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BLOCH v. TEMPLE UNIV.

August 6, 1996

J. MATI BLOCH, Plaintiff,
v.
TEMPLE UNIVERSITY, et al., Defendants.



The opinion of the court was delivered by: ROBRENO

 EDUARDO C. ROBRENO, J.

 August 6, 1996

 Plaintiff alleges that defendants violated his constitutional rights and Pennsylvania state law in connection with defendant Temple University's decision not to grant him tenure. Defendants have moved for summary judgment asserting that plaintiff has not proffered legally sufficient evidence to support his claims. For the reasons set forth herein, defendants' motion will be granted as to counts II, IV and V of the second amended complaint and denied as to counts I and III.

 I. BACKGROUND *fn1"

 In the fall of 1989, plaintiff, then employed as a guest scientist at Brookhaven National Laboratory and as a visiting scientist at Princeton University, applied for a tenure track associate professor position at Temple University ("Temple"), to begin in the fall of 1990. (Plf.'s Counterstatement of Facts, doc. no. 34 at 1-2; App. Plf.'s Mem. Contra Defs.' Mot. Summ. J., doc. no. 34, Ex. 7) Plaintiff was hired by Temple and on October 17, 1990, was assigned laboratory and office space on the fourth floor of a Temple University building, Barton Hall. (Plf.'s Counterstatement of Facts, doc. no. 34 at 3-4) In addition to laboratories, the fourth floor of Barton Hall contained graduate student offices, Temple's physics lounge and a mechanical room. (Id. at 4)

 According to plaintiff, when he entered his laboratory, he found it "aging and decayed" and "in a state of extreme neglect and disrepair." *fn2" (Id. & n.9) By memo dated November 7, 1990, plaintiff immediately notified the physics department safety officer, defendant Martoff, the department chair, defendant Tahir-Kheli, the department's space committee and the professor who formerly supervised the laboratory of his findings. (Id. at 5) On November 15, 1990, plaintiff wrote to defendant Tahir-Kheli informing him again that he believed the lab constituted a safety hazard. (Id. at 6) Plaintiff contends that at his insistence, defendants Martoff and Tahir-Kheli reported the situation to university authorities. (Id. at 6 n.12)

 After inspecting the area at issue, Temple's biohazard control officer P.D. Forbes concluded that the area should be placed "off limits to anyone other than persons qualified in hazardous materials management" and that air flow from the fourth floor should be restricted. (Id. at 6-7) Stating that "an emergency has arisen with regard to the presence of hazardous waste materials," by memo dated November 19, 1990, defendant Tahir-Kheli instructed that the entire fourth floor of Barton Hall, including the physics lounge and the graduate student offices be closed. (Id. at 7) ENSI, an outside contractor specializing in the removal of toxic chemicals was hired by Temple to rectify the situation. (Id.) According to plaintiff, on February 13, 1991, large amounts of toxic materials and unidentified materials were removed from plaintiff's fourth floor laboratory. (Id.) Plaintiff states that the cleanup was not completed until August or September 1991, at which time the fourth floor of Barton Hall was reopened for renovations and other traffic. (Id. at 8)

 Plaintiff avers that his revelations concerning the conditions on the fourth floor of Barton Hall prompted hostile reactions from many of plaintiff's colleagues, including defendants. (Id. at 8-9) According to plaintiff, the ultimate result of this hostility was Temple's failure to extend him an offer of tenure. (See Id. at 9-13)

 As plaintiff states, the procedure for awarding tenure to members of Temple's faculty is governed by the terms of the collective bargaining agreement in place between the University and the faculty's exclusive collective bargaining agent, the Temple Association of University Professionals ("TAUP"). (See Pl.'s Mem. Contra Defs.' Mot. Summ. J., doc. no. 34 at 22-23) Under the collective bargaining agreement, associate professors, such as plaintiff, are appointed initially for a term of three years, followed either by the granting of tenure or termination with one year's notice. (See App. Ex. Supp. Defs.' Mot. Summ. J., doc. no. 32, Ex. 12) Tenure decisions are based on a judgment as to whether "an individual meets the accepted standards for (1) teaching; (2) scholarship, research or creative work; and (3) service within and outside the University appropriate to rank." (Id.)

