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Zhaojin David Ke v. Edinboro University of Pennsylvania

August 15, 2012


The opinion of the court was delivered by: Sean J., District Judge


Pending before the Court is a motion for a new trial filed by the Plaintiff pursuant to Federal Rule of Civil Procedure 59(a)(1)(A). ECF No. 113. For the reasons that follow, that motion will be denied.


Edinboro University of Pennsylvania ("University") is a member of Pennsylvania's State System of Higher Education ("System"). 24 PA. STAT. § 20-2002-A(a)(6). Dr. Frank Pogue ("Pogue") served as the University's President from July 1, 1996, through June 30, 2007. ECF Nos. 45 & 60 at ¶ 6. During the relevant period of time, Dr. Terry Smith ("Smith") served as the Dean of the University's School of Liberal Arts, Dr. Riva Sharples ("Sharples") served as the Chairperson of the Department of English and Theatre Arts ("Department"), and Janet Dean ("Dean") served as the Associate Vice-President for Human Resources and Faculty Relations. ECF Nos. 45 & 60 at ¶¶ 4-6, 65. Plaintiff Zhaojin David Ke ("Ke"), a native of China, was employed as an Assistant Professor in the Department from August 2001 through December 2007. Id. at ¶ 1.

Ke filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on January 11, 2007, alleging that the University had unlawfully discriminated against him because of his Asian race. ECF No. 43-12 at 43. He stated that he had been subjected to discrimination between August 1, 2001, and December 18, 2006. Id. Ke maintained that, during the course of his employment, he had been "subjected to unequal terms and conditions," "assigned to teach only lower level courses," and denied opportunities for promotion and tenure. Id. He alleged that he had spoken to University personnel on September 8, 2006, about racial discrimination perpetrated by Sharples, and that Sharples had retaliated against him by writing a "malicious letter" expressing opposition to his application for tenure. Id. On January 24, 2007, the University received written notice of Ke's EEOC charge. Id. at 46.

Ke filed a second charge of discrimination with the EEOC on February 6, 2007. Id. at 49-50. In that charge, Ke stated that he had informed University officials on September 8, 2006, that he would be voicing complaints about discrimination to the EEOC. Id. at 49. He asserted that, in a letter dated December 18, 2006, the University had informed him that his employment contract would not be renewed. Id. Ke alleged that the University's action had been taken in retaliation for his earlier complaints. Id.

Efforts to conciliate the matter ultimately proved to be unsuccessful. On July 1, 2008, Ke was provided with written notice of his right to sue the University for violating his rights under Title VII of the Civil Rights Act of 1964 ("Title VII") [42 U.S.C. § 2000e et seq.]. Ke commenced this action against the University, Pogue, Smith, Sharples and Dean on September 26, 2008, alleging violations of Title VII, the Fourteenth Amendment to the United States Constitution, the Pennsylvania Human Relations Act ("PHRA") [43 PA. STAT. § 951 et seq.], and Article I, § 26, of the Pennsylvania Constitution. ECF No. 1 at ¶¶ 111-120. Ke's Fourteenth Amendment claims were grounded in the Equal Protection Clause and brought pursuant to 42 U.S.C. § 1983. Id. at ¶ 112. His Title VII and PHRA claims were based on allegations that University officials had subjected him to various forms of discrimination and retaliation. Id. at ¶¶ 16-110. He also averred that his work environment had been sufficiently "hostile" and "racist" to be actionable under Title VII and the PHRA. Id. at ¶¶ 84-100.

The Defendants moved for summary judgment on July 20, 2010. ECF No. 43. On December 14, 2010, the motion for summary judgment was granted in part and denied in part. ECF No. 71 at 20. Some of Ke's Title VII claims were deemed to be time-barred. Id. at 14. It was determined that his "hostile work environment" claims were devoid of evidentiary support. Id. at 19-20. The PHRA claims against the University (and the individual defendants in their official capacities) were dismissed on the ground that they were barred by the Eleventh Amendment to the United States Constitution.*fn1 Id. at 20. The Defendants' motion for summary judgment was denied in all other respects. Id. at 16-18, 20. The Court concluded that genuine issues of material fact existed as to whether the Defendants had discriminated against Ke on the basis of his race in denying him tenure or retaliated against him by denying him tenure based on his complaints of racial discrimination. Id. at 16-18. Consequently, Ke's Title VII claims against the University, *fn2 as well as his constitutional claims against the individual Defendants under § 1983,*fn3 were permitted to proceed.*fn4 Id. 16-18, 20.

A jury was empaneled on September 6, 2011. ECF No. 104. The jury rendered verdicts in favor of all Defendants on September 13, 2011, concluding that no Defendant had discriminated against Ke on the basis of his race and that the University had not retaliated against him for engaging in protected activity. ECF No. 110. On September 28, 2011, Ke, proceeding pro se, filed the instant motion for a new trial.*fn5 ECF No. 113. Our jurisdiction is based on 28 U.S.C. § 1331.


Dr. Donald Sheehy ("Sheehy") served as the Department's Chairman immediately before Sharples. Trial Tr., Day 1, p. 58. During the summer of 2003, some of the Department's professors circulated a petition seeking Sheehy's removal. Trial Tr., Day 1, pp. 57-58. The professors supporting the petition drive believed that Sheehy had been unfair to female members of the faculty. Trial Tr., Day 2, pp. 103-104, 118. Some of the Department's other professors circulated a competing petition expressing support for Sheehy's retention. Trial Tr., Day 2, p. 170. Neither petition was signed by Ke. Trial Tr., Day 1, p. 58; Trial Tr., Day 2, pp. 119, 170. Although Dr. Catherine Whitley ("Whitley") asked Ke to sign the petition expressing confidence in Sheehy's leadership ability, he declined to do so. Trial Tr., Day 2, p. 170.

