                                                                               PUBLISH

                IN THE UNITED STATES COURT OF APPEALS
                       FOR THE ELEVENTH CIRCUIT

                          -------------------------------------------

                                       No. 97-8902                                 FILED
                          -------------------------------------------- U.S. COURT OF APPEALS
                           D. C. Docket No. 2:95-CV-152                  ELEVENTH CIRCUIT
                                                                               08/21/98
                                                                            THOMAS K. KAHN
JILL GRAY,                                                                      CLERK


                                                             Plaintiff-Appellant,

     versus

BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF
GEORGIA; DELMAS ALLEN, in both his official and
individual capacity, et al.,
                                              Defendants-Appellants.


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                 Appeal from the United States District Court
                    for the Northern District of Georgia

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                                    (August 21, 1998)


Before EDMONDSON and CARNES, Circuit Judges, and CLARK, Senior Circuit
Judge.




EDMONDSON, Circuit Judge:
    This appeal involves a denial of tenure to a state college

professor and the professor’s claims of a violation of

procedural due process, breach of contract, sexual

discrimination, and age discrimination. Plaintiff-Appellant

appeals the district court’s grant of summary judgment for

defendants and the court’s denial of partial summary

judgment in her favor. We affirm.



                         Background



    Plaintiff Jill Gray is a fifty-two year old woman formerly

employed as an assistant professor at North Georgia College

& State University. North Georgia is governed by the Board of

Regents of the University System of Georgia.

       Plaintiff was hired to teach in the Mathematics and

Computer Science Department in September 1985 even though

she had a B.S. and M.A. in philosophy.      As a nontenured

                              2
assistant professor, plaintiff was given a one-year employment

contract each academic year.

     Plaintiff first applied for tenure during the 1989-90

academic year. She discussed her application with defendant

Dr. Delmas Allen, who was then Vice President of Academic

Affairs. On the advice of Allen, plaintiff withdrew her 1989-90

application for tenure to pursue an advanced degree in either

mathematics, computer science, or another closely related

field.

     After completing her seventh year of teaching, plaintiff was

granted a leave of absence during the 1992-93 academic year

to   attend graduate courses full-time at the University of

Georgia. Plaintiff taught no classes during this time but was

paid half her salary and received financial assistance to help

pay her tuition.

     Plaintiff returned to full-time teaching at North Georgia

under an eighth contract for the 1993-94 academic year. During

                                3
that year, plaintiff again applied for tenure. In September 1993,

plaintiff received a letter from Allen, who was then President of

North Georgia, notifying Gray that her contract would be

renewed for the 1994-95 year pending the decision of the tenure

committee. After considering Gray’s tenure application, the

Promotion and Tenure Committee of the Mathematics and

Computer Science Department recommended that plaintiff be

granted tenure. But, the Institutional Promotion and Tenure

Committee recommended that plaintiff not be granted tenure.

Allen notified plaintiff of this latter decision in a letter dated 25

January 1994.

     In May 1994, plaintiff received and signed a contract for her

ninth year of teaching at North Georgia -- marked as her “final

contract.” With this contract, Gray enclosed a letter informing

Allen that, by signing the contract, she was not waiving her

rights to challenge the adverse tenure decision. Plaintiff’s



                                  4
employment ended in June 1995; and she brought suit in

November 1995.

      The district court granted summary judgment for

defendants on all grounds and denied plaintiff’s motion for

partial summary judgment.1



                          Discussion2



      North Georgia has an established practice for formally

awarding tenure. The basic criteria for tenure at North Georgia

include (1) excellence in teaching; (2) service; and (3) academic



  1
   Defendants’ motion for summary judgment on the
grounds of immunity (11th Amendment and qualified) was
denied as moot because the district court dismissed plaintiff’s
federal and constitutional claims. We do not consider these
immunity issues.
  2
   We only discuss the tenure issue; we see no reversible
error on the other claims, including the sex and age
discrimination claims.

                                5
achievement and professional growth. North Georgia expects

the applicant for tenure to present evidence of excellence in

two of the three areas; and to present evidence of average or

better performance in the third.     Superior performance in

teaching is essential; otherwise, no order of importance is

indicated by the college.

    Each year department heads request that all eligible

faculty who choose to apply for tenure submit a dossier and

document file. The Department Head sends all documentation

to members      of the Department Promotion and Tenure

Committee.      This committee interviews the applicant,

deliberates, and returns the package to the Department Head

with a written recommendation. The Department Head reviews

the recommendation, adds a personal statement about the

applicant, and forwards the entire package to the Vice President

of Academic Affairs.



