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July 20, 1983


The opinion of the court was delivered by: GILES


 Marie Wells has sued her former employer, the Hospital of the University of Pennsylvania ("HUP"), certain of its management employees, and the University of Pennsylvania ("University") alleging that her employment at HUP was wrongfully terminated on February 3, 1978. Defendants have moved for summary judgment on counts VII, VIII, IX, X and XI, the remaining counts of plaintiff's complaint. *fn1"

 I. Background

 The material facts are undisputed and shall be viewed in the light most favorable to plaintiff. The record shows that Wells began working at HUP in 1952. In 1963 she was promoted to the position of Director of Personnel, a position she held through June, 1976. *fn2" During her thirteen years in that position, Wells was responsible generally for all personnel related matters at HUP, including grievance handling and employee communications. She was also "a member of the policy making body of HUP."

 In July, 1976, the University hired defendant Donald R. Thomas into a recently created position, Director of Personnel Management for University Hospitals. Thomas was responsible for personnel management at both HUP and Graduate Hospital, which was then owned and managed by the University.

 According to plaintiff, within three months of Thomas' hiring, (1) her title was changed to Director of Manpower Planning, a newly created position with ill-defined responsibilities, (2) defendants falsely told her that other members of the departmental staff had claimed her presence at staff meetings was inhibiting of their volunteering ideas and comments, (3) her private office was taken from her as well as her secretary who was reassigned to another member of the staff, (4) one of her telephone lines was taken without consultation, and (5) she was the only managerial level employee who, when not present, would have phone calls go unanswered.

 Plaintiff complained to Thomas about these developments. He responded that under similar circumstances, he and others probably would have left. (Dep. of Wells, May 9, 1979, pp. 65-69). For the first time in her long career at HUP, plaintiff received negative performance evaluations in October of 1976 and June of 1977. Following his preparation of the evaluation form of October, 1976, Thomas wrote in a memorandum to defendant Mark Levitan, HUP's Executive Director, that the changes he intended to implement at HUP, some of which would likely impact on Wells, would be difficult to accomplish but that he was prepared to handle them. In the same memorandum dated November 15, 1976, Thomas indicated that he would, at that time, request Wells to resign or take an early retirement effective June 30, 1977. (Dep. of Thomas, October 28, 1980, pp. 102-107). Plaintiff asserts that, instead, in November of 1976, in consultation with Levitan, and James Heimarck who was employed as staff administrator of HUP, Thomas apparently took further steps to force her resignation.

 By the Fall of 1977, the University had completed the "spin-off" of Graduate Hospital. Thomas' responsibilities became limited to the personnel management function at HUP. As part of a reorganization of the Personnel Department, Thomas decided in late 1977 that the positions occupied by Wells and another employee should be eliminated and submitted a recommendation to Levitan to that effect. In late 1977 or early 1978, Thomas, Levitan and Heimarck discussed Wells' possible termination and concluded that there was no choice but to follow through with Thomas' recommendation. In addition to these discussions, Thomas and Levitan discussed Wells' future at HUP and the University with Gerald Robinson, the University's Executive Director of Personnel Relations. Robinson and his staff considered whether there was a suitable place within the University where Wells could be employed.

 On January 31, 1978, Thomas advised Wells that her employment would be terminated effective February 3, 1978 and that the balance of her annual salary for 1978, which was $29,744, would be paid as severance pay. The lump sum payment included all accrued vacation and holiday pay as of February 3, 1978. In addition, Thomas gave Wells the opportunity to remain on the payroll and receive the severance pay in regular bi-weekly or monthly installments thereby entitling her to receive health, life, dental and all other group insurance benefits. Wells declined and elected to accept the lump sum payment. Thomas further agreed that her personnel history records would reflect that termination was caused by a management reorganization which resulted in the elimination of her position.

 Following the separation, Wells heard from various persons that she had resigned rather than take another position at HUP or the University. (Dep. of Wells, pp. 103-104). Moreover, plaintiff learned that the private terms of her separation agreement had become common knowledge at HUP. As a result of these discoveries and in order to have an investigation conducted into the events surrounding her dismissal, Wells sent a letter to Heimarck on February 28, 1978. (Dep. of Wells, pp. 103-106). Based on discussions with Thomas and Levitan, Heimarck stated that he was led to believe that Wells was dismissed as a result of a departmental reorganization and that Thomas and Levitan had done all that was possible to place her in another position at the Hospital or in the University. When questioned by Dr. Kyle, then Chairman of the HUP Medical Board, who was concerned that Wells be given all possible help as a long term employee, Heimarck indicated that such help was being given. (Dep. of Heimarck, July 11, 1979, pp. 97-99). In fact, plaintiff was not placed in an alternate job by Heimarck, Thomas or Levitan. Had another position been offered, she would have accepted it rather than resign. (Dep. of Wells, May 9, 1979, p. 126). Plaintiff contends that she was terminated on the pretext that she failed to perform her duties as required and in a reasonably satisfactory manner. In her opinion, outright dismissal was resorted to only after a premeditated plan calculated to force her into retirement proved unsuccessful.

 Plaintiff asserts that in order to conceal the unjustified and arbitrary dismissal, requisite procedural safeguards at both HUP and the University were ignored. There had been in effect at HUP since at least January 1, 1977, a collection of personnel policies addressing many aspects of employment, benefits and employee relations. Included among these policies was "Guidelines for Cooperation and Discipline Policy and Procedure," ("Discipline Policy") which set forth the disciplinary procedures for terminating a HUP employee for cause. In pertinent part, the Discipline Policy provided that no HUP employee would be discharged from staff without a full hearing and that a disciplinary hearing must be conducted by the Director of Personnel Management or his designee. A second HUP policy, "Employee Concerns and Communications Policy and Procedure," ("Communications Policy") provided an appeal and review procedure. This was an in-house grievance procedure for employees dissatisfied with their treatment by HUP. It had a four step system culminating in "final review" of the grievance by the Administrator of the Hospital. Wells concedes that this policy is inapplicable to a termination for cause and that, in fact, HUP had no appellate grievance procedure available to employees discharged for cause.

 The Personnel Policy Manual of the University contained a Termination Policy (Policy No. 701) that provided, in relevant part, as follows:

No University employee may be involuntarily terminated for any reason without prior review of the action by an officer of the Personnel Relations Department. No employee with fifteen or more years of University service may be involuntarily terminated for any reason except with the express prior approval of the President or the Provost or the appropriate Vice President upon the recommendation of the Executive Director of Personnel Relations.

 The "Layoff and Severance Arrangements Policy" (Policy No. 704) in effect at the University at the time of Wells' termination provided as follows:

The guiding principal is that the employee with the least amount of University service is normally laid off first. A departure from the length of service principal may be appealed by the employee through the grievance procedure.
* * *
The Personnel Relations Staff will make every effort to find alternate placement within the University for individuals being laid off. Every member of the University's academic and administrative staff has a responsibility for cooperation in this effort. Whenever possible, staffing of new positions and filling of vacancies should be accomplished through internal transfer on a University-wide basis.

 The termination policies of the University were not set forth or referred to in any personnel policy manual of HUP. *fn3" Wells was not specifically and expressly offered the opportunity of a pre-termination hearing pursuant to HUP's Termination Policy. Nor was HUP's Communications Policy followed. Additionally, ...

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