             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                          FILED
                                                            March 9, 1999
STEVEN MEREDITH GARMON,                  )
                                         )                Cecil Crowson, Jr.
       Plaintiff/Appellant,              )               Appellate Court Clerk
                                         )   Appeal No.
                                         )   01-A-01-9803-CH-00132
VS.                                      )
                                         )   Davidson Chancery
                                         )   No. 96-1749-I
FISK UNIVERSITY,                         )
HENRY PONDER, PRESIDENT,                 )
REAVIS L. MITCHELL, DEAN OF              )
ACADEMIC AFFAIRS,                        )
                                         )
       Defendants/Appellees.             )


      APPEALED FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                     AT NASHVILLE, TENNESSEE

          THE HONORABLE IRVIN H. KILCREASE, JR., CHANCELLOR




KENT M. WEEKS
2021 Richard Jones Road, Suite 350
Nashville, Tennessee 37215
      Attorney for Plaintiff/Appellant

SUZETTE PEYTON
5317 Ashlawn Drive
Nashville, Tennessee 37211

RICHARD MANSON
1314 Fifth Avenue North, Suite 300
Nashville, Tennessee 37208
      Attorneys for Defendants/Appellees



                    AFFIRMED IN PART; REVERSED IN PART;
                               AND REMANDED



                                             BEN H. CANTRELL
                                             PRESIDING JUDGE, M.S.

CONCUR:
KOCH, J.
COTTRELL, J.
                                OPINION
                 A white college professor denied tenure sued his university employer for

breach of contract and racial discrimination. The Chancery Court of Davidson County

dismissed both claims. We reverse the judgment dismissing the contract claim and

affirm the ruling on the discrimination claim.



                                             I.

                 Meredith Garmon, a graduate of the University of Virginia with a doctor’s

degree in philosophy, was employed by Fisk University on a four year tenure track in

1992. The university renewed his contract in 1993 and 1994 for the academic years

that followed.



                 Tenure at Fisk is governed by the Faculty Handbook. In accordance

with the handbook, the dean of academic affairs notified Dr. Garmon on October 18,

1994 that his probationary period would expire at the end of the 1995-96 academic

year and that he needed to begin the year-long application process immediately. The

process included the preparation of a dossier by Dr. Garmon containing the

information set out in the handbook. Dr. Garmon delivered the dossier to the first

reviewing committee on February 14, 1995.



                 The faculty handbook says that consideration for tenure shall be based

on teaching, scholarship other than teaching, service, and institutional need. The

review process goes through several stages. The first stage is a review by the Search

and Review Committee composed of the division chairperson, two senior faculty

members, a junior faculty member, and a student.              The Search and Review

Committee makes a written recommendation to the Committee on Promotion and

Tenure, composed of five tenured full professors elected by the faculty.             That

committee makes a recommendation to the dean of academic affairs, who in turn

forwards the recommendations of the two committees, along with his own




                                            -2-
recommendation, to the president of the university. The president recommends

tenure to the board of trustees.



              Dr. Garmon’s application passed through the two committees with a

unanimous recommendation for tenure. The dean of academic affairs, however,

rejected the recommendation on the basis of institutional need. He stated that he

relied on the University Fact Book, which showed there were only three students

majoring in religious and philosophical studies, the department in which Dr. Garmon

was employed. Since that department already had one tenured professor, the dean

decided not to recommend tenure for another.



              The fact book showed that the department had never had more than

seven majors, and the average for the five years ending in 1994 was 4.6. In 1992,

when Dr. Garmon was hired on a tenure track, the number was five. In a letter

addressed to the dean on May 1, 1995, just four days before the dean rejected Dr.

Garmon’s application, the division head reported that the number of majors in the

department was ten.



              Before acting on Dr. Garmon’s request for tenure, the academic dean

requested some more information from the head of the division of Humanities and

Fine Arts. The head of the division responded one day before the dean had to make

his recommendation to the president. The letter reported that Dr. Garmon was

teaching less than a full load and that the projected teaching load for the fall semester

was the same. Dr. Garmon was not given the chance to refute that evidence and the

evidence at the trial showed that he had taught a full load every semester. The

university president relied solely on the negative recommendation of the academic

dean in making his recommendation to the board of trustees.




                                          -3-
              After learning that his request for tenure had been turned down, Dr.

Garmon requested reconsideration. He also filed a grievance with the University

Grievance Committee as provided in the faculty handbook. The dean stopped any

reconsideration when Dr. Garmon filed the grievance, and he ignored the

recommendation of the grievance committee that Dr. Garmon’s application be re-

evaluated. Dr. Garmon taught one more year at Fisk and left when the university

failed to renew his contract.



                                          II.

                                 Breach of Contract

              Tenure in most public institutions of higher learning is governed by

statute, see e.g. Tenn. Code Ann. § 49-8-301, et seq. The tenure rights of teachers

at private institutions, however, are governed by contract, Sawyer v. Mercer, 594

S.W.2d 696 (Tenn. 1980), and since the contracts vary from one institution to another,

tenure rights have to be decided on a case by case basis.



