No. 96-393 IN THE SUPREME COURT OF THE STATE OF MONTANA 1996

DOUGLAS GIEBEL, Plaintiff and Appellant,

v. MONTANA SYSTEM OF HIGHER EDUCATIONi MSU-NORTHERNi JEFFREY BAKER, MONTANA COMMISSIONER OF HIGHER EDUCATIONi WILLIAM DAEHLING, CHANCELLOR, MSU-NORTHERNi , " ,,_,>tl' '"

- .......**(~**i,.', , '<, • STEPHEN SYLVESTER CHAIRMAN, DEPARTMENT OF HUMANITI&$;;,:,;.,;',·-;:,;; '\)('1'<, AND SOCIAL STUDIES, MSU-NORTHERNi and JANE ¥..ATHLEEN**~. "-;'J';'~A**  CURRY, ASSISTANT PROFESSOR, MSU-NORTHERN, Defendants and Respondents.

APPEAL FROM: District Court of the Twelfth Judicial District, In and for the County of Hill, The Honorable John Warner, Judge presiding.

COUNSEL OF RECORD:

Filed: For Appellant: Douglas Giebel, pro se, Big Sandy, Montana For Respondents: LeRoy H. Schramm, Legal Counsel, Montana University System, Helena, Montana

Submitted on Briefs: October 24, 1996 Decided: December 10, 1996

CIerI;.Justice Terry N. Trieweiler delivered the opinion of the Court. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal OperatingRules, the following decision shall not be citedasprecedent and shall bepublishedby its filing as a public document withthe Clerk of the Supreme Court andbya report of its result to State Reporter Publishing Company and West Publishing Company. On June 13, 1995, Douglas Giebel filed a complaint in the District Court for theTwelfthJudicial District inHill County, in which he alleged that he was denied fair consideration for employment, was denied an appropriate grievance hearing in violation of his rights to due process and equal protection, and

was injured by reliance on a promise of employment, retaliation, blacklisting, malice, defamation, fraud, anda denial of freedomof speech. Both Giebel and the University System defendants filed motions for summary judgment. The District Court granted the defendants' motion. Giebel appeals the District Court's order which denied his motion for summaryjudgment andwhich granted the defendants' motion for summary judgment. the District Court. We address seven issues on appeal: We affirm the order of

1. Did the District Court errwhen it concluded that Giebel

was not deprivedof dueprocessbyMSU-Northern's employment search and hiring process?

22. Did the District Court errwhen it concluded that Giebel

wasnot deniedequalprotectionbyMSU-Northern'semployment search and hiring process? 3. Did the District Court errwhen it concluded that Giebel could not maintain a cause of action against MSU-Northern for a breach of the covenant of good faith and fair dealing? 4. Did the District Court errwhen it concluded that Giebel had failed to present a primafacie case of fraud? 5. Did the District Court errwhen it concluded that Giebel had not properly raised a claim of malice? 6. Did the District Court errwhen it concluded that it had

no general right of review of university administrative decisions

or their administrative processes relating to these decisions? 7. Did the District Court errwhen it concluded that Giebel had failed to exhaust his administrative remedies? FACTUAL BACKGROUND On June 15, 1993, Montana State University-Northern (MSU-Northern) sent a letter to Douglas Giebel to confirm that he had been hired as an assistant professor in the TheaterjSpeech Communication Division of the Department of Humanities and Social Services pursuant to a "one-year temporary professional contract for the 1993 school year." The letter made clear that the appointment "extends for its fixed duration and carries no implication of reappointment." The contract which accompanied the letterof appointment indicatedthe termofGiebel's employmentwas from August I, 1993 to May 31, 1994. On April 5, 1994, near the 3end of Giebel's one-year term of employment, MSU-Northern sent Giebel another letter confirming the school's intent to allow Giebel's contract toexpire. The letter stated: "[YJourtemporary appointment. will be terminated as of the end of the 1993-94 academic year in accordance with the initial terms of your appointment." Inthe springof 1994, theMSU-Northerncampus conducteda job search to secure a permanent faculty member for the position held temporarily by Giebel in the Theater/Speech Communication Department. Giebel appliedfor thepermanentposition, andwas one of 100 applicants considered for the job. The searchcommittee for thepermanentpositionwas chairedby Dr. StephenSylvester, theheadof the Department ofHumanities and Social Services. Sylvester had become acquainted with Giebel during the 1993-1994 academic year. During that time, Sylvester

