and that such violation is reasonably related to prior discriminatory acts. Jewett, 653 F.2d at 91-93.
Since moving to Harrisburg in October, 1993, plaintiff had practically no contact with Petrosky or anyone else in Pittsburgh. In fact, plaintiff's own deposition testimony reveals that after February, 1994, her interactions with Petrosky "were minimal" as she did most of the consulting work in Harrisburg. Appendix in Support of Defendant Petrosky's Motion for Summary, Exhibit B, Deposition of Lori R. Stilley, February 5, 1996 at p. 68. Furthermore, the only alleged "objectionable" conduct by Petrosky during the limitations period, was during a phone call when Petrosky allegedly said to Ms. Stilley: "I need you; . . . I'm counting on you to do this work. . . ." Id.
The Court of Appeals for the Third Circuit has instructed that "isolated or sporadic incidents of discrimination, even if intentional, are not sufficient to establish the requisite pattern" necessary to prove a continuing violations theory. Jewett, 653 F.2d at 91. After considering the facts of record, and giving plaintiff the benefit of all reasonable inferences, the Court finds that plaintiff has not shown that during the limitations period she was harassed or subjected to an abnormal working environment.
Accordingly, not being able to rely on the continuing violations theory, plaintiff's Title VII claims of hostile environment are untimely and barred by 42 U.S.C. § 2000e-5(e).
B. Quid Pro Quo Sexual Harassment claims
To prevail under the quid pro quo harassment theory, plaintiff's claim must meet a five-part test: (1) she was a member of a protected class; (2) she was subjected to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) submission to the unwelcome advances was an express or implied condition for receiving job benefits or that refusal to submit to the supervisor's sexual demands resulted in a tangible job detriment; and (5) respondeat superior liability exists. Egli v. Stevens, 1993 U.S. Dist. LEXIS 6162, 1993 WL 153141 (E.D. Pa. 1993), aff'd without opinion, 17 F.3d 1429 (3d Cir. 1994).
Although unclear from the Complaint, based on Plaintiffs' Brief in Opposition to Defendants' Summary Judgment, it appears that plaintiff's quid pro quo claims are based on three occurrences: (a) Lori Stilley's exclusion from the ADL Project extension; (b) Petrosky's alleged sabotage of the April 14, 1994 overview; and (c) Lori Stilley's ongoing exclusion from publishing the book about the ADL Project.
Because she was acting as a student, any alleged "sabotage of the April 14, 1994 overview" is not a proper subject for a Title VII analysis due to the lack of an employer-employee relationship;
therefore, the Court will focus only on the two remaining contentions: that plaintiff was excluded from the ADL Project extension and that her ongoing exclusion from publishing a book on the ADL Project amounts to quid pro quo harassment.
1. Exclusion from the ADL Project extension.
Plaintiff alleges that Petrosky fired her from the ADL Project in retaliation for her refusal to succumb to his alleged advances. However, Dr. Stephen Koziol testified in his deposition that the amount of funding provided for the extension did not permit the University to retain the original full staff and that Koziol "took a central role" in determining the staffing needs for the extension and making recommendations about personnel to be retained. Appendix to Statement of Undisputed Material Facts in Support of the University's Motion for Summary Judgment, Exhibit 4, Deposition of Stephen Koziol, p. 165.
"In order to defeat summary judgment when the defendant answers the plaintiff's prima facie case with legitimate, non-discriminatory reasons for its action, 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. Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994) (citations omitted). Furthermore, a plaintiff's general and conclusory "allegations alone are insufficient to establish a material issue of fact." Sola v. Lafayette College, 804 F.2d 40, 45 (3d Cir. 1986).
The Court finds that plaintiff has failed to point to any evidence from which a factfinder could reasonably either disbelieve the University's articulated legitimate reasons for excluding plaintiff from the ADL Project extension or believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the University's action in not rehiring plaintiff.
2. Exclusion from Publishing the Book about the ADL Project.
In support of her prima facie case, Plaintiff submits six of her own affidavits. In Affidavit 6, she states that one of the reasons for accepting employment on the ADL Project was to advance her academic and professional career. Affidavit, # 6. Furthermore, in her brief, plaintiff states that "it is axiomatic in the world of academics that one must 'publish or perish'." As discussed above, a plaintiff's general and conclusory "allegations alone are insufficient to establish a material issue of fact." Sola v. Lafayette College, 804 F.2d 40, 45 (3d Cir. 1986).
The record contains nothing more than mere speculation on the issue of whether Plaintiff knew a textbook would be written following the ADL Project. Plaintiff has failed to point to any evidence from which a factfinder could reasonably believe that the prospect of publishing a book was an express or implied benefit of working on the ADL Project. Plaintiff's quid pro quo allegations must be dismissed because the record does not provide sufficient factual support for them.
For the reasons discussed, the University's motion as to Count V will be granted.
