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KRAEMER v. FRANKLIN & MARSHALL COLLEGE

July 9, 1996

ROSS S. KRAEMER, Plaintiff
v.
FRANKLIN AND MARSHALL COLLEGE, Defendant



The opinion of the court was delivered by: HUYETT

 HUYETT, J.

 JULY 9, 1996

 On November 21, 1995, a jury found defendant Franklin & Marshall College ("F&M") liable for age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621-634 (1996) ("ADEA") after a six day trial and nine hours of deliberation. In answering the Jury Interrogatories submitted to them by the court, the jury calculated an award of $ 73,456.00 for back pay and $ 60,000.00 for front pay in the event that the court found instatement not feasible. The court must now determine whether to award plaintiff Ross S. Kraemer "(Kraemer") instatement or front pay as compensation for future damages.

 For the reasons stated in the accompanying Memorandum, the court finds that instatement of Kraemer to the tenure track position in the Department of Religious Studies at F&M is not feasible. Therefore, the civil judgment order entered in this action on November 28, 1995 will be amended to include an award of $ 60,000.00 for future damages.

 I. BACKGROUND

 In September 1993, F&M advertised for a tenure track position in Biblical Studies in the Department of Religious Studies beginning in the Fall 1994. At the time of the search, the Department of Religious Studies was comprised of three tenured or tenure track faculty members, Joel Martin, Annette Aronowicz and Thomas Hopkins, who was chairman of the department. F&M received approximately 200 applications for the tenure track position in Biblical Studies, including the applications of Stephen Cooper (age 37) and Kraemer (age 47).

 Professors Martin, Aronowicz, and Hopkins each reviewed the applications and eventually selected his or her top four candidates to be interviewed on campus. The three professors discussed their choices and unanimously agreed on a list of four candidates: Stephen Cooper, Ted Pulcini, Amy Wordelman and Ross Kraemer. After further interviews, Cooper and Kraemer were the two semi-finalists. It was undisputed that both Cooper and Kraemer were qualified for the position. The members of the Department voted two to one to select Stephen Cooper for the position, rather than Kraemer, with Professors Martin and Aronowicz voting for Cooper and Professor Hopkins voting for Kraemer. In accordance with the F&M's requirements, Professor Hopkins informed Dean Susanne Woods of the vote. Dean Woods ordered an affirmative action review because a younger, less experienced man had been chosen over an older, more experienced woman. Dean Woods also conducted an investigation of her own by speaking with all three faculty members of the Department of Religious Studies. Ultimately, Dean Woods concluded that the department had legitimate, nondiscriminatory reasons for selecting Cooper rather than Kraemer and she offered the tenure track position in Biblical Studies to Cooper.

 Upon learning that the tenure track position was offered to Cooper, Professor Hopkins sent a letter of resignation as chairman of the Department of Religious Studies citing objections to the process by which Cooper was selected and inappropriate considerations of age and sex by Professors Martin and Aronowicz. Professor Hopkins stated that Professor Martin selected Cooper because he did not "want to be the youngest person in the department" and Professor Aronowicz selected Cooper because she disagreed with Kraemer's feminist-based methodology of religious history.

 Kraemer filed this action against F&M alleging age discrimination in violation of the ADEA, sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), as amended, and age and sex discrimination in violation of the Pennsylvania Human Relations Act, 43 Pa. C.S.A. § 951-963 (1996).

 II. DISCUSSION

 A. INSTATEMENT OR FRONT PAY

 Although reinstatement/instatement ("instatement") is the preferred remedy to avoid future lost earnings, the United States Court of Appeals for the Third Circuit has recognized that instatement may not be feasible in all cases. See Squires v. Bonser, 54 F.3d 168, 173 & n.8 (3d Cir. 1995); Maxfield v. Sinclair Int'l, 766 F.2d 788, 796 (3d Cir. 1985), cert. denied, 474 U.S. 1057, 88 L. Ed. 2d 773, 106 S. Ct. 796 (1986); Ellis v. Ringgold Sch. Dist., 832 F.2d 27, 30 (3d Cir. 1987), cert. denied, 494 U.S. 1005, 108 L. Ed. 2d 475, 110 S. Ct. 1298 (1990). Instatement is not feasible if the relationship between the parties has been so damaged by animosity as to make instatement impractical or if there is no position available in which to instate the plaintiff at the time of the judgment. See Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1103 (3d Cir. 1995); Maxfield, 766 F.2d at 796. *fn1" The exact position which the successful plaintiff was unlawfully denied or removed from need not be available for instatement to be feasible, but a substantially comparable position must be available for the court to order instatement. See Sinclair v. Insurance Co. of North America, 609 F. Supp. 397, 400 (E.D. Pa. 1984) (court awarded reinstatement to successful ADEA plaintiff where defendant agreed to reinstate plaintiff in the event of an adverse verdict to a comparable position for which plaintiff is qualified and plaintiff stated he would accept reinstatement to comparable position), aff'd, 782 F.2d 1029 (3d Cir. 1986). If instatement is not feasible, the court should award the alternative remedy of front pay. Berndt v. Kaiser Aluminum & Chem. Sales, Inc., 604 F. Supp. 962, 966 (E.D. Pa. 1985). In determining whether to grant instatement, the court should take into consideration the ADEA's purpose to make victims of discrimination whole by restoring them to the economic position they would have occupied but for the unlawful conduct of their employer. See Starceski, 54 F.3d at 1103; Maxfield, 766 F.2d at 796. The decision to grant reinstatement or its alternative, front pay, is within the discretion of the district court. See Maxfield, 766 F.2d at 796 ("Since reinstatement is an equitable remedy it is the district court that should decide whether reinstatement is feasible.").

 Kraemer argues that instatement is the proper remedy in this case and that there are several ways F&M can instate her. First, Kraemer argues that she can fill the tenure-track position vacated by Professor Hopkins when he retires at the end of the 1995-1996 academic year and F&M can either use visiting professors or add an additional tenure-track position in the Department of Religious Studies if it desires to continue to offer courses in Asian Studies and Asian religions, which she is admittedly not qualified to teach. Second, Kraemer argues that F&M can choose not to renew Cooper's one year contract which expires on June 30, 1996 and replace him by instating her. Kraemer states that even if replacing Cooper with herself were characterized as "bumping" an incumbent to instate the victim of discrimination, such action has been held to be an appropriate remedy. According to Kraemer, the court need only order that she be instated to a tenure-track position in the Department of Religious Studies and allow F&M to determine which option it will utilize.

 F&M contends that instatement is not appropriate because there is no position available in which to instate Kraemer at F&M. In support of this contention, F&M argues, first, that it should not be required to "bump" or fire Cooper, an innocent third party, to instate Kraemer. Second, F&M argues that it should not be required to create a fifth tenure track position in the Department of Religious Studies which it would be required to do by instating Kraemer and continuing to offer courses on Asian Studies and Asian religions. Lastly, F&M acknowledges that Professor Hopkins is retiring at the end of the 1995-1996 academic year thereby making a tenure track position available in the Department of Religious Studies. However, F&M argues that since Professor Hopkins taught courses on Asian Studies and Asian ...


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