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Baugh v. Robert Morris University

United States District Court, W.D. Pennsylvania

March 20, 2018

JEANNE BAUGH, Plaintiff,
v.
ROBERT MORRIS UNIVERSITY, Defendant.

          OPINION

          JOY FLOWERS CONTI, CHIEF UNITED STATES DISTRICT JUDGE

         Pending before the court is the motion for summary judgment filed by defendant Robert Morris University (“RMU”) with respect to the first amended complaint (“amended complaint”) filed by the plaintiff Jeanne Baugh (“Dr. Baugh”). (ECF No. 35). In the amended complaint, Dr. Baugh, a professor at RMU, alleges claims against RMU[1] of 1) sex discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”), 2) sex discrimination in violation of Title IX of the Education Amendments of 1981, 20 U.S.C. § 1681, et seq. (“Title IX”), 3) sex discrimination in violation of the Pennsylvania Human Relations Act, 43 Pa. Stat. § 951 et seq. (“PHRA”), 4) retaliation in violation of Title VII; 5) retaliation in violation of Title IX, 6) retaliation in violation of the PHRA, 7) hostile work environment in violation of Title VII, 8) hostile work environment in violation of Title IX, and 9) hostile work environment in violation of the PHRA.[2] See First Am. Compl. (ECF No. 22).

         RMU filed a brief in support of its motion (ECF No. 36), a concise statement of material facts (ECF No. 37), an appendix of record evidence (ECF No. 38), a reply brief in support of its motion (ECF No. 53), a reply statement of undisputed material facts (ECF No. 54), and a supplement to its appendix (ECF No. 55). In response to RMU's motion, Dr. Baugh filed a response in opposition (ECF No. 48), a response to RMU's statement of facts (ECF No. 50), a response to the motion for summary judgment (ECF No. 44), an appendix to the response in opposition (ECF No. 56), and a surreply to RMU's reply statement of undisputed material facts (ECF No. 62). Together the parties filed a combined concise statement of material facts (ECF No. 59).

         This matter is fully briefed and ripe for disposition. As more fully explained below, RMU's motion for summary judgment will be granted in part and denied in part.

         I. Standard of Review

         Summary judgment is appropriate when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The parties must support their respective positions by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A). In other words, summary judgment may be granted only if there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

         In reviewing the evidence, the court draws all reasonable inferences in favor of the nonmoving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986); Huston v. Procter & Gamble Paper Prod. Corp., 568 F.3d 100, 104 (3d Cir. 2009) (citations omitted). It is not the court's role to weigh the disputed evidence and decide which is more probative, or to make credibility determinations. See Anderson, 477 U.S. at 255; Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004); Boyle v. County of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247-48. An issue is “genuine” if a reasonable jury could possibly hold in the nonmovant's favor with respect to that issue. See id. “Where the record taken as a whole could not lead a reasonable trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Matsushita, 475 U.S. at 587; Huston, 568 F.3d at 104.

         II. Relevant Facts[3]

         RMU is a nonprofit academic institution located in Moon Township, Pennsylvania. (ECF No. 59 at 1, RMU's SOF 1). Dr. Baugh accepted an appointment as an associate professor in RMU's Computer Information Systems (“CIS”) Department on January 27, 2001. (Id. at 3; RMU's SOF 9). On May 5, 2006, Dr. Baugh was promoted to the rank of professor. (Id.at 3, RMU's SOF 10). In 2013, Professor John Turchek (“Professor Turchek”), the CIS Department head, recommended Dr. Baugh for promotion to the rank of university professor, RMU's highest faculty rank, noting: “[b]ased on Professor Baugh's continued record of exemplary performance in the areas of scholarship, teaching and service … I strongly recommend Professor Baugh for promotion to University Professor.” (ECF No. 38-4, Ex. D at 112). On April 29, 2013, Dr. Baugh was promoted to the rank of university professor, based in part on “positive recommendations from your … department head [Professor Turchek].” (Id. at 113). Professor Turchek also recommended Dr. Baugh for merit increases every year since he became the department head. (ECF No. 38-3, Ex. C at 46).

