Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                             Nov 12 2014, 9:08 am
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                                    ATTORNEY FOR APPELLEE:

ROBERT P. KONDRAS, JR.                                     BRADLEY A. BOUGH
Hunt, Hassler, Lorenz & Kondras LLP                        Wright, Shagley & Lowery, P.C.
Terre Haute, Indiana                                       Terre Haute, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

DR. STEVEN C. PRESCOTT,                            )
                                                   )
       Appellant-Plaintiff,                        )
                                                   )
               vs.                                 )       No. 84A01-1407-PL-287
                                                   )
ST. MARY OF THE WOODS COLLEGE,                     )
                                                   )
       Appellee-Defendant.                         )


                       APPEAL FROM THE VIGO SUPERIOR COURT
                           The Honorable David R. Bolk, Judge
                             Cause No. 84D03-1305-PL-4550



                                       November 12, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
      Dr. Steven C. Prescott (“Prescott”) appeals the trial court’s entry of summary

judgment against him and in favor of St. Mary of the Woods College (“the College”) on

Prescott’s complaint, which alleged that the College had breached its contract with him

when it terminated his employment as a tenured professor.

      We affirm.

                      FACTS AND PROCEDURAL HISTORY

      In 2004, the College hired Prescott as an Assistant Professor of Music. Prescott

holds a doctorate in musical arts.      At the College, Prescott’s emphasis was on

instrumental music, particularly woodwinds and clarinet, and his classes included

instrumental music performance, instrument instruction, instrument repair, and music

appreciation. In August 2005, Prescott assumed a full-time tenure-track faculty position.

Later that year, in December 2005, the then-Chief Academic Officer and Academic

Dean, Joanne M. Burrows, S.C., Ph.D. (“Burrows”), sent a letter to Prescott informing

him of the College’s “painful” decision to reduce the staffing levels in the Music and

Theatre Department, based on enrollment and instructional needs, from seven music

faculty to five; however, Burrows was pleased to advise Prescott that the College was

renewing his faculty appointment for the 2006-2007 school year. Appellee’s App. at 155-

56.

      In December 2007, the College’s then-president Dr. David Behrs (“Behrs”)

appointed a Program Analysis Committee (“PAC”), consisting of five faculty and five

staff members, to perform a comprehensive analysis of the College’s academic and

administrative programs in order to improve quality through appropriate resource

                                           2
allocation. Prescott was one of the PAC members. After spending a collective 3,000

hours, the PAC issued a Preliminary Report in September 2008, recommending, among

other things, terminating the music major and the music therapy major, reducing the

music and theatre department faculty to three people, and discontinuing instrumental

lessons. Id. at 241. Behrs distributed the Preliminary Report along with a Memorandum

to the College Campus Community, explaining that no decisions had been made as to the

Preliminary Report’s recommendations, the process was ongoing, and all academic

departments would have the opportunity to schedule meetings with the President and the

governing Cabinet to discuss the program ideas.

        In March 2009, Behrs and then-Vice President for Academic Affair (“VPAA”)

Maggy Smith, Ph.D., sent a letter to Prescott informing him that the College was

promoting him to Associate Professor and awarding him tenure status.1 Appellant’s App.

at 35. In May 2009, the College sent to Prescott a two-page “2009-2010 Academic Year

Full-Time Faculty Appointment” (“Contract”). Id. at 37-38. The Contract required,

among other things, that Prescott teach twenty-four credit hours or the equivalent during

the academic year. The Contract’s offer of employment became valid upon Prescott’s

acceptance, which was indicated by his signature. Prescott signed the Contract, as did

President Behrs and VPAA Smith. Thereafter, the College sent Prescott a Contract,

containing basically the same terms as the 2009-2010 Contract, for each subsequent

academic year during his employment at the College. See id. at 40-47.


        1
           The tenure process at the College is a faculty-led process where a committee reviews the
qualifications of applications for tenure-track faculty positions. The College administration plays little
part in the tenure process. Appellee’s App. at 224-25.

