The opinion of the court was delivered by: Van Antwerpen, District Judge.
This reverse employment discrimination action is filed pursuant
to the Civil Rights Act, Title VII, 42 U.S.C. § 2000e et seq.
and under 42 U.S.C. § 1981, 1983, 1985(3). The Plaintiff in this
case, Leemon McHenry, was employed in a one-year
teaching position for the 1995-96 academic year in the Philosophy
Department at Kutztown University. The Plaintiff then applied and
was denied a tenure-track position for the 1996-97 academic year.
In denying him that position, Plaintiff argues that the
Defendants, the Commonwealth of Pennsylvania State System of
Higher Education, David E. McFarland, Richard J. Collings and
Carl E. Brunner, discriminated against him because he is a white
Presently before the court are the following materials:
1. Motion and Memorandum of Law by Defendants for
Summary Judgment filed on February 10, 1999.*fn1
2. Exhibits in Support of Defendants' Motion for
Summary Judgment filed on February 10, 1999.*fn2
3. Stipulation Regarding Background Facts filed on
February 10, 1999.*fn3
4. Stipulation Regarding Additional Exhibit to Back
Deposition filed on February 10, 1999.
5. Plaintiff's Brief Contra Motion for Summary
Judgment filed on March 15, 1999.*fn4
6. Plaintiff's Exhibits in Support of Answer to
Motion for Summary Judgment filed on March 15,
7. Defendants' Reply Memorandum filed on April 1,
8. Supplemental Exhibit in Support of Plaintiff's
Brief Contra Motion for Summary Judgment filed on
April 20, 1999.
For the reasons set forth below, we will grant summary judgment
in favor of the Defendants.
The court shall render summary judgment "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 judgment as a matter of law." Fed.R.Civ.P. 56(c).
An issue is "genuine" only if there is a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is
"material" only if it might affect the outcome of the suit under
governing law. Id. at 248, 106 S.Ct. 2505. All inferences must
be drawn and all doubts resolved in favor of the non-moving
party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82
S.Ct. 993, 8 L.Ed.2d 176 (1962); Gans v. Mundy, 762 F.2d 338,
341 (3d Cir. 1985).
On motion for summary judgment, the moving party bears the
initial burden of identifying those portions of the record that
it believes demonstrate the absence of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). To defeat summary judgment, the non-moving party must
respond with facts of record that contradict the facts identified
by the movant and may not rest on mere denials. Id. at 321 n.
3, 106 S.Ct. 2548 (quoting Fed.R.Civ.P. 56(e)); see also First
Nat'l Bank of Pennsylvania v. Lincoln Nat'l Life Ins. Co.,
824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must
demonstrate the existence of evidence that would support a jury
finding in its favor. See Anderson, 477 U.S. at 249, 106 S.Ct.
Kutztown University is one of the fourteen universities which
comprise the Pennsylvania State System of Higher Education
("SSHE"). Jt. Stip. at ¶ 1. There are over 7,000 full and part
time students at Kutztown University, almost all from
Pennsylvania and the surrounding region. Id. Each SSHE
university is permitted to have its own local procedures for
hiring faculty members. Kutztown University has such local
procedures. See generally Jt. Stip. at ¶¶ 53-74.
The process for hiring permanent faculty members begins when a
department chair submits a completed "Request to Hire Form" to
the dean of his or her college. After the approval of the dean,
the provost approves the request and a search committee forms. In
the Philosophy Department at Kutztown, search committees are
comprised of all tenured or tenure-track faculty, except the
chair of the department. The chair of the search committee
prepares an advertisement, and solicits the input and approval of
other members of the search committee. The Philosophy
Department's proposed advertisement for a faculty position must
also be approved by the dean and the Social Equity Office
(formerly called the Affirmative Action Office). After the text
of the advertisement is approved, the Social Equity Office
determines where the advertisement will be placed. The Philosophy
Department search committees routinely ask that their
advertisements be placed in Jobs for Philosophers. In addition,
the University routinely places advertisements for faculty
positions in publications such as The Chronicle of Higher
Education, Hispanic Outlook, Women in Higher Education, and
Black Issues in Higher Education.
