Summy-Long v. Pennsylvania State University
Joan Y. SUMMY-LONG v. The PENNSYLVANIA STATE UNIVERSITY
Attorneys
John M. Kerr, John Kerr Law P.C., Mechanicsburg, PA, for Plaintiff., Janine C. Gismondi, Chena L. Glenn-Hart, McQuade Blasko Law Offices, State College, PA, for Defendants.
Full Opinion (html_with_citations)
MEMORANDUM
Today, litigation over ten years in the making comes to a close. On June 2, 2006, Joan Y. Summy-Long, Ph.D., sued The Pennsylvania State University and various other players for allegedly discriminating against her on the basis of sex and then retaliating against her when she attempted to redress her concerns. Her federal com
Given the tangled history of this case, it must be recognized that a superficial review of the preliminary allegations and the statistics that accompany them tend to invite hasty assumptions in the minds of newcomers unfamiliar with the actionâs vast procedural underbelly. Such a cursory examination disserves this case. Instead, when one considers the practical backdrop of this litigation, the stark reality is this: if a viable claim ever truly existed, Plaintiff has likely fumbled it away with her less than artful pleadings, her penchant for firing lawyers, and her persistent engagement in dilatory practices.
Consistent with the analysis below, no genuine dispute of material fact exists as to Plaintiffs claims of discriminatory or retaliatory treatment. As such, Defendantsâ motion for summary judgment will be granted in full.
BACKGROUND
The facts of this case are well known to the Court and the parties. They have previously been set forth at length numerous times, most notably in a partial summary judgment memorandum opinion by the Honorable Yvette Kane of this Court, to whom the matter was assigned until 2013.
Plaintiff was the first ever graduate student employed by the College of Medicineâs Pharmacology Department, a role she began in 1969.
The College of Medicine pays its faculty under a merit-based system, a system that rewarded scholarly output and the attainment of prestigious national grants with discretionary salary increases. As the parties acknowledge, starting salaries are a function of a combination of factors, including the faculty memberâs rank at hire, experience, and specific expertise.
These merit-based incentives were determined by the faculty memberâs department chair.
Plaintiff, along with another female faculty member at the College of Medicine, formed the Womenâs Faculty Group in 1999 to advocate for issues affecting women faculty.
Shortly thereafter, the Universityâs Affirmative Action Office conducted an analysis of faculty salaries within the College of Medicineâs basic science departments.
Acknowledging an inconsistency in the way in which certain salary data was gathered or reported, the University agreed to conduct a subsequent salary study for the College of Medicine and to retain an outside expert to do so.
For the next few years, Plaintiff underperformed her male counterparts academically. In particular, despite having devoted 80% of her time to research activities, Plaintiffs superiors would grow dissatisfied with her scholarly output. For instance, in her annual evaluation following the 2006-2007 academic year, Dr. Kent Vrana, then the Chair of the Pharmacology Department, indicated that he expected to see âgrowthâ in Plaintiffs â[r]esearch effortsâ during the next evaluation period.
In that same review, Dr. Vrana memorialized the following exchange: He decided to offer Plaintiff the opportunity to chair a committee after she complained about the lack of such opportunities during her evaluation discussion, but she rejected him, stating âI donât feel I should have to ask, and I now am not interested in chairing a committee.â
Of particular emphasis was Plaintiffs failure to timely apply for renewal of her 2003 National Institute of Health (NIH) grant. Grant awards are important to the College of Medicine because they help defray personnel costs.
As the College of Medicineâs 2003 Academic Compensation Plan (referred to by the parties as the âACPâ) explained, âIt is important that faculty strive to obtain additional grant-derived salary dollars, which are necessary for the department to fulfill its obligations for support of faculty salaries and additional expenses to maintain the department.â
The NIH grant at issue in Plaintiffs case was awarded in 2003 and permitted her to fund 50% of her salary for the 2003-2004, 2004-2005, and 2005-2006 academic years.
Further, the parties agree that the primary duty of a basic scientist like Plaintiff here is âto perform biomedical research and publish the results of the research.â
Dr. Vrana made explicit that this lack of funding and lack of scholarly output accounted for Plaintiffs poor evaluations relative to males in the department:
Q. Youâve explained in pretty good detail how you evaluated Dr. Summy-Long. Were there male colleagues of hers who also werenât getting things published at that time?
A. Were not getting things published? No, there were none.
Q. There none?
A. That were not getting things published.
*382 Q. What about the grants, getting grants renewed, did you have to have any conversations like this like you described you had with her with any male colleagues in the department?
A. No. They all had funding at that time. Towards the end, Dr. Leven-son may haveâhe lost his funding but got it right back. So I didnât have to have that conversation because he submitted lots of grants.47
Taking into consideration these factors, Dr. Vrana set all of the salaries in the Pharmacology Department, subject to administrative approval.
Plaintiff filed her federal civil rights complaint with this Court on June 2, 2006, before any other member of the Womenâs Faculty Group had done so. On April 23, 2007, the remaining female faculty at the College of Medicine who claimed that their salaries were tainted by sex discrimination filed a separate federal action together in this district captioned as Schengrund, et al. v. The Pennsylvania State University, et al.
An interrogatory response reveals that the other members of the Womenâs Faculty Group may have waited for the results an additional administrative proposal before filing their action, thought the record is disappointingly quiet as to Plaintiffs separation from her one-time allies.
Q. Did there come a time when you were aware that the Womenâs Faculty Group was requesting that a salary study be done by an external person?
A. Yes.
Q. Did you know that there was some push to get that done?
A. I think byâJoan Summy-Long said that to me or in some discussion had mentioned that.... I couldnât really say because I donât know when Joan could have told me. But when that would be and whether I really paid attention because she was always talking about issues and problems and things. And like I said, I would just go and do my work after that discussion. Like a lot of times she was upset so it was more to me, you know, consoling her sort of.34
Interestingly, it can also be discerned from the record that on February 3, 2009, Plaintiff moved this Court to consolidate her case with the Schengrund matter.
Early in 2010, after Judge Kane had issued her memorandum opinion on the applicable recovery periods in both cases, the Schengrund plaintiffs opted for mediation and dismissed their action pursuant to a settlement agreement shortly thereafter.
On March 24, 2010, Judge Kane issued a memorandum opinion disposing of Defendantsâ partial summary judgment motion and assessing the effects of the Lilly Led-better Fair Pay Act of 2009 on Plaintiffs claim.
1. Plaintiff may recover for discriminatory paychecks or actions that accrued on or after February 26, 2004, in her Title VII claim;
2. Plaintiff may recover for discriminatory paychecks or actions that ac*384 crued on or after June 25, 2004, in her PHRA claim;
3. Plaintiff may recover for discriminatory paychecks or actions that accrued on or after June 2, 2004, in her Title IX, Section 1983, Section 1985, and PERA claims;
4. Plaintiff may recover for discriminatory paychecks or actions that accrued on or after June 2, 2003, in her EPA claim; and
5. Plaintiff may recover for discriminatory paychecks or actions that accrued on or after June 2, 2004, in her PEPL claim.61
Unfortunately, as this Court has recounted in prior memoranda and orders, since the matter was reassigned from Judge Kane to me on January 17, 2013, I began to face, ad nauseam, a recurring stream of requests on Plaintiffs part to both change counsel and to enlarge the time allotted for discovery.
With six new lawyers also came Plaintiffs continued efforts to extend the discovery period. This Court had previously extended the discovery deadline five times for Plaintiff: ECF No. 164 (first, extending discovery through January 10, 2014); ECF No. 166 (second, extending discovery through April 23, 2014); ECF No. 168 (third, extending discovery through July 22, 2014); ECF No. 175 (fourth, extending discovery through June 3, 2015); and ECF No. 203 (fifth and finally, extending discovery through August 7, 2015). In fact, even before it had granted the final extension, this Court had already remarked in a prior order that it â[could] envision no conceivable exception to this clearly articulated deadlineâ and that âno further extensions of time to complete this rather fundamental litigation task would be permitted.â
Still, on the final day of the fact discovery deadline, Plaintiff again came to this Court seeking to compel Defendants to comply with a stale 2014 discovery request.
