FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN ...juryverdicts.net/darrylCromptonPTO.pdffor his resume....

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

DARRYL E. CROMPTON,

Plaintiff,

vs.

TUSKEGEE UNIVERSITY, et al.

Defendants.

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CASE NO. 3:14-CV-1189-CDL

O R D E R

Plaintiff Darryl E. Crompton is a former employee of

Defendant Tuskegee University. Crompton claims that Tuskegee

terminated his employment without cause or due process. He

contends that this termination breached his employment contract,

which provided for a five-year term and tenure. Crompton also

asserts that, during his hiring and termination, Tuskegee and

Tuskegee’s former president, Dr. Matthew Jenkins, committed

fraud. Crompton seeks damages and declaratory/injunctive

relief. This Court has jurisdiction based on diversity of

citizenship, 42 U.S.C. § 1332.

Defendants filed a motion for summary judgment (ECF No.

101) as to all of Crompton’s claims. In support of that motion,

they rely in part on the declaration of Jenell Sargent and

exhibits attached to that declaration. Crompton moves to strike

Sargent’s declaration because Defendants did not disclose

Case 3:14-cv-01189-CDL-GMB Document 132 Filed 07/08/16 Page 1 of 40

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Sargent as a witness during discovery (ECF No. 114). As

discussed in more detail below, the motion to strike is granted,

and the Court will not consider Sargent’s declaration or its

exhibits in ruling on the summary judgment motion. Also pending

before the Court is Crompton’s motion to quash and exclude the

opinions of Defendants’ expert Melvin Johnson (ECF No. 99).

Defendants do not rely on Johnson’s opinions in support of their

motion for summary judgment, and thus the Court’s determination

of that motion has no bearing on the Court’s decision regarding

summary judgment and that motion will be decided in a separate

order.

Based on the present record, the Court finds that genuine

factual disputes exist as to all of Crompton’s claims except for

his claim for promissory estoppel. Accordingly, Defendants’

motion for summary judgment is denied as to Crompton’s breach of

contract and fraud claims and granted as to Crompton’s

promissory estoppel claim.

FACTUAL BACKGROUND

The Court reviews the present record in the light most

favorable to Crompton to decide Defendants’ motion for summary

judgment.


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I. Crompton’s Relationship with Dr. Gilbert Rochon and Initial

Employment at Tuskegee

Crompton and Dr. Gilbert Rochon met in 1974 when they were

both graduate students in the public health master’s program at

Yale University. Pl.’s Resp. in Opp’n to Defs.’ Mot. for Summ.

J. Ex. H, Pl. Aff. ¶ 3, ECF No. 120-7.1 The two kept in touch

over the years. In March 2010, when Crompton was living in

Washington D.C., he met with Rochon while Rochon was in D.C. to

attend an event. Pl. Aff. ¶ 5. Crompton told Rochon that he

had left a tenured position at the University of Alabama at

Birmingham (“UAB”) in 1989 and had been working for private and

non-profit policy research companies. Id. A few months later,

Rochon told Crompton that he was being considered for the

presidency at Tuskegee University. Id. ¶ 7. He asked Crompton

for advice regarding his interviews because Crompton had been a

senior bioethics fellow at Tuskegee from 2000-2003. Id.

Crompton advised Rochon about the interviews. Id. Rochon told

Crompton that if he was selected as president he wanted Crompton

on his transition team. Id. ¶ 8.

In September 2010, Rochon emailed Crompton Tuskegee’s

announcement naming Rochon as President. Id. ¶ 9. Crompton

1 In their reply, Defendants contend that the Court should disregard

Crompton’s affidavit because it is inconsistent with his deposition

testimony. This contention is meritless. Crompton’s affidavit

explains several of the answers he gave during his deposition but it

is not “directly contradicted by [his] deposition testimony.”

McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240 n.7 (11th

Cir. 2003) (per curiam).


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responded, “I am so proud of you brother. Please let me know

how I can help you and Tuskegee reach your vision.” Defs.’ Mot.

for Summ. J. Ex. 19, Email from Darryl Crompton to Gilbert

Rochan (Sept. 20, 2010), ECF No. 103-8. Rochon asked Crompton

for his resume. Defs.’ Mot. for Summ. J. Ex. 19, Email from

Gilbert Rochon to Darryl Crompton (Sept. 21, 2010), ECF No. 103-

8. Crompton’s resume states that he is a “former professor of

health law and policy at the University of Alabama, Birmingham.”

Defs.’ Mot. for Summ. J. Ex. 2, Pl.’s Resume, ECF No. 102-2 at

3. It also states that his tenured position with UAB was from

1976 to 1989 and lists nine positions that Crompton held after

leaving UAB. Id. at 3-6. Rochon reviewed Crompton’s resume.

Pl.’s Resp. in Opp’n to Defs.’ Mot. for Summ. J. Ex. G, Rochon

Dep. 56:6-8, ECF No. 119-23.

In November 2010, Rochon sent Crompton an email with a

Tuskegee University job posting announcement for Vice President

for Human Resources and Legal Counsel and asked Crompton if he

was interested in the position. Pl. Aff. ¶ 12. Crompton

responded that he was interested in the legal counsel part. Id.

¶ 13. Rochon called Crompton to discuss specifically what

Crompton was interested in doing at Tuskegee. Id.

In December 2010, Rochon and Crompton discussed a potential

senior level position for Crompton over the phone several times.

Id. ¶ 14. Throughout these discussions, Crompton made it clear


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to Rochon that he would only come to Tuskegee if he could have a

tenured faculty position, similar to the tenured position he had

held at UAB. Id. ¶ 15. Rochon told Crompton that it was not

necessary to have a traditional tenure appointment to a

particular college within Tuskegee; rather, Crompton could have

a university-wide tenured appointment. Id. Rochon himself was

a tenured “University Professor,” even though Rochon never

taught classes at Tuskegee, did not have tenure elsewhere when

he was hired, and did not formally apply for tenure as dictated

in the Tuskegee University Faculty Handbook. Rochon Dep. 43:3-

22; 98:20-23; 138:8-139:8, ECF No. 119-23. Rochon told Crompton

that he could give Crompton the same kind of university

appointment. Pl. Aff. ¶ 15. After several phone conversations,

Rochon told Crompton to submit a job description proposal. Id.

¶ 14.

