The opinion of the court was delivered by: MUIR
I. Introduction and Background.
This order relates only to Defendants Bloomsburg University, Dr. Robert Parrish, Dr. Curtis English, Dr. Harry Ausprich, Margaret Manning, Irvin Wright, John Walker, Timothy Downs, Sallie Samsel, and Lt. Deborah Barnes (hereinafter the "Commonwealth Defendants").
On March 2, 1994, Plaintiffs Michael R. Boykin, Margaret L. Boykin, and Aaron M. Boykin filed a complaint in this Court against several Defendants. On May 9, 1994, the Boykins filed a virtually identical complaint based upon the same facts in the Court of Common Pleas of Columbia County, Pennsylvania, which was removed to this Court on May 31, 1994. The two cases were consolidated on June 15, 1994.
On February 1, 1995, the Commonwealth Defendants filed a motion for summary judgment, a brief in support thereof, a statement of material facts, and two volumes of documents in support of their motion.
On February 22, 1995, we issued an order in which we granted the Boykins' motion for a substantial extension of time, until March 24, 1995, to respond to the Commonwealth Defendants' motion for summary judgment as well as other motions for summary judgment filed by other Defendants in this case. The Boykins subsequently obtained an additional 3-week enlargement of time to respond to the Commonwealth Defendants' motion for summary judgment as a result of a then pending motion for disqualification of the undersigned judge filed in this case. Similarly, in order No. 2 of April 19, 1995, we reluctantly allowed the Boykins an additional 15 days to respond to the Commonwealth Defendants' motion for summary judgment. In our order of April 19, 1995, we stated that "the Boykins shall receive no further extensions of time absent exigent circumstances." In Order No. 3 of May 3, 1995, we allowed the Boykins an additional extension of time within which to respond to the Commonwealth Defendants' motion for summary judgment. Furthermore, on May 10, 1995, we granted the Boykins' "Emergency Motion For Brief Extension Of Time," until May 18, 1995, within which to file a response to the Commonwealth Defendants' motion for summary judgment.
On May 18, 1995, the Boykins finally filed a brief in opposition to the Commonwealth Defendants' motion for summary judgment and a so-called response to the Commonwealth Defendants' statement of material facts. The Boykins also filed individual declarations of Michael Boykin, Margaret Boykin, Howard B. Johnson, and George Mitchell as well as a binder of documents comprised of miscellaneous documents following a declaration of George Mitchell with the caption on it of the case of Mitchell vs. Bloomsburg University, et al., 93-1870 (M.D. Pa.)(McClure, J.). On May 25, 1995, the Commonwealth Defendants filed a reply brief.
The individual declarations of Michael Boykin, Margaret Boykin, and George Mitchell were defective because they were not sworn to and were unsigned.
On May 22, 1995, we issued an order in which we deemed withdrawn Pursuant to Local Rule 7.5 the Boykins' "Motion To Supplement Record" because they had failed to file a brief in support of their motion.
On May 26, 1995, the Boykins filed a "Motion To Lodge Documents." In this motion, the Boykins requested leave to file corrected declarations as well as additional documents in opposition to the Defendants' motions for summary judgment. Along with the motion, the Boykins filed corrected declarations of Michael Boykin, Margaret Boykin, George Mitchell, and Howard Johnson. In addition to the declarations, the Boykins also filed two volumes of other documents which were not included in their original responses. Volume I is comprised largely of transcripts relating to the criminal proceedings against Michael Boykin from late 1992 and 1993. Volume II contains nothing but 1992 and 1993 newspaper articles and a portion of one transcript from the 1993 trial of Michael Boykin.
In Order No. 1 of May 30, 1995, we required the parties to brief the issue raised in the Boykins' motion to lodge documents. On June 5, 1995, the Boykins filed a brief in support of their motion to lodge documents. On June 7, 1995, the Commonwealth Defendants filed a brief in opposition to the Boykins' motion to lodge documents. On June 12, 1995, we denied the Boykins' emergency motion filed on the date their reply brief was due for an extension of time within to file a reply brief. On June 13, 1995, we issued an order in which we granted the Boykins' motion to lodge documents. Therefore, the Commonwealth Defendants' motion for summary judgment became ripe for disposition on June 13, 1995.
