| Marks v Smith |
| 2009 NY Slip Op 06461 [65 AD3d 911] |
| September 15, 2009 |
| Appellate Division, First Department |
| Janet R. Marks, Ph.D., Respondent-Appellant, v Sharon P.Smith et al., Appellants-Respondents. |
—[*1] Law Offices of Stephen L. Cohen, Chatham (Mark D. Marderosian of counsel), forrespondent-appellant.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered February 20,2008, which denied the parties' respective motions for summary judgment, modified, on the law,to grant defendants' motion in its entirety, the complaint dismissed, and otherwise affirmed, withcosts. The Clerk is directed to enter judgment in favor of defendants accordingly.
In 1996, plaintiff and defendant Fordham University entered into a written agreement,entitled "Faculty Contract," under which Fordham appointed plaintiff to a two-year, tenure-trackassociate professorship in the Faculty of Business, subject, however, to the following proviso:"Faculty member will be serving as Associate Dean for Academic Affairs for the Faculty ofBusiness. The term of appointment of this contract will be suspended until full-time facultystatus begins. Salary will be paid as an administrator and not on a faculty line until full-timefaculty status begins." The contract (which does not contain a merger clause) fails to specify anyrate of salary for either the administrative position or the faculty position. Neither does thecontract specify the time of plaintiff's transfer from administrative to faculty status, or the eventsthat would trigger that transfer.
From 1996 until early 2002, plaintiff served as an associate dean; in 2002, her annual salarywas $121,000. In February of 2002, plaintiff announced that she was resigning her deanship,effective March 8, 2002, and would thereupon assume her duties as an associate professor.Defendant Smith, who was dean of Fordham's Graduate School of Business Administration at allrelevant times, testified that, in a conversation that took place on or about February 6, 2002, shetold plaintiff that all teaching assignments for the already-commenced spring term had beenfilled, and therefore requested that plaintiff delay resigning her administrative position until thebeginning of the fall 2002 term or, alternatively, the beginning of the summer 2002 term;plaintiff, however, refused to do so. Nonetheless, Fordham accepted plaintiff's resignation of herdeanship and advised plaintiff that her faculty appointment would go [*2]into effect at the beginning of the fall 2002 term, whereupon shewould receive an annual salary of $70,000. Fordham further stated that plaintiff's benefits wouldcontinue without interruption, and offered her the opportunity to teach two summer courses, forwhich she would receive two ninths of her faculty salary. As stated in her affidavit, plaintiffrefused to teach any summer courses.
When plaintiff's resignation of her administrative position became effective in March 2002,Fordham stopped paying her salary but continued her benefits, as it had promised. Plaintiffadvised Fordham that she considered the university to have breached her contract both byceasing to pay her $121,000 administrative salary in March 2002 and by stating its intention toreduce her salary to $70,000 once she began teaching in the fall. On the basis of this position,plaintiff told Fordham in August 2002 that she was refusing to accept any teaching assignmentfor the fall 2002 term. By letter dated September 3, 2002, Fordham advised plaintiff that it wasterminating her employment on the ground that she had breached her contract by refusing toaccept a teaching assignment for the fall 2002 term. Plaintiff subsequently commenced thisaction against Fordham and two of its senior administrators for monetary damages anddeclaratory relief. On appeals by both sides from Supreme Court's denial of their respectivemotions for summary judgment, we modify to grant defendants summary judgment dismissingthe complaint in its entirety.
Plaintiff's first cause of action seeks damages for Fordham's alleged breach of her contract"by purporting to reduce her annual salary when she relinquished her deanship position."Plaintiff's contract does not specify a rate of compensation or a method for determiningcompensation, nor does the contract prohibit Fordham from reducing her salary upon her transferfrom administration to faculty. Accordingly, absent extrinsic evidence of a greater obligation, thecontract is enforceable only to the extent it is construed to require that plaintiff's compensationbe set at a rate that is reasonable in comparison with the range of compensation Fordhamcustomarily paid to holders of comparable faculty positions during the same period (seeKenneth D. Laub & Co. v Bear Stearns Cos., 262 AD2d 36 [1999]). The record establishes,as a matter of law, that Fordham satisfied this obligation. Defendant Hollwitz, Fordham'svice-president of academic affairs, testified, without contradiction, that, as a matter of generalpractice, a Fordham administrator who transferred to the faculty would receive a lower salary asa faculty member than he or she had received as an administrator. Hollwitz further testified thatplaintiff's faculty salary was set at $70,000 because that amount "was somewhere in the middleof the distribution of Associate Professor of Management Systems salaries."