Crompton sent Rochon a draft job description for a Senior

Vice President for International Affairs and Government

Relations and Full Professor with Tenure in the College of

Veterinary Medicine, Nursing and Allied Health. Defs.’ Mot. for

Summ. J. Ex. 6, Job Description and Terms of Employment Draft,

ECF No. 102-6, at 2-3. Rochon replied that the proposal

“exceeds our current capability” and that he was preparing a

counteroffer. Defs.’ Mot. for Summ. J. Ex. 8, Email from

Gilbert Rochon to Darryl Crompton (Jan. 16, 2011), ECF No. 102-


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8. Rochon also asked Crompton to move up his start date from

April 1, 2011, to which the two had previously agreed, to

February or March. Pl. Aff. ¶ 18.

In early February 2011, Rochon emailed Crompton a final

offer letter. The letter does not specifically state that he

will be hired as “a full professor with tenure” appointed to a

particular college but states, “It is also our intention to

honor your existing faculty rank and tenure status, as conferred

by the University of Alabama at Birmingham.” Defs.’ Mot. for

Summ. J. Ex. 10, Letter from Gilbert Rochon to Darryl Crompton

(“Offer Letter”) (Feb. 1, 2011), ECF No. 102-10 at 2. Crompton

interpreted this statement to mean that he would have all of the

benefits of a tenured position. The letter further states:

I am indeed delighted to inform you of your selection

as the Vice President for Governmental Affairs and

University Counsel for Tuskegee University, at a

starting annual salary of $110,000., [sic] effective

February 7, 2011, under a five year renewable

contract. It is also our intention to honor your

existing faculty rank and tenure status, as conferred

by the University of Alabama at Birmingham. . . .

Please indicate your acceptance by signing below,

confirming your start date and returning same to my

attention, retaining a copy for yourself.

Id. at 2, 4. Crompton signed the final offer letter on February

6, 2011. Crompton realized that the contract did not use the

typical language for granting tenure, but based on his

conversations with Rochon, Crompton believed that he was being


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granted tenure as a University Professor like Rochon. Pl. Aff.

¶ 24. He left his consulting position in Washington D.C. and

moved to Tuskegee, Alabama to accept the position.

During his second week at Tuskegee, Crompton attempted to

meet with the Tuskegee University Provost, Luther Williams, to

discuss his tenure appointment. Id. ¶ 28. Rochon’s Chief of

Staff, Carlin McLin, however, emphatically told Crompton that

Rochon had granted Crompton tenure in his employment contract

and that there was no need for Crompton to speak to the Provost

about his tenure status.2 Id. Crompton had sensed tension

between Rochon and the Provost during the first university

cabinet meeting so he followed McLin’s instructions. Id. On

June 20, 2011, Crompton received what he believed to be a second

faculty appointment as an adjunct professor. Id. ¶ 31.

II. Due Process Provisions in the Tuskegee Staff and Faculty

Handbooks

During Crompton’s Tuskegee employment, Tuskegee maintained

a Staff Handbook and a Faculty Handbook. Tuskegee’s Staff

Handbook states:

This Staff Handbook describes only the highlights of

Tuskegee University’s policy and employee benefits and

2 Defendants contend that the Court cannot consider this evidence

because McLin’s statement is inadmissible hearsay. But Crompton is

not asserting what McLin said for the truth of the matter asserted by

McLin. Rather, McLin’s statement to Crompton is relevant because the

fact that McLin made the statement to Crompton explains why Crompton

did not take up the issue of his tenure with the Provost.

Accordingly, Crompton’s testimony about what McLin told him is not

hearsay.


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is not to be interpreted as a legal document or

employment contract. The official

administrative/policy manual, benefit plan texts, and

legal agreements, as appropriate, are the governing

documents.

Defs.’ Mot. for Summ. J. Ex. 16, Staff Handbook, ECF No. 103-5

at 4. It also states that regular staff employees are subject

to reappointment on an annual basis and “may be terminated in

accordance with” the Discipline and Discharge provisions in the

Staff Handbook. Staff Handbook §§ 4.2-4.4, ECF No. 129-3 at 11-

12. Regular employees have the right to appeal a termination

decision within ten working days of the decision. Id. §§ 18.43

& 19.41, ECF No. 129-3 at 28-29.

The Faculty Handbook as “Approved for Implementation”

covers tenured faculty and nontenured faculty. Defs.’ Mot. for

Summ. J. Ex. 17, Faculty Handbook, ECF No. 103-6 at 4, 6. It

states that “[t]he faculty consists of the President, General

Officers; [and] Associate General Officers of

Administration . . . .” Id. 12, ECF No. 103-6 at 6. It lays

out the elements of the procedural due process to which

disciplined or terminated faculty are entitled and defines what

constitutes a “prejudicial” failure of due process. Id. 43-48,

ECF No. 15-18. A section titled “Procedural Standard in Faculty

Dismissal Proceedings” applies to “college, school, or

university faculty member[s] who ha[ve] tenure or whose term

appointment[s] ha[ve] not expired.” Id. at 48, ECF No. 103-6 at


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18. These procedures provide that faculty members should be

informed in writing of the reason for their termination, their

right to a hearing, and any other rights that will be accorded

to them. Id.

III. Jenkins’s Presidency

In 2013, Rochon resigned and Dr. Matthew Jenkins was named

acting President of Tuskegee. Shortly after he took office,

Jenkins signed a Tuskegee Personnel Action Form confirming

Crompton’s position as a fulltime faculty member. Pl.’s Resp.

in Opp’n to Defs.’ Mot. for Summ. J. Ex. Q, Tuskegee Personnel

Action Form, ECF No. 120-16 at 2. During Jenkins’s tenure as

president, Tuskegee faced two administrative challenges that are

relevant to Crompton’s termination: failure to report insurance

claims in a timely manner and perceived noncompliance with

Title IX. Both of these issues were cited by Defendants as part

of the reason for Crompton’s termination.

A. Insurance Claims Reporting

A Tuskegee “Governance Document” states that the General

Counsel and Vice President of Legal Affairs “(5) Serves as the

liaison with legal insurance companies (e.g. United Educators).”

Defs.’s Mot. for Summ. J. Ex. 32, Tuskegee University Governance

Document, ECF No. 103-21 at 3. But when Crompton began work at

Tuskegee, then Vice President for Business and Fiscal Affairs

and Chief Financial Officer (“CFO”) Leslie Porter told Crompton


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that the CFO’s office was responsible for initially reporting

insurance claims.3 Pl. Aff. ¶ 32. Crompton understood his role

as liaison to begin after a claim was reported. Id. ¶ 33.

Before Porter retired on March 31, 2011, he confirmed the CFO’s

office’s policy for claims reporting with then President Rochon.

See Pl.’s Resp. in Opp’n to Defs.’ Mot. for Summ. J. Ex. J,

Letter from Leslie Porter to Stephen Martin (March 7, 2011), ECF

No. 120-9 at 6-7.

