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LAZIC v. UNIVERSITY OF PENNSYLVANIA

April 27, 1981

Margarita LAZIC
v.
UNIVERSITY OF PENNSYLVANIA, Morton Benson and Martin J. Stamm



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

The plaintiff, Dr. Margarita Lazic, filed this sex discrimination suit under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. ยง 2000e et seq. against the defendant, the University of Pennsylvania (hereinafter University). Presently before the Court is the defendants' motion for summary judgment in connection with those portions of count one of plaintiff's amended complaint set forth in paragraphs 9(a), (b), (c), and 10, relating to alleged discriminatory acts. Defendant also seeks to dismiss the remaining portions of count one, which allege retaliatory acts, on the ground that this Court lacks subject matter jurisdiction. Furthermore, the defendants University of Pennsylvania, Morton Benson, and Martin Stamm move to dismiss count two of plaintiff's amended complaint, a state tort claim, on the ground that this Court should not exercise pendent jurisdiction.

 After a careful review of the record, this Court finds that there are genuine issues of material fact and will, for the reasons hereinafter discussed, deny the defendant's motion for summary judgment. In addition, the defendants' motion to dismiss the remaining portions of count one is denied. This Court will, however, decline to exercise pendent jurisdiction over the state tort claim in count two. Each of these issues will be addressed separately.

 SUMMARY JUDGMENT

 Paragraphs 9(a), (b), and (c) of plaintiff's amended complaint allege that since April 26, 1974, the defendant University has engaged in unlawful practices which discriminated against plaintiff on the basis of her sex. *fn1" These allegations include failure or refusal of the University to promote or consider plaintiff for various positions, the discharge of plaintiff on July 1, 1975, and the replacement of plaintiff by a male with fewer qualifications. The University has moved for summary judgment on these portions of the plaintiff's complaint on the ground that plaintiff's allegations are barred by a settlement agreement executed by the parties on April 25, 1974.

 Fed.R.Civ.P. 56(c) provides in pertinent part:

 
(Summary judgment) shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

  Thus, in examining the propriety of a motion for summary judgment, the court must first determine whether there is a genuine issue as to any material fact. Summary judgment is not warranted except on a clear showing that no genuine issue of any material fact remains for trial. Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978); Drexel v. Union Prescription Centers, Inc., 582 F.2d 781 (3d Cir. 1978); Suchomajcz v. Hummel Chemical Company, 524 F.2d 19, 24 (3d Cir. 1975). The moving party has the burden of proving that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Adickes v. S. H. Kress and Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); DeLong Corp. v. Raymond International, Inc., 622 F.2d 1135 (3d Cir. 1980). It is also well settled that "in all summary judgment motions, all doubts as to the existence of material facts should be resolved against the movant." Sachs v. Continental Oil Co., 454 F. Supp. 614, 616 (E.D.Pa.1978), citing Hicks v. ABT Associates, Inc., 572 F.2d 960, 967 (3d Cir. 1978); Abdallah v. Caribbean Sec. Agency, 557 F.2d 61, 63 (3d Cir. 1977). In addition, Fed.R.Civ.P. 56(e) provides in relevant part:

 
When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.

 Thus, if the movant in a motion for summary judgment submits evidentiary material which indicates there is "no genuine issue of material fact," it then becomes the responsibility of the opposing party to introduce its own evidentiary material to the contrary. DeLong Corp., supra at 1142. See, e.g., Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840 (3d Cir. 1974). The Third Circuit has recently noted that

 
... Even when the material facts are not in dispute, summary judgment may be inappropriate when contradictory inferences may be drawn from the facts.

 DeLong, supra at 1441.

