### FILED 

### DEC. 9,2014 In the Office ofthe ClerkofCourt W A State CourtofAppeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE MICHAEL E. DORON, Ph.D., a single ) man, ) No. 31636-0-111 ) Appellant, ) ) 

### v. ) ) UNPUBLISHED OPINION EASTERN WASHINGTON ) UNIVERSITY, a state ofWashington ) public four year institution ofhigher ) education; UNITED FACULTY OF ) EASTERN WASHINGTON ) UNIVERSITY, a public employee ) organization; UNITED FACULTY OF ) WASHINGTON STATE, a public ) employee organization; WASHINGTON ) EDUCATION ASSOCIATION, a state of ) Washington nonprofit corporation; ) ARSEN DJATEJ, a married man; SUSAN ) NIEGAARD, a married woman; ) DUANNlNGZHOU, a married man; and ) ELIZABETHMURFF, a marriedwoman; ) REX FULLER, a married man; NIEL ) ZIMMERMAN, a married man, ) 

### ) Respondents. ) FEARING, J. - Eastern Washington University (EWU)hiredMichael Doron for a tenure-trackposition as an AssistantProfessor ofaccounting. Afterhis second annual review, EWU offered Doron reappointment with an improvementplan. Doronrefused to participate in developing an improvementplan, afterwhichEWU deemed Doron to haveNo. 31636-0-111 Doron v. Eastern Washington Univ.

refused reappointment and the school terminated his services. Michael Doron sued EWU and various university administrators alleging breach ofcontract, violation ofthe covenant ofgood faith, violation ofpromises, wrongful discharge in violation ofpublic policy, disability discrimination, and wrongful withholding ofwages. The relevant contract is a collective bargaining agreement (CBA) between EWU and Doron's union. Doron sued some ofEWU administrators also for defamation. Doron also sued his union, United Faculty ofEWU (UFE), and the union's state-wide bodies, United Faculty ofWashington State and Washington Education Association (WEA), for breach ofthe duty offair representation and for tortious interference with business expectancy. The trial court granted summaryjudgmenton all claims. We affirm. FACTS Because the trial court dismissed all ofMichael Doron's claims on summary judgment, we consider the facts in a light most favorable to him. Because ofthe many claims ofDoron, the outline requires an extensive review ofwritten agreements, documents, and correspondence. Michael Doron graduated from Miami University in 1993 and then worked as an accountant in Columbus, Ohio. He became a licensed Certified Public Accountant (CPA) in 2000. That same year, Doron earned his masters in accountancy from Case Western Reserve University. From 2003 to 2005, Doron taught a variety ofundergraduate and 2No. 31636-0-III Doron 

### v. Eastern Washington Univ. graduate level accounting courses. In 2009, based onhis dissertation titled, "TheEnd of the Disinterested Profession: American Public Accountancy 1927-62," Doron earned his PhD in history from Texas A&M. Michael Doron applied to EWU's College ofBusiness and Public Administration (CBPA) to become a professor ofaccounting in a tenure-track position. Rex Fullerwas then the dean ofthe business school, and ProfessorArsen Djatej sat on the hiring committee. Djatej had met Doron at a conference and encouraged Doronto apply for a position with EWU. Before offering Michael Doron employment, Dean Fuller and Professor Djatej discussed whetherMichael Doron would be "academically qualified" for purposes of EWU's College ofBusiness and Public Administration's accreditation with the Associationto Advance Collegiate Schools ofBusiness (AACSB). The association is regarded as the benchmark for gaging business school quality among the academic community. Accordingto Jerry Trapnell, Special Advisorto the President ofAACSB, the Association expects accredited business schools to employ "highly qualified" faculty

as effective classroom teachers committedto continuous improvement. Clerk's Papers (CP) at 2591. A "qualified faculty member" is "onethat demonstrates currency and relevancy in hislher academic discipline to ensure that the classroom environmentis supported by the recent and relevant information from theory andpractice." CP at 2591.

3 

# INo. 31636-0-111 Doron v. Eastern Washington Univ.

For accreditation purposes, schools must classify andjustify each and every faculty member. Accordingto EWUProvost Rex Fuller, "academically qualified" requires publishing papers in the field ofaccounting. AACSB would considerMichael Doron, with a degree in history, to hold a degree in a field other than accounting. Therefore, for



# 1 Doron to be "academically qualified" under AACSB standards, Doron "would have to consider ways to publish in more direct areas ofaccounting, such as auditing and other fields that he was assigned to teach." CP at 1423. Under AACSB standards: "The greaterthe disparity between the field ofacademic preparation and the area ofteaching, the greater need for supplemental preparation in the form ofprofessional development linked to the area ofteaching." CP at 2593. The standards also read: "Regardless oftheir 

# ! 

# 1 specialty, work experience, or graduate preparation, the standard requires that faculty members maintaintheir competence through efforts to learn about their specialty and how it is applied in practice." CP at 2593. A potential problem arose with EWU'shiring ofMichael Doron since the Department ofAccounting and Information Systems did not offer an accounting history class. Dean Rex Fuller spoke to Michael Doron about the need topublish in a direct area ofaccounting. Doron asked ifcoauthorship with another would meettherequirement, and Fuller answered "yes." Arsen Djatej also spoke to Rex Fuller about coauthoring with Michael Doron. 

### 4

### No. 31636·0·111



# I i Doran 

### v. Eastern Washington Univ. 

# I To retain accreditation, 50 percent ofa business school's instructors must be "academically qualified under AACSB standards." Fuller andDjatej agreed that Doron's 

# I PhD in history, and dissertation in accounting history, would qualify as a "related field" 

# I to accounting. So long as Doron's research andpublications related to his field of teaching and demonstrated "currency and relevancy," Doron could be academically 

# I qualified. Accounting research is more empirical in nature than historical research. The 

# I history ofaccounting is more history than accounting. 

# I ArsenDjatej promised to train and help Michael Doron meet EWU's research expectations. Djatej later testified: 

# I 1 Andpart ofthe reason he approached me, because we had a somewhat similar background, academically I mean. And I told [Doron] that I did a transition myselfto empirical study and I know the pattern, so I will help him to do the pattern; I will train him and mentor him to do the same thing. That was the discussion before [Doron was hired.] 

# 1 

# I [T]he general idea when it comes to research was, when he comes, I will be the one who would share my experiences making transitions from what we call qualitative research to more quantitative, empirical type of research. And that was the general understanding. 

# 1 

# 1 CP at 1436·37. Doron similarly testified: 

# I [Iltwas part ofmy understanding I was recruited to come to Eastern 

# 1 to work with Arsen [Djatej]. He would be co·authoringpapers. Ifyou want to say that was a promise ofpart ofmy employment, I guess it does qualify as that, yes. It was my expectation that when I came to Eastern, that's what would be happening. Arsen has someprojects, one ortwo ofthem he



### 5No. 31636-0-111 Doron v. Eastern Washington Un/v.

would bring me on, and I would be doing some work for him onthose projects and I would be co-author. Q: And who do you claim made that promiseto you? A: [Doron continuing] There was-well, Arsen obviously, is the one who had to make thatpromise. CP at 1456. On February 28, 2009, a member ofthe hiring committee, whose name is removed from the message, e-mailed Arsen Djatej, writing: Dinnerwent well with Mike [Doron]. He's talking aboutwhere to locate in Spokane whenhe gets here. Ifwe get an offer out soon, we should have an excellent chance to hire him. Your assurances ofsupport for his research made a big difference in his attitude. The dean [Rex Fuller] also made a good impression and discussed summer supportwith Mike. The dean indicatedthatMike's research in accounting history will be acceptedatEWUas long as it is in a [peerreviewedjournal]. CP at 1463 (emphasis added). On March 5, 2009, business school Dean Rex Fuller offered Michael Doron a probationary, six-year tenure-track position withEWU as an Assistant Professor of Accounting and Information Systems (AIS), a department within the School ofBusiness and Public Administration. A written offer set a base salary of$85,000 and allowed an $8,000 increase "upon the acceptance/publication oftwo peerreviewedjournal articles (PJRs) in accounting," afforded summerresearch stipends, and granted reimbursement of up to $2,500 in moving expenses. CP at 228. The offer letter specifically noted: This offer is contingentupon receipt ofsatisfactory transcripts from all institutions ofhigher education you have attended. All other conditions 6No. 3 1 636-0-III Doran v. Eastern Washington Univ.

ofemployment are set forth in the Collective Bargaining Agreement between Eastern Washington University and the United Faculty ofEastern, University rules, policies and procedures, and applicable state and federal laws. CP at 228. On March 17,2009, EWU re-extended the same offer, but with a starting salary of $93,000. The March 17 letter stated: "Ifyou believe you have beenpromised anything that is not included in this letter, do not sign and return the letter until you have calledthe Provost and Vice President for Academic Affairs." CP at 231. On March 30, 2009, Michael Doron accepted EWU's offer. Doron later testified thathe accepted based upon Arsen Djatej's and RexFuller's promises that Djatej would be available to coauthor academic papers with Doron. The CBAbetween EWU and the UFE governed Michael Doron's employment. Many sections ofthe agreement are critical to this appeal. Section 1.1 appointed UFE as the "exclusivebargaining representative regarding matters ofwages, hours, and terms and conditions ofemployment

... [for] employees ofthe University who are designated with faculty status." CP at 235. Section 3.3 ofthe CBA, "Authority for Appointment and Reappointment," provides: "Onlythose terms ofemploymentthat are made in writing to the appointees shall be binding upon the University." CP at 237-38. Section 4.1.2 ofthe CBA imposed on Michael Doron, as a new professor, a probationary period ofsix years. Underthe CBA, probationary faculty mustbe reviewed

7No.31636-0-III Doron v. Eastern Washington Univ.

and reappointed annually. Section 5.3.1, under "Retention ofProbationaryFaculty," states: (a) Full-time faculty onprobationary status will be evaluated annually, regardless ofcontract length, by the chair and by the personnel committeeto determine reappointment. Probationary faculty will be provided with timelines relative to retention decisions. Such evaluations will bebased upon progress in meeting goals outlined in the FAP. It is expected thatthe FAP will be in effectthroughout theprobationary period unless modified by mutual agreement betweenthe faculty member, chair, personnel committee, dean, and ChiefAcademic Officer. (b) As part ofthe evaluationprocess, the department/library will providethe faculty memberwith an annual assessment ofprogress on the FAP and a recommendation regarding probationary status. The evaluation will be signed bythe faculty member and retained in her/his official personnel file in the Human Resources Office. Ifperformance shortcomings are identified through the evaluation process, the probationary faculty member shall beprovided with a planto correctthe performance shortcomings which includes timelines for improvement. The plan will be created by the chair and the affected probationary faculty member, and will be approvedbythe department/library personnel committee, the college personnel committee (ifapplicable), the dean and the ChiefAcademic Officer. (c) The department/unitpersonnel committee and the chair shall each forward a recommendation to the unit dean as to whetherthe faculty member should be: (i) Continued on probationary status. (ii) Continued onprobationary status with an improvementplan. (iii) Removed from probationary status and continued as a special faculty member, except as defined in Section 5.4.4(d). (iv) Given notice thattheir appointment will not berenewed orwill beterminated according to the timelines described in Section 5.3.5 below. CP at 242-43.

8No. 3 I636-0-III Doron 

### v. Eastern Washington Univ.

Section 5.3.4 ofthe collective bargaining agreement, titled "Probationary Contract for Third YearFaculty," states: Followingthe third successful year ofa probationary appointment, faculty will be providedwith a three-yearprobationary contract. If performance shortcomings are identified throughthe annual evaluation process duringthe term ofsuch contract, probationary faculty shall be provided with aplan to correct the performance shortcomings which includes timelines for improvement. The planwill be created by the department chair and the affected probationary faculty member, and will be approved by the department personnel committee, the collegepersonnel committee (ifapplicable), the dean and the ChiefAcademic Officer. Probationary faculty who do not resolve performance shortcomings following an opportunity to do so may be terminatedwith notice as provided in Section 5.3.5 below. CP at 244. And Section 5.3.5, "Notice ofNonrenewal or Termination ofProbationary Contract,"provides: (b) Notice ofintent not to renew an appointment for the following year, orto terminate a three-yearprobationary contract, shall be given in writing to the individual in accordance with the following standards: (i) Not later than March 

### 1ofthe first academic year ofservice ifthe appointment is to expire at the end ofthat year. (ii) Not laterthan December 

### 1ofthe secondyear ofthe probationaryperiod ifthe appointment is to expire at the end ofthat year. (iii)For faculty in their third through sixth years oftheprobationary period, notice ofintentnot to renew shall be given no later thanJune 1for a terminal appointment that expires at the end ofthe next academic year. CP at 244. Section 5.5 ofthe CBA, underthe title "Reconsideration,"provides: "Inthe event ofa negative recommendation by the ChiefAcademic Officerregarding retention, tenure 

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orpromotion, the faculty member may file a request for reconsideration with the Chief Academic Officer" within five days receiving the negative recommendation. CP at 247. Section 5.6 describes how a faculty member is to accept or not acceptreappointment, and provides in relevant portion: 5.6.2 Letter ofAppointment. Upon reappointment orcontinuation of appointment ofa faculty member, an annual letter ofappointmentwill be issued. The letter ofappointment signed by the appointee shall be returned to the ChiefAcademic Officerwithin fifteen (I5) days ofits receipt to indicate the appointee's acceptance ofthe conditions ofappointment. 5.6.3 Resignation. Faculty members who intend to resign their appointments should provide written notice to their unit dean atthe earliest possible date. Faculty members who intend notto accept reappointment shall provide written notice thereofnot later than fifteen (15) days after receipt ofthe letter ofappointment. CP at 250. Michael Doron'sFaculty Activity Plan (FAP) is at the center ofthis dispute. The CBArequires each faculty memberto develop a FAP. Section 7.3 ofthe CBAreads: 7.3.1 Plan Content The FAP shall be consistentwith the University mission and Strategic Plan, college, library, and department strategic plans, [Policies and Procedures (P&P)], and the [CBA]. TheFAP shall include all areas of professional activity, development, and expectedperformance; describe an equitableworkload; and include any other expectations as required by department or college/library P&P. Where the FAP is intended to lead to tenure and/orpromotion the plan shall so state. 7.3.2 Development oftheFAP (a) Development ofthe FAP is a collaborativeprocess. All continuing faculty members shall, in consultation with the department/librarypersonnel committee and the department/library chair, prepare a FAP specifying areas ofactivity for theperiod ofthe plan. A new faculty member's FAP shall beprepared no later than the conclusion ofthe 10No. 

