In Count VI, Grassinger complains that his termination in September, 1989, by Welty violated both substantive and procedural due process. Grassinger's substantive due process claim is based on an interpretation of remarks in the Supreme Court's per curiam decision in Harrah Independent School District v. Martin, 440 U.S. 194, 59 L. Ed. 2d 248, 99 S. Ct. 1062 (1979), that suggest that all state action must meet a minimal rationality test. See also Regents of University of Michigan v. Ewing, 474 U.S. 214, 222-23, 88 L. Ed. 2d 523, 106 S. Ct. 507 (1985) (assuming arguendo a federal substantive right to freedom from arbitrary state action). Grassinger asserts that because the personnel action taken by Welty was erroneous, it was "arbitrary and capricious" and therefore violated the substantive element of the due process clause. His argument confuses the issues of correctness and constitutionality. Regardless of the correctness of the charges upon which Welty based the termination, Welty's action would violate substantive due process only if action was taken despite a complete lack of foundation, or if the charges which were the basis of the termination have no rational relationship to a permissible concern of the university administration. As to the lack of foundation argument, whether or not Herrick's complaints of harassment would be credited by every factfinder, the undisputed fact that Herrick did complain, and came forward with evidence, provided some basis for the University's actions. With respect to the rational relationship to a permissible end, it is beyond peradventure that universities have a legal duty, not merely a permissible interest, in curbing sexual harassment, not only in its role as an employer, but also in its community. See Franklin v. Gwinnett County Public Schools, 117 L. Ed. 2d 208, 112 S. Ct. 1028 (1992) (Title IX). The substantive due process claim fails even to state a legally sufficient claim.
Grassinger's procedural due process claim, as with count III, requires some evidence from which a jury could conclude that Grassinger was denied either notice or opportunity to respond to the allegations on which Welty based his termination. Welty's June 16, 1989 and August 4, 1989, letters indisputably gave Grassinger notice, and offered him an opportunity to respond. Grassinger did respond by letters on June 30, 1989 and September 11, 1989. Grassinger advances two arguments, however, why that fails to satisfy the requisites of due process. First, Grassinger contends that he is entitled to a hearing, not just an opportunity to respond, as a matter of constitutional law. This assumption is incorrect. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985). Further, even if a hearing were constitutionally required, as a matter of undisputed fact Grassinger, based on this suit, refused "any discussion or delineation of the issues you raise," Defendants' App. 303, in his June 30, 1988 letter, and in his September 11, 1989 letter suggested only polygraphic and psychiatric evaluation of the sources of Welty's information. Even when there is a requirement of a hearing, it may be waived or bypassed by a party.
Second, Grassinger asserts that he could not respond at all to Welty's charges without jeopardizing his federal litigation. Grassinger's counsel even asserts, Plaintiff's Brief at 21 n.22:
There has been some suggestion that Defendant Welty's insistence on an apology during the course of litigation may have amounted to an obstruction of justice and a criminal interference of (sic) Mr. Grassinger's civil rights.
This is ludicrous. To hold that a litigant is somehow shielded from the process of investigation, factfinding, and discipline in the workplace by his status as litigant would be a radical departure from an unbroken line of cases which hold that there is no immunity from the civil consequences of failing to respond to investigatory processes even where the Fifth Amendment is implicated. I discussed this very issue at length in Aetna Casualty & Surety Co. v. State Farm Mutual Automobile Insurance Co., 771 F. Supp. 704 (W.D. Pa.1991) aff'd w/o op., 961 F.2d 207 (3d Cir.1992). More to the point, the Court of Appeals foreclosed use of the pendency of litigation as a shield from the consequences of an employee's tactical decisions in Peiffer v. Lebanon School District, 848 F.2d 44 (3d Cir.1988).
Count VII accuses Welty, Deichert, and IUP of violating Title VII by operating a two-tier disciplinary system under which only complaints of sexual harassment by women would be seriously investigated, and by permitting a sexually hostile environment.
Grassinger's claims of a sexually hostile environment are not even worthy of discussion other than to note their inadequacy to show a "pervasive" atmosphere of harassment. See Andrews v. City of Philadelphia, 895 F.2d 1469 (3d Cir.1990).
Even assuming application of the McDonnell Douglas - Burdine burden shifting framework to a member of the nonprotected class, Grassinger's evidence in support of a prima facie case that the university handled complaints by women differently than complaints by men reduces to the single comparison of the dismissal of his complaint against Herrick to the imposition of some disciplinary sanction against him due to the complaint by Herrick. There is no pattern of circumstantial evidence from which any discriminatory intent could be inferred. With respect to the single comparison advanced, "different disciplinary measures taken in response to different acts," Miller v. Yellow Freight Systems, Inc., 758 F. Supp. 1074, 1079 (W.D. Pa.), aff'd w/o op. 941 F.2d 1202 (3d Cir.1991), do not constitute the disparate treatment necessary to show a prima facie case of discrimination. See Bellissimo v. Westinghouse Electric Corp., 764 F.2d 175, 180 (3d Cir.1985) ("A discharge is not per se disparate treatment. It violates Title VII's commands only if it is made on a basis that would not result in the discharge of a male employee"). In the instant case, there is nothing to suggest that Grassinger's less than coincidentally timed charge of harassment against Herrick would not have received the same short shrift it did even if Grassinger were female.
The last count, count VIII of the Third Amended Complaint, charges IUP with violating Title VII by retaliating against Grassinger for pursuing a Title VII claim. Plaintiff must show some evidence from which a finder of fact could rationally conclude that (1) the plaintiff reasonably believed that the employer was engaged in an employment practice unlawful under Title VII; and (2) that the employer retaliated against the plaintiff for protesting against that practice. Drinkwater v. Union Carbide Corp., 904 F.2d 853, 865 (3d Cir.1990); Hicks v. Abt Associates, 572 F.2d 960, 967-69 (3d Cir.1978). Plaintiff has shown neither on issue of material fact concerning his reasonable belief that IUP was violating Title VII, nor an issue that any evaluation or discipline attempted by an employee of IUP was in retaliation for his protected activity.
First, plaintiff had no reasonable belief at the time of his complaint to the IUP administration concerning Herrick or at the time of his complaint to the PHRC that IUP was engaged in discrimination. As discussed in part III.G above, plaintiff cites only the dismissal of his claim of harassment by Herrick as evidence of gender-based discrimination against him. Any subjective belief by Grassinger based on this incident hardly qualifies as reasonable. second, there is not even a motive advanced for the claim that because Grassinger's colleagues (other than Welty, discussed in part III.E above) may have discovered that Grassinger had filed a sexual harassment complaint against Herrick, or a Title VII claim against the university, they would have reacted falsely evaluating Grassinger as low as they did.
Summary judgment on all counts is entered in favor of the defendants. The Clerk shall mark this matter closed.
BY THE COURT,
D. Brooks Smith, United States District Judge
DATE: July 9, 1992