                               6
    The Vice President submits all tenure materials to the

Institutional Promotion and Tenure Committee -- which reviews

each candidate and makes a recommendation to the Vice

President. These recommendations, along with his own, are

then forwarded to the President for his consideration. The

President’s recommendations are forwarded to the Chancellor,

and the Chancellor’s recommendations are forwarded to the

Board of Regents for the final approval of tenure.



Whether Summary Judgment Was Appropriate



    Plaintiff acknowledges that she was not awarded tenure in

the usual way.    But Gray argues she had tenure or its

equivalent and, therefore, a property interest in continued

employment at North Georgia (subject to the Fourteenth

Amendment’s due process guarantees) under two theories: (1)

the express language of her contract automatically granted

                               7
plaintiff tenure in her eighth year of teaching; and (2) the

conduct of and documents of defendants plus the institutional

understanding of tenure gave plaintiff de facto tenure.

    The success of due process arguments depends upon the

finding of a constitutionally protected property interest in the

expectation of continued employment or of a liberty interest

having been infringed upon by the State; absent such interest,

no due process protections attach. Board of Regents v. Roth,

408 U.S. 564, 569-70 (1972). A person claiming a property

interest in a benefit “must have more than an abstract need or

desire for it . . . . He must . . . have a legitimate claim of

entitlement to it.” Id. at 577. Moreover, property interests, by

their nature, are “created and their dimensions are defined by

existing rules or understandings that stem from an independent

source such as state law.” Id.



Theory 1 - Tenure with a Grant of the Eighth-Year Contract

                                 8
    Plaintiff brings out that her written employment contracts

expressly provided that they were made subject to the

bylaws/policies of the Board of Regents, which is the only place

where tenure is described.     And, Gray says that her mere

presence as a member of the faculty beyond a seven-year

probationary period demonstrates she was protected by the

tenure system.

    At all times, Gray was an employee within an employment

system that uses a formal tenure system. The policies of the

system are written and widely-circulated. Each yearly contract

signed by Gray, including the last, contained the following

provisions:

    I HEREBY ACKNOWLEDGE THAT THIS CONTRACT AND
    THE ATTACHED EXHIBIT ‘A’ [the regulations of North
    Georgia and the bylaws/policies of the Board of Regents]
    CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE
    PARTIES AND SHALL NOT BE CHANGED, MODIFIED,
    AMENDED, WAIVED OR DISCHARGED EXCEPT BY AN
    INSTRUMENT IN WRITING SIGNED BY THE PARTIES
    HERETO.


                               9
      I UNDERSTAND THAT AT THE EXPIRATION OF THE TERM
      OF THIS CONTRACT I WILL NOT BE REEMPLOYED
      UNLESS THERE IS A NEW AND SEPARATE OFFER BY
      THE BOARD OF REGENTS ON BEHALF OF NORTH
      GEORGIA COLLEGE AND ACCEPTANCE THEREOF BY
      ME.

      Gray’s “property” interest in employment, if any, was

created and defined by the terms of her contract.3 By contract,

her interests in employment were secured for one college term

only. Like Roth, the contract specifically provided that Gray’s

employment expired on a set date (the end of the term). And,

the contract had no provision for renewal: it expressly negates

future employment absent a new and separate offer by the

Board of Regents. Thus, the terms of the contract on the

contract’s face secured no interest in reemployment for the

future.




  3
   Interpretation of a contract is a question of law. Wheat,
First Securities, Inc. V. Green, 993 F.2d 814-817 (11th Cir.
1993); Irvin v. Laxmi. Inc., 467 S.E.2d 510, 512 (Ga. 1996).

                              10
      Plaintiff points beyond the face of the contract. She claims

university system policy, incorporated by reference into the

contract, created her right to reemployment. She relies directly

on section 803.09(F) of the Board of Regents Policy Manual,

which states:

      The maximum time that may be served at the rank of
      assistant professor or above without the award of tenure
      shall be seven years, provided, however, that a terminal
      contract for an eighth year may be proffered if an
      institutional recommendation for tenure is not approved by
      the Board of Regents.

      But nothing in the words upon which plaintiff relies says

that the professor, after seven years, must be viewed as

tenured if the professor receives another ordinary contract for

an eighth year.4 The words create no entitlement for professors


  4
   Plaintiff’s eighth-year contract says
nothing about its being a “final
contract.”        Nor does the evidence show
that plaintiff was told when the contract
was proffered to her that this contract
                                11
and, at most, create a duty for local college and university

officials not to do something: not to keep giving contracts to

nontenured faculty members.

