150 F.3d 1347

CLARK, Senior Circuit Judge,
dissenting:
I disagree that the evidence was insufficient to create a genuine issue of material fact in this case, and I would therefore find that the district court erred in granting summary judgment. The majority concludes that nothing in the language of the policy manual says that after seven years a professor who continues to teach has tenure, and no words in the employment contract created an entitlement. I think that this conclusion misses the point of a de facto argument: if the express language was present, then a de facto analysis would be unnecessary.
The Board of Regents policy manual provided that an assistant professor could serve only seven years without tenure, except that a final contract for an eighth year could be allowed. Gray taught for seven years, then was given a year off to return to school to work toward the degree that she had been told would enhance her application for tenure. The college paid for at least part of her tuition and paid half her salary during that year off, and they had an agreement with Gray that she would return to full-time teaching. She returned to full-time teaching for two years after her year off, teaching for a total of nine years.
The Supreme Court stated in Board of Regents of State Colleges v. Roth: “[property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.”
The policy manual says that professors should not be teaching more than seven years unless they are tenured. Not only did Gray teach more than seven years, after her seventh year of teaching the college paid half her salary while she attended school and assisted her with tuition. This is not the behavior of an employer who does not intend to retain an employee. Moreover, the college president, a most persuasive authority, testified in his deposition that his interpretation of the Board of Regents policy manual was that a faculty member who continued teaching after seven years was entitled to automatic tenure. The majority finds this evidence insufficient because one administrator’s interpretation of the manual did not provide evidence of a custom or institutional understanding. That statement alone may not be conclusive, but when combined with the other facts, could provide enough evidence for a jury to find that Gray had received tenure de, facto.
I think that the evidence is sufficient to create a genuine issue of fact. I cannot say that Gray will definitely prevail, but I think that an issue of fact exists and that summary judgment was erroneously granted.
. 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
. Id. at 577, 92 S.Ct. at 2709 (emphasis added).

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