Plaintiff did not come forward with any extrinsic evidence to support her contention thatFordham, in setting her faculty salary at $70,000, breached any contractual obligation the partieshad left unstated in their written agreement. While plaintiff submitted an affidavit asserting inconclusory fashion that her own "research" showed that the "average salary" for an associateprofessor of business at Fordham was "nearly $75,000" during the 2001-2002 academic year,this factual claim, even if accurate, falls far short of providing a basis on which a factfindercould reasonably determine that the $70,000 annual rate at which Fordham set plaintiff's facultysalary was not reasonably consistent with the university's customary practice in compensatingholders of comparable positions at the time. Since this was all that plaintiff's contract required ofFordham with regard to setting her faculty compensation, and the record establishes that thisobligation was satisfied, Fordham is entitled to summary judgment dismissing the first cause of[*3]action.
Plaintiff's second cause of action seeks damages for Fordham's alleged breach of contract by"stopp[ing] pay[ment of] her annual salary beginning on March 9, 2002," the day after her lastday as a dean. Plaintiff fails, however, to identify any basis in the record for a determination thatFordham was required to continue paying her an administrative salary after she voluntarilyresigned her administrative position. Further, nothing in the parties' contract obligated Fordhamto start paying plaintiff her faculty salary (which, as discussed above, was legitimately set at alower rate than her administrative salary) immediately upon her relinquishment of heradministrative position where, as here, plaintiff unilaterally chose to resign her deanship in themiddle of the spring term, when no teaching assignments were available. In this regard, it issignificant that the University Statutes, which are incorporated by reference into plaintiff'scontract, establish that the primary responsibility of a Fordham faculty member is to teach.While plaintiff claims that "research and committee work," not just teaching, are part of a facultymember's job, she does not identify any particular research project or committee work that sheintended to initiate or continue as a full-time faculty member upon resigning her deanship. Inessence, plaintiff would have us construe the contract to require Fordham to pay her for doingnothing; this is an interpretation we decline to adopt. Considering the difficult situation thatplaintiff herself created, Fordham acted reasonably in advising plaintiff, upon her resignation ofher deanship, that it intended to commence her full-time faculty status at the opening of thefollowing fall term, and accommodating her in the interim by continuing her benefits withoutinterruption and by offering to assign her two summer courses to teach, for which she wouldhave been paid two ninths of her annual faculty salary. Since plaintiff identifies no basis, eitherin the contract or in extrinsic evidence, for imposing a greater obligation on Fordham, the latteris entitled to summary judgment dismissing the second cause of action.
Plaintiff's third cause of action seeks damages for Fordham's alleged breach of contract "bypurporting to terminate her employment in September 2002." The record, however, establishesas a matter of law that Fordham was entitled to terminate its contract with plaintiff in response toher repudiation of that contract by refusing to accept any teaching assignment for the fall 2002term, which refusal lacked any justification, as discussed above (see Computer PossibilitiesUnlimited v Mobil Oil Corp., 301 AD2d 70, 77 [2002] [one party's repudiation of contractdischarges the other party's obligations thereunder]). To the extent the third cause of action seeksdamages based on Fordham's termination of plaintiff's contract without following the internalprocedures for termination of a faculty member specified in the University Statutes, the claimstill must fail as a matter of law because the contract provided that "[t]he term of [plaintiff's]appointment [to the faculty] will be suspended until full-time faculty status begins"(emphasis added). The record establishes that plaintiff never attained full-time facultystatus—indeed, in August 2002, she specifically rejected the opportunity to assume suchstatus—and she therefore was not entitled to have her termination considered through theprocedures specified in the University Statutes (cf. B. Man Yoon v Fordham Univ., 216AD2d 184, 185 [1995] [reinstating tenured faculty member's cause of action against university"seeking payment of (his) salary . . . until and unless he is dismissed in accordancewith . . . the university's Statutes," although reinstatement was precluded byexpiration of the limitation period for a CPLR article 78 proceeding]). In any event, plaintiff hasno right to hold Fordham to adherence to the disciplinary protocols of its University Statuteswhen the record establishes that plaintiff effectively abandoned her faculty appointment, therebybecoming the first party to breach her [*4]contract, by flatlyrefusing to accept any teaching assignment for the fall 2002 term.