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### v. Eastern Washington Univ.

first academic quarter covered by the plan. 7.3.3 Approval ofthe FAP (a) The FAP, including any agreed amendments orrevisions made as a result ofthe collaborative developmentprocess described in Section 7.3.2, mustbe signed by the faculty member, and approved by the department/library personnel committee, chair, dean and the Chief Academic Officer. At the option ofthe college, and as expressed in the college P&P, FAPs may also require approval by the college personnel committee. A copy ofall approved FAPs will beretained in the Human Resources Office. (b) Ifa FAP is not approved by the department/library personnel committee, the chair, the college personnel committee (ifrequired by the college P&P), the dean orthe ChiefAcademic Officer, the faculty member will prepare a revised plan in consultation with the department/library personnel committee and the chair. Ifan acceptable plan is not preparedby the end ofthe subsequent quarter, the chair and department/library personnel committee will revise the plan in a mannerthat meets with the approval ofthe college personnel committee (ifapplicable), the dean and the ChiefAcademic Officer. Any dispute over the contents ofthe revised FAP will be resolvedby the ChiefAcademic Officer. The revised FAP will govern the faculty member's approved activity for the period ofthe plan. CP at 251-52. The initial term for an'assistant professor's FAP is six years. Section 7.3.5 allows modifications ofa FAP. The section reads: Modification ofthe Plan. FAPs may be modified during theirterm. A faculty or the chair may request in writing a modification. All modifications are subject to the same approval process as the original FAP. CP at 252. Article 13 ofthe collective bargaining agreement addresses discipline ofa faculty member. The article reads in part: 13.1 Just Cause. No faculty member shall be disciplined or discharged withoutjust cause. Just cause guidelines commonly used by 11No. 3 I636-0-1II Doron v. Eastern Washington Univ.

arbitrators are set forth in Appendix A. 13.2 Progressive Discipline. The University shall apply where appropriate the principles ofprogressive discipline which include, but are not limited to, the following steps: verbal warning, writtenwarning, suspension withoutpay and, finally, discharge. The University will not be required to apply progressive discipline where the nature ofthe offense calls for immediate discharge or imposing discipline without progression. CP at 1843 Meanwhile, as Dean Rex Fuller, Professor Arsen Djatej, and Michael Doron negotiated EWU hiring Doron; Djatej sought and interviewed for a teaching position at Colorado State University. Djatej did not inform Doron that he might leave EWU for Coloradopriorto Doron accepting the position at EWU. On March 15,2009, another member ofthe hiring committee e-mailed Arsen Djatej, writing: 1. Since Mike Doron agreedto come here mostly to work with you, you ought to let him know if/when you decide to accept the position at CO. 2. As Rex [Fuller] already knows about the offer [from Colorado], is it ok with you if! let Sue [Megaard] and Bill know you've got a $ 120K/yr offer with tenure? I'dlike to see ifwe mightbe able to match the $ and tenure. CP at 1465. DeanRex Fullerthus knew before Michael Doron accepted employment with EWU that Professor Djatej might leave EWU for Colorado, but did not inform Doron ofthispossibility. Fullertestified: "I didn't think it was something I neededto talk to Michael about. Michael and Arsen had ongoing conversations, and my assumption was that that was made known through their conversations." CP at 1425.

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### No. 31636-0-III Doron v. Eastern Washington Univ.



### Three weeks after Michael Doron accepted EWU's offer, Doron learnedthat Arsen Djatej was leaving for Colorado. In summer 2009, Michael Doron expressed

concerns to RexFullerthat Djatej no longer had an incentive to work with him. Fuller insisted that, given modem technology, Doron and Djatej would still be able to coauthor papers together. On October 9,2009, Michael Doron e-mailed Arsen Djatej, "This is the paper I presented in Cardiff. The section I want to expand into a separate paper is pp. 21-4." CP at 1468. Within an hour, Djatej responded: 'Thanks Mike, I will read it overthe weekend and get back to you some time next week." CP at 1468. Djatej did not. In November 2009, in his first quarter ofteaching, Michael Doron developed his Faculty Activity Plan. In relevant portion, Doron's FAP provides: 

### 2. Quality ofTeaching I mustdemonstrate acceptable levels ofquality in teaching effectiveness, curriculum development, and student advising. I am currently in the eighth week ofmy first quarter at EWU. I am teaming ACCT450, Auditing I, and BADM 560, MBA Accounting. My goal this quarter, in addition to competently teaching the material, is to develop a familiarity with the skills and needs ofthe students in these courses. This will provide me with the perspective to develop these courses further in the future. The CBPA [College ofBusiness and Public Administration] prioritizes excellence in the classroom. When I interviewed for this position, I was impressed with the dedication and coordination among the faculty to preparing both undergraduate accounting majors for careers in accounting and future managers in the MBA program to understand and evaluate accounting information they confront in their work. I intend to contribute to this commitmentto our students. To assess my teaching effectiveness, my plan is to use the metric built into the IDEA instrument, 13No. 31636-0-III Doron v. Eastern Washington Univ.

in particular Question 41 on the IDEA form, "Overall, I rate this instructor as an excellentteacher" which has a five point scale. My objective is to maintain an average ofmedian ratings of3.0 for my classes over the plan period.I hope to teach all sections offered ofACCT 450, Auditing I, and BADM 560 and 505, the MBA Accounting courses. This will require a thorough understanding ofthe CBPA's and the AIS [Accounting and Information Systems] department's objectives for these courses and the skills and needs ofour students. This quarter, I am relying both onmy experience ofthe objectives ofthese courses and on the advice ofmy colleagues in the CBPA. In the Winter 2010 quarter, I will be teaching ACCT 450 again as well as BADM 505, and in Spring 2010 I will be teaching BADM 560. By the end ofmy first year, based on my experiences along with feedback from students and my colleagues, my goal is to prepare a comprehensiveplan ofhow to meet the objectives ofthese courses and have a procedure in place to stay current on topics relevantto these courses. My workload has been setviathe EWU Collective Bargaining Agreement, so that it may not exceed 36 credit hours. The College of Business and Public Administration Assigned Time Policy allows a reduction ofteaching load for appropriate research activities that assist the College. Under this policy, I expect a teaching load no greaterthan 28 credit hours, provided I meet the eligibility requirements set forth in the College Policy. I understand that I mustbe available to my students for career advising and for assistance with their coursework. The currently accepted norm is to be available to students and faculty in my offices for at least five hours perweek. I will also be regularly available via email and voice mail. 

### 3. Quality ofResearch and Scholarship I must demonstrate an acceptable level ofresearch and scholarship centered on the business aspects ofmy areas ofinterest. Minimally, fivejournalarticles must be published duringthe six years priorto my tenure consideration. These mustbe in blind-refereed journals orinjournals ofnational stature,with the provision that up to two may be replaced by publications in refereed conference proceedings at a rate oftwo proceedings for one refereed article

.... I currently have one publication in a blind-refereedjournal, AccountingHistory, in August, 2009. In September, 2009, I published a 14No. 31636-0-111 Doron 

### v. Eastern Washington Univ.

paper, adapted from my dissertation, in the refereed conferenceproceedings oftheAccounting, Business, andFinancialHistory conference in Cardiff, Wales.Based on the suggestions I received at the ABFH conference, Iplan to revise this paper and submit it totheAccountingHistorians Journal, a blind-refereedjournal, before the beginning ofacademic year 2010-11, with the expectation that it will be accepted during the 2010-11 year. I am currently writing a third paper adapted from my dissertation. I hope to submit this in March, 2010, for presentation at theAccounting History conference in Wellington, New Zealand in August, 2010. This is also a refereed conference proceeding. My goal would be to submit this paper to ablind-refereed accounting historyjournal in 2011, with the expectation that it would be accepted during the academic year 2011-12. IfI am able to meetthe above goals, I will have three sole-authored publications in blind-refereedjournals andtwo presentations at conferences with referred proceedings at the end ofmy third academic year at EWU. I haveplans for a secondproject upon completion ofthe above work. I have identified the sources to be used. These include tradejournals from the nineteenth century that span several decades andhave neverbeen utilized for accounting history research. I expectthis workto yield multiple sole-authored publications in blind-refereed accounting history journals, which I can begin to submitbefore my probationary status at EWU ends in 2015. CP at 314-15 (emphasis in original). By the end of2009, all necessary university administrators approved Doron's FAP. OnDecember 6,2009, Michael Doron e-mailed Arsen Djatej about another article idea, and possibly submitting it to the March 2010 conference in New Zealand. After one quarter ofteaching at EWU, the AIS Department ChairElizabethMurff and the AIS DepartmentPersonnel Committee bothrecommended retaining Michael Doron. On January 7, 2010, Murffwrote DeanRexFullerto recommend retaining Doron for the 2010-11 academic year. Murffnotedthat Doron hadpublished one peer15No. 31636-0-III Doron v. Eastern Washington Univ.

reviewed article, and she commented: "Atthis rate, he is on track at this time towards meeting the requirements set forth in his FAP for attaining promotion and tenure." CP at 380. Murffalso noted that student evaluations were not yet available. On January 19, 2010, the AIS DepartmentPersonnel Committee wrote Fuller also recommending "Michael Doron's contract be renewed." CP at 382. The committee wrote: "We acknowledge that Professor Doron has successfully satisfied all requirements ofa firstyear assistantprofessor." CP at 382. OnFebruary 3, 2010, Department ChairElizabeth Murffsummarized her peer evaluation ofMichael Doron'steaching to Dean Rex Fuller. Murffwrote: "Dr. Doron is developing into an excellent instructor as he is rigorous in his expectations, current in terms ofcourse content, well organized in presenting this content and rapidly developing beyondthe presentation and engagement skills ofanew assistant professor." CP at 385. OnFebruary 4,2010, DeanRex Fuller wrote EWU's Provost and Vice President for Academic Affairs John Mason torecommend "renewal ofDr. Doron's contract for 201O-1l." CP at 388. Fuller's memorandum addressed Doron's service to the community, teaching, and research. For service, Fullernoted that Doron served on the Graduate Affairs Council, which was sufficient for a first year faculty member. For teaching, Fuller wrote: "The student comments are mixed; however, like many new faculty [Doron] is adjusting his teaching approach to the level ofstudents in the senior and MBA courses." And for research, Fuller wrote: 16

### No. 31636-0-111 Doron v. Eastern Washington Univ.



### Dr. Doron completed his dissertation, published onepeer review journal article, and presented one paper. These scholarly works are directly related to his discipline and are appropriate in meeting accreditation expectations for academically qualified faculty. In addition, he has several works inprogress, suggesting an on-going research agenda. At this juncturehe is meeting expectations in this area ofresponsibility. CP at 388. In short, during Doron's first year ofservice, his research programproduced a peerreviewedjournal article and two international conference papers based on his dissertation research. On February 15,2010, Arsen Djatej responded to Michael Doron's October 9, 2009 e-mail: DearMike, I finally read the article. Ithink there are some really good ideas in it. Nowthe question is where and how do you want to take it? We canrapidly convert it to an empirical research but I need some kind ofdata. Also, I am preparing for NZ conference in summer do you want to do something together? I have some ideas. Give me a call when you can. CP at 1467. On May 20,2010, Michael Doron signed his "Faculty Workload for A Y 2010· 2011," which covered his second year atEWU. The document described his intended scholarship: Iwill be presenting a paper at the 6th Accounting History International Conference in Wellington, NZ in August, 2010. This is a refereed, published conference proceeding. I have submitted a paperto the AccountingHistorians Journal

### that Ihope to have accepted in 2010. This summer I hope to complete another paper, "TheAICPA and the Campaign for the Natural Business Year," that I will submit to thejournalAccounting History 

### in 2010 with the hope that it will be accepted in 2011. I have begun work on anotherpaper, covering the original intent ofthe accounting 17No.3l636-0-III Doran v. Eastern Washington Univ. provisions ofthe Securities Acts of 1933 and 1934. I am currently reading the eleven-volume Legislative History ofthe Securities Acts, and am planning a trip to the Library ofCongress in Washington, DC to study the papers ofJames Landis, the chiefauthor ofthe Securities Acts. Both Elizabeth Murffand Rex Fuller approved Doron's 2010-11 faculty workload. CP 392. Arsen Djatej returned to EWU from Colorado in the summer of20 1 0 when EWU offered him tenure, new databases for research, and a bigger office. On July 1,2010, Rex Fuller transitioned from Dean ofthe School ofBusiness andPublic Administration to Eastern Washington University's Interim Provost and Vice President for Academic Affairs. In this role, Fuller also served as ChiefAcademic Officer. Niel Zimmerman replaced Fuller as Dean ofEWU's College ofBusiness and Public Administration. The AIS department personnel committee for Michael Doron's second annual review consisted ofArsen Djatej, Sue Megaard, and DuanningZhou. The committee reviewed Doron based on his service to the community, teaching, and research. On October 18, 2010, the committee wrote Department Chair Elizabeth Murffto outline their

concerns and recommendations. The committee's review ofDoron was negative. The personnel committee wrote that Doron attempted to modify one Masters of Business Administration (MBA) course, and eliminate another, unilaterally. "[Doron]

was informed by a senior accounting faculty member, Dr. McGonigle, that he did not

own the courses that he is attempting to modify or eliminate and that he needed to discuss

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### No. 3 I636-0-II1 Doron v. Eastern Washington Univ.



