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Zernik v. University of Southern California6/30/2004
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
INTRODUCTION
Plaintiff, Joseph Zernik, Ph.D., a former tenured professor at the defendant University of Southern California (the University), filed a civil action seeking damages for fraud, breach of contract, wrongful termination in violation of public policy, intentional infliction of emotional distress, and interference with prospective economic advantage. By his complaint, Zernik sought to challenge the proceedings by which the University attempted to terminate him from employment.
Zernik appeals from the judgment of the trial court dismissing his lawsuit after sustaining the demurrer filed by the University and denying him leave to amend. We hold there was no error. Zernik failed to challenge the University's tenure and grievance procedure by way of administrative mandamus with the result he is precluded from bringing this action for damages. Zernik's claim for wrongful termination against public policy also fails. Zernik resigned before the University finally terminated him from employment, and so his claim is actually one for constructive discharge. However, the allegations in the complaint do not support such a claim because Zernik cannot allege intolerable working conditions forced him to quit. Accordingly, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
For purposes of review, we assume the truth of the following allegations extracted from the first amended complaint. (Moncur v. City of Los Angeles (1977) 68 Cal.App.3d 118, 121.) Zernik was a tenured Professor of Dentistry at the University. In November 1998, the University commenced proceedings to dismiss him. He asserts he was charged with serious neglect of duty. The University scheduled a dismissal hearing before a panel of Zernik's peers for May 2001.
Ten days before the faculty panel hearing commenced, Zernik filed his complaint. Although still a professor, Zernik alleged four causes of action: (1) fraud, (2) breach of contract, (3) wrongful termination in violation of public policy, and (4) age discrimination.
Concurrently, Zernik applied for an order restraining the faculty panel from conducting the hearing. The trial court denied the application, stating the "law is very clearly against [Zernik]" that he needed to exhaust his administrative remedies before resorting to the courts.
After the hearing, in August 2001, the faculty hearing panel issued its decision and recommendation to the President of the University. The panel unanimously found "clear and convincing evidence" of adequate cause for dismissal. The panel recommended Zernik be stripped of his tenure and dismissed from his position for engaging in misconduct and serious neglect of duty.
Zernik appealed from that recommendation but resigned effective October 18, 2001, before he was terminated from employment.
On November 5, 2001, Zernik filed his first amended complaint alleging that his resignation constituted a constructive discharge, which supports five causes of action: (1) fraud, (2) breach of contract, (3) wrongful termination in violation of public policy, (4) intentional infliction of emotional harm, and (5) intentional interference with prospective economic advantage.
In this operative complaint, Zernik alleges, as fraud, that the University represented it adhered to the pri
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