LAW
âOne of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose.â
âA defendant meets this standard when there is an absence of evidence that rationally supports the plaintiffs case.â
â[T]he inquiry involved in a ruling on a motion for summary judgment or for a directed verdict necessarily implicates the substantive evidentiary standard of proof that would apply at the trial on the merits.â
â[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.â
Where the movant properly supports his motion, the nonmoving party, to avoid summary judgment, must answer by setting forth âgenuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.â
âWhen opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must âidentify those facts of record which would contradict the facts identified by the movant.â â
â[A]t the summary judgment stage the judgeâs function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.â
As the United States Court of Appeals for the Third Circuit has explicitly instructed district courts who are disposing of a summary judgment motion in the employment discrimination setting:
[T]o defeat summary judgment when the defendant answers the plaintiffs pri-ma facie case with legitimate, non-discriminatory reasons for its action, the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employerâs articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employerâs action. In other words, ... a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.
*387 [T]o avoid summary judgment, the plaintiffs evidence rebutting the employerâs proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employerâs proffered non-discriminatory reasons was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext).
To discredit the employerâs proffered reason, however, the plaintiff cannot simply show that the employerâs decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employerâs proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted non-discriminatory reasons. While this standard places a difficult burden on the plaintiff, it arises from an inherent tension between the goal of all discrimination law and our societyâs commitment to free decisionmaking by the private sector in economic affairs.93
ANALYSIS
I. There Is No Genuine Dispute Of Material Fact With Respect To Plaintiffs Sex Discrimination Claims.
For the reasons that follow, I conclude that there is no genuine dispute of material fact as to whether the Defendants discriminated against Plaintiff on the basis of sex. Accordingly, Defendantsâ motion for summary judgment is granted as to the following counts: Count I (Title VII Discrimination); Count II (Title IX Discrimination); Count III (Pennsylvania Human Relations Act Discrimination); and Count IV (Federal Equal Pay Act Discrimination/Pennsylvania Equal Pay Act Discrimination; Pennsylvania Equal Rights Amendment Discrimination; and Discrimination pursuant to 42 U.S.C. §§ 1983, 1985).
A. Plaintiff styled this action as a disparate treatment claim and is precluded from tacking on novel theories of liability in her summary judgment brief.
Plaintiff asks the Court to construe her sex discrimination claims as asserting a disparate impact theory of liability, despite a long and settled history to the contrary. That the Court must still endeavor at this stage of the litigation to discern the exact causes of action upon which Plaintiff seeks to proceed speaks volumes both to this caseâs convoluted history and to the circuitous manner in which Plaintiff has prosecuted it. Still, because the substance of Plaintiffs papers in opposition to summary judgment equivocate as to the applicable theory of liability, such an inquiry is unfortunately required.
It is black letter law that the plaintiff is the master of her complaint.
By extension, several courts have held that the plaintiff in an employment discrimination case cannot avoid summary judgment on a given theory of liabilityâ disparate treatment or disparate impact, for instanceâhaving withheld a countervailing theory only to slyly reveal it in a summary judgment brief. A leading decision by the United States Court of Appeals for the Third Circuit is Josey v. John R. Hollingsworth Corp.
The Third Circuit affirmed the district courtâs preclusion of the eleventh-hour disparate impact allegations, expressing similar concerns over potential prejudice to the defendant, expansion of the applicable burdens and defenses, and any resultant delay in the matterâs disposition.
The Third Circuit again confronted a plaintiff who failed to timely plead a disparate impact theory in Spence v. City of Philadelphia.
The Third Circuit in Spence appealed to the fundamental notion that a claim not timely raised is waived.
Josey, Spence, and Coleman require that Plaintiffs untimely references to disparate impact discrimination be disregarded. To permit a last-ditch alteration in her case theory would alter the playing field in such a way as to impede presentation of an adequate defense.
These averments, even if they contemplated proceeding on a classwide basis when written, nevertheless suggest that Plaintiff wished only to rely upon a disparate treatment theory that contested discrete salary determinations and not on a disparate impact theory, the latter of which would require identification of a particular policy or practice that negatively affected women. Even the averments under the âCount Iâ (Title VII) heading limit Plaintiff to a disparate treatment theory. The only substantive paragraph containing
It is tempting to make the following counter-argument: the Court was deciding a case about alleged sex discrimination before and even if it permits Plaintiffs late disparate impact theory, it will be deciding a sex discrimination case afterward. That is, however, too high a level of generality from which to view this prolonged, complex matter. In addition, it neglects the existence of distinct legal burdens and defenses applicable to each of these divergent theories of discrimination.
Further, by not grieving a disparate impact theory in her Pennsylvania Human Rights (PHRA) complaint, plaintiff has failed to exhaust the required administrative remedies. âPlaintiffs pursuing discrimination claims must file a discrimination charge with the required agencies, including the EEOC, prior to filing in federal court.â
In particular, the Second Circuit has ruled that âcomplaints of individualized disparate treatment are not reasonably related to a Title VII disparate impact claim alleging class-wide discrimination.â
Plaintiff contends that the EEOC would naturally have investigated the application of Comingâs rules to all employees. This is simply too far a stretch. To adopt plaintiffs position would allow virtually every disparate treatment claim to encompass a disparate impact claim as well. Plaintiffs disability discrimination claim based upon a theory of disparate impact must therefore be dismissed on*391 the additional ground that it exceeds the scope of his administrative charge.124
Plaintiffs Pennsylvania Human Relations Commission complaint, which she cross-filed with the Equal Employment Opportunity Commission, was brought solely on behalf of herself and omitted reference to any other female co-workers who earned a lower salary than male faculty members.
Moreover, the procedural history of this action has expressly limited its scope to a disparate treatment theory. Plaintiffs own statement of the case in the joint case management plan, a document used by the Court to fashion the bounds of discovery, states that âPlaintiff alleges that Defendants engaged in discriminatory practices based on gender, manifesting itself in different treatment with regard to standing, benefits, salary, bonuses, position, and other benefits of employment than similarly-situated males.â
The comprehensive list of factual issues in dispute from that same document confirms this focus on a disparate treatment theory to the exclusion of a disparate impact theory. The list reads:
(a) Whether Defendants engaged in gender or gender-age discrimination.
(b) Whether Defendants denied appropriate adjustments and engaged in different treatment of females and Plaintiff in particular with regard to standing, benefits, salary, bonuses, position, and other benefits of employment than similarly situated males.
(c) Whether Defendants engaged in illegal discrimination against faculty members, including Plaintiff, by paying female faculty members, including Plaintiff, less than male faculty members for work requiring equal skill, effort, and responsibility on the basis of sex.
(d) Whether Defendants discriminated against Plaintiff and/or retaliated against Plaintiff as a result of her activities directed toward reduction and/or elimination of gender bias and discrimination.129
Again, in my view, this list conforms closely to the hallmark elements of a disparate treatment theory and quite plainly lacks the necessary features of a viable disparate impact claim. Specifically, the parties do not dispute the existence of a policy or
Perhaps most strikingly is the fact that the Defendants have previously brought this precise procedural flaw to Plaintiffs attention. On October 23, 2008 in a filing that contested the timeliness of Plaintiffs claims, Janine C. Gismondi, Esquire, counsel for the Defendants, pointed out that ânot only has Plaintiff failed to exhaust her administrative remedies for any disparate impact claim, she has not pled a disparate impact claim in her Complaint.â
I agree that the quoted language, perhaps appearing prophetic to outsiders though eerily omniscient to those well-versed with this action, rings just as true now as when it was first uttered. More importantly, however, it establishes that the Plaintiff was on notice as early as 2008 that there existed severe procedural deficiencies in her filings. The appropriate time to amend the operative theory in her complaint and to cure that flaw would have been then, not eight years later, buried in the argument section of a summary judgment brief.
B. A disparate impact theory would nevertheless fail as a matter of law because Plaintiff has not identified the specific employment practice that she is challenging.
Even were the Court to reach her purported disparate impact theory, I would be forced to reject it as a matter of law, the Plaintiff having failed to adequately identify any policy or practice responsible for the suggested compensation discrepancies. When a plaintiff fails to identify the precise mechanism by which an employer is alleged to have discriminated against a given class, the essential underpinnings of disparate impact claim have not been proffered, and such a claim must therefore fail as a matter of law.