### such plans and get the approval ofthe accounting faculty and AIS Department Chair before he went forward. According to Dr. McGonigle, Dr. Doron became indignant when he heard these comments." CP at 395. The committee "recommended that a different accounting faculty member be appointed to the MBA Committee." CP at 396. The personnel committee further wrote, in its October 18 review: Overall, Dr. Doron's teaching effectiveness is weak at this point of his career. Although it is understandable for a first year faculty member trying to identify relevant teaching methods, there are some significant concerns from this committee: 1. In BADM 560 (MBA Accounting) class, Dr. Doron's students evaluation declined from 3.8 in the fall of2009 to 2.8 in the spring of2010, which is the bottom 10% comparing topeers. 2. Students complained that Dr. Doron only taught 2 hours in 4 

### hour classes. 3. Students complained that Dr. Doron didn't leave the classroom when students were conducting teaching evaluations. 4. Students complained that Dr. Doron didn'tmake prior arrangement to cover his classes when he left for a conference. 5. Students complained thatDr. Doron didn't give clearpaper/case grading instructions. Considering the results ofthe students['] evaluation and the comparison results from IDEA, it is apparent that Dr. Doron is unable to effectively teach BADM560 and ACCT 251 courses. Due to the staffing specifics ofthe accounting program ofCBPA, faculty are required to teach in different accounting subject areas. Unfortunately, at this point,Dr. Doron's capacity cannot be utilized outside ofteaching Auditing I course, which is only offered two sections per year. CP at 395. Thepersonnel committee also wrote: Dr. Doron has published two peerreviewedjournal articles in accounting history in his first year at EWU. He has also presented his 19No. 3 I636-0-III Doran v. Eastern Washington Univ.

papers at conferences. The Academy ofAccounting Historians has awarded Dr. Doron the 2010 Vangermeersch Manuscript Award for his paper "I Askthe Profession to Stand Still: The Evolution ofAmerican Public Accountancy, 1927-62." Dr. Doron is commended for his publication efforts in his first year at EWU. However, boththe CBPA and AIS Policies and Procedures require faculty to publish in the subjects oftheirteaching responsibility. No accounting history courses exist at EWU for Dr. Doron to teach. Therefore, he will need to publish articles related to current auditing and accounting topics tobe clearly within CBPA and AIS department policies. The College Policies and Procedures state that faculty with Dr. Doron's qualifications will be considered academically qualified (AQ) "if they maintain active involvement in the areas ofteaching responsibility through writing

..." These policies are intended to be fully compliant with AACSB-International standards for AQ status in orderto assist in maintenance ofEWU's business accreditation. The AIS Department Personnel Committee recommends that Dr. Doron engage in appropriate research and publication in current accounting and/or auditing to clearly support his AQ status underAACSB standards. In essence the committee is recommending a balanced approach between publications in accounting history and peerreviewed publications of accounting and auditing research related to his teaching areas. CP at 394. The evaluation did not mandate thatMichael Doron cease research and writing on the history ofaccounting, butnoted the lack ofconnection between the research and writing, onthe one hand, and his teaching assignments, on the otherhand. At the end ofthe October 18, 20 

### I0 evaluation, the personnel committee commented on Michael Doron's collegiality: Dr. Doron has clearly rejected needed input from his colleagues. TheAIS department chair and college dean arranged for Dr. Djatej to mentor Dr. Doron this yearupon his return to EWU. HoweverDr. Doron demonstrated a lack ofinterest in being mentored. Forexample, when Dr. Djatej attempted to counsel Dr. Doron on appropriate and official ways of dealing with perceived issues in MBA-related accounting courses, Dr. 20No. 31636-0-III Doran v. Eastern Washington Univ.

Doron appeared reluctant to accept the input on these matters. This again demonstrates that Dr. Doron is not a team player and that he lacks collegiality. 

### It is recommended that Dr. Doron be mentored by a different suitable tenured faculty member, provided that faculty member agrees. Furthermore, Dr. Doron's unwillingness to cooperate has amplified his lack ofcollegiality to the pointthat written communications ofthis nature are unfortunately the best means ofcommunication. CP at 396. After giving "serious consideration to non-renewal" the AIS Department Personnel Committee recommended that Michael Doron "continues on probationary status but with an improvement plan." CP at 396. In an October 25,2010, letterto Business School Dean Niel Zimmerman, Elizabeth Murffechoed the AIS Department Personnel Committee's concerns and recommendations concerningMichael Doron. Murffrecommended that Doron: 1. Continue on probationary status with an improvementplan (see part4) in accordance with section 5.3.1(c)(ii) ofthe Collective Bargaining Agreement. 2. Keep the same teaching load next year as hehad this year (24 credits), although different courses may be assigned toreduce the time stress by reducing the number ofpreps. 3. Have his workload rebalanced immediately by reallocating time into research by reducing his service componentto serving as faculty advisor to Beta Alpha Psi only. 4. Must develop an improvementplan in accordance with section 5.3.I(b) ofthe Collective BargainingAgreement by the first week of Winter Quarter 2011. As my discipline is not accounting, I am requesting thatDr. Doron develop this plan with input from a senior accounting faculty mentor familiar withteaching and research in the accounting discipline. It is Dr. Doron's responsibility to identify this mentor. This plan needs to specifically address the deficiencies noted above in teaching effectiveness and research in current accounting/auditingpractices. The plan must include specific benchmarks for evaluating progress, including appropriate deadlines, and needs to be approved by the department chair, 21No. 31636-0-III Doron 

### v. Eastern Washington Univ.

the department personnel committee, the dean, and the chiefacademic officer at EWU. Progress with respect to this improvementplan will be evaluated during the 3rd to 3-yearreappointment process in the spring of 2012 so that an appropriate decision with respect to retention can be made at thattime. CP at 403-04 (emphasis in original). Both the AIS DepartmentPersonnel Committee and Department ChairElizabeth Murffstated that each would respectively recommend nonrenewal the following year if Michael Doron did not successfully complete an improvementplan. On October 29,2010, Elizabeth Murffand Sue Megaard, as member ofthe AIS Department Personnel Committee, met with Michael Doron to present their concerns and recommendations. Atthe meeting, Murfftold Doron "there are problems with your teaching and research," "we don'tteach accounting history here," and you "maybe a bad fit" at EWU. CP at 472. Doronreplied that, ifEWU did notwanthim researching accounting history, "someone made a mistake in hiring me." CP at 173,472. Michael Doron feared he might "be immediately fired." CP at 718. Doron also feared that an improvement plan would change the direction ofhis academic research. After his meeting with Elizabeth Murffand Sue Megaard, Michael Doronphoned Provost Rex Fuller. Fullerrecommended Doron contact Gary Krug, president ofDoron's union, the United Faculty ofEWU, to discuss his concerns regarding his second year evaluation. On October 30, 2010, Michael Doron e-mailed Gary Krug: 22No. 31636-0-111 Doran v. Eastern Washington Univ.

Rex Fuller recommended I get in touch with you. My relationship with my colleagues and dept. chair in the Accounting and Information Systems Dept. has become strained over issues relating to my FAP and reappointment. I need to know my rights and responsibilities in the process. Ifit would be possible for you to meet with me this weekend, that would be very helpful as the dept. is asking me to begin developing an improvementplan on Monday. Thanks very much. CP at 1052. Doron and Krug met twice to discuss Doron's concerns. Doronprovided a copy ofhis FAP to Krug. Doron expressed his concern that any improvementplan would be inconsistent with his approved FAP

. On November 5, 2010, the AIS Department Personnel Committee wrote Elizabeth Murffto recommend that Michael Doron no longer teach two upper level accounting

courses. The committee wrote: "Before he can return to BADM 505 or 560, he needs to complete this remediation in ACCT 252 and possibly teach ACCT 356 and 357 as well." CP at 2364. On November 9,2010, Gary Krug and UFE ChiefSteward Chris Kirby met with Elizabeth Murff, Niel Zimmerman, and Arsen Djatej "to discuss the issues raised by Dr. Doron, to try to understand the position ofthe department and the dean, and to begin trying to talk through a resolution to the problem." CP at 1027. Krug did not invite Michael Doron to attend this meeting. Those attending agreed that any modification to Doron's FAP would require Doron's approval. On November 10,2010, Dean Niel Zimmerman wrote Provost Rex Fuller: "With the understanding that an Improvement Plan will be in place no later than the end ofthe 23No. 31636-0-II1 Doron v. Eastern Washington Univ.

first week ofWinter Quarter 2011, I support the retention ofDr. Michael Doron for his 3rd year at EWU." CP at 406. Zimmerman sent copies ofthis letter to Elizabeth Murff and Michael Doron. Michael Doron met with Elizabeth Murffand Arsen Djatej twice in November 2010. Doron testified aboutthose meetings: I said that whatI wanted done was that my second-year evaluations beredone and state that 

### I am meeting all ofthe standards in my 

### FAP. And I said once that's taken care of, then we will start talking about how to improve my teaching and my research. I said ifyou want me doing research in areas outside ofaccounting history for AACSB standards, that makes perfect sense. When I was hired, it was understood that I would be workingwith Arsen, and we can do that again. I will workwith Arsen. You wantmeteaching othercourses, I will teach other courses. Coauthoring a paperwith Arsen, it was impossible until Arsen got in touch with me and said,**~'Here's** the project we're coauthoring." As I said, it's Arsen's project; it's dependent on Arsen. I had said very clearly, "I'm opentothat. I've always been opentothat. I was hired to do that. Let's go for it." ButArsen is the one who would have to go ahead and make that happen." CP at 722, 740. Michael Doron further testified: Q Was there anything you asked him [Arsen Djatej] to do specifically thathe didn't do? A No. CP at 1457. In a critical passage in his deposition, Michael Doron declared: Q At any point in time did he refuse to co-authorpapers with you? 24No. 3 I636-0-III Doron v. Eastern Washington Univ.

A As I said, there was no explicit rejection ofthat. That didn't happen, no. Q So was there ever an explicit promise made by Arsen that he didn't fulfill? Mr. Kirby: Objection: asked and answered. A I would like to give a longer answer to that. That's not something that I can say yes orno. Q By (Ms. Clemmons): Okay. A I was hired explicitly with the understanding that I wouldbecoauthoring with Arsen, and he left. Then I was left to start at Eastern without being able to rely onhimbecause he was no longer employed at Eastern. So I have got my research going onwhich is this accounting history, what I do. So I wrote up my FAP talking about what I can do, what I plan to do with accounting history, and it gets approved. And everything is fine for a year. Then the second year evaluations, they say that what I have been doing for the last year, whatthey explicitly signed offonisn'tworking. And so I offerright away in those first meetings that Beth [ChairMurff! and Arsen were at, you want me co-authoringpapers withArsen like I originally was hired to do, that's no problem. I will do that. And the idea never goes anywhere. Q Arsen hadreturned. Was there anything that would prevent you from co-authoringpapers with Arsen after he returned to Eastern Washington University? A As I said, I was working onmy stuff. Everyone had signed offon it. I thoughtwhat I was doing on my own was fine. I didn'tneed more projects working with Arsen. I wasn'trefusing. There was no need for it. As soon as they told me there is a need for it, I offered: That's fine. You want mebrought in on Arsen's projects? No problem. Just tell me whatto do. Q I understand whatyou are sayingthat you started your own projects so you didn't see a needto co-author anything andyou were not eliciting co-authoring. Correct? A Except as we've already gone through. I did try to gethimto coauthorthat one paper ofmine. Q And I simply wantto know ifyou're contendingArsen didn't do something that he explicitlypromisedhewould do? MR. KIRBY: Objection, asked and answered. 25No. 31636-0-III Doran v. Eastern Washington Univ.