 At Temple, initial consideration of tenure cases takes place at the departmental level. (Id.) Following action by the department, the department chair makes an independent recommendation and transmits it, along with the recommendation of the departmental committee, to the college level for consideration. (Id.) Following consideration at the college level, the college Dean makes an independent recommendation and then transmits all recommendations to the chair of the Council of Deans. (Id.) If all prior recommendations are in agreement, the chair of the Council of Deans must submit the recommendations to the Council of Deans for "information." (Id.) If there is disagreement among preceding recommendations, the chair must submit all materials relating to the tenure case to the Council of Deans for advice. (Id.) Any of the agencies of the University involved in the tenure process may initiate action for review of a tenure recommendation with the Council of Deans. (Id.)

 All tenure recommendations must be forwarded by the chair of the Council of Deans to the President of the University for transmittal to the Board of Trustees. (Id.) If tenure is denied, an appeal may be presented by the faculty member to the Personnel Committee of the Faculty Senate, which is then required to forward its recommendations to the appropriate officers of the University for transmittal to the Faculty Senate and the Board of Trustees. (Id.)

 Plaintiff contends that in October 1991, when plaintiff first applied for tenure and promotion to full professor within the University, P & P Committee chair, defendant Tahir-Kheli informed him that there was mounting opposition to his tenure due to plaintiff's insistence on proper remediation and appropriate overhaul of plaintiff's Barton Hall laboratory. (Plf.'s Counterstatement of Facts, doc. no. 34 at 11) Defendant Tahir-Kheli's warnings aside, on November 8, 1991, and November 11, 1991, the P & P Committee and the Departmental Tenure Committee respectively, voted to recommend plaintiff for tenure. *fn3" (Id. at 13-14) On December 18, 1991, the College Tenure Committee also voted in favor of plaintiff's tenure. (Id. at 14)

 According to plaintiff, on the afternoon of December 18, 1991, at the request of defendant Tahir Kheli, the P & P Committee held a meeting at which the Committee voted to request permission to reconsider plaintiff's tenure and promotion. (Id. at 15) On January 20, 1992, the Tenured Faculty Committee voted not to reconsider their earlier positive recommendation for plaintiff's tenure. (Id. at 16) Plaintiff states that by February of 1992, all reviewing bodies had voted in favor of plaintiff's tenure -- only Temple's Board of Trustee's had not yet considered plaintiff's tenure application. (Id. at 17)

 In April 1992, defendants Auerbach, Martoff and Tahir-Kheli and defendants Intemann, Larsen and Mihalisin wrote letters to Lois Cronholm, then Dean of the College of Arts and Sciences, requesting the remand of plaintiff's tenure review file to the physics department for reconsideration. (Id. at 17-18) In their letters, defendants cited delay in the construction of plaintiff's laboratory, plaintiff's problematic relationships with his research assistants and students, as well as other University faculty and staff, plaintiff's failure to submit a grant proposal and plaintiff's refusal to spend his start-up funds as justification for their request. (Id. at 18-22) Plaintiff contends that defendants' alleged justifications for their request were meritless. (Id.)

 According to plaintiff, on the basis of defendants' letters, Dean Cronholm wrote Acting Provost Ericksen requesting that plaintiff's tenure file be remanded to the physics department. (Id. at 22-23) Acting Provost Ericksen complied with Dean Cronholm's request and on April 24, 1992, the physics department voted against tenure for plaintiff. (Id. at 23) At approximately the same time, plaintiff's start-up funds were frozen and work on his laboratory was halted. (Id.)

 Determining that "the Physics Department has acted with capriciousness, undue speed and ambiguity" in its remanding of plaintiff's tenure file, on April 28, 1992, the College Tenure Committee "strongly voted" to uphold its grant of tenure to plaintiff. (Id.) Despite the College Tenure Committee's positive recommendation, however, Dean Cronholm and the full Council of Deans recommended against plaintiff's tenure. (Id. at 23-24)

 Plaintiff states that in early June 1992, he had a telephone conversation with Temple's new provost James England. (Id. at 24) Plaintiff contends that during their conversation, Provost England promised plaintiff that if plaintiff agreed to defer his tenure consideration for one year, renovations on his laboratory would resume promptly and consideration of his tenure, which would exclude plaintiff's 1991-1992 review, would be a matter of new impression. (Id.) On June 15, 1992, plaintiff signed a letter agreement with Temple deferring his tenure review until the 1992-1993 academic year. (Id.) TAUP, the faculty's exclusive bargaining agent, was not a party to this agreement. According to plaintiff, defendant Temple agreed that the outside references from plaintiff's 1991-1992 tenure review would be utilized the following ...


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