was generally satisfied with the Giebel's work performance and anticipated that Giebel would have an excellent chance of being hired for the permanent position. Sylvester informed Giebel that his prospects for being hired were good. Between the time the permanent position was advertised in March 1994, and the time the search committee finalized its recommendation in mid-May, however, Sylvester had changed his position and opposed Giebel's candidacy for the job. Sylvester made his opposition to Giebel known to other search committee members andrecommendedthat Giebel notbegrantedan interviewfor the position. In an affidavit filed with the District Court after
4the selectionprocesswas complete, Sylvestercitedseveral factors which led to his opposition of Giebel for the permanent position, includingGiebel's trip toNew York Citywiththe student memberof the search committee and his presentation of a fictitious award to that student during the University's Awards Day convocation; Giebel's deteriorating relationship with a tenure-track member of the Theater/Speech Communication Department; and the fact that Giebel'sapplicationforthepermanentpositionwas less impressive than those submitted by other candidates. Inmid-May 1994, after learning that he had not been selected for the permanent position, Giebel wrote to the Commissioner of Higher Education and voiced his objection to the University's selection process. In his response, the Commissioner informed Giebel that"[b]efore grievances may be submitted directly to the Commissioner of Higher Education they must be filed with the college chancellor." The Commissioner referred Giebel to the Regent's appeals policy. On June 10, 1994, Giebel filed a grievance pursuant to the campus grievance procedure. Following a hearing before an eight-person grievance committee on July 14, 1994, MSU-Northern's Chancellor issued a written decision in which he denied Giebel's grievance. Nearly four months later, Giebel appealed the Chancellor's decisiontothe CommissioneronHigherEducation. The Commissioner denied Giebel's appeal on the grounds that it had not been timely filed pursuant to Montana University System Policy 203.5.2, which requires that an appeal be filed "within 30 days of
5the

. [campus] decision." Giebel appealed the Commissioner's decision to the Board of Regents; however, on May 19, 1995, the Regents declined to entertain the appeal. On June 13, 1995, Giebel filed two complaints in the Twelfth Judicial District Court inwhich he alleged that he was improperly deniedfair considerationforemployment, was deniedanappropriate grievance hearing in violation of his rights to due process and equal protection, and was injured by reliance on a promise of employment, retaliation, blacklisting, malice, defamation, fraud, and a denial of freedom of speech. Both Giebel and the University Systemdefendants filedmotions for summaryjudgment. TheDistrict Court concluded that there were no genuine issues of material fact andthat theUniversitySystemdefendantswere entitledtojudgment

as a matter of law. The court therefore granted the University Systemdefendant's motion for summaryjudgment and denied Giebel's cross-motion for summary judgment. STANDARD OF REVIEW In this case, the District Court granted summary judgment to MSU-Northern and dismissed each of Giebel's claims. This Court reviews a district court's grant of summary judgment pursuant to Rule 56, M.R.Civ.P., based on the same criteria applied by the district court. StateFarmFire&Cas.Co.v.Powell (1995),274 Mont. 92, 95, 906 P.2d 198, 200. Rule 56(c), M.R.Civ.P., provides that summaryjudgment is proper onlywhen "there is no genuine issue as to any material fact and

. the moving party is entitled to a judgment as a matter of law." 6ISSUE 1 Did the District Court err when it concluded that Giebel was not deprivedof dueprocessbyMSU-Northern's employment searchand hiring process? Giebel maintains thatMSU-Northerndeniedhimthe right todue process as guaranteed by both the Montana and United States Constitutions. Boththe FourteenthAmendment to the United States Constitution, and Article II, Section 17, of the Montana Constitution, prohibit a governmental entity from depriving a person of life, liberty, or property without due process of law. In this case, Giebel contends that the University deprived him of his "liberty right to contract for employment through the search process and his right to protection from invidious discriminatory actions." Giebel cites BoardofRegentsv.Roth (1972), 408 U.S. 564, to support his broad definition of the term "liberty interest." In Roth, the United States Supreme Court addressed the issue of whether the nonrenewal of a nontenured state teacher's contract without a hearing constituted the deprivation of a liberty or propertyinterest. Inevaluatingtheteacher's "propertyinterest," the Court stated: To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.

