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Linda Toth v. California University of Pennsylvania

January 9, 2012


The opinion of the court was delivered by: Judge Nora Barry Fischer


I. Introduction

This matter comes before the Court on cross-motions for summary judgment filed by the parties pursuant to Federal Rule of Civil Procedure 56. Docket Nos. 47 & 49. For the reasons that follow, the Plaintiff‟s motion for partial summary judgment (Docket No. 47) will be denied, and the Defendants‟ motion for summary judgment (Docket No. 49) will be granted, in part and denied, in part.

II. Background

California University of Pennsylvania ("California" or "the University") is a post- secondary educational institution existing within Pennsylvania‟s State System of Higher Education ("the System"). 24 PA. STAT. § 20-2002-A(a)(2). Angelo Armenti ("Armenti") has served as the University‟s President since 1992. Docket Nos. 50 & 65 at ¶ 17. Sean Madden ("Madden") started teaching at the University in 1989. Id. at ¶ 20. He became the Acting Dean of the University‟s College of Liberal Arts in July 2006. Id. at ¶ 21. Donald J. Thompson ("Thompson"), the University‟s Provost, retired in January 2007. Id. at ¶¶ 17-18. After Thompson retired, Armenti selected Madden to serve as the University‟s Interim Provost. Id. at ¶ 22. Laura Tuennerman-Kaplan ("Tuennerman-Kaplan") became the Interim Dean of the College of Liberal Arts and assumed Madden‟s prior duties. Id. at ¶ 34. Madden became the Provost and Vice-President of Academic Affairs in October 2007. Id. at ¶ 23.

Linda Toth ("Toth"), a female of Polish descent, is a graduate of the University. Docket Nos. 68 & 75 at ¶¶ 2-3. She holds a doctorate degree in psychology. Id. at ¶ 6. In 1990, Toth was hired by the University as an Assistant Professor of Psychology. Id. at ¶ 4. She was awarded tenure in 2003 and later promoted to the position of Associate Professor of Psychology retroactive to the fall of 2002. Id. at ¶¶ 5-6. The Association of Pennsylvania State College and University Faculties ("APSCUF") serves as the union for the faculty members teaching within the System. Toth served as the Vice-President of the APSCUF‟s California chapter from 2002 to 2006. Id. at ¶ 7. She became the first female President of the chapter in May 2006 and held that position until May 2010. Id. at ¶¶ 8-10.

California‟s University-Wide Promotion Committee ("UWPC") consists of faculty members charged with the duty to review the applications and dossiers submitted by faculty members who are seeking promotions. Docket Nos. 50 & 65 at ¶ 28. The members of the UWPC are elected by the University‟s faculty. Id. Only one professor from a particular department can serve on the UWPC at a given time. Id. Barbara Hess ("Hess"), a mathematics professor, served as the Chairperson of the UWPC during the 2005/2006 promotion cycle. Id. at ¶ 29. She was succeeded by Robert Kane ("Kane"), a health sciences professor, who served as the UWPC‟s Chairman during the 2006/2007 promotion cycle. Id. at ¶ 30.

The collective bargaining agreement ("CBA") between the System and the APSCUF that was in effect from July 1, 2003 to June 30, 2007, required applications from professors seeking promotions to be submitted to the "appropriate department chairperson[s]" in the first instance. Docket No. 70-12 at 21. Each application had to be considered by a "departmental committee" before it was presented to the UWPC. Id. The relevant portion of the CBA required the appropriate Dean or department chairperson to submit a "detailed recommendation" to the UWPC concerning a professor‟s application for promotion by February 1 of the year of the promotion cycle. Id. A copy of the "detailed recommendation" was to be forwarded to the applicant as well, who had until February 15 to submit a written response to the UWPC. Id. The Provost was required to submit a recommendation to the UWPC by February 21, and the applicant was given until March 1 to respond to that recommendation. Id. The CBA directed the UWPC to forward the full list of applicants, along with its recommendation concerning each application, to the President (or the President‟s designee) by April 15. Id. at 22. Each applicant was afforded the right to appear before the UWPC and speak in favor of his or her application. Id. Promotions approved by the President were to be announced no later than July 15. Id.

During the fall of 2005, Toth applied for a promotion to the position of Full Professor of Psychology. ECF Nos. 50 & 65 at ¶ 41. As the Acting Dean of the College of Liberal Arts, Madden was responsible for reviewing Toth‟s application and making a recommendation. Id. at ¶ 42. In a letter to Hess dated January 27, 2006, Madden made several positive statements about Toth but did not specifically make a recommendation concerning her application. Docket No. 51-3 at 29-30.