The fifth cause of action seeks a declaration that "(a) University officials failed to terminate[plaintiff's] employment according to the procedures dictated in . . . the UniversityStatutes; and (b) she is now and will remain a tenure-track Associate Professor in the BusinessSchool unless and until the University invokes and follows those procedures." Relief of thisnature cannot be obtained through a plenary action, and must be sought by way of a proceedingpursuant to CPLR article 78 (see Maas v Cornell Univ., 94 NY2d 87, 92 [1999]).Plaintiff did not commence this action until October 2004, more than two years after Fordhamterminated her employment in September 2002 and long after the expiration of the four-monthlimitation period applicable to an article 78 proceeding (CPLR 217). Accordingly, Fordham isentitled to summary judgment dismissing the fifth cause of action (see Risley v Rubin,272 AD2d 198 [2000], lv denied 96 NY2d 701 [2001]; cf. B. Man Yoon v FordhamUniv., supra). In any event, as previously discussed in connection with the thirdcause of action, the record establishes that plaintiff (by her own free choice) never attained thefull-time faculty status required to trigger the term of her faculty appointment, and she thereforewas not entitled to the benefit of the procedures provided in the University Statutes.
In her fourth cause of action, plaintiff seeks damages based on the two individual defendants'alleged tortious interference with her contractual relations with Fordham. To begin, for thereasons discussed above, the record establishes that Fordham did not breach plaintiff's contract.Since the breach of a contract is an essential element of a tortious interference claim (seeLama Holding Co. v Smith Barney, 88 NY2d 413, 424 [1996]), plaintiff cannot prevail onthis cause of action as a matter of law. Even if there were evidence that Fordham had breachedthe contract, summary judgment dismissing the cause of action would still be appropriate.Plaintiff fails to identify any evidence in the record tending to show that defendants Smith andHollwitz (who were, at the relevant times, the dean of Fordham's Graduate School of BusinessAdministration and Fordham's vice-president of academic affairs, respectively) acted outside thescope of their employment and committed independent torts or predatory acts directed at her(see Murtha v Yonkers Child Care Assn., 45 NY2d 913, 915 [1978]). Smith andHollwitz were plaintiff's superiors, and, the dispute whether proper procedures were followednotwithstanding, there is no evidence that they were not acting on behalf of defendant universityand within the scope of their authority (see Nu-Life Constr. Corp. v Board of Educ. of City ofN.Y., 204 AD2d 106, 107 [1994], lv dismissed 84 NY2d 850 [1994]) or that theywere motivated by self-interest (see Kartiganer Assoc. v Town of New Windsor, 108AD2d 898, 899 [1985], appeal dismissed 65 NY2d 925 [1985]). It does not avail to savethe claim that plaintiff alleges that Smith and Hollwitz, in acting adversely to plaintiff onFordham's behalf, were motivated by an alleged desire to retaliate against her for supporting theposition of Fordham's clerical employees in a collective bargaining dispute with the university.
While our dissenting colleague takes the position that the record establishes some breach ofcontract by Fordham (and would even grant plaintiff summary judgment on this point), he failsto identify any particular provision of the agreement with plaintiff—or even any allegedoral promise to her—that was breached by Fordham. Again, in early February 2002,before plaintiff resigned her administrative position (at her own instance), she was told bydefendant Smith (according to Smith's uncontradicted deposition testimony) that no facultyposition was available at that time, since there were no unfilled teaching assignments. Plaintiffnonetheless insisted on resigning her deanship in the middle of the spring term, rejecting Smith'sreasonable request that [*5]she continue in administration untilshe could begin teaching, either in the fall or in the summer. These matters are all evidenced inthe record by Smith's testimony.
Smith also testified (again, without contradiction) that it would have been contrary toFordham's policy and practice to begin paying plaintiff her faculty salary before she assumedteaching duties. While the dissent points out that teaching is one of several duties of a facultymember set forth in the University Statutes, this does not change the fact that it is uncontrovertedon this record that it was Fordham's established policy not to start paying a faculty member untilthe start of a term in which he or she commenced teaching. The dissent would have us rewritethe parties' agreement to require Fordham to apply special rules to plaintiff, and to give heruniquely favorable treatment, by paying her a faculty salary during a period of about six months(March through August 2002) in which she was not teaching any classes. This we decline to do.We would add that the invocation by plaintiff and the dissent of a faculty member'sresponsibilities other than teaching rings rather hollow, given that, as previously noted, plaintiffhas never identified—neither in her contemporaneous writings, in her depositiontestimony, nor in her written submissions in this litigation—any particular "research"project or other faculty-related activity in which she intended to engage during the intervalbetween resigning the deanship in March 2002 and the beginning of the fall term the followingSeptember.
