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Lydia Hartunian v. Kirkwood Community College

December 12, 2012

LYDIA HARTUNIAN, PLAINTIFF-APPELLANT,
v.
KIRKWOOD COMMUNITY COLLEGE, DEFENDANT-APPELLEE.



Appeal from the Iowa District Court for Linn County, Robert E. Sosalla, Judge.

The opinion of the court was delivered by: Mullins, J.

Heard by Doyle, P.J., and Mullins and Bower, JJ.

Lydia Hartunian, a professor at Kirkwood Community College (Kirkwood), appeals the district court's ruling granting summary judgment in favor of Kirkwood. Hartunian asserts the district court erred in concluding (1) she was required to follow the collective bargaining agreement's grievance procedure, (2) the futility exception to the exhaustion requirement was not applicable, and (3) Kirkwood did not waive the exhaustion requirement in this case. For the reasons stated below, we affirm.

I. BACKGROUND FACTS AND PROCEEDINGS.

Hartunian is a tenured humanities professor at Kirkwood's Cedar Rapids campus. However, she was interested in transferring to the Iowa City campus because she resided in Iowa City. In February 2011, Kirkwood advertised an internal transfer opening for a Philosophy and Religion professor on Iowa City's campus.

Hartunian and another Kirkwood faculty member, David Bullwinkle, applied for the internal transfer position. In an email from Dale Simon, Associate Vice President of the Iowa City campus, both Hartunian and Bullwinkle were informed they would not be qualified for the position because they did not have the requisite number of credit hours of graduate work in religion. Simon explained the position would be opened externally for outside applicants to apply. He further explained that if the hiring committee was unable to find someone who met both the philosophy and religion requirements, or someone who would be a good fit for Kirkwood, it would "probably look at individuals who would meet the requirements for Philosophy and Humanities. Therefore, we would invite you to apply."

The external position announcement said a master's degree or higher in philosophy and religion was preferred, additional background in another humanities discipline was desired, and successful teaching experience was essential. Bullwinkle submitted an application in response to the external posting. Hartunian did not. When the hiring committee did not find a fit for the philosophy and religion position, they looked at applicants who met the philosophy and humanities requirements. The job advertisement was not revised to reflect a change in the job title or its requirements. Bullwinkle was interviewed and hired for the position.

When Hartunian became aware of the hiring decision, she sought an explanation from Simon and Bill Lamb, Vice President of Academic Affairs, in a series of emails. When she did not receive the response she sought, she employed the services of an attorney, who sent Simon and Lamb a letter on May 25, 2011, asking that the offer to Bullwinkle be withdrawn and that the college make no hiring decision until it advertised the philosophy and humanities position to permit Hartunian and others to apply. Counsel for Kirkwood responded to the letter on June 17, 2011, asserting Hartunian was advised that the college would look to fill a philosophy and humanities position if the philosophy and religion position was not filled. Counsel for the college asserted both Hartunian and Bullwinkle were invited to apply externally, which Bullwinkle did and Hartunian did not. The letter concluded by asserting Bullwinkle qualified for the position and the position had been offered to him.

Hartunian filed a petition for a declaratory judgment and an application for a temporary injunction on July 1, 2011. Hartunian asserted Kirkwood "violated its policies, practices, and procedures" by failing to advertise the philosophy and humanities position, and by failing to notify her that it had decided to offer the position.*fn1 She asked the court to determine that Kirkwood "was required to advertise [the philosophy and humanities] position and/or to allow [Hartunian] a reasonable opportunity to apply for same before making any hiring decision in regard to that position." In addition, Hartunian asked the court to determine the decision to hire Bullwinkle was premature, to order the decision be rescinded, and to order no hiring decision be made until proper advertising and notice procedures are followed by Kirkwood.

Kirkwood filed a motion for summary judgment on September 27, 2011, asserting Hartunian's action should be dismissed because the court lacked the jurisdiction to hear the case due to Hartunian's failure to exhaust the remedies under the collective bargaining agreement between Kirkwood and the faculty union. On January 31, 2012, the district court granted Kirkwood's motion for summary judgment finding "the disagreement turns on Kirkwood's obligations to post internal job openings," which "clearly falls within the articles of the [collective bargaining a]greement." Because Hartunian admitted she did not follow the formal grievance procedures under the agreement, the court found it had no jurisdiction to hear the matter.

The court also found that the series of emails and letters between Hartunian, her attorney, and Kirkwood did not substantially comply with the grievance procedures because Hartunian followed virtually none of the requirements, and "most troubling," Hartunian did not send her complaint to the appropriate people-namely first to her immediate supervisor. The court found the futility exception to exhausting administrative remedies did not apply. Finally, the district court rejected Hartunian's claim that Kirkwood waived the exhaustion requirement by failing to respond to her attorney's letter within the time required by the grievance procedures. The court found that because Hartunian never properly initiated the grievance procedures, Kirkwood could not have waived the exhaustion requirement by failing to respond to a grievance it never received. Hartunian appeals.

II. SCOPE AND STANDARD OF REVIEW.

We review the district court's decision to grant summary judgment for correction of errors at law. Mueller v. Wellmark, Inc., 818 N.W.2d 244, 253 (Iowa 2012). Summary judgment is appropriate when "there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Id.; see also Iowa R. Civ. P. 1.981(3). We view the ...


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