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Summy-Long v. Pennsylvania State University

United States District Court, M.D. Pennsylvania

December 27, 2016

JOAN Y. SUMMY-LONG, Plaintiff,
v.
THE PENNSYLVANIA STATE UNIVERSITY, et al., Defendants.

          MEMORANDUM

          Matthew W. Brann United States District Judge.

         Today, litigation over ten years in the making comes to a close. On June 2, 2006, Joan Y. Summy-Long, Ph.D., sued The Pennsylvania State University and various other players for allegedly discriminating against her on the basis of sex and then retaliating against her when she attempted to redress her concerns. Her federal complaint was, by all accounts, the culmination of several years spent by Plaintiff zealously advocating for the equitable treatment of women faculty at the University's College of Medicine in Hershey, Pennsylvania. However, despite this case's chronicled past and the momentous resources expended on sundry procedural motions, the dearth of affirmative evidence in the record suggesting a discriminatory or retaliatory animus on the part of the Defendants requires, as the British poet T.S. Eliot once foreshadowed, that the conflict end “not with a bang but with a whimper.”[1]

         Given the tangled history of this case, it must be recognized that a superficial review of the preliminary allegations and the statistics that accompany them tend to invite hasty assumptions in the minds of newcomers unfamiliar with the action's vast procedural underbelly. Such a cursory examination disserves this case. Instead, when one considers the practical backdrop of this litigation, the stark reality is this: if a viable claim ever truly existed, Plaintiff has likely fumbled it away with her less than artful pleadings, her penchant for firing lawyers, and her persistent engagement in dilatory practices.

         Consistent with the analysis below, no genuine dispute of material fact exists as to Plaintiff's claims of discriminatory or retaliatory treatment. As such, Defendants' motion for summary judgment will be granted in full.

         BACKGROUND

         The facts of this case are well known to the Court and the parties. They have previously been set forth at length numerous times, most notably in a partial summary judgment memorandum opinion by the Honorable Yvette Kane of this Court, to whom the matter was assigned until 2013.[2] Nevertheless, this litigation now concluding, I will recount the pertinent facts for a final time.

         Plaintiff was the first ever graduate student employed by the College of Medicine's Pharmacology Department, a role she began in 1969.[3] Just under ten years later, in 1978, she received her Ph.D. in pharmacology from that very same department.[4] In her prime, Plaintiff found her second home there, having once reminisced that she “grew up and flourished as a scientist and educator in the Department of Pharmacology.”[5] Plaintiff was promoted to Associate Professor in 1983 and granted tenure in 1984.[6] She later attained the rank of Full Professor in 1992.[7]

         The College of Medicine pays its faculty under a merit-based system, a system that rewarded scholarly output and the attainment of prestigious national grants with discretionary salary increases. As the parties acknowledge, starting salaries are a function of a combination of factors, including the faculty member's rank at hire, experience, and specific expertise.[8] Likewise, faculty salaries are affected by market factors, such as the demand for and prestige of a particular discipline.[9] In addition to automatic annualized increases applied to one's base salary, a professor could also be awarded a merits-based salary increase depending upon her publication history and grant outcomes during the prior year.[10]

         These merit-based incentives were determined by the faculty member's department chair.[11] The department chair would allot merits increases from a limited pool of funds, and by definition, faculty members received distinct merits increases, if any, depending on their annual achievements.[12] The amount of a faculty member's annual merit increase was therefore generally a function his or her level of performance.[13] Furthermore, faculty members received an 8% base salary increase on promotion from Assistant Professor to Associate Professor and promotion from Associate Professor to Professor.[14]

         Plaintiff, along with another female faculty member at the College of Medicine, formed the Women's Faculty Group in 1999 to advocate for issues affecting women faculty.[15] Shortly after its formation, the Women's Faculty Group identified salary equity for women faculty as an important concern.[16] In August 2000, the Women's Faculty Group discussed the disparate salary compensation issue at a meeting with then College of Medicine Dean Darrell Kirch and again with Vice Dean for Faculty and Administrative Affairs Kevin Grigsby in October of that year.[17]

         Shortly thereafter, the University's Affirmative Action Office conducted an analysis of faculty salaries within the College of Medicine's basic science departments.[18] The study, released on July 21, 2000, concluded that “sex is not a significant factor in explaining salary in this population and there is no indication of systemic bias on the basis of sex.”[19] Several members of the Women's Faculty Group did not accept the accuracy of this study and in a January 2001 memorandum addressed to Grigsby, the Women's Faculty Group questioned the integrity of the results.[20]

         Acknowledging an inconsistency in the way in which certain salary data was gathered or reported, the University agreed to conduct a subsequent salary study for the College of Medicine and to retain an outside expert to do so.[21] The University retained Dr. Lois Haignere, President of Haignere, Inc., to conduct the study.[22] Dr. Haignere's study was confined to the 2001-2002 academic year and did not render any individualized conclusions.[23] However, in her 2004 report, Dr. Haignere concluded that there existed a difference, though not a statistically significant one, between the salaries paid to male and female faculty members as a class.[24] As a consequence of the findings of the Haignere Report, all tenured and tenure-track white female basic scientists, including Plaintiff, received a 3.8% salary increase effective July 1, 2004.[25]

         For the next few years, Plaintiff underperformed her male counterparts academically. In particular, despite having devoted 80% of her time to research activities, Plaintiff's superiors would grow dissatisfied with her scholarly output. For instance, in her annual evaluation following the 2006-2007 academic year, Dr. Kent Vrana, then the Chair of the Pharmacology Department, indicated that he expected to see “growth” in Plaintiff's “[r]esearch efforts” during the next evaluation period.[26] The assessment noted that without Plaintiff obtaining additional grants or an extension of her existing grant, “funds will soon be exhausted to support [her] laboratory's research.”[27] Dr. Vrana “urged” Plaintiff to “increase publications” and “seek extramural funding to support [her] research efforts and that portion of [her] salary that is requested by the institution.”[28]

         In that same review, Dr. Vrana memorialized the following exchange: He decided to offer Plaintiff the opportunity to chair a committee after she complained about the lack of such opportunities during her evaluation discussion, but she rejected him, stating “I don't feel I should have to ask, and I now am not interested in chairing a committee.”[29] The evaluation concluded that it was “vitally important” for Plaintiff to make application for the renewal of her existing grant or to “explore other opportunities that might be funded in the near-term.”[30]

         Of particular emphasis was Plaintiff's failure to timely apply for renewal of her 2003 National Institute of Health (NIH) grant. Grant awards are important to the College of Medicine because they help defray personnel costs.[31] In fact, NIH grants are the most significant form of funding a biomedical researcher can receive.[32] Thus, although NIH funding may wax and wane, sustained grants of that type are considered the hallmark of a successful career for a biomedical researcher.[33] Grant funding is so critical to the efficient operation of medical schools like the College of Medicine that it established a 25% external salary support benchmark, requiring that its faculty members fund a minimum of 25% of their salary with the proceeds of external research grants.[34]

         As the College of Medicine's 2003 Academic Compensation Plan (referred to by the parties as the “ACP”) explained, “It is important that faculty strive to obtain additional grant-derived salary dollars, which are necessary for the department to fulfill its obligations for support of faculty salaries and additional expenses to maintain the department.”[35] It should be noted that the 25% requirement was set below the College of Medicine's ideal goal of 50% salary support through external grant funding for each faculty member.[36] Should a faculty member's external support fall below the 25% threshold level, that individual would begin a probationary period one and a half to two years in length, after which time, her salary would be reduced by 8.3% (the value of one month's pay in a twelve-month contract) if her funding was not satisfactorily restored.[37]