The individual declarations of Michael Boykin, Margaret Boykin, and George Mitchell are based largely on speculation, hearsay, and otherwise inadmissible opinion. The declaration of George Mitchell largely does not even concern the Boykins. Where it does, it expresses Mitchell's opinions and speculation and fails adequately to provide a foundation for a number of his assertions. Moreover, George Mitchell's declaration does not even address the issues raised in this case. The individual declaration of Howard Johnson suffers from similar deficiencies and also bears no relation to the issues raised in this case.
On February 1, 1995, the Commonwealth Defendants filed a statement of material facts in accordance with Local Rule 7.4. The Boykins' response to the Commonwealth Defendants' statement of material facts is hopelessly defective. This Court's orders of April 19, 1995, May 3, 1995, and May 10, 1995, granting the Boykins' last three motions for extensions of time, each provided that the Boykins' response to the Defendants' statements of material facts comply strictly with Local Rule 7.4.
All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.
This Rule furthers the purpose of the summary judgment process in identifying material facts generally in dispute for which a trial is necessary. A non-moving party must adduce more than a mere scintilla of evidence in its favor and cannot simply reassert factually unsupported allegations contained in its pleadings. The failure of the non-moving party to produce such affirmative evidence to create issues in dispute material to the claims presented will result in the grant of judgment in favor of the moving party. See Hankins vs. Temple University, 829 F.2d 437, 440 (3d Cir. 1987).
The Court of Appeals for the Third Circuit has held that the non-moving party is obligated under these rules to identify those facts of record which would contradict the facts identified by the movant. A district court judge is not required to search through the record for facts which might support the Respondents' claim. Allowing the non-moving party to rely on denials of those facts by referring to unidentified evidence provides an unworkable and illogical approach contravening the directive of Rule 56(e) requiring the non-moving party to set forth specific facts showing that there is a genuine issue for trial. Childers vs. Joseph, 842 F.2d 689 (3d Cir. 1988).
Despite these requirements, the Boykins' statement of material facts is largely unresponsive to the Commonwealth Defendants' statement, provides additional irrelevant information, and routinely fails to provide any citation to the record for any of the facts they do allege. Moreover, the Boykins do not provide affirmative evidence to support their contentions. The Boykins' response is filled with unsupported speculation and hearsay. As a result, the Boykins should be deemed to have admitted all of the Commonwealth Defendants' material facts. To adopt any other approach places an undue burden on the Court and defense counsel to examine each page of the Boykins' documentation in order to determine whether the Boykins have created any dispute as to any material facts. This function and duty is one which the Boykins' counsel is obligated to fulfill.
Nevertheless, to the extent practicable, we did attempt to discern the Boykins' response to the Commonwealth Defendants' statements of material facts as well as search the record for facts which might support the Boykins' claims.
II. Facts Which Are Generally Not in Dispute.
1. Dr. Harry Ausprich was appointed President of Bloomsburg University in the summer of 1985 and remained in that position until August 31, 1993, when he resigned.
2. As President of Bloomsburg University, Ausprich had the final authority for all personnel decisions. His responsibilities included working with the faculty and staff, approving promotions, appointments, reappointments, tenure, discipline, and other personnel matters.
3. Dr. Robert Parrish is and has been the Vice President for Administration at Bloomsburg University since 1982. In that capacity, he reports to the President of the University and oversees the Director of Human Resources, the Director of Physical Plant, the Director of Budget, the Director of University Police and Director of several other Departments within the University community.
4. Parrish is responsible for all general administrative functions of the University, including finance and accounting, budgeting, security, maintenance, and personnel and labor relations.
5. During the Fall of 1991, the University authorized a search for a new Director of University Police to fill a then vacant position.
6. Margaret Boykin applied for the position of Director of University Police following the announcement of a vacancy in that office in September of 1991.
8. The University offered the position to Margaret Boykin by letter dated February 14, 1992, with a starting date of April 6, 1992. Margaret Boykin declined the offer based upon what she termed "unforeseen personal circumstances." As the supervisor of that position, Parrish did not wish to abandon Margaret Boykin as the University's selection because he thought she was ideally suited for the job. Therefore, he continued to pursue her appointment until such time as it was agreed that she would accept the position but not start working until November 2, 1992. The University was willing to hold the position open for almost seven additional months so that the position could be filled by Margaret Boykin.
