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May 11, 1999


The opinion of the court was delivered by: Van Antwerpen, District Judge.



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. 2505.


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 position."

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 department chair.

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 hire. Id.

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 ...

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