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GRASSINGER v. WELTY

July 9, 1992

JOHN G. GRASSINGER, Jr., Plaintiff
v.
JOHN WELTY, M. KAREN DEICHERT, and INDIANA UNIVERSITY OF PENNSYLVANIA, Defendants


D. Brooks Smith, United States District Judge


The opinion of the court was delivered by: BY THE COURT; D. BROOKS SMITH

SMITH, District J.

 Plaintiff, John G. Grassinger, Jr., filed a complaint in November, 1988, against defendants, alleging violations of his constitutional rights under color of state law, 42 U.S.C. § 1983, and of his right to be free from discrimination on the basis of gender in his employment, 42 U.S.C. § 2000e-5. In his third amended complaint, plaintiff advances eight separate counts. Before the court at this time are defendants' motion for summary judgment on all of the counts and plaintiff's motion for summary judgment on counts three and six. For the reasons stated below, defendant's motion is granted.

 I.

 Federal Rule of Civil Procedure 56(c) requires the entry of summary judgment ". . . 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 judgment as a matter of law." The requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). (emphasis in original). A fact is "material" if proof of its existence or non-existence would affect the outcome of the lawsuit under the law applicable to the case. Anderson, 477 U.S. at 248; Levendos v. Stern Entertainment, Inc., 860 F.2d 1227, 1233 (3d Cir.1988). An issue of material fast is "genuine" if the evidence is such that a reasonable jury might return a verdict for the non-moving party. Anderson, 477 U.S. at 257.

 Once the defendants moving for summary judgment have satisfied their burden "by 'showing'--that is by pointing out to the district court--that there is an absence of evidence to support the non-moving party's case," Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), the non-moving party is required to go beyond the pleadings by way of affidavits, depositions, answers to interrogatories, etc., in order to demonstrate specific material facts which give rise to a genuine issue. *fn1" Anderson, 477 U.S. at 250.

 Most of the relevant facts in this matter, and all of the material facts, are not in dispute. The parties strenuously argue differing legal conclusions from those facts, as will be noted.

 The parties agree that Grassinger is a tenured associate professor at defendant Indiana University of Pennsylvania (IUP). Grassinger was first employed in 1970, and has worked since that time as a cataloger of books. He was granted tenure in the 1972-73 academic year. In 1985, IUP hired a new library director, Dr. Larry Kroah, and in 1986, IUP added Dr. Linda Rambler an associate director, with supervisory responsibility for cataloging. Defendants' App. 1-2.

 In April 1986, Lora Herrick, an employee in the library, sent a written complaint to Kroah alleging that Grassinger had sexually harassed her on April 14, 1986, and on "numerous occasions" in the previous one and a half years. Defendants' App. 53-54. Herrick provided a more detailed synopsis of her complaints in May, 1986. Defendants' App. 55-58. *fn2" The matter was referred to defendant M. Karen Deichert, then IUP's director of human resources. *fn3" On May 14, 1986, Deichert sent a letter to Grassinger notifying him of Herrick's complaints and stating that "you will be contacted in the near future to be provided with an opportunity to respond to the complaints." Defendants' App. 69-70. The letter also referred to complaints made by a student working in the library, Betsy Shepler, who had complained to Kroah in November, 1985. That complaint, Defendants' App. 52, had resulted in a memorandum by Kroah dated November 25, 1985. Defendants' App. 51.

 Grassinger's response to Deichert's May 14, 1986 letter was to telephone Deichert and the assistant provost, Mark J. Staszkiewicz. From memos generated by Grassinger, Defendants' App. 72, and by Staszkiewicz, Defendants' App. 71, it appears that Grassinger vigorously denied Herrick's allegations. Additionally, on the same day, May 15, 1986, Grassinger filed a written complaint of sexual harassment against Herrick using an IUP internal grievance form. Defendants' App. 73-75.

 Deichert apparently scheduled a meeting for June 5, 1986, to provide a hearing on Herrick's allegations referenced in the May 14, 1986 letter, but based on the request of an attorney representing Grassinger, the meeting was postponed. See Defendants' App. 80. An exchange of letters between IUP's counsel and Grassinger's attorney reflects negotiations to resolve Herrick's complaints by Grassinger accepting a letter in his personnel file stating that, while he did not admit to any wrongdoing, he would "refrain from the kinds of behaviors in the complaints that were brought against him." Defendants' App. 81-82 (IUP counsel's letter of June 9, 1986); Defendants' App. 83 (Grassinger's counsel's letter of June 12, 1986); Defendants' App. 85 (IUP counsel's letter of June 20, 1986). Based on this proposal, Deichert indefinitely postponed the June meeting. Defendants' App. 84.

 Herrick brought a second complaint about Grassinger's behavior on June 20, 1986, alleging that Grassinger's behavior toward her was retaliatory and hostile. Defendants' App. 79. Thereafter, Deichert rescheduled a meeting for July 28, 1986, by a letter dated July 21, 1986. Defendants' App. 86. Prior to the meeting, the assistant provost received two letters, one from a woman who claimed Grassinger had harassed her, Defendants' App. 76-77, the other from a man who wrote to refute one of the allegations in Grassinger's complaint of harassment against Herrick. Defendants' App. 78. Deichert sent a letter to Grassinger on July 22, 1986, informing him of Herrick's additional allegations. Defendants' App. 87-88.

 Laura (sic),

 
Mr. "Boom Boom" G gives free welding lessons -- by appointment. I emphasize "hands on" experience.
 
JG

 It is noteworthy that one of Grassinger's complaints in his charge of harassment filed against Herrick subsequent to her complaint was that she harassed him by referring to him as "Boom-Boom." Defendants' App. 74. Also at the meeting, Grassinger's counsel disclosed that Grassinger claimed that he had received anonymous threatening letters. See Defendants' App. 89.

 After the July 28, 1986 meeting, Grassinger and IUP again attempted to negotiate a non-adjudicatory settlement of Herrick's complaints. See Defendants' App. 107-08. Also, during July, 1986, Herrick's union requested that Grassinger be reassigned to another location. Defendants' App. 91. IUP declined. Defendants' App. 93. Throughout August, Deichert communicated with Herrick's union, Defendants' App. 94, while IUP's counsel dealt with Grassinger's counsel, Defendants' App. 92, who ...


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