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Tingley-Kelley v. Trustees of the University of Pennsylvania

January 6, 2010

KIMBERLEY TINGLEY-KELLEY, PLAINTIFF,
v.
THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA, A PENNSYLVANIA NON-PROFIT CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Gene E.K. Pratter, District Judge

Admission to the University of Pennsylvania School of Veterinary Medicine ("Penn Vet") is extremely competitive. Each year, Penn Vet receives well over one thousand applications for approximately 150 offers of admission.*fn1 In 2007, Penn Vet's acceptance rate of approximately 11% was equivalent to that of Penn's Law School. In such a competitive process, it would seem that an applicant alleging that she was denied admission because of her gender would face a daunting task inasmuch as there are almost always applicants arguably more qualified and there are almost always legitimate reasons for favoring one well-qualified applicant over another. But when a plaintiff presents direct evidence sufficient to support allegations of discrimination, the case must be left to a jury to decide. This is such a case.

Plaintiff Kimberley Tingley-Kelley applied to Penn Vet six times from 2002 until 2007 and was rejected each time. She has brought suit against Penn Vet for the repeated denial of her applications. Ms. Tingley-Kelley alleges that she was denied admission to Penn Vet because of her gender, in violation of Title IX of the Education Amendments of 1972, 42 U.S.C. § 1681 (Count I), that Penn Vet retaliated against her after she complained of this gender discrimination (Count II), and that Penn Vet made fraudulent misrepresentations to induce her to keep applying (Count III).

Currently before the Court is Penn Vet's Motion for Summary Judgment on all Counts.For the reasons discussed below, the Court will grant in part and deny in part Penn Vet's Motion for Summary Judgment.

I. FACTUAL AND PROCEDURAL HISTORY*fn2

A. Penn Vet's Admissions Process

In general, during the years in question, the Penn Vet admissions process is as follows. First, the Associate Dean for Admissions, Malcolm Keiter, and the Associate Director for Admissions, Roseann Herpen, review all applications and, based on their experience and awareness of the objective characteristics of the previous year's class, they eliminate what they consider the approximate bottom one-third from consideration. The remaining applicants have grades and GRE scores within the range that could be accepted. (Def.'s Ex. 3, Deposition of Malcolm Keiter at 106-110.)

Second, the Admissions Committee, comprised of elected faculty and appointed alumni members, spends days reviewing the remaining two-thirds of the applications, with each application being reviewed by two Committee members, to decide which applicants should be interviewed for possible admission. The Committee members review the objective factors in the applications, including college and, if applicable, graduate school attended, grade point average (GPA) and Graduate Record Examination (GRE) scores, as well as the applicants' veterinary and other animal-related experience, work history, personal statements, recommendations, and other miscellaneous factors. The Quantitative score on the GRE is generally more important than the Verbal score because it is considered an indicator of how an applicant will handle science courses. (Def.'s Ex. 3 at 131.) To make it easier for members of the Admissions Committee to compare applicants, Penn Vet adds the GRE percentiles together. (Def.'s Ex. 3 at 131.) With respect to GPA, the last 45 credit hours GPA, especially in science courses, is separately considered and can be a positive factor if applicants demonstrate improvement over their overall GPA. (Def.'s Ex. 3 at 114-15.)

As they review an application, Committee members make notes on an Applicant Review form, and recommend whether a candidate should be interviewed or not. Committee members look not only for high achievement, but also for distinguishing characteristics and experiences. Through this process approximately one-half of the remaining applications are rejected, and the other half, or approximately one-third of the original number, are selected for interviews. (Def.'s Ex. 3 at 116-120, 126-133, 139-147, 150-154; Def.'s Ex. 4, Affidavit of Malcolm Keiter ¶ 3.)