                                                    3
      The Contract referenced the Faculty Handbook (“Handbook”) a number of times,

including a statement requiring that “Faculty Member will comply with the requirements

and standards of the [Handbook], as amended from time to time[.]” Id. at 37. The

Handbook was drafted as a joint effort between a Faculty Handbook Committee and the

VPAA and was approved annually by the College’s Board of Trustees. Id. at 292, 295.

      Section 4.4 of the Handbook outlined the circumstances under which a tenured

faculty member could be terminated.       It identified the following four reasons:      (1)

prolonged mental or physical illness; (2) financial exigency (an imminent financial crisis

that threatens the College as a whole); (3) changes in the educational program; and (4)

adequate cause. If the College terminated a faculty member under the third reason,

changes in the educational program, the tenured faculty member “shall be accorded the

same offers of new positions as cited under Financial Exigency.” Id. at 98. Those are:

      First, the tenured faculty member shall be offered a teaching position in
      another department in an academic area in which the person is
      professionally competent. Secondly, the tenured faculty member shall be
      offered a position, if available, on the administrative staff commensurate
      with the individual’s expertise and experience. Thirdly, the tenured faculty
      member, having refused to accept either of the above offers, shall be
      terminated, but shall retain the right to be rehired if the position eliminated
      is restored within two academic years of the termination.

Id.

      In October 2009, then-President Behrs issued to all staff and faculty a Final Report

concerning the Program Analysis that had begun in 2007. The Final Report included

recommendations to continue music, music education, and music therapy majors, with a

review to occur no later than spring 2011 to determine sustainability, which would


                                            4
depend on actual recruitment and retention of students. Beginning in 2010, the College

no longer enrolled students as instrumental music majors.         Appellee’s App. at 134.

Prescott served a one-year appointment as the Music and Theatre Department chairperson

for the 2010-2011 academic year.        Prescott’s peer reviews during this period were

unfavorable.

       In May 2012, the then-VPAA Janet Clark, Ph.D. (“Clark”), sent Prescott a

Contract that extended his appointment as Associate Professor in the Music and Theatre

Department through the 2012-2013 academic year. That same date, she wrote a letter to

Prescott, stating, in part:

       As you are well aware, we are teaching out the Music Education and
       instrumental emphasis in the Music core major at [the College]. Due to the
       reduced number of students remaining, the next academic year 12-13, may
       be the final years of the program and the last one in which we can support a
       full-time faculty member in that area. Because of program eliminations,
       your services may no longer be needed at the [C]ollege once the program is
       completed even though you have been awarded tenure status.

Appellee’s App. at 270. In response, Prescott sent a letter to Clark, expressing his

concerns about her letter, stating that if his particular position is eliminated, he would be

very willing to take another position in the Music and Theatre Department or any other

department, or would be willing to take an administrative role at the College. Appellant’s

App. at 52.




                                             5
        On May 6, 2013, Clark sent Prescott a letter notifying him that the College was

terminating his tenured faculty appointment at the end of the 2012-13 school year.2

Appellee’s App. at 105-06. The reasons for the termination were the changes made in

educational programs offered in the Music and Theatre Department, including

elimination of the music education and instrumental emphasis program. Clark identified

efforts made by the College to arrive at other teaching or administrative duties to fill the

necessary twenty-four hours for a full-time contract, but stated they were unable to

successfully do so, either because no positions were available or he was not qualified for

those that were open. With the letter, Clark enclosed two pages from the Handbook

regarding the procedures related to grievances for termination.                      The letter advised

Prescott that, “[s]hould [he] wish to waive the grievance procedure and accept the

severance offer,” he would be paid certain dollar amounts. Id. at 106.