The Supreme Court of the United States has explained that identification of a statistical disparity between members of a protected class and employees not belonging to that class is insufficient to support a disparate impact claim. Neither does a generalized policy of mistreatment suffice. Rather, the plaintiff must reach beyond facial discrepancies and pinpoint the exact discriminatory vehicle. In Smith v. City of Jackson, Mississippi, the Court explained as much in the context of age discrimination:
Turning to the case before us, we initially note that petitioners have done little more than point out that the pay plan at issue is relatively less generous to older workers than to younger workers. They have not identified any specific test, requirement, or practice within the pay plan that has an adverse impact on older workers. As we held in Wards Cove [Packing Co., Inc. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989) ], it is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities. Petitioners have failed to do so. Then-failure to identify the specific practice being challenged is the sort of omission that could result in employers being po*393 tentially liable for the myriad of innocent causes that may lead to statistical imbalances.132
Further, in Wal-Mart Stores, Inc. v. Dukes, the Supreme Court clarified that generalized accusations of bias are insufficient to satisfy this aspect of a disparate impact claim, particularly in cases involving a large institutional defendant wherein discretion is delegated and exercised at several junctures throughout the organizational structure. Though the Court reached this conclusion through the lens of Federal Rule of Civil Procedure 23âs âcommonalityâ requirement for class actions, the underlying substantive law claim for which the class members sought certification was that of sex discrimination based upon a disparate impact theory:
To be sure, we have recognized that, in appropriate cases, giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theoryâsince an employerâs undisciplined system of subjective deci-sionmaking can have precisely the same effects as a system pervaded by impermissible intentional discrimination. But the recognition that this type of Title VII claim âcanâ exist does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common.
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Respondents have not identified a common mode of exercising discretion that pervades the entire companyâaside from their reliance on [the] social frameworks analysis that we have rejected. In a company of Wal-Martâs size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction. Respondents attempt to make that showing by means of statistical and anecdotal evidence, but their evidence falls well short.
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In the landmark case of ours [Watson v. Fort Worth Bank & Trust] which held that giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory, the plurality opinion conditioned that holding on the corollary that merely proving that the discretionary system has produced a racial or sexual disparity is not enough. The plaintiff must begin by identifying the specific employment practice that is challenged. That is all the more necessary when a class of plaintiffs is sought to be certified. Other than the bare existence of delegated discretion, respondents have identified no âspecific employment practiceââmuch less one that ties all their 1.5 million claims together. Merely showing that Wal-Martâs policy of discretion has produced an overall sex-based disparity does not suffice.133
The plurality opinion in Watson v. Fort Worth Bank & Trust, the landmark case that the Wal-Mart Court cited, explicitly sought to provide âa fresh and somewhat closer examination of the constraints that operate to keep [disparate impact] analysis within its proper bounds.â
Next, â[o]nce the employment practice at issue has been identified, causation must be proved; that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.â
Lastly, a court need not accept a plaintiffs statistical evidence but may conduct its own inquiry into the dataâs reliability as well as the true statistical measures for the given population. Similarly, â[i]f the employer discerns fallacies or deficiencies in the data offered by the plaintiff, he is free to adduce countervailing evidence of his own.â
Plaintiffs disparate impact theory suffers from at least three fatal flaws that directly track the Watson framework: first, she fails to identify with any specificity the particular practice or policy that might explain the male-female salary discrepancy that she alleges exists; second, she has failed to establish causation either generally or in her case in particular; and finally, the surveys upon which she relies failed to consider lurking variables other than sex that might explain the male-female salary discrepancy and did not yield statistically significant results.
C. Plaintiffs Title YII claim must fail because she has not established a prima facie case or shown that the Defendantsâ legitimate, non-discriminatory explanation of her poor academic performance is merely pretextual.
As expanded upon more fully below, summary judgment in favor of the Defendants is appropriate as to Plaintiffs Title VII claim. The statistical evidence cited by Plaintiff fails to establish a prima facie case for a disparate treatment claim of sex
1. The statistical evidence cited by Plaintiff fails to establish a prima facie case for a disparate treatment claim of sex discrimination.
âThe complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of [ ] discrimination.â
In order to establish a prima facie case of pay discrimination based upon sex under Title VII, a plaintiff must show that: (1) she was a member of a protected class; (2) she was performing her job satisfactorily; (3) she suffered an adverse employment action; and (4) similarly situated employees of the opposite sex were treated more favorably.
âIf the plaintiff can establish a prima facie case, the employer must then give a legitimate, nondiseriminatory reason for its action in order to rebut the inference of discrimination.â
The crux of Plaintiffs argument is that âit should be clear from ... the history of salary studies at the Medical College that Plaintiff Summy-Long, as well as other women faculty, were discriminated against by regularly being paid salaries lower than their male comparators.â
The reason for such distrust of statistical evidence as the sole means of proof in a disparate treatment case was verbalized by the Supreme Court in Cooper v. Federal Reserve Bank:
The crucial difference between an individualâs claim of discrimination and a class action alleging a general pattern or practice of discrimination is manifest. The inquiry regarding an individualâs claim is the reason for a particular employment decision, while at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decisionmaking.155
Arguably, the preeminent appellate decision calling into question the unbridled use of generalized statistics to support a disparate treatment claim is that of the United States Court of Appeals for the Fifth Circuit in Pouncy v. Prudential Insurance Company of America.
The statistical evidence at issue in Poun-cy was that of a mean salary comparison between black and white employees hired by the company from 1973 through 1978. According to the plaintiff, the evidence sustained the inference of international discrimination, because it showed that white employees had a greater mean weekly salary than black employees.
According to the Fifth Circuit, the fatal flaw evident in the statistical methodology in Pouncy was, like that of the Haignere Report here, a âfailure] to take into account the fact that a number of factors operate simultaneously to influence the amount of salary an employee receives.â
The Haignere Report, Plaintiffs lead piece of evidence, suffers from equally damning flaws. From the outset, one might observe that the Haignere Report was not prepared as an expert submission in anticipation of litigation, meant to conclusively establish the components of a Title VII claim. Instead, it was merely an institutional study prepared to analyze the existence and extent of any sex-based salary discrepancies at the College of Medicine. It did not purport to establish causation or to explain why such a discrepancy may have developed; it did not examine an expansive timeframe common in such cases; it did not identify as a matter of law any classes of comparators; and it did not control for all of those variables that would render its conclusions, as the Pouncy court described, legally âbaselessâ and âinconclusive.â Strikingly, it did not even analyze the individualized circumstances of Plain
I will now highlight several aspects of the Haignere Report that make it unsuitable to carry the prima facie burden in of a Title VII disparate treatment case. From my perspective, the single most glaring issue that prevents the Haignere Report from providing an adequate evidentiary basis here is its utter lack of causal analysis. Such a shortcoming manifests itself in two ways: first, the reason for the purported disparities is unknown and could therefore be attributable to either systemic or individualized characteristics wholly unrelated to any discriminatory motive; second and relatedly, Dr. Haignere equivocates as to the inclusion of such lurking variables as rank and tenure in her analysis, variables that could quite obviously provide a non-discriminatory explanation for her findings.
Dr. Haignereâs report contains several tables of data from which she draws her statistics. From my perspective, the below totals, when read critically, call into question the existence of individualized disparate treatment, despite Dr. Haignereâs apparent lack of focus as to the backstory that animates them:
Table 1. Tenure Track Population
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According to the table above, tenure track professors include 82 males and 27 females. Given the attendant salary increases that accompany an award of tenure and ascension through the tenure track ranks,
One might next wonder, as Dr. Haignere did, âwhether there are promotional barri
Additional data points relied on by Dr. Haignere reveal that 82 out of 144 (or 56.94%) of men held tenure track positions, while 27 out of 62 (or 43.55%) of women did.
In addition to its lack of any causal conclusion whatsoever, the Haignere Report is also inconsistent in its inclusion (or exclusion) of certain confounding or lurking variables. Further,, its explanation of lurking variables is somewhat loaded in my view. For example, it describes such variables as âlikely to have discrimination embedded in them and, thus, mask or suppress gender effects.â
To illustrate, Dr. Haignere provides the following example of a tainted or lurking variable: â[I]f height were included in a salary analysis where gender based disparity exists, the shortness of females relative to mails could explain much of the gender differences in salaries.â
That being said, what causal phenomena are at work is unfortunately beyond the scope of the Haignere Report: perhaps external funding bodies are more likely to award teams comprised of primarily male
It should also be noted that Dr. Haig-nereâs results were not statically significant at the standard 5% level. Although Dr. Haignere attempts to explain this shortcoming away by contrasting between sample statistics and statistics wherein the entire population can be studied,
To the contrary, Dr. Haignereâs probability value for the white female effect in the primary regression was 0.1559, meaning that there exists an approximately 16% chance that any claimed disparity in salaries was not the product of a faculty memberâs sex.