 The following facts are uncontested: The plaintiff was a graduate student at the University in the Department of Slavic Languages and Literature from 1967-70. She obtained a Ph.D. from the University in 1970, specializing in Slavic Language studies. She is a native speaker of Russian and Serbo Croatian. She was employed by the University as an instructor of languages during the years 1967-71. By letter dated December 14, 1971, plaintiff was advised that she had been promoted to the rank of Assistant Professor, *fn2" with a two-year terminal appointment at the University effective July 1, 1972 and which would terminate on June 30, 1974. During November, 1973, Dr. Benson, Head of the Department of Slavic Languages, submitted to the Dean a recommendation from him that Dr. Lazic be reappointed to an Assistant Professorship, along with two very negative letters from Dr. Maria Brooks, the other tenured member of the Department, recommending that plaintiff not be reappointed. Plaintiff had consistently gotten excellent reviews from her students, and had maintained a 4.0 grade average during her graduate studies. Plaintiff, after Dr. Brook's letters, protested to both the Dean and the University AAUP (American Association of University Professors) that her academic freedom had been infringed upon by Dr. Brooks. By letter dated February 12, 1973, plaintiff was advised that her appointment would not be renewed beyond June 30, 1974. On or about February 17, 1974, the plaintiff requested that the University reconsider its decision to terminate, which request was denied. Thereafter, she appealed her denial of reappointment to the Faculty of the Slavic Languages Department of the School of Arts and Sciences, and to Dr. Eliot Stellar, Provost of the University, protesting the circumstances surrounding the University's decision not to reappoint her. Dr. James E. Davis, Executive Assistant to the Provost of the University, undertook an investigation of Dr. Lazic's charges. In the interim, plaintiff enlisted the services of Howard Lesnick, Professor of Law at the University's School of Law, who represented the plaintiff throughout the processing of her appeal. During the investigation, various discussions were conducted among Professor Lesnick, the plaintiff and Dr. Davis. It was agreed that Professor Lesnick would draft an agreement whereby the University would extend the plaintiff's appointment for one additional year, through June 30, 1975, "... regardless of any action which might be hereafter taken or discussed concerning any further appointment ..." and that acceptance by the plaintiff of such appointment "... shall constitute a release of any claims, complaints or grievances I have or might have asserted against the University by reason of any action heretofore taken or decision heretofore made regarding my employment by the University." The agreement was signed on April 25, 1974 by Dr. Lazic and by Dr. Stellar, on behalf of the University. It is further uncontested that on June 25, 1974, two months after the date that the agreement was signed, Dr. Lazic received a letter from the University informing her that the Trustees, upon the recommendation of the University had decided not to renew her appointment beyond June 30, 1975. During the fall and winter of 1974, Dr. Lazic attempted through letters to the Trustees and various members of the Administration to have her appointment reconsidered, alleging that the denial was based on improper conduct and the questionable practices on the part of members of her department. She filed an official complaint with the Faculty Grievance Committee on January 10, 1975 complaining that she had been unfairly denied reappointment as an Assistant Professor. On March 6, 1975, she sent an additional letter to Dr. Davis in which she detailed instances in which males were treated differently than females in the Department. She filed a complaint on the same date with the Equal Employment Opportunity Commission (EEOC) charging the University with sex discrimination. On April 21, 1975, the Faculty Grievance Committee informed Dr. Stellar that it had decided that the waiver of April 25, 1974 precluded it from considering the merits of Dr. Lazic's case. She was then notified by letter dated May 9, 1975 that the University had accepted the advice of the Grievance Committee and that her appointment would expire on June 30, 1975. During 1975, Dr. Lazic began meeting with an investigator from the EEOC, and during the course of these interviews, informed him of sexual demands which had been placed upon her in her position at the University. She also produced for the investigator photographs which she claimed had been sent to her by this same individual showing various women in obscene positions. The EEOC contacted various former members of the Slavic Languages Department and obtained affidavits from several women that they too had had sexual demands placed upon them by this same person while they were students or faculty members. The EEOC forwarded these affidavits to the University. On August 18, 1977 the University, under signature of its general counsel, wrote the EEOC contending that the settlement agreement barred any further processing of the plaintiff's charges. On October 20, 1977, the plaintiff received a copy of a letter from Martin Stamm, Director of Professional Groups and Associate Director of Placement at the University, written to Dr. Benson. The letter informed Dr. Benson that as per his (Benson's) request of October 12, 1977, Mr. Stamm had deleted the positive references Dr. Benson had made on the plaintiff's behalf from Dr. Lazic's Active Professional Dossier file. Those references were made by Dr. Benson on December 16, 1970 and September 17, 1974. Mr. Stamm confirmed that neither of those recommendations would be mailed out to prospective employers. By letter dated October 28, 1977, the University was advised by the EEOC that it had officially closed its file, for "lack of jurisdiction" on the charges filed by the plaintiff against the University. *fn3"

 Defendant University contends that the allegations of plaintiff's amended complaint contained in count one, paragraphs 9(a), (b), and (c), are barred by the terms of the settlement agreement executed on April 25, 1974. We note at the outset that the agreement refers to actions "heretofore taken or decision(s) heretofore made." In addition, as we read the plaintiff's amended complaint, plaintiff seeks relief only for acts of discrimination allegedly occurring since April 26, 1974. The amended complaint does not, on its face, seek redress for discriminatory acts occurring prior to the settlement agreement. Defendant asserts, however, that the settlement agreement pertains to plaintiff's allegations on the ground that the claims "arise from ... alleged discriminatory events ... which antedate the execution of the release and effects which are causally rooted to these alleged discriminatory events." *fn4" Although the University does not contend that the agreement should be read as ...


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