A Yeah. I have explained exactly what didhappen. Was there a moment when I saidpleasebring me in on one ofyour projects, and he said no? That didn't happen. ButI've explained what didhappen, and I feel that that is himnot sticking with theterms I was hired under. Q (By Ms. Clemmons) What did Arsen do wrong to change the terms?A The understanding was that I would be co-authoring with him. Oncethey brought it to my attention that what I was doing was no longer good, I said fine. Let's gobackto what we originally agreed to when I was hired. 1'11 co-authorwith him. Atthatpointhe had a responsibility to fulfill the promise he made to me. Had he said, Here is the project I am working on, this is exactly what I want youto do, and you do this, and it will be co-authored and everything will be fine, and he didn'tdo that. AndI explicitly offered I will do that if that's what you want. He never followed up. Q Didyou ever go to himto say let's co-author something andthis is what we should do other than the e-mails you referred to? MR. KIRBY: Objectionto the form ofthe question. It's been asked and answered several times. Q (By Ms. Clemmons) Dr. Doron, what Ijust simply wantto understand is

- there is a general understanding you are going to work together and co-author something, butyouhaven'tidentified specifically what. Correct. A Itnever was identified specifically what, yes. Q In the discussions did you identify this is how I am goingto approach you and it is my responsibility to tell you what to do and how the co-authoringwould occur? A We never got into those kinds ofdetails. Well, to some extentthese were his projects. I told him I do not have a strongbackground in econometrics and computerprogramming. He said, That's fine. Whatyou can do is maybe collect data for me, maybe write the literature review for the paper. And I figured, yeah, okay, I can do that. Q So you have this general understanding that you are going to work with someone. He is amendable [amenable] to working with you, correct? A What do you mean he is amendable [amenable] to working with me? I don'tknow that that's correct, no.

26No. 31636-0-111 Doron 

### v. Eastern Washington Univ. Q Atthe time that you reached this understanding with him, he was amendable to workingwith you? A Well, that's whathe promisedto do. So I would have to assume he was amendable, yes. Q And you promisedto work with him, too, correct? A Itwas the understanding when I was hired that I would be doing thatwith him, yes. Q Other than the general understanding thatthe two ofyouwould worktogether, was there any specificterms as to how that would occurthat anyone violated? A We never set explicitterms like that. CP at 1458-59. OnNovember 18, 2010, UFE President Gary Krug and Michael Doron met with Elizabeth Murffand Arsen Djatej. Doron asserted thathis approved FAP remained viable, and should be enforced as part ofany improvementplan. Krug commented that he represented every person there. According to Krug, he searched for "a satisfactory agreement thatwouldprotectDr. Doron, that would ensure the department accreditation standards and the CBA was notviolated." CP at 1011. Tothis end, Krugproposed that Doron rewrite his FAP. Doron declined since he wantedhis existing FAP "enforced as written." CP at 1018. In a November 19, 2010 e-mail message to Gary Krug, Michael Doron expressed his disappointmentwiththe November 18 meeting and withthe assistance from Krug: As I told you last night, I am very disappointed in how the meeting went, particularly in your performance. I will try to schedule another meetingwithBeth and Arsen to repairthe damage thatwas done. I do not want you in attendence [sic] at this meeting. Because they obviously do not understand that their evaluations need to be based on my progress in 

### 27No. 3 I636-0-III Doran v. Eastern Washington Univ. meeting my FAP, it appears they do not intendtorewrite their evaluations. IfI am able to change their minds, we can move forward from there. Ifnot, I need to know that you are willing to help me file a formal grievance stating that the evaluations are in violation ofthe CBA. I need youto give me a firm answer on this before I meet again with them, so I am not left in a position ofwaiving my rights. I also need to address your statement atthe meeting last nightthat you are there to represent "everyone's interests." That was not my understanding when I came to you and is not whatyoutold me in ourmany conversations. My understanding is thatyourrole as union rep. is to ensure that my rights are protected under the collective bargaining agreement. Is this correct ornot? I would like a firm answer so that I can assess whether I can trust you going forward. I will be anxiously waiting for your response, as I have to continue working onthis. CP at 1058. Gary Krug responded to Michael Doron onNovember 21: I strongly advise against your taking unilateral action in your case. You are always free to conduct your own case ifyou so desire, but UFE cannotrepresentyou onceyoubeginto do so. Be further advised that the filing ofgrievances is solely the decision ofUFE based on our assessment ofacase. Youhave some misconceptions abouthowthese matters are conducted. UFE represents and enforces the contract. All members and entities in the bargaining unit receive equal protection and advice regarding the enforcing ofthe contract. I am not your attorney. I work for the CBA. Your case is complex and is based upon the FAP youpresentedto me as well as other matters raised by the Dean and the chair ofthe DPC [Department Personnel Committee]. I will tell youfranklythat after consultation with others in the UFEExecutive Board I have deep concerns regarding your FAP as a document. 

### It seems to fail meeting specific CBA criteria for an FAP given in 7.3.1, and parts ofit are vague in the extreme making assessment difficult ifnot impossible. We are currently taking advice regarding the best way to proceed. I am available discuss this with you onTuesday 1:00 PMin my office when I may have further knowledge. CP at 1058. Gary Krug copied UFE's President ofBargaining Suzanne Milton and WEA 28No. 31636-0-II1 Doron v. Eastern Washington Univ. Organizer Gary McNeil on his response to Doron. On November 22, in the same e-mail thread, Doron wrote Krug: I still do not understand what you are telling me. I came to you to have an advocate in dealing with a violation ofthe CBAby my supervisors. I asked you when we first met ifI needed a lawyer and you said no, the union wouldprovide me with one ifI needed it, but I wouldn't need it because my case was "an easy one." You will also recall that prior to the meeting with my chair and DPC you waited in my office with me and then we walked into the meeting together. This is what an advocate would do. The lastparagraph ofyour email is particularly troubling. We have discussed many times that myFAP is crystal clear onthe standards I am to be evaluated on. I would also remind you that it is an approved FAP, all the way up through the Provost ofEastem Washington University. It would certainly not be my fault or my responsibility ifthe document I signed in good faith and have been following for a full year did not meet CBA standards. Finally, who are these people you are all ofa sudden cc'ing in your email to me? CP at 1061. Krug replied: As I said, working a problem is aprocess. On first glance, the 3.0 median score looked ok, but it is stated as an "objective." Further, as I noted this FAP falls short onpoints of7.3.1 and possibly other areas. The mission ofthe UFE, again, is to clarify and enforce the contract, the FAP, being a documentunderthat contract. As such, ifthe FAP does not meet the CBA it is not a valid document. 

### It does not matter who signed this document. This is the first time UFEhas seen it and has had opportunity to study it in detail. UFE will recommend that the existing FAP be rejected and that a new one that meets therequirements ofthe CBAbe drafted by the end ofWinter quarter. Regarding your question ofpersons cc'd. Suzanne is VP for Bargaining, Gary McNeil is our state organizer. All communications copied to them are confidential. CP at 1061.

29

### No. 31636-0-111 Doron 

### v. Eastern Washington Univ.



### WEA representative Gary McNeil first heard ofthe dispute between Michael Doron and EWU when Gary Krug forwarded him a copy ofthe November 21 e-mail message. As an organizer for WEA, McNeil helped to negotiate the EWU CBA. Krug latertestified: "Gary McNeil is someone I will consult with from time to time regarding

cases from time to time. He sometimes has some very good ideas." CP 1012. Krug kept McNeil apprised ofthe dispute between Doron and EWU, stating "I valued his advice and I found him-I found him to be a good person to sound ideas from, particularly the idea ofthe-ofunderstandingthe role ofthe FAP in all this." CP at 1014. On November 22,2010, Gary Krug asked for Gary McNeil's feedback on a proposed e-mail to EWU officials, which outlined the purported deficiencies in Michael Doron's FAP. When later deposed, Krug could notrememberwhether McNeil answered his request for feedback. There is no evidence in the record that he answered. Less than

one hour afterrequesting McNeil's feedback, Krug sentthe e-mail to Michael Doron, Department ChairElizabeth Murff, and Arsen Djatej, with a copy to Provost Rex Fuller, Business School Dean Niel Zimmerman, and McNeil. Krug wrote: It 

### is the opinion ofUFEthat the Faculty Activity Plan for Michael Doron, dated November 20, 2009 is flawed, indefensibly vague, and not in compliance with the requirements for an FAP stated in the Collective Bargaining Agreement in effect 2009-2013. In particular the document is not in compliance with Article 7.3.1 and subheadings ofthat article. "7.3.1 Plan Content. The FAP shall be consistent with the University mission and Strategic Plan, college, library, and department strategic plans, P&P, and the Agreement. The FAP shall include all areas ofprofessional activity, development, and expected performance; describe an equitable 30No. 3 1 636-0-III Doran v. Eastern Washington Univ. workload; and include any other expectations as required by department or college/library P&P. Where the FAP is intended to lead to tenure and/or promotion the plan shall so state." Doron'sFAP does not state that it is intended to leadto tenure and promotion. Doron'sFAP is not consistent with the college P&P. Doron'sFAP presents assessment criteria that cannotbe measured and it does not include metrics from the college P&P. We do not hold this list to be exhaustive or complete. UFE proposes that eitherthe Chair ofACIS or Dr. Doron requests a new FAP to be negotiated as is set forth in the CBA 7.3.5. This process should be completed by the end ofWinter Quarter. CP at 1065. Section 7.3.5 is the previously quoted section that allows for modification of a FAP at the request ofeither the faculty member or his or her department chair. OnNovember 24, 2010, Department Chair Elizabeth Murffe-mailed Michael Doron notifying him ofhis new teaching load, consisting oflower level classes and the need to develop an improvementplanby January 7,2011. Murffattached a revised faculty workload to this e-mail, which described Doron's scholarship goals as submitting for publication and presenting at a conference "at least one article clearly related to current accounting/auditingpractice." CP at 787. Murffs e-mail also stated: In accordance with article 7.3.5 ofthe CBA dated 10/8/09-8/31113 and Gary Krug's email of 11122110, as department chair I am requesting a modification ofyour current FAP in orderto bring it into agreementwith the various documents mentioned in article 7.3.1 ofthe CBA and with standard 10 ofourAACSB Accreditation. Thisprocess needs to be completed by the end ofWinter quarter, March 18, 2011. CP at 784.

31No. 31636-0-II1 Doron 

### v. Eastern Washington Univ.

OnDecember 1, 2010, EWUProvost Rex Fuller, as ChiefAcademic Officer, approved the reappointment ofMichael Doron, writing: I am pleased to inform you that I concurwith the recommendations ofyour departmental colleagues, your department chair, and your dean and approve you for appointment, with an improvementplan, to an additional year in yourprobationaryperiodthrough the 2011-2012 academic year. You will be reviewed for tenure andpromotion during your final year of yourprobationary appointment. As noted by the DPC, department chair, and dean, you are required to develop an improvementplan by no later than the end ofthe first week ofWinter Quarter 2011, pursuant to section 5.3.l.b ofthe Collective BargainingAgreement. You should focus this plan on ways to improve yourteaching effectiveness and demonstration ofscholarly activities related to the expectations outlined in the department and college policies and procedures and your FAP. As you know, the CBA enables you to revise yourFaculty Activity Plan for consistency with these expectations. In order for you to be eligible for tenure and promotion, you will needto demonstrate effective teaching and produce appropriate peer-reviewed scholarly works as outlined in your department and collegepolicies and procedures. CP at 793. Under section 5.5 ofthe CBA, Michael Doronhad five days from the date of this lettertopetitionProvost Fuller for reconsideration ofthe "negative recommendation." Also, under section 5.6.2 ofthe CBA, Doron had fifteen days to accept "the conditions ofappointment," or, under section 5.6.3 ofthe agreement, fifteen days to provide notice ofhis intent to "resign." CP at 250. OnDecember 1,2010,Michael Doron replied to Elizabeth Murffs November 24, 2010 e-mail and asked thathis teaching load not change. Murffdenied Doron's request laterthat afternoon.

