author: CURTIN, Chief Judge.

text:
    Henry J. BARON, Plaintiff, v. BAUSCH & LOMB, INC., Defendant.
    No. CIV-79-2C.
    United States District Court, W.D. New York.
    Oct. 22, 1985.
    Marchiondo & Berry, P.A. (Charles G. Berry, Albuquerque, N.M., of counsel), for plaintiff.
    Allegretti, Newitt, Witcoff & McAndrews, Ltd. (Edward W. Remus, and Robert C. Ryan, Chicago, Ill., of counsel), for defendant.
   CURTIN, Chief Judge.

Plaintiff Henry J. Baron claims that several hundred soft contact lenses produced by defendant Bausch & Lomb, Inc., a leading contact lens manufacturer, infringe his patent No. 3,698,802 [802] issued October 17, 1972, and his patent No. 4,048,890 [890] issued April 18, 1978.

History

This action was commenced in Colorado nearly seven years ago. It was transferred to the late Honorable Harold P. Burke of this district on January 2, 1979. At the time it reached my docket in mid-1981, plaintiff’s only action, except for responding to defendant’s papers, had been the filing of a single set of interrogatories. In response to an order to show cause why the case should not be dismissed for failure to prosecute, plaintiff stated that “[t]he only thing remaining in the course of discovery [by plaintiff] is to set a series of depositions and, thereafter, any pretrial matters____”

Relying on these representations, the court did not dismiss the action, but ordered that discovery be completed within 90 days (Item 17). No discovery was undertaken by plaintiff, and defendant moved to dismiss in February of 1982. That motion was denied, and plaintiff was ordered to proceed vigorously with discovery (Item 32).

In mid-1982, defendant gave more than 400 contact lenses to plaintiff. Bausch & Lomb also provided plaintiff with more than 500 confidential design drawings depicting each accused lens. These drawings are protected by a stipulated protective order filed July 23, 1982 (Item 49). The order limits the number of people who can see the drawings to those on the staff of plaintiff’s attorney and to independent consultants agreed to by both parties. Although the number of consultants who had access to the drawings was limited, Baron has been free, for the past three years, to show the actual lenses to any consultant for study and photographing. These lenses are available on the open market.

In April of 1984, defendant again moved for dismissal for failure to prosecute. Although little appeared to have been done by plaintiff during the intervening two years, the court was reluctant, in view of discovery disputes between the parties, to impose such a harsh sanction and again denied defendant’s motion (Item 147).

Pending Motions

Plaintiff has moved to compel discovery of, among other things, information as to defendant’s manufacturing processes, the physical characteristics of its lenses, and reports relating to the design progression of the lenses. Defendant has moved for partial summary judgment on the issue of infringement by Bausch & Lomb’s “minus” contact lenses. The court has carefully reviewed the record and considered the positions the parties advanced at oral argument. For the reasons below, plaintiff’s motion to compel is denied, and defendant’s motion for partial summary judgment is granted.

The Claims

Baron’s 802 patent has three claims, the latter two being dependent upon Claim 1, the most significant portion of which reads:

[S] aid lens being provided with a thickened annular bead portion extending outwardly from said convex surface between the optical zone and the lens edge, said bead portion having a curved, convex outer surface and a generally centrally located portion defining the area of maximum thickness of the lens.

The 890 patent has six claims, with the final five dependent on the first. Claim 1 of the 890 patent reads, in pertinent part:

[T] he juncture of said optical zone and said peripheral portion being defined by a visually apparent change in the shape of said outer surface of said optical zone at said juncture, said peripheral portion having a region intermediate said edge and said juncture, said region being thicker than at said edge or said juncture.

Bausch & Lomb, Inc., produces both “minus” and “plus” lenses. The minus lenses are worn by near-sighted people; the plus correct farsightedness. Only the minus lenses are at issue in defendant’s motion for partial summary judgment. Defendant urges that none of its minus contact lenses has the features required by claims of the 802 and 890 patents. Rather than an annular bead, as described in the 802 patent, or thickened region following a visually apparent break, as described in the 890 patent, defendant maintains that the peripheral region of its minus lenses continuously tapers to the edge.

Baron’s Motion to Compel Discovery

Plaintiff maintains that he needs further discovery to ultimately prove infringement and, more importantly, to properly defend against the motion for partial summary judgment. (This position is somewhat contradictory, since two of plaintiff’s consultants have expressed the opinion that certain lenses infringe plaintiff’s 802 patent based solely on the drawings and/or photographs.)

The design drawings provided by defendant were prepared by a computer. As stated in response to one of plaintiff’s interrogatories:

The computer is provided with confidential processing details such as the identity of the materials and procedures used to manufacture the rotating mold in which the soft contact lenses are produced, the amount and physical properties of the chemical mixture used to form the soft contact lenses and which is placed in the rotating mold, the rotational speed of the rotating mold to form the lens and the reaction conditions.

Item 176, Exh. 5, Interrogatory # 33.

Plaintiff primarily seeks all the information used by the computer in preparing the drawings. He seeks information about the flexibility, absorption, and optical characteristics of the material used to make the lenses. Plaintiff also requests all reports regarding progress in design of the lenses, as set out in his request for production (Item 194, # 1). Two of plaintiff’s expert consultants, Mr. Richard Lindmark and Dr. Allan Isen, state that they need this information as it relates to the “dimensions, thicknesses, curvatures and configurations” of the lens (Item 176, Exhs. 2 and 8).

Dr. Baron’s patents, however, do not cover a manufacturing process or describe in any detail the characteristics of the material used. No specific measurements or dimensions are required by the patents. What the patent protects is the geometric configuration of the lens as described in the claims. Plaintiff has in his possession both the design drawings and the actual contact lenses. Plaintiff has shown his ability to photograph these lenses and enlarge the photographs, to compare them with the design drawings, and to compare them with the claims of the patents (Item 176, Exhs. 2 and 4).

Defendant has stated that the production of documents and reports requested by plaintiff would be greatly burdensome, since thousands of documents are involved. Furthermore, the manufacturing information demanded by plaintiff is highly confidential. Counsel for defendant described Bausch & Lomb’s unique “spin-casting” manufacturing technique. The details of this process would be highly prized in the competitive contact lens market. Since plaintiff has the actual lenses, and keeping in mind the nature of the claims which govern his patents, the information sought by plaintiff is unnecessary to defend against the summary judgment motion.

During oral argument, counsel for plaintiff also urged that he needs more discovery to show infringement under the doctrine of equivalents. He could only say, at this point, that there may be infringement under that doctrine. Even without literal infringement, an accused article may still infringe if it does substantially the same function in substantially the same way to achieve the same result. Graver Tank Co. v. Linde Air Products Co., 339 U.S. 605, 610, 70 S.Ct. 854, 857, 94 L.Ed. 1097 (1950).

Baron has stated that the “essence” of his invention is a lens which has added mass between the optical area and edge of the lens to properly center on the eye while obtaining good visual acuity (Item 175, pp. 31-32). By seeking discovery of manufacturing processes and reports of design changes, Baron apparently expects to show that defendant added mass to the peripheral area to stabilize it on the eye.