        Prescott did not file a grievance with the College. Rather, on May 13, 2013,

Prescott filed a complaint against the College, alleging breach of contract. He amended

the complaint on September 11, 2013, adding a second count under Indiana’s Wage

Claim Statute.3         Both the complaint and the amended complaint alleged that the

Handbook was incorporated into each of Prescott’s Contracts for the academic years

2009-2010 through 2012-2013. Id. at 5-6.
        2
          The record before us indicates that prior to that termination letter, Prescott emailed Clark in
March 2013 to tell her that “there seems to be a rumor going around” that he would be leaving at the end
of the semester. Appellant’s App. at 54-55. She replied by email and reminded him that she had warned
him in May 2012 that that could be his last year, despite his tenured status, and she encouraged him to
arrange a meeting with her as soon as possible. They met, along with department chair Dr. Tracy
Richardson, either before or around the date of Clark’s May 6 letter to Prescott, to discuss possible
alternatives to termination.
        3
            The parties mediated the wage claim, leaving only the breach of contract claim.

                                                      6
       Prescott filed a motion for partial summary judgment on February 28, 2014,

arguing that the College had breached its Contract with him. Prescott’s position was that

the Contract comprised their entire agreement – and that the Handbook was irrelevant to

the matter – and that because his Contract with the College was for a definite term of

years, under Indiana law, the College could only terminate him for “just cause” or by

mutual agreement, neither of which were the reasons for his termination. Appellant’s

App. 11. Alternatively, Prescott argued that even if the Handbook were to be considered

in the analysis, the College still breached its Contract with him because it failed to offer

him alternative faculty or administrative positions that he refused before terminating him,

as is required by the Handbook.

       The College filed its own motion for summary judgment, alleging it was entitled

to judgment because Prescott failed to follow the grievance procedure provided in the

Handbook, and thereby failed to exhaust administrative remedies before filing suit. The

College also argued that there was no breach because the College offered him other jobs

for which he was qualified, although in a part-time adjunct capacity because that was all

the College needed.

       The trial court conducted a hearing in April 2014, at the conclusion of which it

took the summary judgment motions under advisement.4 Thereafter, in June 2014, the

trial court, in a one paragraph order, granted the College’s motion for summary judgment




       4
           We note that a copy of the transcript of the hearing is not included in the record before us.


                                                       7
and denied Prescott’s.5 Prescott now appeals.

                               DISCUSSION AND DECISION

                                   I.     Standard of Review

       Prescott argues that the trial court erred when it denied his partial motion for

summary judgment and granted summary judgment in favor of the College. On review

of a trial court’s decision to grant or deny summary judgment, we apply the same

standard as the trial court. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012). The moving

party bears the initial burden of making a prima facie showing that there are no genuine

issues of material fact and that it is entitled to judgment as a matter of law. If the moving

party carries its burden, then the nonmoving party must come forward with evidence

establishing the existence of a genuine issue of material fact. Id. We may consider only

those portions of the pleadings, depositions, and any other matters specifically designated

to the trial court by the parties for purposes of the motion for summary judgment. Birch

v. Midwest Garage Door Sys., 790 N.E.2d 504, 509 (Ind. Ct. App. 2003); see also Ind.

Trial Rule 56(C), (H). Any doubt as to the existence of an issue of material fact, or an

inference to be drawn from the facts, must be resolved in favor of the nonmoving party.

Birch, 709 N.E.2d at 509. The trial court’s decision on a motion for summary judgment

comes to us cloaked with a presumption of validity. Haegert v. McMullan, 953 N.E.2d

1223, 1229 (Ind. Ct. App. 2011). The nonmovant has the burden of demonstrating that

the grant of summary judgment was erroneous. Id.



       5
        Findings of fact and conclusions of law thereon are neither required nor prohibited in summary
judgment context. Birch v. Midwest Garage Door Sys., 790 N.E.2d 504, 516 (Ind. Ct. App. 2003).

                                                  8
                                 II.    The Handbook

      Initially, we address the issue of the applicability of the Handbook. Prescott

claims that it has no bearing and that the only consideration is the Contract signed

annually by Prescott, and because the Contract is not ambiguous, there is no need to

consider extrinsic evidence such as the Handbook. Prescott contends that, only if the

term “tenured” is found to be ambiguous, is the Handbook relevant to the analysis. The

College asserts that the Contract, on its face, references the Handbook on a number of

occasions and incorporates the Handbook by reference. We agree with the College.

