United States District Court, W.D. Pennsylvania
FLOWERS CONTI, CHIEF UNITED STATES DISTRICT JUDGE
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 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. See First Am. Compl. (ECF No.
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).
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.
Standard of Review
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).
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.
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
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.
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. (Id. at 2,
RMU's SOF 6).
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).
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).
Fall 2013 semester INFS6151 course assignment
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).
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).
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).
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.).
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
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.).
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
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).
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.
Spring 2014 semester INFS6151 Course assignment
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). 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).
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).
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
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,
Dr. Baugh's fall 2014 semester teaching schedule
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
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.”
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).
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).
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
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
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.).
Summer 2014 session ethics course assignment
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).
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.
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.” (ECF Nos. 38-1, Ex. A, ¶ 9; 48-4 at
App. K, ¶ 16).
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).
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.).
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
(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).
Dr. Laverty's “right of first refusal” to
teach the INFS6151 Course online
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).
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).
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).
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).
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 ...