                   IN THE COURT OF APPEALS OF IOWA

                                 No. 13-1264
                             Filed June 25, 2014

WILLIAM KUBA,
     Plaintiff-Appellant,

vs.

WILLIAM PENN UNIVERSITY,
     Defendant-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Mahaska County, Joel D. Yates,

Judge.



      William Kuba appeals the district court ruling denying and dismissing his

breach of contract claims against William Penn University. AFFIRMED.




      Randall Stravers of the Stavers Law Firm, Oskaloosa, for appellant.

      David Luginbill of Ahlers & Cooney, P.C., Des Moines, for appellee.



      Considered by Potterfield, P.J., and Doyle and Bower, JJ.
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BOWER, J.

       William Kuba appeals the district court ruling denying and dismissing his

claims against William Penn University. Kuba contends the district court erred by

finding William Penn did not breach his employment contract. We find under the

employment contract, including the employee handbook, Kuba had the

responsibility to set up his own pre-tenure evaluation and failed to do so. We

also find the tenure appeal process in place offers only a suggestion to William

Penn, not an obligation. William Penn did not breach the employment contract.

Accordingly, we affirm.

I.     Background Facts and Proceedings

       William Kuba is a former employee of William Penn University. Kuba was

hired by the University in a tenure-track position for the 2007-2008 academic

year. The terms of Kuba’s hiring did not guarantee him the right to tenure, but

the contract and the William Penn’s employee handbook set out a specific

process designed to evaluate Kuba’s candidacy for a permanent, tenure-level

position.    During Kuba’s time at William Penn, and as the tenure evaluation

process proceeded, Kuba was employed under a succession of one-year

contracts.

       Starting in the 2009–10 academic year, each of Kuba’s one-year contracts

included language that reads in part:

       All parties herein agree to be bound by the provisions and
       procedures outlined in the Faculty and Staff Handbook. By signing
       this contract the faculty agrees to uphold the mission of the
       University as stated in the catalog.
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The employee handbook sets out the procedure for acquiring tenure. First, the

pre-tenure evaluation is to be conducted near the end of the employee’s second

full academic year.     The handbook requires the employee “initiate” the

evaluation; however, the method by which the evaluation is to be initiated is not

described. The evaluation is intended to give both the employee and the Vice

President of Academic Affairs an opportunity to discuss the employee’s

candidacy and “arrive at a mutual understanding of expectations regarding

tenure.” The result of the evaluation is a written summary of the process that is

to be placed in the employee’s personnel file.      The pre-tenure evaluation is

designed to provide the employee with an understanding of what materials will be

necessary for consideration of their tenure candidacy with ample time before

formal consideration. Though they disagree on the circumstances, the parties

agree there was no pre-tenure evaluation of Kuba.

      The employee must initiate the formal review for tenure by December 1 of

the employee’s fifth full academic year.     The Faculty Promotion and Tenure

Committee (FPTC) is the body charged with conducting the initial phase of the

review. The handbook describes a number of materials that must be provided to

the FPTC so the candidacy can be fully considered. Evaluation guidelines are

also set out in the handbook, as are certain specific deadlines. At the end of the

process, the FPTC makes a formal recommendation on the candidacy to the

Vice President for Academic Affairs.        This recommendation must also be

provided to the tenure candidate, and must be made by the end of February. To

be granted tenure, the FPTC must make a tenure recommendation, and then the

Vice President for Academic Affairs makes an additional recommendation which
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is forwarded, by the third week of March, to the University President, who, by the

third week in April makes any additional recommendations to the Board of

Trustees. The Board of Trustees makes the final decision during their June

board meeting. When the FPTC recommends denying tenure, the employee

may request the reasons for denial, which may start an appeals process.

       When the appeals process is initiated, the University President convenes

an appeals committee which is charged with evaluating whether the FPTC

followed the proper procedures during the tenure review process. If the appeals

committee determines a procedural error has occurred, a recommendation, not a

mandate, for remedying the situation is sent to the FPTC.

       Kuba, along with two other employees, started the tenure review process.

Kuba filed a dossier with the FPTC containing the documents he thought were

necessary to support his candidacy. The FPTC immediately recognized all three

dossiers were lacking in some form.      Kuba’s dossier, in particular, was less

voluminous than the others.      The FPTC sought and received permission to

extend the deadlines so each candidate could expand upon their dossier and

improve the quality of the documents submitted. Kuba received an email from

Pam Martin, a member of the FPTC, which requested six types of documents.

Kuba testified the email was somewhat unclear, leaving him with the impression

the missing documents may have already been included in his dossier but

overlooked by the FPTC. Kuba simply responded by reorganizing the dossier

and resubmitting it for consideration.

