STATE OF MICHIGAN


IN THE COURT OF CLAIMS


PETER J. HAMMER,


                     Plaintiff,

                                                                                      Case No. 04- MK

 

                                                                                      Hon.

v.


THE BOARD OF REGENTS OF THE UNIVERSITY

OF MICHIGAN, a body politic,


                     Defendant.

_____________________________________________________________________

 

GREEN, GREEN & ADAMS, P.C.                     

By: Philip Green (P14316)                       

Attorneys for Plaintiff 

900 Victors Way, Suite 240 

Ann Arbor, MI 48108 

(734) 665-4036 

(734) 665-1075 (Fax) 

_____________________________________________________________________



COMPLAINT

 

 

                                    There is no other civil action between these

                                   parties arising out of the same transaction or

                                   occurrence as alleged in this Complaint pending

                                   in this Court, nor has any such action been

                                   previously filed and dismissed or transferred

                                   after having been assigned to a Judge.

 

 

 

          NOW COMES Peter J. Hammer, Plaintiff, by and through his attorneys Green, Green & Adams, P.C. and in complaining against the Defendant avers and alleges as follows:

 

(GENERAL ALLEGATIONS)

          1.       Peter J. Hammer is an individual who at the time of filing this Complaint is

a resident of Washtenaw County, Michigan.

          2.       The Defendant is a Michigan body politic created by constitution and is

a state agency for purposes of this action.

          3.       The within action involves various claims respecting breaches of contract

existing between Plaintiff and the Defendant at times set forth hereinafter and the jurisdiction of this Court is thereby invoked.

          4.       The place of performance of the contract was in the City of Ann Arbor,

Washtenaw County, Michigan.

          5.       In the late Winter and early Spring of 1995 Plaintiff was in the process of

seeking a career change from the private practice of law to a teaching career.

          6.      Prior to said time Plaintiff had received a Bachelor of Science in

mathematics, a Bachelor of Arts in economics and a Bachelor of Arts in speech communication, summa cum laude with honors, in 1986 from Gonzaga University in Spokane, Washington.

          7.       Thereafter Plaintiff obtained a Juris Doctorate degree magna cumma

laude

in May of 1990 from the University of Michigan and in May of 1993 received a PhD in economics from the University of Michigan.

          8.       During the period between the Plaintiff’s JD and PhD he clerked as a

judicial law clerk for Judge Alfred T. Goodwin of the United States Court of Appeals for the Ninth Circuit in Pasadena, California, and thereafter in 1993 until May of 1995 was a litigation associate at O’Melveny & Myers in Los Angeles, California.

          9.        In the late Winter and Spring of 1995, Plaintiff received offers of

employment from major accredited law schools in the United States including but not limited to the University of Michigan Law School, Columbia Law School, Georgetown Law Center, UCLA School of Law, Vanderbilt University Law School and the University of North Carolina School of Law.

          10.     In ascertaining the efficacy and desirability of each of the offers Plaintiff

inquired whether or not the law schools in question provided medical insurance for domestic partners and whether or not the law schools in question maintained policies that were receptive to and respecting of domestic partnership arrangements.

          11.     During the job interview process and at the time of the offer of employment by the University of Michigan, Plaintiff had not yet revealed to the University that he had a same sex domestic partner with an extended family. Fearing potential discrimination, he was not “out” on his resume or during the initial job search process.

          12.     In responding to Plaintiff’s inquiry concerning the University’s policies

after the employment offer had been extended, Kent Syverud, then Associate Dean for Academic Affairs, wrote to Plaintiff and forwarded to him the University of Michigan’s policy of non-discrimination based upon, among other things, sexual orientation as well as the practice by the Benefit Office of the University of Michigan in allowing and enrolling same sex domestic partners for benefit programs including health insurance and the like.  

          13.     Among the questions Plaintiff posed was one respecting whether or not

the medical coverage would exclude coverage for pre-existing conditions which Syverud answered in the negative.

          15.     Plaintiff made similar inquiries of James Boyd White, Chair of the Personnel Committee, and other members of the faculty, asking about nondiscrimination policies and domestic partnership benefits. He received responses similar to those made by Syverud, citing the protection afforded by University policies and asserting the existence of a healthy and supportive professional environment.

