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McMullen v. Arcadia University

United States District Court, E.D. Pennsylvania

April 26, 2018



          GERALD J. PAPPERT, J.

         Catherine McMullen worked for over nine years as a patrol officer and corporal in the Department of Public Safety at Arcadia University before her violations of school policies and standards culminated in her termination. Believing that the disciplinary actions and eventual firing were related to her gender, McMullen sued Arcadia under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. In Count I of the Complaint, she alleged gender discrimination in the form of disparate treatment and claimed in Count II that Arcadia retaliated against her because she filed complaints with the school against her supervisor as well as a charge with the Equal Employment Opportunity Commission.

         Arcadia moved for summary judgment on both claims and the Court heard oral argument on the Motion on April 17, 2018 (ECF No. 30). In her opposition papers, McMullen did not contest Arcadia's argument with respect to the retaliation claim and her counsel confirmed at oral argument that she abandoned Count II. (Hr'g Tr. at 2:17-3:2.) After considering the parties' positions and thoroughly reviewing the record, the Court granted the Motion and entered judgment for Arcadia on April 20, 2018. (ECF No. 32.) This Memorandum explains the Court's decision.


         Arcadia, a private university located in Glenside, Pennsylvania, hired McMullen as a part-time patrol officer in December 2007. She became a full-time officer in September 2010. (Mot., Ex. A (“McMullen Dep.”) at 44:12-46:22, ECF No. 12-1.) In January 2014, Joanna Gallagher was hired as Director of the Department, and shortly thereafter encouraged McMullen to apply for the newly created position of corporal. (Id. at 52:19-52:1, 90:8-91:2; 105:9-12.) McMullen did so and received the promotion. (Id. at 105:13-15.) McMullen applied for a second promotion later that year, this time to sergeant. (Id. at 127:18-22.) By April 13, 2015, however, McMullen knew she would not receive the job and Arcadia ultimately hired Joseph Kalin for the position on November 17, 2015. (Id. at 141:25-142:14; 392:24-393:11, 285:21-22; Hr'g Tr. at 16:17-20, 66:11-14.)

         On July 24, 2015, McMullen was verbally warned by Gallagher after a disagreement between McMullen and another patrol officer during which McMullen said that “every time I question something, people want to go fucking running to her [Gallagher].” (Ex. Q (“Suspension Letter”) at 11, 13, ECF No. 12-1.) Gallagher instructed McMullen that as a supervisor, it was important to be professional and respectful of her colleagues. (Id.)

         On January 22, 2016, McMullen received a counseling letter from Deputy Director Steven Johnson because she did not tell her supervisor that another officer failed to report for work on a day when McMullen supervised that officer's shift. (Id. at 16; Ex. M (“Johnson Affidavit”), ¶ 9, ECF No. 24-1; Suspension Letter at 16.) McMullen was told that in the future she should report such absences to her supervisor. (Suspension Letter at 17; Johnson Affidavit, ¶ 11.)

         In February 2016, Jeff Cochran was hired as Interim Deputy Director of Public Safety. (Ex. N (“Cochran Affidavit”), ¶1, ECF No. 24-2.) The following month, as part of a larger discussion between Gallagher, Cochran and Assistant Vice President of Human Resources Rhonda Hospedales about reorganizing the Department, Cochran solicited McMullen's opinion on how the Department could be improved. (Ex. B (“Gallagher Dep.”) at 317:4-17, 341:9-13, ECF No. 12-1; Ex. B (“Hospedales Dep.”) at 139:4-8, ECF No. 12-1; Cochran Affidavit, ¶ 11.) McMullen suggested eliminating the two corporal positions, one of which she held. (McMullen Dep. at 278:19-281:24.) Gallagher agreed with this suggestion and ultimately eliminated the position as part of the reorganization. (Gallagher Dep. at 320:4-10; Hospedales Dep. at 138:13-139:8; Ex. L (“Reorganization Letter”), ECF No. 12-1.)