         RMU is a signatory to a collective bargaining agreement (“CBA”) with the Robert Morris University Faculty Federation, Local 3412, AFT, AFL-CIO (“Federation”), a labor union which represents RMU's full-time faculty members. (ECF No. 59 at 2, RMU's SOF 3). As a full-time faculty member, Dr. Baugh is a member of the Federation bargaining unit. (ECF No. 38-3, Ex. C at 32). The CBA contains a grievance procedure, which contains four steps and culminates in arbitration. (ECF No. 59 at 2, RMU's SOF 4). Grievances only adjudicate potential violations of the CBA. (ECF No. 48-3 at App. H00007).

         Professor Turchek has been the CIS Department head since May 2011. (ECF No. 59 at 2, RMU's SOF 5). As department head, Professor Turchek is responsible for making recommendations concerning the hiring and promotion of faculty members, scheduling courses, assigning faculty members to their “regular load” of courses, and making recommendations concerning merit raises for faculty members.[4] (Id. at 2, RMU's SOF 6).

         At the time Professor Turchek became the department head of RMU's CIS Department there were three to five female professors in the department. (Doc. 38-5, Ex. E at 114). Currently there are approximately ten female professors in the department. (ECF No. 59 at 22, RMU's SOF 83).

         At RMU, a “regular load” consists of twelve academic credits per semester. (Id. at 4, RMU's SOF 16). Any course taught in addition to a professor's regular load is called an overload course. Additional compensation is paid for teaching an overload course. (ECF No. 48-2 at App. C00008). Dr. Baugh teaches both undergraduate and graduate level JAVA courses at RMU and has done so for many years. (ECF Nos. 38-5 at Ex. E at 6; 48-2 at App. C00013). Dr. Baugh is qualified to teach graduate level computer programming courses based upon her education and experience. (ECF No. 59 at 30, Baugh's SOF108).

         A. Fall 2013 semester INFS6151 course assignment

         For the fall 2013 academic semester, Professor Turchek scheduled a graduate level JAVA course, INFS6151, (the “INFS6151 Course”) to be taught “on-ground” at RMU's Pittsburgh Center location, located in downtown Pittsburgh, Pennsylvania on Wednesday evenings. (ECF No. 59 at 5, RMU's SOF 17). “On-ground” means the course is being taught in person. (Id. at 5, RMU's SOF 18). Prior to the fall 2013 academic semester, Dr. Baugh had taught the INFS6151 Course at RMU for nine years. (Id. at 5, RMU's SOF 19).

         Professor Turchek decided that the fall 2013 semester INFS6151 Course would be taught using the IBM Enterprise Mainframe (“Mainframe”) system, because members of the computer and information systems business community in Pittsburgh, Pennsylvania, including Highmark, U.S. Steel, UPMC, Bank of New York, and PNC, had advised him that they used the JAVA application on the Mainframe system. (ECF No. 38-5, Ex. E at 23). Professor Turchek discussed the change in the INFS6151 Course with a few professors in the CIS Department, but not with Dr. Baugh or any other female faculty member. (ECF No. 48-4 at App. J00005).

         On June 5, 2013, in order to facilitate CIS Department faculty members learning and gaining experience with the Mainframe system, Professor Turchek invited all department faculty members, including Dr. Baugh, to attend a training session at Fairmont State University (“Fairmont State”), in Fairmont, West Virginia, on July 9-12, 2012. (ECF No. 59 at 6, RMU's SOF 21). Professor Turchek sent an email to all CIS Department professors, including Dr. Baugh, telling them that “IBM will be providing some mainframe training July 9-12 in Fairmont, WVA” and to let him know if they wanted to attend the training and which days they wanted to attend. (ECF No. 38-4, Ex. D, at 115-116). Topics included: “Rational Developer for COBOL, JAVA, and other programming languages.” (Id. at 116). Dr. Baugh chose not to attend the training. (ECF No. 38-3, Ex. C at 67-68). Professor Turchek did not tell Dr. Baugh that if she did not attend the conference at Fairmont State, she would be precluded from teaching the INFS6151 Course in the fall 2013 semester. (ECF No. 48-4 at App. J00014).

