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McKinney v. University of Pittsburgh

United States District Court, W.D. Pennsylvania

September 16, 1994

JEROME MCKINNEY, Plaintiff,
v.
UNIVERSITY OF PITTSBURGH, Defendant.

          MEMORANDUM OPINION.

          Nora Barry Fischer United States District Judge.

         Pending before the court are the cross-motions for summary judgment filed by plaintiff Jerome McKinney (“Plaintiff” or “Dr. McKinney”) (Docket No. 24) and defendant University of Pittsburgh (“Defendant” or “the University”) (Docket No. 20).

         Count I of Dr. McKinney's Complaint alleges that the University discriminated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”), based on his race when: (1) his salary was cut by 20% in 2013; (2) his salary was increased by a substantially smaller percentage than the average salary increase of his Caucasian counterparts between 2006 and 2013; (3) he was excluded from certain committees, including the Ph.D. Planning and Testing Committee, despite his seniority and expertise; (4) he was subjected to harassing oversi[ght] not applied to other faculty members; and (5) he was prevented from teaching courses which he had taught in the past. (Docket No. 1 at 25). Count II of Dr. McKinney's Complaint alleges that the University violated his procedural due process rights when it did not provide him with any substantive process to defend himself prior to the University reducing his salary. Id. at ¶ 27.

         Dr. McKinney has filed a Motion for Summary Judgment as to Count II of his Complaint. (Docket No. 24). In support of his motion, he has filed a brief (Docket No. 25), a concise statement of undisputed material facts (“Plaintiff's Concise Statement of Undisputed Material Facts”) (Docket No. 26), an appendix with exhibits (Docket No. 27), and a reply to defendant's response (Docket No. 35).

         In response to Dr. McKinney's Motion for Summary Judgment, the University filed a memorandum of law in opposition (Docket No. 31), a counter statement of material facts (Docket No. 32), and an appendix of record evidence (Docket No. 33).

         The University has filed a Motion for Summary Judgment as to both Counts I and II of Dr. McKinney's Complaint. (Docket No. 20). In support of its motion, the University filed a memorandum of law (Docket No. 21), a concise statement of undisputed material facts (“Defendant's Concise Statement of Undisputed Material Facts”) (Docket No. 22), an appendix of record evidence with exhibits (Docket No. 23), and a reply brief (Docket No. 37).

         In response to the University's motion, Dr. McKinney filed a response in opposition (Docket No. 28), a brief in opposition (Docket No. 29), a response to defendant's concise statement of undisputed material facts (Docket No. 30), and a sur-reply in opposition (Docket No. 38).

         A hearing on the cross-motions for summary judgment was held on February 24, 2017 (Docket No. 39), and the transcript of the hearing filed (Docket No. 40). This matter, thus, is fully briefed, argued, and ripe for disposition. As more fully explained below, Plaintiff's motion for summary judgment will be granted as to Count II of the Complaint, and Defendant's motion for summary judgment will be denied as to Count II of the Complaint and granted as to Count I of the Complaint.

         I. Standard of Review.

         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The parties must support their respective position by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A). In other words, summary judgment may be granted only if there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505 (1986). “When confronted with cross-motions for summary judgment, the ‘”court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the Rule 56 standard”.'” Anderson v. Franklin Institute, 185 F.Supp.3d 628, 635 (E.D. Pa. 2016) (quoting Schlegel v. Life Ins. Co. of N. America, 269 F.Supp.2d 612, 615 n. 1 (E.D. Pa. 2003); Charles A. Wright, Arthur R. Miller et al., 10A Fed. Prac. and Proc. § 2720 (3d ed. 1998).

         In reviewing the evidence, the court draws all reasonable inferences in favor of the non-moving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Huston v. Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (citations omitted). It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48. An issue is “genuine” if a reasonable jury could possibly hold in the non-movant's favor with regard to that issue. See id. “Where the record taken as a whole could not lead a reasonable trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 587; Huston, 568 F.3d at 104.

