courts nor does it constitute a promise capable of instilling a legitimate expectation. Defendant University of Michigan’s Brief in Support of Application for Leave to Appeal at 15.

On October 13, 2006, the Court of Appeals granted the Defendant leave for interlocutory appeal.

Plaintiff’s Motion to Vacate Leave to Appeal: On November 28, 2006, Plaintiff filed a Motion in the Appellate Court to Vacate Leave to Appeal as improvidently granted. To her credit, when University of Michigan President Mary Sue Coleman learned of the Law School’s litigation strategy, claiming that the University’s non-discrimination policies were effectively meaningless, she ordered the General Counsel’s Office to abandon this legal position. Despite its prominent place in the University’s Application for Leave to Appeal, the argument was entirely missing from the University’s November 8, 2006 Docketing Statement of the issues to be addressed on Appeal. Plaintiff’s Motion to Vacate Leave was premised upon the University’s abandonment of its central legal position. On January 25, 2007, after Briefs in the Appeal and Cross Appeal had already been filed, the Appellate Court granted Plaintiff’s Motion and vacated its earlier leave to appeal.

Present Status: The case has been remanded to the trial court in its entirety for reconsideration, including Count Three of the Complaint (de facto tenure claim). Defendant University of Michigan has been granted leave to file what, in essence, will be a third Motion for Summary Disposition. Further briefing and hearings should take place this Fall.

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