              In this case the contract with Dr. Garmon began with an offer on June

19, 1992 when the then dean of academic affairs wrote to him as follows:

                     I am delighted at your decision to join the Fisk
              faculty. This letter is to summarize the terms of your
              appointment as approved by President Ponder and
              conveyed in our recent discussions.

                       You are to be appointed Assistant Professor of
              Philosophy, effective August 19, 1992. Your assignment
              will include teaching duties in the Department of Religious
              and Philosophical Studies, and you are also appointed to
              the core Faculty. Depending on institution need as
              determined in my office each term, it is anticipated that
              your teaching assignment will normally include one or
              more courses in the University’s Core Curriculum.

                     Your initial salary is to be $28,000 for the academic
              year (August 19 through May 31), plus normal University
              benefits. This is a probationary (i.e. tenure track)
              appointment. Assigned probationary period is four years,
              ending in 1995-96. Under our policies, a four-year
              probationary appointment calls for a University decision
              regarding award of tenure to be rendered prior to the end


                                         -4-
             of your third year’s employment (i.e. by May 31, 1995),
             presuming that you and we mutually agree to annual
             contract renewals to carry you to that date.

                     If the foregoing terms are acceptable to you, you
             may so indicate by signing in the space provided below,
             returning one copy of this letter to my office and retaining
             the other for your own records. I will then ask the
             Business Office to prepare your formal faculty contract for
             the President’s signature. This appointment letter must,
             however, be signed and received in my office no later
             than June 30, 1992; after that date the appointment can
             no longer be guaranteed, and Fisk must reserve the right
             to offer this position to another candidate.



             Obviously Dr. Garmon accepted the proposal, and he began teaching

in the fall of 1992. The parties agree that the faculty handbook contains the factors

the university considers for tenure. It also outlines the procedure:

              2.     An evaluation for promotion and tenure
              consideration is more searching and thorough than the
              routine yearly evaluation which all faculty undergo. This
              is accomplished through the role of two committees - the
              divisional Search and Review Committee and the
              Committee on Promotion and Tenure. The Committee on
              Promotion and Tenure is a five-person committee
              composed of tenured full professors who are elected to
              the committee by the Faculty Assembly. The purpose of
              the Committee on Promotion and Tenure is to make
              recommendations of promotion and tenure to the dean.

              3.    The procedure followed during an evaluation for
              promotion and tenure is as follows:

              a.     The divisional Search and Review Committee
                     arrives at a divisional decision.

              b.     The division director writes a letter to the dean of
                     academic affairs and to the Committee on
                     Promotion and Tenure, communicating the
                     divisional decision and summarizing the evidence
                     supporting it; this letter should indicate any
                     divergence of opinion within the Search and
                     Review Committee, and should be signed by each
                     member of that committee.

              c.     The Committee on Promotion and Tenure will
                     study the recommendations of the Search and
                     Review Committees.       Cases in which the
                     Committee on promotion and Tenure feels an
                     inadequate review has been made will be referred
                     back to the Search and Review Committee for
                     further work. If the Promotion and Tenure
                     committee decides to make a recommendation to

                                         -5-
                    the dean which differs from that of the Search and
                    Review Committee, the Promotion and Tenure
                    committee will initiate a meeting with the Search
                    and Review Committee to discuss these
                    differences before final decision on what
                    recommendation to pass on to the dean. This
                    recommendation is to reflect any difference
                    between the Promotion and Tenure Committee
                    and the Search and Review committee.

              d.    The Committee on promotion and Tenure will
                    make its recommendation to the dean, who in turn
                    makes a recommendation to the president for
                    action.



              As we have indicated, Dr. Garmon’s request for tenure was rejected

solely on the basis of institutional need. With respect to that factor the handbook

says:

              4.     Institutional need refers to the requirement that
              the institution operate an educational program consistent
              with its statement of purpose and within its financial
              resources.



              How does this vague provision apply to a tenure candidate who has met

all the other requirements? In Chapdelaine v. Torrence, 532 S.W.2d 542 (Tenn.

1975), a tenured teacher (under a statutory scheme) was discharged, and the

university defended on the ground that its budgetary limitations required a reduction

in force. The Supreme Court recognized that economic necessity could justify

dismissing tenured teachers but that “the burden was on the [university] to show that

their actions were fair and conformed to the tone and tenor of the tenure laws.” 532

S.W.2d at 549. In this case we think the same rule applies to the denial of tenure on

the basis of “institutional need.” The university has the burden of showing by

competent proof how the institutional need has changed since Dr. Garmon was hired

on a tenure track. Otherwise, after three years of pursuing tenure according to the

published criteria, the tenure candidate is at the mercy of the academic dean or the

president. The “tone and tenor” of the contract in this case does not allow such

arbitrary action.


                                        -6-
             The only proof in this record of the institutional need shows that there

have been no significant changes since Dr. Garmon was hired in 1992. The record

does not indicate that the university was in a financial crisis -- or even how tenure

would affect the university’s financial health. The record is inconclusive on the

number of majors in Dr. Garmon’s department -- the one statistic the academic dean

says he relied on. From the evidence, one could conclude that the department had

from three to ten majors at the time of the decision to deny tenure. At the time Dr.