         On March 23, 2016, McMullen was formally disciplined for failing to report an inappropriate comment made by a colleague to a person unaffiliated with the University. (Suspension Letter at 18-19.) That same day, McMullen composed an email she intended to send to Kalin. (McMullen Dep. 226:10-227:6.) The email was harshly critical of Gallagher, stating that it was “[s]ad how many people lives [sic] she [Gallagher] has ruined, and how much money the University is wasting to keep one person.” (Ex. K, ECF No. 12-1; McMullen Dep. at 220:24-221:3, 226:10-12.) Unfortunately for McMullen, she sent the email to Gallagher instead of Kalin. Gallagher, knowing McMullen was referring to her, forwarded the email to Hospedales. (Gallagher Dep. at 346:1-3; Ex. K.) Hospedales considered the email inappropriate and unprofessional, and agreed with Gallagher that McMullen should be suspended. (Hospedales Dep. at 66:12-15, 130:10-12.) In her deposition, McMullen acknowledged that her derogatory email warranted discipline. (McMullen Dep. at 300:17-24.)

         On April 6, 2017, Hospedales learned that McMullen had filed the previous day a charge with the EEOC, alleging against Arcadia gender discrimination for not promoting her to sergeant and retaliation for McMullen's filing of a related internal ethics complaint. (Ex. O (“First EEOC Charge”) at 7, ECF No. 12-1.) Despite receiving the EEOC charge, Hospedales decided to move forward with McMullen's suspension. (Hospedales Dep. 126:14-127:5; Suspension Letter at 1.) Hospedales emailed McMullen the suspension letter on April 7, telling McMullen that she “engaged in unprofessional and disrespectful behavior on March 23rd” by sending the email to Gallagher, the latest in a series of transgressions by McMullen. (Suspension Letter at 2.) In addition to the email, the reasons given for her suspension included the July 24, 2015 verbal warning from Gallagher, January 22, 2016 counseling letter from Johnson, and March 23, 2016 written warning for failing to report a colleague's inappropriate comment. (Suspension Letter at 1, 2, 4.) McMullen was suspended for three days. (Id.)

         On April 8, Gallagher implemented the Departmental reorganization discussed and agreed upon prior to March 23, the date of McMullen's ill-fated email to Gallagher. (Reorganization Letter at 1; Hospedales Dep. at 138:13-139:8.) In a Department-wide email sent from Gallagher, McMullen learned that the Department would be reorganized and, consistent with her earlier suggestion to Cochran, the corporal positions held by her and Barry Whitney would be eliminated. (McMullen Dep. at 715:4-17; Reorganization Letter at 1.) With her position eliminated, McMullen again became a patrol officer while Whitney was appointed interim shift supervisor.[1](McMullen Dep. 282:11-16; Gallagher Dep. 318:4-6; Reorganization Letter at 1.)

         Jeff Cochran left the University at the end of June. (Id. ¶ 31.) Despite no longer being employed by Arcadia, Cochran continued to send emails from his Arcadia email account to McMullen's personal account. (McMullen Dep. 341:2-6; Hospedales Dep. 150:6-151:5.) After learning of this, Hospedales investigated the conduct, interviewing McMullen as part of that investigation. (Hospedales Dep. 153:7-16; Ex. S (“Last Chance Letter”) at 1, ECF No. 12-1.) McMullen initially lied about receiving emails from Cochran after he left the school, but admitted it after being confronted with evidence of those communications. (Last Chance Letter at 1; Hr'g Tr. at 28:1.) Hospedales concluded that Cochran forwarded confidential or privileged University emails to McMullen, and that McMullen continued to make disparaging and inappropriate comments about Gallagher in an attempt to undermine Department leadership. (Hospedales Dep. at 150:6-151:5; Last Chance Letter at 1-2.) Hospedales found that McMullen's conduct violated the University's “Acceptable Use Policy” and “Statement of Civility, ” but rather than terminating her, she sent McMullen a “last chance letter” on September 15, 2016. (Id. at 1-2.) The letter stated that any further violations of University policy or attempts to undermine Department leadership would result in McMullen's termination. (Id.)