employment [T]he respondent's at Wisconsin State

7 "property" interest University-Oshkosh in wascreated and defined by the terms of his appointment. Those terms securedhis interest inemploymentup toJune 30, 1969. But the important fact in this case is that they specifically provided that the respondent's employment was to terminate on June 30. They did not provide for contract renewal absent "sufficient cause." Indeed, they made no provision for renewal whatsoever. Thus, the terms of the respondent's appointment secured absolutely no interest in re-employment for the next year. They supported absolutely no possible claim ofentitlementtore-employment. Nor, significantly, was there any state statuteorUniversityruleorpolicythat securedhis interest inre-employmentorthat createdany legitimate claim to it. In these circumstances, the respondent surely had an abstract concern in being rehired, but he didnot have a propertyinterest sufficient to reauire the University authorities to give him a hearing when they declined to renew his contract of employment. Roth, 408 U.S. at 577-78 (footnote omitted) (emphasis added). The Court also declinedto finda libertyinterest inthe nonrenewal of the teacher's one-year contract. Specifically, the Court stated: "It stretches the concept too far to suggest that a person is deprived of 'liberty' when he simply is not rehired in one jobbut remains as free as before to seek another." Roth, 408 U.S. at 575 (citing CafeteriaWorkersv.McElroy (1961), 367 U.S. 886, 895-96). Based on the principles of Roffi, the District Court concluded that Giebel was not deprived of either a liberty interest or a propertyinterestbythe expirationofhis one-yearcontract andby the University's decision not to hire him for the permanent tenure-track position. SeealsoLelandv.Heywood (1982), 197 Mont. 491, 643 P.2d 578. The court noted that, like the teacher in Roth, Giebel was hired pursuant to a one-year contract for employment;

8that his employment expiredpursuant to the terms of his contract; and that that expiration did not provide Giebel with a legitimate claim of entitlement which would rise to the level of a protected interest. The court further noted that Sylvester's alleged

assurances of future employment could not form the basis for a claimof entitlement because "college administrators in this state have no authority to contract with faculty members on terms different than those approvedby the Board of Regents." Leland, 197 Mont. at 497, 643 P.2d at 581. The court therefore held that Giebel was not unconstitutionally deprived of life, liberty, or property without due process of the law. We hold that the District Court correctly concluded that Giebel had neither a liberty nor a property interest in continued employment withMSU-Northern. We therefore uphold that portion of the court's summaryjudgment order which concludedthat Giebel was not deprivedofdueprocessbyMSU-Northern's employment searchand hiring process. ISSUE 2 Did the District Court err when it concluded that Giebel was not deniedequalprotectionbyMSU-Northern's employment searchand hiring process? Giebel asserts that he was denied equal protection of the law by MSU-Northern's employment search and hiring process. Specifically, Giebel maintains that Sylvester's opposition to his candidacy placed him at a serious disadvantage during the search committee's deliberations. The District Court, however, summarily
9denied Giebel's equal protection claim on the grounds that Giebel had neither identified a "class" of individuals who had been disadvantaged by the University's search and hiring practices nor asserted the deprivation of a fundamental right from those practices. This Court has previouslyevaluatedan equal protection claim from a University System faculty member who claimed a denial of equal protection based on the University's failure to grant him tenure. Akhtarv. VandeWeter;ng (1982),197 Mont. 205,642 P.2d 149. InAkhtar, we stated: Appellant claims he was discriminated against in that he was treated differently from other tenure candidatesbecausea different standardofexcellencewas applied to his tenure evaluation than to others. We agree with the Fourth Circuit which found that "noteverydifferenceinpromotiontreatment rises to the level of constitutional deprivation either under equal protectionordueprocess." Clarkv.WhWng (4thCir. 1979), 607 F.2d 634, 638. In Clark, an associate professor claimedhe was deniedequal protectionbecause different standards were used in evaluating his promotion qualificationsthanwereusedinpassingonpromotions of other faculty members.

