                                 SUPERIOR COURT
                                       OF THE
                                STATE OF DELAWARE

ABIGAIL M. LEGROW                                    LEONARD L. WILLIAMS JUSTICE CENTER
             JUDGE                                   500 N. KING STREET, SUITE 10400
                                                     WILMINGTON, DELAWARE 19801
                                                     TELEPHONE (302) 255-0669


                                 February 28, 2017

Gary W. Aber, Esquire                        James D. Taylor, Jr., Esquire
Gary W. Aber, P.A.                           Gerard M. Clodomir, Esquire
704 King Street, Suite 600                   Saul Ewing LLP
P.O. Box 1675                                1201 N. Market Street, Suite 2300
Wilmington, DE 19801                         Wilmington, DE 19801


      RE: Al-Sameen T. Khan, Ph.D. v. Delaware State University
          C.A. No.: N14C-05-148 AML____________________

Dear Counsel:

      This dispute, scheduled for trial in April, has been simmering for three years.

After initially bringing his claims in arbitration, the plaintiff, Al-Sameen T. Khan,

Ph.D. (“Dr. Khan), filed this action against his former employer, Defendant

Delaware State University (“DSU”), and the dean of the college in which he

worked, Defendant Noureddine Melikechi (“Dean Melikechi,” collectively with

DSU, “Defendants”). Among other things, Dr. Khan claimed his suspension and

discharge violated a collective bargaining agreement between DSU and its

professors. DSU filed a counterclaim alleging Dr. Khan acted in bad-faith by

withdrawing from arbitration.
Khan v. Del. State Univ.
February 28, 2017
Page 2

       In September 2015, Dr. Khan moved for summary judgment as to his breach

of contract claims and DSU’s bad-faith counterclaim, and DSU filed a summary

judgment motion as to Dr. Khan’s age discrimination and tortious interference

claims. On June 24, 2016, this Court issued a decision: (1) granting Dr. Khan’s

motion as to DSU’s counterclaim, (2) denying summary judgment as to all other

counts, and (3) calling for supplemental briefing to address whether a crucial term

in the agreement is ambiguous (the “June Decision”).1 I now turn to that question:

is the term “professional responsibilities” ambiguous as it is used in the collective

bargaining agreement?

Background

       The factual background of this dispute is discussed extensively in the June

Decision.2 To briefly summarize, Dr. Khan was a tenured professor in the College

of Mathematics, Natural Sciences & Technology (“CMNST”) at DSU. Dr. Khan’s

employment as a professor was governed by a collective bargaining agreement (the

“CBA”).3      In addition to a faculty position, Dr. Khan also was the CMNST

Director of IT, which was a supplemental paid position. After a dispute with Dean

Melikechi, who was the dean of CMNST, Dr. Khan resigned from his role as IT


1
  Khan v. Del. State Univ., 2016 WL 3575524 (Del. Super. June 24, 2016).
2
  Id. at *1-8.
3
  The CBA was negotiated between the DSU Board of Trustees and the DSU chapter of the
American Association of University Professors.
Khan v. Del. State Univ.
February 28, 2017
Page 3

Director on March 12, 2012. On March 16, 2012, the IP network Dr. Khan

developed for CMNST crashed. Shortly thereafter, DSU suspended and ultimately

discharged Dr. Khan from his faculty position.       As the basis for Dr. Khan’s

discharge, DSU asserted Dr. Khan refused to carry out reasonable assignments that

contributed substantially to the network crash and failed to respond to reasonable

requests to provide information to restore the network.

       The parties agree that as a tenured professor Dr. Khan only could be

discharged under the terms of the CBA. DSU takes the position that Dr. Khan was

discharged under two sections of the CBA: (i) Section 10.4.3(A), which permits

discharge proceedings for the “[f]ailure to perform professional responsibilities

either through incompetence, persistent negligence, refusal to carry out reasonable

assignments, or disregard for or failure to meet scholarly and professional

standards and ethics[,]” and (ii) Section 10.4.3(E), which authorizes discharge for

“[s]erious personal misconduct of such a nature as to warrant and evoke the

condemnation of the academic community.”

       In September 2015, Dr. Khan moved for summary judgment as to his breach

of contract claims and DSU’s bad-faith counterclaim. Dr. Khan argued he was

entitled to summary judgment on his contract claims because, under the CBA,

DSU lacked just cause to terminate him since the charges brought against him did

not relate to his performance of “professional responsibilities” as that term is used
Khan v. Del. State Univ.
February 28, 2017
Page 4

in the CBA.        In that motion, Dr. Khan contended the term “professional

responsibilities” meant “Academic Load,” a term defined elsewhere in the CBA.