         Notwithstanding this warning, McMullen was involved in five incidents in December 2016 and January 2017, including: (1) making an inappropriate statement to the Director of Residence and Commuter Life; (2) changing, without authorization, the password for a public safety camera; (3) publicly questioning two supervisory officers; (4) arguing with a dispatcher and failing to say if she was responding to a call; and (5) falsifying patrol logs. (Ex. T (“Termination Letter”) at 1-2, ECF No. 12-1; Hospedales Dep. 224:7-19.) In the first incident, McMullen told the Director of Residence and Commuter Life “I better call in the unlocked door or I might get fired, ” while in the second McMullen did not have the authority to change the camera's password and she did not inform her supervisors that she did so. (Hospedales Dep. 224:7-19; Termination Letter at 1-2.) In the third incident, McMullen questioned two supervisory officers in a disparaging tone over a decision they made during an emergency situation. (Id. at 225:18-23, 237:16-23, 238:13-239:5; Termination Letter at 1-2.) In the fourth incident, the Department was informed that a man was looking into vehicles at Beaver Court, an apartment complex adjacent to the University. Rather than saying if she was responding to the call, McMullen argued with the dispatcher about whether or not the Beaver Court apartments were within the Department's jurisdiction. See (Hr'g Tr. at 102:9-12); see also (Termination Letter at 3). Finally, the fifth incident involved McMullen allegedly falsifying her patrol log with respect to a separate incident on the same day as the Beaver Court matter. (Hospedales Dep. at 225:22-226:1; Termination Letter at 1-2.) The cumulative impact of these five events led Hospedales and Gallagher to conclude that McMullen's employment with the school should be terminated and Hospedales fired her on January 22, 2017. (Hospedales Dep. 220:16-19, 226:4-11; Termination Letter at 2.)

         McMullen filed a second EEOC charge on April 5, 2017, alleging gender discrimination and retaliation. (Ex. U, ECF No. 12-1.) McMullen's first and second EEOC charges were dismissed, and she received her right to sue letter for both charges on May 24 and June 9, 2017, respectively. (Compl., ¶¶ 59, 62.)


         Summary judgment is proper if the pleadings, discovery, disclosure materials and any affidavits show that there is no genuine issue of material fact and if, viewing the facts in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. Smathers v. Mutli-Tool, Inc./Multi-Plastics, Inc. Emp. Health & Welfare Plan, 298 F.3d 191, 194 (3d Cir. 2002); see also Fed. R. Civ. P. 56(c). A genuine issue of material fact exists when “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). A mere scintilla of evidence in support of the non-moving party will not suffice; there must be evidence by which a jury could reasonably find for the non-moving party. Id. at 252. Summary judgment is appropriate where “the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         In reviewing the record, a court “must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party's favor.” Prowel v. Wise Bus. Forms, 579 F.3d 285, 286 (3d Cir. 2009). The court may not, however, make credibility determinations or weigh the evidence in considering motions for summary judgment. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000); see also Goodman v. Pa. Tpk. Comm'n, 293 F.3d 566, 665 (3d Cir. 2002).



         Arcadia first contends that McMullen cannot challenge its failure to promote her to sergeant, her suspension or the reorganization that led to her demotion because she failed to exhaust her administrative remedies with respect to those issues. (Mot. at 8.) Under Title VII, a plaintiff must exhaust all administrative remedies before bringing a claim for judicial relief. See 42 U.S.C. § 2000e-5(e); see also Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996). To exhaust administrative remedies, a plaintiff “must first file a complaint with the EEOC within 300 days of the alleged unlawful employment practice.” Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013) (citing 42 U.S.C. § 2000-e5(e)(1)). The “parameters of the civil action in the district court are defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination, including new acts which occurred during the pendency of proceedings before the [EEOC].” ...

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