Moreover, the sole salary inputs for the Report are data points from a single year, the 2001-2002 academic year, which falls outside of the statute of limitations period previously determined by Judge Kane. As has been eloquently reiterated:
A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.183
In addition, the quite apparent fault that attends submission of a college-wide study in and individualized disparate treatment action is that the Plaintiff constitutes only a single data point in that broad studyâa lone observation pooled among countless others whose individualized circumstances, talents, credentials, shortcomings, and other qualitative markers remain absent from view. As much as it amounts to a misuse of statistical methods, it also appears eerily fallacious:
1. As a whole, female faculty of the College of Medicine are paid on average less than their male counterparts.
2. Plaintiff is a female faculty member of the College of Medicine.
3. Therefore, Plaintiff must be paid less than her male counterparts.184
An example illustrates this fallacy: Suppose that a given college has five male faculty and five female faculty. Each of the male faculty members earns $5,000 per month, but the female faculty members earn the following monthly salaries: $6,000; $4,000; $6,000; $4,000; and $2,500. Thus, while the male faculty members of this hypothetical institution of higher education take home $5,000 per month, the women average $500 less per month or $4,500. That does not mean that any female faculty member included in the survey is a victim of sex discrimination. In fact, it does not even mean that any female faculty member included in the survey has been the victim of an adverse decision in the form of compensation at all.
Accordingly, although it may be true that on average women faculty look statistically worse off in this example, that type of group measure paints a relatively poor picture of each individual female faculty memberâs particularized situation. Suffice it to observe that in the example above, two of the female faculty actually earn more than all of their male counterparts, despite the misleading sample statistic. Even more telling, we know nothing qualitative about any of these faculty: Who is the department chair? Who earned the most prestigious research grant last academic year? Who has been teaching in their department the longest? Who are the tenured professors? Wfiio chairs a core campus committee? Who has been published most frequently in top-tier journals? And so on. Because the Haignere Reportâs results do not adequately address these intricacies, it is insufficient as a matter of law to establish a prima facie case of disparate treatment sex discrimination.
By extension, I note that Dr. Haignere was never even identified in Plaintiffs Rule 26 disclosures, let alone ever having been declared as a potential expert at trial, despite the Defendants having identified Dr. Elizabeth Becker, Ph.D., of National Economic Research Associates, Inc., as their expert witness.
In conclusion, as in Pouncy, the Plaintiff here presents the Court with âa naked comparison of average weekly salaries ... from which no meaningful conclusion can be drawn.â
2. The Plaintiff has failed to show that the Defendantsâ legitimate, non-discriminatory explanation of substandard academic performance is mere pretext.
Were I to assume satisfaction of the prima facie case, the burden would shift to the Defendants to show that a legitimate, nondiscriminatory reason motivated the contested employment decisions. Such legitimate, nondiscriminatory explanations already accepted by Third Circuit courts in similar disputes include: âcontinuing performance deficienciesâ; âpoor performanceâ; âfailure to meet [ ] job expectationsâ; and âfailure to meet the requirements of [a] corrective action plan.â
Despite having devoted 80% of her time to research activities, Plaintiffs superiors were dissatisfied with her scholarly output during the operative recovery period as calculated by Judge Kane. For instance, in her annual evaluation corresponding to the 2006-2007 academic year, Dr. Vrana, the Chair of Plaintiffs Department at the time, indicated that he expected âgrowthâ in Plaintiffs â[rjesearch effortsâ during the next evaluation period.
The NIH grant at issue in Plaintiffâs case was awarded in 2003 and permitted her to fund 50% of her salary for the 2003-2004, 2004-2005, and 2005-2006 academic years.
Plaintiff offers several varying explanations as to why she failed to reapply for this particular funding, though she does not contest the existence of the underlying delay.
In fact, the parties agree that the primary duty of a basic scientist like Plaintiff here is âto perform biomedical research and publish the results of the research.â
Dr. Vrana made explicit that Plaintiffs lack of funding and diminished scholarly output accounted for her poor evaluations relative to male co-workers:
Q. Youâve explained in pretty good detail how you evaluated Dr. Summy-Long. Were there male colleagues of hers who also werenât getting things published at that time?
A. Were not getting things published? No, there were none.
Q. There none?
A. That were not getting things published.
Q. What about the grants, getting grants renewed, did you have to have any conversations like this like you described you had with her with any male colleagues in the department?
A. No. They all had funding at that time. Towards the end, Dr. Leven-son may haveâhe lost his funding but got it right back. So I didnât have to have that conversation because he submitted lots of grants.214
With those considerations in mind, Dr. Vrana set all of the salaries in the Pharmacology Department subject to administrative approval.
Throughout her papers, Plaintiff takes issue with the characterization of her work as below that of her peers. However, nowhere does she adequately rebut these conclusions or show instead that a discriminatory animus influenced these discretionary decisions. Federal courts have consistently ârecognize[ed] full well that it is not the judiciaryâs place to substitute its own judgment for that of a business manager whose day-to-day closeness with his firmâs operations commands a certain deference.â
As previously noted, âshould the defendant cany this burden, the plaintiff then must have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.â
[T]o defeat summary judgment when the defendant answers the plaintiffs pri-ma facie case with legitimate, non-discriminatory reasons for its action, the plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably- either (1) disbelieve the employerâs articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employerâs action. In other words, ... a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.
[T]o avoid summary judgment, the plaintiffs evidence rebutting the employerâs proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employerâs proffered non-discriminatory reasons was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext).
To discredit the employerâs proffered reason, however, the plaintiff cannot simply show that the employerâs decision was wrong or mistaken, since the factual*406 dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employerâs proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the employer did not act for the asserted non-discriminatory reasons. While this standard places a difficult burden on the plaintiff, it arises from an inherent tension between the goal of all discrimination law and our societyâs commitment to free decisionmaking by the private sector in economic affairs.220
Comparator evidence is â[ejspecially relevantâ at the pretext stage, where courts have emphasized that plaintiffs face âa rigorous standardâ and a âdifficult burden.â
Attempted identification of more favorably treated comparators is perhaps Plaintiffs lone course of action at the pretext stage. Otherwise, her papers are devoid of even the slightest indications of the type of invidious showing that the law requires to prevail at this juncture. She has not shown for instance, that the Defendantsâ explanation for her lower salary âis unworthy of credenceâ or that âdiscriminatory animus motivatedâ them salary decisions.
In the portion of the statement of facts relĂĄting to comparator evidence, the Defendants have provided the following salary tables, which rank each faculty in the relevant departments from highest to lowest.
Table 2. Departmental Salary Ranking by Sex
Pharmacology Department:
2003-04: F, M, M, M, F
2004-05: F, M, M, M, F
2006-07: F, M, M, F, M
Neural & Behavioral Sciences Department:
2007-08: M, F, M, M, F, F, M, M, F
2008-09: M, M, F, M, F, F, M, M, F
2009-10: M, M, F, M, F, F, M, M, F
Perhaps the observation that stands out most strikingly from the above charts is that the highest paid faculty member in the Pharmacology Department during the operative time period was a woman. In fact, during her deposition, opposing counsel asked Plaintiff to guess which faculty might be the highest paid in each department. Plaintiff guessed correctly and described this particular co-worker as a âsuperstarâ who âattracted NIH funding like two and three grants at a timeâ and consequently possessed an âastronomicalâ funding record.
Accordingly and as set out more fully below, Plaintiff has failed, in my view, to show that she was paid less for doing substantially similar work as departmental comparators. On this topic, I would also note for the record that Plaintiffs responses to Defendantsâ Local Rule 56.1 statement of material facts was particularly wanting in quality and conciseness, both on the issue of comparators in particular and on the whole. In addition, the rampant presence of first-person responses indicates that perhaps the client herself provided the rebuttal with little filtration on counselâs partâa facet unappreciated by this Court.