During the Fall 2004 semester, Ke became engaged in a dispute with Sheehy about the content of his courses. Trial Tr., Day 2, pp. 171-173. On November 19, 2004, Ke filed a complaint with Dean concerning Sheehy's conduct. Trial Tr., Day 1, pp. 59, 111. In the complaint, Ke accused Sheehy of racism. ECF No. 43-10 at 52-62. The complaint was apparently filed because Ke believed that, as a consequence of his Chinese background, Sheehy did not want him teaching Americans who were majoring in English. Trial Tr., Day 2, pp. 171-172. Ke partially attributed Sheehy's alleged animus to the fact that he had refused to sign the petition favoring Sheehy's retention as the Chairman. Trial Tr., Day 2, pp. 170-173. In a performance evaluation prepared in December 2004, Sheehy noted that Ke was not serving on any departmental committees. ECF No. 55-4 at 36-37. Despite this deficiency, Sheehy recommended that Ke's teaching contract be renewed for the 2005/2006 academic year. Id. at 37.

Sharples became the Chairperson of the Department on March 22, 2005. Trial Tr., Day 2, p. 77. She had previously served as Sheehy's Deputy Chairperson. Trial Tr., Day, 2, p. 186. The University's investigation into Ke's allegations against Sheehy uncovered no evidence of race discrimination. Pogue notified Ke of the results of the investigation in a letter dated June 1, 2005. Trial Tr., Day 2, pp. 185-186; ECF No. 56-2 at 46. Ke testified that he had been dissatisfied with the results of the investigation, but that he had decided not to push the matter "too hard." Trial Tr., Day 2, p. 186.

During the spring of 2005, Ke underwent surgical treatment for a medical condition. Trial Tr., Day 3, p. 8. While on leave, Ke applied for a promotion to the position of Associate Professor. Trial Tr., Day 2, p. 83. In a letter to the University-Wide Promotions Committee ("UWPC") dated November 29, 2005, Sharples stated that Ke had satisfied the "minimum requirements" for the promotion. Trial Tr., Day, 3, p. 72; ECF No. 43-11 at 12. Nevertheless, she opined that Ke's contributions in the area of "departmental and university service" had been "minimal," and that his colleagues wanted him to show more participation in that area. Trial Tr., Day 3, pp. 72-73; Trial Tr., Day 4, p. 171. Ke did not receive the promotion. Trial Tr., Day 1, pp. 83, 91.

The Association of Pennsylvania State College and University Professors ("APSCUF") served as the union for the professors teaching throughout the System's institutions. Under the collective bargaining agreement applicable to the University's professors, probationary members of the faculty were permitted to apply for tenure after teaching for five academic years. Trial Tr., Day 1, p. 97. The sixth year was a terminal year for any professor who chose not to apply for tenure, or whose application for tenure was denied. ECF No. 43-11 at 41. The tenure application process was governed by Article 15 of the collective bargaining agreement. ECF No. 56-2 at 34. Pursuant to Article 15, tenured faculty members within an applicant's department were required to make a recommendation to the University-Wide Tenure Committee ("UWTC") as to whether he or she should be awarded tenure. ECF No. 43-1 at 30-31. The departmental chairperson was also required to make a recommendation to the UWTC concerning a professor's application for tenure. Id. After reviewing both recommendations, the UWTC was charged with the duty of making a final recommendation to the President of the University. Id. at 31. The discretion to grant or deny an applicant's request for tenure was entrusted to the President. Id.

In a letter dated January 30, 2006, Pogue informed Ke that he had until May 1, 2006, to apply for tenure. ECF No. 43-11 at 14. Ke responded by submitting his application. ECF No. 43-11 at 43-57. At some point, he became aware of Sharples' letter regarding his application for the position of Associate Professor. Viewing the letter as detrimental to his prospects for advancement, Ke requested a meeting with Sharples. Trial Tr., Day 3, p. 70. Ke and Sharples met on April 18, 2006, to discuss the matter. Trial Tr., Day 4, p. 56. The meeting was not cordial. Ke threatened to complain to University officials if Sharples did not agree to recommend him for tenure. Trial Tr., Day 4, p. 147. This encounter occurred as Sharples was preparing to begin a three-week maternity leave. Trial Tr., Day 4, p. 147.

With respect to the April 18, 2006 meeting, Sharples explained that Ke had been upset about the tone of the letter that she had written in support of his promotion application. Trial Tr., Day 4, pp. 145-148. When questioned about her encounter with Ke, Sharples testified that he had threatened to "make [her] life miserable" by doing the same thing to her that he had done to Sheehy. Trial Tr., Day 4, p. 147. She stated that she had understood Ke's threat to be an attempt to "blackmail" her into supporting his application for tenure. Trial Tr., Day 4, p. 147. Professor John Repp ("Repp") testified that Sharples had met with him and Professor Thomas Lipinski ("Lipinski") shortly after her April 18, 2006, encounter with Ke, and that she had asked them to escort her to and from her classes. Trial Tr., Day 5, pp. 12-13.

On May 10, 2006, Ke complained about Sharples' conduct in a letter to Pogue. Trial Tr., Day 3, pp. 90-91; ECF No. 56-2 at 22-23. In an email sent to Sharples on May 11, 2006, Ke accused her of being a racist and threatened to report her alleged misconduct to the University's administration. Trial Tr., Day, 3, p. 103-105. After returning from her maternity leave, Sharples informed Smith of her interactions with Ke. Trial Tr., Day 4, p. 147. Sharples testified that she had submitted a written statement to Smith concerning the meeting of April 18, 2006, upon her return from maternity leave, but that she had not considered her submission of the statement to constitute the filing of a formal ...

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