PresidentVan de Wetering testified that the tenure evaluations demanded a weighing and balancingof all the areas of consideration for all the candidates. Although there was sharp disagreement among appellant's colleagues, the final determinationwas that appellant's professional performance did not meet the overall professional academic standards needed to grant tenure. The District Court concluded the denial of tenure was not arbitrary but was an exercise of academic judgment. It also found no evidence had been presented which indicated the denial resulted from discrimination

10orthat theprocedures followedwere intendedtopenalize a certain class. We agree. Akhtar, 197 Mont. at 218-20, 642 P.2d at 157. In this case, as in Akhtar, no evidence was presented which indicated that the decision not to hire Giebel "resulted from discrimination or that the procedures followed were intended to penalize a certain class." First, as the District Court correctly noted, Giebel has not assertedthat hewas a member of a particular "class" of individuals which was disadvantaged by the school's hiringprocess. Second, there isno evidence of anydiscrimination in the committee's decision to hire another candidate. There was ample evidence presented to the District Court to establish that that chosen candidate was better qualified and had a more impressive resume than Giebel. Therefore, because we hold that Giebel did not demonstrate that the search committee's procedures were discriminatory or that those procedures were intended to penalize a certain class, we affirmthat portion of the District Court's summaryjudgment order which concluded that "Giebel's complaint is insufficient for a claim of a violation of his equal protection rights." ISSUE 3 Didthe District Court errwhen it concludedthat Giebel could not maintaina cause of actionagainstMSU-Northern for a breachof the covenant of good faith and fair dealing? Inhis amended complaint, Giebel assertedthat MSU-Northern's search and hiring process failed to "conform to the covenant of
11goodfaithand fairdealing." Specifically, Giebelmaintainedthat the University did not follow its established hiring policies and did not act in good faith during the hiringprocess. The District Court, however, dismissedGiebel's claimonthegroundthat a claim of a breach of the covenant of good faith and fair dealing "may arise only from a termination of employment." Because the court determined that Giebel was merely a job applicant for a permanent position with the University, the court concluded that Giebel's claim could not form the basis for recovery. In this case, Giebel was employedbyMSU-Northernpursuant to

a one-year employment contract and was specifically informed that the term of his employment "extends for its fixed duration and carries no implication of reappointment." In addition, prior to the expiration of his fixed employment contract, Giebel was notified of the University's intention to terminate his appointment "as of the end of the 1993

-94 academic year in accordance with the initial terms of [his] appointment." Giebel does not, however, challengetheUniversity'sdecisiontoallowhis one-year contract to expirej instead, Giebel challenges the University's allegedly unfair treatment of him as a job applicant for a permanent position. Neither this Court nor the Legislature has extended the covenant of good faith and fair dealing to the hiring process. this case. We will not do so on the basis of the facts in

12Therefore, we affirm the District Court's decision to grant summary judgment and dismiss Giebel's claim for breach of the covenant of good faith and fair dealing. ISSUE 4 Did the District Court err when it concluded that Giebel had failed to present a primafacie case of fraud? In his original complaint before the District Court, Giebel generally alleged that he had been defrauded by Sylvester's guarantees of employment. More than five months later, after discovery had closed and the University had filed a motion for summary judgment, Giebel filed a document entitled, "Motion to Accept Amended Complaint II." In that document, Giebel alleged withparticularitythat the searchcommittee hadbeen defraudedby

a secretballot whichhadbeenemployedduringthe vote onGiebel's candidacy. Before the District Court couldrule onGiebel'smotion to amend his complaint, however, Giebel filed a cross-motion for summary judgment. Giebel never renewed or briefed his motion and the District Court neither ruled on the motion nor accepted that document as a part of the record. In an exceptional effort to accommodate Giebel, the District Court analyzed Giebel's claim of fraud as set forth in both his original complaint and in his attemptedamendment. Thecourt concluded, however, that (1) Giebel could not allege fraud based on any statements by Sylvester of a promise of future intent and (2) that Giebel did not have standing to allege fraud on behalf of the search committee. The court

13therefore granted summary judgment to MSU-Northern and dismissed Giebel's claim of fraud. Rule 9(b), M.R.Civ.P., provides that"[i]n all averments of fraud

. the circumstances constituting fraud.