Six professors applied for promotions to the position of Full Professor during the fall of 2005. They were Aref Al-Kattar ("Al-Kattar"), John Nass ("Nass"), Ellen Michael ("Michael"), LeeRoy Black ("Black"), Mark DeHainaut ("DeHainaut") and Toth. Id. at 43. In letters dated January 13, 2006, Madden expressed the view that Al-Kattar and Black were qualified for the sought-after promotions. Id. at 31-34. Madden specifically recommended Nass for promotion in a letter dated January 24, 2006. Id. at 35-36.

The UWPC scored each applicant on an 80-point scale. Docket No. 51-4 at 11. A minimum score of 50 was needed for a positive recommendation. Docket No. 51-3 at 43. The UWPC awarded Al-Kattar a score of 70.1, Nass a score of 66.67, Michael a score of 63.8, Toth a score of 57.78, Black a score of 55.31, and DeHainaut a score of 47.56. Id. In a memorandum to Thompson dated March 28, 2006, the UWPC recommended that Al-Kattar, Nass, Michael, Toth and Black be promoted. Id. DeHainaut was not recommended for promotion because his score was lower than 50. Id.

Thompson reviewed the recommendations and computed the percentage of the available points awarded to each applicant. Because Toth had been awarded 57.78 of the 80 points available on the scale, Thompson rounded her percentile score to 72%. Id. He ultimately decided against recommending the promotion of any applicant who had not received a percentile score of at least 80%. Docket No. 51-4 at 11. In accordance with this standard, Thompson recommended that only Al-Kattar, Nass and Michael be promoted to the position of Full Professor. Docket No. 51-3 at 43. In a memorandum to the UWPC dated July 11, 2006, Thompson stated that the remaining applicants had "serious shortcomings" in the areas of "service" and "scholarship." Docket No. 51-5 at 39. On July 14, 2006, Armenti announced that Al-Kattar, Nass and Michael had been approved for promotion. Docket No. 51-3 at 44. The applications submitted by Toth, Black and DeHainaut were denied. Id. Toth responded on July 23, 2006, by initiating the grievance procedures that were available to her under the CBA. Docket No. 51-4 at 24.

On June 14, 2006, Madden emailed Toth a message inviting her to "a nice informal chat over coffee." Docket No. 51-2 at 38. The message made reference to the fact that Madden and Toth were "going to be working closely on issues more and more in the future." Id. Madden again invited Toth to meet "for a cup of coffee" in a message sent on August 9, 2006. Id. at 37. Toth apparently never responded to Madden‟s invitations. Madden sent Toth another message inviting her to meet for "a cup of coffee" on August 17, 2006, suggesting that the two of them needed to discuss union-related issues. Id. at 39-40. In an attempt to portray himself as a reasonable person to deal with, Madden declared, "I don‟t have a strong allegiance to either management or union." Id. at 40. Later that day, Toth replied to Madden‟s invitation with a message stating that she did not "have a spare minute to "hang out‟ with anyone in a non-work-related fashion." Id. at 39. Toth concluded her message by stating as follows:

So to sum it up, if you are requesting a professional meeting, let me know when and where. To not meet with you at your request would be insubordination. Other than that, I prefer that our contact remain at the formal, professional level.

Id. Madden did not respond to Toth‟s message. Docket Nos. 68 & 75 at ¶ 29.

Toth submitted another application for promotion to the position of Full Professor of Psychology on September 6, 2006. Docket No. 51-4 at 63-67. Thompson retired in January 2007, and Madden became the Interim Provost. Docket Nos. 50 & 65 at ¶¶ 19, 22. Tuennerman-Kaplan became the Interim Dean of the College of Liberal Arts. Id. at ¶ 34. By that time, Kane had become the Chairman of the UWPC. Id. at ¶ 30. In a letter to Kane dated January 29, 2007, Tuennerman-Kaplan acknowledged that Toth was "on track for promotion from Associate Professor to Full Professor in the area of teaching." Docket No. 51-5 at 2. Tuennerman-Kaplan went on to state, however, that she had "some concerns" about the breadth of Toth‟s "involvement in the areas of scholarship and contributions to the University and/or Community." Id. On February 2, 2007, Toth sent a letter to Kane and his colleagues on the UWPC pointing out that Tuennerman-Kaplan had not made a specific recommendation as to whether she should be promoted. Id. at 3. In her letter, Toth mentioned that she had already filed a grievance pertaining to Madden‟s failure to make a recommendation during the previous promotion cycle. Id. She also questioned whether Tuennerman-Kaplan had the requisite experience and qualifications to evaluate her application in a reliable manner. Id. at 3-4.