Even if this were so, it would not be sufficient to show infringement. In most cases when the issue is infringement by the doctrine of equivalents, material issues of fact will often prevent summary judgment. Martin v. Barber, 755 F.2d 1564 (Fed.Cir. 1985). Baron cannot rely, however, on the doctrine of equivalents to regain what he surrendered during the prosecution of his patent application. Builders Concrete, Inc. v. Bremerton Concrete Products Co., 757 F.2d 255, 258 (Fed.Cir.1985); and Prodyne Enterprises, Inc. v. Julie Pomerantz, Inc., 743 F.2d 1581, 1583 (Fed.Cir. 1984). As will be discussed more fully below, plaintiff repeatedly sought to obtain a patent for a generally thickened peripheral area and was repeatedly turned down by the Patent Office (see Item 160, Prosecution History). His patents were accepted only when he added the specifics found in Claim 1 of each patent. If the lenses lack these characteristics, they do not infringe under any theory.

In the affidavit by plaintiffs expert consultant, Mr. Lindmark, he prefaced his discussion of the need for further discovery with the following:

In order for one knowledgeable in the field to be able to determine whether a specific contact lens incorporates the principles covered by Dr. Baron’s patents ____

Item 176, Exh. 2, p. 11 (emphasis added). The question, however, is not whether the accused lens “incorporate the principles” of the patent, but whether they violate the claims as construed with the prosecution history.

Plaintiff’s motion to compel production of documents set forth in Item 144, No. 1, is denied, as is his motion to compel answers to interrogatories (Item 131) which seek the information discussed above. The court can now address the motion for partial summary judgment.

Bausch & Bomb’s Motion for Partial Summary Judgment

Pursuant to 28 U.S.C. § 1295(a)(1), the Federal Circuit assumed exclusive jurisdiction over appeals in patent actions. The Federal Circuit has stated that summary judgment is as appropriate in a patent case as in any other case. Petersen Manufacturing Co. v. Central Purchasing, Inc., 740 F.2d 1541, 1546 (Fed.Cir.1984). There must be no genuine issue of material fact, and the movant must be entitled to judgment as a matter of law.

The issue of infringement raises at least two questions: (1) what is patented, and (2) has what is patented been made, used or sold by another. The first is a question of law; the second a question of fact.

Fromson v. Advance Offset Plate, Inc., 720 F.2d 1565, 1569 (Fed.Cir.1983) (citation omitted).

While the facts and inferences of fact must be viewed in the light most favorable to the non-moving party,

The party opposing the motion must point to an evidentiary conflict created on the record at least by a counter statement of a fact or facts set forth in detail in an affidavit by a knowledgeable affiant. Mere denials or conclusory statements are insufficient.

Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d 831, 836 (Fed.Cir.1984).

Claim Construction

Claims must be construed in connection with the specification, drawings, and prosecution history. Autogiro Co. of America v. United States, 384 F.2d 391, 397, 181 Ct.Cl. 55, (1967); Fromson v. Advance Offact Plate, Inc., 720 F.2d 1565, 1570 (Fed. Cir.1983). (See Defendant’s appendix to its motion for summary judgment, Item 160.)

Plaintiff filed four applications before the issuance of his 802 patent. After an initial rejection of his first application, Baron amended his independent claim to state, in the last clause:

[A]nd an outer peripheral surface portion tapering from a thin edge to an intermediate point of maximum thickness and then tapering toward the center of the lens.

Item 160, p. 21. This application was rejected as unpatentable over prior art and for obviousness (Item 160, p. 30). Baron again discussed thickness or mass in his third application, calling for “additional mass” at the lower portion of the lens in two of his dependent claims. These claims were rejected (Item 160, pp. 89 and 96). In his fourth and final application, Baron offered two independent claims, both of which ended with the clause:

[A]n outer peripheral surface portion tapering from a thin edge to an intermediate point of maximum thickness and then tapering to the center of the lens.

Item 160, p. 138. This variant was also rejected.

Ultimately, Baron amended his application to what is now Claim 1 of the 802 patent:

A contact lens adapted to adhere to the cornea while at the same time maintaining good visual acuity, said lens being fabricated from transparent, soft, flexible, hydrophilic, cross-linked polymeric material; said lens having a generally spherical concave inner surface which conforms substantially to the curved surface of the cornea when positioned thereon, said lens having a generally convex outer surface providing a centrally located optical zone, the concave and convex surfaces intersecting at the periphery of the lens to form a relatively thin, knife-like edge, said lens being provided with a thickened annular bead portion extending outwardly from said convex surface between the optical zone and the lens edge, said bead portion having a curved, convex outer surface and a generally centrally located portion defining the area of maximum thickness of the lens.

(Emphasis added.)

It is noted that Baron’s final Claim 1 initially said that the bead portion had a “centrally located portion defining the area of maximum thickness thereof.” (Item 160, p. 198.) However, before it was approved in final form, Baron was required to agree to change “thereof” to “of the lens.” (Item 160, pp. 211-12.) The center of bead must be the thickest portion of the entire lens, not just the bead.

In addition to the claims, Baron submitted eight drawings, the first three showing a side view of a contact lens:

Figure 3 is an embodiment of the 802 patent: it has the requisite annular bead portion, with the greatest thickness towards the center, extending outwardly from the surface. In his application for what was eventually his 890 patent, he stated: “Basically, claim 1 of the ‘802 Baron patent literally reads on the embodiment of fig. 3 of the drawings of that patent____” (Item 160, p. 288).

In the first of two applications for the 890 patent, plaintiff again presented Figures 1-3. He initially offered, as part of Claim 1 of that application:

[S]aid lens having a centrally located optical zone and a peripheral portion extending outwardly from said optical zones and terminating in a relatively thin edge of the lens, said peripheral portion having its- maximum thickness- at a region intermediate said edge and the juncture of said peripheral portion and said optical zone.

Item 160, p. 238.

In the second successful application, Baron clearly stated that, while both figures 2 and 3 embodied his invention, figure 1 was not covered by the patent (Item 160, p. 393). He offered an amended Claim 1, which emerged as the final 890 patent:

A contact lens adapted to be positioned adjacent the cornea while at the same time maintaining good visual acuity, said lens being formed from a transparent, soft, flexible, hydrophilic, cross-linked polymeric material and having an outer surface and a concave inner surface that conforms generally to that surface of the cornea adjacent to which it is located, said lens having a centrally located optical zone and terminating in a relatively thin edge of the lens, the juncture of said optical zone and said peripheral portion being defined by a visually apparent change in the shape of said outer surface of said optical zone at said juncture, said peripheral portion having a region intermediate said edge and said juncture, said region being thicker than at said edge or said juncture.

Item 160, p. 354 (emphasis added).

In light of this history, the 802 patent is limited to the embodiment depicted in Figure 3, while the 890 covers both those in Figures 2 and 3. Neither covers Figure 1, or the Minisculent-type lens (Item 160, pp. 200-01).

