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ROSEMAN v. HASSLER

September 24, 1974

Eleanor ROSEMAN
v.
William W. HASSLER et al.


Knox, District Judge.


The opinion of the court was delivered by: KNOX

KNOX, District Judge.

 Plaintiff, Eleanor Roseman, served as an associate professor in the Foreign Language Department at Indiana University of Pennsylvania beginning with the academic year which commenced September 1, 1969, and continuing until the end of the academic year which commenced September 1, 1970, and ended June 1, 1971. On May 12, 1970, she was informed of her non-retention for the academic year beginning September 1, 1971. On December 20, 1973, she instituted this action against the university, its president and various members of its faculty asking for reinstatement, injunctive relief and damages. Hearing on an application for preliminary injunction was held but no order was entered inasmuch as the request for preliminary injunction was withdrawn. Thereafter, a hearing was held commencing July 29, 1974 in which was incorporated the evidence taken with respect to the preliminary injunction. Prior to the final hearing on the merits, defendants filed a motion for partial summary judgment on May 14, 1974, and a motion for total summary judgment on the balance of plaintiff's claims on July 22, 1974. While arguments on the motions for summary judgment were heard, disposition of them was postponed until the case had been heard on the merits.

 FINDINGS OF FACT

 1. Indiana University of Pennsylvania is an educational institution owned and operated by the Commonwealth of Pennsylvania.

 2. Under the Pennsylvania Public School Code (24 P.S. § 20-2004.1(14)), the management of Indiana University of Pennsylvania, including the power to make rules with respect to faculty tenure is entrusted to the president and the board of trustees.

 4. Pursuant to the laws governing the university of which plaintiff was or should have been aware, department chairmen, divisional deans and academic vice-presidents do not grant tenure, but only make recommendations to the president who presents them to the board of trustees for approval. This is the only way tenure can be obtained.

 5. Under regulations and practices of the university, the university was required to provide reasons for a termination and a hearing only to tenured faculty.

 6. All faculty, including both tenured and non-tenured members, may be dismissed for "immorality, incompetency, treason or insobriety", but a member of the probationary faculty, as was plaintiff, may be non-renewed or terminated for any or no reason, as long as the laws or constitution are not violated.

 7. Under university practice, grants of tenure are made by an official communication of the president only.

 8. The Notices of Appointment of plaintiff (Plaintiff's Exhibits 2 and 3) contain the relevant and important terms of her employment and constitute the complete employment contracts of the plaintiff.

 9. The initial specification of any additional terms, as referred to in the Faculty Manual, is placed on the Notice before it is sent to the potential employee. Plaintiff's handwritten codicil at the bottom of plaintiff's Exhibit 2 is not an initial specification as contemplated by the Manual (Plaintiff's Exhibit 4) but a unilateral counterproposal by plaintiff not assented to by the university. Plaintiff's handwritten codicil was added by plaintiff after the president had signed the contract. There was thus no meeting of the minds as to additional terms.

 10. Defendant Herbert Isar in February 1969, as chairman of the Foreign Language Department offered plaintiff, as a probationary employee, a permanent position in accordance with the regulations of the university.

 11. A probationary employee is one without tenure and is subject to discharge at any time without cause.

 12. A permanent position is one created by the administration which refers to the nature of the position, i.e., nontemporary, and not to the status of the employee holding that position. This is distinguished from the position of a temporary employee filling a position created for a limited period of time or a substitute.

 13. Plaintiff was not hired as a tenured member of the faculty; she was only hired to fill a permanent non-temporary position, which, if performed satisfactorily, might lead to tenure.

 14. Plaintiff was not given a pre-termination hearing by the university because she was not tenured and because no hearing was required for probationary employees.

 15. Plaintiff never asked the university for a hearing until September, 1971, nearly one and one-half years after she was non-renewed and after she had left the university.

 16. Plaintiff was not offered an administrative hearing until after her discharge became effective and she had left the university. Plaintiff objected to certain conditions of the hearing offered and while the proposed hearing apparently provided due process, plaintiff's objections were not frivolous.