The University‟s chapter of the APSCUF published a newsletter in March 2007. Docket No. 70-9 at 36-50. The newsletter contained a statement from Toth criticizing Judy Hample ("Hample"), the System‟s Chancellor, for failing to increase the pay and hiring of faculty members at the same rate as she had increased the pay and hiring of managers. Id. at 36-38. At the conclusion of Toth‟s statement was a cartoon lampooning the System‟s administration and management for retaining increased revenues that were attributable to the increased productivity of faculty members. Id. at 38. On March 3, 2007, Madden emailed Toth a message stating as follows:

Among whatever other important points you may have been trying to make in your recent newsletter, I must admit that your effort was lost on me as a result of the tasteless and personal charicature [sic] attack on the chancellor. I don‟t deny that there are serious issue [sic] out there and that tensions are heightened because it is a negotiation year, but I fail to see any value or civility at all in dragging this to a personal and insulting level.

I was a member of APSCUF for 17 years and I am ashamed and embarassed [sic] that the organization would lower itself to this kind of tactic. I can see absolutely no purpose or redeeming value in belittling a person, regardless of opposing viewpoints. We are a great university with great faculty in a great system of higher education and I do not think this attack is worthy of us.

I assure you that no matter how much you and I may disagree on any subject, that you will never, ever, be subject to such a classless tactic by me. Just my personal opinion.

Docket No. 51-4 at 60. The date of Madden‟s responsive message suggests that the newsletter was published very early in March 2007.

Joseph Zisk ("Zisk"), Mary O‟Connor ("O‟Connor"), Mary Ann Salotti ("Salotti"), Syvia Barksdale ("Barksdale"), Patricia Milford ("Milford"), Hess, DeHainaut and Toth all applied for promotions to the position of Full Professor during the 2006/2007 promotion cycle. All eight applicants were awarded scores above the designated minimum score of 50. Docket No. 70-7 at 16. Toth received a score of 56.5, which placed her fifth among the eight applicants. Id. The UWPC recommended that Zisk, O‟Connor, Salotti, Barksdale, Hess, DeHainaut and Toth be promoted. Id. The vote in favor of recommending Toth‟s promotion was unanimous among the UWPC‟s nine voting members. Id. The UWPC‟s recommendations were relayed to Madden in a memorandum dated April 9, 2007. Id.

On May 1, 2007, Madden emailed Toth a message inviting her to participate in a "pie-throwing" fundraiser designed to raise money for scholarships available to non-traditional students. Docket No. 51-4 at 61-62. The fundraiser was scheduled for May 3, 2007. Id. Toth ultimately accepted the invitation and attended the event. Docket Nos. 68 & 75 at ¶ 32. After arriving for the fundraiser, Toth paid for a pie and threw it in Madden‟s face. Id. Madden responded by hugging Toth tightly and smearing pie cream on her face, hair, neck and chest. Id. at ¶¶ 33-34. After that incident, Toth immediately left the event and went home. Id. at ¶ 41.

On May 22, 2007, Toth forwarded Madden‟s email message of August 17, 2006, to Armenti and called his attention to the sentence reading, "I don‟t have a strong allegiance to either management or union." Docket No. 51-2 at 42. She explained to Armenti that she would "definitely watch [her] back" if she had Madden as her "second in command." Id. In a subsequent message emailed to Armenti on May 26, 2007, Toth pointed out that the members of the UWPC had unanimously recommended that she be promoted. Docket No. 51-2 at 4. Referring to her earlier grievance concerning the 2005/2006 promotion cycle, Toth stated that the matter had already been "voted to arbitration" and would eventually end up on Armenti‟s desk. Id. Three days later, Armenti responded to Toth‟s message by stating that he had delegated the task of deciding who should be promoted to the Provost several years earlier. Id. He also opined that the grievance process concerning the denial of Toth‟s prior application should be left to proceed without his interference. Id.