         The NIH grant at issue in Plaintiff's case was awarded in 2003 and permitted her to fund 50% of her salary for the 2003-2004, 2004-2005, and 2005-2006 academic years.[38] As Dr. Vrana explained during his deposition, grant recipients typically attempt to apply for renewal approximately nine months before the expiration of the funded period.[39] By all accounts, however, Plaintiff's dilatoriness in regard to her renewal application cost her the opportunity secure this particular NIH funding for an additional period. Dr. Vrana testified that “in three successive years, we [Dr. Vrana and Plaintiff] talked about resubmitting that grant.”[40] Dr Vrana went on to explain that the Plaintiff “failed to do it at the normal deadline and then committed to do it the following year, missed that deadline, [and] missed the next deadline.”[41] All told, during her time as a member of Dr. Vrana's department, “the bottom line was that she [Plaintiff] never resubmitted that grant for funding.”[42]

         Further, the parties agree that the primary duty of a basic scientist like Plaintiff here is “to perform biomedical research and publish the results of the research.”[43] Thus, in quite cyclical fashion, a research scientist's publications were inextricably linked with her ability to court external funding and therefore enable further experimentation, further publication, and so forth. However, between 2004 and 2007, the time period during which she was asked to bolster her scholarly contributions, Plaintiff published only one article.[44] Comparatively, Dr. Vrana noted that although there is “no hard and fast rule, ” faculty similarly situated to Plaintiff would be expected to publish, on average, ten to fifteen articles during any given three-year span.[45] Vrana published nineteen articles during that exact time period.[46]

         Dr. Vrana made explicit that this lack of funding and lack of scholarly output accounted for Plaintiff's poor evaluations relative to males in the department:

Q. You've explained in pretty good detail how you evaluated Dr. Summy-Long. Were there male colleagues of hers who also weren't getting things published at that time?
A. Were not getting things published? No, there were none.
Q. There none?
A. That were not getting things published.
Q. What about the grants, getting grants renewed, did you have to have any conversations like this like you described you had with her with any male colleagues in the department?
A. No. They all had funding at that time. Towards the end, Dr.Levenson may have-he lost his funding but got it right back. So I didn't have to have that conversation because he submitted lots of grants.[47]

         Taking into consideration these factors, Dr. Vrana set all of the salaries in the Pharmacology Department, subject to administrative approval.[48] As he explained, Plaintiff's “history of funding . . . was consistent with her being the lowest [paid]. And if you look at the number of grant dollars brought in up to that point or at that point, she was the lowest. She hadn't published much in the preceding couple of years.”[49] As such, Plaintiff's salary was reduced effective July 1, 2009 under the terms of the Academic Compensation Plan.[50] The reduction came after the Plaintiff left the Pharmacology Department and joined the Neural and Behavioral Sciences Department as a consequence of what she perceived to be a lack of support from Dr. Vrana and his administrative staff.[51]

         Plaintiff filed her federal civil rights complaint with this Court on June 2, 2006, before any other member of the Women's Faculty Group had done so. On April 23, 2007, the remaining female faculty at the College of Medicine who claimed that their salaries were tainted by sex discrimination filed a separate federal action together in this district captioned as Schengrund, et al. v. The Pennsylvania State University, et al.[52] For certain earlier key procedural decisions that determined the applicable recovery periods, the Schengrund case, like this case, was assigned to Judge Kane. At no time did the Plaintiff ever move for class certification, and the remaining women never sought to consolidate their case with hers.

         An interrogatory response reveals that the other members of the Women's Faculty Group may have waited for the results an additional administrative proposal before filing their action, thought the record is disappointingly quiet as to Plaintiff's separation from her one-time allies.[53] Moreover, the record in the Schengrund matter reveals that one of the plaintiffs in that case made the following observation about the Plaintiff here during her deposition:

Q. Did there come a time when you were aware that the Women's Faculty Group was requesting that a salary study be done by an external person?
A. Yes.
Q. Did you know that there was some push to get that done?
A. I think by-Joan Summy-Long said that to me or in some discussion had mentioned that. . . . I couldn't really say because I don't know when Joan could have told me. But when that would be and whether I really paid attention because she was always talking about issues and problems and things. And like I said, I would just go and do my work after that discussion. Like a lot of times she was upset so it was more to me, you know, consoling her sort of.[54]

         Interestingly, it can also be discerned from the record that on February 3, 2009, Plaintiff moved this Court to consolidate her case with the Schengrund matter.[55] In the certificate of non-concurrence required under our Local Rules, counsel for the Defendants in the present matter contested consolidation, while counsel for the plaintiffs in Schengrund represented that he “has not yet formulated his position and will advise the court and counsel in due course.”[56] That position was never revealed, however, as Judge Kane denied Plaintiff's motion to consolidate sua sponte on February 27, 2009, as a consequence of Plaintiff's failing to submit an appropriate supporting brief also in accordance with our Local Rules.[57]

         Early in 2010, after Judge Kane had issued her memorandum opinion on the applicable recovery periods in both cases, the Schengrund plaintiffs opted for mediation and dismissed their action pursuant to a settlement agreement shortly thereafter.[58] Thus, although Plaintiff's complaint had initially been captioned as a putative class action, when all of the remaining aggrieved female faculty settled their claims, it became inevitable that Plaintiff was proceeding on an individualized basis.

         On March 24, 2010, Judge Kane issued a memorandum opinion disposing of Defendants' partial summary judgment motion and assessing the effects of the Lilly Ledbetter Fair Pay Act of 2009 on Plaintiff's claim.[59] “In [that] motion for partial summary judgment, Defendants [sought] a determination that the statutes of limitations attached to the laws at issue foreclose Plaintiff's recovery for events occurring prior to 2003 or 2004 despite the fact [that] some of the discrimination she alleges dates back to the 1970s.”[60] In her March 2010 summary judgment memorandum and in a subsequent November 2010 motion for reconsideration memorandum, Judge Kane agreed and issued the following order, explicitly limiting the applicable recovery periods as follows:

1. Plaintiff may recover for discriminatory paychecks or actions that accrued on or after February 26, 2004, in her Title VII claim;
2. Plaintiff may recover for discriminatory paychecks or actions that accrued on or after June 25, 2004, in her PHRA claim;
3. Plaintiff may recover for discriminatory paychecks or actions that accrued on or after June 2, 2004, in her Title IX, Section 1983, Section 1985, and PERA claims;
4. Plaintiff may recover for discriminatory paychecks or actions that accrued on or after June 2, 2003, in her EPA claim; and
5. Plaintiff may recover for discriminatory paychecks or actions that accrued on or after June 2, 2004, in her PEPL claim.[61]

         Unfortunately, as this Court has recounted in prior memoranda and orders, since the matter was reassigned from Judge Kane to me on January 17, 2013, I began to face, ad nauseam, a recurring stream of requests on Plaintiff's part to both change counsel and to enlarge the time allotted for discovery.[62] All told, Plaintiff contracted with six different attorneys throughout the course of her case. As I observed, Plaintiff's proclivity to exhaust counsel had become “a not altogether surprising” facet of this litigation.[63]

         With six new lawyers also came Plaintiff's continued efforts to extend the discovery period. This Court had previously extended the discovery deadline five times for Plaintiff: ECF No. 164 (first, extending discovery through January 10, 2014); ECF No. 166 (second, extending discovery through April 23, 2014); ECF No. 168 (third, extending discovery through July 22, 2014); ECF No. 175 (fourth, extending discovery through June 3, 2015); and ECF No. 203 (fifth and finally, extending discovery through August 7, 2015). In fact, even before it had granted the final extension, this Court had already remarked in a prior order that it “[could] envision no conceivable exception to this clearly articulated deadline” and that “no further extensions of time to complete this rather fundamental litigation task would be permitted.”[64]

         Still, on the final day of the fact discovery deadline, Plaintiff again came to this Court seeking to compel Defendants to comply with a stale 2014 discovery request.[65] Plaintiff filed the initial request, which she then sought to compel, on January 3, 2014.[66] However, the Defendants had previously advised Plaintiff of their objections to producing the documents on January 13, 2014 and again on March 13, 2014.[67] In my view, the motion to compel would have forced Defendants to produce a host of documents that would effectively enlarge the temporal scope of this already-prolonged litigation by twenty-four years.[68] Because that request was overly broad and unduly burdensome and because granting further discovery extensions to Plaintiff would strain the bounds of reasonableness and fairness to all litigants, this Court denied Plaintiff's motion.[69] In response, Plaintiff filed a motion to certify this Court's order for interlocutory appeal.[70] Because Plaintiff failed to show that interlocutory appeal was warranted, her motion was denied.[71]

         The Defendants filed their motion for summary judgment on December 18, 2015.[72] After requests to supplement the record by both parties were granted, the motion ripened on April 28, 2016.[73] In accordance with the following reasoning, Defendants' motion for summary judgment will be granted in full.

