The opinion of the court was delivered by: Judge McClure
On September 18, 2006, plaintiff Dr. Beverly Lindsay instituted this civil action against defendant, the Pennsylvania State University ("Penn State"). In her complaint, plaintiff alleges violations of Title VII of the Civil Rights Act of 1964 (Count I), the Americans with Disabilities Act ("ADA") (Count II), Title IX of the Education Amendments Act of 1972 (Count III), hostile work environment (Count IV), and breach of contract (Count V).
The parties have conducted discovery.*fn2 The parties have filed cross-motions for summary judgment; the subject of the instant Memorandum and Order is defendant's motion for summary judgment, filed October 17, 2008.*fn3 (Rec. Doc. No. 126). The parties have filed opposing and responsive briefs and the matter is ripe for disposition.
Now, for the following reasons we will grant defendant's motion for summary judgment and enter final judgment in favor of defendant.
Taken in the light most favorable to the non-moving party, plaintiff Lindsay, the salient facts are as follows.*fn4 Dr. Lindsay began her career at Penn State as a dean in the Office of International Programs ("OIP") and as a tenured full professor with the College of Education ("COE"). (Rec. Doc. No. 127 at ¶ 3-4). After a less than favorable review of Dr. Lindsay during the OIP's 5-year review of her performance, the review committee recommended an immediate change of leadership, and Dr. Lindsay resigned her deanship. (Rec. Doc. No. 127at ¶¶ 6-9, and Rec. Doc. No. 129 at 15a.1-80a). The deanship resignation was voluntary, and there is no indication in the signed agreement that racism was the impetus; although Dr. Lindsay's charge of discrimination alleges the agreement was the result of allegations of racial discrimination. (Rec. Doc. No. 129 at 69a-80a, and Rec. Doc. No. 181-2 at 85a).
The deanship resignation was reduced to writing by contract dated April 17, 2002. (Rec. Doc. No. 129 at 72a). Dr. Lindsay was to "resume her tenured position as Professor of Higher Education and Educational Theory and Policy in the College of Education." (Id.) The terms of the contract further stated that "[i]n her capacity as Professor of Higher Education and Educational Theory and Policy, Employee shall perform the normal and customary functions, duties and responsibilities of tenured professors in the College of Education, as may be assigned by her Department Head in the College of Education." (Id.) One duty of professors in the Education Theory and Policy program is to teach undergraduate courses. (Rec. Doc. No. 127 at ¶ 77, and Rec. Doc. No. 129 at 95a). Because Dr. Lindsay expressed an unwillingness to teach undergraduate level courses, the dean located her program responsibility solely in the Higher Education program. (Rec. Doc. No. 78 at ¶ 78-83, and Rec. Doc. No. 129 at 96a).
Following her deanship resignation, Dr. Lindsay resumed her tenured position as professor with the COE, in the Department of Education Policy Studies ("EPS"). (Rec. Doc. No. 127 at ¶¶ 9, and 13, and Rec. Doc. No. 129. at 72a and 87a). The head of the EPS department was Jacqueline Stefkovich, Ph.D. ("Dr. Stefkovich") from 2001-December 2008, and from January 2008 through the present the department head is Gerald LeTendre, Ph.D. ("Dr. LeTendre"). (Rec. Doc. No. 127 ¶ 27). The department head has the responsibility of recommending to the dean Dr. Lindsay's salary increases. (Id. at ¶ 25). The dean of the COE at all times relevant to the instant action has been David Monk ("Dean Monk"). (Id. at ¶ 16).
Salary evaluations are made each spring, effective for the following school year (July 1 - June 30th). (Rec. Doc. No. 127 at ¶¶ 85-86). During the relevant time period, Dr. Lindsay received raises between 1.78- 2.01%. (Id. at ¶¶ 98-121).
Within EPS, Dr. Lindsay was a member of the Hi Ed program. (Id. at ¶ 19). The Hi Ed program is lead by a Professor in Charge ("PIC"), who is responsible for determining which faculty will teach which courses. (Id. at ¶¶ 33 and 35). At all times relevant to this action, the PIC has rotated between Dorothy Evensen, Ph.D. ("Dr. Evensen") and Roger Geiger, Ph.D. ("Dr. Geiger"). (Id. at ¶ 37-39).
The standard course load for professors is to teach two courses in the fall semester and two in the spring semester. (Rec. Doc. No. 127 at ¶ 66). Professors could qualify to be released from some of their teaching assignments by securing an externally funded research grant that offsets their salary in whole or in part. (Id. at ¶ 53). Dr. Lindsay has never qualified for course releases because she has never secured research funding to offset her salary. (Id. at ¶ 55).Nevertheless, Dr. Lindsay taught less than the required number of courses in several semesters (Id. at ¶ 61). She was able to teach fewer than two courses per semester by requested ad hoc course releases from her Department Head and/or Dean. (Id. at ¶ 68-69). In addition, Dr. Lindsay has taught independent study courses, which do not count toward a professor's two courses per semester teaching obligation. (Id. at ¶ 63-64).
Penn State policy is for employees to fly in coach class seats. (Rec. Doc. No. 127 at ¶ 168). Dr. Lindsay provided to Penn State prescriptions for an ergonomic office and business or first class flight seats. (Rec. Doc. No. 127 at ¶ 139-140 and Rec. Doc. No. 130-2 at 558a-560a). As an exception to the COE's travel policy, Dr. Lindsay was approved to fly first or business class. (Rec. Doc. No. 171 at ¶ 174 and Rec. Doc. No. 146 at 1592).