      The Contract, which Prescott received and signed annually, was entitled

“ACADEMIC FULL-TIME FACULTY APPOINTMENT” and directly beneath that

language appeared, “[Reference: Faculty Handbook (FH) 1.6-6; 2.1-6].” Appellee’s

App. at 275. Those identified sections of the Handbook concern the subjects of “Faculty

Appointments and Contracts” and “Faculty Responsibilities and Expectations.”

Appellant’s App. at 69-82. Later in the Contract, it states, “Faculty Member will comply

with the requirements and standards in the FH, as amended from time to time according

to procedures specified in the FH, including the Mission Statement.” Appellee’s App. at

275. The Contract also mentions, “Promotions must be earned as authorized by the FH.

Deadlines, procedures, criteria, and standards for promotion consideration are set forth in

the FH.” Id. at 276. The Contract further references the Handbook when it states,

“Tenured members of the faculty shall be formally evaluated every three years by the

Chairperson (FH 3.8.A.4).” Id.



                                            9
       Prescott argues that the Handbook is not a contract as evidenced by Handbook

Section 10.3, titled “The Faculty Handbook and terms of employment,” which provides

that the Handbook “should not be considered as part of the contractual agreement.”

Appellant’s App. at 125. That, however, is not all that it says. More fully, it reads:

       The faculty member’s most recent employment letter contains the terms of
       the employment contract. Unless that letter contains terms that expressly
       supersede the information contained in this Faculty Handbook, the
       Handbook should be considered as governing the faculty member’s
       employment. It should not, however, be considered as part of the
       [C]ollege’s contractual agreement with the individual faculty members.
       The Handbook is designed to serve as a guide to the relationship between
       the faculty members and the college, and it seeks to outline duties, rights,
       and responsibilities of faculty members.

Id.   While the Handbook language on one hand states that “[i]t should not … be

considered as part of the [C]ollege’s contractual agreement,” it also states that “the

Handbook should be considered as governing the faculty member’s employment” and it

“outlines duties, rights, and responsibilities of faculty members.” Id. We find it is not

necessary to resolve this apparent conflict, however, as Prescott expressly alleges in his

complaint that the Handbook is incorporated into each of his Contracts with the College.

Appellee’s App. at 5-6. Indeed, Prescott alleges that the College violated the Handbook

by its failure and refusal “to make any offer, or even look for, an alternate faculty

position” or “an available administrative position” for him. Id. at 8. Prescott also claims

that the College had no factual or legal basis to terminate Prescott, “[a]s shown by

Prescott’s written contracts, the incorporated provisions of [the College’s] faculty

handbook, and the legal concept of tenure[.]” Id. at 9.



                                             10
       On appeal, Prescott cites to a number of Indiana cases that hold an employee

handbook does not create a contract. Appellant’s Br. at 14, 20 (citing, inter alia, Orr v.

Westminster Vill. N., Inc., 689 N.E.2d 712, 720-21 (Ind. 1997); McCalment v. Eli Lilly &

Co., 860 N.E.2d 884, 890-93 (Ind. Ct. App. 2007)). With this general proposition, we do

not disagree. The Handbook at issue does not create a contract; one already exists by

virtue of the academic-year Contract signed annually by all parties.        The Contract

incorporates by reference the expectations, procedures, policies, and responsibilities of

both parties as provided in the Handbook. Indeed, Prescott asserted in his complaint that

his annual Contracts incorporated that Handbook and that the College failed to follow the

Handbook’s procedures and policies, thereby breaching its contract with him.

       The trial court granted the College’s motion for summary judgment, which sought

judgment in its favor either on the basis that (a) Prescott failed to file a grievance as

provided in the Handbook, or (b) the College properly offered him all available faculty or

administrative positions for which he was professionally qualified; both of those theories

are premised in the applicability of the Handbook to Prescott’s claim. In granting the

College’s motion, the trial court evidently concluded that the Handbook was relevant and

applicable. We agree and find no trial court error in that regard.