32No. 31636-0-111 Doron 

### v. Eastern Washington Univ.

Section 7.5.6 ofthe CBA governs "Disputes Over Workload" and initially requires UFE to contactthe department chairto arrange a meeting. "Ifthe meeting does not result in a mutually agreed resolution, and the UFE chooses to pursue the dispute," the union president refers the dispute to the Faculty Review Committee (FRC). CP at 257. OnDecember 6, 2010, Michael Doron e-mailed Gary Krug to expresslyrequest that UFE file a grievance against EWUfor revising Doron's faculty workload without his consent. Krug refused to file a grievance, because he believed Doron would be best served byrenegotiating his FAP. Doron further requested Krug refer the disputeto the Faculty Review Committee under Section 7.5.6 ofthe CBA. Krug also refused this request, later testifying: "Any Faculty Review Committee would have simply come back to the FAP, the CBA, andthe P & Ps on this. With, in my opinion, a fatally flawed FAP, it would be a waste oftime and wouldn't lead to a satisfactory resolution." CP at 1025. OnDecember 10,2010,union president Gary Krug met with Dean Niel Zimmerman and Provost Rex Fuller. At that meeting, all agreed that Doron's FAP could not be changed without Doron's consent. Krug did not inform Michael Doron ofthis

consensus. Krug warned Zimmerman and Fuller that ifEWUpushed an improvement plan on any issue otherthan teaching, United Faculty would file a grievance. On December 15, 2010, UFE President Gary Krug e-mailedMichael Doron to encourage him to renegotiate his FAP in good faith with his colleagues. On December 21,2010, Michael Doron e-mailed Department ChairElizabeth 33No. 31636-0-111 Doron 

### v. Eastern Washington Univ. Murff, outlining his continuing concerns. Doron began: "I have determined that rewriting my approved Faculty Workload, signed by you, Rex and myselflast spring, would be a violation ofthe CollectiveBargainingAgreementthat I wouldnot be comfortable colluding in." CP at 795. Doron noted that his workload had changed without his input, that he did notreceive sufficientnotice in violation ofthe CBA, and that the revised workload set goals in a scholarship exceedingthe scope ofhis FAP. Doron concluded: "IfI am forced to teach ACCT 252, it will be with the understanding that I believe this to be a violation ofthe Collective Bargaining Agreement and that I am not waiving any rights topursue legal remedies in the future." CP at 795. Doron forwarded this e-mail to Gary Krug. On January 1,2011,Niel Zimmerman e-mailed Michael Doron to confirm that Doron wouldteach Accounting 252. Zimmerman noted that Doron was "freeto continue to dispute this assignment," but failure to "showup ... may bethe basis for discipline." CP at 820. Doron confirmed that nightthat he wouldteach the class. OnJanuary 3, 2011, Elizabeth Murffe-mailed Michael Doron to remind himthat heneeded to develop an improvement plan by January 7. Doron responded on January 5: The CollectiveBargainingAgreement states that "Full-time faculty on probationary status will be evaluated annually" andthatthese "evaluations will be based upon progress in meeting goals contained in the FAP" (Article 5.3.la). In discussing Improvement Plans, the CBA goes on to explain that "ifperformance shortcomings are identified through the evaluation process, the probationary faculty member shall beprovided with a plan to correctthe performance shortcomings" (Article 5.3.1b). As I have 34No. 31636-0-111 Doron 

### v. Eastern Washington Univ. pointed out several times, I am meeting, in fact exceeding, all ofthe standards in my approved FAP. Itwould therefore be a violation ofboth the spirit and the letter ofthe Collective Bargaining Agreement for an ImprovementPlan to be prepared in my case. I will notparticipate in this process and will not agree to any changes to my FAP. I am enclosing a discussion ofthe issues identified in our conversations and emails. CP at 822. In the attached document, Doron summarized that he was hired to conduct research in accounting history, his FAP embodies that expectation, and EWU encouraged him whenhe successfully presented a paper on accounting history in New Zealand. In a deposition, EWU questioned Michael Doron: Q: Request for Admission No. 16 states: "Please admit that you refused to accept Eastern Washington University's conditional offer of reemployment for the 201112012 school year." Yourresponse after an objection states: "Admitthat Doron believed that EWUviolated the CBAby conditioning renewal ofDr. Doron'sprobationary appointmentupon Dr. Doron developing an ImprovementPlan whichrequired Dr. Doron to revise his approved FAP without Dr. Doron's consent. "Further admit that Dr. Doron did not develop an ImprovementPlan after EWUrefused to provide assurances that Dr. Doron would not be requiredto revise his approved FAP." "Otherwise deny." Thatreally doesn'trespondto the question. Didyou refuse to accept a conditional offer from EWU of reemployment that wouldhave included an ImprovementPlan for the 201112012 school year? A: I did finally

-- that e-mail --well.this one that you have already shown me, I saidI will not participate in writing an ImprovementPlan. They then went ahead and didn'treappoint me on that basis. Q: Didn'tthey, in fact, draft an Improvement Plan for you and make an offerthat any reemployment would be conditioned upon the ImprovementPlan? A: Beth [Chair Elizabeth Murff] did write up -- well, I don't know if it was an Improvement Plan. 

### It was a new workload. 35

### No. 31636-0-III Doron 

### v. Eastern Washington Univ. 

### Well, yeah, I**don~t** 

### know that that was an Improvement Plan. She sent me a workload that she hadwritten up. I don'tknow that they ever sent me an ImprovementPlan. Q: 

### Did you get a conditional offer ofreemployment for the 201112012 school year from Eastern Washington University? A: Yeah. I believe a letter from Rex said with the understanding that you develop an Improvement Plan. Yes, I think that's right. Q: 

### Do you considerthat a conditional offer ofreemployment?**[Doron~s** 

### Counsel]: Objection to the form ofthe question. It 

### requires a legal conclusion. Try to answer it. A: Yes, that's how I understood it. Q: 

### (By Ms. Clemmons) Did you rejectthe conditional offer of reemployment for the 201112012 school year? [Doron's Counsel]: Objection to the form ofthe question. It requires a legal conclusion. A: Again, in this e-mail here I say I refuse to do an Improvement Plan. And I say -- well, I didn't say -- but I guess my implication was you guys go ahead and do whatyou're going to do based on that. You want to not reappoint me because ofthat, then do that. Q: 

### I am looking for you to simply say I either accepted the offer or I rejected the offer. And you were made a conditional offer ofreemployment for the 201112012 school year. Did you accept it or reject it? [Doron's Counsel]: Objection to theform ofthe question. It requires a legal conclusion; asked and answered. One more time. A: I never explicitly wrote a letter "I reject this." So I guess my answer is, no, I didn't accept orreject. Q: 

### (By Ms. Clemmons) In the letters you did write, did you consider yourselfto be rejecting it? A: That's what Iwas implying, yes. Q: 

### At any point in time did you write anything indicating that you were accepting that conditional offer? A: Again, I would point to the suggestions I tried to make about what

-- how we couldjustify my work, how we could change things, what I wanted to see us do. So I don'tknow. I would take that as my trying to negotiate on thatpoint.

36No. 31636-0-III Doron v. Eastern Washington Univ. But, no, I never accepted the conditional offer of employment. CP at 1660-63 (emphasis omitted). Michael Doron testified regarding his January 5,2011 e-mail: Q. Didyou meet the time**line~** provided by Eastern Washington University to develop an improvementplan? A. That's a long answer. I made many efforts to negotiate with them over time. As we've said, finally

-- when they made it clear to me, when Niel Zimmerman made it clear to me that the whole process was meaningless, I finally said, "I will not participate in this anymore." 

### Q. Andthat was January 5th, 2011, correct? A. I believe the memo we looked at Wednesday, yes, I think January 5th. Q. And did you understand at that time that it was clearly the university's position that ifyou did not participate in developing an improvement plan, that you would not be renewed for the following year? A. They did clearly state that was their position. CP at 1677-78 (emphasis omitted). On January 9, 2011, Michael Doron e-mailed Gary Krug: You may recall the email below, dated nearly a month ago, where you ask for my "continued indulgence" and plead that "manypeople are working hard on this case to bring about a resolution." Since I have heard nothing from you since, I am assuming this email, like everything else you've done in my case, was some sort of joke. In the meantime, I continue to fight single-handed against the entire administration ofthe College as they tear my "contract"to shreds. Anytime the UFE would like to get involved, let me know. CP at 1085. Gary Krug responded onJanuary 12: Several members ofUFE executive have met and reviewed your 37No. 31636-0-III Doron v. Eastern Washington Univ.

case on multiple occasions. We have also consultedwith EWU administration regarding your case, andwehave considered all communication from you. UFE has been clearthat the central document in your contract, your FAP, is deeply flawed. UFE has found nothingto grieve in your case with the exception ofthe FAP itself, and as neitheryou nor administration have expressed any interest inthis solution, there is no action for UFE to take. We have encouraged you to develop a compliant FAP that would clearly define the conditions ofyour employment. You have declined to take this advice and have followed your own counsel. UFE cannot advise you on actions that you take contrary to ourrecommendations. Throughout, UFE has acted in what webelieve is your best interest and the best interest ofthe CBA. CP at 1085. On January 20, 2011, Business College Dean Niel Zimmerman e-mailed Michael Doron to extend the deadline for developing an improvementplan and outlinethe consequences for not doing so. Zimmerman wrote: Your email of 115/11 regarding the requested improvementplan and revised FAP indicated that you "will notparticipate in this process and will not agree to any changes to [your] FAP." That email has beenread and given due consideration. However, the situationremains as follows: As significant issues were noted duringthe evaluation process in the areas ofteaching and research, your annual evaluation resulted in recommendations for continuation onprobationary status with an improvementplan [CBA 5.3.1(c)(ii)] by the dean (dated 11110/10), the department chair (dated 10/25/10), and the departmentpersonnel committee (dated 10/18/10). Though thepreviously set deadline (1/7/11) for completion ofa meaningful improvement plan that leads to tenure [CBA 5.3.l(b)] has now passed we would like to extend one last opportunity to develop an improvementplan that addresses the issues noted and provides direction for you concerning your progress towardtenure and promotion. As your department chairis not ofyour discipline andthe issues noted are primarily discipline based, Dr. Arsen Djatej is available to assist you in developing the plan. Your department chair, Dr. Elizabeth Murff, will act 38No. 31636-0-111 Doran v. Eastern Washington Univ.

in oversight and approval roles. Thisprocess mustbegin by February 1, 2011 with a completion date ofFebruary 18,2011. 

### Failure to develop an improvement plan may lead to progressive discipline lCBA 13.2]. Atthe recommendation ofthe UFE (dated 11/22/10), the department chairrequested a modification ofyour current FAP in orderto bring it into agreementwith the CBPA Policies and Procedures, CBA 3.6.1 and 7.3.1 and AACSB Standard 10. This request was madeto you in accord with CBA7.3.5 on 11124110. The DPC [Department Personnel Committee] would like to meet with you before February 28, 20II to getthis collaborativeprocess going. Please confirmto me your willingness to proceed, and we will arrange a meeting with the DPC. The deadline for completion ofthis process [CBA 7.3.2 and CBA 7.3.3] was given as March 18,2011. If

### a revised FAP in accord with CBA 3.6.1, and 7.3.1 and AACSB Standard 10 is not prepared by this date, then your existing FAP will be revised bythe department chairand the department personnel committee such thatit meets the approval ofthe dean and the ChiefAcademic Officer [CBA 7.3.3(b)]. Please let me know, in writing, by January 28, 2011 whether ornot you agree to participate inthe development ofthe improvementplan and the revised FAP. CP at 413-14 (emphasis in original). Michael Doronresponded to Niel Zimmerman's January 20, 2011, e-mail on January 25: Thank you for your email. 1would need tobe assuredthatthese meetings are good faith negotiations and not simply steps towards disciplinary action. Particularly, the points 1have raised in my previous communications must be addressed: 1.) Beth [Murff] already prepared a newFaculty Workload for me. I discussed theproblems with this document inmy email ofDec. 21 st and have received noresponse. 2.) Your email does not even acknowledge the six-page memo 1sent on January 5th. This suggests that my concerns are not being taken seriously. 3.) 1am still unclear onwhatthe terms ofthis renegotiation will be. Once my FAP and Workload have been rewritten, what assurance will I 39No. 31636-0-II1 Doran 

### v. Eastern Washington Univ.

have that these documents will remain in force for the remainder ofmy probationary period? Does the administration reserve the right to unilaterally changetheterms ofmy employmentwhenever it sees fit? CP at 416 (emphasis omitted). Dean Niel Zimmerman responded on January 27 by both e-mail and letter. In his e-mail response, Zimmerman explained that Elizabeth Murffresponded to Michael Doron's December 21,2010 e-mail on December 23, and thatMurffs e-mail notedthe "draft" nature ofDoron's revised workload. Zimmerman reiterated the position that Doron needed to produce some intellectual contributions related directly to current accounting practice in orderto demonstrate qualification to teach in those areas and Doron's intellectual contributions in accounting history did not accomplish that. In his January 27 letter, Niel Zimmerman reminded Doron that his "reappointment for the 2011-12 academic year was offered based on the requirement that [he] develop an improvementplan." CP at 848. Zimmerman continued: Despite your failure to work with the Department chairto create an improvementby the January 7, 2011 due date, the University offeredyou a laterdate. The CBAlanguage requires that you develop an ImprovementPlan, in conjunction withthe chair, CBA 5.3.1(b). Your letter ofreappointment requires that you develop that plan as a condition ofyourreappointment. Therefore, I am directing you to participate in thatprocess, consistent with theprovisions ofthe CBA, which include meeting with Dr. Murffby February 1,2011, and completing an Improvement Plan no laterthan February 18, 2011. 

### As previously communicated, ifyou fail to develop an ImprovementPlan, this may lead to discipline. Furthermore,if your [sic] fail to begin participation in the development ofan 40No. 31636-0-III Doran v. Eastern Washington Univ. 

