On Appeal from the United States District Court for the Eastern District of Pennsylvania (C. A. No. 75-1401).
Before: ADAMS, Acting Chief Judge, HUNTER, Circuit Judge, and STERN, District Judge*fn*
ADAMS, Acting Chief Judge.
Appellant, an associate professor at a university, brought suit under Title VII and the Civil Rights Act, claiming her denial of promotion was motivated by sex discrimination. In this appeal from a judgment for the university, she complains that the district judge improperly limited discovery and also decided her retaliation claim which she did not wish to include in the case. She further maintains that the district court erred in ruling that the university was not a state actor and in dismissing her federal civil rights claim on that ground. We conclude that the district judge acted within his discretion in determining the proper scope of discovery and the issues to be tried. However, the university arguably was engaged in state action in refusing to promote appellant, and taking the case from the jury on the ground that there was no basis for a § 1983 action was therefore incorrect. Nonetheless, because appellant produced insufficient evidence of discrimination to withstand a motion for directed verdict, the denial of appellant's request for a jury trial in the circumstances here was harmless error. Accordingly, the judgment for defendant will be affirmed.
Dr. Rosalie Cohen is an associate professor in the Colleges of Sociology and Foundations of Education at Temple University. She was hired by Temple in 1970 and received tenure during the 1971-72 academic year. In 1974, after being denied promotion to the rank of full professor several times, Dr. Cohen filed an administrative complaint with the Equal Employment Opportunity Commission (EEOC) alleging that Temple's actions were the result of sex discrimination. The EEOC issued a right to sue letter on March 5, 1975.
This action was filed on May 15, 1975 on behalf of a class consisting of all female faculty and administrative personnel, and applicants for such positions, who had suffered sex discrimination in decisions regarding hiring, promotion, tenure, salary, and teaching assignments at Temple. The named plaintiffs were Dr. Cohen and two other female employees of the university. Their original complaint asserted claims under Title VII, 42 U.S.C. § 2000e et seq. (1982), and under 42 U.S.C. § 1983 (1982), for sex discrimination and violations of the First and Fourteenth Amendments.
Nearly nine years elapsed before the case came to trial, on February 13, 1984. By that time, the claims of the other named plaintiffs had been dismissed or settled, the class had been decertified, and only Dr. Cohen's claims remained in dispute. In addition, during the year and a half before the trial, Dr. Cohen's counsel. Harry Lore, made repeated attempts to withdraw as Dr. Cohen's counsel. At one point, in November 1983, the court gave Dr. Cohen the opportunity to obtain other counsel. In this regard, she approached Gary Green, Esquire, and his firm, but after reviewing the case Mr. Green determined that insufficient discovery had been conducted concerning Dr. Cohen's individual claims, and he agreed to represent her only if the court would allow him an additional six months to prepare the case and conduct further discovery. The court denied this request, and Mr. Lore was required to represent Dr. Cohen at the trial.
Mr. Lore's strategy during the trial produced another dispute. After the initial class action was filed in 1975, Dr. Cohen believed herself to be the victim of retaliation by Temple for filing the complaint. She asked Mr. Lore to add the retaliation claim to the Molthan suit, but he refused. As a result, in 1979 Dr. Cohen retained separate counsel to handle the retaliation claim. She filed an administrative complaint with the Department of Labor in 1979, and with the EEOC in 1982. The latter agency issued a right to sue letter on November 22, 1983, and Dr. Cohen, represented by Mr. Green and his firm, filed suit based on her retaliation claim on February 17, 1984. That action, captioned Cohen v. Temple University, No. 84-0834 (E.D. Pa. filed February 17, 1984, is still pending in the district court. The Molthan trial had begun four days before the second suit was filed and Mr. Lore, despite his earlier refusal to handle the retaliation claim, referred to it in his pretrial memorandum and at the trial.
Dr. Cohen made a timely request for a jury trial and a jury was empaneled. However, after several days of the Molthan trial, the district court directed a verdict for Temple on the § 1983 claim, finding no state action. The jury was therefore dismissed, and the trial proceeded before the judge on the Title VII issue. After the trial, in an option delivered from the bench, the court decided that Dr. Cohen had failed to show that discrimination played any part in the denials of promotion or in the allegedly retaliatory actions.
Dr. Cohen filed this appeal, arguing that (1) the district court abused its discretion in denying additional discovery; (2) the district court improperly considered and decided the retaliation claim; and (3) the issuance of a directed verdict by the district court on the state action issue was erroneous as a matter of law. She requests that this Court reverse the district court's judgment and remand for a new trial before a jury on her Title VII and § 1983 claims, after a short period for additional discovery. She further requests that, if a new trial is not granted, the district court's resolution of the retaliation claim be vacated, leaving her free to litigate it in the pending Cohen suit.