On July 10, 2007, Madden sent Armenti a memorandum recommending that Zisk, O‟Connor, Salotti and Barksdale be promoted to the position of Full Professor. Docket No. 70-7 at 18. Milford, Hess, DeHainaut and Toth were not recommended for promotion. Id. That same day, Armenti sent Toth a letter informing her that her application had been denied. Id. at 20. Toth was encouraged to meet with Madden or Tuennerman-Kaplan to discuss ways that she could "strengthen" her "future applications for promotion." Id. Toth met with Armenti on July 20, 2007, to discuss the situation. Docket Nos. 68 & 75 at ¶ 110. The matter remained unresolved. Shortly after the meeting, Toth emailed Armenti a message stating as follows:

As promised, here are the updated local promotion guidelines. It is odd that your provost doesn‟t have a copy of the guidelines, being that he made such serious decisions involving people‟s lives without them. It is too bad for all of us that you chose Plan B over Plan A. If you want to reconsider Plan A, I‟m still open to negotiations.

Docket No. 51-2 at 3. Toth initiated the grievance procedures available to her under the CBA on July 23, 2007. Docket No. 51-4 at 24.

Toth filed a verified questionnaire with the Pennsylvania Human Relations Commission ("PHRC") on August 23, 2007, alleging that she had been subjected to discrimination because of her sex and national origin, and that the University had retaliated against her for complaining about acts of discrimination perpetrated against other women. Docket Nos. 68 & 75 at ¶ 143. On November 9, 2007, Toth filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Docket No. 70-7 at 25-28. In her EEOC charge, Toth alleged that her requests for promotion had been denied for discriminatory and retaliatory reasons. Docket No. 70-7 at 25-28. She also claimed that Armenti had harassed her during the meeting conducted on July 20, 2007. Id. at 26-27. In the sixth, seventh and eighth paragraphs of her EEOC charge, Toth stated as follows:

6. I met with President Amenti on July 20, 2007, to discuss the recommended candidates for promotion who had been arbitrarily and capriciously passed over for the 2006 promotion cycle, while a number of candidates with lower rankings assigned by the University-Wide Promotion Committee had been promoted, and in doing so I also objected to my not having been promoted; in this meeting, I was acting on my own behalf, and also in my capacity as President of the California chapter of our teachers‟ union, the Association of Pennsylvania State College and University Faculties (APSCUF).

7. In such meeting of July 20, 2007, Dr. Armenti had me sit close to him, and then he asked me to give him my hand, which he held and stroked; I repeatedly pulled my hand back, indicating that I did not want him to hold and stroke my hand, but he persisted in attempting to hold and stroke my hand, saying, "Give me your hand, Linda," and he indicated that he knew I wanted to be promoted, and he promised me I would be promoted; I continued to pull my hand away, until he finally stopped, after a substantial number of minutes had elapsed.

8. Dr. Armenti‟s insistence upon holding and stroking my hand demeaned and humiliated me; he had not held the hand or stroked the hand of the two Union Presidents prior to me, both males, and I allege that he did not have a practice of holding the hands and stroking the hands of male professors who met with him; his behavior was offensive and unwelcome.

Id. After learning of Toth‟s EEOC charge on November 27, 2007, Armenti emailed a message to Hample stating that it would be an "understatement" to call Toth‟s allegation of sexual harassment a "total fabrication." Id. at 29. He further declared, "I will fight and defeat this lie with all the energy I possess." Id.

The University refuted Toth‟s allegations in a position statement filed with the EEOC on February 7, 2008. Docket No. 51-5 at 23-32. In the position statement, the University asserted that Armenti had a firm policy of leaving the door to his office open, and having an administrative assistant at a nearby desk, whenever he was meeting with a female professor, staff member or student. Id. at 29. The position statement described the encounter between Toth and Armenti as follows:

Complainant arrived on time and was ushered into the conference room. She sat in a chair of her choosing-she was not told where to sit. She sat at the conference room table to the immediate left of President Armenti, who sat at the head of the table. Complainant reviewed her "Plan A" settlement proposal. After listening carefully to her "Plan A" proposal, President Armenti calmly stated that he was unwilling to sign the document or approve the Complainant‟s demand for immediate promotion to full professor because he thought her "remedy" for what had been a minor technical violation of the collective bargaining agreement (Sean Madden‟s letter to the chair of the promotion committee should have gone out on a Friday, not a Monday since the required collective bargaining date in 2007 happened to fall on the weekend) was disproportionate to the infraction. He calmly told her that he doubted that an arbitrator would impose such a stern penalty and that he would prefer to take his chances by letting any grievance process proceed normally to arbitration, if APSCUF so chose. The Complainant suddenly became extremely agitated and angry and said, in a loud voice, "You are so stubborn!" President Armenti was so startled by the outburst and sudden change in Complainant‟s demeanor that, in a fatherly effort to calm the Complainant, he placed his hand on top of her hand and told her, "Linda, this is not personal." He asked her to calm down. He did not stroke her hand either slightly or repeatedly.

