Opinion
CIVIL ACTION NO. O1-CV-2141
July 24, 2003
ORDER
AND NOW, this 24th day of July, 2003, upon consideration of Defendants Lafayette College's and Arthur J. Rothkopf, Esquire's Motion for Summary Judgment (Docket No. 19), Plaintiff Eve Atkinson's Response (Docket No. 21), Defendants' Reply thereto (Docket No. 23), and Plaintiffs Supplemental Memorandum in Response to Defendants' Motion for Summary Judgment (Docket No. 25), it is hereby ORDERED that Defendants' Motion for Summary Judgment is GRANTED. Judgment is entered in favor of Defendants Lafayette College and Arthur J. Rothkopf, Esquire and against Plaintiff Eve Atkinson.
This case is CLOSED.
MEMORANDUM
Presently before the Court are Defendants Lafayette College's and Arthur J. Rothkopf, Esquire's Motion for Summary Judgment, Plaintiff Eve Atkinson's Response, and Defendants' Reply thereto. For the reasons set forth below, Defendants' Motion is GRANTED.
I. BACKGROUND
In the fall of 1989, Plaintiff Eve Atkinson, Ed.D. (hereinafter referred to as "Plaintiff' or "Atkinson") applied to Defendant Lafayette College (hereinafter referred to as "Lafayette" or the "College") for the position of "Director of Athletics and Professor and Head, Physical Education and Athletics." Pl.'s Resp.-Ex. H, Atkinson Appointment Letter (hereinafter referred to as "Appointment Letter"). Atkinson initially learned about the position from Olav Kollevoll (hereinafter referred to as "Kollevoll"), the former Director of Athletics at Lafayette who was hired by the College in 1965 and who was awarded tenure as Professor of Physical Education and Athletics five years later. Defs.' Mot. Summ. J.-Ex. 3B.
On April 30, 1965, Kollevoll was appointed as "Director of Athletics and Physical Education with term at the pleasure of the President of the College." Defs' Mot. Summ. J.-Ex.3B. He was also named the "Professor of Physical Education for a term of five years (1965-1970)." Id.
In December 1989, Lafayette College hired Plaintiff. At the time of her hire, Plaintiff agreed to the terms of the Appointment Letter. Plaintiffs letter appointed her to "the position of Director of Athletics and Professor and Head, Physical Education and Athletics." See Appointment Letter. The Appointment Letter provides, in relevant part:
... [The College is] pleased to appoint you to the position of Director of Athletics and Professor and Head, Physical Education and Athletics, effective January 29, 1990, with term thereafter at the pleasure of the President of the College and the Board of Trustees. It is further understood that your initial appointment will be through June 30, 1992, and following that period that you would be subject to the procedures for due notice as apply to the faculty which would ensure you a minimum of one year's notice.Id. Plaintiff's letter does not provide that she would be considered for tenure at any time. Id.
Atkinson was not terminated after her initial two and one-half year term. Thereafter, Atkinson received yearly salary letters advising her of her annual increase. As such, Atkinson believed she had tenure. Pl.'s Resp.-Ex.A, Eve Atkinson Dep. (hereinafter referred to as "Atkinson Dep.") at 185.
The Lafayette College Faculty Handbook and the Statutes of Lafayette College provide further guidance as to the terms and conditions of employment for faculty members. For example, regarding tenure, the Faculty Handbook provides, in relevant part:
B. Tenure. Tenure as described in the following paragraphs is defined as continuity of service, the institution having relinquished the freedom it normally possesses to terminate appointment, except for cause and subject to provision of the College with respect to retirement.
1. Professors shall have tenure except on an initial appointment to the Lafayette College Faculty. Such initial appointment may be with tenure or for a period not to exceed three years. This appointment shall be followed by appointment with tenure or termination of employment.
5. Notification about Tenure Status. For those not on tenure a decision must be reached by September 1 of the last probationary year as to whether or not tenure will be granted, and the individual must be notified of this decision. In no case, however, will tenure be granted by default. It is the responsibility of the individual concerned to notify his Department Head of a failure to receive written notification with regard to his continued employment.
Pl.'s Resp.-Ex. J., Statutes of Lafayette College at Sec. 70.
In January 1996, Plaintiff began raising issues of gender equality in the context of the College's athletic budget by submitting various plans to ensure compliance with Title IX to a committee of the College's Board of Trustees. As a result of her efforts to promote gender equity, Atkinson claims she was subjected to sex discrimination by her supervisor, the College's Dean of Students, Herman Kissiah (hereinafter referred to as "Kissiah"). Atkinson Dep. at 259-60. Specifically, on November 18, 1998, as a result of rising tensions due to a heated debate on these issues, Plaintiff alleges that she was physically threatened by Kissiah, who allegedly had a history of intimidating female employees who reported to him. Id. Atkinson immediately reported this incident to Leslie Muhlfelder (hereinafter referred to as "Muhlfelder"), the Director of Human Resources at Lafayette, and to President Arthur J. Rothkopf (hereinafter referred to as "Rothkopf') (Defendant Rothkopf and Lafayette College collectively referred to as "Defendants").
Title IX provides, in pertinent part:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.20 U.S.C. § 1681 (a).
As a result of her complaints regarding Title IX compliance, Atkinson believes she was subjected to unlawful retaliation, which ultimately resulted in her termination. Pl.'s Resp. at 8. For example, supervision of intramurals and recreation, which was a significant component of Atkinson's position, was removed from her in April, 1999. According to Atkinson, this removal was retaliatory because it was planned in order to reduce her stature and take away a supervisory aspect of her position. Atkinson Dep. at 287.
On November 4, 1999, President Rothkopf formally notified Plaintiff of his decision to terminate her employment, the termination to take effect approximately one and one-half years later because of the required notice period provided by the College's procedures. The College offered Plaintiff a "buyout," in which the College would pay her three months' salary if she resigned by June 20, 2000. Defs.' Mot. Summ. J.-Ex. 1A. Plaintiff decided not to take this option and worked at the College until her employment ended on June 30, 2001.
The College offered a "buyout" to at least one other employee, as Atkinson testified that a male employee at Lafayette College, william Russo (hereinafter referred to as "Russo"), "was given a buyout deal" when he was terminated. Atkinson Dep. at 481.
Bruce McCutcheon (hereinafter referred to as "McCutcheon"), the former Associate Athletic Director, succeeded Atkinson as Director of Athletics. Atkinson Dep. 255-56.
In his termination letter to Atkinson, Rothkopf expressed his belief that the Lafayette Athletic Department would benefit from new leadership. Id. In response to Plaintiff's interrogatories, Defendant Rothkopf elaborated further on his reasons for terminating Plaintiff's employment at Lafayette:
... the termination decision was based on the conclusion that new leadership was needed in the Athletics Department. The President of the College concluded, in consultation with others, that Plaintiff was not the right person to lead the Athletics Department in the future. The President of the College believed that Plaintiff's leadership and management skills were deficient. He believed that her management style alienated others and led to poor relations and low morale in the Athletic Department and to working relationships with others in College administration that were not constructive. The President of the College also believed that Plaintiff had exercised poor judgment in a variety of situations, which lessened his confidence in her abilities.
Defs.' Mot. Summ. J.-Ex. 4, Defs.' Resp. to Pl.'s Interrogs., Interrog. Resp. No. 3.
After receiving her termination letter of November 4, 1999, Plaintiff asserted for the first time that she was a tenured member of the Lafayette College faculty, and therefore was entitled to the lifetime employment protections afforded to tenured faculty members. Believing she was a tenured member of the faculty, Plaintiff attempted to appeal Rothkopf's decision not to reappoint her. In a letter to President Rothkopf dated November 22, 1999, Plaintiff acknowledged that she was given proper notification of her termination from the position of Athletic Director and Department Head, but argued that she could not be terminated without cause from one of the titles of her position, that of Professor, because she had tenure. Defs.' Mot. Summ. J.-Ex. 1A. President Rothkopf refused to accept Plaintiff's claim of tenure, and, by letter dated December 13, 1999, explained that Plaintiff never had been a tenured member of the faculty of the College, but rather served at the "pleasure of the President." Id.
On January 6, 2000, Plaintiff wrote a second letter to President Rothkopf, further detailing why she felt she was a tenured member of the Lafayette College faculty and requesting a hearing by the faculty tenure review appeals committee. Id. President Rothkopf wrote a second letter to Plaintiff, explaining that "[s]erving `at the pleasure of the President of the College and the Board of Trustees' is inherently at odds with the "tenure' you are now claiming for the first time." Id.-Ex. 1C. He therefore denied her request for a hearing as a tenured faculty member.
On February 18, 2000, Plaintiff wrote a letter to the Provost of the College, Dr. June Schlueter (hereinafter referred to as "Schlueter"). In that letter, Plaintiff re-asserted her right to remain in her position as a tenured member of the Lafayette College faculty. Id.-Ex. 1A. On March 3, 2000, Provost Schlueter responded by stating that she could neither accept Plaintiff's claim to have tenure nor act upon Plaintiff's request for a faculty appeal because "[Atkinson's] [A]ppointment [L]etter expressly states that [she] serve[s] at the pleasure of the President and the Board." Id.-Ex. 1B. Schlueter also recommended that Plaintiff contact the EEO Officer for the College if she wanted to file an EEO complaint.Id.
On May 2, 2000, Plaintiff filed a complaint with the Pennsylvania Human Relations Commission ("PHRC") challenging her termination and the denial of her tenure status and requested appeals. In her PHRC Complaint, Plaintiff alleges that the "decision to terminate her employment and not permit her the opportunity to be heard was based on her gender (female) and a pattern and practice of discharging qualified female employees," and that "[s]imilarly situated males have not been terminated or had the status of their tenure denied under similar circumstances." Pl.'s Resp.-Ex. Q, PHRC Charge at ¶¶ 3(m) and (n). Plaintiff did not allege retaliation in her PHRC Complaint. The PHRC Complaint was dual-filed with the United States Equal Employment Opportunity Commission ("EEOC").
On July 10, 2000, Plaintiff responded to an EEOC questionnaire concerning her employment claim by submitting a verified document entitled "Allegations of Employment Discrimination." In the response to the questionnaire, Plaintiff stated that the basis for the charge was "sex," "retaliation," and "age." Defs.' Mot. Summ. J.-Ex. 7. Plaintiff's allegation of sex discrimination was that she was treated differently from similarly situated males. Id. With respect to retaliation, Plaintiff alleged that her "notice of termination [was] retaliation against her for her insistence that Title IX antidiscrimination law be followed, i.e., that additional financial funding and personnel be given to the women's sport's programs." Id.
Plaintiff also believes that it was incorrect for the College to deny her request for a faculty appeal of her termination. First, she claims that as a tenured member of the faculty, she was entitled to a review of her termination. Second, Plaintiff testified that William Larson (hereinafter referred to as "Larson"), a non-tenured male faculty member, was afforded a faculty appeal of his termination. Atkinson Dep. at 479-80. Finally, Atkinson submits evidence that at a Promotion Tenure and Review ("PTR") Committee meeting, Professor Robert Root (hereinafter referred to as "Root") proposed that the PTR discuss the role it should have played in the matter of Atkinson's termination, "given her faculty status and Professor rank." Pl.'s Supplemental Mem.-Ex. B. The PTR Board then formed a sub-committee, consisting of Professor Root and Professor Vincent Viscomi (hereinafter referred to as "Viscomi"), to discuss the issues relating to Atkinson's termination and the failure to include the PTR Committee in that process. Id -Ex F, Viscomi Dep. at 26-28. Root and Viscomi discussed the issue and then prepared a draft report of their conclusions. The draft report acknowledged that Atkinson was "hired with faculty status and at the rank of Professor;" urged "that in the future, the title of Professor be reserved for distinguished teachers and scholars worthy of inclusion in the top rank of Lafayette's Faculty and that the strong association between that rank and tenure . . . be preserved;" and objected "to the decision to dismiss an officer of instruction without review by this Committee." Id.-Ex. D, Draft Report.
Atkinson filed the instant lawsuit against Defendant Lafayette College and Defendant Rothkopf, alleging unlawful employment discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e to 2000e-17 ("Title VII"), Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. ("Title IX") and the Pennsylvania Human Rights Act, 43 P.S. § 951 et seq. ("PHRA"), as well as breach of contract. This Court previously granted Defendants' motion for partial dismissal as to retaliation claims under Title IX and as to the breach of contract and Title VII claims specifically against Defendant Rothkopf. Atkinson v. Lafayette College, No. 01-CV-2141, 2002 U.S. Dist. LEXIS 1432, at *35 (E.D. Pa. Jan. 29, 2002). Defendants moved for summary judgment as to the remaining claims, to which Plaintiff Atkinson responds.
II. STANDARD OF REVIEW
A motion for summary judgment will be granted where all of the evidence demonstrates "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Since a grant of summary judgment will deny a party its chance in court, all inferences must be drawn in the light most favorable to the party opposing the motion. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).
The ultimate question in determining whether a motion for summary judgment should be granted is "whether reasonable minds may differ as to the verdict." Schoonejongen v. Curtiss-Wright Corp., 143 F.3d 120, 129 (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 248.
III. DISCUSSION
Courts generally have interpreted the PHRA in accordance with the standards applied to claims brought under Title VII of the Civil Rights Act of 1964. Grande v. State Farm Mut. Auto. Ins. Co., 83 F. Supp.2d 559, 562 (E.D. Pa. 2000). Therefore, the Court will analyze Plaintiff's remaining Title VII and PHRA claims under the same standards.
Title VII makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2 (a)(1). Since Plaintiff in this case seeks to establish employment discrimination based on her sex through indirect evidence, the Court follows the evidentiary framework first set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and subsequently refined in Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). Under this framework, Plaintiff/employee must show, by a preponderance of the evidence, a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. If the employee is able to do this, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for its actions against the employee. Id. If the employer can meet this burden, then the burden shifts back to the employee to prove, by a preponderance of the evidence, that the reasons articulated by the defendant were actually pretext for discriminatory practices. Id. at 804. Summary judgment is appropriate on behalf of the employer if the employee fails to meet her burden at either the prima facie or pretext stage of the framework.
In the present case, Atkinson alleges that Defendant Lafayette College discriminated against her because of her gender and retaliated against her for having opposed the College's practice of gender discrimination. Pl.'s Compl. at ¶ 42. The Court will address each allegation in turn.
1. Gender Discrimination
In order to establish a prima facie case of gender discrimination under Title VII, and thus under the PHRA, a plaintiff must demonstrate the following elements: (1) she is a member of a protected class; (2) she was qualified for the job in question; (3) she suffered an adverse employment action; and (4) circumstances existed that support an inference of discrimination. See Geraci v. Moody-Tottrop, Int'l, Inc., 82 F.3d 578, 580-81 (3d Cir. 1996); Grande, 83 F. Supp.2d at 562. The fourth prong of the prima facie case may be shown by sufficient evidence that non-members of the protected class were treated more favorably. See Goosby v. Johnson Johnson Med., Inc., 228 F.3d 313, 318-19 (3d Cir. 2000); Grande, 83 F. Supp.2d at 562.
In this case, Defendant Lafayette College does not dispute the first three elements of Plaintiff's prima facie case. Rather, Lafayette argues that Plaintiff cannot make out a prima facie case of gender discrimination because she cannot satisfy the fourth element, that is, she has not come forward with "evidence adequate to create an inference that an employment decision was based on an illegal discriminatory criterion." Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 356 (3d Cir. 1999) (citing O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312 (1996)).
In order to satisfy the fourth prong of the prima facie case, Plaintiff attempts to show that similarly situated male employees were treated more favorably. Similarly situated employees are ones who "have dealt with the same supervisor, have been subject to the same standards and have engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it." Morris v. G.E. Fin. Assurance Holdings, No. 00-3849, 2001 U.S. Dist. LEXIS 20159, at *20 (quoting Waterhouse v. Dist. of Columbia, 124 F. Supp.2d 1, 13-14 (D.D.C. 2000)). In order to show that similarly situated individuals were treated more favorably, Atkinson identifies four main categories of "comparators": (1) Kollevoll's status as a tenured faculty member; (2) Larson's opportunity to appeal his termination to the faculty; (3) Russo's buyout deal upon termination; and (4) McCutcheon's appointment to Plaintiff's former position after she was terminated. See Pl.'s Resp. at 20-21. The Court finds that none of the males to whom Plaintiff refers are "similarly situated," as their conditions of employment were markedly different from Plaintiff's and are not probative of discrimination.
First, Plaintiff submits that her male predecessor, Kollevoll, who was hired by the College in 1965 and who received tenure as Professor of Physical Education, was treated more favorably. Id. at 20. Atkinson claims even though she served in the same position as Kollevoll and performed the same functions, he was given tenure, but she was denied this status.
Kollevoll's position at Lafayette College can be distinguished from Atkinson's. Unlike Plaintiff, Kollevoll was appointed to two separate positions. Defs.' Mot. Summ. J.-Ex. 3B. Kollevoll's appointment letter expressly distinguished his appointment as Athletic Director, which he served "at the pleasure of the President of the College," from his appointment as Professor, which he served "for a term of five years (1965-1970)." Id. Consistent with the terms expressly contemplated in his appointment, Kollevoll was considered for tenure after five years, for which he received a favorable recommendation. Id.-Nov. 6, 1969 Letter to President Bergethon. The Board of Trustees affirmatively awarded him tenure in 1970. Id.-Feb. 21, 1970 Bd. of Tr. Meeting.
In contrast, Plaintiff was appointed to a single position with three titles — "Director of Athletics and Professor and Head, Physical Education and Athletics." Appointment Letter. Atkinson was appointed to serve in this position "at the pleasure of the President of the College and the Board of Trustees." Id. Unlike Kollevoll's appointment letter, Plaintiff's Appointment Letter does not separate her role as professor from the other two titles — Director of Athletics and Department Head for Physical Education and Athletics. Id. Even though the letter states that Atkinson's initial appointment "will be through June 30, 1992," there is no mention of tenure in Plaintiff's Appointment Letter. As such, Atkinson neither was considered for, nor received, a grant of tenure from the Board of Trustees.
With regard to her claim that discriminatory motives prompted the College to deny her request for faculty appeal of her termination, Plaintiff seeks to compare herself to Larson, a non-tenured male faculty member who was afforded a faculty appeal of his termination. Larson was hired in 1965 as an "Instructor in Physical Education and Coach of Swimming and Tennis," was reappointed yearly, and did not serve a term at the pleasure of the President and the Board of Trustees. Defs.' Mot. Summ. J.-Ex. 3C. In contrast, Plaintiff was denied a faculty appeal of her termination. Plaintiff, however, did not receive yearly reappointment letters, though she did receive yearly salary letters advising her of her annual pay increase. Rather, Plaintiff had a single contract with service "at the pleasure of the President of the College and the Board of Trustees." Provost Schlueter, when deliberating over Plaintiff's request for an appeal to the Faculty Appeals Committee, determined that Atkinson's status of serving "at the pleasure of the President of the College and the Board of Trustees" was fundamentally inconsistent with Plaintiff's claim of a right to faculty review of the termination decision. See Schlueter Decl. at ¶ 9. Thus, the evidence presented to the Court establishes that the College's decision was made solely on the basis of Atkinson's terms of employment. Plaintiff presents no evidence, direct or circumstantial, that her gender played a role in the denial of a faculty review of her termination.
Next, Plaintiff seeks to compare herself to Russo, another non-tenured male faculty member who was offered a buyout deal upon termination. Plaintiff claims she was not afforded the same opportunity. The record reveals, however, that Atkinson was treated the same as her male counterpart, as she too was offered a buyout in her November 4, 1999 termination letter. The letter specifically provided that Atkinson would receive three months severance if she resigned by June 30, 2000. Defs.' Mot. Summ. J.-Ex. 1A. Plaintiff chose not to accept that offer, but instead remained employed with the College until her termination date of June 30, 2001.
Finally, even though Plaintiff was replaced by a man (McCutcheon), this, standing alone, is not sufficient to satisfy a prima facie case of gender discrimination. Finding that Plaintiff's "comparators" are not similarly situated and that no male employee was treated more favorably, the Court holds that Plaintiff failed to establish a prima facie case of gender discrimination.
Assuming, arguendo, Atkinson could demonstrate a prima facie case of gender discrimination, Lafayette College articulated legitimate, nondiscriminatory reasons for each of the three primary actions alleged to have been discriminatory: (1) Plaintiff's termination; (2) the denial of Plaintiff's claim to have tenure; and (3) the denial of Plaintiff's request for a faculty appeal. With respect to termination, President Rothkopf's November 4, 1999 letter to Plaintiff explained that he had concluded that the Athletic Department needed new leadership. With respect to Plaintiff's claim that she possessed lifetime tenure, President Rothkopf rejected that claim because it was wholly inconsistent with the terms of her Appointment Letter, which stated that she served in a single position "at the pleasure of the President of the College and the Board of Trustees." Similarly, with respect to the denial of Plaintiff's demand for a faculty appeal, Provost Schlueter decided that the terms of Plaintiff's Appointment Letter, specifically, the phrase "at the pleasure of the President of the College and the Board of Trustees," removed the issue of Plaintiff's continued employment from the faculty's consideration.
Under the law of this circuit, notably Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994), it is incumbent upon Atkinson to point to evidence which demonstrates "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in Lafayette College's reasons that one could reasonably conclude that the reasons are untrue. The Court finds that she has failed to point to such evidence. No reasonable jury could find that Atkinson's gender played a role in her termination, in the denial of her claim that she had lifetime tenure, or in the denial of her request for a faculty appeal.
Accordingly, Defendant Lafayette College's motion for summary judgment as to Plaintiff's gender discrimination claim is granted.
2. Retaliation
Plaintiff also alleges that Defendant Lafayette College retaliated against her in violation of Title VII for having opposed the College's practice of gender discrimination. Pl.'s Compl. at ¶ 42. The anti-retaliation section of Title VII provides:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment.., because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.42 U.S.C. § 2000e-3a.
"To establish discriminatory retaliation under Title VII, a plaintiff must demonstrate that: (1) she engaged in activity protected by Title VII; (2) the employer took an adverse employment action against her; and (3) there was a causal connection between her participation in the protected activity and the adverse employment action." Robinson v. City of Pittsburgh, 120 F.3d 1286, 1299 (3d Cir. 1997) (citing Nelson v. Upsala College, 51 F.3d 383, 386 (3d Cir. 1995)).
Before a plaintiff may file suit in federal court under Title VII, however, a plaintiff must exhaust her administrative remedies by filing a charge with the appropriate state and/or federal agencies. See Watson v. SEPTA, No. 96-1002, 1997 U.S. Dist. LEXIS 13306, at *19 (E.D. Pa. Aug. 28, 1997). Defendant Lafayette College argues that Plaintiff has failed to exhaust her administrative remedies as she did not allege retaliation under Title VII before the EEOC.
The scope of any ensuing federal court action is generally defined by that of the EEOC charge. When a claim is not specifically presented to the EEOC, however, the test for whether that claim can be presented to the district court is "whether the acts alleged in the subsequent Title VII suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom." Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996) (citing Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984)).
Plaintiff's initial complaint before the PHRC, which was dual-filed with the EEOC, does not use the word "retaliation." Rather, Plaintiff alleges that the "decision to terminate her employment and not permit her the opportunity to be heard was based on her gender (female) and a pattern and practice of discharging qualified female employees." Pl.'s Resp.-Ex. Q, PHRC Charge at ¶ m. In her response to the EEOC questionnaire, however, Plaintiff does list retaliation as a basis for her allegation of employment discrimination, but states that she was "being retaliated against for raising issues of discrimination in Title IX funding." Defs.' Mot. Summ. J.-Ex. 7. With respect to retaliation, Plaintiff alleged that her "notice of termination [was] retaliation against her for her insistence that Title IX antidiscrimination law be followed, i.e., that additional financial funding and personnel be given to the women's sports programs." Id.
The Court finds that Plaintiff's Title VII retaliation claims cannot be presented to this Court because the allegations in her Complaint do not fall "fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom." Antol, 82 F.3d at 1295. Plaintiff filed the present lawsuit on the basis of, inter alia, Title VII retaliation, but she did not present a claim of Title VII retaliation before the EEOC. Rather, Plaintiff's only reference to retaliation, found in her response to the EEOC questionnaire, deals with her opposition to the gender inequity in the funding of sports programs at Lafayette College, i.e., Title IX retaliation. The Third Circuit has established, however, that allegations involving retaliation for opposition to disparities between women's and men's athletic programs do not violate Title VII. See Lamb-Bowman v. Delaware State Univ., No. 01-2045, 39 Fed. Appx. 748, 750 (3d Cir. 2002) (stating that "allegations involv[ing] retaliation against [plaintiff] for her opposition to disparities between the women's and men's athletic programs" "potentially violate Title IX, but not Title VII"). There is no suggestion in her initial EEOC complaint or in her response to the EEOC that the alleged retaliation was due to any violation of Title VII. As such, the Court finds that Plaintiff has failed to exhaust her administrative remedies with respect to her Title VII retaliation claims and grants Defendant Lafayette College's motion for summary judgment as to this claim.
Even if Plaintiff's retaliation claim was properly presented to this Court, the Court finds that Atkinson has failed to adduce evidence demonstrating such weaknesses in Lafayette College's legitimate, nondiscriminatory reasons for her termination to suggest that these reasons were actually a pretext for discriminatory retaliation. See discussion supra Part IIIA.1.
B. PHRA
Plaintiff uses the same allegations that form the basis of her Title VII claim to support a claim under the PHRA. Plaintiff claims that her termination and denial of her tenure status and right to a faculty appeal were either because of her gender, or in retaliation of her opposition to employment practices prohibited by the PHRA.
"The proper analysis under Title VII and the Pennsylvania Human Relations Act is identical, as Pennsylvania courts have construed the protections of the two acts interchangeably." Weston v. Pennsylvania, 251 F.3d 420, 425 n. 3 (3d Cir. 2001). Therefore, in light of the Court's finding that Atkinson failed to establish a prima facie case with regard to her gender discrimination claim under Title VII, the Court also grants Defendant Lafayette College's motion for summary judgment as to Plaintiff's PHRA gender discrimination claim. Additionally, as with Title VII, before a plaintiff may file suit under the PHRA, administrative remedies must be exhausted by filing a charge with the appropriate agency. Watson, 1997 U.S. Dist. LEXIS 13306, at * 19. Finding that Plaintiff failed to exhaust her administrative remedies with regard to her Title VII retaliation claim, the Court also dismisses her PHRA retaliation claims for failure to exhaust her administrative remedies. As such, the Court grants Defendant Lafayette College's motion for summary judgment as to Plaintiff's PHRA claims for the same reasons the Court granted summary judgment with respect to Atkinson's Title VII claims.
Plaintiff also claims that Rothkopf violated the PHRA by aiding and abetting the College's alleged violation. In light of the Court's finding that Defendant Lafayette College did not violate the PHRA, the Court also dismisses Plaintiff's PHRA claims against Defendant Rothkopf. Accordingly, the Court grants Defendant Rothkopf's motion for summary judgment as to Plaintiff's PHRA claims.
C. Breach of Contract
Count IV of the Complaint alleges that "[b]ecause [P]laintiff had met the standards for tenure, she was entitled to termination only for just cause, and entitled to complete due process protection in any such deprivation of employment." Pl.'s Compl. at ¶ 49. The Complaint further states that Defendants breached "the terms of the contract of tenure between themselves and plaintiff by improperly dismissing plaintiff without just cause and without statutory bases to do so." Id. at ¶ 50. Defendant Lafayette College argues that it is entitled to summary judgment as to Plaintiff's breach of contract claim.
Defendant Lafayette College's primary argument is that Plaintiff's employment agreement precludes any notion of her obtaining tenure. Plaintiff's Appointment Letter states that the term of her position is "at the pleasure of the President of the College and the Board of Trustees." Appointment Letter. Defendant argues that the provisions of Plaintiff's Appointment Letter expressly and unambiguously preclude any claim to her being a tenured member of the Lafayette College faculty. Serving at the "pleasure" of the President and the Board of Trustees is inherently inconsistent with status as a tenured faculty member. To the extent that Plaintiff was able to receive tenure, her term of employment would cease to be at the "pleasure" of the President and the Board, and those provisions of the Appointment Letter (along with the provisions allowing her notice) would be rendered meaningless.
Plaintiff counters by stating there is sufficient evidence for a jury to find that Atkinson and Defendant Lafayette College entered into a written employment contract and that she was entitled to tenure under the terms of the contract. Atkinson's primary argument is that she was appointed to three different positions: (1) Director of Athletics, (2) Professor, and (3) Department Head for Physical Education and Athletics. Pl.'s Resp. at 50. She concedes that the Appointment Letter states that after June 30, 1992, additional terms of employment were "at the pleasure of the President of the College and the Board of Trustees," but she argues that this only applies to her role as Director of Athletics and Department Head. Pl.'s Resp. at 50. In turn, she claims that her position as a professor is governed by the Faculty Handbook, which states that "[p]rofessors shall have tenure except on an initial appointment to the Lafayette College Faculty. Such initial appointment may be with tenure or for a period not to exceed three years. This appointment shall be followed by appointment with tenure or termination of employment." Pl.'s Resp.-Ex. J, Statutes of Lafayette College at Sec. 70. As such, based on Section 70 of the Lafayette College statutes, Atkinson argues that because she was not terminated after her initial appointment and never advised that she was not being given tenure, she is a tenured member of the faculty as a professor.
Plaintiff's arguments are misplaced. The December 28, 1989 Appointment Letter constitutes the employment agreement between Lafayette College and Atkinson. As such, the Court finds that the Appointment Letter is unambiguous as it clearly appoints Atkinson to the "position of Director of Athletics and Professor and Head, Physical Education and Athletics." Appointment Letter (emphasis added). Though three separate titles are listed (Director of Athletics, Professor, and Department Head), the Appointment Letter is clear that all three titles are part of the same single "position" to which Plaintiff was appointed. Plaintiff cannot parse out her title and rank as "Professor" from the other aspects of the position to which she was appointed. In her correspondence with President Rothkopf following receipt of the termination letter, Plaintiff acknowledged that he was entitled to dismiss her as Director of Athletics, based on the language of her Appointment Letter. See Atkinson letter dated 11/22/99 (stating that "[w]hile I strongly disagree with [the decision to terminate me (Atkinson) as Lafayette's Director of Athletics] and hope that you will meet with me to discuss reconsideration of it, I do acknowledge that you have provided me with adequate notice of termination as an officer of administration of Lafayette College and more specifically, as the Director of Athletics."). In this situation, the President's power applies equally to her status as Professor, as this title is part of the indivisible "position" which Plaintiff held.
In any event, Plaintiff's entire employment relationship, regardless of how it is parsed, is subject to the condition of serving at the pleasure of the President and the Board. The Appointment Letter clearly provides that the singular position is "effective January 29, 1990, with term thereafter at the pleasure of the President of the College and the Board of Trustees." The modifier "at the pleasure of the President" refers to the position as a whole, and it cannot be segmented to apply only to Atkinson's role as Director of Athletics and Department Head.
Even though the Faculty Handbook provides that "professors shall have tenure," Section 70 of the Lafayette Statutes also provides that "[i]n no case ... will tenure be granted by default." Pl.'s Resp.-Ex. J, Statutes of Lafayette College at § 70.B.5. The College has a defined and articulated set of procedures for making decisions concerning appointments with tenure. For example, Section 4.343 of the Faculty Handbook states that the "President receives the advice of the Committee on Appointments, Promotions and Dismissals and submits recommendations for award of tenure or for promotion to the Board's Committee on Educational Policy. Tenure is awarded by vote of the Board of Trustees." Defs.' Mot. Summ. J.-Ex. A, Faculty Handbook 1989-1990. Despite Atkinson's claims that she was a tenured professor at Lafayette College, the President did not submit a recommendation for an award of tenure for Atkinson, nor did the Board of Trustees vote on Atkinson's alleged eligibility for tenure. Atkinson cannot become a tenured member of the Lafayette College faculty by the mere passage of time.
Finally, even though Professors Root and Viscomi, through the PTR Committee, expressed their concerns regarding the dismissal of Atkinson, this in no way changes the clear and unambiguous terms of Atkinson's employment. A sub-committee's objection to the College's decision to dismiss Atkinson without review from the entire PTR committee cannot supersede the terms of Atkinson's Appointment Letter. The sub-committee served its role in expressing a concern to the entire committee, but this concern is insufficient to create a genuine issue of material fact when the terms of Atkinson's Appointment Letter clearly state that she would serve "at the pleasure of the President of the College and the Board of Trustees."
Accordingly, the Court grants Defendant Lafayette College's motion for summary judgment as to Plaintiff's breach of contract claim.
IV. CONCLUSION
For the foregoing reasons, Defendants' Motion for Summary Judgment is granted. An appropriate Order follows.