          16.     Based upon the representations made by Syverud and others that the University of Michigan did not discriminate in the terms and conditions of its employment and tenure based upon, among other things, sexual orientation and that Plaintiff and his domestic partner would be covered under the University of Michigan’s health policies, Plaintiff accepted employment at the University of Michigan Law School and commenced that employment in May of 1995. Plaintiff was further lead to believe that he would not be discriminated against based upon his sexual orientation.

          17.     Upon arriving at the University of Michigan Law School and commencing

his employment, Plaintiff became aware that the University was actually less than receptive to Plaintiff’s sexual orientation than had been represented by the policies and practices and the lip service given thereto. Over the years between the commencement of his employment thereat and ultimately upon the vote which resulted in his not being awarded tenure, Plaintiff became aware that individuals with same sex partners or of Plaintiff’s sexual orientation were not welcome nor treated hospitably by the Defendant and its faculty.

          18.     By way example, but not by way of limitation, Jack Martin, also a Professor at the Law School and the first individual in Washtenaw County to succumb to AIDS, was so concerned about his colleagues’ likely reaction that he advised them that he contracted some rare disease in the Middle East while traveling out of the country.

          19.     Others of Plaintiff’s sexual preference, including Jack Martin, did not

reveal their sexual preference until after the tenure votes in their cases. Each closeted individual was in fact awarded tenure. Plaintiff was the first openly gay (non-closeted) Assistant Professor of Law ever to teach at the Law School and therefore the first to be considered for tenure by the institution.

          20.     One individual was strongly favored for consideration for the position of the Law School Dean until he revealed his sexual preference. He was not offered the Deanship. This individual was also closeted when being considered for and granted tenure.

          21.     Another openly gay individual who was being considered for a lateral position with tenure received the necessary votes only because both tenured and tenure track members of the Law School faculty, including the Plaintiff, were allowed to vote on such matters, whereas for internal candidates for tenure only tenured candidates are allowed to vote; furthermore, non-tenure track faculty members can participate in the discussion concerning outside hires. Given the hostility of the environment, this individual subsequently took a reduced appointment with the Law School and spends most of his time outside of Ann Arbor, Michigan.

          23.     The foregoing are by way of example and not by way of limitation of the

extremely inhospitable and antagonistic environment that exists for individuals of alternative sexual lifestyles and in particular individuals who enjoy gay or lesbian relationships and sexual preferences.

          24.     Conduct and practices reflecting ingrained, sex-based gender stereotypes are pervasive at the Law School. Men who fail to conform with traditional male gender roles are systematically devalued and professionally marginalized within the institution. Similarly, women who fail to conform with traditional female gender roles by being overly aggressive or assertive are ostracized and suffer discrimination. These stereotypes operate against the backdrop of a longstanding history of sex discrimination and sexual harassment directed by male members of the tenured faculty against other faculty, staff and students.

          25.     The University fosters and suffers such an atmosphere to continue at

the Law School and such atmosphere permeates decisions in which the tenured faculty acts as a governing voice.

          26.     In January 2002, the Tenure Committee assigned the task of evaluating Plaintiff’s record and credentials voted to recommend that he be granted tenure at the Law School.

          27.     In February of 2002, the tenured faculty voted on Plaintiff’s tenure appli-

cation and while Plaintiff received 18 favorable votes there were 14 non-favorable votes which resulted in the denial to Plaintiff of tenure for reason that the University maintains a policy at the Law School by which tenure is only awarded if two-thirds of the tenured faculty vote in favor thereof.

          28.     For the past 40 years, more or less, 52 individuals have been considered for tenure of which 48 were recommended for tenure within the standard time frame. The only individuals not recommended for tenure within the standard time frame included one African American woman (ultimately granted tenure after spending eight years in the rank of an untenured Associate Professor), two white women (one ultimately denied tenure and one who withdrew from consideration for tenure), and the Plaintiff (the only openly gay male to be considered for tenure).

          29.     During that same time frame, 45 straight and/or closeted men were considered for tenure and all were recommended for tenure by a vote of the law school faculty.

          30.     Despite Plaintiff’s superlative teaching, education, service and publi-

cation record at the University of Michigan he was denied tenure and was the only male to be denied tenure at the University of Michigan Law School by a vote of the Law School faculty in the last 39 years.