While keeping control of the document with both hands, Complainant then showed President Armenti certain portions of a document which she referred to as "Plan B," but which she did not leave with him. It was stapled and contained about ten pages and from what he could see, it appeared to have contained a letter from the Complainant to her attorney and a grievance against President Armenti. After reading several items which she pointed out for him with great emphasis from a long list contained in the "Plan B" document and concluding that the purpose of revealing "Plan B" was to coerce the President into promoting her, President Armenti stood up and said "this meeting is over." Complainant refused to leave and was still in her seat when the participants for the next meeting entered the conference room. When she rose to leave Complainant said to President Armenti: "I‟ll see you in court."

Id. at 29-30. Armenti supplemented the University‟s position statement with a letter to Joel S. Pretz ("Pretz"), the EEOC‟s Alternative Dispute Resolution Coordinator, detailing his efforts to end sexual harassment and promote opportunities for women on campus. Docket No. 70-7 at 30-33.

Toth‟s grievances were eventually consolidated. Docket No. 51-4 at 24. Hearings were held before Ira F. Jaffe ("Jaffe"), an impartial arbitrator, on December 12, 2008, and February 19, 2009. Id. at 2. In a decision dated July 20, 2009, Jaffe determined that the conduct of Thompson and Madden during the two promotion cycles had failed to comport with the requirements of the CBA. Id. at 1-67. Armenti was directed to reconsider both of Toth‟s applications for promotion without giving consideration to the prior determinations made by Thompson and Madden. Id. at 54. He was further ordered to discuss the matter with the members of the UWPC before issuing a final decision in the event that he opted to reject their recommendation that Toth be promoted. Id. On September 28, 2009, the EEOC dismissed Toth‟s charge of discrimination and provided her with notice of her right to sue the University on her own behalf.*fn1 Docket No. 51-2 at 43-44.

In a letter to Hess dated December 1, 2009, Armenti stated that he had decided to reject the UWPC‟s recommendation that Toth be promoted during the 2005/2006 promotion cycle. Docket No. 51-5 at 57. Armenti discussed the matter with Hess and her colleagues on the UWPC during a meeting conducted on December 14, 2009. Docket No. 51-16 at 6-9; Docket Nos. 68 & 75 at ¶ 178. Later that day, Armenti sent Toth a letter stating that he had denied her 2005/2006 promotion application. Docket No. 70-10 at 4.

Toth commenced this action against the University, Armenti and Madden on December 24, 2009, alleging violations of the First and Fourteenth Amendments to the United States Constitution, Title VII of the Civil Rights Act of 1964 ("Title VII") [42 U.S.C. § 2000e et seq.], Title IX of the Education Amendments of 1972 ("Title IX") [20 U.S.C. § 1681 et seq.], the Rehabilitation Act of 1973 ("Rehabilitation Act") [29 U.S.C. § 701 et seq.], and the Pennsylvania Human Relations Act ("PHRA") [43 PA. STAT. § 951 et seq.].*fn2 Docket No. 1. On December 31, 2009, Armenti reviewed Toth‟s 2006/2007 application for promotion and decided to deny it. Docket No. 51-5 at 58; Docket Nos. 68 & 75 at ¶ 189. He discussed his decision with Kane and the other members of the UWPC during a meeting conducted on January 25, 2010. Docket No. 51-16 at 9-10; Docket Nos. 68 & 75 at ¶ 193. In a letter dated January 26, 2010, Armenti informed Toth that her 2006/2007 promotion application had been denied. Docket No. 70-10 at 5.

On April 5, 2010, Toth amended her complaint and added allegations pertaining to Armenti‟s most recent decisions denying her applications for promotion. Docket No. 10 at ¶¶ 38-48. A supplemental hearing was held before Jaffe on January 25, 2011, to facilitate a determination as to whether Armenti‟s decisions denying Toth‟s applications had constituted violations of the CBA and Jaffe‟s decision of July 20, 2009. Docket No. 51-16 at 4. In a decision dated April 22, 2011, Jaffe determined that Armenti‟s decisions had been rendered in conformity with the CBA and the previous decision. Id. at 24.