During Crompton’s time at Tuskegee, he worked with four

different CFOs. Pl. Aff. ¶¶ 34 & 35. Under all of these CFOs,

the CFO’s office primarily handled insurance claims reporting.

Id. The CFO’s office frequently received acknowledgments that

United Educators, one of its insurers, had received reported

claims. Pl.’s Resp. in Opp’n to Defs.’ Mot. for Summ. J. Ex. L,

Correspondence with United Educators, ECF No. 120-11.

Crompton helped with insurance claims reporting during

transitions. Pl. Aff. ¶¶ 34 & 35. And Crompton offered to help

with some claims due to special circumstances. For example, on

November 21, 2011, Crompton offered to report a claim for then

CFO Stephen Martin. Defs.’ Mot. for Summ. J. Ex. 30, Email from

Darryl Crompton to Stephen Martin (Nov. 21, 2011), ECF No. 103-

19 at 2. Crompton knew that Martin had terminal cancer and he

3 It appears that the Vice President for Business and Fiscal Affairs

and Chief Financial Officer were the same individual overseeing the

same office. For the sake of brevity, this Order will refer to this

office as the CFO’s office.


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was trying to lighten Martin’s load. Pl. Aff. ¶ 34.

Additionally, another CFO—Cecil Lucy—asked Crompton to help out

with insurance claims reporting on an “as needed” basis. Id.

¶ 35. Between 2011 and 2014, Crompton reported approximately

twenty-nine claims to United Educators. Defs.’ Mot. for Summ.

J. Ex. 31, Claims Reported by Crompton, ECF No. 106-2.

On May 29, 2014, United Educators sent a letter to Crompton

and Jenkins stating that “Tuskegee is failing to provide timely

notice of claims and sufficient information so that UE may

analyze coverage of reported matters.” Defs.’ Mot. for Summ. J.

Ex. 28, Letter from Cristina Bull Wallace to Darryl Crompton

(May 29, 2014), ECF No. 106-1. Sidney Evans, a consultant in

the Tuskegee University CFO’s office, called Crompton about the

letter and Crompton agreed to email Evans a report on the

history of the claims notification policy and procedure at

Tuskegee. Pl. Aff. ¶ 56. Crompton emailed Evans and Jenkins on

May 31, 2014. The email states in part:

Since March 2011, I have complied with Tuskegee

University’s policy regarding notification of Palomar

(Tuskegee’s broker) and United Educators.

Our policy indicates that the Vice President of

Business and Fiscal Affairs is responsible for

reporting impending claims to Palomar. . . .

I have followed this policy by notifying all Chief

Financial Officers since then including, Leslie

Porter, Stephen Martin, Cecil Lucy, and now Acting CFO

Glenn Dickerson. . . .


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Related to the [redacted] matters, I alerted the CFO,

specifically, Mr. Cecil Lucy of these impending

claims . . . .

I will be happy to notify United Educators with the

demand letters in the [redacted] however I did notify

Cecil Lucy per the Tuskegee University protocol.

Defs.’ Mot. for Summ. J. Ex. 29, Email from Darryl Crompton to

Sidney Evans (May 31, 2014), ECF No. 103-18 at 2.

B. Title IX

As General Counsel, Crompton was responsible for Tuskegee’s

compliance with Title IX of the Education Amendments of 1972,

20 U.S.C. §§ 1681-88, which protects individuals from sex

discrimination in educational institutions. When Crompton

arrived at Tuskegee, the university had no Title IX compliance

program. Pl. Aff. ¶ 36. Crompton told Rochon that Tuskegee

should appoint and train a Title IX program coordinator, as well

as adopt and publish Title IX compliance procedures. Id.

When Jenkins was appointed acting President, Crompton told

Jenkins that Tuskegee still had a Title IX compliance problem

and reiterated that Tuskegee needed to appoint a Title IX

program coordinator and adopt and publish procedures for

complying with Title IX. Id. ¶ 41. In January 2014, Jenkins

contracted with former Provost Luther Williams to develop

Title IX policies and procedures for Tuskegee. Williams

submitted proposed procedures, but they were not adopted,

published, or implemented.


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On April 13, 2014, the mother of a student who was raped on

Tuskegee’s campus emailed Crompton asking about her daughter’s

case, which had been ignored by the university for almost a

year. Id. ¶ 45. Several days later, Retired General Charles

Williams, the Chairman of the Tuskegee Board of Trustees, asked

Crompton to provide him with a report about how the student rape

case fell through the cracks. Id. ¶ 46. Crompton submitted a

report to General Williams. The report made seven

recommendations for Title IX compliance, including appointing

Dr. Cynthia Sellers-Simons, the Vice President for Student

Affairs and Enrollment Management, as the Title IX coordinator.

Id. ¶ 47. The next day General Williams emailed the proposal to

Jenkins and Crompton, stating “I concur fully with every

recommendation cited . . . .” Id. ¶ 48.

Jenkins, Crompton, Sellers-Simons and the campus Chief of

Police also met to discuss the unreported rape case. Id. ¶ 50.

Crompton suggested that Sellers-Simons serve as the Title IX

coordinator and that he oversee compliance as General Counsel.

Id. Sellers-Simons objected to being the Title IX coordinator.

Id. Crompton believed that it would be a conflict of interest

for him to serve as the Title IX coordinator because, as General

Counsel, he was responsible for evaluating Title IX compliance.

Id. ¶ 52. Nothing was accomplished at the meeting.


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On May 6, 2014, Crompton met with Jenkins’s Chief of Staff

Shamima Amin to discuss how the university would comply with the

Title IX publication requirements. Amin said that Tuskegee’s

Title IX policy should be on the website. Crompton tried to

hand Amin the Title IX policy that General Williams concurred

with and sent to Jenkins, but Amin told Crompton to send the

policy to the IT department. Id. ¶ 53. Crompton sent the

policy to an IT employee who posted it on Tuskegee’s website the

next day. Shortly thereafter, Crompton traveled to California

for a “Title IX Conference on campus safety and sexual

violence.” Defs.’ Mot. for Summ. J. Ex. 25, Crompton’s Travel

Documents, ECF No. 103-14.

Several days later, Sellers-Simons noticed the Title IX

policy posted on the website and emailed Amin. Email from

Cynthia Sellers-Simons to Shamima Amin (May 29, 2014), ECF No

103-24 at 4. The policy states in part:

The Vice President for Student Affairs will develop a

strategic plan for implementation of all student-

related Title IX requirements and to submit that plan

by June 1, 2014 to the President for approval.

Defs.’ Mot. for Summ. J. Ex. 36, Title IX Campus-Wide Compliance

Requirements, ECF No. 103-25.

