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A Connecticut Superior Court judge has ruled against a former Yale instructor who was denied tenure, asserting that the assistant philosophy professor didn’t exhaust her administrative remedies under the school’s employment handbook before filing suit. That ruling has launched a motion by her attorney to appeal the decision to the state Appellate Court, on the ground that there is no precedent to force workers to rely on grievance procedures that aren’t mandated by an employment contract or collective bargaining agreement. Jacques Parenteau, of Madsen, Prestley & Parenteau in New London, Conn., said he plans to file a motion asking Superior Court Judge Ian McLachlan to make a written determination that the issues in Neiman v. Yale University are significant enough to warrant an immediate appeal under Practice Book section 61-4. The plaintiff, Susan Neiman, is a former assistant philosophy professor at Yale. She’s suing the school for damages allegedly sustained as a result of Yale’s failure to offer her a tenured appointment, claiming a breach of contract, breach of the implied covenant of good faith and fair dealing, and negligent misrepresentation. In the case, there is no bargaining agreement or statutory procedure in place specifying the steps to be taken by an employee to challenge the denial of tenure, but rather a handbook with grievance process provisions. On Sept. 17, McLachlan allowed Yale’s motion to dismiss all of Neiman’s claims except the negligent misrepresentation claim, stating that Neiman “alleges more than the failure of Yale to follow appointment and tenure procedures specified in the handbook.” Because that lone claim is proceeding, Parenteau needs McLachlan’s permission to appeal the dismissal of the other claims. If McLachlan allows Parenteau’s motion, the Appellate Court will be asked to decide an issue of first impression by considering whether an exhaustion of remedies doctrine applies if there is no grievance procedure required either by statute or a collective bargaining agreement. In 1995, Neiman asked to be considered for a tenured position, and after a faculty search was conducted, she was informed that the school chose someone else. Neiman did not challenge the tenure decision through the grievance procedure in the handbook, but instead sued. Yale moved to dismiss, claiming the court lacked subject matter jurisdiction due to Neiman’s failure to exhaust the remedies provided for her in the employment handbook. PRACTICE SETS PRECEDENT Stating that other Superior Court decisions have favored the applicatmion of the exhaustion doctrine to situations other than those involving collective bargaining agreements, McLachlan concluded that the exhaustion doctrine applies in Neiman’s case. He added that courts in other jurisdictions have required the exhaustion of contractual remedies in university and other employment settings, concluding that aggrieved employees had to resort to the grievance procedures set forth in their handbooks, or other contract documents, before they could seek redress in the court system. McLachlan wrote that, because Neiman failed to exhaust the contractual remedies available to her in the handbook, the court lacked subject matter jurisdiction over her contractual claims. Neiman argued that she was not required to exhaust the handbook’s remedies before seeking redress from the court because the handbook’s remedy was not exclusive. Parenteau argued that a section of the handbook states a faculty member “may request” review of his or her complaint, but the language does not mandate filing an unfairness complaint by a faculty member. “And there is not even a hint that Yale considered this permissively worded procedure to represent an exclusive remedy for the resolution of faculty unfairness complaints,” Parenteau wrote in a brief to the court. “This is a totally different setting than a grievance or arbitration proceeding,” Parenteau charged. Yale counsel Robert Cavanagh, of New Haven, Conn.-based Wiggin & Dana, could not be reached for comment.

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