DSU did not squarely address that argument in its briefs, but appeared to contend

that “professional responsibilities” should be interpreted more broadly than

“Academic Load.”4

       Through briefing and oral argument, it became apparent to the Court that the

parties disagreed over the meaning of the term “professional responsibilities,” but

it remained unclear “whether the parties contend[ed] the use of the term

‘professional responsibilities’ in the CBA is ambiguous.”5 Accordingly, in the

June Decision, the Court called for simultaneous supplemental briefing on the

narrow issue of whether “professional responsibilities” is an ambiguous term. The

parties submitted such briefing, and additional oral argument was held on

November 30, 2016.

The Parties’ Contentions

       In the supplemental briefing, Dr. Khan abandoned his contention that

“professional responsibilities” is synonymous with “Academic Load,” and now

contends that the CBA unambiguously defines the term “professional

4
  Khan v. Del. State Univ., 2016 WL 3575524, at *9 (“Plaintiff strongly contends that the term
‘professional responsibilities’ means ‘Academic Load,’ and . . . . [a]lthough the issue is not
expressly addressed in its briefs, DSU appears to contend that ‘professional responsibilities’
should be interpreted more broadly than ‘Academic Load.’”)
5
  Id.
Khan v. Del. State Univ.
February 28, 2017
Page 5

responsibilities” in Section 12.3. Section 12.3, titled “Faculty Responsibilities and

Obligations,” states:

       [T]he Association and the University agree that accepting and
       assuming a faculty position at Delaware State University entails the
       following professional responsibilities and obligations:

          A. To demonstrate and maintain professional competence
             and knowledge of subject matter and strive to keep
             informed of contemporary developments in the field of
             specialization through reading and research, or other
             means of expression appropriate to the discipline.
          B. To meet each class as scheduled.
          C. To aspire to excellence in teaching by conducting each
             class according to the highest professional standards.
          D. To distribute policies concerning attendance, course
             requirements, and criteria for grading to each student at
             the beginning of each semester.
          E. To represent to students during the term and within a
             reasonable time evaluations of their academic
             performance and progress in the class.
          F. To be available to students on a regular basis for advising
             and counseling on matters regarding their academic
             performance and progress in class.
          G. To treat all students fairly, impartially, and with
             understanding.
          H. To improve, update, enrich, and revise courses
             periodically to keep them current.
          I. To maintain adherence to course descriptions in
             accordance with the syllabus and the University Catalog.
          J. To be available on a regular basis to students who have
             been identified as advisees on matters pertaining to the
             students’ program of study.
Khan v. Del. State Univ.
February 28, 2017
Page 6

          K. To accept willingly a fair share of Departmental and
             University duties.
          L. To accept willingly a fair share of committee
             assignments and to serve conscientiously as a member of
             committees appointed or elected to and fulfill the specific
             duties of any chair or office accepted.
          M. To adhere to deadlines and schedules established for the
             timely reporting of grades and for other matters related to
             student registration and record-keeping.6

       Dr. Khan asserts that the items enumerated in Section 12.3 completely

encompass the “professional responsibilities” of a tenured faculty member. 7 Dr.

Khan argues that, under the principle of expressio unius est exclusio alterius, the

enumeration of this list, without any statement that other professional

responsibilities are assumed as a result of accepting a faculty position at DSU,

leads to the inference that any professional responsibilities other than those listed

are excluded.8 Dr. Khan contends the Court must give effect to the specific list

chosen and bargained for by the parties, which the parties were unwilling to leave

for later interpretation.9

       In response, Defendants continue to dodge any attempt to define

“professional responsibilities,” arguing instead that: “The CBA does not limit

discipline to ‘academic responsibilities’ or to ‘those duties defined and described in
6
  CBA § 12.3 (emphasis added).
7
  Pl.’s Answering Br. 5.
8
  Id. at 6.
9
  Id.
Khan v. Del. State Univ.
February 28, 2017
Page 7

the CBA.’”10 According to Defendants, the term “professional responsibilities” is

“broad” and “undefined.”11 Defendants contend the CBA “uses the intentionally

broad phrase ‘professional responsibilities’ to capture the full plethora of

obligations that a faculty member owes to the institution, regardless of their

source.”12    According to Defendants, “the task of articulating a comprehensive

definition of this term is daunting and it is not surprising that the parties left the

application of [the] term to the future, when the context would be a helpful

guide.”13 In other words, DSU argues, the term is “broadly written and undefined

for a reason – precisely so that the parties did not have to anticipate every scenario

where a faculty member owed a responsibility to his or her institution.”14

       Defendants therefore contend the term is ambiguous and will need to be

defined by the jury through testimony and parol evidence.15 Defendants argue they

will demonstrate at trial that the term encompasses all of the obligations Dr. Khan

owed to DSU, including that on which his termination was based.16 Defendants

point to a witness’s deposition testimony to support the argument that the term




10
   Defs.’ Opening Suppl. Br. Opp. Pl.’s Mot. Summ. J. Br. 6.
11
   Id. at. 5, 7; Defs.’ Reply Br. 5.
12
   Defs.’ Opening Suppl. Br. Opp. Pl.’s Mot. Summ. J. Br. 6.
13
   Id. at 7.
14
   Defs.’ Reply Br. 6.
15
   Defs.’ Opening Suppl. Br. Opp. Pl.’s Mot. Summ. J. Br. 2.
16
   Id. at 7.
Khan v. Del. State Univ.
February 28, 2017
Page 8