. shall be stated with particularity." In his original complaint, Giebel alleges in only the most general of terms that he was defrauded by Sylvester's promises of future employment. That allegation was insufficient to satisfy either Rule 9(b), M.R.Civ.P., or this Court's requirement that a plaintiff must allege the requisite elements of fraud. See,e.g.,Barrettv.Holland&Hart (1992), 256 Mont. 101, 106, 845 P.2d 714, 717i Grenzv. MedicalManagementNorthwest (1991), 250 Mont. 58, 63, 817 P.2d 1151, 1154. Furthermore, as the District Court correctly noted, even if Giebel's claim had been pled with the requisite particularity, "[t]he rule is that fraud cannot be basedon andallegationof a promise of future intent." Braunv.Glade ValleySchool (N.C. Ct. App. 1985), 334 S.E.2d 404, 407. SeealsoDavisv. LDSChurch (1993), 258 Mont. 286, 293, 852 P.2 d 640, 644i Marlinv.Drury (1951), 124 Mont. 576, 584, 228 P.2d 803, 807. We hold that the District Court properly dismissed Giebel's original claim of fraud based on the fact that the allegation of fraud was not pled with the requisite particularity, and based on the general rule that promises of future intent cannot form the basis for a claim of fraud. We further hold that the District Court properly dismissed Giebel's amended claim of fraud based on its conclusionthat Giebel didnot have standingto allege fraud on
14behalf of the search committee. Such a holding is consistent with the settledlawthat "if a false statement ismade to onepersonto induce him to act, the balance of the world has no legal right to rely on it." 37 Am. Jur. 2d FraudandDeceit § 244 p. 324 (1968) (citations omitted). We therefore affirm that portion of the District Court's order which granted the University summary judgment and dismissed Giebel's claim of fraud. ISSUE 5 Did the District Court err when it concluded that Giebel had not properly raised a claim of malice? In this case, Giebel has alleged "malice" as a separate cause of action. However, as the District Court noted in its summary judgment order, "malice, by itself does not form the basis for a separate cause of action." "Malice is basically no more than a state of mind." 52 Am. Jur. 2d Malice § I, p. 161 (1970) (citation omitted). As such, it cannot alone form the basis for a cause of action. The existence of malice may either serve to prove a necessary element of a particular offense or cause of action, or may serve as a factor to enhance damages. See, e.g.,FirstBankv. Clark (1989), 236 Mont. 195, 204, 771 P.2d 84, 90 (requiringexistence ofmalice as element of malicious prosecution) i Section 27-1-221, MCA (providing that punitive damages may be available when actual malice is proven)

. It is, in fact, well established that"[a] legallypermissible act does not give rise to an actionable injury simply because it is

15performed with evil intent or an improper motive." 1 Am. Jur. 2d Actions § 54, p. 758 (1994)

. In Montana, "malice" is defined as a "wish to vex, annoy, or injure another person or an intent to do a wrongful act, established either by proof or presumption of law." Section 1-1-204(3), MCA. However, whether Sylvester "intended to injure Giebel," as Giebel alleges, is irrelevantunless that state ofmind led to conduct which gives rise to a judicially cognizable claim. As the District Court correctly concluded: "Mr

. Sylvester's actions in not supporting Mr. Giebel as a candidate for the open tenure faculty position, and his alleged actions of discouraging other members of the search committee from pursuing him as a candidate, do not constitute an illegal, impermissible act against Mr. Giebel." We therefore hold that the District Court's conclusion that Giebel's allegation of malice did not state a claim for which he

was entitledto recover, is correct. We affirmthat portionof the District Court's summary judgment which dismissed this claim. ISSUE 6 Did the District Court err when it concluded that it had no general right of review of university administrative decisions or their administrative processes relating to these decisions? When Giebel was not hired for the permanent position at MSU-Northern, he filed an internal grievance pursuant to the University System grievance procedure. Giebel's grievance was denied by the MSU-Northern Chancellor on July 25, 1994. Giebel's 16appeal of his grievance was denied by the Commissioner of Higher Education on March 3, 1995, on the ground that it was untimely. Afterthe Boardof Regents declinedtoentertainGiebel's appeal of the Commissioner's decision, Giebel attempted to invoke the jurisdiction of the District Court to review the University's policies and its grievance and appeals process. In its order grantingtheUniversity's motionfor summaryjudgment, however, the court concluded that there exists no general statutory right of review of a University System's administrative actions. Ordinarily, administrative decisions are subject to judicial reviewpursuant totheMontanaAdministrative ProcedureAct (MAPA). See §§ 2-4-101 through -711, MCA. Pursuant to § 2-4-102(2) (a) (iii), MCA, however, both the Board of Regents and the Montana University Systemare exempt fromMAPA'sprovisions. Therefore, no independent right of judicial review of University administrative decisions exists pursuant to MAPA, nor has that right been created by some othermeans. "InMontana, onlythe legislaturemayvalidlyprovide for judicial review of agency decisions." Nyev. DepartmentofLivestock (1982), 196 Mont. 222, 226, 639 P.2d 598, 498, 500. As evidenced by MAPA, however, the Legislature has chosen not to provide for a general review of University System decisions. As made clear by the District Court, although no specific right ofjudicial reviewisprovidedbyMAPA, a plaintiffmay still challenge a University System administrative decision by alleging