         II. Relevant Facts.

         Following is a recitation of the facts relevant to the parties' cross-motions for summary judgment as to Count II of Plaintiff's Complaint.[1] Where the parties agree that a fact is undisputed and relevant, the Court will cite to the relevant page and paragraph in the parties' statements of undisputed material facts (Docket Nos. 22 and 26). Where a party disputes a fact alleged by the other party, the court will cite to the specific evidence of record that supports the fact in question. Additionally, the Court has quoted directly from two letters sent to Dr. McKinney from the University even though the contents of the letters are not in dispute, a letter dated August 3, 2012, and a letter dated August 20, 2013.

         The University is a state-related institution of higher learning located in Pittsburgh, Pennsylvania. (Docket No. 26 at ¶ 2). Dr. McKinney has been continuously employed by Defendant since September of 1970 in the Graduate School of Public and International Affairs (“GSPIA”) . (Id. at ¶¶ 3 and 6). Dr. McKinney currently is a full, tenured professor at the University. (Id. at ¶ 4). The University granted Dr. McKinney tenure in 1974 and he was promoted to full professor in 1987. (Docket No. 22 at ¶ 2). The rights of the University and faculty members regarding the termination of tenured faculty members is set forth in University of Pittsburgh Policy 02-02-07 (“Policy 02-02-07”). (Docket No. 27-20 at 1). In particular, Policy 02-02-07 states: “Termination of any appointment, other than by expiration of term, may be made for cause.” (Id.)

         John Keeler (“Dean Keeler”) has held the position of Dean at GSPIA since 2007. (Docket No. 26 at ¶ 10). The Deans of each of the schools contained within the University, including the Dean of the GSPIA, report to the Office of the Provost. (Id. at ¶ 8). Patricia Beeson (“Provost Beeson”) has held the position of Provost for the University since 2010. (Id. at ¶ 9).

         All faculty at the University are evaluated on three main criteria: (1) their teaching record; (2) their research and scholarship achievements; and (3) their service to the University and/or community. (Docket No. 22 at ¶ 7). At the conclusion of each academic year, faculty within the GSPIA are expected to provide to Dean Keeler a summary of their achievements for the year in the form of a Faculty Activity Report (“FAR”), which provides information on each of the three criteria listed above. (Id. at ¶ 8). Within the GSPIA, faculty submit their annual FARs, updated CVs and any publications from the past year to the Dean's secretary, who in turn provides them to the school's Merit Review Committee (“the MRC”). (Id. at ¶ 9).

         Annual performance reviews at the GSPIA are performed, in part, by the MRC, which is comprised of three (3) GSPIA faculty members, which are selected annually by vote of all faculty of the GSPIA. (Docket No. 26 at ¶ 38). The MRC rates each professor's accomplishments (other than themselves) in the three categories of interest on a scale of 1 to 10: (1) teaching; (2) research/publication; and (3) university/ community service. (Id. at ¶ 39; Docket No. 22 at ¶ 11). The Dean is then provided with the mean of the three MRC assessments for each faculty member to be used in his annual performance reviews of the faculty. (Docket No. 22 at ¶ 12). The MRC's assessments and ranking are only advisory to the Dean; Dean Keeler also makes his own independent evaluation of the professor's performance in the three categories. (Id. at ¶ 13; Docket No. 26 at ¶ 40). Additionally, at the conclusion of every semester, Dean Keeler and each individual professor is given a report from the University's Office of Measurement and Evaluation of Teaching (“OMET”) indicating how students evaluated their professors' teaching that semester. (Docket No. 22 at ¶ 15).

         Once Dean Keeler reviews the MRC's scores and rankings, the Dean determines how to allocate the salary pool provided by the Provost's Office for GSPIA faculty members. (Id. at ¶ 14). Professors then are informed of the findings of the MRC, Dean Keeler's personal evaluation of their performance, and their salary determinations, by letter from Dean Keeler. (Docket No. 26 at ¶ 42).