“professional responsibilities” has a broader meaning than Dr. Khan’s proffered

definition.17

       Finally, Defendants argue that, no matter how the term “professional

responsibilities” is defined, material factual disputes remain regarding Dr. Khan’s

conduct before his discharge, and these disputes preclude summary judgment.

Defendants aver that the question of whether Dr. Khan’s conduct amounted to a

failure to perform his professional responsibilities is a question for the jury.18

Analysis

       The proper construction of a contract, such as a collective bargaining

agreement, is a question of law for the Court.19 When interpreting a contract, the

Court gives priority to the parties’ intentions as reflected in the four corners of the

contract.20     In upholding the parties’ intentions, the Court must construe the

contract “as a whole, giving effect to all provisions therein.”21                   Clear and




17
   Id. at 6. Defendants acknowledge, however, that the Court must determine whether ambiguity
exists based solely on the contract and only may consider parol evidence if the Court first
concludes the contract is ambiguous.
18
   Defs.’s Resp. Br. 6.
19
   Rhone-Poulenc Basic Chems. Co. v. Am. Motorists Ins. Co., 616 A.2d 1192, 1195 (Del. 1992).
20
    Paul v. Deloitte & Touche, LLP, 974 A.2d 140, 145 (Del. 2009) (citing E.I. du Pont de
Nemours & Co. v. Shell Oil Co., 498 A.2d 1108, 1114 (Del. 1985) (citing Radio Corp. of Am. v.
Phila. Storage Battery Co., 6 A.2d 329 (Del. 1939)); Nw. Nat'l Ins. Co. v. Esmark, Inc., 672 A.2d
41, 43 (Del. 1996)).
21
   GMG Capital Invs. v. Athenian Venture P’rs I, L.P., 36 A.3d 776, 779 (Del. 2012) (citing E.I.
du Pont de Nemours & Co., 498 A.2d at 1113).
Khan v. Del. State Univ.
February 28, 2017
Page 9

unambiguous language will be given its ordinary meaning.22                    A contract is

ambiguous when a provision is susceptible to more than one interpretation,23 and

not “simply because the parties do not agree upon its proper construction.” 24 If the

contract is ambiguous, “the resolution of the ambiguity becomes a trial issue for

the jury,”25 which may consider extrinsic evidence to construe the contract or

determine the parties’ intent.26

A. The CBA is not ambiguous.

       Dr. Khan contends his contractual “professional responsibilities” are limited

to the list of responsibilities contained in Section 12.3 of the CBA. Defendants

argue “professional responsibilities” include every duty reasonably assigned to a

faculty member. The initial question before me is whether the term “professional

responsibilities” fairly is susceptible to two different interpretations. I agree with

Dr. Khan that it is not.



22
   Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1159-60 (Del. 2010) (citing Rhone-Poulenc
Basic Chems. Co., 616 A.2d at 1195); GMG Capital Investments v. Athenian Venture Partners I,
L.P., 36 A.3d 776, 780 (Del. 2012).
23
   GMG Capital Invs., 36 A.3d at 780 (citing Eagle Indus., Inc. v. DeVilbiss Health Care, Inc.,
702 A.2d 1228, 1232 (Del. 1997) (An ambiguity exists where “the provisions in controversy are
fairly susceptible of different interpretations or may have two or more different meanings.”)).
24
   GMG Capital Invs., 36 A.3d at 780 (quoting Rhone-Poulenc Basic Chems. Co., 616 A.2d at
1196).
25
   GMG Capital Invs., 36 A.3d 776, 783 (citing Eagle Indus., Inc., 702 A.2d at 1232; Lawrence
M. Solan, Pernicious Ambiguity in Contracts & Statutes, 79 Chi-Kent L.Rev. 859, 862 (2004);
United Rentals, Inc. v. RAM Hldgs., Inc., 937 A.2d 810, 841-42 (Del. Ch. 2007)).
26
   Norton v. K-Sea Transp. P’rs L.P., 67 A.3d 354, 360 (Del. 2013).
Khan v. Del. State Univ.
February 28, 2017
Page 10

       In my view, which DSU does not dispute directly, Dr. Khan’s interpretation

of the term is reasonable. First, the structure of the CBA supports the conclusion

that “professional responsibilities” is a defined term. Before disciplining a tenured

faculty member, Section 10.4.2 requires there be substantiated charges directly and

substantially related to the fitness of the faculty member to perform professional

responsibilities. Similarly, Section 10.4.3(A) states that discharge proceedings

may be instituted for the “[f]ailure to perform professional responsibilities either

through incompetence, persistent negligence, refusal to carry out reasonable

assignments, or disregard for or failure to meet scholarly and professional

standards and ethics.”      It is reasonable to conclude the parties would have

negotiated a list of responsibilities for which one could be disciplined and

ultimately discharged. Section 12.3 provides just such a list.