a judicially-cognizable cause of action. In this case, the court

17merely refused to review the the court general decision reached did, however, address when it by the Giebel's reviewed University System; specific allegations Giebel's claims of against the University denial of due process, denial of equal protection, denial of freedom of speech, breach of the covenant of good faith and fair dealing, fraud, defamation, intentional infliction of emotional distress, and blacklisting. We hold that the District Court correctly concluded that it had no general right of review of University administrative decisions or their administrative processes relating to those decisions. We therefore affirm that part of the District Court's summary judgment order in which the court declined to review the general administrative decision process of the Montana University System. ISSUE 7 Did the District Court err when it concluded that Giebel had failed to exhaust his administrative remedies? In this case, the District Court held that Giebel had "failed to follow both common law and state statutory mandates which require thatheexhaust all administrativeremediesbeforebringing

a claimindistrict court." Specifically, the court concludedthat Giebel had failed to abide by both the Board of Regent's appeals policy and the common law doctrine of exhaustion of remedies. The court therefore concluded that several of Giebel's claims which

were informally alleged in Giebel's numerous and lengthy filings

were barred by the doctrine of exhaustion. 18It is the general policy of this state, as set forth in both statute and case law, to require a complainant to exhaust his administrative remedies before he may access the judicial system. The Administrative Procedure Act, in fact, allows judicial review only to "[a] person who has exhausted all administrative remedies available within the agency." Section 2-4-702, MCA. Because the University System is exempted from the Administrative Procedure Act, Giebel's claim is subject to only the common law doctrine of exhaustion, which this Court has recognized as "the general principlethatordinarilyadministrativeremediesmustbeexhausted before applying for judicial review." Stateexrei.SlettenConstr.Co.v. Great Falls (1973), 163 Mont. 307, 311, 516 P.2d 1149, 1151. In this case, Giebel failed to avail himself of the appropriate administrative remedy in a timely fashion. Specifically, Giebel failed to comply with Section 203.5.2 of the Montana University System Policy, which requires that an appeal of

a campus grievance decision must be filed within thirty days of that decision. Instead, although the Chancellor's decision was rendered on July 25, 1994, Giebel did not file his appeal of that decision until November 22, 1994. Although Giebel corresponded with the Commissioner of Higher Education several times during the intervening months, the Commissioner responded with only general statements of policy and continuously advised Giebel that his appealwouldhave to conformwithSection203.5.2 of theUniversity

19SystemPolicy. The CommissionerdeniedGiebel's appeal onMarch 3, 1995, on the ground that the appeal was not timely filed. It iswell establishedthat failure tomake a timelyappeal of

an administrative decision may result in a failure to exhaust administrative remedies. As one treatise has noted: If the petitioner once had an opportunity to pursue a then-available administrative remedy within a specified timeperiod, but thepetitionerdidnotpursuethe remedy within the time it was available, the agency action may be final by the time the court decides whether to review the action. Yet, in that situation, the court still may decline to reviewthe final agency actionbecause of the petitioner'sfailuretohaveexhaustedtheadministrative remedies that were previously available. Kenneth Culp Davis 

### &Richard J. Pierce, Jr., Administrative Law Treatise, vol. II, § 15.1 at 306 (1994) (citation omitted) (emphasis added). The Montana University System Policy also reflects this proposition. It states: "When a party fails to exercise the appeal rights guaranteed by this policy the party accepts the lower level decision as final and waives the right to contest the matter further." Montana University System Policy, Section 203.5.2. In this case, the District Court correctly concluded that Giebel did not exhaust his administrative remedies because he did not file a timely appeal of the Chancellor's decision. On that basis, the court correctly concluded that Giebel had waived his right to contest several claims which were resolved by the University Chancellor and the campus grievance committee. We therefore affirm that portion of the District Court's decision

20which concluded that several of Giebel's claims were barredby the doctrine of exhaustion and could not be addressed by the court. Based on our conclusions that there are no genuine issues of material fact presented in this case, and that the University System defendants are entitled to judgment as a matter of law, we affirm the District Court's order which granted the defendants' motion for summary judgment and denied Giebel's cross-motion for summary judgment.

We concur:

Justices

21