MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                               FILED
court except for the purpose of establishing                        Jun 09 2017, 9:18 am
the defense of res judicata, collateral
                                                                        CLERK
estoppel, or the law of the case.                                   Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court



ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEES
Edward W. Hearn                                          Stephen R. Pennell
Johnson & Bell, P.C.                                     Stuart & Branigin LLP
Crown Point, Indiana                                     Lafayette, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Dana Dodson,                                             June 9, 2017
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         45A03-1611-CT-2703
        v.                                               Appeal from the Lake Superior
                                                         Court
Board of Trustees of Indiana                             The Honorable John M. Sedia,
University, d/b/a Indiana                                Judge
University and Indiana                                   Trial Court Cause No.
University Northwest; William                            45D01-1406-CT-139
J. Lowe, individually and in his
official capacity as Chancellor of
Indiana University Northwest; and
Michael A. McRobbie,
individually and in his official capacity
as President of Indiana University,
Appellees-Defendants.




Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CT-2703| June 9, 2017          Page 1 of 7
                                Case Summary and Issue
[1]   Dana Dodson appeals the trial court’s entry of summary judgment in favor of

      the Indiana University Board of Trustees; William Lowe, as Chancellor of

      Indiana University Northwest; and Michael McRobbie, as President of Indiana

      University (collectively, the “University”), in her action against the University

      alleging breach of contract and due process violations after her application for

      tenure with promotion was denied and her employment contract was not

      renewed. She raises eight issues on appeal, which we consolidate and restate as

      whether the trial court erred in entering judgment in favor of the University.

      Concluding the trial court did not err, we affirm.



                            Facts and Procedural History
[2]   In summer 2006, the University extended Dodson an Offer to Recommend

      Appointment at Indiana University Northwest (“Appointment Letter”). The

      Appointment Letter provided Dodson would serve as an assistant professor for

      a term of one school year beginning in August 2006 and ending in May 2007.

      The Appointment Letter further described Dodson’s appointment as “Tenure

      Probationary” with a probationary period beginning in August 2006 and ending

      in May 2013, meaning that if Dodson was successfully reappointed to her one-

      year term every year, she would be eligible to apply for tenure in the final year

      of the probationary period. Appellant’s Appendix, Volume II at 116. Before

      signing the Appointment Letter, Dodson reviewed the University’s Academic

      Handbook, which contained policies and procedures governing reappointment,

      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CT-2703| June 9, 2017   Page 2 of 7
      tenure, and promotion. The Handbook also included a Disclaimer clause

      stating, “Statements and policies in this Handbook do not create a contract and

      do not create any legal rights.” Id., Vol. III at 13 (emphasis omitted). On June

      27, 2016, Dodson signed the Appointment Letter and accepted her

      appointment.


[3]   Over the course of the next several years, the University offered to reappoint

      Dodson as an assistant professor for one-year terms and each year Dodson

      signed the Appointment Letter. In fall 2012, Dodson applied for tenure with

      promotion, the University formally reviewed Dodson, and on November 30,

      the All Campus Promotion and Tenure Committee informed Dodson it would

      not recommend she be granted tenure with promotion. However, Dodson was

      reappointed for a one-year term as an assistant professor for the 2013-14 school

      year consistent with previous years. At some point, Dodson unsuccessfully

      appealed the University’s decision to not grant her tenure with promotion. At

      the end of the 2013-14 school year, Dodson’s appointment expired and the

      University did not offer to renew her appointment.


[4]   On June 6, 2014, Dodson sued the University alleging breach of contract and

      due process violations. On September 18, 2015, the University moved for

      summary judgment, which the trial court granted. This appeal ensued.



                                 Discussion and Decision


      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CT-2703| June 9, 2017   Page 3 of 7
                                     I. Standard of Review
[5]   The party moving for summary judgment must “affirmatively negate an

      opponent’s claim” by demonstrating the designated evidence raises no genuine

      issue of material fact and it is entitled to judgment as a matter of law. Hughley v.

      State, 15 N.E.3d 1000, 1003 (Ind. 2014) (internal quotation marks and citation

      omitted); see also Ind. Trial Rule 56(C). Summary judgment is improper if the

      moving party fails to carry its burden, but if it succeeds, then the nonmoving

      party must come forward with evidence establishing the existence of a genuine

      issue of material fact in order to preclude summary judgment. Gill v. Evansville

      Sheet Metal Works, Inc., 970 N.E.2d 633, 637 (Ind. 2012). “We will affirm a

      summary judgment ruling on any legal theory which is consistent with the

      designated evidence in the record.” Wickey v. Sparks, 642 N.E.2d 262, 265 (Ind.