         Contained in the Faculty Handbook dated July 2002 (as updated November 2011) is the following information about salary increases:

Salary Increases Annual faculty salary increases are determined through procedures outlined in University Policy 07-09-01, Salary Increase. The size of the total pool of funds for salary increases is determined as part of the annual operating budget by the Chancellor, with the active participation of the University Planning and Budgeting Committee (UPBC), and subject to approval by the Board of Trustees.
The total pool for salary increases has the following four components: (1) maintenance of real salary, (2) merit increases, (3) equity adjustments, and (4) market adjustments. The portion of the total pool devoted to each of the four components is determined by the Chancellor, with the active participation of the UPBC, in response to needs for each purpose identified through the planning and budgeting system.
For additional information, refer to University Policy 07-09-01, (http://www.cfo.pitt.edu/policies/policy/07/07-09-01.html) Salary Increase.

(Docket No. 27-4 at 1 and 86) (emphasis in original).

         The University's Policy 07-09-01 (“Policy 07-09-01”), in place during the relevant time period, is titled CATEGORY: PERSONNEL; SECTION: Salary Administration; SUBJECT: Salary Increase; and EFFECTIVE Dated: September 16, 1994.” (Docket No. 27-7). It explains in relevant part:

Salaries at the time of initial hire are determined primarily by market factors. What follows is a set of policy recommendations to provide a framework governing annual salary increases for faculty and staff, to be applied within the Planning and Budgeting System (PBS).
These recommendations provide some flexibility for particular units, within the context of policy decisions made centrally. The size of the total pool of funds for increases and the allocation of funds to particular responsibility centers are centrally determined. The distribution of funds to individuals within each unit, however, is to a significant degree left to local determination.

(Id. at 1). Policy 07-09-01 further states in relevant part under “ALLOCATION OF SALARY INCREASE FUNDS TO RESPONSIBILITY CENTERS” concerning the “Maintenance of Real Salary, ” that “[e]ach unit will be allocated funds from the total pool to ensure the maintenance of real salary of each faculty or staff member performing satisfactorily.” Id. It further provides in relevant part under “DISTRIBUTION OF SALARY INCREASES TO INDIVIDUALS WITHIN UNITS, ” concerning the “Maintenance of Real Salary:”

1. Each faculty or staff member performing satisfactorily will receive a percentage increase of the size determined for that year for maintenance of real salary.
2. For faculty, satisfactory performance is defined as having fulfilled the "common responsibilities" of faculty as articulated in the 1988 Handbook for Faculty: The role of individual faculty members in supporting the mission of the University will depend on the specific missions of their departments or schools. All faculty members, however, have certain common responsibilities: to commit themselves fully to their teaching obligations, to meet all of their classes as scheduled, to be available during specified office hours for consultation with students, to evaluate student performance promptly and fairly, to participate in the development of the programs of their departments and schools and of the University as a whole, to engage in scholarly activities, and, as appropriate, to support the University in its goal to render public service. (p. 42)[.]
Criteria for satisfactory performance may be further specified for particular units, as jointly determined by the faculty and the head of the unit through collegial processes[.]

(Id. at 2). The Policy also states in relevant part under “NOTIFICATION OF SALARY INCREASES:” “At the time of notification of salary for the coming year, each continuing faculty or staff member will be informed in writing of the basis for his or her individual salary increase. Persons whose performance has been judged unsatisfactory must be informed of the specific reasons for that judgment.” (Id. at 3). The policy further states under “RECONSIDERATION OF SALARY DECISIONS:” “Procedures should be developed within each responsibility center through which individual faculty and staff members can request reconsideration of decisions related to aspects of their salaries[.]” Id. Both University Provost Patricia Beeson (“Provost Beeson”) and Dean Keeler testified at their depositions that although the ...


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