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November 7, 1983

DR. ROGER H. HOU, Plaintiff,

The opinion of the court was delivered by: COHILL


 This is an action under the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. 42 U.S.C. § 2000e-2 provides:

(a) It shall be an unlawful employment practice for an employer --
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.

 Plaintiff also alleges a violation of the Civil Rights Act of 1981, 42 U.S.C. § 1981 which provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

 These claims are brought against Slippery Rock State College, for alleged acts of discrimination and discriminatory application of standards against plaintiff, Dr. Roger Hou, on account of race, national origin, and religion. The alleged discriminatory treatment occurred in conjunction with the decision not to promote plaintiff from associate professor to full professor of mathematics. Plaintiff seeks promotion, back pay, and with regard to the § 1981 claim, declaratory and injunctive relief.


 This Court has subject matter jurisdiction over the claims asserted in this case under 28 U.S.C. §§ 1331(a), 1343(3), 1343(4), § 706 of EEOC Act of 1972, 42 U.S.C. § 2000e et seq. (Supp. V) amending Civil Rights Act of 1964, and 42 U.S.C. § 2000e-5(f)(3).


 Fed. R. Civ. P. 52(a) directs that a trial court, in all nonjury cases, "find the facts specifically and state separately its conclusions of law thereon. . . ." Rule 52 is generally understood as requiring the trial court to make far more detailed findings of fact than a jury is required to make when a case is submitted under Fed. R. Civ. P. 49(a), requiring "a jury to return only a special verdict in the form of a special written finding upon each issue of fact." In order to avoid findings on mixed questions of law and fact, we will separately state the facts which form the basis for our legal conclusions.

 Procedural History

 Plaintiff filed the complaint in this case in July of 1979, alleging he was denied a promotion because of his race, religion, and national origin. An order granting the defendant college's motion to dismiss parts of the complaint was entered on December 10, 1979. The portions dismissed were:

 a. Count One (containing allegations that defendant violated Title VII of the Civil Rights Act of 1964, as amended, and also claiming relief under 28 U.S.C. §§ 2201 and 2202).

 b. The portions of Count Two claiming violations of 42 U.S.C. § 1983 and the Fourteenth Amendment.

 c. The portion of Count Two claiming a right to damages under 42 U.S.C. § 1981. (The portion of Count Two claiming a right to equitable relief was allowed to stand.)

 The dismissal of the Title VII claim was due to the fact that the plaintiff's EEOC charge appeared to have been not timely filed; the charge was filed on August 17, 1976, but plaintiff's complaint alleged that his denial of promotion was in 1975, prior to the 180-day time limit prescribed in Title VII. The § 1983 and Fourteenth Amendment claims, and the damages claim under § 1981 were dismissed on grounds of jurisdiction, immunity and failure to state a claim.

 An amended complaint was filed alleging the denial of a promotion in 1976. After another motion to dismiss by defendant, the parties stipulated that the § 1983 claims, the Fourteenth Amendment claims, and the claim for damages under 42 U.S.C. § 1981 were not revived by the amended complaint. This Court's order, dated June 3, 1980, held that the defect in the Title VII claim was cured by the amended complaint because it alleged the denial of a promotion in 1976.

 Defendant's motion to dismiss the amended complaint was granted by the June 3, 1980 order as to claims brought by plaintiff under the Pennsylvania Public School Code 24 P.S. § 1-101 et seq. Dismissal was premised on the Court's discretion to abstain from exercising pendent jurisdiction over the state law claims.

 After a four-day trial, this Court makes the following findings of fact and conclusions of law.


 A. The Parties

 Plaintiff, Dr. Roger Hou, is a naturalized citizen of the United States of America, of Chinese origin, Oriental race and Confucian religion. He was born January 6, 1934 at Chang-shia, Hunan Province, China. After teaching in Hong Kong in 1958 and 1959, Dr. Hou came to the United States to study. He became a United States citizen in 1964, and, in 1965, received his Ph.D. degree from the University of Indiana at Bloomington. In 1965, Dr. Hou was appointed assistant professor of mathematics at the University of New Hampshire, where he remained for four years. He was appointed associate professor of mathematics at Slippery Rock State College in 1969.

 Defendant, Slippery Rock State College, is an employer engaged in industry affecting interstate commerce, employs more than fifteen (15) persons and is an employer within the meaning of 42 U.S.C. § 2000e(b). Furthermore, defendant is a State College in and for the Commonwealth of Pennsylvania, as set forth in 24 P.S. § 20-2001, as amended.

 Defendant College maintains its office and principal place of business at Slippery Rock, Butler County, Commonwealth of Pennsylvania 16057.

 B. Structure of the College and Administrative Procedures Governing Promotion

 Slippery Rock State College, during the years in question, was an institution of approximately 4,000 students and 350 faculty. The college ranks its faculty in 3 grades: assistant professor, associate professor, and full professor. Candidates for promotion are judged on the basis of peer review at three levels: the department, the particular school, and the college. Dr. Hou was a member of, and judged by, the faculty of the Math Department, the School of Natural Sciences and Mathematics, and Slippery Rock State College.

 Pursuant to a collective bargaining agreement between the Association of State College and University Faculties ("APSCUF") and the Commonwealth of Pennsylvania, each state college, including Slippery Rock State College, adopted a statement on "promotion, policies and procedures" which set up ...

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