On June 3, Jenkins held a meeting with Crompton and

Sellers-Simons to discuss the website posting. Jenkins asked

Crompton if he had posted the Title IX policy on Tuskegee’s


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website. Crompton told Jenkins that Amin told him to send the

policy to IT. Pl. Aff. ¶ 59. Jenkins told Crompton not to

blame Amin. Id. Jenkins then asked Crompton who had approved

the Title IX recommendations, and Crompton responded that

General Williams had concurred with them in the April 24 email

that he sent to Jenkins and Crompton. Id.

Jenkins called General Williams on speaker phone. When

General Williams answered the phone, Jenkins said, “Crompton

tells me that you are now running the university [sic].” Id.

Jenkins then asked General Williams if he had told Crompton to

make Sellers-Simons the Title IX coordinator. General Williams

responded, no. Id. Crompton explained that when he said that

General Williams approved the recommendations, he meant that

General Williams had fully concurred with the recommendations in

his previous email to Jenkins. Id. General Williams agreed

that he had concurred with the recommendations but did not

“approve” them. Id.

IV. Crompton’s Termination

Jenkins’s term as acting President was scheduled to end in

June 2014 when Dr. Brian Johnson would take over as President.

In his last few months in office, Jenkins wanted to make changes

at Tuskegee. Back on April 28, 2014, before the United

Educators letter and Title IX website posting issue, Jenkins

told Crompton that he was eliminating the Office of General


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Counsel and that Crompton would be terminated as a result. Pl.

Aff. ¶ 49. Crompton reminded Jenkins that he had a five-year

contract that did not expire until February 7, 2016 and that he

was a tenured employee. Id. Later that day, Jenkins called

Crompton to tell him that he had reconsidered. Jenkins said

that instead of terminating Crompton, he would transfer Crompton

to a faculty position when the Office of General Counsel was

eliminated. Id.

In May 2014, Jenkins and his Chief of Staff Amin were in

contact with incoming President Johnson about the changes

Jenkins planned to make before the transition. On May 28, 2014,

Johnson and Amin exchanged emails about Jenkins’s plan to

eliminate Crompton’s General Counsel position. In one email

Johnson states:

Mr. Crompton is not to attend executive cabinet nor

have a 1 on 1 with me. . . . I understand he has a

contract but he is to keep his pay for duration of

contract and return to faculty. After it expires his

pat [sic] can be negotiated with dean in view of his

faculty status. I have been informed of these things

by Mr. Jenkins.

Email from Brian Johnson to Shamima Amin (May 28, 2014), ECF No.

120-14 at 2-3. Amin responds:

Thank you for your understanding! I didn’t want to

alert Mr. Crompton before you are on board that he

will no longer be our general counsel, which will

complicate things. There are many lawsuits against

the University. . . . If Mr. Crompton somehow comes to

know about his position elimination, he might not


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respond to some of the legal inquiries from judges and

attorneys of our current and potential lawsuits.

Pl.’s Resp. in Opp’n of Defs.’ Mot. for Summ. J. Ex. O, Email

from Shamima Amin to Brian Johnson (May 28, 2014), ECF No. 120-

14 at 2. On May 31, 2014, Jenkins emailed Crompton asking him

to bring all of his case files, written summaries of the status

of each case, and relevant contact information to Jenkins’s

office. Pl.’s Resp. in Opp’n to Defs.’ Mot. for Summ. J. Ex. S,

Email from Matthew Jenkins to Darryl Crompton, ECF No. 120-18.

The day after the Title IX website-posting meeting, Crompton met

with Jenkins to turn over his legal files as requested. Pl.

Aff. ¶ 60. Jenkins instructed Crompton to brief attorney Fred

Gray on all of Crompton’s open cases. Id.

The next day, Jenkins called Crompton and told him to come

to his office. Id. ¶ 62. When Crompton arrived at Jenkins’s

office, Jenkins told Crompton that he was terminated. Id. ¶ 63.

He did not give Crompton any reason for the termination but told

Crompton to talk with Gray to “work out an equitable resolution

of [his] contract.” Id. Jenkins handed Crompton the following

termination letter:

This is to officially notify you that we are

terminating your services with Tuskegee University,

effective at 5:00 p.m. today, June 5, 2014. Members

of my team will meet with you to reach an equitable

resolution of your contract.


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Defs.’ Mot. for Summ. J. Ex. 23, Letter from Matthew Jenkins to

Darryl Crompton (“Termination Letter”) (June 5, 2014), ECF No.

103-12. Crompton and Gray did not reach a resolution, and

Crompton hired an attorney, James Anderson. Pl. Aff. ¶ 68.

Anderson met with Gray several times during the next week but

the two still did not reach a resolution because Jenkins did not

give Gray authority to settle Crompton’s claims on behalf of

Tuskegee. Pl.’s Resp. in Opp’n to Summ. J. Ex. D, Gray Dep.

48:10-14, ECF No. 118-1.

When it was clear to Crompton that an equitable resolution

would not be reached, Crompton sent letters to the newly

inaugurated President Johnson requesting the due process

procedures provided in the Staff and Faculty Handbooks. Johnson

responded that he had sent the letters to Tuskegee’s counsel,

Lisa Atkins. Crompton never received a hearing. On June 25,

2014, Atkins emailed Crompton clarifying Tuskegee’s position

regarding Crompton’s termination:

Tuskegee does not see you as having a faculty

appointment or tenure. Tuskegee also acknowledged, as

it must, that under state law, a contract for a term

of years is terminable for cause, and the President

who fired you—interim President Matthew Jenkins—did so

for cause. He felt very strongly that you had lied to

him, and this constitutes cause. . . .

Under Alabama law, a contract for a term of years is

terminable for cause. You were terminated by interim

President Matthew Jenkins for cause—he felt you lied

to him.


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Pl.’s Resp. in Opp’n to Defs.’ Mot. for Summ. J. Ex. R, Email

from Lisa Atkins to Darryl Crompton (June 26, 2014), ECF No.

120-17 at 2-3. Atkins offered Crompton six months’ pay and

benefits to resolve his claims. Id.; Pl. Aff. ¶ 71. Crompton

rejected this offer and filed this action.

Crompton labels his eight claims as follows: (1) breach of

his five-year employment contract as Vice President and General

Counsel against Tuskegee; (2) breach of his contract as a

tenured faculty member against Tuskegee; (3) fraudulent

misrepresentation against Tuskegee; (4) fraudulent suppression

against Tuskegee; (5) fraudulent misrepresentation against

Tuskegee and Jenkins; (6) fraudulent suppression against

Tuskegee and Jenkins; (7) promissory estoppel against Tuskegee;

and (8) a claim for declaratory and injunctive relief.