         LAW

         “One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose.”[74] Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[75]“Facts that could alter the outcome are ‘material facts, ' and disputes are ‘genuine' if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct.”[76]

         “A defendant meets this standard when there is an absence of evidence that rationally supports the plaintiff's case.”[77] “A plaintiff, on the other hand, must point to admissible evidence that would be sufficient to show all elements of a prima facie case under applicable substantive law.”[78]

         “[T]he inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.”[79] Thus, “[i]f the defendant in a run-of-the-mill civil case moves for summary judgment or for a directed verdict based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.”[80] “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”[81] “The judge's inquiry, therefore, unavoidably asks . . . ‘whether there is [evidence] upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed.'”[82]

         “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.”[83] “[R]egardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied.”[84]

         Where the movant properly supports his motion, the nonmoving party, to avoid summary judgment, must answer by setting forth “genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.”[85] For movants and nonmovants alike, the assertion “that a fact cannot be or is genuinely disputed” must be supported by: (i) “citing to particular parts of materials in the record” that go beyond “mere allegations”; (ii) “showing that the materials cited do not establish the absence or presence of a genuine dispute”; or (iii) “showing . . . that an adverse party cannot produce admissible evidence to support the fact.”[86]

         “When opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must ‘identify those facts of record which would contradict the facts identified by the movant.'”[87] Moreover, “[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion.”[88] On motion for summary judgment, “[t]he court need consider only the cited materials, but it may consider other materials in the record.”[89]

         “[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”[90] “[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.”[91] “If the evidence is merely colorable . . . or is not significantly probative, summary judgment may be granted.”[92]

         As the United States Court of Appeals for the Third Circuit has explicitly instructed district courts who are disposing of a summary judgment motion in the employment discrimination setting:

[T]o defeat summary judgment when the defendant answers the plaintiff's prima facie case with legitimate, non-discriminatory reasons for its action, the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. In other words, . . . a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.
[T]o avoid summary judgment, the plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employer's proffered non-discriminatory reasons was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext).
To discredit the employer's proffered reason, however, the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted non-discriminatory reasons. While this standard places a difficult burden on the plaintiff, it arises from an inherent tension between the goal of all discrimination law and our society's commitment to free decisionmaking by the private sector in economic affairs.[93]

         ANALYSIS

         I. There Is No Genuine Dispute Of Material Fact With Respect To Plaintiff's Sex Discrimination Claims.

         For the reasons that follow, I conclude that there is no genuine dispute of material fact as to whether the Defendants discriminated against Plaintiff on the basis of sex. Accordingly, Defendants' motion for summary judgment is granted as to the following counts: Count I (Title VII Discrimination); Count II (Title IX Discrimination); Count III (Pennsylvania Human Relations Act Discrimination); and Count IV (Federal Equal Pay Act Discrimination/Pennsylvania Equal Pay Act Discrimination; Pennsylvania Equal Rights Amendment Discrimination; and Discrimination pursuant to 42 U.S.C. §§ 1983, 1985).

         A. Plaintiff styled this action as a disparate treatment claim and is precluded from tacking on novel theories of liability in her summary judgment brief.

         Plaintiff asks the Court to construe her sex discrimination claims as asserting a disparate impact theory of liability, despite a long and settled history to the contrary. That the Court must still endeavor at this stage of the litigation to discern the exact causes of action upon which Plaintiff seeks to proceed speaks volumes both to this case's convoluted history and to the circuitous manner in which Plaintiff has prosecuted it. Still, because the substance of Plaintiff's papers in opposition to summary judgment equivocate as to the applicable theory of liability, such an inquiry is unfortunately required.

         It is black letter law that the plaintiff is the master of her complaint.[94] She may “decide what law [s]he will rely upon, ” “may pursue or omit any available cause of action [s]he chooses, ” and may select “specific theories of recovery.”[95] As such, “a plaintiff may not defeat summary judgment by asserting a claim that [s]he did not plead in the complaint.”[96] Rather, “[a]t the summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend the complaint in accordance with Rule 15(a).”[97] “To permit a plaintiff to do otherwise would subject defendants to unfair surprise, ” as “the Federal Rules of Civil Procedure still require that the complaint give the defendant fair notice of the claim and its supporting facts.”[98]

         By extension, several courts have held that the plaintiff in an employment discrimination case cannot avoid summary judgment on a given theory of liability-disparate treatment or disparate impact, for instance-having withheld a countervailing theory only to slyly reveal it in a summary judgment brief. A leading decision by the United States Court of Appeals for the Third Circuit is Josey v. John R. Hollingsworth Corp.[99] The plaintiff in Josey brought a Title VII disparate treatment claim, alleging that he had been discharged and mistreated in the workplace because of his race.[100] After discovery closed, the plaintiff raised a disparate impact theory for the first time in his summary judgment papers.[101] Even though the disparate impact claim was based upon a similar set of facts, the district court rejected it outright, reasoning that “[t]hese new allegations were never pled and would obviously prejudice [the defendant] because it would face completely different burdens and defenses.”[102] The district court termed that tactic “incredibl[e]” and concluded that it was “improper to allow plaintiff to proceed with these new allegations in opposing summary judgment.”[103]

         The Third Circuit affirmed the district court's preclusion of the eleventh-hour disparate impact allegations, expressing similar concerns over potential prejudice to the defendant, expansion of the applicable burdens and defenses, and any resultant delay in the matter's disposition.[104] Further, the court explained that wholesale addition of a novel claim at the summary judgment stage was highly improper given Federal Rule of Civil Procedure 15(a)'s liberal standard for amended pleadings.[105] The Third Circuit concluded that the disparate impact allegations were appropriately disregarded-to hold otherwise would impermissibly “weaken the district court's control over its own docket.”[106]

         The Third Circuit again confronted a plaintiff who failed to timely plead a disparate impact theory in Spence v. City of Philadelphia.[107] In nearly identical procedural posture to that in Josey, the Spence court affirmed a district court's grant of summary judgment in favor of a defendant against whom a disparate impact theory was not raised until after the close of discovery.[108] Like the plaintiff in Josey, the plaintiff in Spence did not raise a disparate impact theory in his Equal Employment Opportunity Commission (EEOC) charge or his federal complaint; rather, he raised it for the first time in his summary judgment papers.[109]

         The Third Circuit in Spence appealed to the fundamental notion that a claim not timely raised is waived.[110] To consider a belated claim would “impermissibly prejudice[ ]” a defendant forced to defend against “a new theory of liability” with effectively “no notice” of the claim's particulars.[111] The Third Circuit also cited for support the decision by the United States Court of Appeals for the Ninth Circuit in Coleman v. Quaker Oats Co. That case stands for the explicit proposition that “where a plaintiff sets forth only the disparate treatment theory in his pleadings and does not move to amend his complaint until summary judgment following the close of discovery, the plaintiff is barred from proceeding on the disparate impact theory.”[112]

         Josey, Spence, and Coleman require that Plaintiff's untimely references to disparate impact discrimination be disregarded. To permit a last-ditch alteration in her case theory would alter the playing field in such a way as to impede presentation of an adequate defense.[113] The critical question from the beginning has always been, as Defendants succinctly state, “whether Plaintiff Joan Summy-Long's salary at Penn State's College of Medicine was the result of sex discrimination.”[114] Plaintiff's own complaint confirms this. Her leading paragraph in the “Nature of Action” section confines her complaint to “unlawful discriminatory practices by Defendants in the employment of the Plaintiff and other women with respect to compensation, terms, conditions and privileges of employment, because of their sex (female).”[115] Again, in the “General Allegations” section, Plaintiff suggests that the complained-of discrimination “manifest[ed] itself in gender and/or gender-age inequities in salary compensation and all benefits, including calculation of pension and retirement payments that are based upon salary compensation.”[116]

         These averments, even if they contemplated proceeding on a classwide basis when written, nevertheless suggest that Plaintiff wished only to rely upon a disparate treatment theory that contested discrete salary determinations and not on a disparate impact theory, the latter of which would require identification of a particular policy or practice that negatively affected women. Even the averments under the “Count I” (Title VII) heading limit Plaintiff to a disparate treatment theory. The only substantive paragraph containing factual allegations about the supposed discrimination is Paragraph 34, which reads as follows: “The gender and/or gender-age discrimination consisted, in part, of the denial of appropriate adjustments and different treatment with regard to standing, benefits, salary, bonuses, position, and other benefits of employment than similarly-situated males.”[117] Consequently, no averment is devoted to any particular policy or practice that had a disparate impact on female wage-earners. To the contrary, the sole focus is on discrete, individualized employment decisions.