         RMU Professor Patrick Laverty (“Dr. Laverty”) attended the training session at Fairmont State. (ECF No. 59 at 6, RMU's SOF 22). He reported that the training did not involve JAVA; rather, the training involved COBOL. (Id.; ECF Nos. 48-2 at App. E00018; 48-3 at App. F00005). Dr. Laverty had prior experience using the Mainframe system and according to Professor Turchek, was “one of our lead people for teaching things on the mainframe.” (ECF No. 59 at 6, RMU's SOF 23). RMU Professor Paul Kovacs (“Dr. Kovacs”) also attended the training session at Fairmont State. (ECF No. 48-2 at App. E00018). Dr. Kovacs confirmed that the training was about COBOL, not JAVA. (Id.). A second training session took place during the summer of 2013, at IBM in Poughkeepsie, New York. (ECF No. 48-2 at App. E00004-00005). Professor Turchek only invited male faculty members, including Dr. Laverty, to attend that session. (Id.).

         Pursuant to the CBA, professors can request to teach certain classes and have certain teaching schedules. To the best of Professor Turchek's knowledge, Dr. Baugh did not request to teach the INFS6151 Course “on-ground” for the fall 2013 semester. (ECF No. 48-4 at App. J00017). Dr. Baugh did request, for the fall 2013 semester, that she not be assigned to teach a class on Wednesday evenings. (ECF 38-5, Ex. E at 18, 53).

         When the time came to assign classes for the fall 2013 term, Professor Turchek assigned Dr. Laverty his “regular load” of classes and Dr. Baugh her “regular load” of classes. (ECF No. 59 at 8, RMU's SOF 29-30). Professor Turchek assigned the INFS6151 Course to Dr. Laverty, to be taught in downtown Pittsburgh on Wednesday evenings, as part of his “regular load.” (ECF 38-5, Ex. E at 16-17). Professor Turchek did so because Dr. Laverty had experience using the Mainframe system, had attended the training session at Fairmont State, had requested to teach the course “on-ground, ” and was not opposed to teaching the course on Wednesdays. (Id. at 17-18, 180-81). Professor Turchek told Dean Levine that Dr. Laverty was the only faculty member trained in the WebSphere/Enterprise system and therefore, Dr. Laverty was the only one qualified to teach the course that had that component. (ECF 38-7, Ex. G at 49). In fact, neither Dr. Laverty nor Dr. Baugh had experience with WebSphere. (ECF Nos. 48-4 at App. K, ¶ 6; App. F00010). At the time of the assignment, Dr. Laverty did not have graduate faculty status and Dr. Baugh did have graduate faculty status. (ECF No. 48-5 at ¶ 00065-00066). Dr. Baugh was initially approved for graduate faculty status in June 2005; Dr. Laverty was initially approved for graduate faculty status in October 2013. (Id.).

         Dr. Baugh learned on August 4, 2013, that the fall 2013 semester INFS6151 Course had been assigned to Dr. Laverty. (ECF No. 59 at 8, RMU's SOF 31). Upon learning about the assignment, Dr. Baugh complained to Dean Barbara Levine (“Dean Levine”), Professor Turchek's direct supervisor. (Id. at 8, RMU's SOF 32). Dr. Baugh also sent an email to Professor Turchek, complaining about the number of overload graduate courses assigned to others, including Dr. Laverty, and that she had not been assigned to teach any graduate courses for the 2013 semester. (ECF No. 38-4 at 114). This disparity meant a large difference in overload pay to Dr. Laverty as compared to Dr. Baugh since a professor received $1300 in extra compensation for each graduate level course, such as the INFS6151 Course, taught per semester. (ECF Nos. 38-3, Ex. C at 54-55; 38-4, Ex D at 114; 48-5 at App. M00040).