V. Declaration of Jenell Sargent

In support of their motion for summary judgment, Defendants

submit the declaration of Jenell Sargent. Jenell Sargent is the

Chief Information Officer at Tuskegee University. Defendants

offer her testimony to authenticate several emails produced

during discovery, allegedly showing that Crompton forwarded

emails from his Tuskegee email account to his personal account

after his termination. Defs.’ Mot. for Summ. J. Ex. G, Sargent

Decl. ¶ 4, ECF No. 103-32. Sargent also states that all

university email is the property of Tuskegee and that


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“[u]nauthorized possession, use, or copying any records that are

the property of Tuskegee University” is grounds for immediate

dismissal. Id. ¶¶ 7-8.

Crompton filed a motion to strike the declaration and

attached exhibits because Defendants failed to disclose Sargent

as a witness prior to the close of discovery. Federal Rule of

Civil Procedure 26(a)(1)(A)(i) requires each party to disclose

“the name and, if known, the address and telephone number of

each individual likely to have discoverable

information . . . that the disclosing party may use to support

its claims or defenses, unless the use would be solely for

impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(i). Parties must

also supplement these disclosures. Fed. R. Civ. P. 26(e)(1).

Parties who fail to comply with Rule 26 are “not allowed to use

that information or witness to supply evidence on a motion, at a

hearing, or at trial, unless the failure was substantially

justified or is harmless.” Fed. R. Civ. P. 37(c)(1).

A February 19, 2015 Scheduling Order sets the discovery

deadline as September 18, 2015. Uniform Scheduling Order, ECF

No. 49 at 2. This scheduling order was amended twice, and

discovery was eventually extended to February 2, 2016. On

January 4, 2016, Defendants included “[a]ll records custodians

necessary to authenticate documents for dispositive motion or

trial” in their second supplemental Rule 26 disclosures. Pl.’s


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Mot. to Strike Ex. C, Defs.’ 2d Suppl. Rule 26 Disclosures ¶ 26,

ECF No. 114-3 at 17. Defendants did not, however, specifically

identify Jenell Sargent as a witness by name until March 15,

2016, when they offered her declaration and attached exhibits in

support of summary judgment.

Defendants make two arguments that they complied with

Rule 26. First, Defendants contend that they did not fail to

disclose Jenell Sargent as a witness because they listed “all

records custodians” on their January 4, 2016 supplemental

disclosure. But the text of Rule 26 does not contemplate

categorical disclosure—it says “name.” Fed. R. Civ. P.

26(a)(1)(A)(i). Thus, the Court concludes that Jenell Sargent

was not properly disclosed.

Defendants also argue that they were not required to

disclose Jenell Sargent because the documents that she will

authenticate will be used for impeachment. While those

documents may be used for impeachment at trial, Defendants

clearly seek to have the Court consider them as substantive

evidence and rely on them in deciding their motion for summary

judgment. Use of this evidence in this manner at the summary

judgment stage requires timely disclosure.

Because Jenell Sargent was not properly disclosed, the

Court must determine whether her testimony should be excluded by

considering: “(1) the importance of the testimony; (2) the


22

reason for [Defendants’] failure to disclose the witness

earlier; and (3) the prejudice to the opposing party if the

witness [was] allowed to testify.” Bearint ex rel. Bearint v.

Dorell Juvenile Grp., Inc., 389 F.3d 1339, 1353 (11th Cir.

2004).

Sargent’s testimony authenticates emails showing that

Crompton may have committed a violation of Tuskegee policy after

Tuskegee terminated him. Thus, these emails are not probative

of whether Crompton was terminated for cause. While these

emails may be relevant to one or more of Defendants’ affirmative

defenses asserted in their amended answer, Defendants do not

make this argument. The Court finds that Defendants have not

demonstrated that the “importance” factor weighs in their favor

as a justification for permitting late disclosure.

The Court also finds Defendants’ excuse for late disclosure

unpersuasive. Defendants state that their former counsel

discovered the emails on January 27, 2016—about a week before

the close of discovery. This does not explain why Defendants

did not disclose that Sargent would authenticate the emails

during the final week of discovery or during the month before

Defendants filed their motion for summary judgment.

Finally, Crompton would be prejudiced by having to confront

the late-produced declaration of a witness that he did not have


23

an opportunity to confront during discovery. Thus, this factor

weighs against excusing Defendants’ untimely disclosure.

Based on the foregoing, the Court grants Crompton’s motion

to strike the declaration of Sargent, and the Court does not

consider that evidence in deciding Defendants’ motion for

summary judgment. However, this Order does not exclude the

evidence for use at trial as long as Defendants provide Crompton

with an opportunity to take Sargent’s deposition before trial.

DISCUSSION

I. Summary Judgment Standard

Summary judgment may be granted only “if the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). In determining whether a genuine dispute of

material fact exists to defeat a motion for summary judgment,

the evidence is viewed in the light most favorable to the party

opposing summary judgment, drawing all justifiable inferences in

the opposing party’s favor. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 255 (1986). A fact is material if it is relevant

or necessary to the outcome of the suit. Id. at 248. A factual

dispute is genuine if the evidence would allow a reasonable jury

to return a verdict for the nonmoving party. Id.


24

II. Discussion

When subject matter jurisdiction is based on diversity, the

Court applies the forum state’s choice-of-law rules to determine

which law governs the action. Bituminous Cas. Corp. v. Advanced

Adhesive Tech., Inc., 73 F.3d 335, 337 (11th Cir. 1996). In

contract actions, Alabama applies the rule of lex loci

contractus and in tort actions, Alabama applies the rule of lex

loci deliciti. See Morris v. SSE, Inc., 912 F.2d 1392, 1396

(11th Cir. 1990). Here, Crompton’s contract was entered in

Alabama and Crompton’s injury occurred in Alabama. Thus, as the

parties acknowledge, Alabama law governs Crompton’s claims.

A. Breach of Contract Against Tuskegee University

Crompton claims that Tuskegee breached his employment

contract by terminating him without cause or due process. “The

elements of a breach-of-contract claim under Alabama law are

(1) a valid contract binding the parties; (2) the plaintiff’s

performance under the contract; (3) the defendant’s

nonperformance; and (4) resulting damages.” Barrett v. Radjabi-

Mougadam, 39 So. 3d 95, 98 (Ala. 2009) (quoting Shaffer v.

Regions Fin. Corp., 29 So. 3d 872, 880 (Ala. 2009)).