When Dr. Lindsay began at Penn State in 1996, she negotiated for an executive chair for her office. (Rec. Doc. No. 127 at ¶ 183 and Rec. Doc. No. 129-2 at 220a). When Dr. Lindsay transferred to the EPS department in 2002, she requested that her chair be transferred to her new office, and this request was granted. (Rec. Doc. No. 127 at ¶ 185 and Rec. Doc. No. 130-3 at 679a). In 1998, Dr. Lindsay requested an ergonomic evaluation of her office. (Rec. Doc. No. 127 at ¶ 184). The evaluation found the chair to be "fair; large high back executive chair, size does not allow easy access to desk and computer." (Rec. Doc. No. 181-9 at 677a). Dr. Lindsay also stated that much of her office furniture is ergonomically correct, but she requested an ergonomically correct computer (specifically the monitor and keyboard) and desk. (Rec. Doc. No. 127 at ¶ 187 and Rec. Doc. No. 130-3 at 679a). Dr. Lindsay also requested, and was provided with laborers to set up her office in EPS. (Rec. Doc. No. 127 at ¶ 188 and Rec. Doc. No. 181-10 at 680a-682a). Dr. Lindsay has had surgery for carpal tunnel syndrome. (Rec. Doc. No. 127 at ¶ 216).
Dr. Lindsay testified in her deposition that Dr. Stefkovich had yelled at Dr. Lindsay on several occasions. (Rec. Doc. No. 127 at ¶ 273-274 and Rec. Doc. No. 129-2 at 228a). Dr. Lindsay also testified that a colleague used the word "fuck" in her presence and another college called minority students and faculty "academic whores". (Rec. Doc. No. 127 at ¶ 275-276 and Rec. Doc. No. 129-2 at 228a). Additionally, Dr. Lindsay testified that "several years ago" she was accused of submitting a dishonest budget. (Rec. Doc. No. 127 at ¶ 277 and Rec. Doc. No. 129-2 at 228a).
Dr. Lindsay filed allegations of employment discrimination with the EEOC on January 5, 2005. (Rec. Doc. No. 181-11 at 730a-736a). Dr. Lindsay filed a charge of discrimination with the Pennsylvania Human Relations Commission ("PHRC") on April 1, 2005 and October 5, 2005. (Rec. Doc. No. 181-2 at 85a-86a and Rec. Doc. No. 181-11 at 751a-752a).
Summary judgment is appropriate when 1) there are no material facts in dispute; and 2) one party is entitled to judgment as a matter of law. Int'l Union, United Mine Workers of Am. v. Racho Trucking Co., 897 F.2d 1248, 1252 (3d Cir. 1990) (citing Fed. R. Civ. Pro. 56(c)).
The standard by which the court decides a summary judgment motion does not change when the parties file cross-motions. Weissman v. United States Postal Serv., 19 F. Supp. 2d 254, 259 (D.N.J. 1998). When ruling on cross motions for summary judgment, the court must consider the motions independently, Williams v. Philadelphia Housing Authority, 834 F. Supp. 794, 797 (E.D. Pa. 1993), aff'd, 27 F.3d 560 (3d Cir. 1994), and view the evidence on each motion in the light most favorable to the party opposing the motion. See Matsushita Elec. Insus. Co., Ltd. v. Zenith Radio corp., 475 U.S. 574, 587 (1986).
A district court may properly grant a motion for 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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Material facts" are those which might affect the outcome of the suit. Id, Justofin v. Metropolitan Life Ins. Co., 372 F.3d 517, 521 (3d Cir. 2004).
Regardless of who bears the burden of persuasion at trial, the party moving for summary judgment has the burden to show an absence of genuine issues of material fact. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996) (citations omitted). To meet this burden when the moving party does not bear the burden of persuasion at trial, the moving party must show that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial.'" Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989) (quoting Chippolini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d. Cir. 1987)); see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). More simply put, a party moving for summary judgment who does not bear the burden of persuasion at trial is not required to negate the non-movant's claim, but only point out a lack of evidence sufficient to support the non-movant's claim. Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1991).
To the contrary, when the moving party bears the burden of persuasion at trial, it must point to evidence in the record that supports its version of all material facts and demonstrate an absence of material facts. National State Bank v. Federal Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992). If the moving party does not meet this burden, the court must deny summary judgment even if the nonmoving party does not produce any opposing evidence. Id.
Once the moving party meets its burden of showing an absence of genuine issues of material fact, the nonmoving party must provide some evidence that a issue of material fact remains. Matushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party, however, cannot do so by merely offering general denials, vague allegations, or conclusory statements; rather the party must point to specific evidence in the record that creates a genuine issue as to a material fact. Celotex, 477 U.S. at 32; Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999).
Racial Discrimination in Violation of Title VII of the Civil Rights Act of 1964 and Sex Discrimination and Retaliation in Violation of Title IX of the Education Amendments Act of 1972
Title VII prohibits employment practices that result in disparate treatment (intentional discrimination) if the practices are based in any way on race. See 42 U.S.C. § 2000e-2.
It shall be an unlawful employment practice for an employer--
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, r
(2) To limit, segregate or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex or national origin.
The Education Amendments Act of 1972 provides that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance" with certain enumerated exceptions. 20 U.S.C. §1681(a). The term "program or activity" includes "all of the operations of...[a] university." 20 U.S.C. §1687(2)(A).
Because Title IX does not specify a statute of limitations period, the Third Circuit has borrowed Pennsylvania's two year statute of limitations period applicable to personal injury actions. See Bougher v. University of Pittsburgh, 882 F.2d 74, 77-78 (3d Cir. 1989). This action was filed September 18, 2006, so any unlawful acts ...