         Prior to 2013, Dr. Laverty had not taught a basic JAVA course. (ECF No. 48-3 at App. F00009). He had taught the most advanced JAVA course in the RMU curriculum, secure programing, for approximately ten years. (Id.). He explained, “[t]here's a big difference between introductory Java and teaching advanced courses.” (Id.). In a letter written to IBM, Dr. Laverty referred to himself as “a Java newbie, ” although he stated that he probably should have said he was a “Java Enterprise newbie because I had not used at that point, WebSphere.” (Id. at App. F00010).

         Based upon Dr. Baugh's complaint to Dean Levine, Dean Levine came up with the idea that Dr. Baugh could co-teach the INFS6151 Course with Professor Laverty for the fall 2013 semester “so that Dr. Baugh would be able to continue to teach JAVA with [the] WebSphere or Enterprise systems . . . component going forward.” (ECF No. 38-7, Ex. G at 46). Dr. Baugh agreed to team teach with Dr. Laverty. (ECF Nos. 59 at 9, RMU's SOF 34; 38-3, Ex. C at 63). After the first class, however, Dr. Baugh resigned from teaching the class with Dr. Laverty because he was treating Dr. Baugh “like his secretary.” Id.

         B. Spring 2014 semester INFS6151 Course assignment

         On September 12, 2013, Professor Turchek sent Dr. Baugh an email concerning the courses he was planning to assign Dr. Baugh to teach in the spring 2014 semester; one of the courses listed in the email was the INFS6151 Course. (ECF No. 48-5 at App. M00130). Later in the evening on September 12, 2013, Dr. Baugh gave Professor Walt Pilof (“Professor Pilof”), a union representative, a copy of the grievance she planned to file concerning Professor Turchek's assignment of the INSF6151 Course to Dr. Laverty for the fall 2013 semester. (Id. at App. M00131; 48-2 at ¶ 00016). On September 13, 2013, Dr. Baugh received from Professor Turchek an email that contained her spring 2014 semester teaching schedule “prior to overloads.” (ECF No. 48-5 at App. M00132). Later in the day on September 13, 2013, Professor Turchek sent an email out to all instructors in the CIS Department with a list of all unassigned courses, which included the INFS6151 Course, and a form to be completed with respect to what overload courses a professor wanted. (Id. at App. M00133). In the end, Professor Turchek did not assign Dr. Baugh to teach the INFS6151 Course in the spring 2014 semester. (Id. at ¶ 00113).[5] Dr. Baugh was assigned two other JAVA courses for the spring 2014 semester: (1) JAVA Programming and (2) Advanced JAVA: Application Programming. (ECF No. 55-1, Ex. A ¶ 5).

         Dr. Baugh filed her grievance concerning Professor Turchek's assignment of the fall 2013 semester INFS6151 Course to Dr. Laverty on September 23, 2013. Her grievance included a claim of sex discrimination and demanded: (1) she be paid for the course even though she was not team teaching it with Dr. Laverty, (2) “some kind of statement” be made “that all genders and races are to be included in new programs if they wish to participate, ” and (3) “course changes or program content changes are to be discussed with all interested parties within the department before they are implemented.” (ECF Nos. 48-5 at ¶ 00009; 59 at 9, RMU's SOF 37). At a September 24, 2013 meeting regarding her grievance, RMU Associate Dean Dave Wood (“Dr. Wood”) told Dr. Baugh that her gender discrimination claim was “laughable, ” he was “insulted by this” and that Dr. Baugh was a liar. (ECF Nos. 48-2 at App. C00076-00077, 48-4 at App. K, ¶ 11, 59 at 39-40, Baugh's SOF 139, RMU's Response to Baugh's SOF 139).

