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Rearick v. Pennsylvania State University

June 17, 2010


The opinion of the court was delivered by: Yvette Kane, Chief Judge United States District Court Middle District of Pennsylvania


(Chief Judge Kane)

Pending before the Court is Defendant The Pennsylvania State University's*fn1 motion for summary judgment. (Doc. No. 40.) The motion has been fully briefed and is ripe for disposition. For the foregoing reasons, the Court will grant the motion.


Plaintiff Deborah Rearick filed her complaint on June 24, 2008, alleging claims under Title VII, 42 U.S.C. § 2000e et seq., the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq., and state contract law. (Doc. No. 1 ¶ 2.) The basis of Plaintiff's claims is that she was retaliated against for reporting sexual harassment to Defendant's Affirmative Action Office in June 2001. (Doc. No. 1 ¶ 29.) Plaintiff began working for Defendant, a state-related educational institution, on June 8, 1981. (Doc. No. 42 ¶ 3.) Since February 1992, Plaintiff has worked under the job title of Property Inventory Aide. (Id. ¶ 4.) In June 2001, Plaintiff filed a claim of sexual harassment with Defendant's Affirmative Action Office against her supervisor, George Milburn. (Id. ¶ 27.) Plaintiff asserts that she was not chosen for an open position because of her previous complaints of sexual harassment.

In March 2006, Plaintiff accepted a transfer to the position of Staff Assistant VII in the Research Accounting Division of Defendant's Office of Corporate Controller. (Doc. No. 42 ¶ 5.) As part of this transfer, Plaintiff executed an Agreement and General Release (the "Release") on March 14, 2006. (Id. ¶ 6.) The agreement released all claims that Plaintiff had against Defendant, including any claim based upon sexual harassment or retaliation. (Doc. No. 43, App. 3 ¶ 4.) Plaintiff consulted with Attorney Kathy Simpson of Harrisburg prior to executing the Release. (Doc. No. 42 ¶ 7; Doc. No. 48 ¶¶ 5, 7.) The Release stated that it "constitute[d] the sole understanding of the parties . . . and supersede[d] any prior or contemporaneous understandings, whether written or oral, of the parties" respecting the subject matter of the agreement. (Doc. No. 43, App. 3 ¶ 6.)

Prior to her transfer in March 2006, and as an employee of the College of Health and Human Development, Plaintiff was assigned a yearly score under the Staff Review and Development Plan ("SRDP"). The SRDP scores ranged from a low of 1 to a high of 5. (Doc. No. 42 ¶ 20.) For 2003, Plaintiff received a score of 3, which equated to a rating of "performance meets expectations." (Id. ¶¶ 19-20.) For 2004 and 2005, Plaintiff received a score of 2, which equated to a rating of "performance partially meets expectations." (Id.) Milburn, the person who Plaintiff accused of harassment in 2001, was not in a supervisory position relative to Plaintiff when her SRDP scores were completed in 2003, 2004, and 2005. (Id. ¶ 38.) Instead, Plaintiff's scores for those years were assigned by Robin Cabral and William Gush. (Id. ¶ 40; Doc. No. 43, App. 4, 5, & 6.)

On September 6, 2006, an opening was posted for a Staff Assistant VIII, grade 18, position in Defendant's School of Hospitality Management, College of Health and Human Development. (Doc. No. 42 ¶ 8.) The individuals involved in the interview process for the open position were Dr. Hubert Van Hoof, Director of the School of Hospitality Management, and his administrative assistant, Dawn Driver. (See id. ¶¶ 9-10.) Plaintiff applied for the staff assistant position and was one of three individuals subsequently contacted by Driver on September 26, 2006, to consider bidding on the job. (Id. ¶¶ 11-13; Doc. No. 48 ¶ 13.) Plaintiff met with Van Hoof and Driver to interview for the staff assistant position on September 29, 2006. (Doc. No. 42 ¶ 14; Doc. No. 48 ¶ 14.)

Plaintiff was one of two candidates invited back for a second interview. (Doc. No. 42 ¶ 16.) In preparation for the second interview, Driver requested the SRDP scores for the two remaining candidates from the College of Health and Human Development. (Doc. No. 42 ¶ 17.) It was standard practice for Van Hoof and Driver to obtain the SRDP scores for employment candidates. (Id. ¶ 18.) Van Hoof and Driver were provided with Plaintiff's SRDP scores for 2003, 2004, and 2005. (Id. ¶ 19.) They were also provided with the SRDP scores for the same time period for the other remaining candidate, Carol Little. (Id. ¶ 44.) While Plaintiff's scores for 2003, 2004, and 2005 were 3, 2, and 2 respectively, Little had received 4 point marks for all three years. (See Doc. No. 43, App. 14.)

On October 3, 2006, Plaintiff had her second interview with Van Hoof and Driver. (Doc. No. 42 ¶ 21.) The other remaining candidate, Little, was also interviewed a second time. (Id.) After this second round of interviews, the position was offered to, and accepted by, Little. (Id. ¶ 22.) Plaintiff's failure to be chosen for the open position serves as the basis for her lawsuit.


Defendant has moved for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, which provides that "[t]he judgment sought should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). The substantive law identifies which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id. at 248-49.

The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the nonmoving party's claims, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006) (citations omitted); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," summary judgment is appropriate. Celotex, 477 U.S. at 322-23. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249-50. There must be more than a scintilla of evidence supporting the nonmoving party and more than some metaphysical doubt as to the material facts. Id. at ...

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