Her contentions regarding comparators in her statement of facts responses were especially problematic. For instance, Plaintiff contends somewhat obliquely that true comparators can come only from the Department of Pharmacology and not the Neural & Behavioral Sciences Department. This is a rather confusing claim, both because it lacks any explanatory backing and because Dr. Vrana had previously testified that Plaintiff was the lowest performer in the Pharmacology Department regardless. Even more opaquely, Plaintiff writes that â[tjenure is not a requirement for a comparator identified by Plaintiff. Rank, having a Ph.D. degree and being a male full-time faculty member with a Standing appointment in the Department of Pharmacology are required factors.â
With all due respect to Plaintiff, it is the Courtâs duty to determine the subset of individual who may appropriately be viewed as her comparators as a matter of law. Comparators, as explained above are just that: individuals possessing substantially similar qualifications and experiences such that comparison of their salaries with the complainant is facially reasonable. They need not be âclonesâ or âperfect matches.â In addition, Plaintiff should consider that too narrow a construction of what it takes to be a comparator favors the defense argument that salary setting among faculty is a highly individualized process about which few comparative con-elusions may properly be drawn. These notions are especially true where Plaintiffs interrogatories have previously assented to a broader conception of what it means to be a comparator in this case:
12. [Ijdentiiy all employees who you contend do or did equal work to you, the performance of which requires or required equal skill, effort and responsibility.
ANSWER: Professors of PharmacologyâDrs. Melvin Billingsley, Robert Levenson, Kathleen Mulder, Mark Kester, Joan Lakoski, and Charles Smith.... Dr. Elliot Vesell would also be a comparator..., Professors in the Department of Neural and Behavioral Sciences include Drs. Kevin Alloway, Barry Dworkin, Patricia S. Grigson, Patricia McLaughlin, Robert Milner, Ralph Norgren, Thomas Pritchard, Ian Simpson, Joyce Tomran-Tink and Ian Zagon.233
To summarize, Dr. Vrana testified that no other comparable faculty member had fallen behind on his or her funding and publication expectations to the extent that the Plaintiff had. In turn, the Plaintiff fails to respond with any affirmative evidence that Dr. Vranaâs explanation is pretextual. To the contrary, she seems to openly acknowledge that the top academic performersâthe âsuperstarsââwere the most handsomely compensated employees. That is really the end of the story in my view, at least as far as any alleged sex discrimination goes. In no fashion has she shown that she was paid less than male comparators for doing equal work.
In her reply brief, Plaintiff also enumerates four rather obscure averments that she says corroborate her claim that the Defendants have acted out of a discriminatory animus all along. According to Plaintiff, her poor performance relative to her peers was merely a red herring. All four of these suggestions suffer the same flaws: their factual backing in the record is highly questionable and their truth, even if assumed, does little to nudge the needle toward a showing of pretext.
Her first suggestion of pretext is that the Haignere Report examined a single year rather than a span of three years, as originally contemplated.
Plaintiffs second example relating to pretext reads as follows:
Second, recognizing that âsalary compressionâ was an issue for long serving faculty such as Summy-Long, the administration considered âlongevity payâ and then rejected it. As Dean Kirch told the women, the âpool of money is only so large.â According to Controller Wayne Zolko, that amount of money was $1.5 million. Consequently, it is clear that reaching pay equity was never the concern, the issue was money.238
The Court takes issue with this contention. First, like several other portions of Plaintiffs briefing,'the allegation is comprised of a hodgepodge of distinct out-of-context quotations and historical events that are woven together in a way to gin up a sense of impropriety. For instance, Plaintiff co-mingles discussions of initial salary setting and subsequent remedial measures, which share only a surface-level relationship. Even more damaging, however, the Plaintiffs suggestion that money was an issue is self-evident. Of course, universities are constrained by available revenue when setting salaries. The Defendants here are no different. Without affirmative evidence of discrimination, considering financial restraints was fiscally responsible, not viola-tive of the law.
Plaintiff next suggests that the poor performance explanation is merely pretextual because the Defendants cancelled a second study by Dr. Haignere.
Like all of Plaintiffs prior suggestions, the fact that the Defendants hired lawyers to contest the instant lawsuit is rather unremarkable and lacking in force as to the pretext issue. Undoubtedly, defendants hire lawyers to battle meritorious and frivolous lawsuits alike. In fact, the Defendantsâ answer that this second study was discontinued because ârecently-enacted federal regulations and federal court decisions ... raise[d] questions about statistical studies of this kind with regard to the methodology, the validity of the conclusions, or the actions taken in response.â
Lastly, the Plaintiff points out that Dr. Vrana termed her performance as âfalling behind ... her peersâ during his testimony after having helped to secure Plaintiff a modest raise.
In fact, then Department Chair Dr. Vra-na testified as to the following during his deposition:
Q. Do you remember how you evaluated her performance in 2005, 2006, and 2007?
A. Yes. So in each case, as I said earlier, she was an excellent and conscientious instructor, and so I acknowledged that. But each year, we had a recurring discussion about the fact that she was not publishing her work. She was missing opportunities to submit the grant for renewal. And so by the end, I was committing to cover 100 percent of her salary and her technician from 2007 to 2008. She subsequently left the department in 2007 before that happened. But the fact of the matter was it was increasingly apparent that her performance was falling behind the othersâher peers within the department and nationally.246
Thus, it could very well be the case, as the Defendants here propose, that to the extent that Plaintiffs salary was lower than other of her co-workers, the evidence sug
D. There is no genuine dispute of material fact as to Plaintiffs claims under the Pennsylvania Human Rights Act, Title IX, or the Pennsylvania Equal Rights Amendment.
Title VII and the Pennsylvania Human Rights Act (PHRA) both âmake it illegal for an employer to discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment on the basis of sex.â
Such an approach is reasonable: the two pieces of legislation regulate substantially similar conduct as often applied to an identical fact pattern. If one claim is substantively defective, so should the other claim fail. Thus, courts have rightly explained that âthe disposition in Plaintiffs Title VII claim applies with equal force to [her] PHRA claim,â
The same applies with equal force to .Plaintiffs Title IX sex discrimination claim, as âTitle IX freely borrows the jurisprudence of Title VII.â
This Title VII-Title IX reciprocation of standards applies to a plaintiffs failure to establish a prima facie case
Plaintiff also brings a claim under the Equal Rights Amendment to the Pennsylvania Constitution, which provides that â[ejquality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.â
Where a case does not implicate a discriminatory statute or common law doctrine, however, the Equal Rights Amendment does not apply. This was clarified by the Pennsylvania Supreme Courtâs narrow construction of the Amendment in Weaver v. Harpster. In that case, the Court held that the plaintiff did not have an actionable Equal Rights Amendment claim, stating:
[W]e have applied the Equal Rights Amendment to invalidate legislation embodying gender classifications. We have not invoked the Equal Rights Amendment to provide a private cause of action for tort.... [Plaintiff] has not identified any law under which she is being discriminated against. She is not being denied equal rights under the law due to her gender.259
For that reason, and because Plaintiffs Equal Rights Amendment claim would also fail on the merits as described throughout, summary judgment is again appropriate in favor of the Defendants as to that claim.
E. There is no genuine dispute of material fact as to Plaintiffs claims under the Equal Pay Act and the Pennsylvania Equal Pay Law.
Plaintiff appeals to both the Pennsylvania Equal Pay Act and the Federal Equal Pay Act. However, federal courts in Pennsylvania have previously clarified that the federal law preempts its state-law counterpart. â[P]laintiff has invoked coverage of the Federal [Equal Pay] Act, and, therefore, is excluded from a claim under the Pennsylvania Act.â
The Equal Pay Act reads as follows:
No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex, provided that an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.262
âTo establish a prima facie case under the Equal Pay Act, a plaintiff must show that defendant paid different wages to employees of the opposite sex for equal work on jobs which required equal skill, effort, and responsibility, and all of which are performed under similar working conditions.â
âIf a plaintiff is able to make a prima facie case, the burden shifts to the defendant. The defendant can raise one of the four affirmative defenses stated in the Equal Pay Act.â
Given their marginally distinct allocation of burdens, courts have noted that â[i]t is possible that a plaintiff could fail to meet its burden of proving a Title VII violation, and at the same time the employ
As a result, courts have recognized that the dispositions of claims brought pursuant to the Equal Pay Act âare authoritativeâ in cases where plaintiffs also âraise a claim of equal payâ under Title VII.
