prepared a series of reports for President Reinhard's review. [SMF P 161]. The information she received did not cause President Reinhard to alter her decision.
Thereafter, Plaintiff instituted the instant action. In her amended complaint, Plaintiff advanced claims pursuant to 42 U.S.C. § 1981 (Count I), § 1983 (Count II), and §§ 1985 and 1986 (Count III), as well as Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq (Count IV). She also included a claim under the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. 951 et seq. (Count V), and state law claims for libel, slander, and invasion of privacy (Count VI).
Defendants filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b) and, on August 30, 1995, we granted the motion in part. We dismissed Counts I-III against Clarion and the employee Defendants insofar as Plaintiff sought monetary relief. In addition, we dismissed Plaintiff's Title VII claim (Count IV) against all Defendants except Clarion. Finally, we dismissed Plaintiff's PHRA claim (Count V) against all Defendants because Plaintiff failed to comply with he statutory prerequisites of that claim. Thus, the remaining claims and Defendants are as follows: Counts I-III against the employee Defendants in their official capacities, insofar as Plaintiff seeks equitable relief; Count IV against Clarion; and Count VI against Clarion and the employee Defendants in their official and individual capacities.
II. LAW AND DISCUSSION
A. Standard of Review
Summary judgment is appropriate "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 a judgment as a matter of law." Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). In reviewing the evidence, facts and inferences must be viewed in the light most favorable to the nonmoving party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, 553 (1986). Summary judgment must be entered in favor of the moving party "where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. . . ." Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552 (citations omitted).
When a moving party has carried his or her burden under Rule 56, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . ." Matsushita, 475 U.S. at 586-87, 106 S. Ct. at 1356, 89 L. Ed. 2d at 552 (citations omitted). The nonmoving party "must present affirmative evidence in order to defeat a properly supported motion for summary judgment," and cannot "simply reassert factually unsupported allegations contained in [the] pleadings." Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989)(emphasis in original)(citation omitted). However, "if the [nonmoving party's] evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986) (internal citations omitted).
B. Count I
In Count I, Plaintiff alleges a deprivation of her rights under 42 U.S.C. § 1981. Section 1981 forbids intentional discrimination based upon race in the creation and enforcement of contracts. See, e.g., Boykin v. Bloomsburg Univ. of Pennsylvania, 893 F. Supp. 400, 406 (M.D. Pa. 1995) (Muir, J.), aff'd, 91 F.3d 122 (June 12, 1996). Liability under section 1981 is personal in nature because it is premised on intentional discrimination. Id. "Conclusory allegations of generalized racial bias do not establish discriminatory intent." Id. (citing Flagg v. Control Data, 806 F. Supp. 1218, 1223 (E.D. Pa. 1992)). Here, as in Boykin, the record is devoid of evidence that the race of the Plaintiff played any part in the Defendants' actions with respect to her non-renewal. Accordingly, Defendants are entitled to summary judgment on Count I of the complaint.
C. Count II
In Count II, Plaintiff advances a claim pursuant to 42 U.S.C. § 1983.
Defendants maintain that they are entitled to summary judgment on this claim because, as a non-tenured public employee, Plaintiff did not have a protected property interest in her employment.
The Supreme Court has stated "to have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548, 561 (1972). "The existence of a property interest in employment is a question of state law and is determined by the court as a matter of law." McDonald v. McCarthy, 1990 U.S. Dist. LEXIS 11957, No. 89-319, 1990 WL 131393, *3 (E.D. Pa. Sept. 7, 1990), aff'd, 932 F.2d 960 (3d Cir. 1991) (citations omitted); see also Bishop, 426 U.S. at 344, 96 S. Ct. at 2077, 48 L. Ed. 2d at 690 ("the sufficiency of the claim to entitlement [to a property interest in employment] must be decided by reference to state law."). The employee Defendants argue that they are entitled to summary judgment on Count II because Plaintiff, as an at-will public employee, did not have a property interest in continued employment with Clarion.
It is undisputed that under Pennsylvania law public employees, such as the Plaintiff, are employees-at-will. See, e.g., Cooley v. Pennsylvania Housing Finance Agency, 830 F.2d 469, 471 (3d Cir. 1987). However, Plaintiff argues that she had a property interest in
the fair and proper application of the CBA [collective bargaining agreement] when considering her renewal. Because the CBA requires that probationary non-tenured faculty members be notified, in writing, of all the objectives required of them, and Dr. Elmore was never notified of the "fit" category, she was deprived of her procedural and substantive due process. Because the CBA required the committee to evaluate probationary non-tenured employees within the three categories listed in section XII, and the University was required to apply these categories exclusively to all past evaluations, Dr. Elmore was deprived of her due process as outlined in the CBA and guaranteed her through the Fourteenth Amendment. Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994).
[Pl.'s Br. in Opp'n at 23-24].
While Plaintiff's argument is far from a model of clarity, it appears that she is contending that she had a property interest in being reviewed for renewal exclusively on the factors listed in section XII of the CBA, and that if Defendants sought to use other factors she was entitled to notice of such factors. However, Plaintiff fails to establish how the CBA provides her with such a federally protected due process right to be evaluated only on the basis of the factors set forth therein. Thus, summary judgment will be granted in favor of the Defendants on Count II of the complaint.
D. Count III
In Count III, Plaintiff alleges that the Defendants conspired to deny her equal protection of the law in violation of 42 U.S.C. § 1985(2).