On interview days, the applicants selected for interviews mingle with student members of the Admissions Committee, and interview with two faculty/alumni members of the Admissions Committee, one of whom has read the candidate's application, and the other of whom is "blind," i.e., has not seen the application itself. The interview is a critical factor in the admission decision. Following the day's interviews, the Committee members meet to review the interviewees, discuss their recommendations, and vote on the candidates. Some are denied admission, some are accepted, and some are placed in a hold status for an "alternate" list. (Def.'s Ex. 3 at 180-185, 197-206.)

B. Ms. Tingley-Kelley's Background and Applications to Veterinary School

Ms. Tingley-Kelley graduated from the University of Massachusetts, Boston, a "" school,*fn3 in 1989, with a B.A. in English and Psychology. Her overall GPA, as reported by her on her Veterinary Medical College Application Service application, was 2.67. (See, e.g, Def.'s Ex. 2(e), Plaintiff's 2006 application to Penn Vet at Penn-TK 00636.)

In 1992, Ms. Tingley-Kelley began taking courses in anticipation of applying to veterinary school. In her first attempt, at Harvard University (Extension), she signed up for Chemistry, Molecular Biology, and Algebra II, withdrew from Chemistry and Molecular Biology, and got a "C" in Algebra II. (Def.'s Ex. 2(e) at Penn-TK 00638; Def.'s Ex. 9, Deposition of Plaintiff at 46-47.) In 1994, she began taking science courses at community colleges and got A's and B's. (Def.'s Ex. 2(e) at Penn-TK 00638.)

In 1999, Ms. Tingley-Kelley moved to Pennsylvania and enrolled in two courses at the University of Pennsylvania's College of General Studies: Cellular Biology and Biochemistry, and Vertebrate Physiology. She got a B in Cellular Biology and Biochemistry and withdrew from Vertebrate Physiology. (Def.'s Ex. 2(e) at Penn-TK 00638; Def.'s Ex. 9 at 51-52.)

In 2000, Ms. Tingley-Kelley began a Master's degree program at Temple University, where her grades improved and she received B's and A's. (Def.'s Ex. 2(e) at Penn-TK 00638.)

By the time she completed her Master's degree, her overall GPA had risen to 2.98. (Def.'s Ex. 2(e) at Penn-TK 00639.)

Ms. Tingley-Kelley took the GRE examination in 2001 and again in 2005. In 2001, she scored 470 on the Verbal (the 51st percentile) and 600 on the Quantitative (the 46th percentile). In 2005, she scored 600 on the Verbal (84th percentile), and 570 on the Quantitative (39th percentile). (Def.'s Ex. 2(e) at Penn-TK 00686.)

In total, Ms. Tingley-Kelley applied to Penn Vet six times, from 2002 to 2007. Penn Vet denied Ms. Tingley-Kelley admission without an interview four times (Application Years 2002, 2003, 2005 and 2007), and twice denied her admission following an interview. (Application Years 2004 and 2006).

i. Application Year 2002*fn4

When Ms. Tingley-Kelley first applied to Penn Vet, she had concerns about her viability for admissions because she completed her undergraduate coursework at various institutions and received her undergraduate degree in 1989, more than a decade before applying to veterinary school. (Pl.'s Ex. D, Declaration of Kimberly Tingley-Kelley ¶ 2.) Ms. Tingley-Kelley did not expect to be interviewed or admitted the first time she applied for admission to Penn Vet. (Def.'s Ex. 9 at 91.)

After being rejected, Ms. Tingley-Kelley elected to meet with Malcolm Keiter, Associate Dean of Admissions, for post-denial counseling. At this counseling session, Dean Keiter told her that it was possible that she would be admitted to Penn Vet, and that she should continue to strengthen her application by working towards completing a Master's degree in biology at Temple University. (Pl.'s Ex. D ¶ 4.)*fn5 Dean Keiter also told Ms. Tingley-Kelley that the Admissions Committee would not be as concerned about her GRE scores, given that the purpose of the GRE is to predict graduate school success and she was already doing well in her graduate program. (Pl.'s Ex. D ¶ 5.) Dean Keiter also pointed out that her GRE scores were within the range that was acceptable for admission. (Pl.'s Ex. D ¶ 5.) Finally, Dean Keiter assured Ms. Tingley-Kelley that the Admissions Committee was not particularly interested in the coursework she completed more than a decade before applying to Penn Vet, but that the Committee would focus instead on her accomplishments since that time. (Pl.'s Ex. D ¶ 6.)