    We find it helpful to refer to the laws of Georgia’s public

school system for elementary and secondary education to see

how something very much like “tenure” is conferred in that

system:

    A teacher who accepts a school year contract for the
    fourth consecutive school year from the same local
    board of education may be demoted or the teacher’s
    contract may not be renewed only for those reasons
    set forth in subsection (a) of Code Section 20-2-940.


O.C.G.A. § 20-2-942(b)(1). Thus, Georgia has provided in no

uncertain terms what the consequence is for public school

teachers who are awarded a contract for a fourth consecutive

school year: they get definite rights that look much like

“tenure.”



was a final contract.
                              12
      In sharp contrast, the Board of Regents manual to which

Gray points says nothing about a professor getting new rights

or new protections or a new status if the professor is awarded

an eighth contract. To the contrary, the words relied on by

plaintiff in the manual signal that an award of tenure is

something apart from getting a contract for a particular year

and that tenure requires the approval of the Board of Regents.5

      The manual tells local college and university officials that

no regular eighth-year contract should be given unless an

award of tenure has been made already; that idea is a very

different idea than saying that proffering a contract for an

  5
   For tenure, the need for approval of the Board of Regents is
stressed in a related and earlier part of section 803.09:


      D.   Tenure may be awarded, upon recommendation by
           the president and approval by the Board of Regents,
           upon completion of a probationary period of at least
           five years of full-time service at the rank of assistant
           professor or higher.

(emphasis added).
                                 13
eighth year vests a professor with tenure. And, particularly

considering that Georgia -- although in not exactly the same

context -- has demonstrated a style of speaking more plainly

when educators are to get continuing contracts, we see no

ambiguity in the Board of Regents Policy Manual that helps

plaintiff at all.

     The Board of Regents Policy Manual and Gray’s

employment contracts make it clear to us, as a matter of law,

that a professor is nontenured until she, upon approval of the

Board of Regents, is awarded tenure and that getting an

eighth-year contract, by itself, is not getting tenure or the

equivalent of tenure. Without being granted tenure, plaintiff

had no right to reemployment, either under the terms of her

contract, under the regulations of North Georgia, or under the

bylaws and policies of the Georgia Board of Regents.




                              14
Theory 2 - De Facto Tenure



     Still, plaintiff advances another theory that might support

a claim to continuing employment. The Supreme Court in Perry

v. Sindermann acknowledged that a professor might obtain de

facto tenure even though tenure has never been formally

conferred. 408 U.S. 593 (1972). This result is possible under a

theory of implied contracts whereby “[e]xplicit contractual

provisions may be supplemented by other agreements implied

from the promisor’s words and conduct in the light of the

surrounding circumstances. . . .The meaning of [the promisor’s]

words and acts is found by relating them to the usage of the

past.” Id. at 602 (internal quotations and citations omitted).

     The Sindermann Court concluded that just as there may be

a “common law of a particular industry or of a particular plant

.   . . there may be unwritten common law in a particular

university that certain employees shall have . . . tenure.” Id.

                               15
(internal quotations omitted). Thus, a property interest might

be manifested by an employer’s historical practices and past

conduct which rise to the level of a “common law,” or

institutional understanding, of the employment relationship that

both parties recognize and rely on as establishing their

respective rights and responsibilities.

     Although the Board of Regents never formally conferred

tenure upon Gray, we will consider whether some pre-existing

practice by the college gave rise to a legitimate claim of

entitlement to continued employment for Gray.            Plaintiff

contends such an entitlement exists because of an institutional

understanding that a faculty member receives tenure by default

under the Board of Regents’ policy if one serves as assistant

professor for more than seven years. After considering the

record -- with the evidence viewed in favor of the plaintiff -- we

cannot agree.



                                16
      The evidence advanced to support an institutional

understanding of automatic tenure is Dr. Allen’s deposition

testimony: “My interpretation [of the Board of Regents Policy

Manual section 803.09(F)] is that if a faculty member is here

without applying for tenure and resides or isn’t picked up within

seven years and there’s been no break in time, yes, they’re

entitled to automatic tenure.”6      Assuming for the sake of

argument that Georgia law will allow some kind of de facto

tenure, we conclude plaintiff’s evidence is legally insufficient.7

In so concluding, we have considered, among other facts, that

the college does have an explicit and formal tenure system.