The entire prosecution history reveals efforts by plaintiff to patent a lens which had additional mass or thickness in a region outside the optical area and before the edge of the lens. Such efforts were repeatedly rejected, and plaintiff is now confined to the language of his claims. He cannot show literal infringement or infringement under the doctrine of equivalents without the specific features set forth in the claims.

Infringement

In describing the differences between the Baron patents and the accused minus lenses, defendant focused on a representative lens, Low Minus B3 (-12.00 diopter). In an answer to an October 1982 interrogatory, plaintiff had stated that almost all of defendant’s lens series were representative of the lens design alleged to infringe the 802 patent (Item 160, p. 442). After plaintiff pointed out a consistent difference in configuration between defendant’s “high” and “low” minus lenses, defendant also selected a representative high lens, High Minus B3 (-19.50 diopter).

Plaintiff now urges that each lens has a distinct configuration and that this court must examine each individual minus lens in deciding the motion for partial summary judgment (Item 201, pp. 1 & 2). Defendant agrees that each lens is slightly different. This is inevitable, since each lens is of a certain power to correct a given level of visual impairment. Plaintiff loses sight of the fact that differences are only significant if they are material to the issue of infringement. Baron cannot rest on the blind assertion that each lens is different— on a motion for summary judgment, it is his burden to show the court how they materially differ. He has had the opportunity to direct the court’s attention to any and all lenses which he believes infringe his patents.

Using the final claims of the patents, the figures found in patent applications, the Minisculent references distinguished by Baron, and the design drawings and photographs of the Low Minus B3 (-12.00 diopter) and High Minus B3 (-19.50 diopter) lenses, defendant has shown that its lenses do not infringe plaintiff’s patents (see Appendix). In response, plaintiff offers no evidence to create a factual dispute, but rather opinions.

The court finds no genuine issue of material fact as to the following: the cross-sectional photos submitted by defendant are accurate depictions of the accused lens. The sole difference is the sagital depth, which is not significant in light of the patents (Item 191, Apollonio declaration). Furthermore, there is no evidence that the design drawings are inaccurate. All photographs of the actual lenses support the accuracy of the drawings. Based on a review of the design drawing collection, the Low Minus B3 (-12.00 diopter) lens is representative of defendant’s low minus lenses, and the High Minus B3 (-19.50 diopter) lens is representative of the high minus lenses. There is no evidence to the contrary. Neither the Low Minus B3 (-12.00 diopter) nor the High Minus B3 (-19.50 diopter) lens has the requisite annular bead portion extending outwardly from a convex surface with a centrally located portion defining the maximum thickness of the lens. Nor do the minus lenses have a visually apparent change at the juncture between the optical zone and peripheral region, with a thickened area between the juncture and the lens. The peripheral region of the Bausch & Lomb minus lenses continuously taper to the edge.

In defending against the summary judgment motion, plaintiff relies on the affidavits of Dr. Isen (Item 176, Exh. 7) and Mr. Lindmark (Item 176, Exh. 2, and Item 187).

Dr. Isen compared the drawings to the claims of Baron’s 802 patent. In his opinion:

Reading the claims as they would be by those of ordinary skill in this art, all of the lenses described in the confidential design drawing collection supplied by Bausch & Lomb, except those contained in the minus C and low plus N series infringe Claim 1 of Patent No. 3,698,802. The following series violate Claim 2: low minus N, low minus F, low minus B, low minus J, low minus U, low minus U3. The following series of lenses violate Claim 3 of this patent: low minus F3, low minus B3, low minus J3, low minus U3, minus B4, minus U4, high plus N, plano T, high plus F3, low plus F3, high plus J3, and high plus B3.

As to the 890 patent:

Reading the claims as normally construed by those of ordinary skill in the art, all of the lenses illustrated in the confidential design drawing collection except those described in the minus C series and low plus N series violate Claims 1, 2, 3 and 5 of Patent No. 4,084,890.

These opinions do not constitute “counter statements] of fact or facts set forth in detail in an affidavit by a knowledgeable affiant.” Barmag Barmer Maschinenfabrik AG v. Murata Mach., Ltd., 731 F.2d at 835-36. They are totally conclusory, and insufficient to establish a genuine issue of material fact.

Mr. Lindmark submitted two affidavits, one in which he stated that he examined an enlarged photograph of a Low Minus B3 (-12.00 diopter) lens. In his opinion, it infringed Claim 1 of the 802 patent (Item 187, paragraph 8). In stating why he believed it infringed Claim 1 of the 802 patent, Lindmark repeated the elements of the claim and said that he observed them in the photograph. This statement is conclusory and does not establish a counter statement of fact. It is the opinion of Mr. Lindmark that a given photograph reveals certain features. No expertise was required; the court can itself compare the photograph and drawings to the patent. The outer surface of the low minus lenses has a constant radius which abruptly tapers to the edge. (This is very similar to the non-infringing minisculent lens. There is no bead. Figure 5, Appendix.)

In Mr. Lindmark’s earlier affidavit, he stated that he believed the F3 -19.50 series, B4 -8.50 series, and B3 -19.50 series infringed the 802 patent. Again, he simply offered his opinion that the lenses had the features of the claim (Item 176, ¶ 12).

Mr. Lindmark provided a more detailed statement as to infringement only as to to Bausch & Lomb’s High Minus B3 (-19.50 diopter) lens (Item 176, Exh. 2, 1114). He referred to the following diagram:

Between points A and B, he stated that the radius forms an arc which is “more or less circular and can, in his opinion, appropriately be called a ‘bead.’ ”

The area between points A and B is not the “thickened annular bead” required by Claim 1 of the patent. A bead has been variously defined as a “ball shaped body,” a “drop,” a “bubble,” or a “blob.” Webster’s New Collegiate Dictionary, 1981. As Baron represented to the patent office, Figure 3 is the embodiment of his 802 patent {see Appendix 1). Figure 3 shows a definite bead, in which there is the area of maximum thickness of the lens.

Even if the area between points A and B could appropriately be called a bead, it lacks a “generally centrally located portion defining the area of maximum thickness of the lens.” The “bead” does not extend “outwardly from the convex surface” of the lens, as in Figure 3 {see Exhibits A, B, and C to the Lindmark affidavit). Mr. Lindmark’s opinion that the high minus lens shows a “bead” does not create a factual dispute. Even if there were such a bead, it lacks the other features required by the patent, so any dispute would not be material.

As for the 890 patent, in paragraph 15 of his affidavit, Mr. Lindmark discusses possible infringement by the high minus lenses (Item 176, Exh. 2). He believes that there is a visually apparent change in the lens between the optical zone and peripheral portion, and that the lens ends in a thin, knife-like edge {see Exh. D to Lindmark affidavit). He notes that the thickness of the peripheral region cannot be determined from the photograph in Exhibit D, which is a “head-on” shot of the lens.

