                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT NASHVILLE
                                     May 4, 2005 Session

 SHIRLEY RUSSELL, PH.D., ET AL. v. MEHARRY MEDICAL COLLEGE

                   Appeal from the Chancery Court for Davidson County
                     No. 03-2727-III   Ellen Hobbs Lyle, Chancellor



                  No. M2004-01049-COA-R3-CV - Filed September 13, 2005


PATRICIA J. COTTRELL , J. concurring.

       Although I agree with the result reached by the majority, I disagree as to the rights Dr.
Russell had with regard to notice of non-renewal.

       The appointment or employment process involved two agreements: the Faculty Appointment
Agreement and the Faculty Compensation Agreement. Dr. Russell and Meharry entered into a
Faculty Appointment Agreement for the July 1, 2002 - June 30, 2003 period that identified the type
of appointment as Tenure Track and that stated it was specifically subject to Personnel Policies “as
amended by the Board of Trustees” and the school’s Policy on Appointment, Promotion and Tenure.

        At the time that agreement was signed, the applicable APT (1984 version) provided that a
faculty member was to be advised of the time when decisions affecting renewal (of appointments)
are ordinarily made and given the opportunity to submit materials relevant to that decision.
According to affidavits filed by Dr. Russell, faculty evaluations were typically done in February or
March, so that notice that an appointment was not going to be renewed would be given more than
one year in advance.

       The 2002 APT requires that faculty members being terminated for other than adequate cause
be given notice of non-renewal of “no less than six months.”

       The 2002-03 Appointment Agreement did not specifically incorporate the Faculty Handbook.
However, the Handbook in effect at the applicable time provided “The contractual policies of the
Handbook form a legal and binding agreement between the faculty and administrative officials of
Meharry Medical College.” In pertinent part, the Handbook addressed contractual tenure track
appointments:

       If tenure is not acquired by the maximum time outlined above, the department head
       may recommend that the faculty member receive (1) a one-year, non-tenure track
         appointment that may be renewed an unlimited number of times; or (2) a notice of
         termination.

      According to affidavits supplied by Dr. Russell, prior to the events in June of 2003,
Meharry’s appointment agreements were no shorter than twelve months.

         Based on the language of the relevant policies and handbook provisions, it appears that
Meharry did not give Dr. Russell adequate notice that her 2002-2003 appointment would not be
renewed.1 Even if the 2002 APT became effective immediately upon its adoption and even if it
could be interpreted as modifying the 2002-2003 Faculty Appointment Agreement between Dr.
Russell and Meharry, she was at least entitled to six months notice that her one-year appointment
was not being renewed. Meharry was required to provide that notice six months prior to the
expiration (on June 30, 2003) of that appointment agreement, or by January 1, 2003. Meharry did
not provide that notice, so Dr. Russell was legally entitled to renewal of her existing appointment;
i.e., another one year appointment from July 1, 2003 to June 30, 2004.

        The question is whether she waived the right to renewal of her existing one-year
appointment2 by executing the July 1, 2003 agreement for a six month appointment. Because the
six-month agreement Dr. Russell signed in July of 2003 very clearly stated it was for six months, I
reluctantly agree that Dr. Russell waived any right she had to renewal for one year.



                                                           ________________________________________
                                                           PATRICIA J. COTTRELL, JUDGE




         1
           Although reconciliation of some of the language of the agreements with the policies is d ifficult, there are valid
reasons for a lengthy notice period for non-renewal of fac ulty app ointments, and in higher-education circles such
provisions are routine. Both the faculty member and the scho ol have an interest in sufficient notice to allow the m to
either find other acad emic-year app ointments or to hire o ther faculty on an acad emic-year basis.

         2
             The real q uestion is whether she wa ived her entitlem ent to twe lve mo nths of salary.

                                                              -2-