9. Following the University's offer of employment, Margaret Boykin declined the appointment by letter dated March 16, 1992.
10. Bloomsburg University continued to seek the employment of Margaret Boykin following her March 16, 1992, rejection of the position.
11. After a conversation between Margaret Manning, Director of Human Resources and Labor Relations at Bloomsburg University, and Margaret Boykin on May 29, 1992, Margaret Manning offered in a letter dated May 29, 1992, the appointment of Margaret Boykin to the position of Director of University Police to commence November 2, 1992, at an annual salary of $ 45,000.
12. Margaret Boykin, subsequent to the May 29, 1992 letter, accepted the position of Director of University Police at Bloomsburg University.
13. A decision was made by Parrish that because the University was asking Margaret Boykin to relocate her family from Chicago to Bloomsburg, the University would make every attempt to place her husband in a position at the University. Accordingly, it was arranged that Michael R. Boykin would be provided a position as a grounds crew worker at the University without engaging in any competitive process for the position.
14. Margaret Boykin and Michael Boykin are African-Americans.
15. Margaret Boykin assumed the position of Director of Law Enforcement on November 2, 1992.
16. Michael Boykin began his employment as a grounds crew worker on November 3, 1992, and was notified of the terms of the appointment by a letter dated November 9, 1992.
17. Michael Boykin's position was covered by the Collective Bargaining Agreement between the Commonwealth of Pennsylvania and the American Federation of State, County, and Municipal Employees ("AFSCME").
18. Michael Boykin's position as grounds crew worker was subject to an initial six month probationary period under the provisions of the AFSCME Collective Bargaining Agreement and the State System of Higher Education Merit System which began to run on November 3, 1992.
19. During the probationary period, Michael Boykin was exempted from the Collective Bargaining Agreement's just cause provisions for discipline including suspension and termination under Article 29, Section 5 of the Master Agreement.
20. In December of 1992, Lt. Deborah Barnes was working for the University Police Department as a Police Officer and as an investigator. Barnes's supervisor was Margaret Boykin, the wife of Michael Boykin.
21. On December 18, 1992, upon arrival at work at 7:55 p.m., Barnes was given a message to go to the Grounds Crew Trailer immediately.
22. Upon arriving at the trailer, Barnes encountered University Police Sergeant Jack Pollard, Frank Curran, David Fenton and Virginia McAfee. McAfee appeared to be shaking, was rambling, and refused to say what had happened.
24. Barnes spoke with Frank Curran who stated he got a Phone call at home from McAfee, that she said she was in trouble and needed help, and that it was Mike.
25. Curran also told Barnes that when he arrived, he found McAfee in a state of disarray and that her slip and stockings were torn. He stated he found a dark velvet "skirt" and gave it to McAfee with which to cover herself.
26. McAfee stated that she did not want to go to the hospital and did not want the Women's Center called. McAfee stated she was unclear as to what happened and said that things got a little out of hand and she wanted it to go away. McAfee also stated that she was the victim.
27. When McAfee left the trailer at approximately 10:30 - 11:00 p.m., Barnes gave McAfee a card with her office and home phone numbers on it in the event she wanted to talk about what had occurred.
28. At approximately 11:00 p.m., Barnes met with University Police Officers at the scene. They decided to call Vice President Parrish to discuss the situation.
29. Barnes normally reported to the Director of Law Enforcement, Margaret Boykin. However, Margaret Boykin had told Barnes in late November of 1992 that Barnes should use her discretion when and if Dr. Parrish, Margaret Boykin's supervisor, should be called in on a matter. Barnes called Dr. Parrish, whom she had answered to on a regular basis while she was Acting Chief of Police, because he was next in line and Barnes immediately perceived a potential conflict if she called Margaret Boykin with a report that her husband was identified as participating in some type of possibly assaultive conduct which required further investigation.
30. On December 18, 1992, Parrish first learned of the event that occurred on campus involving an unauthorized grounds crew Christmas party, Virginia McAfee and Michael Boykin.
31. Parrish came to the University Police Department at 11:40 p.m. at which time the officers told Parrish what they knew about the situation.
32. The following morning at 10:00 a.m., Barnes spoke to Dr. Parrish and expressed to him personal concerns about a possible conflict with the University Police Department handling this matter because Margaret Boykin was the Director of the Department. Barnes spoke about the possibility of the State Police taking over the investigation. Parrish stated that he had not yet spoken to the President, that he wanted to talk to Michael and Margaret Boykin and that they should hold off contacting the State Police until he could do this.