Such thickness is required by the patent, as seen in Figure 2 or Figure 3. As can be seen from defendant’s drawing and photographs of the cross-sections of the lenses, the lens tapers from point B {see Diagram, supra) to the edge. Even if point B represents the “visually apparent change” between the optical zone and the peripheral region, it is still the thickest part of the lens. The patent requires that the peripheral portion be thickest between the juncture and the edge, not at the juncture.

Baron offers no evidence to show that the low minus lens infringe the 890 patent. Such lenses clearly have only one change in the outer surface and taper rapidly to the edge from that point. There is no thick area.

This litigation has proceeded for over six long years. During the course of that time, plaintiff Baron has had ample opportunity to demonstrate infringement. In response to the motion for summary judgment, Baron presents no evidence of infringement, but relies on opinion. There being no disputed fact, the court grants summary judgment as to the minus lenses.

The parties shall proceed with discovery as to the remaining portion of the case, the plus lenses. The court notes that Dr. Michael Friedberg has filed a statement withdrawing as a consultant (Item 205). Mr. Lindmark has provided an affidavit stating that he has sold all interest in Flexlens, Inc. (Item 204). Unless objections are heard from Bausch & Lomb, on or before November 15, 1985, Mr. Lindmark shall be substituted as a consultant.

So ordered.

      . During oral argument, counsel for Bausch & Lomb noted that plaintiff was sent a letter dated August 19, 1982, in which all characteristics measured by Bausch & Lomb were provided. These included such features as the tensile strength, elongation, and water content (Item 206, Exh. A). All Bausch & Lomb lenses are made of the same material.

      . There had been some dispute as to the accuracy of the computer-produced design drawing collection. Much of this confusion arose when plaintiff compared the drawing of a Low Minus B3 (-12.00 diopter) lens with a photograph of a High Minus B3 (-19.50 diopter) lens (Item 175, p. 12). The confusion was resolved when defendant compared the proper photographs to the drawings (Item 182, p. 3A). Defendant has submitted unrefuted affidavits attesting to the accuracy of its drawings (Item 182, Exh. A; Item 185, Apollonio affidavit; and Item 191). These affidavits attest not only to the accuracy of a particular drawing, but to the accuracy of the computer drawing process. Although pressed by the court to say why or how the drawings were inaccurate, plaintiff could only state that the drawings may be shown to be inaccurate at a later time, pending discovery. However, plaintiff has had the drawings and lenses for three years. He has been free to show the court at any time, using photographs such as those produced by Mr. Lindmark or any other technique, that the drawings and data produced by the Bausch & Lomb computer are inaccurate. He has failed to do so.

      . The court notes the inconsistency in Dr. Baron’s position. While he conceded at oral argument that Figure 1 is outside the scope of the patent, he had previously stated that defendant’s minus lenses were most similar to Figure 1.
      [I]t is felt that the lens contained in the drawings pertaining to [the minus lenses] more closely correspond in design to those lenses illustrated in figures 1, 4, 5, and 8....
      Plaintiff’s Answer to Interrogatory 39, dated October 16, 1982 (see Item 160, p. 449).

      . Although the minisculent-type lenses are not covered by the patents, when asked to identify all differences between the peripheral portion of those lenses and the accused Bausch & Lomb lenses, plaintiff could only state that the minisculent lenses were hard lenses, whereas the Bausch & Lomb lenses are soft (Item 74).

      . On September 26, 1985,1 received an affidavit from Neal J. Bailey, a contact lens expert for plaintiff. I did not consider this affidavit in reaching my decision. It was filed almost five months after the original briefs were filed and one month after oral argument. This is simply too late.
      Although plaintiff claimed that Mr. Bailey could not have drafted his affidavit at an earlier time because he did not have access to the design drawings, I do not accept this as an excuse. I note that defendant had offered to permit Bailey to see the drawings as early as February of 1985 if Baron would remove one of his consultants. Plaintiff did not; therefore, any delay rests with him.
      Also, in glancing through Bailey’s affidavit, he only mentions the drawings twice in a conclusory fashion, giving his opinion that every minus lens violates the 802 patent. (He does not discuss the 890 patent.) This is not substantiated by fact. In the rest of the affidavit, he discusses the general process for making Bausch & Lomb lenses and concludes that the lenses infringe. None of his conclusions was in any way tied to the information in the drawings. Baron had the actual lenses for three years and was free to show them to Bailey at any time. Bailey, who served as an investigator for the Food and Drug Administration in evaluating Bausch & Lomb lenses, has long known of defendant's manufacturing processes.
      Finally, in looking at the last two paragraphs in the affidavit, it appears that Bailey is resting on the doctrine of equivalence: that adding mass to the peripheral area of the lens shows infringement. This was disposed of earlier. In light of the prosecution history, adding mass alone is insufficient to show infringement by equivalence.


source: Caselaw Access Project

author: ROBERT L. CARTER, District Judge.

license: Public Domain

text:
    Robert M. ELLENBOGEN, Plaintiff, v. RIDER MAINTENANCE CORPORATION and New York City Taxi Drivers Union, Local 3036, S.E.I.U., A.F.L.-C. I.O., Defendants.
    No. 84 Civ. 3513 (RLC).
    United States District Court, S.D. New York.
    Oct. 23, 1985.

      Harold & Salant, Eastchester, N.Y., for plaintiff; John R. Harold, of counsel.
    Donald F. Menagh, New York City, for defendant Union; David Stolow, of counsel.
    Washor, Greenberg & Washor, New York City, for defendant Rider Maint. Corp.; Harvey L. Greenberg, of counsel.
   OPINION

ROBERT L. CARTER, District Judge.

Plaintiff, Richard M. Ellenbogen, has instituted this litigation claiming that defendant, Rider Maintenance Corp. (“Rider”) discharged him in violation of the collective bargaining agreement between Rider and the New York City Taxi Drivers Union, Local 3036, S.E.I.U., AFL^CIO (“Union”) and that the latter breached its duty of fair representation owed to him, the plaintiff, by refusing to pursue his grievance against Rider, the employer. The Union moves for summary judgment on the ground that the action is time barred pursuant to Section 10(b) of the National Labor Relations Act.

Plaintiff filed his summons and complaint on May 18, 1984, and mailed the pleadings to the Union on September 11, 1984, along with notice and acknowledgements pursuant to Rule 4(c)(2)(C)(ii), F.R. Civ.P. The Union signed and returned the documents on September 14, 1984. Plaintiff contends that service was in compliance with Rule 4(j), F.R.Civ.P., which provides for service within 120 days after the filing of the complaint.

Section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), provides:

No complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom the charge is made.

In DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983) the United States Supreme Court held that in a hybrid Section 301 (the Labor Management Relations Act, 29 U.S.C. § 185) breach of contract and breach of the duty of fair representation litigation, the applicable statute of limitations is Section 10(b) of the National Labor Relations Act. Plaintiff agrees that DelCostello required him to file his complaint within six months of the time he was or should have been aware of the facts giving rise to his claim, but contends that he is entitled under Rule 4(j), F.R.Civ.P., to the additional 120 days of grace to serve the complaint on the defendants.