          31.     Plaintiff is a nationally respected scholar on issues of health law and health policy. He has published numerous articles and has testified in front of and consulted on behalf of a number of federal agencies. While an Assistant Professor at the Law School, he was a recipient of the prestigious Robert Wood Johnson Foundation Health Policy Investigator Award and associated quarter million dollar research grant.

          32.     The University of Michigan Law School offers a single honor to acknowledge outstanding classroom teaching – The L. Hart Wright Excellence in Teaching Award. During Plaintiff’s eight years of teaching at the Law School, he was nominated for the award on four occasions, and was twice the recipient of the distinction.

          33.     Plaintiff has an outstanding record for public service, particularly in the fields of human rights and law and development. While an Assistant Professor at the Law School, Plaintiff helped establish and was founding President of Legal Aid of Cambodia. He also founded and Directed the Law School’s Program for Cambodian Law & Development. This Program is recognized as an innovative model for integrating teaching, service and scholarship in an academic setting.

          34.     The University of Michigan maintains numerous policies and statements acknowledging the value of diversity to legal, graduate and undergraduate education, as well as recognizing the importance of protecting diversity concerns in the tenure process. Similar acknowledgments of the value of diversity to the University’s educational mission characterized the University’s and the Law School’s litigation position before the United States Supreme Court in the affirmative action cases. Despite these policies and statements, no effort was made by the Tenure Committee to document or evaluate Plaintiff’s contribution to the diversity of the educational environment at the Law School in the Tenure Committee Report. Moreover, no affirmative consideration was given to diversity as a value in the Law School faculty’s tenure deliberations in the Plaintiff’s case. Open discussions of diversity can act as an antidote to counterbalance the latent hostility often held towards persons in groups that have traditionally suffered discrimination.

          35.     The Law School grievance procedures governing tenure decisions create a culture of impunity that fosters discrimination, homophobia and unaccountability. As applied in the Plaintiff’s case, Law School grievance procedures did not permit the review of any claim of discrimination, even those in direct violation of state and federal law. The absence of any possible review, the absolute secrecy afforded to the faculty’s decision making process, and the super-majority voting requirement create an environment that fosters and perpetuates discrimination.

Count I

(Reasonable Expectations)

          36.     Plaintiff hereby incorporates by reference each and every allegation contained in the common allegations herein above set forth as though repeated with particularity herein.

          37.     In response to Plaintiff’s pre-employment inquiries following the offer of

employment made by the University of Michigan but prior to Plaintiff’s acceptance of the same the Defendant did forward to the Plaintiff several documents in which the Defendant held itself out as an employer who would honor the diversity that the Plaintiff enjoyed by virtue of his sexual preference and in furtherance of honoring that diversity would provide full medical coverage to his domestic partner. In further response to Plaintiff’s inquiries the Defendant assured Plaintiff that he would not be the victim of discrimination based upon his sexual preference in his employment at the University of Michigan.

          38.     Based upon a reasonable expectation that the pre-employment

representations made to him would be fulfilled by the Defendant in his relationship with the Defendant were he to accept employment thereat, Plaintiff in fact accepted employment and well and truly performed each and every obligation required of him in his employment relationship with Defendant.

          39.     Plaintiff’s reasonable expectation to be treated without discrimination

based upon his sexual preference was violated when the Defendant denied tenure to him as set forth above, one of the reasons for said denial being that three or more of the negative votes for tenure were the proximate result of the discriminatory animus against persons of Plaintiff’s sexual preference held by certain of the tenured faculty.

          40.     The requirement for a super majority and the permission to allow votes to

be cast without explanation and with complete anonymity furthered and facilitated the ability of several homophobic faculty to prevent Plaintiff’s acquiring tenure at the University of Michigan.

          41.     That the direct and proximate result of the denial of tenure by Plaintiff was

the termination of his employment at the University of Michigan together with the termination of his medical insurance, salary and other perquisites of employment.

          42.     As a direct result and proximate result of the Defendant’s violating

Plaintiff’s reasonable expectations and thereby the contractual obligation this Defendant owed to the Plaintiff, Plaintiff has suffered and will continue to suffer losses as set forth above.

          WHEREFORE, Plaintiff prays for judgment in such amount in excess of $25,000 as will fairly inadequately compensate him for his losses and further prays that the Defendant be ordered to specifically perform its obligations under the contract between Plaintiff and the Defendant as will be more fully established through the prosecution of this action.