         It is tempting to make the following counter-argument: the Court was deciding a case about alleged sex discrimination before and even if it permits Plaintiff's late disparate impact theory, it will be deciding a sex discrimination case afterward. That is, however, too high a level of generality from which to view this prolonged, complex matter. In addition, it neglects the existence of distinct legal burdens and defenses applicable to each of these divergent theories of discrimination.

         Further, by not grieving a disparate impact theory in her Pennsylvania Human Rights (PHRA) complaint, plaintiff has failed to exhaust the required administrative remedies. “Plaintiffs pursuing discrimination claims must file a discrimination charge with the required agencies, including the EEOC, prior to filing in federal court.”[118] As the United States Court of Appeals for the Second Circuit has explained, “[e]xhaustion is ordinarily ‘an essential element' of a Title VII claim.”[119] The purpose of the grievance process's notice provision “is to encourage settlement of discrimination disputes through conciliation and voluntary compliance, ” which “would be defeated if a complainant could litigate a claim not previously presented to and investigated by the EEOC.”[120] Thus, unless claims omitted from an EEOC charge or a state-comparable complaint are “reasonably related” to those enumerated ones, the omitted claims cannot be brought in federal court.[121] The “central question” is whether the administrative complaint provided that agency “adequate notice to investigate discrimination on both bases.”[122]

         In particular, the Second Circuit has ruled that “complaints of individualized disparate treatment are not reasonably related to a Title VII disparate impact claim alleging class-wide discrimination.”[123] By extension, in Cavallaro v. Corning, Inc., the United States District Court for the Western District of New York applied Second Circuit precedent to exclude a disparate impact claim where only a disparate treatment theory had been properly grieved. The court wrote:

Plaintiff contends that the EEOC would naturally have investigated the application of Corning's rules to all employees. This is simply too far a stretch. To adopt plaintiff's position would allow virtually every disparate treatment claim to encompass a disparate impact claim as well. Plaintiff's disability discrimination claim based upon a theory of disparate impact must therefore be dismissed on the additional ground that it exceeds the scope of his administrative charge.[124]

         Plaintiff's Pennsylvania Human Relations Commission complaint, which she cross-filed with the Equal Employment Opportunity Commission, was brought solely on behalf of herself and omitted reference to any other female co-workers who earned a lower salary than male faculty members.[125] Like the averments contained in Plaintiff's federal complaint, the substantive allegations in the administrative charge focus only upon discrete employment actions, such as the provision of less favorable “compensation, terms, conditions and privileges of employment.”[126] Plaintiff also alleged that gender discrimination manifested itself in the “calculation of pension and retirement payments that are based upon salary compensation.”[127] The nature of these averments, all of which complain of discrete employment actions, conforms only to a disparate treatment theory of discrimination. A critical piece of any successful disparate impact complaint is missing: Plaintiff identified no policy or practice that resulted in the generalized discrimination she contests.

         Moreover, the procedural history of this action has expressly limited its scope to a disparate treatment theory. Plaintiff's own statement of the case in the joint case management plan, a document used by the Court to fashion the bounds of discovery, states that “Plaintiff alleges that Defendants engaged in discriminatory practices based on gender, manifesting itself in different treatment with regard to standing, benefits, salary, bonuses, position, and other benefits of employment than similarly-situated males.”[128] Like those previously discussed, that statement hews closely to a disparate treatment theory and omits discussion of the core characteristics of a disparate impact theory in their entirety.

         The comprehensive list of factual issues in dispute from that same document confirms this focus on a disparate treatment theory to the exclusion of a disparate impact theory. The list reads:

(a) Whether Defendants engaged in gender or gender-age discrimination.
(b) Whether Defendants denied appropriate adjustments and engaged in different treatment of females and Plaintiff in particular with regard to standing, benefits, salary, bonuses, position, and other benefits of employment than similarly situated males.
(c) Whether Defendants engaged in illegal discrimination against faculty members, including Plaintiff, by paying female faculty members, including Plaintiff, less than male faculty members for work requiring equal skill, effort, and responsibility on the basis of sex.
(d) Whether Defendants discriminated against Plaintiff and/or retaliated against Plaintiff as a result of her activities directed toward reduction and/or elimination of gender bias and discrimination.[129]

         Again, in my view, this list conforms closely to the hallmark elements of a disparate treatment theory and quite plainly lacks the necessary features of a viable disparate impact claim. Specifically, the parties do not dispute the existence of a policy or practice responsible for a generalized salary disparity based on sex.

         Perhaps most strikingly is the fact that the Defendants have previously brought this precise procedural flaw to Plaintiff's attention. On October 23, 2008 in a filing that contested the timeliness of Plaintiff's claims, Janine C. Gismondi, Esquire, counsel for the Defendants, pointed out that “not only has Plaintiff failed to exhaust her administrative remedies for any disparate impact claim, she has not pled a disparate impact claim in her Complaint.”[130] “Nothing in Plaintiff's Complaint or, indeed, in her Brief, ” Ms. Gismondi continued, “identifies a specific employment practice that allegedly caused a disparate impact to Plaintiff. As such, she has not asserted a disparate impact claim.”[131]

         I agree that the quoted language, perhaps appearing prophetic to outsiders though eerily omniscient to those well-versed with this action, rings just as true now as when it was first uttered. More importantly, however, it establishes that the Plaintiff was on notice as early as 2008 that there existed severe procedural deficiencies in her filings. The appropriate time to amend the operative theory in her complaint and to cure that flaw would have been then, not eight years later, buried in the argument section of a summary judgment brief.

         B.A disparate impact theory would nevertheless fail as a matter of law because Plaintiff has not identified the specific employment practice that she is challenging.

         Even were the Court to reach her purported disparate impact theory, I would be forced to reject it as a matter of law, the Plaintiff having failed to adequately identify any policy or practice responsible for the suggested compensation discrepancies. When a plaintiff fails to identify the precise mechanism by which an employer is alleged to have discriminated against a given class, the essential underpinnings of disparate impact claim have not been proffered, and such a claim must therefore fail as a matter of law.