 17. On May 12, 1970, the Committee on Merit and Tenure of the Foreign Language Department voted unanimously (with one abstention) not to renew plaintiff's contract at the end of the 1970-71 academic year.

 18. The Jewish Holiday, Rosh Hashanah, in 1969 fell and was celebrated on Saturday and Sunday, September 13 and 14, when plaintiff had no classes. Plaintiff is Jewish.

 19. Plaintiff missed classes on Friday, September 12 and Monday, September 15, 1969, because she went to Philadelphia for medical appointments and not for religious holidays. Thereafter, she reported she was ill in Philadelphia until November 11, 1969.

 20. Plaintiff's colleagues covered her classes on those days as well as on all other days plaintiff was absent for medical and other reasons.

 21. The frequent coverage of plaintiff's classes by her colleagues was burdensome and more frequent than the coverage required for any other member of the department.

 22. Plaintiff was never refused permission to observe her religious holidays by any of the defendants; but they were aware of the absences.

 23. Plaintiff was absent April 2 through 6, 1970, claiming she was snowbound in Michigan.

 24. Plaintiff missed classes on Monday, April 20, 1970, which had to be covered by colleagues. Her absence was caused by a trip to Philadelphia to celebrate Passover.

 25. Plaintiff failed to provide a scheduled written test to the professor covering for her, who was to give it to her class on Monday, April 20 or Wednesday, April 22, of that week. On both days, the students were prepared for but did not receive the scheduled test.

 26. Plaintiff's absences, under state regulations, had to be charged to sick leave, as professional employees had no annual or personal leave in 1969 or 1970.

 27. Plaintiff's Exhibits 14, 15 and 17, which indicate some anti-semitic bias and ill will towards plaintiff, were authored by defendant Henninger but were never sent to the plaintiff on the advice of defendants Faust and McGovern, who felt they would not help resolve the situation.

 28. These exhibits were never seen by, nor discussed among the members of the Committee on Merit and Tenure which voted to non-renew plaintiff by a vote of ten "yes" and one "abstain", and thus the memos in no way prejudiced the plaintiff in the department's decision to recommend her non-renewal.

 29. Plaintiff's Exhibits 14, 15 and 17 were initially placed in the personal file of Mr. Faust, not plaintiff's personnel file. In the late Summer and Fall of 1970 and after the decision to non-renew, because of plaintiff's threats of litigation, the exhibits were placed in plaintiff's personnel file for the purpose of recall.

 30. Plaintiff's Exhibits 14, 15, 16 and 17, as well as all other material provided to her in 1972, were never seen by any potential employer of plaintiff. No potential employer has ever made an inquiry of the university concerning plaintiff.

 31. The individual defendants never discussed plaintiff's religious beliefs or observances with other members of the Committee on Merit and Tenure.

 32. There is no connection at all between any writings of any defendant and the decision to non-renew plaintiff.

 33. Defendants Isar and Faust voted for non-renewal based on work-related reasons. Defendants Hassler, McGovern and Henninger took no part in the vote to non-renew of May 12, 1970.

 34. Plaintiff was non-renewed because of her work practices which created administrative hardship and delays, her inadequate classroom performance and her failure to get along amicably in the department.

 35. Plaintiff made a complaint to Dean McGovern on April 5, 1970, that defendant Faust had wrongfully suppressed an application of Dr. James Hyde for chairman of the department and later repeated the same in a departmental faculty meeting.

 36. Plaintiff's conduct seriously impaired the orderly functioning of the chairmanship screening committee.

 37. Defendant Faust had turned over the application in question to Dr. Op De Beeck, in the normal manner, thus committing no improprieties.

 38. The screening committee deadline for applications for chairman was tentatively March 31, 1970.

 39. The Hyde Application in question was received after the deadline on April 10, 1970.

 40. Plaintiff had never specifically asked Mr. Faust about the Hyde application from April 10, 1970, until she stepped forward at the department meeting on May 5, ...


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