       Kuba’s candidacy was ultimately rejected by the FPTC. He appealed the

decision and, appearing personally before the appeals committee, claimed the
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FPTC failed to follow the proper procedures in the handbook as he was not

granted a pre-tenure evaluation.1 Kuba believes his dossier would have been

more complete had the pre-tenure evaluation been completed.           The appeals

committee agreed, recommending Kuba be given an additional two years to

apply for tenure, during which a pre-tenure review could be conducted at his

request. The FPTC rejected the appeals committee’s recommendation and

reaffirmed the denial of Kuba’s candidacy. In doing so, the FPTC gave Kuba six

reasons for the denial: (1) no pre-tenure meeting; (2) insufficient evidence of

quality teaching and advising per student evaluations; (3) marginal evidence of

both university and greater community service; (4) no evidence, post 2002, of

professional    development;     (5)   concerns     regarding    collegiality   and

professionalism; and (6) lack of sufficient evidence supplied to demonstrate the

seriousness with which you have taken this process, starting with your letter

requesting tenure review.

       Kuba filed a petition alleging breach of contract, seeking monetary

damages and reinstatement as a tenure track employee with the ability to reapply

for tenure. The district court found the employee handbook was a part of Kuba’s

employment contract creating certain enforceable rights, but determined William

Penn had not breached the contract. Specifically, the district court found Kuba

failed to exercise his right to a pre-tenure evaluation and the appeals process did

not guarantee the committee’s recommendation would be followed.




1
 Kuba also claimed he had not been given written findings by the FPTC as he believed
was required by the handbook.
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II.    Standard of Review

       We review breach of contract claims tried to the district court for correction

of errors at law. NevadaCare Inc. v. Dep’t of Servs., 783 N.W.2d 459, 465 (Iowa

2010). However, the district court’s “legal conclusions and application of legal

principles are not binding on the appellate court.” Id. We will reverse when the

district court has applied erroneous interpretations of law, but findings of fact are

binding upon us if supported by substantial evidence. Id.

III.   Discussion

       Although complicated by the unique nature of tenure, this case concerns

an employment contract. Kuba’s employment with William Penn was something

more than an at-will employment situation, though less than permanent. See

Taggart v. Drake Univ., 549 N.W.2d 796, 800 (Iowa 1996).                     The parties

essentially agree there was an employment contract, which incorporated the

provisions of the employee handbook.             The only source of conflict is the

requirements imposed on each party by the handbook.2 As the party who would

suffer the loss if not established, Kuba has the burden of proving the breach of

contract. See Iowa R. App. P. 6.904(3)(e).

       Kuba claims William Penn breached the contract in two ways: (1) by failing

to conduct a pre-tenure evaluation and (2) by failing to adhere to the

recommendation of the appeals committee.              In Taggart, a Drake University



2
  As the Eight Circuit Court of Appeals noted in Okruhlik v. University of Arkansas, 395
F.3d 872, 879 (8th Cir. 2005), “[w]e are mindful of the singular nature of academic
decision-making, and we lack the expertise to evaluate tenure decisions or to pass on
the merits of a candidate’s scholarship.” Our review is not of the merits of Kuba’s
candidacy or the propriety of the University’s ultimate decision, but is limited to whether
the procedures guaranteed in Kuba’s contract were carried out.
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professor challenged a similar denial of tenure. 549 N.W.2d at 799–800. The

plaintiff claimed her contract was breached when the university failed to establish

procedures for her tenure evaluation specifically related to her area of expertise.

Id. at 801. Our supreme court disagreed, illustrating the principle that we will not

read into tenure procedures extra elements not found in the plain language of the

contract, even where the procedures utilized create a subjective unfairness for

the candidate. Id. at 801–02.

       Kuba’s situation is similar. The employee handbook creates a pre-tenure

evaluation, but places the responsibility for initiating the process on the

candidate. Kuba’s proof he attempted to do so is scarce. A single email chain

was introduced into evidence, the first of which is an email from Kuba noting he

had previously requested the pre-tenure evaluation be scheduled. The last email

in the chain is an attempt by University officials to do just that. At some point, the

planned pre-tenure evaluation was cancelled but was not rescheduled. There is

no evidence Kuba followed up on his request, or took additional steps to

reschedule the evaluation. In fact, Kuba testified he forgot about the pre-tenure

meeting requirement as time passed. Kuba also failed to present any evidence

showing William Penn was uncooperative or refused to engage in the pre-tenure

evaluation. We find Kuba failed to provide sufficient evidence he attempted to

initiate the pre-tenure evaluation, without which William Penn was under no duty

to do so.3


3
  During trial, testimony indicated other tenured faculty members were hired without
engaging in the pre-tenure evaluation. Though failure to have the evaluation was cited
as a reason for denying tenure, the handbook does not list the pre-tenure evaluation as
a prerequisite to obtaining tenure. Considering the comprehensive guidelines and
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       We also find William Penn fully engaged in the appeals process. The

process set out in the handbook only provides for a recommendation by the

appeals committee to the FPTC. There is nothing in the handbook requiring the

FPTC follow, or even consider, the recommendation of the appeals committee.

Although this may result in a process with little meaningful effect, we will not read

additional provisions into a contract.

       Kuba was unable to produce any credible evidence William Penn failed to

fully comply with any specific provision or requirement of the employment

contract. Absent such proof, there is no breach of the contract.

       AFFIRMED.




criteria in the handbook for evaluating a candidate for tenure, it is not clear the pre-
tenure meeting would have changed Kuba’s prospects for a successful candidacy.