Following her 2002 application to Penn Vet, Ms. Tingley-Kelley continued her graduate work at Temple and retook Organic Chemistry, improving her grade to an "A." (Pl.'s Ex. D ¶ 7.)

ii. Application Year 2003

After her application was rejected, Ms. Tingley-Kelley again met with Dean Keiter for post-denial counseling. During this counseling, Dean Keiter told Ms. Tingley-Kelley that she was "doing all the right things" and that in her next application, she should discuss her husband's active duty status in the United States Air Force in order to explain why she had moved around so much. (Pl.'s Ex. D ¶ 8.)

iii. Application Year 2004

By the time of her third application, for admission in the Fall of 2004, Ms. Tingley-Kelley had finished her M.S. in Biology at Temple with highest honors, had completed a successful oral defense of her thesis, and she had given birth to her daughter. (Pl.'s Ex. D ¶ 9.) Her graduate work at Temple consisted exclusively of science courses and her last 45 credit hours GPA was 3.73. (Pl.'s Ex. D ¶ 10.) Her graduate GPA was 3.705, raising her overall GPA to 3.05. (Pl.'s Ex. D ¶ 11.) When she applied, she heeded Dean Keiter's advice and included information in her personal statement regarding her husband's active duty status in the military. (Pl.'s Ex. D ¶ 12.)

Ms. Tingley-Kelley passed the first "cut" and two members of the Admissions Committee, Dr. Ben Martin and Dr. Adrian Morrison, reviewed her application. The reviewers recommended that she be interviewed.

Ms. Tingley-Kelley was subsequently interviewed by Dr. Lori Mann and Dr. Ben Martin.In answer to Dr. Martin's questions regarding Ms. Tingley-Kelley's experience in different states, she noted that her husband was on active duty in the United States Air Force. (Def.'s Ex. 10 at Penn-TK 00794.) Dr. Martin commented that Ms. Tingley-Kelley had "a lot on her plate" and asked what she would do if her husband were suddenly deployed, and also asked how she would deal with the care of her daughter without her husband around. (Pl.'s Ex. D ¶ 14; Def.'s Ex. 10 at Penn-TK 00794-795.) Dr. Mann questioned whether Ms. Tingley-Kelley could handle the rigors of the program given Ms. Tingley-Kelley's personal situation with a child and a husband on active duty in the military. (Pl.'s Ex. D ¶ 15.) Dr. Mann and Dr. Martin made notations on their Applicant Review forms regarding Tingley-Kelley's family situation as a mother with young children and a husband on active duty in the Air Force. (Def.'s Ex. 2(c) at Penn-TK 00706-00708.)They each recommended that Ms. Tingley-Kelley be denied admission, and the Admissions Committee agreed. (Def.'s Ex. 11, Affidavit of Dr. Benson B. Martin ¶¶ 4-11; Def.'s Ex. 12, Affidavit of Dr. Lori S. Mann ¶¶ 2-8.)

After her interview ended, on the advice of Dr. Mann and Dr. Martin, Ms. Tingley-Kelley spoke with some of the student representatives on the Admissions Committee regarding the program. (Pl.'s Ex. D ¶ 16.) One student told Ms. Tingley-Kelley that Penn Vet "probably would not waste a spot on a woman who has a baby and a husband on active duty." (Pl.'s Ex. D ¶ 16.)

After Ms. Tingley-Kelley was rejected in 2004, she attended post-denial counseling with Dean Keiter, who encouraged her to reapply the following year, and suggested that she get more small animal experience ...


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