                 III.   The College’s Motion for Summary Judgment

       We next consider the trial court’s decision to grant the College’s motion for

summary judgment. The order reads, in pertinent part, that the trial court, having taken

the parties’ respective motions for summary judgment under advisement,



                                             11
      now finds that there is no genuine issue of material fact and that Defendant
      [College] is entitled to judgment as a matter of law. The Court therefore
      enters judgment for [College] and against [Prescott].

      The Court DENIES [Prescott’s] Motion for Partial Summary Judgment.

Appellant’s App. at 8. From this, we do not know the basis upon which the trial court

granted the College’s motion; however, upon review, we will affirm the grant of

summary judgment upon any legal basis supported by the designated evidence. Merrill v.

Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1264 (Ind. Ct. App. 2002), trans. denied.

      The Handbook defines tenure:

      Tenured status means continuous appointment and employment by this
      College. A tenured faculty member shall not be terminated except under
      the conditions as specified in this Handbook.

Appellee’s App. at 65.     As VPAA Clark testified in her deposition, continuous

appointment is not the equivalent of permanent and guaranteed employment without

condition. Id. at 207-08. The Handbook identified four circumstances in which tenured

faculty could be terminated: (1) prolonged mental or physical illness; (2) financial

exigency; (3) changes in educational program; or (4) adequate cause, which would

include factors such as incompetence, gross violation of policy, or failure to follow

professional canons. Id. at 71-72. The basis upon which the College relied for Prescott’s

termination was changes in educational program, specifically a reduction in the Music

and Theatre Department classes and faculty and an elimination of the instrumental music




                                           12
major.6 In her deposition, then-President Dottie King explained the reason for Prescott’s

termination as follows:

       The college decided that . . . for economic reasons and for enrollment
       reasons and after . . . years of not only studying this issue, but putting forth
       extra effort could no longer support the instrumental music program in the
       Department of Music for several reasons. We were unable to recruit
       enough students to make that program sustainable, so it was a financial
       decision to eliminate that program.

Id. at 309-10. Here, Prescott does not appear to challenge the fact that there were

reductions in the Music and Theatre Department staff and classes or that legitimate

reasons supported those decisions. Indeed, in as early as 2005, there was an advisement

circulated that the music program was being reduced. Thereafter, the College’s President

Behr formed the PAC to study, evaluate, and recommend cost-saving measures through

the College’s programs.        Prescott served on the PAC that issued a report in 2008

recommending, among other things, the elimination of the instrumental music major, as

well as other cutbacks. In 2012, VPAA Clark advised Prescott that due to the reduction

in the music program enrollment, that the 2012-13 academic year might be the final year

that his services would be needed. The relevant provision in the Handbook states that if a

tenured faculty member is terminated for changes in the educational program,

       First, the tenured faculty member shall be offered a teaching position in
       another department in an academic area in which the person is
       professionally competent. Secondly, the tenured faculty member shall be
       offered a position, if available, on the administrative staff commensurate
       with the individual’s expertise and experience. Thirdly, the tenured faculty
       member, having refused to accept either of the above offers, shall be
       terminated, but shall retain the right to be rehired if the position eliminated
       6
         While students may still graduate with a music major from the College, having an instrumental
core has been eliminated from the music program, and now the major must be in either voice or piano.
Appellant’s App. at 277.

                                                 13
       is restored within two academic years of the termination.

Id. at 71. The crux of Prescott’s argument is that the College did not offer alternate

faculty or administrative positions to him before terminating him. The College maintains

that it was not obligated to offer any and all positions to Prescott; rather, its obligation

extended only to those positions for which Prescott was professionally qualified,

commensurate with his expertise and experience.

       The designated evidence in the record before us reveals that, on or near May 6,

2013, Prescott met with Department Chair Richardson and VPAA Clark. Prescott and

Richardson presented a Faculty Teaching Load Projection (“FTLP”) to Clark that would

allow Prescott to maintain the necessary twenty-four-hour course load; the FTLP

included the proposal that Prescott teach two General Studies courses at the College.