The Defendants filed a motion for summary judgment on June 16, 2011, seeking the dismissal of all claims asserted by Toth. Docket No. 49. Toth filed a motion for partial summary judgment that same day, seeking an order requiring her promotion and a determination that the Defendants had violated the anti-retaliation provisions of Title VII and the PHRA. Docket Nos. 47 & 47-1. The cross-motions for summary judgment filed by the parties are the subject of this memorandum opinion.

III. Standard of Review

Summary judgment may only be granted where the moving party shows that there is no genuine dispute as to any material fact, and that a judgment as a matter of law is warranted. FED. R. CIV. P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the Court must enter summary judgment against a party who fails to make a showing sufficient to establish an element essential to his or her case, and on which he or she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In evaluating the evidence, the Court must interpret the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in his or her favor. Watson v. Abington Township, 478 F.3d 144, 147 (3d Cir. 2007). The burden is initially on the moving party to demonstrate that the evidence contained in the record does not create a genuine issue of material fact. Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004). A dispute is "genuine" if the evidence is such that a reasonable trier of fact could render a finding in favor of the nonmoving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Where the nonmoving party will bear the burden of proof at trial, the moving party may meet its burden by showing that the admissible evidence contained in the record would be insufficient to carry the nonmoving party‟s burden of proof. Celotex Corp., 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond his or her pleadings and designate specific facts by the use of affidavits, depositions, admissions or answers to interrogatories showing that there is a genuine issue of material fact for trial. Id. at 324. The nonmoving party cannot defeat a well-supported motion for summary judgment by simply reasserting unsupported factual allegations contained in his or her pleadings. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).

IV. Discussion

The Defendants move for summary judgment with respect to all of Toth‟s claims.

Docket No. 49. Toth moves for summary judgment with respect to her retaliation claims under Title VII and the PHRA. Docket Nos. 47 & 47-1. She also seeks an order requiring the University to promote her to the position of Full Professor of Psychology. Id.

Toth‟s first amended complaint contains a retaliation claim under the Rehabilitation Act stemming from her alleged opposition to discrimination perpetrated by the University against disabled members of its faculty. Docket No. 10 at ¶¶ 143-148. In her brief in opposition to the Defendants‟ motion for summary judgment, Toth consents to the dismissal of that claim. Docket No. 67 at 2, n. 1. Therefore, the Defendants‟ motion for summary judgment will be granted with respect to Toth‟s Rehabilitation Act claim. Docket No. 10 at ¶¶ 143-148.

A. The Quid Pro Quo and "Hostile Work Environment" Claims

Title VII‟s anti-discrimination provision is codified at 42 U.S.C. § 2000e-2(a), which provides:

§ 2000e-2. Unlawful employment practices

(a) Employer practices. 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, religion, sex, or national origin; or

(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.

42 U.S.C. § 2000e-2(a). The University is an "employer" within the meaning of Title VII.*fn3 42 U.S.C. § 2000e(b). Toth is an "employee" entitled to statutory protection. 42 U.S.C. § 2000e(f).

The PHRA declares it to be an "unlawful discriminatory practice" "[f]or any employer because of the race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability . . . to refuse to hire or employ or contract with, or to bar or to discharge from employment such individual or independent contractor, or to otherwise discriminate against such individual or independent contractor with respect to compensation, hire, tenure, terms, conditions or privileges of employment or contract, if the individual or independent contractor is the best able and most competent to perform the services required." 43 PA. STAT. § 955(a). Although the PHRA is a statute of independent force under Pennsylvania law, its proscriptions have generally been construed to be coextensive with their federal counterparts. Kelly v. Drexel University, 94 F.3d 102, 105 (3d Cir. 1996). In this vein, the provisions of the PHRA are typically construed to be coterminous with parallel federal anti-discrimination statutes unless a difference in the applicable statutory language indicates that a different construction is warranted. Fogleman v. Mercy Hospital, 283 F.3d 561, 567 (3d Cir. 2002).

Individual employees may not be held liable under Title VII. Kachmar v. Sungard Data Systems, Inc., 109 F.3d 173, 184 (3d Cir. 1997). The PHRA, however, expressly makes it unlawful "[f]or any person, employer, employment agency, labor organization or employe [sic], to aid, abet, incite, compel or coerce the doing of any act declared . . . to be an unlawful discriminatory practice . . ., or to attempt, directly or indirectly, to commit any act declared . . . to be an unlawful discriminatory practice." 43 PA. STAT. ยง 955(e)(emphasis added). For this reason, there are circumstances in which an individual may be held ...

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