         The grievance regarding the INFS6151 Course assignment was settled on January 23, 2014, between Dr. Baugh, the Federation, and RMU. (Id. at 9, RMU's SOF 38-39). In an interoffice memorandum concerning the grievance dated January 23, 2014, David Jamison, Provost and Senior Vice President for Academic Affairs (“Provost Jamison”) (sitting by designation of RMU's President) explained to Dr. Baugh: “Dean Levine's finding in regard to the assignment of overloads in the prior semester is affirmed: the proper process was not followed, and the process will be required to be corrected in a manner consistent with the collective bargaining agreement.” (ECF No. 55-3, Ex. C at 2). Provost Jamison explained that “[a]lthough I find that the teaching assignment for INFS6151 was made in an irregular manner, I did not find evidence of gender-based discrimination in that assignment.” (Id.). Finally, Provost Jamison instructed: “[t]he Department of Computer and Information Systems [i.e., Professor Turchek] will be reminded of the importance of faculty consultation with all interested faculty in making course or program content changes.” (Id.). As part of the settlement, RMU paid Dr. Baugh $3, 424.00, which was the amount she would have been paid had she taught the INFS6151 Course and which Dr. Baugh accepted and retained. (ECF No. 59 at 9, RMU's SOF 38-39).

         On February 3, 2014, Dr. Baugh sent a response to Provost Jamison with respect to his conclusions in the January 23, 2014 memorandum. (ECF No. 48-5 at App. M00007). Concerning his conclusion that there was no evidence of gender discrimination, Dr. Baugh wrote, “in an effort to resolve this grievance, I will agree to disagree with you on the gender issue and will accept your other findings and end the process at this step.” (Id.). Having been paid as if she had taught the INFS6151 Course, Dr. Baugh's monetary loss as a result of not teaching the INFS6151 Course in the fall 2013 semester, was the interest she would have made on the funds between the time when she would have been paid had she taught the course and when she was paid. (ECF Nos. 38-3, Ex. C at 229; 48-4 at App. K00003, ¶ 18).

         C. Dr. Baugh's fall 2014 semester teaching schedule

         On March 11, 2014, Professor Turchek emailed Dr. Baugh a tentative schedule for the fall 2014 semester that had Dr. Baugh teaching two courses on a Monday/Wednesday/Friday (“M/W/F”) schedule and one course on a Wednesday night. (ECF Nos. 48-5 at App. M00148; 59 at 13, RMU's SOF 48). Prior to the fall 2014 academic semester, Dr. Baugh had always taught a Tuesday/Thursday (“T/Th”) schedule at RMU. (ECF No. 59 at 13, RMU's SOF 49). On March 11, 2014, Dr. Baugh replied to Professor Turchek via email, asking “Why have you given me a MWF schedule? I have never had this in all of the 13 years I have been at RMU?” (Id.).

         By March 12, 2014, Dean Levine, Peter Faix (“Mr. Faix”), RMU's Vice President for Human Resources, and Provost Jamison were aware of Dr. Baugh's complaint about her fall 2014 semester M/W/F teaching schedule. (ECF No. 48-4 at App. J00039). On March 12, 2014, Dean Levine wrote an email to Professor Turchek explaining that Dr. Baugh had written “a strong note” to Mr. Faix and Provost Jamison wherein she complained about being scheduled to teach a M/W/F schedule and opined that the change was in retaliation for the grievance she filed with respect to Professor Turchek assigning the INFS6151 Course to Dr. Laverty to teach for the fall 2013 semester. (ECF No. 48-4 at App. J00039). In the email, Dean Levine inquired about whether Professor Turchek had ever told the CIS faculty “that they cannot expect to have a particular schedule every semester, ” and stated “[w]e do not believe this is retaliatory nor that faculty are entitled to a particular schedule every semester” and “[w]e are not sympathetic to her way of thinking about this.” (Id.).

         On March 13, 2014, Professor Turchek replied to Dean Levine via email. (ECF No. 48-4 at App. J00040). In the email, Professor Turchek explained he had received an email from Dr. Baugh about the issue, he had had three female faculty members come to him the prior semester specifically citing Dr. Baugh's schedule and requesting a T/Th “preferred scheduling, ” like Dr. Baugh's schedule, and not only had he never told faculty members “that they could have the same schedule every semester, ” to the contrary, “due to the number of new courses, new programs, new locations, etc., I have said many times that I cannot simply do as other Department Heads and simply change the dates on the Excel Spreadsheets and use last year[‘]s schedule or last semester's schedule.” (Id.). On March 28, 2014, Dean Levine told Dr. Baugh in an email: “I discussed with John Turchek where fall 2014 scheduling stands. From the information John provided, I am satisfied that John followed the provision of the CBA on arranging schedules. John solicited faculty input, provided a schedule planner and consulted with faculty via email, the process he typically employs. He also took into account students' and the University's needs.” (ECF No. 48-5 at App. M00151).