Clark testified that Assistant Dean Jackie Fischer determined that Prescott was not

qualified to teach those classes, and thus, they were not offered to him.           Prescott

acknowledged in his deposition that, although he did not personally agree with that

determination, reasonable minds could differ as to whether he was qualified to teach

those classes and that Clark’s decision was a professional one, not motivated by ill will.

       Even taking those classes out of the equation, Clark argues that the College

continued to offer all of the other courses that he had been teaching, such as clarinet and

flute lessons, music history courses, aural skills courses, and music for living, and he

asserts that the College even hired outside adjunct faculty to teach the classes,

designating classified advertisements and other postings to illustrate the teaching

openings. Clark testified that while some classes were still being offered, some were not

                                            14
expected to “make” enrollment and others such as woodwinds and clarinet were

eliminated. Appellee’s App. at 298. Clark further testified that the classes still being

taught did not constitute a full course load, as is necessary for a tenured professor. Id. at

212. When Prescott was asked if the classes still being taught would total the necessary

twenty-four-hour course load, Prescott admitted that he had “no idea.” Id. at 140. Clark

conceded that the College found it necessary to seek outside adjunct teachers, but

testified that the College first “offered [Prescott] those hours to teach” as a part-time

adjunct position, and because he declined, the College hired outside staff to teach the

classes. Id. at 211. During Prescott’s deposition, counsel for the College asked him, “Is

there a teaching position for classes that you are able to teach and competent to teach in

the area of your expertise that you believe had not been offered to you at the [C]ollege

that would provide you with a full-time position?” and Prescott replied, “I don’t know

what’s offered or the enrollment or anything.” Id. at 146.

       Turning to any alternate administrative position, the College maintains that, as

with the faculty positions, the College was only required to offer him positions if he was

professionally qualified for them. Initially, we observe that Prescott testified that he was

not interested in any full-time administrative positions and did not apply for any, as he

desired to continue teaching. Id. at 137. There is some suggestion that Prescott was

interesting in assuming the Department Chair position; however, not only was that

currently occupied by a tenured professor (Richardson), but Prescott previously had held

that administrative position for a one-year post and had received unfavorable peer

reviews; accordingly, the College determined the position was neither available nor

                                             15
suitable for Prescott.      That one-year Department Chair position was the only

administrative job that Prescott had ever held, both at the College and before his

employment there. Id. at 123-24.

       Three other possible part-time administrative positions that Prescott designated to

the trial court as being available but not offered to him by the College were that of

Registrar, Assistant Director of Campus Admissions, and Assistant Director of Distance

Admissions. Clark testified that the College was a small school and the position of

Registrar was an important position, which the College needed to fill with someone that

knew how to do it, and Prescott did not possess that experience or knowledge. Similarly,

Clark stated that Prescott had no experience with Distance Admissions, having

participated little, if any, in the distance recruiting process. Clark likewise testified that

she did not consider Prescott to be qualified to assume the Assistant Director of

Admissions role, as the only experience he had at the College, or even before his time

there, was the Department Chair position, for which he did not receive favorable reviews.

Upon examination, Prescott was asked, “[W]hat expertise or experience do you believe

you have that would qualify you for an administrative position that was overlooked that

was not properly evaluated?” Prescott replied, “I don’t know.” Id. at 145- 46. Prescott

did not identify any other specific administrative positions for which he was qualified

that the College failed to offer him as alternate employment. While Prescott argues that

the College’s position that it had no work for him was “untrue and factually disputed,” he

has not established that a genuine issue of material fact exists to preclude summary

judgment for the College. Appellant’s Br. at 17. The trial court’s grant of summary

                                             16
judgment in favor of the College was proper.7

                 IV.    Prescott’s Partial Motion for Summary Judgment

       We next address whether the trial court properly denied Prescott’s partial motion

for summary judgment. He asks this court to reverse the summary judgment entered in

favor of the College, enter summary judgment in his favor, and remand for a trial on

damages. We note that the fact that the parties have filed cross-motions for summary

judgment does not alter our standard of review, as we consider each motion separately to

determine whether the moving party is entitled to judgment as a matter of law. Reed, 980

N.E.2d at 285.