Additionally, “[t]he rule is well settled that if a[n]

[employment] contract does not specify a duration of employment,

it is considered terminable at will and may be terminated by

either party for any cause or for no cause.” Shirley v. Lin,


25

548 So. 2d 1329, 1332 (Ala. 1989). But “[i]f employment is for

a specific term, the employee can only be fired for good cause.”

Trenier v. City of Prichard, 168 So. 3d 22, 30 (Ala. 2014);

Shirley, 548 So. 2d at 1332 (“[C]ontracts of employment that do

specify a definite period terminate by their own terms at the

end of such period and may not be terminated at the will of

either party.”).

Crompton claims that his contract was breached in two ways.

First, he contends that his contract was of a specific duration

and thus his employment could only be terminated for cause. And

he maintains that Defendants had no cause to fire him. Second,

he argues that he was afforded certain due process rights under

Tuskegee policies and procedures before he could be terminated.

He asserts that he was denied those rights, and thus Defendants

breached his employment contract.4

1. The Contract

To establish that he had an employment contract that was

not terminable at will, Crompton must show: “(1) that there was

a clear and unequivocal offer of lifetime employment or

employment of definite duration;” “(2) that the hiring agent had

authority to bind the principal to a permanent employment

4 Crompton does not make a constitutional due process claim which

likely would not be available given that Tuskegee is not a public

institution. His “due process” claim is based on the alleged

incorporation of Tuskegee’s due process policies and procedures into

his employment contract.


26

contract;” and “(3) that the employee provided substantial

consideration for the contract separate from the services to be

rendered.” Hoffman-La Roche Inc. v. Campbell, 512 So. 2d 725,

728 (Ala. 1987). Defendants do not dispute that Rochon had

authority to bind Tuskegee or that Crompton provided substantial

consideration for his employment contract. Rather, the parties

disagree about the terms defining the duration of Crompton’s

employment.

“When there is no conflict in the evidence as to what the

terms of the contract are, and when its terms are clear and

unambiguous, the construction of the contract is within the

province of the court.” Hall v. Integon Life Ins. Co., 454 So.

2d 1338, 1342 (Ala. 1984). But when “there is some dispute as

to its terms and it appears that the terms are ambiguous, but

capable of being clarified by consideration of the surrounding

facts and circumstances, a jury question is presented.” Id.

“The threshold issue—whether or not the contract is ambiguous—is

itself a question of law.” J.I.T. Servs., Inc., v. Termic

Telefunken-RF, Eng’g, LLC, 903 So. 2d 852, 857 (Ala. Civ. App.

2004) (quoting Brown Mech. Contractors, Inc. v. Centennial Ins.

Co., 431 So. 2d 932, 942 (Ala. 1983)). “In answering this

threshold question, the trial court may consider extrinsic

evidence in order to determine whether there is a latent

ambiguity arising from some collateral matter outside the


27

writing.” Id. (quoting Brown Mech. Contractors, 431 So. 2d at

942).

a. FIVE-YEAR TERM

Crompton’s contract unambiguously states that it is for a

five-year duration:

I am indeed delighted to inform you of your selection

as the Vice President for Governmental Affairs and

University Counsel for Tuskegee University . . . under

a five year renewable contract.

Offer Letter 1, ECF No. 102-10 (emphasis added). And Defendants

do not appear to dispute that Crompton had a contract for a

five-year term with Tuskegee. See Defs.’ Br. in Supp. of Summ.

J. 21, ECF No. 104 (“It is uncontroverted that plaintiff was

offered and accepted a five-year contract as vice president for

governmental affairs and university counsel.”); Email from Lisa

Atkins to Darryl Crompton (June 26, 2014) (stating that

Crompton’s five-year term could be terminated for cause). The

Court finds that Crompton had an unambiguous contract for a

five-year term. Accordingly, his employment could only be

terminated prior to the expiration of that term for cause.

b. TENURE

The Court finds the tenure provisions of Crompton’s

contract more ambiguous than the five-year term provision of the

contract. His contract states:

It is also our intention to honor your existing

faculty rank and tenure status, as conferred by the

University of Alabama at Birmingham.


28

Offer Letter 1, ECF No. 102-10. Defendants argue that the

ordinary meaning of the word “existing” is “current” and that

because Crompton did not have current tenure at UAB in 2011, the

contract did not grant him tenure as a matter of law. But the

Court may consider the fact that Crompton did not have current

tenure when the contract was formed to determine whether the

word “existing” is latently ambiguous. See J.I.T. Servs., 903

So. 2d at 857 (Ala. Civ. App. 2004). “A latent ambiguity occurs

when the language of an instrument is clear and intelligible,

but, when considered in light of certain extraneous facts, takes

on another meaning.” Interstate Inv. Corp. v. Rose Care, Inc.,

631 So. 2d 836, 839 (Ala. 1993).

Here, it is undisputed that Crompton did not have tenure at

UAB in 2011. And Crompton offers evidence that Rochon knew that

Crompton did not have current tenure at UAB when Rochon drafted

the contract. First, Crompton states that he told Rochon in

2010 that he was no longer affiliated with UAB when the two met

for a visit in Washington D.C. Additionally, Rochon states that

he reviewed Crompton’s resume in late 2010, which lists

Crompton’s UAB position as a “former tenure” position, ending in

1989. And Rochon knew that Crompton was no longer physically

teaching at UAB in 2011. Rochon Dep. 97:17-18. He also knew

that Crompton was living in Washington D.C. and working as a

consultant. Rochon Dep. 88:23-89:1; 91:15-92:1. These


29

extraneous facts make it unclear whether Rochon used the word

“existing” in Crompton’s contract to mean “current” or “actual”—

as in the level of tenure that Crompton had already achieved in

his career. Thus, the term “existing” is latently ambiguous.

See Carnival Cruise Lines, Inc. v. Goodin, 535 So. 2d 98, 101-02

(Ala. 1988) (holding that a release was ambiguous “in its

provision that certain bathrooms would not accommodate a

wheelchair” because no bathrooms accommodated a wheelchair).

Because the term is ambiguous, the Court must look to extrinsic

evidence to define it.

Based on extrinsic evidence, a reasonable juror could

conclude that the contract grants Crompton tenure. As discussed

above, there is evidence from which a jury could conclude that

Rochon knew that Crompton did not have current tenure at UAB in

2011. And Crompton offers evidence that Rochon intended to

grant Crompton tenure anyway. First, there is evidence that

Rochon eagerly recruited Crompton to work at Tuskegee and asked

Crompton to move up his start date. Crompton also states that

he made it clear to Rochon that he would not accept the position

at Tuskegee unless he was granted the same tenure rights that he

had attained at UAB. And although Defendants present evidence

that Crompton was not eligible for tenure under the Tuskegee

Faculty Handbook because he did not hold a fulltime teaching

position, see Faculty Handbook 26, ECF No. 103-6 at 10, Crompton


30

presented evidence that Rochon told him that this was not

necessary. In fact, Rochon had tenure even though he did not

hold a fulltime teaching position or go through any of the usual

requirements for tenure in the Faculty Handbook.