         The Supreme Court of the United States has explained that identification of a statistical disparity between members of a protected class and employees not belonging to that class is insufficient to support a disparate impact claim. Neither does a generalized policy of mistreatment suffice. Rather, the plaintiff must reach beyond facial discrepancies and pinpoint the exact discriminatory vehicle. In Smith v. City of Jackson, Mississippi, the Court explained as much in the context of age discrimination:

Turning to the case before us, we initially note that petitioners have done little more than point out that the pay plan at issue is relatively less generous to older workers than to younger workers. They have not identified any specific test, requirement, or practice within the pay plan that has an adverse impact on older workers. As we held in Wards Cove, it is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities. Petitioners have failed to do so. Their failure to identify the specific practice being challenged is the sort of omission that could result in employers being potentially liable for the myriad of innocent causes that may lead to statistical imbalances.[132]

         Further, in Wal-Mart Stores, Inc. v. Dukes, the Supreme Court clarified that generalized accusations of bias are insufficient to satisfy this aspect of a disparate impact claim, particularly in cases involving a large institutional defendant wherein discretion is delegated and exercised at several junctures throughout the organizational structure. Though the Court reached this conclusion through the lens of Federal Rule of Civil Procedure 23's “commonality” requirement for class actions, the underlying substantive law claim for which the class members sought certification was that of sex discrimination based upon a disparate impact theory:

To be sure, we have recognized that, in appropriate cases, giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory-since an employer's undisciplined system of subjective decisionmaking can have precisely the same effects as a system pervaded by impermissible intentional discrimination. But the recognition that this type of Title VII claim “can” exist does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common.
. . .
Respondents have not identified a common mode of exercising discretion that pervades the entire company-aside from their reliance on [the] social frameworks analysis that we have rejected. In a company of Wal-Mart's size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction. Respondents attempt to make that showing by means of statistical and anecdotal evidence, but their evidence falls well short.
. . .
In the landmark case of ours [Watson v. Fort Worth Bank & Trust] which held that giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory, the plurality opinion conditioned that holding on the corollary that merely proving that the discretionary system has produced a racial or sexual disparity is not enough. The plaintiff must begin by identifying the specific employment practice that is challenged. That is all the more necessary when a class of plaintiffs is sought to be certified. Other than the bare existence of delegated discretion, respondents have identified no “specific employment practice”-much less one that ties all their 1.5 million claims together. Merely showing that Wal-Mart's policy of discretion has produced an overall sex-based disparity does not suffice.[133]

         The plurality opinion in Watson v. Fort Worth Bank & Trust, the landmark case that the Wal-Mart Court cited, explicitly sought to provide “a fresh and somewhat closer examination of the constraints that operate to keep [disparate impact] analysis within its proper bounds.”[134] To accomplish this, the plurality opinion in Watson set forth a three-layer system of restraints that it hoped would curtail overuse of the disparate impact theory of liability.

         After Watson, a plaintiff “must begin by identifying the specific employment practice that is challenged.”[135] Even though identification of such a practice may be “difficult” in cases involving subjective selection criteria, the Court made clear that generalized notions of bias were insufficient. It wrote that “[e]specially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.”[136]

         Next, “[o]nce the employment practice at issue has been identified, causation must be proved; that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.”[137] As to this step, the Watson Court explained that “statistical disparities must be sufficiently substantial that they raise such an inference of causation.”[138] Thus, minor statistical correlations are insufficient and necessarily fail at this stage. Rather, courts must demand causal proof that the complained of policy results, for class members, in employment outcomes “significantly different” and “substantially disproportionate” from that of non-class members.[139]

         Lastly, a court need not accept a plaintiff's statistical evidence but may conduct its own inquiry into the data's reliability as well as the true statistical measures for the given population. Similarly, “[i]f the employer discerns fallacies or deficiencies in the data offered by the plaintiff, he is free to adduce countervailing evidence of his own.”[140] Though the Court did not provide an exhaustive list of the types of flaws that would render statistical data unsuitable for federal court, it did note that small or incomplete data sets, conclusions that rested on faulty comparisons, and methodologies that employed inadequate statistical techniques would all fail at this stage.[141]

         Plaintiff's disparate impact theory suffers from at least three fatal flaws that directly track the Watson framework: first, she fails to identify with any specificity the particular practice or policy that might explain the male-female salary discrepancy that she alleges exists; second, she has failed to establish causation either generally or in her case in particular; and finally, the surveys upon which she relies failed to consider lurking variables other than sex that might explain the male-female salary discrepancy and did not yield statistically significant results.

         C. Plaintiff's Title VII claim must fail because she has not established a prima facie case or shown that the Defendants' legitimate, non-discriminatory explanation of her poor academic performance is merely pretextual.

         As expanded upon more fully below, summary judgment in favor of the Defendants is appropriate as to Plaintiff's Title VII claim. The statistical evidence cited by Plaintiff fails to establish a prima facie case for a disparate treatment claim of sex discrimination. In addition, the Plaintiff has failed to show that the Defendants' legitimate, non-discriminatory explanation-that her academic performance fell well below that of her peers-is mere pretext.

         1. The statistical evidence cited by Plaintiff fails to establish a prima facie case for a disparate treatment claim of sex discrimination.

         “The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of [ ] discrimination.”[142] “Since the precise elements of a prima facie case often depend on the nature of the particular factual dispute at issue, a ‘one-size-fits-all' approach cannot be used in this context. Instead, the elements of a prima facie case must be tailored to fit the specific context in which they are applied.”[143]

         In order to establish a prima facie case of pay discrimination based upon sex under Title VII, a plaintiff must show that: (1) she was a member of a protected class; (2) she was performing her job satisfactorily; (3) she suffered an adverse employment action; and (4) similarly situated employees of the opposite sex were treated more favorably.[144] “The central focus of the prima facie case is always whether the employer is treating some people less favorably than others because of their race, color, religion, sex, or national origin.”[145] Thus, “in order to establish a case of unequal pay, plaintiffs must demonstrate that they were performing work substantially equal to that of [male] employees who were compensated at higher rates than they were.”[146] Arguably, Plaintiff has not satisfied any of these requirements but for showing that, as a female, she belongs to a protected class under the law.

         “If the plaintiff can establish a prima facie case, the employer must then give a legitimate, nondiscriminatory reason for its action in order to rebut the inference of discrimination.”[147] “If the employer presents such a reason, the plaintiff can still prove discrimination by showing that the stated reason is a mere pretext for a decision motivated by discrimination.”[148] However, “if a plaintiff fails to establish a prima facie case of discrimination or fails to raise a genuine factual dispute concerning the employer's legitimate and non-discriminatory explanation for the alleged discriminatory act, the defendant is entitled to summary judgment.”[149]

         Plaintiff's brief in opposition to Defendants' summary judgment motion is muddled, unfocused, and severely lacking in probative force. For starters, the Court considers it bewildering that counsel for Plaintiff devoted eighteen of the brief's twenty-four pages to revisiting prior discretionary discovery rulings that did not go his client's way. Regardless, counsel for Plaintiff has left the Court with a farrago of statistics, allegations, and deposition snippets that miss the mark altogether in a disparate treatment case.

         The crux of Plaintiff's argument is that “it should be clear from . . . the history of salary studies at the Medical College that Plaintiff Summy-Long, as well as other women faculty, were discriminated against by regularly being paid salaries lower than their male comparators.”[150] To the contrary, the Third Circuit has previously instructed that district courts to treat statistical evidence “with caution” in disparate treatment cases.[151] Indeed, as defense counsel points out, the Third Circuit has even “note[d] the relative unimportance of statistical evidence in an individual treatment case.”[152] The United States Court of Appeals for the Seventh Circuit too has written that “we fail to see how [the plaintiff's] broad-based evidence is more than collaterally relevant to his individual claim.”[153] Lower courts have followed such admonitions as well. For instance, the United States District Court for the Eastern District of Pennsylvania dismissed a disparate treatment claim that relied solely upon generalized statistics, reasoning that such pattern and practice evidence “could not sustain” the action or help it rise “above the level of [ ] speculative.”[154]

         The reason for such distrust of statistical evidence as the sole means of proof in a disparate treatment case was verbalized by the Supreme Court in Cooper v. Federal Reserve Bank:

The crucial difference between an individual's claim of discrimination and a class action alleging a general pattern or practice of discrimination is manifest. The inquiry regarding an individual's claim is the reason for a particular employment decision, while at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking.[155]

         Arguably, the preeminent appellate decision calling into question the unbridled use of generalized statistics to support a disparate treatment claim is that of the United States Court of Appeals for the Fifth Circuit in Pouncy v. Prudential Insurance Company of America.[156] The plaintiff in Pouncy, a black employee of Prudential Insurance, alleged that the company had discriminated against black workers as a class by affording them less favorable conditions of employment relative to white workers.[157] Specifically, the plaintiff presented statistics purportedly demonstrating that the company intentionally paid its black workers less on average than white counterparts.[158]

