The opinion of the court was delivered by: Chief Magistrate Judge Michael R. Merz
DECISION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
This case is before the Court on Motions for Summary Judgment filed by Plaintiff Kenneth Melendez (Doc. No. 11) and by Defendant Sinclair Community College (Doc. No. 10). Each party has responded to the other party's Motion (Doc. Nos. 13, 14), and each has filed a Reply in support of its own Motion (Doc. Nos. 15, 16).
SUMMARY JUDGMENT STANDARD
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. On a motion for summary judgment, the movant has the burden of showing that there exists no genuine issue of material fact, and the evidence, together with all inferences that can reasonably be drawn therefrom, must be read in the light most favorable to the party opposing the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157-59 (1970). Nevertheless, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original). Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to "secure the just, speedy and inexpensive determination of every action." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
Read together, Liberty Lobby and Celotex stand for the proposition that a party may move for summary judgment asserting that the opposing party will not be able to produce sufficient evidence at trial to withstand a directed verdict motion (now known as a motion for judgment as a matter of law. Fed. R. Civ. P. 50). Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir. 1989). If, after sufficient time for discovery, the opposing party is unable to demonstrate that he or she can do so under the Liberty Lobby criteria, summary judgment is appropriate. Id. The opposing party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50, 106 S. Ct. at 2510-11 (citations omitted). "The mere possibility of a factual dispute is not enough." Mitchell v. Toledo Hosp., 964 F. 2d 577, 582 (6th Cir. 1992)(quoting Gregg v. Allen-Bradley Co., 801 F. 2d 859, 863 (6th Cir. 1986). Therefore a court must make a preliminary assessment of the evidence, in order to decide whether the plaintiff's evidence concerns a material issue and is more than de minimis. Hartsel v. Keys, 87 F. 3d 795 (6th Cir. 1996). "On summary judgment," moreover, "the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962). Thus, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Liberty Lobby, 477 U.S. at 249, 106 S. Ct. at 2510.
[A]lways bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323; see also, Boretti v. Wiscomb, 930 F.2d 1150, 1156 (6th Cir. 1991) (citation omitted). If the moving party meets this burden, the nonmoving party must go beyond the pleadings to show that there is a genuine issue for trial. Matsushita, 475 U.S. at 587; Martin v. Ohio Turnpike Comm'n., 968 F. 2d 606, (6th Cir. 1992), cert. denied, 506 U.S. 1054, 113 S. Ct. 979, 122 L.Ed.2d 133 (1993).
In ruling on a motion for summary judgment (in other words, determining whether there is a genuine issue of material fact), "[a] district court is not ... obligated to wade through and search the entire record for some specific facts that might support the nonmoving party's claim." Interroyal Corp. v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989), cert. denied, 494 U.S. 1091 (1990). Thus, in determining whether a genuine issue of material fact exists on a particular issue, a court is entitled to rely only upon those portions of the verified pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits submitted, specifically called to its attention by the parties.
The instant Motions for Summary Judgment are true cross-motions in that the parties concede that there are no genuine issues of material fact, but dispute which of them is entitled to judgment as a matter of law. Compare Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d §2720 (1998).
The undisputed facts are as follows: Defendant is the Montgomery County Community College District which operates Sinclair Community College ("Sinclair"). Defendant is a political subdivision organized pursuant to Ohio Revised Code Chapter 3354 and is governed by a Board of Trustees empowered by statute to appoint administrative officers, faculty, and staff. Ohio Revised Code § 3354.09(D) and (J).
Sinclair employed Plaintiff as an associate professor of computer information systems in August, 1997. This was a tenure-track position (i.e., a position which is intended to lead eventually to the granting of tenure for the appointee) which was subject to renewal on an annual basis. Plaintiff's initial contract, which is apparently an exemplar of all the annual contracts, is attached as page 2 of Exhibit B to Defendant's Motion (Doc. No. 10).*fn1 The contract provides "Your employment is governed by sufficiency of legislative appropriations and the published provisions of employment (Policies and Procedures Manual, Faculty Handbook) which are expressly incorporated in this contract." Id. Both parties agree that the Faculty Handbook is a binding part of the employment contract.
Plaintiff was employed continuously for the academic years 1997-1998, 1998-1999, 1999-2000, 2000-2001, 2001-2002, 2002-2003, and 2003-2004, a total of seven years. It is undisputed that he was never promoted from associate professor to professor during that time.
The Faculty Handbook provides in pertinent part:
Faculty members will be eligible for tenure after five years of full-time tenure-track service in rank. To initiate the tenure process, the candidate must submit a Tenure Application form and supporting material to the initial Promotion and Tenure Committee. The recommendations of this committee will be forwarded to the President, Provost/COO, and Board of Trustees for their consideration. Tenure is not automatic, but based upon specific criteria listed in section 2.7 .5.
(Ex. A to Doc. 10, p.1.) The criteria for promotion to professor include having served a minimum of five years in the rank of associate professor. Id. at p. 10. Similarly, the separate requirements for granting of tenure require a minimum of "five full years tenure-track service in rank." Id. at p. 12. Section 2.7 .4 of the Faculty Handbook specifically provides "[C]ontracts of faculty members who have not been granted tenure by the end of their seventh year of full-time contractual employment will not be renewed." Id.*fn2 The statement is categorical; no exceptions are provided for. Tenure can be granted in the same year as a promotion and a current year in rank represents a full year. Id. at p. ...