Based on this evidence, a reasonable juror could conclude

that Rochon used the word “existing” to mean the level of tenure

that Crompton had actually attained at UAB, as opposed to a

level of tenure that Crompton currently held. Accordingly,

reasonable jurors could find that Crompton has an enforceable

contract granting him tenure.

2. Breach

Having found for purposes of the present motion that

Crompton has a contract for a five-year term that also grants

him tenure, the Court must determine whether a genuine factual

dispute exists on whether Tuskegee breached the contract by

terminating Crompton without cause or due process. Defendants

do not dispute that Jenkins terminated Crompton on June 5, 2014—

about nineteen months before his five-year term would have

ended. Rather, Defendants argue that Tuskegee did not breach

Crompton’s employment contract because Jenkins terminated

Crompton for cause and Crompton was not entitled to due process.

Cf. Trenier, 168 So. 3d at 30 (recognizing that employees

employed for a specific duration may be terminated for “good

cause”).


31

a. FOR CAUSE

Defendants claim that Jenkins terminated Crompton because

he believed that Crompton had lied to him twice. First,

Defendants argue that Crompton lied to Jenkins in his May 31,

2014 email when he told Jenkins that the Vice President of

Business and Fiscal Affairs was responsible for reporting

insurance claims. But Crompton offers evidence that this

statement was true. See Letter from Leslie Porter to Stephen

Martin (March 7, 2011), ECF No. 120-9 at 6-7; Correspondence

with United Educators, ECF No. 120-11; Pl. Aff. ¶¶ 32-36. Thus,

a reasonable juror could conclude that Crompton’s statement to

Jenkins about insurance claims reporting did not give Jenkins

cause to terminate Crompton.

Additionally, Defendants argue that Crompton lied to

Jenkins by telling Jenkins that General Williams told Crompton

to appoint Sellers-Simons as the Title IX coordinator. But

Crompton states that Defendants mischaracterize his statement.

He states that he told Jenkins that General Williams had

concurred with his Title IX compliance plan. Pl. Aff. ¶ 59.

And it is undisputed that General Williams did concur with

Crompton’s Title IX compliance plan in an email to Jenkins and

Crompton. Thus, a reasonable juror could conclude that

Crompton’s discussion with Jenkins about the Title IX compliance

plan did not give Jenkins cause to terminate Crompton.


32

Moreover, there is evidence that Jenkins wanted to

eliminate Crompton’s General Counsel position and that Jenkins

expressed a desire to terminate Crompton before either of the

incidents that Defendants claim constitute “cause.” Pl. Aff.

¶ 49. Crompton also offers emails suggesting that, after he

reminded Jenkins about his contract, Jenkins, Amin, and Johnson

purposely kept Crompton uninformed about the transition and

elimination of his position. Email from Brian Johnson to

Shamima Amin & Email from Shamima Amin to Brian Johnson (May 28,

2014) ECF No. 120-14 at 2-3. And Crompton’s termination letter

says nothing about why he was terminated. Instead, Jenkins told

Crompton that Tuskegee staff would work with him to determine an

equitable resolution of his contract. As university president,

however, Jenkins likely knew that “resolving” Crompton’s

contract was unnecessary if Crompton was terminated for cause.

Nevertheless, Jenkins told Crompton to negotiate with attorney

Gray. It was not until Tuskegee’s counsel Atkins sent Crompton

a letter twenty days after his termination that Crompton learned

that Tuskegee claims to have terminated him for cause. Based on

this evidence, a jury could conclude that Jenkins’s “cause” for

terminating Crompton was fabricated. Accordingly, a reasonable

juror could conclude that Tuskegee breached Crompton’s contract

by terminating him without cause.


33

b. DUE PROCESS

Crompton also claims that Tuskegee breached his contract by

terminating him without due process, as provided for in the

Tuskegee Staff and Faculty Handbooks. Crompton’s employment

contract does not expressly incorporate either Handbook. But

Alabama law recognizes that an employee handbook may constitute

a binding contract if: (1) “the language contained in the

handbook . . . is specific enough to constitute an offer;”

(2) the “offer [is] communicated to the employee by issuance of

the handbook or otherwise;” and (3) “the

employee . . . accept[s] the offer by retaining employment after

he has become generally aware of the offer.” Hoffman-La Roche

Inc., 512 So. 2d at 735. Defendants do not dispute that the

Handbooks were available to Crompton during his employment and

that Crompton accepted the terms in the Handbooks by continuing

work at Tuskegee.5 Defendants argue that the Staff Handbook does

not constitute an offer and that the Faculty Handbook does not

apply to Crompton.

Defendants are correct regarding the Staff Handbook. “[I]f

the employer does not wish the policies contained in the

handbook to be construed as an offer for a unilateral contract,

5 Neither party points to evidence on this point in the record. But

because Defendants do not dispute these elements, the Court assumes

for purposes of this motion that as General Counsel Crompton had

access to the Handbooks during his employment.


34

he is free to state so in the handbook.” Id. at 734. The

Tuskegee Staff Handbook states:

This Staff Handbook describes only the highlights of

Tuskegee University’s policy and employee benefits and

is not to be interpreted as a legal document or

employment contract.

Staff Handbook, ECF No. 103-5 at 4. Accordingly, if Crompton’s

position was covered by the Staff Handbook, his due process

theory for breach of contract fails as a matter of law. See

Harper v. Winston Cty., 892 So. 2d 346, 351-52 (Ala. 2004)

(holding that an employee handbook stating that the handbook was

a “guide” and that the policies “may vary” was not an

enforceable contract as a matter of law).

But there are genuine factual disputes regarding whether

the Staff or Faculty Handbook applies to Crompton. First, if a

jury concludes that Crompton has an employment contract for

tenure, Crompton is arguably covered by the Faculty Handbook,

which expressly applies to tenured faculty. And even if a jury

concludes that Crompton does not have a contract for tenure,

there is significant evidence that Crompton qualifies as a

“nontenured faculty” member.

First, it is unclear how Crompton—the Vice President of

Governmental Affairs—is not one of the “general officers” that

the Faculty Handbook refers to the definition of “faculty.”

Faculty Handbook 12, ECF No. 103-6 at 6. It is also unclear how


35

Crompton’s five-year contract does not qualify him as a

“college, school, or university faculty member . . . whose term

appointment ha[d] not expired.” Faculty Handbook 48, ECF No.