The issue appears to be one of first impression in this court. In DelCostello the Court concluded that it was not appropriate to follow the usual practice of borrowing a relevant state statute of limitations since it could not find a state statute of limitations governing causes of action sufficiently analogous to a hybrid Section 301 fair rep-reservation claim. Lacking an appropriate state statute to borrow, the Court found “available a federal statute of limitations actually designed to accommodate a balance of interests very similar to that at stake here [the § 301 fair representation hybrid situation] — a statute that is, in fact, an analogy to the present lawsuit more apt than any of the suggested state law parallels.” Id., 462 U.S. at 169, 103 S.Ct. at 2293. Section 10(b) attaches a six months limitation period to both the filing of the charge and its service on the defendant.

Rule 3, F.R.Civ.P., provides that a suit commences on the filing of a complaint in court. Rule 4, F.R.Civ.P., until its recent amendment, required only that service be made within a reasonable time. United States v. Wahl, 583 F.2d 285 (6th Cir.1978); Wright & Miller, Federal Practice & Procedure, § 1056. The recent amendment to Rule 4, F.R.Civ.P., now requires service within 120 days of the filing unless good cause is shown warranting expansion of that period. Some courts have ruled that the filing of the complaint tolls the running of the statute of limitations, Caldwell v. Martin Marietta Corp., 632 F.2d 1184, 1188 (5th Cir.1980), but the validity of that position has been put in doubt by dicta in Walker ¶. Armco Steel Corp., 446 U.S. 740, 750-51, 100 S.Ct. 1978, 1985-86, 64 L.Ed.2d 659: (“Rule 3 simply states that '[a] civil action is commenced by filing of a complaint with the court.’ There is no indication that the Rule was intended to toll a state statute of limitations, much less that it purported to displace state tolling rules for purposes of state statutes of limitations.”)

Although as a general rule in federal cases, Rule 4(j) applies, the United States Supreme Court held early on that where the service requirement was an integral part of the borrowed state statute of limitations, the borrowing would embrace both the filing and service requirements of the state statute. Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949). The Court adopted this principle because to apply the more liberal federal service of process rule would give a diversity litigant greater rights in re the state statute of limitations than state litigants would have.

Most recently in Walker v. Armco Steel Corp., 446 U.S. supra at 752-53, 100 S.Ct. at 1986, the Court reaffirmed Ragan’s holding “in the absence of a federal rule directly on point, state service requirements which are an integral part of the state statute of limitations should control in an action based on state law which is filed in federal court under diversity jurisdiction.”

The considerations which led the Court to require adherence to the service requirements of a borrowed state limitations statute when these requirements were an integral part of the statutory scheme differ from those present here when a federal statute is borrowed. Nonetheless, there is no rational basis for departing from traditional standards merely because the borrowed statute is of federal, rather than state, origin. The Court adopted Section 10 as the applicable time bar period. It did not indicate its holding was restricted to only the filing requirements of Section 10. The service requirement is an integral part of the time bar imposed and should be applicable along with filing requirements.

Of the decided cases: Howard v. Lockheed Georgia Co., 742 F.2d 612 (11th Cir. 1984); Thompson v. Ralston Purina Co., 599 F.Supp. 756 (W.D.Mich.1984); Hoffman v. United Markets, Inc., 117 LRRM 3229 (N.D.Cal.1984), have so construed Del-Costello ; only LaTondress v. Local No. 7, IBT and Dean Foods Co., 102 F.R.D. 295 (W.D.Mich.1984), takes a contrary view.

Since I believe the more rational view is that the Court intended to require adherence to all of Section 10(b), service here being in excess of the six months limitation, the case is time barred. Accordingly, the motion for summary judgment is granted.

IT IS SO ORDERED.


author: OBERDORFER, District Judge.

text:
    Alan McCONNELL, Plaintiff, v. HOWARD UNIVERSITY, Defendant.
    Civ. A. No. 85-0298.
    United States District Court, District of Columbia.
    Oct. 28, 1985.
    Woodley B. Osborne, Friedman & Wirtz, Washington, D.C., for plaintiff.
    Francis S. Smith, University Counsel for Administrative and Employment Affairs, Washington, D.C. (Richard P. Thornell, Vice President for Legal Affairs and General Counsel, Howard University, of counsel), for defendant.
   MEMORANDUM

OBERDORFER, District Judge.

I.

Plaintiff was dismissed for “cause” from a tenured professorship at Howard University by its Board of Trustees (“Board”) on the ground that he had neglected his professional responsibilities when he refused to continue teaching a mathematics course to which he was assigned. It is undisputed that plaintiff refused to teach the class. Rather, plaintiff contends that his refusal was justified by complications growing out of an altercation between plaintiff and a student. Having exhausted administrative remedies prescribed by the Faculty Handbook of the University, plaintiff filed this suit against the University claiming that his dismissal constituted a breach of his employment contract because the University lacked “adequate cause” to dismiss him. In addition, plaintiff charged defamation. He sought reinstatement and compensatory and punitive damages. Defendant moved for summary judgment on August 9, 1985. Plaintiff filed his opposition to that motion on September 6, 1985, and defendant filed a reply memorandum on September 24, 1985.

This matter is appropriate for disposition by summary judgment because the facts developed in documents and extensive depositions and summarized in defendant’s statement of material facts are not disputed in any material way. In addition, as contemplated by the contract between plaintiff and the University, the dispute has been addressed in a structured, on-the-record grievance proceeding reviewed by a committee of the defendant’s Board of Trustees and acted on finally by that Board pursuant to the University’s established process for dealing with the dismissal of tenured faculty.

Upon consideration of the parties’ memoranda and the extensive exhibits and affidavits filed in support thereof, the Court by order entered October 4, 1984, granted defendant’s motion for summary judgment for reasons to be stated in a memorandum to be filed. This is that memorandum.

II.

The parties’ pleadings establish the following undisputed facts. Plaintiff is white. He received a Ph.D in mathematics from Cornell University in 1965 and in 1971 was appointed as an associate professor of mathematics at Howard University. In 1975 plaintiff was awarded tenure.

Early in the fall semester of the 1983-1984 term, plaintiff advised the students (all of whom were black) in his Elementary Function I course that because Howard students historically performed poorly in mathematics they should reduce their course hours. At a later session of the class, plaintiff renewed this suggestion and pursued the matter further with a story about a monkey that caught its hand in a food jar and lacked the sense to drop the food in order to escape. Later in that class, one of thé students, apparently in reaction to these remarks, called plaintiff a “condescending patronizing racist.” After class the student refused plaintiff’s request to meet with him privately. At the next meeting of the class, the student refused plaintiff’s request to explain herself and told him to “go on and teach the course.” Plaintiff then asked her to leave the class. Upon her refusal to do so, plaintiff called for University security to remove her from the class, whereupon she was taken to the Office of the Dean for Special Student Services.

In the days that followed these initial events, both plaintiff and the student remained adamant. She refused to apologize for calling him a racist. He refused to resume teaching the class until she either apologized or left the class of her own accord, or the University sustained and enforced his demand that she leave the class. The University apparently made no effort to transfer the student to another section of the course, or otherwise mediate the dispute. It responded to plaintiff’s formal complaint with a letter indicating that the Office of Special Student Services had “concluded that there exists insufficient evidence of a violation of the code of conduct to warrant the institution of a Judiciary Board hearing.”