      Ct. App. 1994), trans. denied.


                                             II. Handbook
[6]   Dodson contends the trial court erred in entering judgment in favor of the

      University on her breach of contract claim. Specifically, she claims the plain

      language of her employment contract dictates the parties intended to

      incorporate the Handbook into her contract and therefore the University

      breached the contract when it did not abide by the Handbook in denying

      Dodson tenure with promotion and/or reappointment. The University

      counters the Disclaimer demonstrates the Handbook is not to be construed as

      part of the contract and Dodson’s claim fails. We agree with the University.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CT-2703| June 9, 2017   Page 4 of 7
[7]   “The Seventh Circuit has held that a clear and forthright disclaimer ‘is a

      complete defense to a suit for breach of contract based [up]on an employee

      handbook.’” Lim v. Trs. of Ind. Univ., No. IP-99-0419-C-M/S, 2001 WL

      1912634, at *19 (S.D. Ind. Dec. 4, 2001) (alteration in original) (quoting

      Workman v. United Parcel Serv., Inc., 234 F.3d 998, 1000 (7th Cir. 2000)).

      However, the effect of a disclaimer “can be canceled by evidence that casts

      doubt upon its meaning or the parties’ mutual intent.” Id.


[8]   Here, the Handbook provides, “Statements and policies in this Handbook do

      not create a contract and do not create any legal rights.” Appellant’s App., Vol.

      III at 13 (emphasis omitted). Dodson attempts to sidestep the Disclaimer by

      arguing the Appointment Letter includes a provision she claims shows the

      parties intended to incorporate the Handbook into the contract. The clause in

      question provides,


              I agree to the terms of this appointment as indicated above. I
              have read and agree to the criteria and procedures employed in
              recommendations and decisions about reappointment and the
              awarding of tenure at Indiana University and any special
              procedures customarily employed in the department, school,
              program, or division of the University in which my appointment
              is to be recommended.


      Id., Vol. II at 116. Thus, Dodson’s sole contention on this issue is that this

      clause creates a genuine issue of material fact as to the effect of the Disclaimer.


[9]   At the outset, we emphasize a disclaimer is a complete defense unless there is

      evidence casting doubt upon the meaning of the clause or the parties’ mutual

      Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CT-2703| June 9, 2017   Page 5 of 7
       intent. See Lim, 2001 WL 1912634, at *19. We are not persuaded the

       Appointment Letter casts doubt on the meaning of the Disclaimer or the

       parties’ mutual intent. Clearly, the Disclaimer dictates the University never

       intended the Handbook to form part of its contract with Dodson. See Lim, 2001

       WL 1912634, at *19. Therefore, Dodson’s act of signing the Appointment

       Letter—at most—evidences her own, but not the University’s, intent to

       incorporate the Handbook into Dodson’s employment contract.1 We conclude

       the Appointment Letter does not create a genuine issue of material fact as to the

       effect of the Disclaimer and therefore the trial court did not err in entering

       judgment in favor of the University on Dodson’s breach of contract claim.


[10]   Dodson also argues the trial court erred in entering judgment in favor of the

       University on her claim for damages under 42 U.S.C. § 1983 for violations of

       her due process. However, Dodson’s specific arguments as to this claim all rely

       on the presumption that her employment contract incorporated the policies

       contained within the Handbook and that the University failed to comply with

       these policies when it denied Dodson tenure with promotion and/or

       reappointment. Having concluded Dodson’s employment contract did not




       1
        We take this opportunity to address the unique legal practicality of employee handbooks. On one hand, we
       certainly recognize handbooks may convey useful information to employees and may have the effect of
       placing employers under certain moral obligations to uphold promises despite the promises not being legally
       binding. See Workman, 234 F.3d at 1001. On the other hand, however, we note that our caselaw has fostered
       an environment whereby employers may provide in handbooks gratuitous, but not enforceable, promises to
       employees thereby making it appear as if employees have additional rights when the employer is generally
       able to deviate from the handbook without consequence. We therefore question the real value and purpose
       of employee handbooks.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CT-2703| June 9, 2017              Page 6 of 7
       incorporate the policies and procedures detailed in the Handbook, this claim

       also fails as a matter of law.2 The trial court did not err in entering summary

       judgment in favor of the University on Dodson’s due process claims.



                                                Conclusion
[11]   The trial court did not err in entering judgment in favor of the University as to

       Dodson’s claims for breach of contract and due process violations.

       Accordingly, we affirm the grant of summary judgment.


[12]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




       2
        For this reason, we need not address the parties’ contentions regarding qualified and Eleventh Amendment
       immunity.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1611-CT-2703| June 9, 2017             Page 7 of 7