         The statistical evidence at issue in Pouncy was that of a mean salary comparison between black and white employees hired by the company from 1973 through 1978. According to the plaintiff, the evidence sustained the inference of international discrimination, because it showed that white employees had a greater mean weekly salary than black employees.[159] To the contrary, the Fifth Circuit affirmed the district court's bench trial judgment in favor of the defendant and termed the plaintiff's statistics “a naked comparison of average weekly salaries without regard to level of skill, education and training from which no meaningful conclusion can be drawn . . . much less a prima facie case.”[160]

         According to the Fifth Circuit, the fatal flaw evident in the statistical methodology in Pouncy was, like that of the Haignere Report here, a “fail[ure] to take into account the fact that a number of factors operate simultaneously to influence the amount of salary an employee receives.”[161] Specifically, the Fifth Circuit reasoned that the purported mean salary discrepancies “may be explained by any number of nondiscriminatory factors.”[162] For instance, it wrote that “[d]ifferent job levels, different skill levels, previous training, and experience: all may account for unequal salaries in an environment free of discrimination.”[163] To proceed otherwise would be akin to following, as the Pouncy court termed it, a “baseless assumption” predicated upon “inconclusive evidence.”[164]

         The Haignere Report, Plaintiff's lead piece of evidence, suffers from equally damning flaws. From the outset, one might observe that the Haignere Report was not prepared as an expert submission in anticipation of litigation, meant to conclusively establish the components of a Title VII claim. Instead, it was merely an institutional study prepared to analyze the existence and extent of any sex-based salary discrepancies at the College of Medicine. It did not purport to establish causation or to explain why such a discrepancy may have developed; it did not examine an expansive timeframe common in such cases; it did not identify as a matter of law any classes of comparators; and it did not control for all of those variables that would render its conclusions, as the Pouncy court described, legally “baseless” and “inconclusive.” Strikingly, it did not even analyze the individualized circumstances of Plaintiff's employment at the College of Medicine.

         I will now highlight several aspects of the Haignere Report that make it unsuitable to carry the prima facie burden in of a Title VII disparate treatment case. From my perspective, the single most glaring issue that prevents the Haignere Report from providing an adequate evidentiary basis here is its utter lack of causal analysis. Such a shortcoming manifests itself in two ways: first, the reason for the purported disparities is unknown and could therefore be attributable to either systemic or individualized characteristics wholly unrelated to any discriminatory motive; second and relatedly, Dr. Haignere equivocates as to the inclusion of such lurking variables as rank and tenure in her analysis, variables that could quite obviously provide a non-discriminatory explanation for her findings.

         Dr. Haignere's report contains several tables of data from which she draws her statistics. From my perspective, the below totals, when read critically, call into question the existence of individualized disparate treatment, despite Dr. Haignere's apparent lack of focus as to the backstory that animates them:

         Table 1. Tenure Track Population[165]

White Male

Minority Male

White Female

Minority Female

Professor

27

4

12

0

Associate Professor

24

8

6

1

Assistant Professor

12

7

4

4

Tenure Track Totals

63

19

22

5

         According to the table above, tenure track professors include 82 males and 27 females. Given the attendant salary increases that accompany an award of tenure and ascension through the tenure track ranks, [166] it is entirely unclear why any salary disparity would not be properly attributed to the sheer magnitude of males in tenure-track positions relative to females. In fact, the parties do not dispute that faculty members receive an 8% base salary increase upon promotion from assistant professor to associate professor and again upon promotion from associate professor to professor.[167] As such, an individualized disparate treatment claim is not supported on those statistics alone, absent some indication that the particular claimant's salary in fact was caused by a discriminatory motive.[168] The simple fact is that the numbers in the Haignere Report leave much to be desired in the way of causation.

         One might next wonder, as Dr. Haignere did, “whether there are promotional barriers affecting women and minorities in the institutional processes governing rank advancement.”[169] “Is this the result of self-selection or institutional barriers?” Dr. Haignere asked.[170] That these questions were asked and remain unanswered is a testament to the fact that the Plaintiff has not met her prima facie case and that perhaps an individualized claim was never the appropriate way to proceed.

         Additional data points relied on by Dr. Haignere reveal that 82 out of 144 (or 56.94%) of men held tenure track positions, while 27 out of 62 (or 43.55%) of women did.[171] Perhaps calculations of those proportions and an accompanying test for significance of those differences at the 5% level would have aided claimants who pursued their case collectively, but those calculations and tests are notably absent from her report and otherwise irrelevant for our purposes now. Even then, as the United States Court of Appeals for the First Circuit once commented in a similar action, “statistics, though striking upon first reading, may simply reflect an absence of qualified female applicants, rather than pervasive sex discrimination.”[172]

         In addition to its lack of any causal conclusion whatsoever, the Haignere Report is also inconsistent in its inclusion (or exclusion) of certain confounding or lurking variables. Further, its explanation of lurking variables is somewhat loaded in my view. For example, it describes such variables as “likely to have discrimination embedded in them and, thus, mask or suppress gender effects.”[173]However, a statistician taking the position contrary to Dr. Haignere might simply describe lurking variables as variables excluded from the analysis but likely to predict salary differences. Thus, whether these lurking variables are truly problematic after all might depend on the analyst's orientation.

         To illustrate, Dr. Haignere provides the following example of a tainted or lurking variable: “[I]f height were included in a salary analysis where gender based disparity exists, the shortness of females relative to mails could explain much of the gender differences in salaries.”[174] Although true, that is a thoughtless example: whereas height plays no role in setting one's salary at the College of Medicine, rank and tenure surely do. From there, Dr. Haignere states the variables most likely to mask gender disparities are those dealing with rank, tenure-track status, and research award totals. Thus, Dr. Haignere chose to exclude those variables from certain of her analyses.[175] That seemed, from the get-go, an odd caveat to me. One would think that rank, tenure-track status, and research award totals would actually be relatively strong predictors of one's salary earned, and as Dr. Haignere even acknowledged, their exclusion has a tendency to “overestimate disparities.”[176]

         That being said, what causal phenomena are at work is unfortunately beyond the scope of the Haignere Report: perhaps external funding bodies are more likely to award teams comprised of primarily male scientists with the most significant research grants; perhaps the crop of faculty during the survey year included an inordinate number of talented male faculty; or perhaps the College of Medicine willfully set the salaries of female faculty members artificially low. We do not know the answer as a general matter or in Plaintiff's particular case, and no matter how many times we read it, the Haignere Report will never reveal it to us. What that does tell us, however, is that Plaintiff has failed to put forth a prima facie case of discrimination. What we have here, as in Pouncy, is “a naked comparison of average weekly salaries without regard to level of skill, education and training from which no meaningful conclusion can be drawn . . . much less a prima facie case.”[177]

         It should also be noted that Dr. Haignere's results were not statically significant at the standard 5% level. Although Dr. Haignere attempts to explain this shortcoming away by contrasting between sample statistics and statistics wherein the entire population can be studied, [178] I am not so persuaded. As Dr. Becker explains, the 5% level is the widely accepted benchmark for significant results in the statistical community.[179] This is because when a statistical difference is observed at the 5% level, a statistician can be 95% confident that the observed difference was not a product of random chance. In other words, at the 5% level, only one out of twenty times will the researcher's rejection of the hypothesis that there is no statistical difference in salaries be invalid.[180]

         To the contrary, Dr. Haignere's probability value for the white female effect in the primary regression was 0.1559, meaning that there exists an approximately 16% chance that any claimed disparity in salaries was not the product of a faculty member's sex.[181] In other words, there is 16% chance that the variable corresponding to one's sex is unaccompanied by a non-zero coefficient in a standard regression analysis and would therefore exert no mathematical effect on salary whatsoever.[182] Moreover, Dr. Haignere's threshold claim that significance plays less of a role in instances where the entire population is known also seems to fall flat. Certainly, statistical significance would be relevant both in regression analysis and in basic testing for the existence of a difference between the mean salaries received by the two sexes. Even if the law does not explicitly require a certain level of significance, I think it quite critical in this case, which lacks any semblance of causal force, that the Plaintiff's proffered statistics are also unable to satisfy the generally accepted level of significance.