For instance, in Equal Employment Opportunity Commission v. Cleveland State University, the United States District Court for the Northern District of Ohio held that âthe evidence establishes that any difference in salaries between male and female professors in the Cleveland State Mathematics Department is justified under a seniority or merit system.â
Again, in Willner v. University of Kansas, the United States Court of Appeals for the Tenth Circuit upheld the finding
As previously indicated, I have determined that summary judgment in favor of the Defendants is appropriate on Plaintiffs Equal Pay Act claim for two related reasons. First, Plaintiff did not perform substantially the same work as her coworkers, given that the record indisputably reveals her scholarly output and grant awards were not only the lowest in the Pharmacology Department during the operative period but had fallen well below accepted standards even accounting for the somewhat cyclical nature of such endeavors. In Chang v. University of Rhode Island, for example, the district court rejected an Equal Pay Act Claim based on the absence of âsubstantially similarâ work in the academic setting where appealed-to comparators had âadministrative or coaching dutiesâ that the plaintiff did not have or benefited from the availability of grant funding that was not applicable to the plaintiff.
Conversely, the same conclusion is reached when considering the applicable merits system here, a system that rewarded scholarly output and the attainment of prestigious national grants with discretionary salary- increases. As the parties acknowledge, starting salaries were a function of several variables, including the faculty memberâs rank at hire, experience, and specific expertise.
Merit-based increases were determined by the Department Chairâin Plaintiffs ease, Dr. Vrana.
II. There Is No Genuine Dispute Of Material Fact With Respect To Plaintiffs Retaliation Claims.
For the reasons that follow, there is no genuine dispute of material fact as to whether the Defendants retaliated against Plaintiff on the basis of her protected activity. Accordingly, Defendantsâ motion for summary judgment is granted as to the following counts: Count V (Title VII Retaliation); Count VI (Title IX Retaliation); Count VII (Pennsylvania Human Relations Act Retaliation)
Title VIIâs â[ajntiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.â
As the Supreme Court explained in Burlington Northern, it elected to speak in terms of âmaterial adversityâ because it was necessary âto separate significant from trivial harms.â
âA prima facie case of illegal retaliation requires a showing of (1) protected employee activity; (2) adverse action by the employer either after or contemporaneous with the employeeâs protected activity; and (3) a causal connection between the employeeâs protected activity and the employerâs adverse action.â
Lastly, as a matter of law, after the Supreme Courtâs recent decision in University of Texas Southwestern Medical Center v. Nassar, âTitle VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test.â
Plaintiffs retaliation claims are perhaps the weakest of the lot, as they lack in both material adversity and causation. Plaintiffâs first retaliation claim is that her lab space was reduced as a consequence of her complaints of sex discrimination. As other federal courts have previously held in the education context, âDefendantâs reduction of Plaintiffâs lab space was not an adverse employment action,â because â[Reducing Plaintiffâs lab space does not rise to the level of a firing, demotion, or loss of benefits.â
Defendants have shown that lab space was allocated, in nearly all instances, in accordance with a faculty memberâs external grant funding (of which Plaintiff had little to none during the operative period).
The Court recognizes that the reduction in lab space was potentially disappointing to Plaintiff, but nothing in the record indicates that the reduction was due to any factor other than her voluntary transfer of departments and her being the Neural & Behavioral Sciences Departmentâs newest addition. This is particularly true given the alleged existence of a guaranteed space
Next, Plaintiff contends that certain individuals associated with the Defendants took actions that negatively impacted her healthcare. Though seeming serious at first, the claim, as eventually expressed by Plaintiff in her response, is so obscure that it is difficult to untangle. Plaintiff writes as follows:
Of great effect at this time, and a deterrent from her job responsibilities, were the emotional and devastating concerns of not being able to get a diagnosis and second opinion of a skin tumor biopsied in February, 2005, by Dr. Anderson (Nevus, Exhibit 42), but incompletely diagnosed (spindle cell neoplasia; possible neurofibroma; malignant fusiform cell type; Exhibit 43) without ruling out melanoma (i.e. spindle cell melanoma) by Dr. Klaus Helm, a member of the Clinical Faculty of the COM, Department of Patholog [sic]. This happened just 2 months after Plaintiff filed the Complaint with the PA Human Relations Commission (PHRC).
Concerned since spindle . cell neoplasia can be spindle cell melanoma, a fact well understood by Dr. Helm (Exhibit 46). Plaintiff began a quest to obtain a diagnosis lasting to this day (Summary of Physicians recorded at Plaintiffs deposition, July 2015). Later complications, believed related to the spindle cell neopla-sia and continuing retaliation, occurred in February, 2012, when biopsied tissue from an inflamed encrusted mole, was sent to Dr. Helm for pathological analysis despite Plaintiffs expressed concerns and request not to. This time Dr. Helm provided a misdiagnosis of squamous cell carcinoma (Exhibit 47; Exhibit 48) with recommendation of further excision that showed no cancer present, but failed to rule out melanoma requested by the dermatologist (new doc#402, p. 1-3). Dr. Helm, in 2005 (Exhibit 44) and Dr. Charles Pagana, Plaintiffs general practitioner in 2012, assured me of not having melanoma, but that was untrue as a summary by Dr. Pagana of my health issues for insurance coding, showed my having a History of Melanoma. A continuing retaliation complaint was submitted to the EEOC in 2012 and Plaintiff began alternative medical therapy to âtreatâ melanoma, assuming that Dr. Helmâs failure to release skin tumor*419 tissue for a second opinion wouldnât have happened if it were benign.304
Again, while the Court has strived to read and view the entire record in the light most favorable to Plaintiff, review of such convoluted responses to simple factual inquiries hindered prompt disposition of this motion and certainly did not help to advance Plaintiffs case like concise, direct statements may have. Nevertheless, the individuals named above, as Defendants aptly note, have never even been named parties to this lawsuit. Separately, there is no indication that the alleged shortcomings in the aforementioned biopsy were actually shortcomings when viewed objectively, were unable to be remedied, or were in any way motivated by protected activity.
Moreover, this Court has previously precluded advancement of such a claim. On May 28, 2015, I granted Defendantsâ motion for a protective order as to additional discovery on this claim, explaining as follows:
The instant action, sounding entirely in employment discrimination, was commenced by Plaintiff on June 2, 2006, nearly nine years ago. Plaintiff recently noticed the depositions of two non-party physicians, who according to the allegations of Plaintiff, misdiagnosed Plaintiffs medical condition. This alleged misdiagnosis, wholly unrelated to the instant action, is not alleged in the complaint, and in the ensuing nine years since Plaintiff filed her complaint, has never previously been alleged.305
For those reasons, this claim is also unavailing.
Next, Plaintiff suggests that Defendants retaliated against her by not timely placing her profile on the Neural & Behavioral Sciences Departmentâs website after she transferred departments. For reasons that should be obvious, that is not a materially adverse retaliatory act. Perhaps the outcome would be different in the case of saleswoman or a realtor whose online profile was a primary engine of customer leads, but for a university professor whose web presence typically acts as a repository for her class schedule, office hours, and working papers, the story is much different. Further, as the Defendants admit, âthe website was out of date for several years while Plaintiff was in the department and that her name (along with others) was omitted from the website.â
Lastly, Plaintiff suggests that she was mistreated by faculty in the Pharmacology Department, primarily Dr. Vrana, the Department Chair, which forced her transfer to the NBS Department. Plaintiff cites to two particular instances of retaliation: first, that Dr. Vrana omitted her name in an article about the history of the Pharmacology Department; and second, that an administrative assistant in the Pharmacology Department was rude to her when she submitted a grant application to be processed.
Again, I would question the materiality of these claimed retaliatory acts. In fact, as the Defendants point out, the contested article actually contained the following statement: âThe first graduate
This case and its questionable retaliation claims highlight a stark reality litigants in the academic setting may fail to consider when they file tenuous claims of discrimination against their colleagues: that those colleagues look unfavorably back at them or choose to distance themselves for obvious reasons does not always rise to the level of actionable retaliation. Instead, those repercussions may simply be reasonable responses to having been named as a defendant in federal court. Filing a lawsuit of that magnitude against oneâs colleagues or supervisors often turns out to be an apt way to burn bridges in the long run.