         What was not shared with Dr. Baugh was that as a result of Dr. Baugh's complaining to Dean Levine about Professor Turchek assigning the INFS6151 Course to Dr. Laverty for the fall 2013 semester, and ultimately filing the grievance with respect to the assignment, Dean Levine had found out in the fall/winter of 2013-2014 that there were faculty members in the CIS Department who always were given a M/W or T/Th class schedule and who never were given a M/W/F class schedule. (ECF No. 48-3 at App. G00014, G00018, G00028-00030). Dean Levine opined that this scheduling was unfair to younger faculty members, who were being assigned the M/W/F classes, and so she instructed the heads of the departments she supervised, which included Professor Turchek, “that they indeed must make sure the schedules are fairly distributed across all faculty members and that no one can have a lock on a Tuesday/Thursday schedule.” (Id. at ¶ 00014, G00018).

         Ultimately, Professor Turchek changed the fall 2014 semester schedules of eight faculty members in the CIS Department: (1) Dr. Baugh; (2) Gary Davis (“Dr. Davis”); (3) Dr. Kovacs; (4) Professor Pilof; (5) Peter Wu; (6) Peter Draus; (7) Natalya Goreva; and (8) Karen Paullet (“Dr. Paullet”). (ECF Nos. 38-2, Ex. B, ¶ 7; 38-9, Ex. I at 39, 70; 38-10, Ex. J at 13; 48-1 at App. E00021; 48-2 at App. C00025; 48-4 at App. I00004; 56 at App. D00004). Dr. Davis, Dr. Kovacs, and Dr. Paullet all opined at their depositions that the changes made to everyone's fall 2014 semester schedules were because Dr. Baugh had filed a grievance against Professor Turchek. (ECF Nos. 38-10, Ex. J at 13; 48-2 at App. E00039; 56 at App. D00006). By way of example, Dr. Kovacs stated: “[I]s it a coincidence that Dr. Baugh files a grievance and right after that there's a massive change in scheduling, which everyone had their schedule for years? So I mean, cause and effect.” (ECF No. 48-2 at App. E00039). Other than Dr. Baugh, no other faculty members filed a grievance complaining that the schedule changes were discriminatory or retaliatory. (ECF No. 59 at 13, RMU's SOF 47).

         The M/W/F schedule did not make sense for programming courses like the ones Dr. Baugh taught because it took approximately fifteen minutes for the equipment and software to boot every class. (ECF No. 48-2 at App. E00020). Therefore, forty-five minutes of class time was lost weekly on a M/W/F schedule as opposed to thirty minutes of lost class time on a T/Th or M/W schedule. (Id.).

         At his deposition, Professor Turchek stated that he changed Dr. Baugh's schedule from T/Th to M/W/F for the fall 2014 semester because he was given orders to do so from his superiors/human resources. (ECF No. 55-3, Ex. E at 111-112). “I was told by my superiors, told by HR, human resources, to make sure I change things and get more balance across the department.” (Id.).

         D. Summer 2014 session ethics course assignment

         Pursuant to the CBA, summer teaching assignments are determined on the basis of seniority except that seniority is overcome by a “right of first refusal” with respect to teaching online courses. (ECF Nos. 48-5 at App. M00001; 59 at 14, RMU's SOF 52). Consistent with these policies, RMU CIS Department professor Fred Kohun (“Dr. Kohun”) bid on and was assigned a CIS Department online ethics course assignment for the summer 2014 session. (ECF No. 59 at 14, RMU's SOF 53). Dr. Kohun has more seniority at RMU than Dr. Baugh. (Id. at 14, RMU's SOF 54).