       Prescott asserts he was entitled to summary judgment on his breach of contract

claim on either of two theories. First, he argues that we should look no further than the

Contract, i.e. the annual academic-year faculty appointment and not the Handbook, and

under that Contract, his employment was for a definite term. In such a case, where one is

employed for a definite term, as opposed to being an employee at-will, Indiana law

provides that the employer may terminate that individual only for “just cause” or when

the termination is by mutual agreement. See Orr, 689 N.E. at 717. In this case, it is

undisputed that Prescott was not terminated for “just cause” or by mutual agreement;

therefore, Prescott argues, the College breached the Contract.

       We agree with Prescott to the extent that, as a tenured professor, he was not an at-


       7
          Because we find that summary judgment for the College was proper on the basis that it
terminated Prescott due to changes in the College’s music program and that it assessed any available
teaching and administrative positions before terminating him, we need not consider the College’s other
claimed basis for summary judgment concerning Prescott’s decision not to file an internal grievance via
procedures outlined in the Handbook.

                                                  17
will employee; he had a Contract with the College. However, the trial court was not

persuaded that the terms of the Handbook, including those relative to termination of a

tenured employee, were inapplicable and should be excluded from consideration, nor are

we. The Contract references the Handbook a number of times, including in the title of

the document. More importantly, Prescott alleged throughout his complaint and amended

complaint that the Handbook is incorporated into his contracts with the College and that

the College breached the contract by failing and refusing to offer him alternative faculty

or administrative positions at the College before it terminated him. Prescott has failed to

establish that he is entitled to judgment as a matter of law on his breach of contract claim

because the College did not terminate him for “just cause” or by mutual agreement.

       Prescott alternatively argues that, even if it would be appropriate to consider

extrinsic evidence such as the Handbook, the College failed to offer him other faculty or

administrative position(s) at the College before terminating him, as required by the

Handbook, and the College thereby breached its Contract with him.

       Prescott asserts that the College continued to offer courses that he had taught and

that, in fact, the College was hiring outside teaching staff to cover those classes. In

support of his argument, Prescott designated some advertisements and internal emails to

illustrate the College’s attempts to find adjunct faculty to teach classes, including aural

skills classes, conducting, music history II, and music for living, although the email noted

the concern that the music for living class “may not make.” Appellant’s App. at 141, 275.

Other classes mentioned in the emails were a flute instruction class with one student, and

a clarinet instruction class with two students. Id. at 137. Prescott also designated

                                            18
evidence that, in addition to seeking adjunct teachers, some of the professors in the Music

and Theatre Department were on “overload” status. Id. at 182. In her deposition, Clark

explained that “some” of the courses that Prescott had taught were still being offered in

the 2013-14 school year, but that “[t]hese courses do not come up to a full load.” Id. at

176, 191. She further explained that adjunct faculty was hired to teach the classes

because Prescott declined the offer to do so.

       With regard to administrative jobs, Prescott asserts that a number of administrative

jobs opened up and the College did not offer them to him nor did he refuse them;

accordingly, he argues, the College breached its Contract when it terminated him. The

College, in turn, designated evidence that Prescott did not want and would not apply for a

full-time administrative position, and as for the part-time administrative positions

proposed by Prescott, Clark testified that she considered him for “all [positions] that she

saw,” but the College ultimately determined he was not qualified and thus did not

“directly” offer any to him. Id. at 195, 250.

       To be granted summary judgment, Prescott needed to establish that no genuine

issue of material fact existed on his claim that the College failed to offer him alternate

employment as is outlined in the Handbook, which required the College to offer him

faculty or administrative jobs for which he was professionally competent or qualified

based on his expertise and experience. He has not designated evidence to establish as a

matter of law that the College did not do so. Accordingly, we find that the trial court’s

denial of Prescott’s summary judgment motion was proper. Affirmed.

BAKER, J., and ROBB, J., concur.

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