After several informal and formal requests that plaintiff return to teaching the class, a University official initiated a formal proceeding against plaintiff before a Grievance Committee pursuant to Section VI of the Handbook. The Grievance Committee was comprised of senior tenured professors from University departments other than mathematics. The letter providing notice of the grievance proceeding charged plaintiff with neglect of professional responsibilities and indicated that the proceeding was convened “to formally conduct an inquiry as to your fitness to remain as a member of the faculty of the College of Liberal Arts____”

Aftér formal hearings conducted October 22 and 24, 1983, that Grievance Committee found that plaintiff had refused to teach his class but found that he was not guilty of neglecting his professional responsibilities because, among other things, the University had not attempted to mediate. See December 21, 1983 Report of the College of Liberal Arts Grievance Committee at 6-7 (Defendant’s Exhibit 16). In addition, a majority of the Grievance Committee pointed to the necessity of “professional authority inherent in the teacher-student relationship.” Id. at 7.

Pursuant to the procedure prescribed by Section VI of the Faculty Handbook, the Grievance Committee report was transmitted to the University President, who then presented the case to the University Board of Trustees. The Board, in turn, referred the case to a three person Special Committee. That committee requested, received, and reviewed, inter alia, á report from the Grievance Committee which summarized its findings and recommendations. The Special Committee concluded, after “a thorough and exhaustive review of the record of the case,” that plaintiff was guilty of neglect of his professional responsibility and recommended that he be dismissed. The Board approved the recommendation apparently without discussion, and plaintiff was so notified by a letter dated June 8, 1984. That letter informed plaintiff that:

the Board of Trustees of Howard University, at a duly constituted meeting held on June 2, 1984, pursuant to a review of the record of your grievance hearing, found you to be guilty of having neglected your professional responsibilities. The Board voted therefore, by virtue of its authority, that you be terminated from service at the University as of June 2, 1984.

III.

The contract allegedly breached by defendant is embodied in the Howard University Faculty Handbook. The parties agree that it provides for dismissal of a tenured professor for cause and includes as one cause, “Neglect of professional responsibilities.” Constituting the contract on which plaintiff relies, the Handbook also establishes a formal administrative process (in-eluding a hearing) for dismissals of faculty members. Section VI-E. of the Handbook provides that after a hearing by a Grievance Committee:

E. CONSIDERATION BY THE BOARD OF TRUSTEES
The Dean shall transmit the full report of the Grievance Committee and its recommendation to the President for presentation to the Board of Trustees or its Executive Committee. If the Board of Trustees or its Executive Committee chooses to review the case, its review shall be based on the record of the hearing. The decision of the Board of Trustees shall be final.

Plaintiff contends that the court should treat this as a breach of contract ease and that “neglect of professional responsibilities” is an ambiguous, undefined term. Plaintiff thus contends that the Court should give no weight to the University’s administrative process prescribed by the Handbook/contract and should conduct a trial de novo to resolve whether plaintiff did neglect his professional responsibilities or, as the Grievance Committee apparently viewed the matter, professionally defended professorial authority.

Defendant, by contrast, emphasized the University’s well-developed grievance process in which the Grievance Committee holds hearings, makes a record and renders decisions, which decisions are subject to (1) review on the administrative record and (2) the ultimate decision of the Board of Trustees. See Faculty Handbook Section VI (attached as an Appendix to this memorandum). Defendant suggests that the Court should treat the Board as it would treat an administrative agency and defer to the University’s decision unless it was arbitrary and capricious, pointing out that courts have often adopted such a deferential attitude toward similar college or university decisions.

There are obviously two (or more) sides to the controversy between the plaintiff, the student, and the University. There is nothing ambiguous, however, about the obligation of a professor to teach assigned classes and plaintiff’s failure to teach his class is undisputed. Defendant cites persuasive authority (albeit from other jurisdictions) for the proposition that a refusal to perform a prescribed duty, such as teaching a class, is a valid ground for the dismissal of a tenured professor. See Smith v. Kent State University, 696 F.2d 476 (6th Cir.1983); Stastny v. Board of Trustees of Central Washington University, 32 Wash.App. 239, 647 P.2d 496, 502, 506-07 (1982), cert. denied, 103 S.Ct. 1528 (1983).

Plaintiff does not dispute that his contract put him at risk of termination for cause which included neglect of professional responsibilities. Nor does he proffer material evidence that he was deprived of procedural rights guaranteed by the contract. Cf. Greene v. Howard University, 412 F.2d 1128 (D.C.Cir.1969). Plaintiff also does not dispute that he refused to teach the class as directed by his superiors. It seems incontrovertible that the refusal to teach a class (flouting direct administration orders in the process) must constitute a failure, to meet a professional responsibility. Plaintiff argues, in effect, however, as the Grievance Committee essentially found, that he should have been excused for his failure to meet one professional responsibility (teaching the class assigned to him) because he was attempting to meet another professional responsibility (preserving professorial authority).

Plaintiff points to no provision of the contract giving him any legal right to be excused from performance of his teaching duty. He points to nothing in his contract and proffers no evidence of any University practice requiring the University to attempt to mediate a dispute between a professor and a student before beginning dismissal proceedings.

Moreover, the single contract between plaintiff and the University evidences acquiescence by the plaintiff in both the definition of cause for dismissal and the University’s procedure for effecting a dismissal. That Handbook/contract (1) provided for dismissal for cause, (2) defined cause to include neglect of professional responsibility, (3) established a hearing and review process for dismissal cases, and (4) made the dismissal decision of the Board of Trustees “final.” The plaintiff having agreed to accept employment on those terms, this Court should uphold the Board’s decision and grant defendant’s motion for summary judgment, unless the Board’s decision was arbitrary, or plaintiff has proffered evidence of improper motivation or irrational action. Given the undisputed facts and the case law, the Board did not behave in an arbitrary fashion when, after a Grievance Committee hearing had produced an administrative record, the Board determined that plaintiff’s refusal to resume teaching his class (in contravention of direct orders) constituted a neglect of plaintiff’s professional responsibilities which it chose not to excuse. As in Williams v. Howard University, 528 F.2d 658, 660-61 (D.C.Cir.1976), cert. denied, 429 U.S. 850, 97 S.Ct. 138, 50 L.Ed.2d 123 (1976), plaintiff here has failed to “present any facts to show improper motivation or irrational action on the part of Howard [and that failure] vitiates any claim of gross arbitrariness for which courts may grant relief in a private setting.” See Williams, supra, 528 F.2d at 660-61; see also Giles v. Howard University, 428 F.Supp. 603, 605 (D.D.C.1977).

IV.