         Moreover, the sole salary inputs for the Report are data points from a single year, the 2001-2002 academic year, which falls outside of the statute of limitations period previously determined by Judge Kane. As has been eloquently reiterated:

A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.[183]

         Consequently, not only does the Haignere Report examine purported salary disparities for a time period preceding the applicable limitations period, but it also fails to account for the effects of the nearly 4% salary increase of which the Plaintiff was the recipient effective July 1, 2004 as a consequence of the study's findings.

         In addition, the quite apparent fault that attends submission of a college-wide study in and individualized disparate treatment action is that the Plaintiff constitutes only a single data point in that broad study-a lone observation pooled among countless others whose individualized circumstances, talents, credentials, shortcomings, and other qualitative markers remain absent from view. As much as it amounts to a misuse of statistical methods, it also appears eerily fallacious:

1. As a whole, female faculty of the College of Medicine are paid on average less than their male counterparts.
2. Plaintiff is a female faculty member of the College of Medicine.
3. Therefore, Plaintiff must be paid less than her male counterparts.[184]

         An example illustrates this fallacy: Suppose that a given college has five male faculty and five female faculty. Each of the male faculty members earns $5, 000 per month, but the female faculty members earn the following monthly salaries: $6, 000; $4, 000; $6, 000; $4, 000; and $2, 500. Thus, while the male faculty members of this hypothetical institution of higher education take home $5, 000 per month, the women average $500 less per month or $4, 500. That does not mean that any female faculty member included in the survey is a victim of sex discrimination. In fact, it does not even mean that any female faculty member included in the survey has been the victim of an adverse decision in the form of compensation at all.

         Accordingly, although it may be true that on average women faculty look statistically worse off in this example, that type of group measure paints a relatively poor picture of each individual female faculty member's particularized situation. Suffice it to observe that in the example above, two of the female faculty actually earn more than all of their male counterparts, despite the misleading sample statistic. Even more telling, we know nothing qualitative about any of these faculty: Who is the department chair? Who earned the most prestigious research grant last academic year? Who has been teaching in their department the longest? Who are the tenured professors? Who chairs a core campus committee? Who has been published most frequently in top-tier journals? And so on. Because the Haignere Report's results do not adequately address these intricacies, it is insufficient as a matter of law to establish a prima facie case of disparate treatment sex discrimination.[185]

         By extension, I note that Dr. Haignere was never even identified in Plaintiff's Rule 26 disclosures, let alone ever having been declared as a potential expert at trial, despite the Defendants having identified Dr. Elizabeth Becker, Ph.D., of National Economic Research Associates, Inc., as their expert witness.[186] Regardless, given its flaws as outlined above and having not been prepared with an eye toward litigation, the Haignere Report would, in my view, be unlikely to overcome a Daubert challenge.[187]

         In conclusion, as in Pouncy, the Plaintiff here presents the Court with “a naked comparison of average weekly salaries . . . from which no meaningful conclusion can be drawn.”[188] Without more, she has failed to make out a prima facie case. Although the analysis could conclude there, I continue on to explain why Plaintiff has also failed to establish the sort of pretextual showing required to defeat summary judgment.

         2. The Plaintiff has failed to show that the Defendants' legitimate, non-discriminatory explanation of substandard academic performance is mere pretext.

         Were I to assume satisfaction of the prima facie case, the burden would shift to the Defendants to show that a legitimate, nondiscriminatory reason motivated the contested employment decisions. Such legitimate, nondiscriminatory explanations already accepted by Third Circuit courts in similar disputes include: “continuing performance deficiencies”; “poor performance”; “failure to meet [ ] job expectations”; and “failure to meet the requirements of [a] corrective action plan.”[189] The Defendants have made such a showing here. In particular, they cite to numerous pieces of evidence in the record indicating that the Plaintiff's salary was reflective not of her sex, but of her poor academic performance relative to that of her male (and female) colleagues.

         Despite having devoted 80% of her time to research activities, Plaintiff's superiors were dissatisfied with her scholarly output during the operative recovery period as calculated by Judge Kane. For instance, in her annual evaluation corresponding to the 2006-2007 academic year, Dr. Vrana, the Chair of Plaintiff's Department at the time, indicated that he expected “growth” in Plaintiff's “[r]esearch efforts” during the next evaluation period.[190] That same evaluation also noted that without Plaintiff obtaining additional grants or an extension of her existing grant, “funds will soon be exhausted to support [her] laboratory's research.”[191] Dr. Vrana “urged” Plaintiff to “increase publications” and “seek extramural funding to support [her] research efforts and that portion of [her] salary that is requested by the institution.”[192] In that same review, Dr. Vrana memorialized the following exchange: He decided to offer Plaintiff the opportunity to chair a committee after she complained about the lack of such opportunities during her evaluation discussion, but she rejected him, stating “I don't feel I should have to ask, and I now am not interested in chairing a committee.”[193] The evaluation concluded by stating that it was “vitally important” for Plaintiff to make adequate application for the renewal of her grant or either to “explore other opportunities that might be funded in the near-term.”[194]

         Particularly problematic was Plaintiff's failure to timely apply for renewal of her 2003 National Institute of Health (NIH) grant. Understandably, grant awards are important to the College of Medicine because they help defray personnel costs.[195] NIH grants in particular are the most significant form of funding a biomedical researcher can receive.[196] Thus, although NIH funding may wax and wane, sustained grants of that type are considered the hallmark of a successful career for a biomedical researcher like Plaintiff.[197] Grant funding is so critical to the efficient operation of medical schools like the College of Medicine that it established a 25% external salary support benchmark, requiring that its faculty members fund a minimum of 25% of their salary with the proceeds of external research grants.[198] As the College of Medicine's 2003 Academic Compensation Plan explained, “It is important that faculty strive to obtain additional grant-derived salary dollars, which are necessary for the department to fulfill its obligations for support of faculty salaries and additional expenses to maintain the department.”[199] It should be noted that the 25% requirement was set below the College of Medicine's ideal goal of 50% salary support through external grant funding for each faculty member.[200] Should a faculty member's external support fall below the 25% threshold level, that individual would begin a probationary period one and a half to two years in length, after which time, her salary would be reduced by 8.3% (the value of one month's pay in a twelve-month contract) if her funding was not satisfactorily restored.[201]

         The NIH grant at issue in Plaintiff's case was awarded in 2003 and permitted her to fund 50% of her salary for the 2003-2004, 2004-2005, and 2005-2006 academic years.[202] As Dr. Vrana explained during his deposition, grant recipients typically attempt to apply for renewal approximately nine months before the expiration of the funded period.[203] By all accounts, however, Plaintiff's dilatoriness in regard to her renewal application cost her the opportunity secure this particular NIH funding for an additional period. Dr. Vrana testified-and Plaintiff does not adequately show otherwise-that “in three successive years, we [Dr. Vrana and Plaintiff] talked about resubmitting that grant.”[204] Dr. Vrana went on to explain that the Plaintiff “failed to do it at the normal deadline and then committed to do it the following year, missed that deadline, [and] missed the next deadline.”[205] All told, during her time as a member of Dr. Vrana's department, “the bottom line was that she [Plaintiff] never resubmitted that grant for funding.”[206]

         Plaintiff offers several varying explanations as to why she failed to reapply for this particular funding, though she does not contest the existence of the underlying delay.[207] According to the record, Plaintiff has advanced three different explanations: first, that a colleague at the NIH was not producing the data for her; second, that she was awaiting publication of the results; and third, that she was dealing with personal medical issues at the time.[208] Nevertheless, Plaintiff and Dr. Vrana “did agree that it was unlikely to be funded if she didn't publish papers.”[209]