Garmon was hired the number was apparently five. The witnesses all testified that

it was nearly impossible to pin down the number of majors in a department at any

particular time. Students tend to change majors often, and the university’s records

were always slow in catching up.



             But we should also recognize that Dr. Garmon was hired to teach the

core curriculum also. There is no proof concerning the needs of the school as a

whole.



             Were this a question of Dr. Garmon’s qualifications we would be very

careful not to second guess the teaching professionals. “Determinations about such

matters as teaching ability, research scholarship, and professional stature are

subjective, and unless they can be shown to have been used as the mechanism to

obscure discrimination, they must be left for evaluation by the professionals . . . .”

Kunda v. Muhlenberg College, 621 F.2d 532 at 548 (3rd Cir. 1980).



             We conclude that the university failed to show a valid reason for denying

tenure to Dr. Garmon.



                                         III.

                               Race Discrimination




                                        -7-
              Dr. Garmon also sued for a violation of the Tennessee Human Rights

Act, Tenn. Code Ann. § 4-21-101, et seq. and the federal Civil Rights Act, 42 USC §

1981, et seq. He alleged that he was denied tenure because of his race. After

hearing the proof, the trial judge found that the evidence preponderated against a

finding of racial discrimination and in favor of a finding that the denial was grounded

on institutional need. That finding is presumed to be correct. Rule 13(d), Tenn. R.

App. Proc.



              Dr. Garmon cites the various tests to determine whether a prima facie

case of discrimination has been made out and the burden shifting rules applied in

discrimination cases. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973);

Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), and our

cases of Mangrum v. Wal-Mart Stores, Inc., 950 S.W.2d 33 (Tenn. App. 1997) and

Brenner v. Textron Aerostructures, 874 S.W.2d 579 (Tenn. App. 1993). But we are

beyond the summary judgment stage; we are at the point of deciding whether Dr.

Garmon carried his burden of showing that the reason he was denied tenure was in

fact racial discrimination.



              Dr. Garmon points to several factors that tend to support his claim: that

eighty-seven percent of the tenure awards in the period of 1989-1995 went to African-

Americans; that the only person granted tenure in 1995 was an African-American

male who had been denied tenure earlier and had less than unanimous support in the

reviewing committees; that two white applicants with better credentials (himself

included) were denied tenure in 1995; that the previous academic dean testified that

he and the president of the university routinely discussed race as a factor in making

promotion and tenure decisions.




                                         -8-
              The president and the current academic dean both denied making race-

based decisions in hiring and tenure, and we should point out that one of the

applicants denied tenure in 1995 was an African American woman.



              With the testimony in conflict, the trial judge’s finding necessarily

involved a determination of the academic dean’s credibility. That determination is

exclusively for the trial court, unless other real evidence compels a contrary

conclusion. State ex rel Balsinger v. Town of Madisonville, 435 S.W.2d 803 (Tenn.

1968).



              We do not find that the evidence in the record preponderates against the

trial judge’s conclusion that the decision to deny tenure to Dr. Garmon was based on

considerations other than race.



              Although we have found that institutional need was not proven to be a

valid reason to deny Dr. Garmon tenure, it does not follow as a matter of course that

race was the real reason.      Even if “the proferred reason was false does not

necessarily mean that the true motive was the illegal one argued by the plaintiff.”

Fisher v. Vassar College, 114 F.3d 1332 (2nd Cir. 1997). Each case must be

examined on its facts to determine where the preponderance lies. We are satisfied

that the trial judge made the proper finding.



                                          V.

                                    The Remedy

              A tenured teacher dismissed without compliance with the tenure laws

may be entitled to reinstatement, back pay, and “other damages.” Sanders v. Vinson,

558 S.W.2d 838 (Tenn. 1977). The denial of tenure for reasons violating Title VII of

the Civil Rights Act of 1964 as amended, may result in an award of back pay and

reinstatement along with other equitable relief. Kunda v. Muhlenberg College, 621


                                         -9-
F.2d 532 at 549 (3rd Cir. 1980). Title VII vests the courts with broad powers in order

to “make persons whole for injuries suffered on account of unlawful employment

discrimination.” Id. Under our decisions the remedies for a breach of an employment

contract may include reinstatement and damages for lost wages. Hooks v. Gibson,

842 S.W.2d 625 (Tenn. App. 1992).



              We think the only judgment that would make Dr. Garmon whole for the

university’s breach of contract is an order of reinstatement with back pay, and a fair

consideration of his application for tenure. We realize that four years have now

elapsed and conditions at the university may have changed dramatically, but he is

entitled to a good faith decision on his tenure application.



              The judgment of the court below is reversed in part, affirmed in part, and

remanded to the Chancery Court of Davidson County for the entry of a judgment for

back pay and for other proceedings in accordance with this opinion. Tax the costs on

appeal to the appellee university.




                                          _________________________________
                                          BEN H. CANTRELL,
                                          PRESIDING JUDGE, M.S.



CONCUR:




_____________________________
WILLIAM C. KOCH, JR., JUDGE




_____________________________
PATRICIA J. COTTRELL, JUDGE




                                        - 10 -