  6
   Dr. Allen gave similar testimony at other points in his
deposition. But this statement is the one chiefly discussed by
the parties.
     We note that in Gray’s situation there seemingly had
been a break in time: the 1992-93 academic year. This fact,
however, is not critical to our decision.
  7
   We do not decide today whether Georgia law precludes
altogether the possibility of an implied contract where explicit
tenure is available.
                                17
     To show a “custom” or institutional understanding,

plaintiff must show some historical basis for believing the

custom existed. But, plaintiff introduced no evidence that the

kind of automatic tenure she now claims had ever been used at

North Georgia before she filed this lawsuit. She has pointed to

no one who in the past got tenure in this manner. Also, none of

the many deponents from the college testified about the

existence of such a custom. And, as a matter of law, one

administrator’s stated “interpretation” of the Board of Regents

Policy Manual -- an interpretation not based on concrete

experience with someone actually getting tenure by default --

cannot rise to the level of “common law” of the university that

Sindermann demands. Thus, Gray’s de facto tenure claim must

also fail.



                         Conclusion



                              18
      We agree with the district court’s decision that Gray never

had tenure (and therefore no property right entitled to

protection under the Fourteenth Amendment).8 “The institution

of tenure has an inexorable internal logic: the very existence of

a tenure system means that those teachers without tenure are

not assured of continuing employment.” Staheli v. University

of Mississippi, 854 F.2d 121, 124 (5th Cir. 1988). “The whole

purpose of the distinction between tenured and non-tenured

faculty [is to give the college] discretion over the employment

of non-tenured teachers.” Id. at 125; See Megill v. Board of

Regents, 541 F.2d 1073, 1078 (5th Cir. 1976) (because Florida

college had explicit written tenure program teacher had no

reasonable expectation of reemployment). Gray is unhappy

with the way the college exercised its discretion. But the



  Our decision is in agreement with a similar Sixth Circuit
  8

case. See Edinger v. Board of Regents, 906 F.2d 1136 (6th Cir.
1990) (professor remaining employed beyond probationary
period did not acquire tenure).
                                19
circumstances she has evidenced do not create a protected

property interest.9

      AFFIRMED.




CLARK, Senior Circuit Judge, dissenting:




  9
   Gray says that Allen, when Vice President of Academic
Affairs, made particular representations and assurances to
her that she was progressing toward tenure (by taking
advanced courses). She argues that these statements
created a constitutionally protected property interest. But
one’s reliance on a person’s “promises” to one specifically is
quite different from relying on an established custom or
general institutional understanding at the college. And, even if
a definite promise was made (which is unclear even from
plaintiff’s own testimony), Allen’s representations about tenure
cannot bind North Georgia and the Board of Regents beyond
the terms of the written contracts. See generally Brown v.
State Bd. of Exam’rs of Psychologists, 378 S.E.2d 718 (Ga.
Ct. App. 1989) (state agency not estopped by agent’s
representations).

                                  20
        I disagree that the evidence was insufficient to create a genuine

issue of material fact in this case, and I would therefore find that the district

court erred in granting summary judgment. The majority concludes that

nothing in the language of the policy manual says that after seven years a

professor who continues to teach has tenure, and no words in the

employment contract created an entitlement. I think that this conclusion

misses the point of a de facto argument: if the express language was

present, then a de facto analysis would be unnecessary.

        The Board of Regents policy manual provided that an assistant

professor could serve only seven years without tenure, except that a final

contract for an eighth year could be allowed. Gray taught for seven years,

then was given a year off to return to school to work toward the degree that

she had been told would enhance her application for tenure. The college

paid for at least part of her tuition and paid half her salary during that year

off, and they had an agreement with Gray that she would return to full-time

teaching. She returned to full-time teaching for two years after her year off,

teaching for a total of nine years.

        The Supreme Court stated in Board of Regents of State Colleges v.

Roth:10 “[p]roperty interests, of course, are not created by the Constitution.

  10
       408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

                                              21
Rather they are created and their dimensions are defined by existing rules

or understandings that stem from an independent source such as state

law--rules or understandings that secure certain benefits and that support

claims of entitlement to those benefits.”11

        The policy manual says that professors should not be teaching more

than seven years unless they are tenured. Not only did Gray teach more

than seven years, after her seventh year of teaching the college paid half

her salary while she attended school and assisted her with tuition. This is

not the behavior of an employer who does not intend to retain an

employee. Moreover, the college president, a most persuasive authority,

testified in his deposition that his interpretation of the Board of Regents

policy manual was that a faculty member who continued teaching after

seven years was entitled to automatic tenure. The majority finds this

evidence insufficient because one administrator's interpretation of the

manual did not provide evidence of a custom or institutional understanding.

That statement alone may not be conclusive, but when combined with the

other facts, could provide enough evidence for a jury to find that Gray had

received tenure de facto.




  11
       Id. at 577, 92 S.Ct. at 2709 (emphasis added).

                                                22
      I think that the evidence is sufficient to create a genuine issue of fact.

I cannot say that Gray will definitely prevail, but I think that an issue of fact

exists and that summary judgment was erroneously granted.




                                       23