         After being assigned the ethics course, but prior to teaching it, Dr. Kohun instructed RMU's Registrar to change the name of the professor of record to Vladimir Burcik (“Dr. Burcik”), a part-time RMU instructor who resided in Slovakia. (Id. at 14, RMU's SOF 55). Dr. Baugh became aware of the change in instructors for the ethics class and told Professor Turchek in an email, that if Dr. Kohun had given up the class, she would like to teach it and so requested that the course be put out to bid as mandated by the CBA. (ECF Nos. 38-3 at Ex. C. at 102; 48-2 at App. C00042).

         Upon being told by Dr. Baugh that the professor of record for the ethics course had been changed, Professor Turchek asked the Registrar how Dr. Burcik had been added as the instructor for the on-line ethics course. (ECF No. 48-4 at App. J00029). The Registrar told Professor Turchek that Dr. Kohun and Bob Skovira (“Dr. Skovira”) had come in and told him to change the names of the instructor on two courses they were assigned to teach, one being the ethics course, to Dr. Burcik; “Something about they couldn't be doing things because they were traveling and wanted him to handle it for a while, something to that extent.” (Id.). Professor Turchek instructed the Registrar to change the professor of record on the ethics course back to Dr. Kohun because Dr. Kohun had picked the course and was “supposed to be teaching it.” (ECF No. 38-5, Ex. E at 161). Ultimately, Dr. Kohun taught the summer 2014 session ethics course, stating to Dr. Baugh that he “didn't plan to teach the course but now he had to.”[6] (ECF Nos. 38-1, Ex. A, ¶ 9; 48-4 at App. K, ¶ 16).

         Professor Turchek had saved courses for various part-time faculty in the past, including Dr. Burcik. (ECF Nos. 48-2 at App. C00036-00037; 48-4 at Apps. I00006-00008, J00016-00017). Dr. Baugh had been asked once by Professor Turchek to bid on a class and then drop it so that Dr. Burcik could teach it. (ECF No. 48-2 at App. C00036). Dr. Paullet was told once by Professor Turchek not to bid on a course because he wanted Dr. Burcik to be able to teach it; additionally, another time Dr. Paullet was asked by Professor Turchek to bid on a course and then drop it so that a part-time professor, Chris Teodorski, could teach it. (ECF Nos. 48-4 at App. I00006 and I00009). Professor Turchek explained that “there could be a situation where we said [to a full-time faculty member], look, can you handle -- when you pick your courses, make sure we can handle some part-timers. That might have happened . . . So we can have some part- timers teach some of our courses that we like to go and see them teach.” (ECF No. 48-4 at App. J00017).

         On July 28, 2014, Dr. Baugh filed a grievance concerning the assignment of the summer 2014 session ethics course, in which she alleged that she should have been assigned the course because Dr. Kohun never intended to teach it. (ECF Nos. 48-5 at App. M00064; 59 at 17, RMU's SOF 63). As part of the grievance process, the Federation requested information from RMU about the ethics course, as well as a second course which also had been assigned to Dr. Burcik to teach in the summer 2014 session. (ECF No. 48-5 at App. M00054). In response, RMU explained that Dr. Kohun and Dr. Skovira personally visited the Registrar's office on June 12, 2014, and requested that the instructor's name be changed to Vladimir Burcik with respect to INFS4170 (the ethics course) and INFS6226. (Id.). RMU explained: “On Saturday, June 14, Department Head John Turchek was informed of this change by the Registrar. On Sunday, June 15, Mr. Turchek instructed the Registrar to reinstate Kohun as the faculty for 4170 and Skovira as the faculty for 6226, and [the Registrar] did so on the same day.” (Id.).