         In fact, the parties agree that the primary duty of a basic scientist like Plaintiff here is “to perform biomedical research and publish the results of the research.”[210] Thus, in quite cyclical fashion, a research scientist's publications were inextricably linked with her ability to court external funding and enable further experimentation, further publication, and so forth. This “publish-or-perish” culture among institutions of higher education is well chronicled. However, between 2004 and 2007, the time period during which she was asked to bolster her scholarly contributions, Plaintiff published only one article.[211] Comparatively, Dr. Vrana noted that although there is “no hard and fast rule, ” faculty similarly situated to Plaintiff would be expected to publish, on average, ten to fifteen articles during any given three-year span.[212] In fact, Dr. Vrana published nineteen articles during that same period.[213]

         Dr. Vrana made explicit that Plaintiff's lack of funding and diminished scholarly output accounted for her poor evaluations relative to male co-workers:

Q. You've explained in pretty good detail how you evaluated Dr. Summy-Long. Were there male colleagues of hers who also weren't getting things published at that time?
A. Were not getting things published? No, there were none.
Q. There none?
A. That were not getting things published.
Q. What about the grants, getting grants renewed, did you have to have any conversations like this like you described you had with her with any male colleagues in the department?
A. No. They all had funding at that time. Towards the end, Dr. Levenson may have-he lost his funding but got it right back. So I didn't have to have that conversation because he submitted lots of grants.[214]

         With those considerations in mind, Dr. Vrana set all of the salaries in the Pharmacology Department subject to administrative approval.[215] As he explained, Plaintiff's “history of funding . . . was consistent with her being the lowest [paid]. And if you look at the number of grant dollars brought in up to that point or at that point, she was the lowest. She hadn't published much in the preceding couple of years.”[216]

         Throughout her papers, Plaintiff takes issue with the characterization of her work as below that of her peers. However, nowhere does she adequately rebut these conclusions or show instead that a discriminatory animus influenced these discretionary decisions. Federal courts have consistently “recognize[ed] full well that it is not the judiciary's place to substitute its own judgment for that of a business manager whose day-to-day closeness with his firm's operations commands a certain deference.”[217] In the education context, such deference requires that district courts remain “[w]ary of the Third Circuit's admonishment not to substitute our ‘judgment for that of the college with respect to the qualifications of faculty members for promotion and tenure.'”[218]

         As previously noted, “should the defendant carry this burden, the plaintiff then must have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.”[219] The United States Court of Appeals for the Third Circuit has explicitly instructed district courts who are disposing of a summary judgment motion in the employment discrimination setting as follows:

[T]o defeat summary judgment when the defendant answers the plaintiff's prima facie case with legitimate, non-discriminatory reasons for its action, the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. In other words, . . . a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.
[T]o avoid summary judgment, the plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employer's proffered non-discriminatory reasons was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext).
To discredit the employer's proffered reason, however, the plaintiff cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted non-discriminatory reasons. While this standard places a difficult burden on the plaintiff, it arises from an inherent tension between the goal of all discrimination law and our society's commitment to free decisionmaking by the private sector in economic affairs.[220]

         Comparator evidence is “[e]specially relevant” at the pretext stage, where courts have emphasized that plaintiffs face “a rigorous standard” and a “difficult burden.”[221] Still, the Seventh Circuit has emphasized that the search for similarly-situated comparators in employment discrimination cases is “flexible, common-sense, and factual” and should proceed if there are “enough common features between the individuals to allow a meaningful comparison.”[222] Thus, “so long as the distinctions between the plaintiff and the proposed comparators are not so significant that they render the comparison effectively useless, the similarly-situated requirement is satisfied.”[223] “We are looking for comparators, not clones.”[224] This is particularly true in the academic setting, where although there may exist generalized departments, each scholar has his or her own unique qualifications, research goals, and aptitudes.

         Attempted identification of more favorably treated comparators is perhaps Plaintiff's lone course of action at the pretext stage. Otherwise, her papers are devoid of even the slightest indications of the type of invidious showing that the law requires to prevail at this juncture. She has not shown for instance, that the Defendants' explanation for her lower salary “is unworthy of credence” or that “discriminatory animus motivated” their salary decisions.[225]

         In the portion of the statement of facts relating to comparator evidence, the Defendants have provided the following salary tables, which rank each faculty in the relevant departments from highest to lowest.[226] Each faculty member is represented as an “M” for “male” or an “F” for “female.” In my view, these salary tables call into question the existence of pervasive sex-based salary disparity, as they show a wide dispersion among female faculty members in these two departments at the College of Medicine:

         Table 2. Departmental Salary Ranking by Sex[227]

         Pharmacology Department:

2003-04:

F, M, M, M, F

2004-05:

F, M, M, M, F

2005-06:

F, M, M, M, F

2006-07:

F, M, M, F, M

         Neural & Behavioral Sciences Department:

2007-08:

M, F, M, M, F, F, M, M, F

2008-09:

M, M, F, M, F, F, M, M, F

2009-10:

M, M, F, M, F, F, M, M, F

         Perhaps the observation that stands out most strikingly from the above charts is that the highest paid faculty member in the Pharmacology Department during the operative time period was a woman. In fact, during her deposition, opposing counsel asked Plaintiff to guess which faculty might be the highest paid in each department. Plaintiff guessed correctly and described this particular co-worker as a “superstar” who “attracted NIH funding like two and three grants at a time” and consequently possessed an “astronomical” funding record.[228] The Plaintiff also guessed correctly as to the top two male wage earners in the Neural & Behavioral Sciences Department, describing them as a “stand out” and “number one . . . as far as attracting dollars, ” respectively.[229] Curiously, this blind exercise seems to, as Defendants point out, support the position that compensation was tied to performance, not sex.[230]

         Accordingly and as set out more fully below, Plaintiff has failed, in my view, to show that she was paid less for doing substantially similar work as departmental comparators. On this topic, I would also note for the record that Plaintiff's responses to Defendants' Local Rule 56.1 statement of material facts was particularly wanting in quality and conciseness, both on the issue of comparators in particular and on the whole. In addition, the rampant presence of first-person responses indicates that perhaps the client herself provided the rebuttal with little filtration on counsel's part-a facet unappreciated by this Court.[231] I memorialize this because it created unnecessary work, delayed expeditious resolution of this motion, and tended to hurt Plaintiff's case where her answers were entirely non-responsive and argumentative.

         Her contentions regarding comparators in her statement of facts responses were especially problematic. For instance, Plaintiff contends somewhat obliquely that true comparators can come only from the Department of Pharmacology and not the Neural & Behavioral Sciences Department. This is a rather confusing claim, both because it lacks any explanatory backing and because Dr. Vrana had previously testified that Plaintiff was the lowest performer in the Pharmacology Department regardless. Even more opaquely, Plaintiff writes that “[t]enure is not a requirement for a comparator identified by Plaintiff. Rank, having a Ph.D. degree and being a male full-time faculty member with a Standing appointment in the Department of Pharmacology are required factors.”[232]

         With all due respect to Plaintiff, it is the Court's duty to determine the subset of individual who may appropriately be viewed as her comparators as a matter of law. Comparators, as explained above are just that: individuals possessing substantially similar qualifications and experiences such that comparison of their salaries with the complainant is facially reasonable. They need not be “clones” or “perfect matches.” In addition, Plaintiff should consider that too narrow a construction of what it takes to be a comparator favors the defense argument that salary setting among faculty is a highly individualized process about which few comparative conclusions may properly be drawn. These notions are especially true where Plaintiff's interrogatories have previously assented to a broader conception of what it means to be a comparator in this case:

12. [I]dentify all employees who you contend do or did equal work to you, the performance of which requires or required equal skill, effort and responsibility.
ANSWER: Professors of Pharmacology-Drs. Melvin Billingsley, Robert Levenson, Kathleen Mulder, Mark Kester, Joan Lakoski, and Charles Smith . . . . Dr. Elliot Vesell would also be a comparator . . . . Professors in the Department of Neural and Behavioral Sciences include Drs. Kevin Alloway, Barry Dworkin, Patricia S. Grigson, Patricia McLaughlin, Robert Milner, ...

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