33. At 10:45 a.m., Barnes contacted McAfee by telephone. McAfee seemed depressed and stated she was thinking things over and wanted to do the right thing. McAfee said she did not go to the hospital but did call the Women's Center last night.
34. Barnes then spoke briefly with Parrish who told her that he had spoken to Michael Boykin about the events of the prior night. Thereafter, at about 11:30 a.m., Barnes called McAfee back to determine what she had done with her clothing from the night before. She stated they were on her bedroom floor. Barnes asked her to place them in a brown paper bag and seal it with tape until McAfee determined what she was going to do.
35. Barnes's purpose in requesting McAfee to secure the clothing was to attempt to preserve the evidence for testing and further proceedings in the event McAfee decided to pursue the matter.
36. On December 20, 1992, at approximately 1:00 p.m., Barnes received a message from the University Police Department to call a woman to whom Barnes had been talking. Barnes assumed it was McAfee and called her at her home. McAfee indicated she was ready to talk but needed some questions answered first. Accordingly, Barnes made arrangements to go to McAfee's home.
38. McAfee asked Barnes what all her options were and whether Barnes thought anything could be done and whether it would be kept confidential. McAfee had a number of questions and stated that she knew she had to do something because she could not let this happen to someone else. McAfee talked at length about what happened the day and evening of December 18, 1992.
39. In describing the events, McAfee told Barnes that when she got in the truck that night, Michael Boykin said or did something that scared her. McAfee said everything was a blur but that she remembered trying to start the truck, screaming, hearing her clothes rip, getting out of the truck and running to the maintenance building where she called Frank Curran.
40. McAfee said she was afraid that the matter would be swept under the rug because of the position held by Michael Boykin's wife. McAfee also said she was concerned for her safety because she had identified Michael Boykin as the perpetrator. She gave Barnes the brown bag with her clothes in it which Barnes took and placed in a locker where she believed it would be secure.
41. On Monday, December 21, 1992, at 9:45 a.m., Barnes went with Parrish to meet with McAfee who told Parrish the same account of the incident that she had told Barnes the previous day.
42. Later that day, Parrish and Barnes discussed turning the investigation over to the State Police. Parrish then directed Barnes to turn the investigation and evidence previously collected over to the State Police which was done at about 2:30 p.m.
43. After turning the investigation over to the State Police, the direction of the investigation was out of Barnes's hands and she did not have involvement in the investigation of the case nor in the decision to initiate criminal charges against Michael Boykin.
44. At no time did Barnes have any reason to believe McAfee was not truthful when recounting the events of December 18, 1992.
45. Although McAfee was not specific at the onset of the investigation about what had happened, it was clear to Barnes by McAfee's actions that some type of assaultive behavior had occurred. Barnes's training indicated that it is not unusual for a victim of an assault, especially a sexual assault, to try to deny the event or even block it out of her mind. Given the statements by McAfee, her appearance and her actions, it appeared that this could very well have been the case. The sole reason an investigation into the matter occurred was to determine if a crime had occurred.
46. Barnes did not have any involvement in any personnel decision regarding Michael Boykin at the University.
47. Parrish did not, at any time, agree with any other University employees or officials to fabricate any facts concerning Michael Boykin, did not agree to permit such to be done, and does not know of such being done.
48. To the best of Parrish's knowledge, all information he received concerning Virginia McAfee and Michael Boykin was true.
49. Michael Boykin was notified by letter dated December 21, 1992, that he was suspended from his employment as a grounds crew worker effective December 22, 1992.
50. Parrish caused the letter of suspension pending investigation of the December 18, 1992, incident to be delivered to Michael Boykin.
51. Michael Boykin met with Parrish on December 19, 1992, and December 22, 1992, and discussed the incident of December 18, 1992, giving rise to Michael Boykin's suspension.
52. There were allegations made that on December 18, 1992, Michael Boykin had participated in taking a University truck off campus to the State Liquor Store after working hours in order to obtain alcoholic beverages for the Christmas party on University grounds against University policy.
54. Margaret Manning was away from the University at the time of the Christmas party incident on December 18, 1992. The first time Manning heard of Michael Boykin's suspension and the incident ...