### Improvement plan by February 1,2011 and/orfail to complete an ImprovementPlan by February 18,2011,this may be treated as insubordination and may also lead to discipline as provided by Article

. 13 ofthe CBA. In closing, the University is interested in working with you to complete an ImprovementPlan as provided bythe terms ofthe CBA. Therefore, I truly hope thatyou will consultwithDr. Arsen Djatej and workwith Dr. Murffto develop a plan. CP at 848-49 (emphasis in original). OnFebruary 2, 2011, Michael Doronresponded to Niel Zimmerman's January 27 letter, again refusing toparticipate: Thankyou for your email. I asked for "assurance that the meetings would be good faith negotiations and not simply a step towards disciplinary action." You have answered my question plainly

. Youremail ignores most ofmy concerns and offers risible rejoinders to the rest. What is consistent is the complete absence ofany attempt at conciliation, any concession that anyone but myselfbares any responsibility for this situation. Youhave made it clearthat these "meetings"would simply be a pretense to begin disciplinary action. Let me save youthe time: I will not participate in this process, and will not agree to any changes to my approved FAP orFaculty Workload. CP at425. OnFebruary 7, 2011, Provost Rex Fuller wrote Michael Doron: Thepurpose ofthis letter is to inform you ofmy conclusion that you haverejected the conditions ofyourreappointment for the 2011-2012 academic year. My conclusion is based upon yourrepeated refusal to participate in the development ofa performance improvement plan, which is a required term ofyourreappointment. Bythese responses, [referring the January 5 and February 2 refusals,] youhave rejected yourreappointment for the 2011-2012

41

### No. 31636-0-III Doran v. Eastern Washington Univ.



### academic year. Accordingly, your employment at the University will terminate at the end ofyour currentterm ofappointment, June 15, 2011. CP at 427-28. Fuller did not support this conclusion with "just cause" or follow the discipline procedures in Section 13 ofthe CBA. On February 9, 2011, Michael Doron forwarded RexFuller's February 7 message to UFE President Gary Krug, writing: "Theuniversity has terminated me effective June for not writing a new FAP. This is something the union will have to act on. Let me know." CP at 1087. Gary Krug forwarded Michael Doron's e-mail to WEA's Gary McNeil, writing: "Havethe procedural, contractual steps been followed here? Isjust causes [sic] for dismissal shown. I'll look atthis latertonight and tomorrow, butplease share your thoughts in the meantime." CP at 1087. McNeil replied to Krug: "Gary: [t]he CBA

covers both progressive discipline andjustcause. Has this faculty person been disciplined before?" CP at 1089. From this point on, Gary McNeil assumed a leadership role in Doron's case. On February 11,2011, WEA's Gary McNeil e-mailed UFE's Gary Krug with his assessmentthat "[t]ermination is a stretch. We could grieve progressive discipline. The remedy wouldprobably have to include an improvement plan.

. .. The union does not have to file a grievance. We have to deliberate the case, not decide anything on personalities." CP at 1092-93. McNeil later declared:

42

### No. 3 1 636-0-III Doron v. Eastern Washington Univ.



### In an email dated February 11, 2011, I outlined the various issues that were associated with the letter dated February 7,2011 that Dr. Fuller wrote to Dr. Doron informing him that he had rejected the conditions ofhis reappointment by refusing to participate in the development ofan improvementplan. This email only contained my initial impressions ofDr. Fuller's letter. Although I stated in the e-mail that "Termination is a stretch", we later determined that Dr. Doron had refused to accept the offer ofreappointment EWU made to him because he refused to agree to participate in the development ofan improvementplan. Therefore, he had not been terminated and a grievance was not warranted becausehe had refused to accept EWU's offer ofemployment. CP at 2695. On February 16,2011, Gary Krug informed Michael Doron that "UFE is requesting from EWU administration all documents relevant to their decision. We will review these regarding procedures of justcause, discipline, dismissal and related matters." CP at 1095. On March 11,2011, WEA's Gary McNeil e-mailed UFE President Gary Krug and UFE Grievance ChairElizabeth Kissling. McNeil wrote: I spoke with a WEA attorney on this issue today. His initial reaction to the situation is as follows: 1. Get Doronto accept the contract; management has the right to terminate him for not agreeing to the proposed contract. Without a contract, no work. Doron's refusal does not leave a status quo FAP-it leaves him without a contact. 2. Ifhe signs, then there is the matter ofthe improvementplan. We could pursue grieving the actual improvementplan that is devised or initiate meetings with Fullerto explore ways to have a coherent FAP/improvementplan. Can an improvement plan become a new FAP-is that doable? Ofcourse, Professor Doron would have to agree to work with this reality.

43

### No. 31636-0-111 Doron v. Eastern Washington Univ.



### 3. Now my reflections. Management does have a solid argument. He is in probationary status. They have the right under the CBA to offer a contract with an improvementplan. 4. Crafting an improvement plan based on a flimsy FAP does produce a problem. IfProfessor Doron wants to work at EWU, he will have to seethe opportunity to workhere by crafting aplan thatre-writes the FAP. His one solid point is that how you can have specifics in an improvementplan when there are little specifics in the FAP. Ofcourse, if you want ajob, you canbend a good bit. 5. So we meet with him and tell him the "facts on the ground." His argument-no need for an improvementplan--does not recognize thathe is an [sic] probationary employee working on probationary contracts. Comments? CP at 1102. Michael Doron claims this e-mail conveys "advice from the WEA to UFE that EWUProvost Fullerhad the authority underthe CBAto 'conditionally' reappoint Doron, and terminate Doron's reappointment ifDoron does not accept an improvement plan." Br. ofAppellant at 27. On March 16, 2011, Gary McNeil, Elizabeth Kissling, and Michael Doron met to draft a "Counter-ImprovementPlan" as a gesture ofgood faith. McNeil presented the plan to Carol Hawkins, in EWU'shuman resources department, and Laurie Connelly, an AssistantAttorney General representing EWU. McNeil discussedthe plan with Rex Fuller over the phone. Fuller found the plan "lacking,"because he thought it did not address the shortcomings identified previously. On March 17,2011, Hawkins e-mailed McNeil: Thank you for meeting with Laurie Connelly and I yesterday to discuss and review the proposal you dropped offon behalfofMichael Doron. Laurie and I met with ProvostFullerthis morning and discussed it 44No. 31636-0-III Doron v. Eastern Washington Univ.

with him. He has conferred with the Dean and Department Chair, and after careful consideration, he has determined toproceed with the nonrenewal. Please let me know ifI can provide any additional information or assistance. CP at 1120. In his deposition, Michael Doron admitted that his employment cameto an end because he rejected the improvementplan offer, not because he was disciplined or terminated. On April 16, 2011, Michael Doron received an offer to teach at California Southern University at Northridge, which he accepted. Doron's employment with EWU ended June 15,2011. PROCEDURE On June 27, 2011, Michael Doron filed suit againstEWU, UFE, United Faculty of Washington State, WEA, Arsen Djatej, Susan Megaard, Duanning Zhou, and Elizabeth Murff. Doron claimed thatEWU violated the collective bargaining agreement and the covenant ofgood faith. He claimed that EWU wrongfully discharged him in violation of publicpolicy, wrongfully withheld wages, and is liable in promissory estoppel. Doron alleged UFE breached its obligation offair representation. He contended that United Faculty ofWashington State and the WEA interfered with his business expectancies. Finally, Michael Doron alleged Arsen Djatej, SusanMegaard, Duanning Zhou, and Elizabeth Murffdefamed him.

45No. 31636-0-111 Doron v. Eastern Washington Univ.

Michael Doron amended his complaint on September 24,2012. The amendment added a claim for disability discrimination against EWU, UFE, and Department Chair Elizabeth Murff. The amendment also added ProvostRex Fuller and Dean ofBusiness School Niel Zimmerman as defendants for purposes ofthe disability discrimination claim. Over a period ofthree months, the court granted dismissal, on summaryjudgment, ofall claims asserted by Michael Doron against all defendants. In turn, the trial court denied Michael Doron's motion for summaryjudgment. On appeal, Dorondoes not challenge the dismissal ofhis claims for defamation or disability discrimination. LAW AND ANALYSIS Breach of Contract The target ofMichael Doron's breach ofcontract claim is EWU and the claim is based on the collective bargaining agreement between his union, UFE, and the university. Washington courts apply contract law to interpret collective bargaining agreements. Navlet v. Portof Seattle, 164 Wn.2d 818, 842, 194 P3d221 (2008). In construing a written contract, the basic principles require that (1) the intent ofthe parties controls, (2) the court ascertains the intent from reading the contract as a whole, and (3) a court will not read an ambiguity into a contract that is otherwise clear and unambiguous. Mayer v. Pierce CountyMed. Bureau, Inc., 80 Wn. App. 416, 420,909 P.2d 1323 (1995). This court interprets an agreement in a mannerthat gives effectto all the contract's provisions. 46No. 3 I636-0-III Doron v. Eastern Washington Univ.

Nishikawa v. 

# u.s. Eagle High, LLC, 138 Wn. App. 841, 849, 158 P.3d 1265 (2007). Interpretation ofa contractprovision is a question oflaw only when (1) the interpretation does not depend on the use ofextrinsic evidence, or (2) only onereasonable inference can be drawn from the extrinsic evidence. Tanner Elec. Co-op. v. PugetSoundPower & Light Co., 128 Wn.2d 656, 674, 911 P.2d 1301 (1996). Michael Doron asserts EWU violated the CBA in four respects. First, EWUhad

noprerogative to reappoint him "contingent" on an improvementplan under the CBA. Second, he had no obligationto formally accept orreject reappointment and thus EWU could notterminate his employmentbecausehe failed to respond to theDecember 1, 2010 reappointment letter. Third, theDecember 1, 2010 reappointment letter did not require him to accept the reappointment for it to become effective. The second and third arguments run together. Fourth, EWU could not terminate his employmentwithout following the CBA's disciplinary process. Unambiguous terms ofthe CBA defeat Doron's contentions. Under section 5.3.1 ofthe CBA, a faculty member's annual review results in one offour options, one option which is the membercontinuing on probationary status with

an improvementplan. Doronprovides no testimony that the CBAwas intendedby the parties to mean otherthan what it says. Under section 5.6 ofthe CBA, a faculty membermust acceptreappointment or notify EWU ofhis orher intenttoresign. Subsection 5.6.2 demands thatthe 47No. 31636-0-II1 Doron 

### v. Eastern Washington Univ. reappointment letter be signed by the appointee and returned to the ChiefAcademic Officerwithin fifteen (15) days ofits receipt to indicate the appointee's acceptance ofthe conditions ofappointment. Thus, EWU followed the contract, rather than breached it, when demanding that Michael Doron accept in writing his reappointment on the condition ofpreparing an improvementplan. Michael Doron emphasizes thathis December 1, 2010 reappointment letter did not inform him thathe neededto accept reappointment. But the law does notrequire an employer to remind the employee oftheterms ofa collective bargaining agreement. Michael Doron contends an issue offact as to whetherherejected the reappointment offerprecludes a summaryjudgmentruling. The undisputed evidence, however, is to the contrary. EWU offered Michael Doron reappointment with an improvementplan twice, and Doron twice rejected the offer. Doron first rejected reappointment whenhe e-mailed Elizabeth Murffon January 5, 2011, stating: "Iwill not participate in this process and will not agree to any changes to my FAP." CP at 822. Doron later testifiedthathe understood the December 1, 2010 reappointment letter as a conditional offer ofemployment, which he implicitlyrejected with his January 5, 2011 email. After the deadline for developing an improvementplan passed, EWU extended Doron "one last opportunity to develop an improvementplan." CP at413. Doron again responded, "Letme save you the time: I will notparticipate in this process, and will not agree to any changes to my approvedFAP or Faculty Workload." CP at 425. 48No. 31636-0-III Doron v. Eastern Washington Univ.