In view of the foregoing, it is unnecessary to belabor plaintiff’s defamation claim. Plaintiff points to what he suggests was undue haste with which charges were pressed against him after he refused to teach his section of Elementary Functions I unless the offending student apologized or was removed from his class. He does not, however, point to any false statement of fact, as distinguished from opinion. Statements made by University personnel to the effect that actions undisputedly taken by plaintiff constituted a neglect of his professional duties were in essence “evaluative opinions” that in these circumstances will not support an action for defamation. See Prosser and Keeton on Torts § 113A at 814 (W. Keeton 5th ed. 1984):

The evaluation opinion only is published when the publisher makes a value judgment about another or another’s conduct — e.g. that it was discreditable, dishonorable, or corrupt — on the basis of true informational background either supplied to, assumed to be known by, or available to those receiving the communication____ The evaluation opinion has often been regarded as false if either the defendant did not entertain the opinion expressed and was misstating his own state of mind or if a reasonable and fair-minded person could not have entertained the derogatory opinion on the basis of the information upon which he relied.

As implied by the discussion in the preceding section, the evaluative opinions expressed by University personnel were not susceptible to the characterization stated in the last sentence of the above quoted paragraph.

Even if plaintiff were able to point to false, allegedly defamatory statements made by defendant’s agents, he does not effectively dispute defendant’s claim that its statements, actions and decisions with respect to this dispute were at least qualifiedly privileged. See Greenya v. George Washington University, 512 F.2d 556, 563 (D.C.Cir.1975), cert. denied, 423 U.S. 995, 96 S.Ct. 422, 46 L.Ed.2d 369 (1975). Plaintiff proffers no evidence which would support a prima facie case of malice that would overcome those privileges. Accordingly, the defamation claim must also fall to defendant's motion for summary judgment.

For all these reasons, the October 4, 1985 Order granted defendant’s motion for summary judgment.

APPENDIX

Howard University Handbook

Revised Feb. 1, 1969

CONTENTS

Page

FOREWORD

CAMPUS MAP 22

HISTORY OF THE UNIVERSITY ............................... 3

ORGANIZATION AND ADMINISTRATION OF THE UNIVERSITY 3

University Council of Administration (See descriptive item in Appendices)

University Senate ................. (See descriptive item in Appendices)

Council of the University Senate .. (See descriptive item in Appendices)

PRELIMINARY PROCEDURES AND GENERAL INFORMATION

Employment Procedures ............................................. 4

Salary Payments ................................................... 4

Academic Year ..................................................... 4

Attendance at Official University Ceremonies ........................ 4

The American Association of University Professors .................. 5

The Faculty Women’s Club ......................................... 5

The Howard University Faculty Wives Club ......................... 5

National Honor Societies and Professional Associations ............... 5

Housing ............................................................ 5

Trustee Regulation on Faculty Voting ............................... 6

EMPLOYMENT POLICIES

Academic Freedom .................................................. 6

Academic Tenure Regulations ....................................... 7

RESEARCH AND PUBLICATIONS

Advertising and Publicity ........................................... 17

Grants-in-Aid ....................................................... 18

Conflicts of Interest ................................................ 18

Policies and Procedures in Prevention of Conflict of Interest Situations 20

Page

FACULTY WELFARE BENEFITS

Compensation for Injury ............................................. 21

Compensation for Unemployment ..................................... 21

Federal Social Security Plan ......................................... 21

First Aid ............................................................ 23

Group Hospitalization and Group Surgical-Medical Service ............. 23

Group Life Insurance Program ....................................... 23

Howard University Employees Federal Credit Union ................... 24

Purchase of U.S. Savings Bonds ..................................... 24

Retirement Allowances ............................................... 25

T.I.A.A. Deferred Annuity Contracts .................................. 26

Salary or Annuity Option ............................................ 26

College Retirement Equities Fund .................................... 27

Total Disability Benefits Plan ........................................ 28

Tuition Allowances ................................................... 29

REGULATIONS AND PROCEDURES RELATING TO TRAVEL

Travel Advances ..................................................... 29

Travel Reimbursements .............................................. 30

Travel Reports ...................................................... 30

Local Travel and Use of Personal Automobiles ....................... 31

Accidents ............................................................ 31

EDUCATIONAL, CULTURAL AND RECREATIONAL RESOURCES

Andrew Rankin Memorial Chapel ..................................... 31

Cultural Series ...................................................... 32

The Gallery of Art .................................................. 32

Plays and Concerts .................................................. 32

Founders Library ____'................................................ 32

Other Libraries on Campus .......................................... 32

Recreation ........................................................... 33

University Publications ............................................... 33

PHYSICAL FACILITIES

Bookstores .......................................................... 33

Post Office .......................................................... 33

Food Services ....................................................... 34

Campus Parking Facilities ____:....................................... 34

Utilization of Physical Facilities ...................................... 35

APPENDICES

University Council of Administration .................................. 35

The University Senate ............................................... 36

The Council of the University Senate ................................. 37

Steering Committee of the Council of the University Senate ........... 41

GENERAL

SECTION VI: PROCEDURES IN DISMISSALS:

A. PRELIMINARY PROCEEDINGS

1. When the fitness of a faculty member is under question, appropriate administrative officers shall discuss the matter with him directly. If a mutually satisfactory resolution does not resolve, the matter shall be referred to the Grievance Committee of the school concerned. The Dean of the appropriate school or college designate shall prepare a statement setting forth the grounds proposed for dismissal and the charges of misconduct, such statement to be made known to the Grievance Committee for its information.

2. This statement shall then be incorporated in a letter from the Dean to the faculty-elected Grievance Committee meeting at a specified time and place, sufficient time being allowed for the preparation of his defense, such period not to be less than 15 days. The faculty member shall be informed by reference to published regulations of the procedural rights that will be accorded to him, such as his right to counsel. In particular, the procedures specified in paragraph “C” below shall be made known to him. The faculty member shall

reply in writing, not less than one week before the date set for the hearing to the charges contained in the Dean’s letter. 3. Grievance Committee: Each of the several schools and colleges shall elect at the usual time for committee elections a Grievance Committee whose function it shall be to fulfill the requirements as set out in Section VI of the Employment Policies dealing with dismissals. This committee shall be composed of five members of the faculty on indefinite tenure and shall be elected for one year. Members of the Grievance Committee should disqualify themselves: 1) if they belong to the same department as the aggrieved party, or 2) if there is any possibility of conflict of interest, or 3) if there arises a question of prejudice. These matters shall be decided by the Grievance Committee.

B. SUSPENSION OF THE FACULTY MEMBER PENDING A HEARING

Suspension of a faculty member pending a hearing with a statement of reasons recommended by the Dean and approved by the President’s Office may be imposed only if unusual circumstances warrant it, and shall be with pay.

G. GRIEVANCE COMMITTEE PROCEEDINGS

1. The Grievance Committee shall proceed by considering the statement of grounds for dismissal and the charges of misconduct already stated in the Dean’s letter, and the faculty member’s response. The hearing shall be in private unless the faculty member requests otherwise and the hearing committee concurs in the request. If any facts are in dispute, the testimony of witnesses and other evidence concerning the charges shall be received.