In the final analysis, the dissent takes the position that, once plaintiff (on her own initiative)resigned her deanship in the middle of a term, Fordham was obligated to begin paying her afaculty salary immediately, even though no teaching assignments were available and it was theschool's policy not to begin a faculty appointment until the faculty member could be given ateaching assignment. Nothing in the parties' written agreement supports the dissent's view thatFordham had any such obligations to plaintiff. Indeed, the dissent, by emphasizing that Fordhamfailed to give plaintiff "any notice whatsoever" that her administrative salary would stop whenher resignation went into effect, seems to acknowledge implicitly that the parties' agreement didnot require Fordham to grant plaintiff what would have been, in effect, a six-month paid vacationupon her voluntary resignation from the deanship.
The dissent asserts that, because Smith's statements to plaintiff in their February 2002conversation were somehow "less than unequivocal," such statements provide grounds forexpanding Fordham's contractual obligations to plaintiff. We do not follow this reasoning. In anyevent, contrary to the dissent's contention, Smith's uncontradicted testimony establishes thatplaintiff—a doctorate-holding university administrator—should have wellunderstood from her conversation with Smith in early February 2002 that, because there were nounfilled teaching assignments at that time, it was Fordham's expectation and desire that sheremain in her administrative position until she could be given a teaching assignment in the fall(which was Fordham's preference) or, if plaintiff insisted on leaving the deanship earlier, in thesummer. The logical implication of what Smith told plaintiff was that the latter's abruptresignation of the deanship in March 2002 would result in the interruption of hersalary.[FN*][*6]
In closing, we note that the routine administrative actionsby Fordham of which plaintiff complains—such as sending plaintiff an August 8, 2002letter (which followed "numerous unsuccessful attempts to contact [her]") setting forth her classassignments for the forthcoming fall term—are not rendered "egregious" by the dissent'sso characterizing them. We also disagree with the dissent's evident view that the support forplaintiff's position lacking in the parties' written agreement (or even in any alleged oral promise)can be supplied by the gracious remarks about plaintiff made by defendant Smith in a February22, 2002 memorandum she issued to personnel of the School of Business (e.g., "the attractionsand challenges of research have lured [plaintiff] to leave administration for the full time facultylife"). We decline to punish an employer for speaking about an employee with generosity andcivility. Concur—Friedman, J.P., Nardelli and DeGrasse, JJ.
Catterson, J., dissents in a memorandum as follows: I must respectfully dissent becausedefendants Smith and Hollwitz both acknowledged and, in Smith's case, lauded the plaintiff'sdecision to move to her faculty position to conduct [*7]research"effective March 9, 2002" but stopped her salary as of the same date without any noticewhatsoever to the plaintiff. In my opinion, by so doing the defendants breached the plaintiff'semployment contract on March 9, 2002. Thus, she was not contractually obligated to accept anyof the classes assigned to her on August 8, 2002, five months after the cessation of payment ofher salary.
Moreover, in my opinion, the defendants' explanation that the plaintiff's salary would beresumed on September 1, 2002 because that was the start of the new academic year was asnonsensical as it was egregious, if by that defendants meant she would be compensated as ofSeptember 1. The plaintiff was informed of her assigned classes in a memo dated August 8,2002. The memo also informed her that classes started on August 28, 2002. The memo thereforeappears to assume that plaintiff not only would teach four days' worth of scheduled classes butwould engage in the required preparation for those classes prior to August 28th without anycompensation whatsoever.
The plaintiff's faculty contract clearly states: "Salary will be paid as an administrator and noton a faculty line until full-time faculty status begins." The majority bases its determination thatthe stoppage of salary is not a breach of contract by the University on its view that the plaintiff'sfull-time faculty status could not begin until plaintiff commenced teaching classes.Consequently, the majority finds that once the plaintiff decided to relinquish her administrativeposition, which decision was acknowledged and accepted, she was rightfully deprived of a salarybecause she could not be assigned to teach classes midsemester.