However, section 1985(2), which involves obstruction of justice and intimidation of witnesses, parties, or jurors, has no relevance here.
In her brief in opposition to summary judgment, Plaintiff addresses Count III as though it alleged a violation of 42 U.S.C. § 1985(3), which prohibits individuals from conspiring to interfere with another person's civil rights. We note first that Plaintiff made absolutely no attempt to amend her complaint to advance such a claim, even though Defendants' motion to dismiss and motion for summary judgment made her aware that her complaint contained a claim under section 1985(2).
In any event, Defendants would be entitled to summary judgment on a claim under section 1985(3) because Plaintiff has not introduced a shred of evidence that would support her theory of a conspiracy based on her race. The "evidence" upon which she relies is the fact that the Committee, Dr. Smith, Dean Duke, and President Reinhard "all participated directly in using, applying, and furthering the 'fitness'/'fit' category in Dr. Elmore's non-renewal for the November 1993 evaluation." [Pl.'s Br. in Opp'n at 26]. Apparently, Plaintiff is referring to the recommendations of the Committee and Dr. Smith, which indicate that Plaintiff was not reappointed, in part, because of her lack of "fit" within the Education Department. That argument lacks merit without some indication that use of the term "fit" was a code word for racial discrimination. Plaintiff has produced no such evidence.
E. Count IV
In Count IV, Plaintiff advances a claim under Title VII. She alleges that the decision not to renew her contract was the result of intentional discrimination based on her race. In addition, she maintains that Clarion has a facially neutral employment policy that results in a disparate impact toward minorities.
1. Disparate Treatment
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), the Supreme Court established the basic framework and burdens of proof in Title VII pretext actions.
First, the plaintiff must establish a prima facie case of discrimination by a preponderance of the evidence. Id. at 802, 93 S. Ct. at 1824, 36 L. Ed. 2d at 677. A prima facie case arises by showing that: (1) plaintiff is a member of a protected class; (2) plaintiff was qualified for the position; (3) plaintiff was discharged from or denied the position; and (4) nonmembers of the protected class were treated more favorably. Id.; St. Mary's Honor Center v. Hicks, 509 U.S. 502, 504-08, 113 S. Ct. 2742, 2746-47, 125 L. Ed. 2d 407, 415-16 (1993). However, the prima facie case is not rigid and should be adjusted to comport to the claims advanced and facts presented. Weldon v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990) (citation omitted).
If the plaintiff succeeds in proving a prima facie case, the burden shifts to the employer to "articulate some legitimate, nondiscriminatory reason" for its actions. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). If the defendant carries its "relatively light burden by articulating a legitimate reason for the unfavorable employment decision, the burden of production rebounds to the plaintiff, who must now show by a preponderance of the evidence that the employer's explanation is pretextual (thus meeting the plaintiff's burden of persuasion)." Id. (parenthetical in original). In order to establish pretext, and survive summary judgment,
the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either: (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.
Id. at 764 (citations omitted). We turn then to the application of these standards to Plaintiff's claim.
a. Prima Facie Case
Clarion first argues that Plaintiff cannot establish a prima facie case of racial discrimination because she cannot show that members of a non-protected class were treated more favorably. Specifically, Clarion points to Dr. Linda Payne who, for purposes of this action, is not a member of a protected class. Dr. Payne, like Plaintiff, was hired as a non-tenured Assistant Professor in the Education Department for academic year 1992-93. She too received low student evaluations and was not renewed after the 1993-94 academic year. Thus, Clarion contends, Plaintiff cannot establish that similarly situated non-protected faculty members were retained.
In response, Plaintiff offers a rambling argument that the criteria used by Clarion in determining whether the Plaintiff should have been renewed was improper. Plaintiff contends that the Defendants' consideration of her "fit" within the Education Department was in contravention of the collective bargaining agreement ("CBA"), which limits the criteria to: (1) effective teaching and fulfillment of professional responsibilities; (2) continuing scholarly growth; and (3) contribution to the university and community. As set forth below, the issue of whether the criteria set forth in the CBA were applied is not an issue with respect to Plaintiff's claim of racial discrimination. The issue is whether Plaintiff was subjected to intentional discrimination based on her race, not whether Clarion complied with the terms of the CBA.
Our review of Plaintiff's entire argument with respect to her prima facie case reveals only a single sentence that arguably addresses this point: "Dr. Perkins (PD 672), Dr. Tate (PD 351-459) and Dr. Watkins (PD 197-350) all indicated that this approach [use of the three factors listed in the CBA] has been consistently and exclusively used at Clarion University in the past with regard to faculty who were white." [Pl.'s Br. in Opp'n at 15].
However, Plaintiff's general reference to over 100 pages of Dr. Tate's deposition and over 150 page of Dr. Watkins' deposition is wholly inappropriate. "Judges are not like pigs, hunting for truffles buried in briefs. . . . A litigant who fails to press a point by supporting it with pertinent authority or by showing why it is a good point despite a lack of authority . . . forfeits the point." Carpenter v. Vaughn, 888 F. Supp. 635, 648 (M.D. Pa. 1994)(McClure, J.)(citations and internal quotation omitted). Accordingly, we do not credit Plaintiff's assertion with respect to the testimony of Drs. Tate and Watkins.
With respect to Dr. Perkins, the only statement by him (on page 672 of Plaintiff's documents) that is in any way related to this issue is as follows:
On the five occasions when I was evaluated I never saw the term "fit" or "compatibility" employed, nor to my memory was it a part of the evaluation process.