2. The Dean may attend the hearings and participate in the hearing. He may designate a representative to assist in developing the case; but the committee shall determine the order of proof, control the conduct of proceedings including the questioning of witnesses.

3. The faculty member shall have the right of' representation by counsel of his choice, whose functions are to be similar to those of the representative chosen by the Dean. The faculty member or his counsel and the representative designated by the Dean shall have the right, within reasonable limits, to question all witnesses who testify orally. In the case when a witness does not appear, the identity of the witness as well as his statement shall be disclosed, to the faculty member. Subject to these safeguards, statements may, when necessary, be taken outside the hearing and reported to it. All of the evidence shall be duly recorded. The record of the hearing shall be available to the faculty member. If a charge of professional incompetence is involved, testimony shall include that of teachers and other scholars in his discipline. The hearing procedures shall not necessarily adhere to formal rules of court procedure. In the event a faculty member fails to appear for a scheduled hearing, the Grievance Committee shall proceed with the hearing in his absence and shall reach its conclusions on the basis of the evidence presented.

D. CONSIDERATIONS BY THE GRIEVANCE COMMITTEE

On the basis of the hearing, the Grievance Committee shall reach its decisions in conference after giving opportunity to the faculty member or his counsel and the Dean or his representative to summarize orally before it, and to submit written briefs, if the committee desires. The committee shall then arrive at explicit findings with respect to each of the grounds for dismissal and formulate its decision for or against removal of the faculty member. A transcript of the hearing may be used during this decision process, if needed. The Dean and the faculty member shall be notified in writing of the findings of fact and decision. Each shall receive, as promptly as possible, and at the same time, a copy of the record of the hearing. Notice of the findings of fact and decision shall be withheld until consideration has been given to the case by the Board of Trustees.

E. CONSIDERATION BY THE BOARD OF TRUSTEES

The Dean shall transmit the full report of the Grievance Committee and its recommendation to the President for presentation to the Board of Trustees or its Executive Committee. If the Board of Trustees or its Executive Committee chooses to review the case, its review shall be based on the record of the hearing. The decision of the Board of Trustees shall be final.

      . “Cause” is defined in the Faculty Handbook of 1969 (operative when plaintiff was granted tenure) as:
      (a) Professional incompetence;
      (b) Neglect of professional responsibilities;
      (c) Personal misconduct that destroys or impairs academic usefulness;
      (d) Violation of limitations referred to in the Academic Freedom Section of this Handbook;
      (e) Violation of University Regulations;
      (f) Medical disability____

        See Exhibit 30 to Defendant's Memorandum in Support of Motion for Summary Judgment at 11 (Hereinafter, exhibits to Defendant’s Memorandum in Support of Motion for Summary Judgment will be cited as "Defendant’s Exhibit -").

      . See infra at 328-329.

      . Section VI of the University Handbook relates to "Procedures In Dismissals.” See discussion infra at 329 et seq. A copy of Section VI is attached as an Appendix; a copy of the full Handbook was attached as Defendant’s Exhibit 30.

      . Which by letter of September 13, 1983, charged that the student had slandered him and requested that she be removed from his class. See Letter from Dr. Alan McConnell to Dr. Austin D. Lane, Dean for Special Student Services (September 13, 1983) (Defendant’s Exhibit 10).

      . Letter from Dr. Austin D. Lane, Dean for Special Student Services, to Dr. Alan McConnell (September 16, 1983) at 1 (Defendant’s Exhibit 14).

      . See discussion infra at 329 et seq; see also Defendant’s Exhibit 30.

      . Letter from Robert L. Owens, III, Dean of the College of Liberal Arts, to Dr. Alan McConnell (September 22, 1983) (Defendant’s Exhibit 15).

      . Correspondence between Special Committee members indicates the Special Committee also reviewed transcripts of the Grievance Committee proceedings. See, e.g., Letter from Dr. James F. Tucker to Dr. Frederick L. Stone (May 21, 1984); Letter from Dr. James F. Tucker to the Honorable Gabrielle K. McDonald (May 18, 1984) (Defendant’s Exhibits 24, 25).

      . See April 5, 1984 Report of College of Liberal Arts Grievance Committee (Defendant’s Exhibit 21).

      . See Report of the Special Grievance Committee (June 2, 1984) (Defendant's Exhibit 26).

      . Letter from Owen D. Nichols, Secretary of the Board of Trustees, to Alan McConnell (June 8, 1984) (Defendant’s Exhibit 28).

      . Plaintiff also contends that he was entitled to an additional hearing by the Board of Trustees and a more detailed statement of its reasons. The Special Committee's recommendation, approved by the Board, was based on its "thorough and exhaustive review of the record of the case," which record included transcripts of the hearings before the Grievance Committee and the Grievance Committee’s recommendation. See supra at 329. The grievance procedures detailed in the Handbook/contract do not require the Board to state in detail the reasons given for its decisions made after review of the record developed by the Grievance Committee.

      . See e.g., Gray v. Canisius College of Buffalo, 430 N.Y.S.2d 163, 166, 76 App.Div.2d 163 (N.Y. 1980); see also Stebbins v. Weaver, 537 F.2d 939, 943 n. 2 (7th Cir.1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 741, 50 L.Ed.2d 753 (1977); Seefeldt v. Board of Trustees of the University of the District of Columbia, 487 F.Supp. 230, 233 (D.D. C.1979). Many of the cases that might be cited in support of such deference are not strictly apposite, as they involved state institutions of higher education, see Krotkoff v. Goucher College, 585 F.2d 675, 681-2 (4th Cir.1978), and “Howard's essentially private status must be recognized. It is not to be treated as a state university." Sanford v. Howard University, 415 F.Supp. 23, 29 (D.D.C.1976), aff’d. 549 F.2d 830 (D.C.Cir.1977). Nonetheless, the cases generally support the proposition, discussed more extensively below, that a federal court should hesitate before significantly intruding in the administration of university affairs, particularly in a three-cornered dispute between a professor, a student and a university.

      . It is undisputed that plaintiff refused to teach his class as directed. As discussed in the preceding section, the Board did not erroneously determine that plaintiff had thereby neglected his professional duties.

      . See generally Ollman v. Evans, 750 F.2d 970 (D.C.Cir.1984) (en banc), cert. denied, — U.S. -, 105 S.Ct. 2662, 86 L.Ed.2d 278 (1985).

      . Plaintiffs vague and conclusory suggestion that “[o]ne cannot help but conclude that there is more to this than meets the eye,” Plaintiffs Statement of Points and Authorities in Opposition to Defendant’s Motion for Summary Judgment at 19, is admittedly provided a modicum of support by the Grievance Committee’s assertion that ”[n]o one representing the University seemed inclined to do anything except to prefer charges against Dr. McConnell.” Grievance Committee Report (Defendant’s Exhibit 16) at 7. Nonetheless, that suggestion is insufficient to present a prima facie case of malice by materially traversing (1) the undisputed facts supporting the Board’s opinion that plaintiff neglected his professional duties and (2) defendant’s exhaustive documentation of the steps taken by officials in this matter in accordance with University procedures.