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New London, Conn., Superior Court Judge Ian McLachlan has dismissed a case against Yale University, admitting he erred in ruling that a former professor was not subject to the school’s internal grievance procedures before bringing her negligent misrepresentation claim. In an Oct. 29 decision, McLachlan tossed out the one count he let stand in his previous ruling in Neiman v. Yale University. In September, McLachlan allowed Yale’s motion to dismiss all of plaintiff Susan Neiman’s claims except the one for negligent misrepresentation, finding that Neiman “alleges more than the failure of Yale to follow appointment and tenure procedures specified in [its employment] handbook.” In 1995, Neiman asked to be considered for a tenured position. But after a faculty search was conducted, she was informed the school chose someone else for the spot. Neiman did not challenge the tenure decision through the grievance procedure specified in the handbook, but instead filed suit against the university. Yale moved to dismiss, claiming the court lacked subject matter jurisdiction due to Neiman’s failure to exhaust her administrative remedies. Other state trial judges, McLachlan noted, have favored the application of the exhaustion doctrine to situations other than those involving collective bargaining agreements. But in his reconsideration, McLachlan admitted that he made an error, and that Neiman’s “tort claims are premised on the alleged unfairness in the underlying tenure decision and are inextricably caught up in that decision.” Therefore, McLachlan said, Neiman would have to prove a defect in the tenure decision, which she was first required to challenge internally before turning to the courts for relief. McLachlan also ruled in September 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 and dismissed of two of the three counts against Yale. Neiman’s attorney, Jacques Parenteau, of Madsen, Prestley & Parenteau in New London, then asked McLachlan for permission to appeal the dismissal of the two claims. McLachlan denied the request in his latest ruling, stating that, in light of his reconsideration, the claim was moot. The state appellate court has not yet considered whether the exhaustion of remedies doctrine applies if there is no grievance procedure required either by statute or a collective bargaining agreement. Parenteau could not be reached for comment last week. But Wiggin & Dana attorney William Doyle, who is representing Yale, said that he expected Parenteau to appeal McLachlan’s latest ruling. “Surprisingly, we don’t have any appellate decision in Connecticut dealing with the question of whether you have to exhaust an internal grievance procedure outside a collective bargaining agreement,” Doyle said.

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