         Ultimately, RMU and the Federation resolved Dr. Baugh's grievance concerning the assignment of the ethics course, and the grievance was not pursued to the next step, arbitration. (ECF No. 59 at 17, RMU's SOF 64). On January 12, 2015, Provost Jamison, on behalf of RMU, sent Dr. Baugh an email explaining in relevant part:

(1) Dr. Jacob's determination that no violation of the Contract occurred in the Registrar's response to the course assignment requests initiated by Drs. Kohun and Skovira is affirmed. However, it is clear that an error in process occurred. Therefore, Dr. Jacob's recommendation is adopted. The Provost will consult with the Registrar to develop clear policies for access requests in Patriot to prevent a recurrence of such a process error.
(2) The second recommendation from the Step 2 hearing is also adopted. The Department will develop guidelines for determining the number of overloads that can be assigned to a single faculty member.

(ECF No. 55-3, Ex. C at 5) (emphasis in original).

         E. Dr. Laverty's “right of first refusal” to teach the INFS6151 Course online

         Pursuant to the CBA: “only faculty members who are qualified to teach a particular online program course can select such course during the departmental summer course selection process. In addition, during each round of the departmental summer course selection process, a faculty member who has been paid to develop an online course within the past three (3) years can select this course at the start of each round of selection . . . .” (ECF No. 38-4, Ex. D at 46) (emphasis added). This preference is referred to by the parties as the “right of first refusal.” (ECF No. 59 at 18, RMU's SOF 66). The CBA also requires that: “[a]ny online program course development payments shall be made to the faculty member after: (1) completion of course development by the faculty member, and (2) evaluation of the development results by the academic department head and appropriate RMU personnel to ensure that the developed course meets or exceeds [certain enumerated] minimum quality standards. . . .” (ECF No. 38-4, Ex. D at 46-47).

         Sometime in or before the spring 2014 semester, Professor Turchek asked Dr. Laverty to make changes to the online INFS6151 Course and develop the shell for the redesigned class. (ECF No. 38-5, Ex. E at 87). Professor Turchek did not request any input from Dr. Baugh even though he knew she had an interest in the INFS6151 Course, having taught it for nine years prior to Professor Turchek assigning it to Dr. Laverty for the prior fall semester and having filed a grievance over the INFS6151 Course being taken away from her and assigned to Dr. Laverty. (ECF No. 48-4 at App. K00003, ¶ 14). Dr. Laverty redesigned the INFS6151 Course by “add[ing] the topics that I did, with the Enterprise stuff;” and developing “support materials, hands-on assignments with support, ” all which took “a considerable amount of time.” (ECF No. 38-8, Ex. H at 134-135).

         Based upon Dr. Laverty's redesign of the online INFS6151 Course, Professor Turchek gave Dr. Laverty the right of first refusal with respect to the course. (ECF No. 48-4 at App. K00003, ¶ 14). Dr. Laverty exercised the right of first refusal with respect to the INFS6151 Course for the summer 2014 session. (ECF No. 59 at 19, RMU's SOF 69). Dr. Baugh learned about Dr. Laverty's right of first refusal with respect to the INFS6151 Course on or about March 5, 2014. (ECF No. 48-5 at App. M00073). In undated CIS Department meeting minutes, several of which contain a status report on new online shell developments being worked on within the CIS Department, Professor Laverty is only listed as developing a new INFS6830 online course, not a new INFS6151 online course. (ECF No. 48-5 at App. M00044-00050). Dr. Laverty was not paid for the redesign of the INFS6151 Course until May, 2014. (Id. at App. M00077).

         On August 1, 2014, Dr. Baugh filed a grievance with respect to Professor Turchek giving Dr. Laverty the right of first refusal on the INFS6151 Course. (ECF No. 38-3, Ex. C at 123). Her grievance did not allege that Professor Turchek's action was discriminatory in nature. (ECF No. 59 at 19, RMU's SOF 72).

         On October 8, 2014, the Federation, Dr. Baugh, and RMU agreed to resolve the grievance, and RMU paid Dr. Baugh $3, 150.00, an amount in excess of the amount requested by Dr. Baugh. (Id. at 20, RMU's SOF 73). Dr. Baugh accepted and retained the $3, 150.00. (Id. at 20, RMU's SOF 74). Additionally, on January 12, 2015, Provost Jamison directed that the CIS Department [i.e., Professor Turchek] take the online ...


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