In my opinion, the teaching of classes as a condition for a full-time faculty position is neitherstated in the one-page contract nor is it reflected in the record containing the incorporatedUniversity Statutes on policies and procedures. In fact, the relevant section in the Statutes onresponsibility of faculty lists eleven responsibilities of faculty ranging from (1) "[s]atisfactoryfulfillment of teaching duties in assigned courses or their equivalents" through (11)"[c]ooperation in the observance of University regulations." In between are nine otherresponsibilities that do not relate to teaching classes. For example, (6) relates to "[i]nvolvementin significant scholarly research"; (7) relates to "[s]cholarly publication"; (8) refers to"[p]articipation in learned societies and professional organizations." The chapter does not statethat a faculty member must engage in each and every responsibility listed in any givensemester, nor does it specify that engaging in any one of the enumerated responsibilities ismandatory in each and every semester.
As for teaching requirements, chapter three, § 4-03.02 of the Statutes provides onlythat: a faculty member may not exceed, in any year, an average of three courses persemester; that a modification of this teaching load "shall be approved by the Dean and the VicePresident for Academic Affairs"; and that the course load "may be reduced for individual facultymembers engaged in major research projects."
Hence, it could not be clearer that there is abundant flexibility as to the required facultyresponsibility of teaching classes in any one semester. Indeed, the Statutes clearly indicate that ateaching load can be modified and/or reduced (with no stated minimum) simply by approvalfrom the dean and vice-president for academic affairs; and moreover that it can be done so forfaculty members engaged in research.
In this case, the letters and memos from defendant Smith, the dean of the GraduateSchool of Business Administration, and from defendant Hollwitz, the vice-president ofacademic affairs, responding to the plaintiff's February 6, 2002 letter establish precisely that:both the requisite approval of the necessary administrators, as well as an indication that research[*8]is the faculty responsibility in which plaintiff was to engageupon moving to her faculty position.
The sequence of memos and letters following the plaintiff's letter were as follows: First, shereceived a memo dated February 8, 2002, from Smith in which Smith acknowledged theplaintiff's request to "move to your faculty position" (emphasis added). The oneparagraph memo continued: "As I have already indicated in our conversations, I accept yourdecision" (emphasis added) and ended with the sentence: "Your faculty appointment and itstiming will be set from [sic] [the] Vice President for Academic Affairs office."
On February 12, 2002, the plaintiff replied that there was no need to wait for either theappointment or its timing since she was already appointed to the faculty. In my opinion, this wasa correct observation since her one page "Faculty Contract" signed on November 25, 1996 statesthat: "Fordham University hereby appoints Janet Marks to the faculty of the University." Thecontract further specifies that her faculty rank is associate professor in the Faculty of Business.The contract includes a section titled "Special Provisions: Faculty member will be servingas Associate Dean for Academic Affairs for the Faculty of Business . . . Salarywill be paid as an administrator and not on a faculty line until full-time faculty status begins"(emphasis added). The last paragraph of the contract preceding the plaintiff's signature states: "Ihereby accept this appointment as a member of the faculty of Fordham University."
The contract provides that the term of her appointment as a full-time faculty member, whichputs her on a tenure track with a seven year probationary period from the date of the appointmentwill be suspended until she assumes full-time faculty status. However, the contract notably omitsany prohibitions or restrictions as to the timing of her assumption of a full-time faculty position.
In any event, within 10 days of the plaintiff's letter, wherein she drew defendant Smith'sattention to these contractual provisions, Smith issued a memo on February 22, 2002 to "AllFaculty, Administrators and Staff." The memo stated, in relevant part: "[I]t is not surprising thatthe attractions and challenges of research have lured one of our administrators to leaveadministration for the full-time faculty life. Janet Marks, who was appointed Associate Dean forAcademic Affairs and Administration and Associate Professor in Management Systemsin 1996, has decided to leave her dean's post and move to faculty effective March 9, 2002. I amcertain that you join me in expressing appreciation . . . and wish her fulfillment andhappiness as she dedicates her energies to research and teaching" (emphasis added).
Three days later, on February 25, 2002, defendant Hollwitz wrote the plaintiff aone-paragraph letter stating: "I write to acknowledge your decision to move from youradministrative position as associate dean to your faculty position as associate professor effectiveMarch 9, 2002. Your salary effective for the academic year 2002-03 will be $70,000. You havethe option to earn as much as two-ninths of this amount during this academic year if you chooseto teach as many as two courses during the summer term."
In both latter written communications of acknowledgment, the date of the plaintiff's move toa faculty position was noted as "effective March 9, 2002." There could be no clearer acceptance,acknowledgment or approval of the plaintiff's move to full-time faculty status as of that date.Further, none of the written communications memorialized any objections by the [*9]defendants or referenced any difficulties caused by the plaintiff inchoosing to make her move midsemester.