Advertisements for philosophy positions direct candidates to
send their applications to the search committee chair. The
Philosophy Department secretary creates a file for each
application, puts the files in alphabetical order, and sends the
names and addresses of the applicants to the Social Equity
Office. The Social Equity Office may send a memorandum to the
chair of a department's search committee, listing the names of
one or more applicants who have identified themselves as women or
minorities; asking that their resumes be reviewed; and strongly
encouraging the search committee to interview the applicants "if
it is determined that they meet the qualifications of the
In general, members of search committees must screen a large
volume of applications, sometimes numbering in the hundreds, and
arrive at a "short list" of 10-20 applicants. Of those, a smaller
number will be further evaluated by being invited for an
on-campus visit and interview. The dean, the Social Equity
Officer and the chair of a departmental search committee all
expect to review any departmental short list before the
department would be permitted to invite any candidates to
Kutztown. In particular, the dean will approve four or five
candidates to Kutztown for interviews for a given position.
After the proposed list of interviewees is approved, the search
committee chair invites candidates for interviews and makes
arrangements for them to come to Kutztown. After the interviews
are completed, a majority of the regular full-time department
faculty must arrive at a hiring recommendation. The Kutztown
Philosophy Department operates by consensus rather than by strict
majority vote. At this point, the chair of the search committee
completes a "Candidate Approval Form," addressed to the provost.
The "Candidate Approval Form" must also be signed by the
The dean then reviews the Philosophy Department's hiring
recommendation and the "Candidate Approval Form" is forwarded to
the Social Equity Officer, who is asked to certify that the
search complied with the University's affirmative action
procedures. Thereafter, the recommendation is sent to the provost
and, from there, to the president. The president or his/her
designee may accept or reject departmental hiring
recommendations, and the decision
of the president or his/her designee is final.
During the 1995-96 search process for the tenure-track position
in the Philosophy Department, the Dean of the College of Arts and
Sciences was Dr. Brunner and the Provost of the University was
Dr. Collings. Id. at ¶¶ 3-4. The search committee in the
Philosophy Department consisted of three professors, Dr. Lizza,
Dr. Ferreira and Dr. Hall. Dep. Hall 1/6/99 at 18. Dr. Ferreira
was the chair of the committee and Dr. Back was the chair of the
Philosophy Department. Id.; Dep. Back 12/11/98 at 25.
At that time, Plaintiff, Dr. Leemon McHenry, had a temporary
position in the Philosophy Department. Pl.'s Am. Compl. at ¶ 22.
Plaintiff applied for the tenure-track position with the
Philosophy Department and was ultimately recommended by the
search committee for the position. Decl. Brunner 2/5/99 at ¶ 17.
Dean Brunner, however, refused to approve the Plaintiff based on
concerns about the Plaintiff's teaching evaluations. Id. at ¶
18. Provost Collings, the designee of President McFarland, agreed
with Dean Brunner's reservations. Id. at ¶ 30. Thus, the
Philosophy Department was asked to find another candidate for
The search committee then forwarded the name of Dr. Huang, a
Chinese native. Dep. Hall 1/6/99 at 43-44. Dean Brunner and
Provost Collings consented to this recommendation and Dr. Huang
accepted the tenure-track position for the 1996-97 academic year.
Decl. Brunner 2/5/99 at ¶¶ 36-39; Dep. Collings 1/6/99 at 54; Jt.
Stip. at ¶ 19.
Plaintiff subsequently filed a complaint charging
discrimination against the SSHE with the Pennsylvania Human
Relations Commission ("PHRC"), who subsequently forwarded a copy
of the complaint to the Equal Employment Opportunity Commission
("EEOC"). Pl.'s Ex. at 162-63. He then requested a Right to Sue
Letter which was issued by the Department of Justice ("DOJ") on
September 25, 1997. Id. at 155. The first Right to Sue Letter
was rescinded by the DOJ on November 5, 1997, and a second Right
to Sue Letter ...