CONCLUSION
One might analogize that Plaintiff set out to build a magnificent home, a home full of intricate designs whose construction required a certain precision, strategy, and skill. However, over the course of ten years, the Plaintiff, for whatever reasons, fired five different architects and raised picayune issues that further delayed construction and sometimes, even halted it altogether.
It can come as no surprise now looking back that the final product remains unfinished, a conglomerate of distinct styles and divergent priorities. Yet, even the most ornate blueprints, if not the beneficiary of proper care, can disappoint the builder in the long runâparticularly if, as here, she has quite plainly lost sight of that ultimate goal years ago.
Now having come to terms with the emptiness of Plaintiffs claims and the shoddy way in which they were prosecuted, I am reminded again of a second stan
What are the roots that clutch, what branches grow
Out of this stony rubbish? Son of man, You cannot say, or guess, for you know only
A heap of broken images, where the sun beats,
And the dead tree gives no shelter, the cricket no relief,
And the dry stone no sound of water.
[[Image here]]
I will show you fear in a handful of dust.314
Consistent with the foregoing reasoning, no genuine disputes of material fact remain. Accordingly, Defendantsâ motion for summary judgment is granted as to all claims.
An appropriate Order follows.
. T.S, Eliot, "The Hollow Menâ (1925).
. See ECF No. 92, as revised by ECF No. 100.
. ECF No. 249 at 2 ¶ 1; 88 ¶ 340.
. Id. at 2 112.
. Id. at 89 ¶ 343.
. Id. at 3 ¶ 4.
. Id. at ¶ 5.
. ECF No. 249 at 11 ¶ 45.
. Id. at 12 ¶ 46.
. Id. at 12 ¶¶ 48-52.
. Id. at 13 ¶ 53.
. Id. at 13 ¶¶ 54-55. See also Vrana Dep. at 41-42, ECF No. 231-6; Zolko Dep. at 64, ECF No. 231-8; Base Salary History for Summy-Long and Colleagues, ECF No. 228, Exhibit 101.
. Id. at 14 ¶ 56. See also Zolko Aff. p.15, ECF No. 44-2, p. 16; Grigsby Dep. at 99-102, ECF No. 231-7.
. Id. at 12 ¶ 48.
. ECF No. 92 at 4.
. Id.
. Id.
. Id.
. Id.
. Id.
. Id. at 5.
. Id. at 6.
. Id. See also ECF No. 249 at 69 ¶¶ 257-58.
. ECF No. 92 at 6. See also ECF No. 249 at 71 ¶ 268; May 28, 2015 Becker Report, pp. 8-9, ECF No. 231-39.
. ECF No. 249 at 73 ¶ 274.
. ECF No. 231 Ex. 11 at 9.
. ECF No. 231 Ex. 11 at 9.
. Id.
. Id.
. Id.
. ECF No. 249 at 23 ¶ 80.
. ECF No. 249 at 23 ¶ 81.
. ECF No. 249 at 24 ¶ 85.
. ECF No. 228 Ex. 7 at 7 ("The second component of the salary structure represents the supplement and consists of 25% of total compensated effort. For most faculty members on the Scientist-Educator academic pathway, funds for the supplemental component of the salary will be derived from the individual investigatorâs research grants. This will require that the faculty member support a minimum of 25% of his/her effort with extramural funding to cover the supplement.").
. ECF No. 228 Ex. 7 at 7.
. Id. ("It is the expectation of the College of Medicine that faculty members who have been employed by the College of Medicine for three or more years support a minimum of 50% of their assigned research effort from extramural sources.â).
. Id.
. ECF No. 249 at 48 ¶¶ 177-78.
. Vrana Dep., ECF No. 231 Ex. 6 at 34:09-12.
. Id. at 34:13-14.
. Id. at 34:13-17.
. Id. at 34:17-18.
. ECF No. 249 at 32 ¶ 114.
. ECF No. 249 at 49 ¶ 183.
. ECF No. 231 Ex. 6 at 58:07-20.
.Id. at 58:09-12.
. Id. at 56:04-19.
. Id. at 21:18-20.
. Id. at 26:19-25, In terms of her absolute rather than relative pay, it should be noted for the record that Plaintiff did, however, receive three base salaiy increases of 7.9%, 2%, and 8% in years 2004, 2005, and 2006, respectively. Id. at 48:18-19; 29:23-30:02. The purpose of these increases, as Dr. Vrana explained, was to align as practicably as possible Plaintiffâs base salary with the Association of American Medical Collegeâs 50th percentileâa national standard that the Defendants aspired to meet for each faculty member. Id. at 19:16â 22,
. ECF No. 249 at 55 ¶ 207. See also July 29, 2009 Barnstable Memo to Plaintiff, ECF. No. 231-33; Zolko Dep. pp. 91-92, ECF No. 231-8; Base Salary History for Summy-Long and Colleagues, ECF No. 228, Exhibit 101.
. See ECF No. 249 at 51 ¶ 189; 89 ¶¶ 341-44.
. 4:07-cv-00718.
. See ECF No. 44 Ex. 7 at 34 âThe GROUP, prior to this, had been unsuccessful in engaging the University in mediation to resolve "past discrimination and salary inequitiesâ via complaint filed with the Affirmative Action Office (AAO) in January 2005. I was a member of the GROUP until filing their claim with the EEOC, when my inclusion was viewed as redundant.â
. Mulder Dep. at 24-26; 4:07-cv-00718, ECF No. 32 Ex. 4 at 83-85.
. ECF No. 84.
. Id. Ex. 3.
. ECF No. 86.
. 4:07-cv-00718, ECF No. 90.
. ECF No. 92 at 9 (citing Pub. L. 111-2, 123 Slat. 5).
. Id. at 10.
. ECF. No. 100.
. ECF Nos. 239-40.
. ECF No, 178 at 1.
. Id. at 2-3.
. ECF No. 206.
.ECF No. 207 at 1.
. ECF No. 211 at 19-20.
. Id.
. ECF Nos. 220-21.
. ECF No. 222.
. ECF Nos. 239-40.
. ECF No. 230.
. ECF Nos. 253, 259, & 262.
. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
. Fed. R. Civ. P. 56(a).
. Clark v. Modern Grp. Ltd., 9 F.3d 321, 326 (3d Cir. 1993) (Hutchinson, J.) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) and Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548).
. Clark v. Modern Grp. Ltd., 9 F.3d at 326.
. Id.
. Liberty Lobby, Inc., 477 U.S. at 252, 106 S.Ct. 2505.
. Id.
. Id.
. Id. (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S. (14 Wall.) 442, 447, 20 L.Ed. 867 (1871)).
. Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548 (internal quotations omitted).
. Id.
. Liberty Lobby, Inc., 477 U.S. at 250, 106 S.Ct. 2505.
. Fed. R. Civ. P. 56(c)(1).
. Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002) (Weis, J.).
. Fed. R. Civ. P. 56(e)(2).
. Fed. R. Civ. P. 56(c)(3).
. Liberty Lobby, Inc., 477 U.S. at 249, 106 S.Ct. 2505.
. Id.
. Id. at 249-50 (internal citations omitted).
. Fuentes v. Perskie, 32 F.3d 759, 764-65 (3d Cir. 1994) (Becker, C.J.) (internal citations and quotations omitted) (emphasis in original).
. Morgan v. Gay, 471 F.3d 469, 477 (3d Cir. 2006) (Smith, J.).
. Easterling v. Gulf Guar. Ins. Co., 60 F.Supp.2d 586, 588 (S.D. Miss. 1999) (quoting Willy v. Coastal Corp., 855 F.2d 1160, 1167 (5th Cir. 1988)); Clark v. Edgar, No. CIV A 06-CV-1067, 2007 WL 2566277, at *3 (M.D. Pa. Aug. 31, 2007). Huff v. Nationwide Ins. Co., 167 B.R. 53, 58 (W.D. Pa. 1992), aff'd, 989 F.2d 487 (3d Cir. 1993).
. Spengler v. Worthington Cylinders, 514 F.Supp.2d 1011, 1017 (S.D. Ohio 2007) (Tucker v. Union of Needletrades, Indus., and Textile Employees, 407 F.3d 784, 787-88 (6th Cir. 2005)).