In repeatedly rejecting the conditions ofhis reappointment, Michael Doron emphasized his beliefthat EWUcannot unilaterally modify his faculty activity plan. In this lawsuit, he advocates this beliefby arguing any insistencethat he amend his FAP violatedthe CBA. In fact, on November 24, 2010, Elizabeth Murffrequested a modification to Michael Doron's FAP by March 18, 2011. She cited the CBA section that allowed amendments tothe plan. Twoprovisions ofthe CBA promote Michael Doron's argument and causeus caution when affirming the trial court. Section 5.3.l(a)reads, in part, that "[i]t is expected that the FAP will be in effect throughout the probationary period unless modified by mutualagreement between thefaculty member, chair, personnel committee, dean, and ChiefAcademic Officer." CP at 242-43 (emphasis added). The term "mutual agreement" is strong language in favor ofDoron. Section 7.3.3(a) ofthe CBA, under which any agreed amendments or revisions to the FAP made as a result ofthe collaborative development process must be signed by the faculty member, promotes Michael Doron's argument and causes us further caution when affirming the trial court. Other sections ofthe collective bargaining agreement suggest the administration may demand a change in the FAP and only administration members need approve the changes. Section 7.3.5 ofthe CBA states: "FAPs may be modified during theirterm. A faculty or the chair may request in writing a modification. All modifications are subject to the same approval process as the original FAP." CP at 252. Section 7.3.4 requires 49No. 31636-0-III Doron v. Eastern Washington Univ. approval ofa FAP by the departmentpersonnel committee, the department chair, the school dean, and the ChiefAcademic Officer. The section does not speak ofapproval by the faculty member. Although development ofthe FAP is a collaborativeprocess, and the FAP mustbe signed by the faculty member, section 7.3.3 rests ultimate decision making authority with the ChiefAcademic Officer. We need not resolve whether the CBArequires approval by the faculty member of

a modification to his FAP, since we find this resolution unimportantto resolvingthe appeal. In the reappointment letter, EWUdid not demand a change in the FAP. The school, instead, demanded an improvementplan. Although Michael Doron resisted an improvementplan on the ground that he did not desire a change or only desired limited change in the FAP, the two plans are separate. An improvementplan could be entered without impactingthe FAP. Michael Doron may have had the right to resist any change in the FAP, buthe had no right, underthe CBA, to ignore EWU's demand for an improvementplan. The undisputed facts showDoronrejected a legitimate offer of retention from EWU. Michael Doron's argumentthat EWU violated the disciplinary provisions ofthe CBA hinges on his view that Rex Fuller's reappointment letter could not and was not conditioned on an improvementplan, that he need not expressly acceptthe reappointment, and thus he had a vested right to his professorship the following year. Therefore, according to Doron, any dismissal needed to follow the disciplinary provisions 50No. 31636-0-III Doron v. Eastern Washington Univ.



### in the CBA. Ourprior analysis shows that Doron'sunderpinnings for this argument render it unsound. EWUpossessed the prerogative to reappoint on condition ofan improvementplan and Michael Doron was obligated to accept in writing the reappointment. Michael Doron terminatedhis employment by failing to accept in writing the reappointment. He was not discharged as a matter ofdiscipline. In his deposition, Doron admitted that his employment came to an end because he rejected the improvementplan offer, not because he was disciplined or terminated. Article 13 applies in situations of discipline and discharge for cause, not in Doron's circumstances. Instead section 5.3 of the agreement addresses retention ofprobationary faculty. Even viewing,the facts in a light most favorable to Michael Doron, Eastern Washington University did not violate its collective bargaining agreementwith the UFE in this case. Since we so hold, we need not address EWU's argument thatDoron's suit is barredbecause ofhis failure to exhaust his contractual grievance remedies. PromissoryEstoppel 

### Michael Doron next assigns error to the trial court's dismissal on summary judgment ofhis claim for promissory estoppel against EWU. Doron contends that EWU ProvostFuller and Professor Djatej promised Doron, during the hiring process, that Doron could meet any academic research requirements and be successful at EWU with Djatej's help by allowing Doron to coauthorwith Djatej. Doron argues that the promise 51No. 31636-0-III Doron 

### v. Eastern Washington Univ.

was broken when Djatej transferred to another university and did not coauthor with him. After Djatej returned to EWU, Doron met with AIS Department Chair Elizabeth Murff and Djatej to discuss their concerns in his second annual evaluation, and Doron offered to coauthor academic papers with Djatej, but Doron's suggestions were ignored. Doron further contends that, when acceptingEWU's offer, he rejected otherjob offers and moved to Spokane based on the promises ofDjatej and Fuller. According to Michael Doron, EWU walked away from its promise to help Doron succeed in meeting his academic research requirements when EWU Provost Fuller withdrew Doron's reappointment. In response, EWU contends Michael Doron's promissory estoppel claim fails, as a matter oflaw for four reasons. First, no specificpromise, let alone an enforceable promise, was given to Michael Doron. Second, Doron could not rely on any promise because ofa provision in the CBA warning a faculty member that any oral promises are not binding. Third, Arsen Djatej had no authority to bind EWU to a promise. Fourth, a party may not recover inpromissory estoppel when a written contract controlled the parties' relationship. We agree with EWU's first argument and thus do not address the remaining contentions. Promissory estoppel relates to promises which have no contractual basis in that there was no bargain. Klinke v. Famous Recipe Fried Chicken, Inc., 94 Wn.2d 255, 261 nJ, 616 P.2d 644 (1980). Thepurpose ofpromissory estoppel is to make a promise 52No. 31636-0-111 Doran v. Eastern Washington Univ. binding, under certain circumstances, without consideration in the usual sense of somethingbargained for and given in exchange. Klinke, 94 Wn.2d at261 n.4. The doctrine ofpromissory estoppel was developed to cover certain circumstances in which consideration is lacking, but the enforcement ofthe promise is appropriate because the promisor should expect the promise to induce detrimental reliance on the part ofthe promisor. Hatfieldv. Columbia Fed. Savs. Bank, 57 Wn. App. 876, 885, 790 P.2d 1258 (1990). The doctrine ofpromissory estoppel, unlike equitable estoppel, can be used as a "sword" in a cause ofaction for damages. Klinke, 94 Wn.2d at 259; Flower v. T.R.A. Indus. Inc., 127 Wn. App. 13,31, 111 P.3d 1192 (2005). In Washington, promissory estoppel has five elements: "(1) [a] promise which (2) thepromisor should reasonably expectto cause the promisee to change his position and (3) which does cause the promisee to change his position (4)justifiablyrelying upon the promise, in such a manner that (5) injustice can be avoided only by enforcement ofthe promise." Havens v. C&D Plastics, Inc., 124 Wn.2d 158, 171-72,876 P.2d 435 (1994) (quoting Klinke, 94 Wn.2d at 259 n.2) Obviously, promissory estoppel requires a promise. ElliottBaySeafoods, Inc. v. Port of Seattle, 124 Wn. App. 5, 13,98P.3d 491 (2004). "Apromise is 'amanifestation ofintention to act orrefrain from acting in a specified way, so made as tojustify a promisee in understanding that a commitmenthas been made.''' ElliotBaySeafoods,

53No. 31636-0-III Doron v. Eastern Washington Univ. Inc., 124 Wn. App. at 13 (quoting RESTATEMENT (SECOND) OF CONTRACTS 

### § 2(1) (1981). Not every promise qualifies for promissory estoppel. "A statement offuture intent is not sufficientto constitute a promise for the purpose ofpromissory estoppel. An intentionto do a thing is not a promise to do it." Elliot BaySeafoods, 124 Wn. App. at 13. Importantly, promissory estoppel requires the existence ofa promise that is "clear and definite." Havens, 124 Wn.2d at 173. Another necessary condition is that the promise be worded consistently with an intent for it to be enforceable. Wash. Educ. Ass'n v. Wash. Dep't of Ret. Sys., 181 Wn.2d 212,225,332 P.3d 428 (2014); Workman v. UnitedParcelServ., Inc., 234 F.3d 998, 1001 (7th Cir. 2000) (applying Indiana law); Bouwens v. Centrilift, 974 P.2d 941,947 (Wyo. 1999); Phipps v. IASDHealth Servs. Corp., 558 N.W.2d 198,204 (Iowa 1997). The condition is similar in nature to promissory estoppel's element that the speaker shouldreasonably expect that the promisee change his orher position based on a promise. Under Michael Doron's version ofthe facts both Arsen Djatej and Rex Fuller "promised" that Djatej would coauthorpublications with Doron and thereby assist Doron in fulfilling his publishing requirements. Nevertheless, Doronpoints to no specific time

or date when an express promise was made. Doron repeatedly conceded he heard no specifics ofany promise. He does notprovide testimony as to the specific words used so

54No. 31636-0-III 

### Doron v. Eastern Washington Univ.

that one could conclude thatthe terms and contexts showed an intenttorender a binding promIse. Rex Fuller and Arsen Djatej characterize their speech as leading to a general understanding rather than specific promises. Fuller's, Djatej's, and Doron's understanding never rose above general statements ofintent ofconduct in the future. Arsen Djatej never offered or identified a specific research projectMichael Doron could coauthorwith him. Doron testified that they "never set explicit terms." CP at 1459. Doron's claim would command more attention ifhehad facts that he explained to Djatej and Fullerthat he mightreject other offers ofemploymentupon an assurance by the two thatDjatej would commit to coauthoring one ormore articles and, in response, one or both expressly stated that Djatej would copublish a certain article by a set date in orderto fulfill Doron's publishingrequirements. But even then, the promise is in the nature of future intent. The law has not provided definitive guidelines for determining what promises are enforceable in promissory estoppel. Therefore, we look to analogous cases for guidance. We believe the Washington case most helpful in resolving EWU's summary judgmentmotion is 

### ElliottBaySeafoods, Inc. v. Porto/Seattle, 124 Wn. App. 5,98 P.3d 491 (2004). ThePort adopted a comprehensive scheme ofharbor improvements including the redevelopment ofPier 66 as a "mixed-use" or working fishing pierthat would include a maritime museum, conference center, fish processing, boat moorage, 55

### No. 31636-0-111 Doron v. Eastern Washington Univ.



### cruise ship terminal and various retail facilities. The port envisioned the pier becoming a tourist attraction similar to Fisherman's Wharfin San Francisco. In response to the port's announcement and plans, Elliott Bay Seafoods signed a lease for office space for its fish retail business at Pier 66. Before signing the lease, Port officials told Elliott thatplans for the redevelopment ofthe pier included a working fishing pier concept. The Port informed Elliott that it was in final negotiations with a business for an interactive exhibit space as well as actual fish processing. Elliott then spent $400,000 constructing its store and purchasing necessary equipment and appliances and opened its retail store. The expected mixed-uses for otherportions ofthe pier did not materialize to the detriment of Elliott and Elliott sought to recover damages in promissory estoppel. This court affirmed the trial court'sgrant ofsummaryjudgmentto the port on the ground ofa lack ofgenuine issues ofmaterial fact, since the port made no promise. "Whatthe parties hoped would happen simply did not. That unfortunate tum ofevents does not support the claims asserted." Elliott, 

### 124 Wn. App. at 8. Havens 

### also supports affirmation ofthe summaryjudgmentorder in favor of EWU. 124 Wn.2d at 174. The employerrendered many interview statements upon which the employee staked a claim for promissory estoppel. The court considered the statements as typical ofthose often made in the interviewing process, such as what it would take to get theplaintiffto leave his presentjob and statements relating to the nature ofthejob for which he was hired. 56No. 3I636-0-III Doron v. Eastern Washington Univ.

We may fault EWU for failing to warn Michael Doron ofthe impending departure ofArsen Djatej and Djatefs failure to timely reply to Doron's fall 2009 request for assistance. Butno express promise was made to Doron ofDjatej'sremaining in employment with EWU, and faculty members sometimes move. What the parties initially expected to happen did not come to fruition, but expectations do not suffice for promissory estoppel. Wrongful Termination Michael Doron next assigns error to the trial court's dismissal on summary judgmentthat he was discharged in violation ofpublicpolicy. He claims that EWU fired him for exercising his rights under the collective bargaining agreement and publicpolicy dictates that an employee be able to protect his bargained rights. Toprevail on a claim ofwrongful discharge, a plaintiffmust show: (1) the existence ofa "clearpublicpolicy" ("clarity" element), (2) whether discouraging the conduct in which the employee engagedwouldjeopardize the public policy ("jeopardy" element), (3) whetherthe conduct caused the discharge ("causation" element), and (4) whether the employer offers an overridingjustification for the discharge ("absence of justification" element). Piel v. City of Fed. Way, 177 Wn. 2d 604, 610, 306 P.3d 879 (2013) (quoting Gardner v. LoomisArmored, Inc., 128 Wn. 2d 931,941,913 P.2d 377 (1996)). Implicit in the cause ofaction is that the employer discharges the employee or

57No. 31636-0-III Doron v. Eastern Washington Univ.

the employee shows a constructive discharge. Korslundv. DynCorp Tri-Cities Servs., Inc., 121 Wn. App. 295,315,316, 88 P.3d 966 (2004). Doron's claim fails because, as discussed above, EWU did not discharge him. The undisputed facts are thatEWUreappointed Michael Doron on the condition ofan improvement plan and Doron rejectedthereappointment. Doron does not allege constructive discharge. Doron emphasizes that he twice asserted that modifying his FAP would violate the CBA, on December 21,2010 and January 5, 2011. Assuming, without deciding, a breach ofagreement, EWU still retained the prerogative to insist on an improvementplan. Doron inconsistently expressed acceptance and rejection ofan improvementplan, but,

more importantly, never signed the reappointment letter. Upon signing the reappointment letter, he could have stated that he was not agreeing to a change in his FAP. The trial court did not errwhen it dismissed on summaryjudgmentMichael Doron's claim for wrongful termination. Duty of FairRepresentation Michael Doron assigns error to the trial court's dismissal on summaryjudgmentof his claimthatUFE breached its duty offair representation. The federal courts created the doctrine ofa union's duty offair representation. The duty offair representation evolved as ajudicial response to the broadpower granted 58No. 31636-0-III Doron v. Eastern Washington Univ.

to unions, under the National Labor Relations Act (NLRA), 29 U.S.C. § 159(a). Steele v. Louisville & Nashville R.R., 323 U.S. 192,65 S. Ct. 226, 89 L. Ed. 173 (1944); Peterson

v. Kennedy, 771 F.2d 1244, 1253 (9th Cir. 1985). That duty extends to "allthe employees in such unit.