103-6 at 18. Finally it is unclear why Jenkins signed a

Personnel Action Form classifying Crompton as “faculty” if the

Staff Handbook applies to Crompton. Tuskegee Personnel Action

Form, ECF No. 120-16 at 2. Thus, reasonable jurors could

conclude that the Faculty Handbook applies to Crompton.

The Court further finds that the Faculty Handbook is

sufficiently specific to constitute an offer under Alabama law

and under the circumstances presented here. The Faculty

Handbook contains no express disclaimer and states that it has

been “Approved for Implementation,” suggesting that it is a more

formal document than the Staff Handbook. Faculty Handbook, ECF

No. 103-6 at 4. Additionally, it lays out the elements of due

process in detail and defines violations of due process. Id. at

43, ECF No. 103-6 at 15-22. Thus, although the Handbook uses

some aspirational terms such as “should” to describe the

termination process, see id. at 48, ECF No. 103-6 at 18, the

Court is satisfied at this point that, given its specificity

compared to the Staff Handbook, the Faculty Handbook is

sufficiently specific to constitute an offer.


36

For all of the reasons above, the Court denies Defendants’

motion for summary judgment as to Crompton’s breach of contract

claims.

B. Crompton’s Fraud Claims

When Crompton accepted Tuskegee’s offer of employment, he

believed that he had been hired for a term of five years with

tenure. And he continues to believe that these were the

essential terms of his employment contract with Tuskegee. But

based on Tuskegee’s actions during its termination of his

employment, Crompton now suspects that Tuskegee misled him when

it hired him and had no intention of treating him as a tenured

employee with a contract of definite duration. Thus, in

addition to his breach of contract claim, Crompton asserts fraud

claims against Tuskegee based on Rochon’s conduct and against

Tuskegee and Jenkins based on Jenkins’s conduct. If evidence

exists to support these suspicions, Crompton is entitled to have

a jury decide them and Defendants’ motion for summary judgment

on these claims must be denied.

Alabama law recognizes three kinds of fraud claims:

(1) fraudulent misrepresentation; (2) promissory fraud; and

(3) fraudulent suppression. “The elements of fraud[ulent

misrepresentation] are (1) a false representation (2) of a

material existing fact (3) reasonably relied upon by the

plaintiff (4) who suffered damage as a proximate consequence of


37

the misrepresentation.” Padgett v. Hughes, 535 So. 2d 140, 142

(Ala. 1988). “To prevail on a promissory fraud claim . . . two

additional elements must be satisfied: (5) proof that at the

time of the misrepresentation, the defendant had the intention

not to perform the act promised, and (6) proof that the

defendant had an intent to deceive.” Id. Whether a claim is

one for fraudulent misrepresentation or promissory fraud depends

on whether the alleged misrepresentation is of an existing fact

or is “a promise to act or not to act in the future.” Id. A

fraud claim based on a promise to act or not act in the future

is a promissory fraud claim. Id.

“Suppression of a material fact which the party is under an

obligation to communicate [also] constitutes fraud.” Ala. Code

§ 6-5-102. “In order to establish a fraudulent-suppression

claim, a plaintiff must prove (1) that the defendant had a duty

to disclose an existing material fact; (2) that the defendant

suppressed that existing material fact; (3) that the defendant

had actual knowledge of the fact; (4) that the suppression of

that fact induced the plaintiff to act or refrain from acting;

and (5) that the plaintiff suffered actual damages as a

proximate result.” Byrd v. Lamar, 846 So. 2d 334, 348 (Ala.

2002).

Having thoroughly reviewed the present record and

construing all reasonable inferences in favor of Crompton, the


38

Court finds that Crompton has pointed to sufficient evidence to

create genuine factual disputes as to Crompton’s fraud claims.

Accordingly, summary judgment is not appropriate, and

Defendant’s motion for summary judgment is denied as to those

claims.6

C. Promissory Estoppel

The Court grants Defendants motion for summary judgment as

to Crompton’s promissory estoppel claim. Under Alabama law, “a

promise which the promisor should reasonably expect to induce

action or forbearance of definite and substantial character and

which does so is binding if injustice can be avoided only by

enforcement thereof.” Davis v. Univ. of Montevallo, 638 So. 2d

754, 758 (Ala. 1994). But “[c]ourts have been reluctant to

permit the enforcement, by the application of the doctrine of

promissory estoppel, of promises made contemporaneously with a

completed contract, evidence of which promises comes within the

prohibition of the parol evidence rule.” Id. Here, Crompton

indisputably has an employment contract for a five-year term.

Whether the contract also grants Crompton tenure is a matter for

6 If a jury concludes that Crompton had a contract for tenure,

Crompton’s fraud claims based on Rochon’s conduct fail. See Nat’l

Sec. Fire and Cas. Co. v. Vinston, 414 So. 2d 49, 51 (Ala. 1982)

(recognizing that when a plaintiff claims a misrepresentation in the

inception of a contract, the plaintiff may recover under either breach

of contract or fraud but not under both theories). Nevertheless, the

Court may submit both claims to the jury with an instruction that only

one claim can succeed. Id. (recognizing that both theories should

still be sent to the jury).


39

the jury. But once the jury determines the terms of Crompton’s

employment contract, the Court must not use promissory estoppel

to add or modify the terms based on outside promises.

Accordingly, the Court finds that this is not an appropriate

case for promissory estoppel and grants summary judgment as to

this claim.

D. Declaratory Relief/Injunction

The Court denies Defendants’ motion for summary judgment as

to Crompton’s claim for declaratory/injunctive relief. Although

Tuskegee has strong arguments that the Court should not order it

to reinstate Crompton, see Sugarman v. Jim Dandy Co., 239 So. 2d

545, 552 (Ala. 1970) (holding that an equity court could not

grant specific performance of a personal services contract but

that the equity court could issue a statement declaring the

parties’ rights), the Court need not decide this issue on

summary judgment. If the jury determines that Tuskegee breached

Crompton’s employment contract, then the Court will determine if

declaratory relief is appropriate.

CONCLUSION

For the reasons stated above, the Court grants Crompton’s

motion to strike the declaration of Jenell Sargent (ECF No. 114)

insofar as the Court did not consider it in deciding Defendants’

motion for summary judgment. The Court denies Defendants’


40

motion for summary judgment as to all claims except Crompton’s

promissory estoppel claim (ECF No. 101).

IT IS SO ORDERED, this 8th day of July, 2016.

S/Clay D. Land

CLAY D. LAND

U.S. DISTRICT COURT JUDGE


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