Therefore, the majority's reliance on an initial conversation that the plaintiff engaged in withdefendant Smith prior to submitting her letter of February 6, 2002, is misguided. In any event, Ibelieve the majority mischaracterizes defendant Smith's deposition testimony as to thatconversation. There is simply no testimony where defendant Smith claims to have unequivocallytold the plaintiff that "no faculty position was available at that time, since there were no unfilledteaching assignments." Nor is there any testimony as to the plaintiff "rejecting Smith'sreasonable request that she continue in administration until she could begin teaching, either inthe fall or in the summer."
On the contrary, the record reflects that, in her deposition, Smith testified as follows as to herreaction upon being told of plaintiff's decision to move to the faculty appointment: "I raised noobjection to that decision, understood her appointment allowed for that decision with a facultyline to be held for her but questioned the timing of the decision with an understanding of the timeinvolved in searching for a replacement and the timing of the issues that were involved in herposition as dean."
Throughout her deposition, again and again, defendant Smith testified in less thanunequivocal terms such as: "preferring" the plaintiff to move to faculty at the beginning of theacademic year; that moves to faculty "normally" occurred at the beginning of an academic year;and that Smith's concern was that "I had no understanding of how [a faculty position] couldbegin at any other time" and "expected that the move would therefore coincide with that sort oftiming." Indeed, on being asked: "Did you say 'No, you can't do that?'," Smith replied: "No."
Moreover, Smith did not testify that she told the plaintiff that her salary would be stopped ifshe moved to a faculty position midsemester, and nothing in her deposition testimony indicatesthat she informed the plaintiff that university policy and procedure required the plaintiff to makea move only at the beginning of an academic year. However, within just a week of their memos,the defendants unilaterally and without notice stopped the plaintiff's salary payments entirely asof March 9, 2002—a fact that the plaintiff did not become aware of until March 26, 2002when she memorialized the fact in her next communication to the Office of Academic Affairs.
It was only after this query letter about the salary stoppage that defendant Smith, who hadlauded the plaintiff's plans to assume a faculty position effective March 9, 2002, for the purposeof research, attempted to explain why the plaintiff's regular faculty salary had beenstopped. In the letter of April 5, 2002, Smith wrote: "Since you requested that the change occurin mid-semester, it was not possible to assign you ordinary teaching responsibilities for theSpring 2002 term. Therefore, your regular faculty salary will resume . . . September1, 2002."
In my opinion, the plaintiff's letter of May 23, 2002 correctly observed that the defendantshad breached the contract. In response, on June 3, 2002, Smith stated disingenuously, "You willnote that the University did not refuse to accept your own timetable . . . and [didnot] claim that you breached your employment contract if you refused to continue youradministrative duties until the Fall 2002." The obvious conjecture to be made here is that theUniversity did not so claim because it could not so claim, given that the contract is silent as tothe method and timing of any transition by the plaintiff. Nowhere does the record reflectdefendants' plea that [*10]she continue her administrative duties,much less that she refused such plea.
That defendant Smith states that the University did not claim a breach of contract byplaintiff, yet without notice stopped her salary is an incomprehensible and egregious position.Thus, in my opinion, the defendants were in breach of contract as a matter of law, and thereforesummary judgment should be granted to the plaintiff on liability with a remand on the amount ofdamages to be awarded.
Footnote *: The following excerpts fromSmith's deposition testimony are representative:
"What I said to [plaintiff] was that a faculty position normally begins in the beginning of anacademic year. That is the preferred time for all faculty positions to begin. If they begin midyear,then half of the teaching obligation for the entire year would still be due.
"A[s] a less preferred option, a faculty position could begin no later than the summer termfor the graduate school which would accommodate a three-course teaching load which is half ofthe normal teaching load for Faculty of Business . . .
"My option [offered to plaintiff] was that she could be a full-time faculty member if shetaught half of her—if she began it in academic year '01-'02, she would have to teach threecourses in academic year '01-'02. The only possibility for teaching three courses in academicyear '01-'02 would be in the summer term at the graduate school since the spring term wasalready underway . . .
"The other option was the normal option which would be beginning academic year '02-'03which would begin in the fall term . . .
"I said I accepted her decision to move from administrative position to a faculty position andthat would mean it would begin in academic year '02-'03 because this academic year was notonly well underway, in essence the staffing was completed for the undergraduate school becausewe were already into the spring term . . . We were into the second trimester of thegraduate school. The only thing left was the third [summer] trimester of the graduate school."