Count II

(Detrimental Reliance)

          43.     Plaintiff hereby incorporate all of the allegations contained common

allegations as well as all of the allegations contained under Count I hereof as though repeated with particularity herein.

          44.     That if this Court finds that the representations made pre-employment

were not sufficient to form a contractual basis for recovery under Toussaint v. Blue Cross Blue Shield and its progeny, then Plaintiff asserts a right of recovery based upon the doctrine of detrimental reliance.

          45.     In making the representations set forth in the common allegations

the Defendant did intend that Plaintiff rely on the representations in accepting employment and indeed encouraged the acceptance of employment knowing and having a reasonable expectation that Plaintiff would in fact rely thereon.

          46.     Plaintiff relied upon representations that he would be free from

discrimination based upon sexual preference in the terms, conditions and tenure of his employment at the University of Michigan Law School.

          47.     Such reliance was to his detriment for reason that Plaintiff was

denied tenure for reasons related to his sexual preference as facilitated by the procedures in place for the grant and denial of tenure at the University of Michigan Law School at the time.

          48.     As a result of said detrimental reliance Plaintiff forbore from

obtaining other favorable employment at major institutions across the country and lost the opportunity during the eight years he spent at the University of Michigan to obtain tenure at one of these other institutions.

          49.     Had he obtained employment at one of the other institutions Plaintiff

asserts he would have been granted tenure for reason that he would not have been discriminated against based upon his sexual preference and that as a result thereof he lost a significant amount of income he would have earned had he accepted other employment rather than at the University of Michigan.

          WHEREFORE, Plaintiff prays for such damages in such amount in excess of $25,000 as will fairly and adequately compensate him for his injuries together with such other and further relief as shall be agreeable to equity and good a good conscience.

Count III

(Breach of Contract - De Facto Tenure)

          50.     Plaintiff incorporates by reference all of the allegations set forth under

common allegations herein above as though repeated with particularity herein.

          51.     Pursuant to the Standard Practice Guide at the University of

Michigan as well as its well established practices and procedures, Plaintiff was entitled to a Notice of Non-Reappointment upon being denied tenure.

          52.     Pursuant to said policy and practice Defendant was required to provide

Plaintiff with Notice of Non-Reappointment nine months prior to his date of termination.

          53.     Pursuant to the Standard Practice Guide and §5.09 of the by-laws of the

University of Michigan the failure to timely notify the Plaintiff of his non-appointment resulted in his employment for eight consecutive years in a tenure track position without any appropriate notice of non-appointment. (See SPG 201.13 implementing §5.09 attached hereto.)

          54.     Pursuant to Section 201.13 of the Standard Practice Guide and By-law 5

of the University of Michigan the fact that Plaintiff acquired eight consecutive years of tenure track employment without an appropriate Notice of Non-Reappointment resulted in obtaining what is known as de facto tenure.

          55.     Despite the Plaintiff having acquired de facto tenure, the Defendant did

terminate his employment and refused to recognize his de facto tenure; the Defendant has denied Plaintiff a hearing required by Board of Regents of the University of Michigan By-law 5.09 to ascertain whether cause exists for the termination of his tenure and employment.

          56.     The Defendant has thereby breached Plaintiff’s contractual right resulting

in termination thereof pursuant to By-law 5.09 of the University of Michigan

          57.     In so doing the Defendant breached its contractual relationship with the

Plaintiff and did thereby cause substantial economic injury and harm to the Plaintiff which injury is ongoing in nature and includes loss of income, loss of perquisites of employment, loss of insurances and the like.

 

          WHEREFORE, Plaintiff prays for such damages in such amount in excess of $25,000 as will fairly and adequately compensate him for his injuries together with such other and further relief in the premises as shall be agreeable to equity and good conscience and a declaration of rights finding Plaintiff possesses de facto tenure as alleged herein.

                                                                Respectfully submitted,

                                                                GREEN, GREEN & ADAMS, P.C.

                                                                _______________________________

                                                                Philip Green (P 14316)

                                                                Attorney for Plaintiff

                                                                900 Victors Way, Suite 240

                                                                Ann Arbor, MI 48108

                                                                734-665-4036

Dated: