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In McKay, the district court held it was barred by the Eleventh Amendment from exercising jurisdiction over a state law employment discrimination claim.
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Civ. A. No. 99-219-SLR
September 29, 2000
Laurence V. Cronin, Esquire of Smith, Katzenstein, Furlow, Wilmington, Delaware, Counsel for Plaintiff, of Counsel: Mark B. Frost, Esquire of Frost Zeff, Philadelphia, Pennsylvania.
John D. Balaguer, Esquire and Marc S. Casarino, Esquire of White Williams, Wilmington, Delaware, Counsel for Defendants.
MEMORANDUM OPINION
I. INTRODUCTION
Plaintiff Dr. Margaret McKay filed this action on April 7, 1999 against defendant Delaware State University ("DSU"), its President, Dr. William B. DeLauder ("DeLauder"), its Vice President of Academic Affairs until 1994, Henry Tisdale ("Tisdale"), its Dean of the School of Arts and Sciences, Dr. Johnny Tolliver ("Tolliver"), its Vice President of Academic Affairs from 1994 to 1996, Dr. Tossie Taylor ("Taylor"), and Chairman of its History, Political Science and Philosophy Department, Dr. William Flayhart ("Flayhart"). Plaintiff alleges disparate treatment, discriminatory discharge and retaliation under 42 U.S.C. § 1981, 1983 and 1985, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 (e), et seq., the Age Discrimination in Employment Act and the Delaware Discrimination in Employment Act. Plaintiff also alleges breach of contract, civil conspiracy and violation of the Delaware Constitution. (D.I. 22) The court has jurisdiction over plaintiff's federal claims pursuant to 28 U.S.C. § 1331 and 1343. The court has supplemental jurisdiction over plaintiff's state claims pursuant to 28 U.S.C. § 1367. Currently before the court is defendants' motion for summary judgment on all counts of the complaint. (D.I. 74) For the reasons that follow, the court will grant in part and deny in part defendants' motion for summary judgment.
Prior to the fall of 1993, DSU was known as Delaware State College.
Plaintiff filed an Amended Complaint on September 13, 1999 in which she added claims under the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Delaware Discrimination in Employment Act. (D.I. 22)
II. BACKGROUND
This is a case of alleged employment discrimination brought by a former tenured professor against DSU and several members of its administration and faculty in their individual and official capacities. Plaintiff contends that she was discriminated against based on her race, gender, age and perceived disability in connection with her performance as a faculty member, her repeated requests for promotion and tenure, and her ultimate dismissal from DSU. In order to assess plaintiff's claims, a review of the facts is necessary.
A. The Early Years of Employment
Plaintiff is a 71-year old Caucasian female. She was first employed in August 1983 as an Assistant Professor of Political Science by DSU, a predominantly African-American educational institution. Shortly after arriving at DSU, plaintiff received critical evaluations from her peers. On October 25, 1983, Associate Professor of Political Science Dr. Joseph Spina ("Spina") expressed his "extreme . . . disappoint[ment]" in plaintiff's performance, including her failure to begin developing the Political Science Internship Program ("Internship Program"), neglect in preparing a requested brochure for the Political Science curriculum, and her failure to post office hours and to spend sufficient time on campus. (D.I. 75 at Al) Spina also noted that the two classes plaintiff taught, Introduction to Political Science and Contemporary Political Ideologies, covered the same subject matter, and students had complained about plaintiff's disorganized teaching methods. (D.I. 75 at A2) Plaintiff received similar critical evaluations from Flayhart and Dr. James Valle ("Valle"), the Department Chair at that time. (D.I. 75 at A4-A10) Valle placed plaintiff on probationary status and postponed a recommendation for reappointment until the next scheduled evaluation in light of plaintiff's short time at DSU. (D.I. 75 at A10) In an October 31, 1983 letter, Valle informed plaintiff of the negative evaluation and provided her with suggestions on how to correct the deficiencies. (D.I. 75 at All)
Valle also informed plaintiff that "some of our disquiet is clearly rooted in intangible eccentricities of behavior, missed and cancelled appointments, apparent inability to grasp the importance of the cooperative efforts we are asking of you, bare minimum adherence to office hours, and a general lack of the professional maturity and self-starting abilities that we had expected of a person of your experience and qualifications." (D.I. 75 at A12)
B. Promotion to Associate Professor and First EEOC Complaint
In the fall of 1985, plaintiff sought promotion from Assistant to Associate Professor. On November 15, 1985, the Promotion and Tenure Committee of the History and Political Science Department ("Tenure Committee") recommended plaintiff for promotion to Associate Professor. In its report, the Tenure Committee, composed of Valle, Spina, Flayhart, and Chairman Dr. John Gardner ("Gardner"), noted that plaintiff is "willing to work with students far beyond her required office hours, "unusually vigilant in enforcing academic standards on such matters as plagiarism, quite innovative in her teaching methods," and "interacts with her colleagues [and is] well-liked by members of the department." (D.I. 75 at A37-38) However, the Tenure Committee also cited three weaknesses: plaintiff's need to publish, her lack of organizational ability in the classroom, and her need to pursue long-term projects such as the Internship Program. (D.I. 75 at A38) The Tenure Committee concluded that plaintiff's strengths "substantially outweigh[ed]" her weaknesses and thus recommended her for a promotion. (Id.) Despite this recommendation, plaintiff's application for promotion was rejected by the DSU Board of Trustees in the spring of 1986 because of the negative teaching evaluations in her file. (D.I. 75 at A40)
Plaintiff reapplied for promotion in the fall of 1986. On November 10, 1986, plaintiff filed an EEOC complaint against DSU alleging age and sex discrimination in connection with the denial of her 1985 application (D.I. 75 at A41) On November 14, 1986, then-Department Chair Dr. James Hartnett ("Hartnett") and the Department Personnel Committee ("Personnel Committee") consisting of Flayhart, Gardner and Spina, recommended plaintiff for promotion to Associate Professor pursuant to her 1986 request. (D.I. 75 at A43) The Board of Trustees agreed and promoted plaintiff to Associate Professor beginning on September 1, 1987. (D.I. 75 at A44)
In July of 1987, plaintiff added the charge of race discrimination to her EEOC complaint, alleging that some of her black colleagues had received tenure or promotion even while having negative evaluations in their files or not fulfilling the necessary requirements. (D.I. 75 at A46) On November 27, 1987, the EEOC issued its decision on the complaint, finding no evidence of discrimination surrounding the denial of plaintiff's 1985 request for promotion. (D.I. 75 at A54) This decision was later upheld by the EEOC upon review. (D.I. 75 at A57)
The EEOC found that during the same academic year, four others were considered for promotion: two black females over age 40 were promoted; one white male much younger than plaintiff was denied promotion for reasons of merit; and one white female under 40 was denied a promotion on technical grounds but was later granted the promotion on appeal. (D.I. 75 at A53-54)
C. Tenure application, First Federal Lawsuit and Second EEOC Complaint
In the fall of 1987, plaintiff applied for tenure. The Personnel Committee recommended that plaintiff be denied tenure, as did Hartnett, who cited plaintiff's lack of organizational ability and combative temperament. (D.I. 75 at A52) Similarly, the Tenure Committee voted not to recommend plaintiff for tenure because of deficiencies in teaching and scholarly publication. (D.I. 75 at A58) In response, plaintiff submitted a lengthy statement to Tisdale, who was then Vice President and Dean of Academic Affairs, rebutting the negative evaluation by Hartnett. (D.I. 75 at A60) On June 9, 1988, an Ad Hoc Appeals Committee of plaintiff's peers ("Appeals Committee") voted to uphold the Tenure Committee's decision not to recommend her for tenure. (D.I. 75 at A76) On July 7, 1988, the DSU Board of Trustees rejected plaintiff's tenure application. (D.I. 75 at A77)
Specifically, Hartnett referred to problems with students due to lack of communication and classroom organization, poor handling of the Internship Program, and failure to meet deadlines in administrative matters, such as textbook orders and submission of course syllabi. (D.I. 75 at A51-52)
The Tenure Committee specifically referred to Section 8.5.2a of the DSU Collective Bargaining Agreement ("CBA"), which states in part, "Competence in teaching is an absolute necessity for promotion or tenure," and Section 8.5.2b of the CBA, which states in part, "[P]ublication of scholarly books, monographs, and articles in publications recognized by and within the discipline . . . are worthy of professional recognition." (D.I. 75 at A59)
Plaintiff claimed that Hartnett directly contradicted his March 1987 chair evaluation, in which he gave plaintiff high scores in these areas. (D.I. 75 at A60)
The Appeals Committee, however, noticed many "disturbing" administrative factors, including a lack of department leadership to make plaintiff formally aware of inadequacies, poor counseling to assist plaintiff in remedying any deficiencies, an unwillingness by the Personnel Committee to share its reasons for a negative recommendation, and a conflict between written and verbal recommendations by the chair and faculty. (D.I. 75 at A76)
Meanwhile, on March 18, 1988, plaintiff filed a pro se lawsuit in federal court against DSU and several administrators and professors, claiming discrimination based on race, age and sex surrounding plaintiff's 1985 request for promotion. (D.I. 75 at A67) On February 2, 1989, plaintiff voluntarily withdrew the lawsuit. (D.I. 75 at A101) Plaintiff also filed a union grievance under the CBA regarding her denial of tenure. (D.I. 75 at A71)
In June 1988, plaintiff filed a second EEOC complaint, alleging that she was denied tenure in retaliation for filing her first EEOC complaint. (D.I. 75 at A78) The EEOC found this complaint also to be without merit. (D.I. 75 at A79)
The EEOC determined that during the year in which plaintiff applied for tenure, there were eleven applicants for tenure, and only three, all white females and two over the age of 40, were granted tenure. Those who did not get tenure included 4 blacks and 3 whites (including plaintiff), and ten of the eleven were over age 40. (D.I. 75 at A79)
On January 9, 1989, plaintiff wrote a letter to President DeLauder requesting an alternate evaluation panel due to the allegedly "prejudicial" nature of the Personnel Committee. (D.I. 75 at A84) Plaintiff requested guidance on how to remedy the situation of "silence" from the Dean, "inactivity" from the Chair, and "hostility" from the Personnel Committee. (D.I. 75 at A84) On March 21, 1989, the Personnel Committee's vote on whether to recommend plaintiff for reappointment resulted in a tie, but Department Chair Frederick Lauter supported reappointment so plaintiff remained on the faculty. (D.I. 75 at A88)
Valle and Flayhart submitted negative evaluations, to which plaintiff offered rebuttal statements. Plaintiff characterized Valle's criticisms as conclusory, vague and in contradiction of good evaluations he gave her in prior years. (D.I. 75 at A90-93) Plaintiff also stated that her request for clarification from Valle was met with a repeat of the vague criticisms he already submitted. (0.1. 75 at A90) Plaintiff directly contradicted most of Flayhart's account of the class that he evaluated and attributed his criticisms to "the inappropriateness of having a historian assess the pedagogical and disciplinary substance of a political scientist's work." (0.1. 75 at A94)
D. Second Federal Lawsuit
In April 1989, plaintiff filed a second pro se lawsuit alleging discrimination in connection with the denial of her application for tenure. This lawsuit was dismissed in October of that year. (D.I. 75 at A103) On November 3, 1989, DeLauder found that technical procedural violations occurred in plaintiff's tenure review, so he ordered the process to be repeated in the fall of 1990. (D.I. 75 at A105) Plaintiff's Union appealed this decision to binding arbitration as provided for in the CBA, but subsequently withdrew its request for arbitration. (D.I. 75 at A107) Plaintiff reapplied for tenure in 1991 and received it in 1992. (D.I. 78 at B112)
DeLauder determined that the chairperson's evaluation was not provided in a timely fashion, the Tenure Committee chairperson did not notify plaintiff that the file was in the office and it contained negative comments, and the Department did not develop criteria for promotion or tenure prior to considering all applications that year. (0.1. 75 at A105)
E. Initial Applications for Promotion to Full Professor
In the fall of 1992, plaintiff applied for promotion to full professor. The Personnel Committee (Department Chair Valle, Flayhart and Professor Jean Smith) supported the application, as did the Tenure Committee. (D.I. 75 at A110-A111) However, neither the Acting Dean of the School of Arts and Sciences, Warren Rhodes, nor Tisdale recommended plaintiff for promotion. (D.I. 75 at A112, A116) On March 21, 1994, plaintiff's request for promotion was rejected by DeLauder, who cited lack of an "outstanding record in both teaching and research." (D.I. 75 at A118)
Rhodes specifically cited plaintiff's deficiency in scholarly publication. (D.I. 75 at A112)
Plaintiff applied again for promotion in the fall of 1993 and was again recommended by the Personnel Committee. (D.I. 75 at A119) Flayhart disagreed because of deficiencies in research, stating that "[f]ailure to provide specific evidence of this has blocked consideration for promotion for other members of the faculty." (D.I. 75 at A120) Although the Appeals Committee recommended promotion, the Tenure Committee, Tolliver and DeLauder agreed with Flayhart, and plaintiff was not promoted to professor that year. It was also at this time that Flayhart recommended plaintiff for an award for meritorious research for the 1992-93 academic year and, as a result, plaintiff was given a salary increase. (D.I. 75 at A122-A123)
Plaintiff applied for promotion to full professor again in fall 1995. The Personnel Committee supported her promotion, as did the Appeals Committee upon review, but the Tenure Committee, Flayhart, Tolliver, Taylor and DeLauder disagreed, once again citing a lack of outstanding research. (D.I. A128-A139) On May 21, 1996, Flayhart sent plaintiff a memo explaining his reasons for not recommending her, specifically, his view that the CBA requirement of outstanding research for promotion refers to articles that are already published, not articles that are merely accepted for publication, like those plaintiff cited in her application. (D.I. 75 at A135)
The Personnel Committee lauded plaintiff's strengthening of the political science curriculum, especially as Pre-Law and Internship Coordinator, her "stimulating and challenging" teaching, her research that has led to "widespread professional recognition" and her "extensive" community involvement. (D.I. 75 at A128)
In June of 1995, plaintiff was awarded a parity salary increase, and on January 16, 1996, plaintiff was awarded professional development funds in support of her project, "Sexual Harassment in the Workplace." (D.I. 75 at A132, A138)
F. The Internship Program and Union Grievances
Since the fall of 1993, Flayhart periodically encouraged plaintiff to accelerate development of the Internship Program. (D.I. 75 at A140-A145) In particular, Flayhart requested plaintiff to place an intern in Senator Biden's Washington office, which she was unable to do because of the expense of living in Washington and time that the intern would spend away from school. (D.I. 78 at B103) In the fall of 1995, Flayhart permitted a student who was the grandson of a former president of DSU to retroactively receive Internship Program credit for a summer internship, and plaintiff rejected this arrangement as against the policy of the Internship Program. (D.I. 75 at A146, D.I. 78 at B123) On November 28, 1995, Flayhart requested that all student files be submitted to him by the following day for review. (D.I. 75 at A147) Plaintiff failed to do this and Flayhart removed her as director of the Internship Program on November 29, 1995. (D.I. 75 at A148)
Plaintiff alleges that upon receipt of the request for the documents, she sought guidance from the DSU grievance officer, who suggested that plaintiff ask for clarification of Flayhart's request. Plaintiff claims she sent a memorandum to Flayhart, but was removed from her position the next day and never received a response. (D.I. 78 at B125)
Flayhart then requested plaintiff to provide him with all grades for students in the Internship Program, and plaintiff did so in a memorandum in which she addressed herself as "Internship Coordinator." (D.I. 75 at A150) On January 2, 1996, Flayhart sent a letter to the DSU Office of Records stating that he was the only professor authorized to enter grades for the Internship Program and that "illegal" grades had been recorded into the system by plaintiff. (D.I. 75 at A152)
According to Flayhart, plaintiff submitted grades for her students as well as students supervised by other professors. (0.1. 75 at A174) These grades were inconsistent with those she provided to Flayhart. (D.I. 75 at A155) Plaintiff alleges that other professors supervised interns while she was on sabbatical and would expect her to submit grades for those students when she returned. (0.1. 78 at B119-120)
In April 1996, plaintiff filed two union grievances over her removal as Internship Director and her claim that Flayhart substituted grades. These grievances were denied at both levels of review. (D.I. 75 at A158-159) In October of 1996, the Union's Executive Committee denied plaintiff's request to advance the grievances to arbitration. (D.I. 75 at A161)
G. Annual Reports, Student Complaints and Alleged Verbal Abuse
DSU publishes annual reports in which department chairs list the achievements and development of their academic programs and faculty. Plaintiff alleges that Flayhart included false statements in the Department's annual reports, including that plaintiff was very ill during the 1993-1994 academic year which resulted in many incomplete grades, cancellation of over one-third of her classes, and numerous student complaints. (D.I. 78 at B301, B306) Flayhart also included that plaintiff was removed as Internship Director and resigned as Pre-Law Advisor, and characterized her grants and research from Queen's University in Ireland as not recognized by DSU. (D.I. 78 at B306, B310)
This deposition, Gardner states that he did not recall plaintiff having any more student complaints than her peers. (D.I. 78 at B57)
Plaintiff also alleges that Flayhart publicly berated her on several occasions. For instance, plaintiff claims that Flayhart ordered her to alphabetize the law catalogs, a job she felt was appropriate for a student worker, scolded her for cancelling a field trip at which only one student showed up, and humiliated her during departmental meetings by criticizing her for raising issues for discussion. (D.I. 78 at B185, B193, B298) Plaintiff described Flayhart's "pattern of discrimination, harassment and deliberate interference with [her] professional responsibilities" in a letter to DeLauder on December 18, 1996. (D.I. 78 at B431) These alleged events were also brought to the attention of Tolliver and the DSU Affirmative Action Officer, Drexel Ball. (D.I. 78 at B434, B453)
In addition to the aforementioned incidents, plaintiff described Flayhart's refusal to recommend her for merit pay two years in a row (while recommending her peers), improperly informing personnel of her sick days when she was not sick, forcing her to teach an overload of courses in order to accommodate his administrative error, scolding her in front of her students, refusing to meet with her to discuss his evaluations of her performance, demanding that she pay for incoming fax usage while not requiring her peers to do the same, and refusing to honor her requests for course preferences while doing so for other faculty members. (D.I. 78 at B431-432)
H. 1996 Request for Promotion to Full Professor
Plaintiff applied again for promotion to Professor in fall 1996. As part of the application process, classroom evaluations were performed by plaintiff's peers. Although the evaluations by Dr. Samuel Hoff ("Hoff") and Gardner were favorable, Flayhart gave the plaintiff very low scores and did not recommend her for tenure, promotion or reappointment on the faculty. (D.I. 75 at A164) This evaluation was never placed in plaintiff's tenure file. (D.I. 75 at A192)
On October 9, 1996, the Personnel Committee recommended plaintiff for promotion, but without notice of Flayhart's negative recommendation. (D.I. 78 at B381) On October 14, 1996, Flayhart wrote to both the Tenure Committee and Tolliver, recommending against promotion. (D.I. 75 at A183)
On October 16, 1996, Flayhart met with the Union to discuss pending grievances, and the next day he composed two letters — one to plaintiff and one to DeLauder — outlining his intention to seek plaintiff's dismissal. (D.I. 75 at A172, A175) After consultation with the DSU attorney, however, the letters were never sent. (D.I. 75 at A178)
On November 20, 1996, the Tenure Committee informed plaintiff that it had voted not to recommend her for promotion. (D.I. 75 at A191) The Appeals Committee upheld the decision, and Tolliver agreed. (D.I. 75 at A193)
In late January 1997, DeLauder determined that certain procedural violations had occurred in plaintiff's 1996 promotion application process, so he directed Flayhart to meet with plaintiff and review his classroom evaluation with her and then for the Tenure Committee to reconsider the matter. (D.I. 75 at A196) On March 4, 1997, plaintiff and Flayhart met for 1.5 hours to discuss the evaluation pursuant to DeLauder's request, and plaintiff subsequently expressed her dissatisfaction with the meeting and the entire process to the Union President and DSU's Contract Administrator. (D.I. 75 at A218) On April 10, 1997, plaintiff provided the Tenure Committee with a lengthy rebuttal to Flayhart's evaluation, repeatedly stating that his criticisms lacked "specific, concrete details." (D.I. 75 at 219)
The CBA violations included: Flayhart's failure to review the fall evaluation with plaintiff or provide her with a copy; Flayhart's failure to consult with plaintiff before making a negative recommendation; and failure of the Tenure Committee to inform plaintiff that she received a negative recommendation and to allow her to submit a rebuttal. (0.1. 75 at A196)
Flayhart attributes not speaking to plaintiff to her request on April 1996 that he never speak to her again because he was the source of her work-related stress. (0.1. 75 at A192)
In response to plaintiff's objection to the reconsideration process, on September 30, 1997, the Union President advised plaintiff to either accept the process as is, or to appear directly before the DSU Board of Trustees. (D.I. 75 at A255) Plaintiff rejected both options and instead suggested recusal of those Tenure Committee members who were involved in the prior evaluations. (D.I. 75 at A265) The Union President rejected the suggestion of recusal without specific evidence of bias, and the reconsideration process continued as before. (D.I. 75 at A267)
I. Events Leading to Dismissal
On September 24, 1997, plaintiff removed two female students from her Introduction to Political Science class, allegedly due to their repeated disruptive behavior. The students were sent to counseling with Vice President of Student Affairs, Ms. Lowan Pitt ("Pitt"). The students were instructed to return to class on October 3, but when they did, plaintiff required them to make an apology and they refused. After giving a quiz, plaintiff cancelled the remainder of the class. When class met again on October 6, plaintiff summoned a campus security officer and asked him to remove the two students, but he did not do so. The next day, plaintiff requested assistance from Tolliver in addressing the disciplinary problem because her "effort. . . to resolve this problem through an informal process has failed" and she "fear[ed] for [her] own personal safety." (D.I. 78 at B471) Flayhart sent a memo requiring plaintiff to hold class, but when at least one of the two students arrived at the next class, she cancelled class again. (D.I. 75 at A269) Flayhart sent plaintiff another memo removing her from the class and reassigning it to Hoff. (D.I. 75 at A269) Plaintiff replied to Flayhart, challenging his authority to remove her as professor. Flayhart wrote to Tolliver, then Acting Provost, recommending plaintiff's dismissal for cause. (D.I. 75 at A288) The class met again on October 10, 1997, and after plaintiff refused to leave the class, Flayhart directed a security officer to move the students to another classroom where Hoff continued teaching the class. (D.I. 75 at A291)
Plaintiff was under the mistaken impression that the students were required to apologize before returning to class as was the case with prior students whom she had removed from her class. This apparently was not the arrangement that Pitt made with the students here. (D.1. 75 at A296)
Plaintiff informed Flayhart that she intended to continue teaching the class since he, as a department chair/administrator, did not have the authority to remove instructors from classes, and would continue to teach until she received "written notification from a University administrator to the contrary." (D.I. 78 B476-477)
On October 7, 1997, Flayhart sent a memorandum to DeLauder regarding plaintiff's alleged deterioration, stating that "beyond a shadow of a doubt . . . the health of [the plaintiff] continues to deteriorate . . . [The plaintiff] represents a "clear and present danger' to the Delaware State University academic community." (0.1. 75 at A256) On October 16, 1997, Tolliver wrote a letter to DeLauder recommending McKay's immediate suspension from DSU pending a hearing before the Ad Hoc Dismissal Committee ("Dismissal Committee") composed of fellow professors from throughout the University. (D.I. 75 at A292) On October 17, 1997, DeLauder suspended plaintiff with pay, pending appearance before the Dismissal Committee. (D.I. 75 at A293)
On November 24, 1997, plaintiff filed a union grievance alleging a violation of academic freedom which was later denied. (D.I. 75 at A295-297) On April 29, 1998, plaintiff filed a complaint with the Delaware Department of Labor and the EEOC alleging race and gender discrimination surrounding her suspension. (D.I. 75 at A298) On August 27, 1999, she filed a supplemental complaint with the EEOC expanding her allegations to include claims under the ADEA and ADA. (0.1. 75 at A300)
The hearing before the Ad Hoc Dismissal Committee was conducted over a period of four days on March 22-24 and March 29, 1999. In January 2000, the Committee issued a 51-page opinion recommending that plaintiff be dismissed from employment. (0.1. 75 at A303) On March 16, 2000, the DSU Board of Trustees accepted the Ad Hoc Dismissal Committee' s recommendation and dismissed plaintiff from the faculty. (0.1. 75 at A349)
DeLauder stated in a deposition that plaintiff was the first tenured professor suspended or terminated during his presidency, which began in 1987. (0.1. 78 at B213) Plaintiff's brief cited letters documenting alleged incidents where other professors physically assaulted students or yelled threats of bodily harm at their peers and were not ultimately terminated. (0.1. 78 at B420-428)
III. STANDARD OF REVIEW
A court shall grant summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). The moving party bears the burden of proving that no genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10 (1986). "Facts that could alter the outcome are "material," and disputes are "genuine" if evidence exists from which a rational person could conclude that the position of the person with the burden of proof on the disputed issue is correct." Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n. 1 (3d Cir. 1995) (internal citations omitted). If the moving party has demonstrated an absence of material fact, the nonmoving party then "must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed.R.Civ. p. 56(e)). The court will "view the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion." Pennsylvania Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). The mere existence of some evidence in support of the nonmoving party, however, will not be sufficient for denial of a motion for summary judgment; there must be enough evidence to enable a jury reasonably to find for the nonmoving party on that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof, the moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). With respect to summary judgment in discrimination cases, the court's role is "to determine whether, upon reviewing all the facts and inferences to be drawn therefrom in the light most favorable to the plaintiff, there exists sufficient evidence to create a genuine issue of material fact as to whether the employer intentionally discriminated against the plaintiff.'" Revis v. Slocomb Indus., 814 F. Supp. 1209, 1215 (D. Del. 1993) (quoting Hankins v. Temple Univ., 829 F.2d 437, 440 (3d Cir. 1987)).
IV. DISCUSSION
As a preliminary matter, the court agrees that defendants Taylor and Tisdale were not served within 120 days of the filing of the complaint in this case, and dismisses them from this action pursuant to Federal Rule of Civil Procedure 4(m).
Federal Rule of Civil Procedure 4(m) provides that "[i]f service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate procedure." To this date, plaintiff has neither served Tolliver and Tisdale nor requested additional time for service from the court.
A. Title VII Claims
Plaintiff alleges that defendant DSU discriminated and retaliated against her in violation of Title VII of the Civil Rights Act of 1964.
Although defendants argue, and plaintiff concedes, that there is no individual liability under Title VII, plaintiff has brought her Title VII claims against only DSU, making this issue moot. See Dici v. Commonwealth of Pa., 91 F.3d 542, 552 (3d Cir. 1996) (holding that there is no individual liability under Title VII)
1. Race and Gender Discrimination
The anti-discrimination provision of Title VII provides: "It shall be an unlawful employment practice for an employer-(1) to fail or refuse to hire or to discharge any individual, or otherwise 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; or (2) to limit, segregate or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a).
Claims of discrimination brought pursuant to Title VII are analyzed under a burden-shifting framework, the particulars of which depend on whether the suit is characterized as a "pretext" suit or a "mixed motives" suit. Since review of the record does not reveal any direct evidence of race or gender discrimination and plaintiff does not purport to assert such, the court will analyze plaintiff's discrimination claim using the burden-shifting framework for "pretext" suits set forth inMcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). See Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997).
Under this framework, plaintiff must first establish a prima facie case of race or gender discrimination under Title VII. In order to state a case based on discrimination, plaintiff must prove: (1) that she is a member of a protected class; (2) that she suffered some form of adverse employment action; and (3) that this action occurred under circumstances that give rise to an inference of unlawful discrimination such as might occur when a similarly-situated person not of the protected class is treated differently. See Boykins v. Lucent Techs., Inc., 78 F. Supp.2d 402, 409 (E.D. Pa. 2000) (citing Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999)). The Third Circuit recognizes, however, that the elements of a prima facie case may vary depending on the facts and context of the particular situation. See Pivirotto v. Innovative Sys. Inc., 191 F.3d 344, 352 (3d Cir. 1999)
Once a plaintiff has established a prima facie case, the burden shifts to the defendant "to articulate some legitimate nondiscriminatory reason for the employee's rejection." McDonnell Douglas, 411 U.S. at 802. If the defendant carries this burden, the presumption of discrimination drops from the case, and the plaintiff must "cast sufficient doubt" upon the employer's proffered reasons to permit a reasonable factfinder to conclude that the reasons are fabricated. Sheridan v. E.I. DuPont de Nemours Co., 100 F.3d 1061, 1072 (3d Cir. 1996) (en banc). See also Olson v. Gen. Elec. Astrosoace, 101 F.3d 947, 951-52 (3d Cir. 1996) (citations omitted) (stating that a plaintiff can demonstrate "sufficient doubt" by showing "weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer's proffered legitimate reasons for its action [such] that a reasonable factfinder could rationally find them unworthy of credence").
Defendant at bar concedes that plaintiff has established a prima facie case of discrimination regarding her disparate treatment on the job, her applications for promotion and tenure, and her dismissal from DSU. (0.1. 74 at 29) Thus, the burden shifts to defendant, who has cited "legitimate" reasons for its actions, including numerous student complaints, plaintiff's disorganized teaching methods, neglect of the Internship Program, lack of scholarly research, a combative temperament, and the dispute over allegedly disruptive students that ultimately led to plaintiff's suspension and dismissal from DSU. (D.I. 75) Plaintiff has countered with evidence that casts doubt upon the legitimacy of these reasons. For instance, plaintiff received merit awards for her research at the same times she was denied promotion and tenure for deficiencies in that area. (D.I. 75 at A122, A132, A138) At every request for promotion or tenure, plaintiff received contradicting evaluations from various DSU faculty and at least twice, technical procedural violations occurred during the review process. (D.I. 75 at Al05, A196) Plaintiff also alleges that other tenured DSU professors committed more egregious behavior and were never terminated. (D.I. 78 at B420-428)
The court concludes, therefore, that there exist genuine issues of material fact as to whether DSU disparately treated and terminated plaintiff because of her race or gender. Accordingly, the court shall deny defendants' motion for summary judgment as to the Title VII discrimination claims.
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 [s]he has opposed any practice made an unlawful employment practice by this subchapter, or because [s]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-3(a).
Claims of retaliation brought pursuant to Title VII are analyzed under the same burden-shifting framework described above. In the present case, plaintiff has presented only indirect evidence of retaliation, thus, the McDonnell-Douglas pretext framework applies.
As with a discrimination claim, a plaintiff claiming retaliation must first establish a prima facie case for retaliation under Title VII. In order to do so, a plaintiff must demonstrate by a preponderance of the evidence: (1) that she engaged in protected activity; (2) that the defendant took adverse employment action against her; and (3) that a causal link exists between the protected activity and the adverse action. See Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1999). Once a plaintiff has established a prima facie case, the burden shifts to the defendant to "clearly set forth through the introduction of admissible evidence" reasons for its actions that, if believed by the trier of fact, would support a finding that unlawful discrimination was not the motivating force behind the adverse employment action. Burdine, 450 U.S. at 254-55. If the defendant successfully rebuts the plaintiff's prima facie showing, the presumption of discrimination drops from the case, and plaintiff must present sufficient evidence for a reasonable factfinder to conclude "that the proffered reason was not the true reason for the employment decision." Id. at 256. See also Bray v. Marriott Hotels, 110 F.3d 986, 990 (3d Cir. 1997) ("The plaintiff must produce evidence from which a reasonable factfinder could conclude either that the defendant's proffered justifications are not worthy of credence or that the true reason for the employer's act was discrimination.")
Title VII defines a "protected activity" as an instance when an employee has "opposed any practice made an unlawful employment practice by this subchapter, or . . . 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-3 (a).
In the instant action, defendant argues that plaintiff has not established a prima facie case of retaliation because she did not engage in any protected activity after the late 1980s, nor has she established a link between the protected activity and defendant's adverse employment action. (D.I. 74 at 29-30) On the contrary, the record indicates that plaintiff filed union grievances, an EEOC charge, a complaint with the Delaware Department of Labor, and various informal complaints in the late 1990s. (D.I. 75) Furthermore, plaintiff has sufficiently stated a causal link between her protected activities and her termination by DSU. According to the Third Circuit, this causal link is "not limited to timing and demonstrative proof, such as actual antagonistic conduct or animus. Rather, it can be other evidence gleaned from the record as a whole from which causation can be inferred." Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281 (3d Cir. 2000). Plaintiff alleges numerous instances of harassment, procedural violations and inconsistent evaluations by defendant after she filed her various complaints; therefore, a causal link can reasonably be inferred. Plaintiff has sufficiently stated a prima facie case of retaliation.
The remaining analysis is similar to that of Title VII race and gender discrimination as stated above. The court concludes that there is sufficient evidence for a reasonable jury to find that the proffered reason for discharge was pretextual and that retaliation was the real reason for plaintiff's dismissal. Defendants' motion for summary judgment on the Title VII retaliation claim is denied.
B. Sections 1981, 1983, 1985 and Civil Conspiracy Claims
As an initial matter, the Eleventh Amendment limits the following claims against states and state officials to prospective injunctive relief. See Edelman v. Jordan, 415 U.S. 651 (1974). Since DSU is a state institution, the following claims against DSU and defendants in their official capacities are limited to prospective injunctive relief.
DSU is a corporation created and funded by the Delaware General Assembly, whose Board of Trustees is appointed by and includes the Governor. See Del. C. Ann. tit. 14, § 6501,et seq. Thus, DSU is an instrumentality of the State of Delaware for 11th Amendment purposes. See also Chapman v. Trs. of Del. State Coll., 101 F. Supp. 441, 444 (D. Del. 1951) (dismissing complaint because "a Federal Court should not interfere with The Trustees of Delaware State College, a state agency, which is a body corporate of the State of Delaware"); Lewis v. Del. State Coll., 455 F. Supp. 239, 245 (D. Del. 1978) (Delaware State College's personnel decisions "constituted state action within the meaning of the Fourteenth Amendment" to the United States Constitution).
1. Section 1981 Claim
Section 1981 prohibits race-based discrimination in the making and enforcement of contracts. Claimants are required to prove intentional discrimination under the same burden-shifting framework used in Title VII cases. Therefore, plaintiff must first establish a prima facie case of discrimination by demonstrating that: (1) plaintiff is a member of a racial minority; (2) defendants intended to discriminate against plaintiff on the basis of race; and (3) the discrimination concerned one or more of the activities enumerated in Section 1981. See Lewis v. J.C. Penney Co., 948 F. Supp. 367, 371 (D. Del. 1996). Upon a prima facie showing by plaintiff, the burden shifts to defendants to assert a "legitimate, nondiscriminatory" reason for their actions, which plaintiff may rebut with evidence of pretext. See McDonnell Douglas, 411 U.S. at 802.
Section 1981, as amended by the Civil Rights Act of 1991, provides that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." 42 U.S.C. § 1981 (a). The coverage of the statute "includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981 (b). These rights are protected from encroachment by both private and state actors. See 42 U.S.C. § 1981 (c).
As a member of a racial minority at a predominantly African-American university, plaintiff satisfies the first prong of the prima facie case. In order to show intentional discrimination under the second prong, plaintiff "must point to facts of record which, if proved, would "establish that defendants' actions were racially motivated and intentionally discriminatory, ' or, at least, "support an inference that defendants intentionally and purposefully discriminated' against her on the basis of her race." Ackaa v. Tommy Hilfiger Co., No. 96-8262, 1998 WL 136522, at *3 (E.D. Pa. Mar. 24, 1998) (citations omitted). Plaintiff's allegations that her black colleagues were treated differently, combined with defendants' inconsistent reasons for their denials of promotion and tenure, sufficiently support an inference of intentional racial discrimination. Finally, plaintiff satisfies the third prong of the prima facie showing because defendants' alleged discrimination resulted in plaintiff's dismissal from her tenured position at DSU.
The remaining analysis is similar to that under Title VII, thus, the court denies defendants' motion for summary judgment with regard to plaintiff's Section 1981 claim.
2. Section 1983 Claims
Section 1983 imposes liability on any person who, under color of state law, deprives another of any rights secured by the Constitution or the laws of the United States. See 42 U.S.C. § 1983. Specifically, plaintiff asserts that defendants' discriminatory actions violated her rights under the First Amendment and Equal Protection Clause of the Fourteenth Amendment. (D.I. 20 at A16)
As an initial matter, the Eleventh Amendment bars Section 1983 claims against state entities and state officials sued in their official capacities. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). The court therefore grants summary judgment with respect to the Section 1983 claims against DSU and defendants in their official capacities.
As for the claims against defendants in their individual capacities, the test for discriminatory intent under Section 1983 is the same as that under Title VII. See Stewart v. Rutgers. The State Univ., 120 F.3d 426, 432 (3d Cir. 1997) (citation omitted). The court finds that there exist genuine issues of material fact as to whether defendants unconstitutionally discriminated against plaintiff so as to deprive her of her Fourteenth Amendment right to equal protection. Similarly, there is a genuine dispute as to whether defendants deprived plaintiff of her First Amendment right to petition by interfering with her right to file lawsuits and other grievances against defendants. Therefore, summary judgment is denied with respect to plaintiff's Section 1983 claims against defendants in their individual capacities.
3. Section 1985 and Civil Conspiracy Claims
Plaintiff asserts a claim under 42 U.S.C. § 1985 and a separate "civil conspiracy" claim which the parties later characterize in their briefs as pursuant to Sections 1983 and 1985. For efficiency purposes, the court considers these claims together.
Defendants argue that plaintiff has insufficiently pled her conspiracy claims and, therefore, they should be dismissed. To plead a cognizable Section 1985(3) claim, a plaintiff must allege facts to show a conspiracy for the purpose of depriving a person or class of persons of equal protection of the laws or equal privileges and immunities, and an act in furtherance of the conspiracy whereby a party is injured in his person or property or is deprived of a right or privilege of a citizen of the United States. See United Brotherhood of Carpenters Joiners v. Scott, 463 U.S. 825, 829 (1983). Section 1985(3) prohibits only conspiracies predicated on "racial, or perhaps otherwise class- based, invidiously discriminatory animus." Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).
In her complaint, plaintiff alleges that defendants perpetrated an unlawful scheme to "fabricate false claims and poor teaching against [her]; . . . dismiss [her] due to her reporting the harassment by defendants; and . . . terminate (her] in retaliation for having opposed defendants' practice of harassment." (D.I. 20 at A19) To support these claims, plaintiff states that her requests for review of her denial of promotion were ignored by several of the defendants, that the many enumerated instances of harassment by Flayhart were "administratively sanctioned," and that the acts of retaliation against her were "known, authorized, and approved by DeLauder, Tisdale, Taylor, Tolliver and Flayhart." (D.I. 20 at A7-9). In alleging the various instances of harassment by Flayhart and the indifference of the DSU administration that ultimately led to her termination, plaintiff's complaint sufficiently states a claim for conspiracy under Section 1985(3). The court, therefore, denies summary judgment with respect to plaintiff's conspiracy claims.
C. Eleventh Amendment Immunity Against the ADEA and ADA Claims
Although the parties argue the merits of an Eleventh Amendment bar of the ADA claim, the court finds no such claim in the Complaint or Amended Complaint. Since both parties address the issue in their briefs, the court will address it as well.
Plaintiff has conceded that her claims under the ADEA are barred by the Eleventh Amendment pursuant to the Supreme Court's decision in Kimel v. Florida Board of Regents, 120 S.Ct. 621 (2000). Although the issue of whether claims under the ADA against a state entity are barred by the Eleventh Amendment was not directly addressed by the Supreme Court, the Third Circuit has recently decided that they are so barred. See Lavia v. Pennsylvania Dept. of Corrections, No. 99-3863, 2000 WL 1121553, at *11 (3d Cir. Aug. 8, 2000) (holding that Congress did not abrogate states' Eleventh Amendment sovereign immunity when enacting the ADA). Therefore, the court grants defendants' motion for summary judgment with respect to both the ADEA and the ADA claims.
Plaintiff has conceded that there is no individual liability under the ADEA or the ADA. These claims are also barred against defendants in their official capacities pursuant to the Eleventh Amendment. See Hafer v. Melo, 502 U.S. 21, 26 (1991) (holding that when state official is sued in official capacity, real party in interest is government entity of which official is an agent).
D. State Law Claims
Plaintiff also alleges state law claims of discrimination based on race, gender and age in violation of the Delaware Discrimination in Employment Act, Del. C. Ann. tit. 19, § 710, et sea., violation of the Delaware Constitution, and common law breach of contract. Pendent state law claims against state entities and officers are barred by the Eleventh Amendment. See Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 106 (1984). Plaintiff may still bring these claims against defendants in their individual capacities, however. See Lloyd v. Mich. Dep't of State Police, 53 F. Supp.2d 643, 680 (D. Del. 1999) (holding that Eleventh Amendment sovereign immunity is no defense to state law claims brought against state officials in their individual capacities). Therefore, the court grants summary judgment as to plaintiff's state law claims against DSU and the remaining defendants in their official capacities.
Plaintiff mistakenly alleges a violation of Article XVI, Section 10 of the Delaware Constitution, which is a non-existent provision. The court assumes that plaintiff is alleging a violation of Article XV, Section 10, which provides, "No citizen of the State of Delaware shall be disqualified to hold and enjoy any office, or public trust, under the laws of this State, by reason of sex."
E. Statute of Limitations
Defendants argue that several of plaintiff's claims are barred by their respective statutes of limitations. Although defendants are technically correct, the Third Circuit recognizes a continuing violation exception to the timely filing requirement. See West v. Phila. Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995). Under this exception, a plaintiff may pursue a discrimination claim for "conduct that began prior to the filing period if [plaintiff] can demonstrate that the act is part of an ongoing practice or pattern of discrimination of the defendant." Id. "To successfully argue a continuing violation theory, the plaintiff will have to show a present violation, i.e., one within the statute of limitations period, that is reasonably related to previous discriminatory acts that, standing alone, would be barred by the statute of limitations." Cuffy v. Getty Ref. Mktg. Co., 648 F. Supp. 802, 810 (D. Del. 1986).
Defendants argue that certain of plaintiff's claims arising under Sections 1981 and 1983, Delaware's Discrimination in Employment Act, and Title VII are barred by their statutes of limitations. (0.1. 74 at 35) Specifically, defendants contend that plaintiff's claims based on her failure to be promoted to full professor in 1993, 1994, 1995 and 1996, as well as her failure to receive merit pay in 1995 and 1996, are time-barred. (Id.)
Plaintiff's termination on March 16, 2000 falls within the statute of limitations. That decision was based on a 51-page report by the DSU Ad Hoc Dismissal Committee that discussed plaintiff's entire fourteen-year history at DSU. (D.I. 75 at A349) Moreover, at every denial of promotion or tenure, defendants have cited the same reasons for their decisions. It is fair to say that plaintiff's alleged disparate treatment was continuous and ongoing during her employment at DSU. The court concludes that plaintiff's claims are sufficient to constitute a "pattern of discrimination" and are not barred by any statute of limitations.
V. CONCLUSION
For the reasons stated, defendants' motion for summary judgment is denied in part and granted in part. An appropriate order shall issue.