..." 29 U.S.C. § 159(a) (emphasis added). The duty offair representation exists because a single labor organizationrepresents the interests ofall employees within a unit, and "ifindividual employees are not to be deprived ofall effective means ofprotectingtheir own interests, it must be the duty oftherepresentative organization to 'serve the interests ofall members without hostility ordiscrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.'" DelCostello v. Int'lBhd. of Teamsters, 462 U.S. 151,164n.14, 103 S. Ct. 2281, 76 L. Ed. 2d 476 (1983) (quoting Vaca v. Sipes, 386 U.S. 171, 177,87 S. Ct. 903,17 L. Ed. 2d 842 (1967)). Michael Doron was a state employee and thus Washington law controlled his relationship with his union. Washington law echoes federal law. RCW41.56.080, like 29 U.S.C. § 159(a), contains a provision that grants the union the power ofexclusive representation. The statute reads: The bargaining representative which has been determinedto represent a majority ofthe employees in a bargaining unit shall be certified by the commission as the exclusive bargainingrepresentative of, and shall be requiredto represent, all the public employees within the unit without regard to membership in saidbargainingrepresentative

... 

### , In State ex rei. Washington. Federation of State Employees, AFL-CIOv. Boardof

59No. 31636-0-III 

### Doron v. 

### Eastern Washington Univ.

Trustees o/Central Washington University, 93 Wn.2d 60,67,605 P.2d 1252 (1980), our high court observed thatwhere Washington's Public Employees Collective Bargaining Act, ch. 41.56 RCW is substantially similarto the NLRA, decisions under that act, while not controlling, are persuasive. 

### See also Public Empl. Relations Comm 'n v. 

### Kennewick, 99 Wn.2d 832, 664 P.2d 1240 (1983). Theburden ofproving a breach ofthe duty offair representation is on the plaintiff. 

### Vaca, 386 U.S. at 193; 

### Beckv. 

### UnitedFood & 

### Commercial Workers Union, Local99, 506 F.3d 874, 879 (9th Cir. 2007). A reviewing court affords substantial deference tothe union's determination notto represent a memberbecausethe union mustbalancethe individual interests againstthe collective interests. 

### Schmidtke v. 

### Tacoma Sch. Dist. No. 10,69Wn. App. 174, 181,848 P.2d 203 (1993). In accordance with the broad discretion traditionally owedto unions, courts do not scrutinizethe quality ofa union's decisions. 

### Slevira v. 

### Western Sugar Co., 200 F.3d 1218, 1221 (9th Cir. 2000); 

### Muir v. 

### Council 

### 2 Wash. State Council o/County& 

### City Emp., Local 1849, 154 Wn. App. 528, 533,225 P.3d 1024 (2009). The duty ofa union is dissimilar to the duty ofan attorney whose obligation lies solely to one discrete client. The collective bargaining system ofnecessity subordinates the interests ofan individual employeeto the collective interests ofall employees in a bargaining unit. 

### Allen v. 

### Seattle Police Officers' Guild, 100 Wn.2d 361, 370,670 P.2d 246 (1983). 60

### No. 31636-0-III Doron v. Eastern Washington Univ.



### "Aunion breaches its duty offair representation when its conduct is discriminatory, arbitrary, or in bad faith." Muir, 

### 154 Wn. App. at 531. On appeal, Michael Doron does not argue that UFE's conduct was discriminatory. He argues the union's conduct was arbitrary and in bad faith. "Conduct can be classified as arbitrary 'onlywhen it is irrational, when it is without a rational basis or explanation.' This deferential standard for arbitrary conduct 'gives the union room to make discretionary decisions and choices, even ifthosejudgments are ultimately wrong.'" Beck, 

### 506 F.3d at 879 (citations omitted). "Toestablish that the union's exercise of judgmentwas in bad faith, the plaintiffmust show 'substantial evidence offraud, deceitful action ordishonest conduct.'" Beck, 

### 506 F.3d at 880 (quotingAmalgamatedAss'n of St. , Elec. Ry. & Motor Coach Emp. of Am. 

### v. Lockridge, 

### 403 U.S. 274, 299, 91 S. Ct. 1909,29 L. 

### Ed. 2d 473 (1971)). A union's conduct constitutes an exercise of judgment entitled to deference

even when the union's "judgments are ultimately wrong." Marquez 

### v. ScreenActors Guild, Inc., 

### 525 U.S. 33,45-46, 119 S. Ct. 292, 142 L. 

### Ed. 2d 242 (1998). Michael Doron first argues that UFE breached his duty offair representation when UFE President Gary Krug insisted that Doron modifY his FAP. Viewing the evidence in

a light most favorable to Michael Doron, it could be said that UFE President Gary Krug repeatedly failed to represent Doron's interests. ForKrug's conduct to be actionable, however, it would have to be arbitrary orin bad faith. There is no evidence that Krug acted without a rational basis or explanation or engaged in fraud, deceitful action or 61No. 31636-0-III 

### Doron v. 

### Eastern Washington Univ.

dishonest conduct. Krug's conduct was motivated by a desire to create a FAP sufficient in detail to basejudgments ofteaching performance and consistent with other faculty FAPs. In deference to Krug and UFE, this ground was rational. Krug needed to balance individual interests againstthe collective interests ofthe union and its many members. Krug also believed Michael Doron would bebetter servedby a modified FAP. Michael Doron expressed his disappointment with Krug because, atthe November 18,2010meeting, Krug stated he represented "everyone's interests." CP at 1058. Krug appropriately responded thatthe UFE represents and enforces the contract and that all members ofbargaining unit receive equalprotection and advice regarding the enforcing ofthe contract. Doron and Krug's relationship quickly soured. ButDoron lacks evidence that Gary Krug acted in bad faith. Michael Doronnext argues thatUFE breached its duty offair representationwhen it failed to grieve his termination. As discussed above, EWU did notterminate Doron. Even in a light most favorable to Doron, the evidence shows that UFE discharged its duty to investigate the possibility ofgrieving his dispute. The duty offair representation prohibits a union from ignoring a meritorious grievance orprocessingthat grievanceperfunctorily. 

### Lindsey 

### v. Mun. o/Metro. Seattle, 49 Wn. App. 145, 149, 741 P.2d 575 (1987). But a unionhas no duty to arbitrate every grievance; it may screen its members' grievances and process only those it determines have merit. 

### Muir, 154 Wn. App. at 531-32. A union satisfies its duty offair 62

### No. 3 1 636-0-III Doron v. Eastern Washington Univ. 

### representation ifit

### conducts at least a minimal investigation into the merits ofthe grievance. Lindsey, 

### 49 Wn. App. at 150. "Aunion's duty requires some minimal investigation ofemployee grievances, the thoroughness depending onthe particular case; only an egregious disregard for union members' rights constitutes a breach ofthe union's duty." Muir, 

### 154 Wn. App. at 532 (internal quotation marks and citations omitted). A union's conduct may not be deemed arbitrary simplybecause ofan error in evaluating the merits ofa grievance orin interpreting particularprovisions ofa collectivebargaining agreement. Peterson, 

### 771 F.2d at 1254; Muir, 

### 154 Wn. App. at 533. In Muir, 

### this court reversed the trial court's denial ofthe union's summary judgmentmotion and directed that summaryjudgmentbe granted the union. The undisputed evidence showed that the union investigated, deliberated, and provided a rational reason for declining Muir's demand to file a grievance concerning the amount of his pay. In Schmidtke, 

### 69 Wn. App. 174, this court affirmed a summaryjudgment dismissal in favor ofthe union. The union reasonably concluded that its member's grievance lacked merit. On February 9, 2011, Michael Doron forwarded Rex Fuller's February 7 message to UFE President Gary Krug, writing: "The university has terminated me effective June for not writing a new FAP. This is something the union will have to act on. Let me know." CP at 1087. Krug forwarded Doron's e-mail to WEA's Gary McNeil, writing: "Have the procedural, contractual steps been followed here? Isjust causes [sic] for 63

### No.**31636~0~III** Doron v. Eastern Washington Univ.



### dismissal shown. I'll look at this later tonight and tomorrow, butplease share your thoughts in the meantime." CP at 1087. McNeil replied to Krug: "Gary: The CBA

covers both progressive discipline andjustcause. Has this faculty person been disciplined before?" CP at 1089. WEA's Gary McNeil**e~mailed** 

### UFE's Gary Krug with his assessmentthat "[t]ermination is a stretch. We could grieve progressive discipline. The remedy would probably have to include an improvement plan.

. .. The union does nothaveto file a grievance. We have to deliberate the case, not decide anything on personalities." CP at 1092-93. Krug informed Doron that "UFE is requesting from EWU administration all documents relevantto their decision. We will review these regarding procedures of justcause, discipline, dismissal and related matters." CP at 1095. Congruent with its duties, UFE thus promised Doron to investigate the dispute for violations ofthe CBA. Through that investigation, as Gary McNeil testified, [UFE] determined that Dr. Doron had refused to acceptthe offer of reappointment EWUmade to him because he refused to agree to participate in the development ofan improvement plan. Therefore, he had not been terminated and a grievancewas not warranted because hehad refused to accept EWU's offer ofemployment. CP at 2695. The evidence cannot be construed to show that UFE ignored Doron'splight

orprocessed his request for action in aperfunctory manner. The trial court did not errwhen it dismissed Michael Doron's claim for breach of the duty offair representation on summaryjudgment.



### 64No. 31636-0-III Doron v. Eastern Washington Univ.

Tortious Interference with Business Expectancy Michael Doron assigns error to the trial court's dismissal on summaryjudgment of his claim that WEA tortiously interfered with Doron's business expectancies with UFE. In Washington, tortious interference with a business expectancy has five elements: (1) there exists a valid contractual relationship orbusiness expectancy, (2) the defendant had knowledge ofthe same, (3) the defendant's intentional interference induced or caused a breach or termination ofthe relationship or expectancy, (4) the defendant's interference was for an improper purpose orby improper means, and (5) the plaintiffsuffered damage as a result. Evergreen Moneysource Mort. Co. 

### v. Shannon, 167 Wn. App. 242, 258, 274 P.3d 375 (2012) (citing Pleas v. City of Seattle, 112 Wn.2d 794,800-05, 774 P.2d 1158 (1989)). A cause ofaction for tortious interference arises from either the defendant's pursuit ofan improper objective ofharming the plaintiffor the use ofwrongful means that in fact cause injury to plaintiff's contractual or business relationships. Pleas, 112 Wn.2d at 803-04. A claim for tortious interference is established when interference resulting in injury to another is wrongful by some measure beyond the fact ofthe interference itself. Pleas, 112 Wn.2d at 804. Plaintiffmust show not only that the defendant intentionally interfered with his business relationship, but also that the defendant had a duty ofnoninterference; i.e., that he interfered for an improperpurpose

or used improper means. Pleas, 112 Wn.2d at 804.

65No. 31636-0-II1 Doron 

### v. Eastern Washington Univ.

A complete failure ofproofconcerning any elementnecessarily renders all other facts immaterial. Janaszak v. State, 173 Wn. App. 703, 727, 297 P.3d 723 (2013). The plaintiffmust showthatthe defendant's interference induced or caused a breach. Hoffer

v. State, 110 Wn.2d 415, 433, 755 P.2d 781 (1988), reconsidered inpart, 113 Wn.2d 148, 776 P.2d 963 (1989); Burkheimer

### v. Thrifty Inv. Co., 12 Wn. App. 924, 927, 533 P.2d 449 (1975); Holman 

### v. Coie, 11 Wn. App. 195,215,522 P.2d 515 (1974). Michael Doron generally contends that WEA employee Gary McNeil's advice to Krug improperly interfered with UFE's duty offair representation owed to Doron. We question whetherDoron shows any conduct ofWEAto be improper, but we do notrest

our decision on this ground. UFE did notbreach its duty offair representation. Therefore, Doron cannot show any conduct ofWEAthat caused a breach ofcontract. Without further analysis, Michael Doron also argues, in one sentence in his openingbrief, that WEA also induced EWUto violate the CBA. We previously ruled that EWU did not violate the CBA. Thus, Doron's additional argument must also fail. Thetrial court did not err when it dismissed Michael Doron's tortious interference claim on summaryjudgment. AttorneyFees andCosts Michael Doron asks for attorney fees and costs on appeal. Since Doron does not prevail, we decline an award. RAP 18.1; RCW49.48.030.

66No. 31636-0-111 Doron 

### v. Eastern Washington Univ.

CONCLUSION We affirm thetrial court's grant ofsummaryjudgment dismissing all claims against EWU, UFE, and WEA. A majority ofthe panel has determined this opinion will not beprinted in the WashingtonAppellate Reports, but 

### it will be filed for public recordpursuant to RCW 2.06.040.

WE CONCUR: 

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# r Brown, A.C.J.

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