       In contrast, the definition (or, more accurately, the contention that there is no

definition) offered by Defendants is not a reasonable interpretation of the CBA.

Defendants seek to avoid the plain language of Section 12.3 by arguing it merely

lists examples of professional responsibilities, but is not an exhaustive list. Even if

the Court were to ignore the plain and unambiguous reading of Section 12.3, which

is devoid of any language to suggest an exemplary rather than exhaustive list of

terms, the other provisions of the contract make Defendants’ interpretation

untenable. When interpreting contracts, this Court construes the contract as a
Khan v. Del. State Univ.
February 28, 2017
Page 11

whole,27 “gives meaning to every word in the agreement[,] and avoids

interpretations that would result in ‘superfluous verbiage.’” 28               If the parties

intended Section 12.3 to be exemplary, one would expect to find language similar

to what is found in Section 12.3.2, which states: “The Association and the

University agree that accepting and assuming the responsibility of a Department

includes but is not necessarily limited to the following professional responsibilities

and obligations[.]”29 The use of “including but not limited to” language is a tool

commonly employed by contract drafters to avoid the application of the expressio

unius est exclusio alterius rule. Not only was the phrase not used in Section 12.3,

it was employed by the drafters for other, similar lists, including lists of the

professional responsibilities of non-faculty members covered by the CBA. If that

exemplary language were to be read into Section 12.3, as Defendants suggest, then

the language that is present in other sections of the CBA would be rendered

“superfluous verbiage,” a result this Court aims to avoid.

       Furthermore, Defendants’ interpretation of “professional responsibilities” is

unreasonably broad, swallowing every conceivable duty a faculty member could or

should owe to DSU. That breadth and uncertainty is not consistent with the CBA’s
27
   GMG Capital Invs., 36 A.3d at 779 (citing E.I. du Pont de Nemours & Co., 498 A.2d at 1113).
28
   Seidensticker v. Gasparilla Inn, Inc., 2007 WL 4054473, at *3 (Del. Ch. Nov. 8, 2007) (citing
NAMA Hldgs., LLC v. World Mkt. Ctr. Venture, LLC, 2007 WL 2088851, at*6 (Del. Ch. July 20,
2007)).
29
   CBA § 12.3.2 (emphasis added); see also CBA § 10.5.6(9)(C): “Other specific measures taken
may include, but not be limited to, each of the following . . . .”
Khan v. Del. State Univ.
February 28, 2017
Page 12

purpose or the principles of tenure as a whole. It is unreasonable to conclude that

those negotiating the contract on the faculty members’ behalf would have left to

future “contextual” interpretation the scope of the responsibilities for which they

could be subjected to discipline.             Accordingly, DSU has not shown the term

“professional responsibilities,” as it is used in the CBA, is susceptible to two

different meanings.

B. Dr. Khan’s Motion for Summary Judgment is denied.

          Although the Court finds no ambiguity in the contested provision and agrees

with Dr. Khan’s reading of Section 12.3, summary judgment as to Dr. Khan’s

contract claims is not appropriate. A factual question remains as to whether DSU’s

evidence amounts to a failure by Dr. Khan to perform his professional

responsibilities as defined in Section 12.3. For example, a jury reasonably might

conclude Dr. Khan’s conduct in response to requests by DSU, including the

Provost of the University, was a failure “[t]o accept willingly a fair share of

Departmental and University duties,”30 or was “serious personal misconduct”

under Section 10.4.3(E). That question likely will turn on an evaluation of the

testimony and credibility of the witnesses, which is not this Court’s function on a

motion for summary judgment.



30
     CBA § 12.3(K); see CBA § 10.4.3(A): “Failure to perform professional responsibilities . . . .”
Khan v. Del. State Univ.
February 28, 2017
Page 13

Conclusion

       For the foregoing reasons, Dr. Khan’s Motion for Summary Judgment as to

Counts I and II is DENIED. IT IS SO ORDERED.



                                          Very truly yours,

                                           /s/ Abigail M. LeGrow
                                          Abigail M. LeGrow, Judge



Original to Prothonotary