F. Count VI - 42 U.S.C. § 1983 against Petrosky
Section 1983 provides a civil remedy for acts taken under color of law that deprive "any citizen of the United States or person within the jurisdiction thereof" of "rights, privileges or immunities secured by the Constitution and laws." 42 U.S.C. § 1983.
In Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985), the Supreme Court ruled that the statute of limitations for § 1983 actions is the limitations period for the relevant state's personal injury statute. Because the instant case arose within the Commonwealth of Pennsylvania, the Court must apply the two-year statute of limitations set forth in 42 Pa. C.S.A. § 5524(2).
The Court of Appeals for the Third Circuit in Bougher v. University of Pittsburgh, 882 F.2d 74 (3d Cir. 1989), held that Pennsylvania's personal injury statute of limitations also applies to Title IX claims. Thus, plaintiff's claims under § 1983 and Title IX are governed by Pennsylvania's two-year statute of limitations.
Petrosky contends that this action was filed more than two years after the last alleged incident of sexual harassment and, thus, is barred by the applicable statute of limitations. The theory of plaintiffs' case against Petrosky, however, is not simply that Lori R. Stilley was sexually harassed by him, but that Petrosky has engaged, and continues to engage, in retaliatory conduct towards Lori R. Stilley. To prove this, plaintiffs assert they will establish, inter alia, that Petrosky has interfered with Lori R. Stilley's educational pursuits at the University of Pittsburgh, has damaged her academic reputation, and has denied Lori R. Stilley certain benefits of employment including, but not limited to: "(a) denial of professional credit for work on the project as a research associate; (b) denial of the opportunity to use her work on the project to satisfy her dissertation requirement; (c) denial of the opportunity to benefit from publishing her work on the project in her capacity as research associate; and (d) forcing her to start over on her dissertation, and change the subject of her dissertation." Complaint at P 89.
Accordingly, the Court finds that there is sufficient record evidence that the alleged violations by Petrosky of plaintiff's constitutional rights continued into the limitations period. Defendant Petrosky's motion for summary judgment on Count VI will be denied.
G. Count VII - 42 U.S.C. § 1983 against the University
In support of its motion for summary judgment on Count VII, the University argues: "in order to state a claim under 42 U.S.C. § 1983, a plaintiff must allege a violation of some identifiable constitutionally protected interest. . . . Plaintiff makes no claims that any of her rights have been violated distinct from her sexual harassment claims. . . ." University's Brief, at 16. In Stoneking v. Bradford Area School District, the Court of Appeals for the Third Circuit, citing cases dating from 1952, held that the right to be free from an invasion of personal security was clearly established by 1980. 882 F.2d 720, 726-27 (3d Cir. 1989), cert. denied, 493 U.S. 1044 (1990) (citations omitted). Consistent with this established law, plaintiff Lori Stilley's allegations in this case rise to the level of violations of clearly established constitutional rights. However, notwithstanding the fact that plaintiff's Complaint identifies a violation of a clearly established constitution right, the University's motion for summary judgment as to Count VII will be granted, as plaintiff's § 1983 claims are subsumed by Title IX by virtue of the Sea Clammers doctrine.
In Middlesex County Sewerage Authority v. National Sea Clammers Association, the Supreme Court held: "When 'a state official is alleged to have violated a federal statute which provides its own comprehensive enforcement scheme, the requirements of that enforcement procedure may not be bypassed by bringing suit directing under § 1983." 453 U.S. 1, 20 (1981).
To date, the Court of Appeals for the Third Circuit has addressed twice the applicability of the Sea Clammers doctrine to cases in which a plaintiff asserted claims under Title IX and § 1983. See Williams v. School Dist. of Bethlehem, 998 F.2d 168 (3d Cir. 1993), cert. denied, 510 U.S. 1043, 114 S. Ct. 689, 126 L. Ed. 2d 656 (1994) (the complaint included claims under Title IX, § 1983 and the Pennsylvania Constitution); and Pfeiffer v. Marion Center Area Sch. Dist., 917 F.2d 779 (3d Cir. 1990) (the complaint included claims under Title IX, §§ 1983 and 1985, and state law claims under the Pennsylvania Human Relations Act). In both instances, the Court of Appeals concluded that Title IX establishes a comprehensive enforcement scheme and therefore held the § 1983 claims were subsumed within the Title IX claims.
Accordingly, following the directive of the Court of Appeals, the Court finds that the Sea Clammers doctrine dictates that the University's motion for summary judgment as to Count VII should be granted, as Plaintiff's § 1983 claims are subsumed by Title IX.
H. Count VIII - Title IX
Defendant University moves for summary judgment on plaintiff Lori Stilley's claims under Title IX
arguing that there was no intentional discrimination by the University, as the alleged conduct by Petrosky was not within the scope of his employment.
In order to prove a prima facie case under Title IX, plaintiff must show:
1. that she was excluded from participation in or denied the benefits of or subjected to discrimination in an educational program;
2. that the program receives federal assistance; and