. Tucker, 407 F.3d at 788 (quoting 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2723 (3d ed. Supp.2005)).
. Tucker, 407 F.3d at 788.
. 996 F.2d 632, 641 (3d Cir. 1993).
. Id. at 641-42. See also Josey v. John R. Hollingsworth Corp., No. CIV. A. 91-4606, 1992 WL 78838, at *3 (E.D. Pa. Apr. 9, 1992) ("Plaintiff also attempts to defeat summary judgment under a theory of disparate impact.").
. 1992 WL 78838, at *3.
. Id.
. Id. at 642.
. Id.
. 147 Fed.Appx. 289 (3d Cir. 2005).
. Id. at 291.
. Id.
. Id. at 292.
. 232 F.3d 1271, 1292 (9th Cir. 2000).
. See, e.g., Ste. Marie v. E. R. Ass'n, 650 F.2d 395, 399 (2d Cir. 1981) (Friendly, J.) (âWe reject this belated attempt to introduce a new theory of liability.... To hold the defendants to the more stringent burden applicable in a disparate impact case at this date would be manifestly unfair.â) (emphasis added).
. ECF No. 257 at 5.
. ECF No. 1 at 2 ¶ 1.
. Id. at 7 ¶ 21.
. ECF No. 1 at 10.
. Tourtellotte v. Eli Lilly & Co., 636 Fed.Appx. 831, 850-51 (3d Cir. 2016).
. Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006).
. Miller v. Int'l Tel. & Tel Corp., 755 F.2d 20, 26 (2d Cir. 1985).
. Williams, 458 F.3d at 70.
. Id.
. Burgis v. N.Y. City Dep't of Sanitation, 798 F.3d 63, 71 (2d Cir. 2015), cert. denied, â U.S. â, 136 S.Ct. 1202, 194 L.Ed.2d 183 (2016).
. 93 F.Supp.2d 334, 341 (W.D.N.Y. 2000).
. ECF No. 44 Ex. 7 at 12.
. Id. at ¶ 3.
. Id.
. ECF No. 8 at 3.
. Id. at 3-4.
. ECF No. 73 at 12.
. Id. at 12-13.
. 544 U.S. 228, 241, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005) (internal quotation marks and citations omitted).
. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 355-57, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011).
. 487 U.S. 977, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988).
. Id.
. Id.
. See id.
. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct 1817, 36 L.Ed.2d 668 (1973).
. Prise v. Alderwoods Grp., Inc., 657 F.Supp.2d 564, 589 (W.D. Pa. 2009) (internal citations omitted).
. See Johnson v. McGraw-Hill Companies, 451 F.Supp.2d 681, 697 (W.D. Pa. 2006) (citing Goodwin v. Board of Trustees of the University of Illinois, 442 F.3d 611, 617 (7th Cir. 2006); Grande v. State Farm Mutual Automobile Insurance Co. 83 F.Supp.2d 559, 562 (E.D. Pa. 2000)).
. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 798 (3d Cir. 2003) (per curiam) (internal citations and quotations omitted).
. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1087 (3d Cir. 1996).
. Brewington v. Sunbridge Regency N. Carolina, Inc. No. 1:06CV1112, 2007 WL 4522619, at *3 (M.D.N.C. Dec. 18, 2007) (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). See also Sarullo, 352 F.3d at 797-98 ("[T]he prima facie test remains flexible and must be tailored to fit the specific context in which it is applied.").
. Brewington, 2007 WL 4522619, at *3 (citing Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)).
. Brewington, 2007 WL 4522619, at *3 (citing Henson v. Liggett Group, Inc., 61 F.3d 270, 274 (4th Cir. 1995)).
. ECF No. 224 at 22.
. Healy v. N.Y. Life Ins. Co., 860 F.2d 1209, 1217 (3d Cir. 1988) (Becker, J.). "We emphasize that 'statistics are not irrefutable; they come in infinite variety, and, like any other kind of evidence they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances.â â Id. at 1217-18 (quoting International Brotherhood of Teamsters v. United States, 431 U.S. 324, 340, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977)).
. Abrams v. Lightolier Inc., 50 F.3d 1204, 1217 (3d Cir. 1995).
. Gilty v. Vill. of Oak Park, 919 F.2d 1247, 1252 (7th Cir. 1990).
. Chandler v. Univ. of Pennsylvania, 927 F.Supp.2d 175, 183 (E.D. Pa. 2013).
. Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984).
. 668 F.2d 795 (5th Cir. 1982).
. See id. at 797.
. See id. at 799.
. Id. at 802.
. Id. It should be noted that although the Third Circuit had once taken a stance marginally at odds with Pouncy's outright rejection of statistical shortcomings in disparate treatment actions, such a stance was vacated by the Supreme Court of the United States in accordance with its subsequent decision in Wards Cove. See USX Corp. v. Green, 490 U.S. 1103, 109 S.Ct. 3151, 104 L.Ed.2d 1015 (1989). Regardless, the Third Circuit has not rejected Pouncy's advice for critical analysis of the overreliance on statistics in the disparate treatment context.
. Id. at 803.
. Id.
. Id.
. Id. at 803 & n.9 (âStatistical proof insufficient to prove discrimination under a disparate impact theory is, by definition, also inadequate to show discrimination under a disparate treatment theory.â).
. ECF No. 228 Ex. 11 at 6 (Figure 2a).
. See ECF No. 249 at 12-16 ¶¶ 48, 53-57.
. Id. at 12 ¶ 48.
. I also believe the concerns underlying this error are similar to those identified by the defense expert, Dr. Elizabeth Becker, Ph.D., of National Economic Research Associates, Inc., whereby she faults Dr. Haignere for aggressively pooling distinct faculty sub-groups in certain of her analyses. ECF No. 231 Ex. 39 at 8.
. ECF No. 228 Ex. 11 at 4.
. Id.
. See ECF No. 228 Ex. 11 at 6 (Figure 2a).
. Lamphere v. Brown University, 685 F.2d 743, 750 (1st Cir. 1982).
. ECF No. 228 Ex 11 at 8 (emphasis added).
. ECF No. 228 Ex. 11 at 8.
. ECF No. 228 Ex. 11 at 10 ("For example, if the frequency tables indicate that tenure status could act as a suppressor variable, we conduct analyses with and without tenure status.â).
. Id.
. ECF No. 228 Ex. 11 at 8.
. ECF No. 228 Ex. 11 at 19-20.
. ECF No. 231 Ex. 39 at 9.
. Id.
. ECF No. 231 Ex. 9 at 10.
. See id.
. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977).
. See "Fallacy of Division" at https://en. wikipedia.org/wiki/Fallacy_of_division:
1. The 2nd grade in Jefferson elementary eats a lot of ice cream.
2. Carlos is a 2nd grader in Jefferson elementary.
3. Therefore, Carlos eats a lot of ice cream.
. As Dr, Haignere herself admitted, "[m]ul-tiple regression analyses do not adequately address the individual level ... [they] pertain to class or systemic differences.â ECF No. 249 Ex. 18 at 2.
.See ECF No. 8 at 7 ("Disclosuresâ). See also Fed. R. Civ. P. 26 & Local Rule 16.3(a). Neither does it appear that Dr, Haignere was ever deposed in connection with her involvement in this case.
. See, e.g. Bruno v. Bozzuto's, Inc., 311 F.R.D. 124, 141 (M.D. Pa. 2015).
. ECF No. 228 Ex. 11 at 8.
. Bielich v. Johnson & Johnson, Inc., 6 F.Supp.3d 589, 596 (W.D. Pa. 2014). Blozis v. Mellon Trust of Delaware Nat. Ass'n, 494 F.Supp.2d 258, 269 (D. Del. 2007). Watkins v. Nabisco Biscuit Co., 224 F.Supp.2d 852, 859 (D.N.J. 2002).
. ECF No. 231 Ex. 11 at 9.
. ECF No. 231 Ex. 11 at 9.
. Id.
. Id.
. Id.
. ECF No. 249 at 23 ¶ 80.
. ECF No. 249 at 23 ¶ 81.
. ECF No. 249 at 24 ¶ 85.
. ECF No. 228 Ex. 7 at 7 (âThe second component of the salary structure represents the supplement and consists of 25% of total compensated effort. For most faculty members on the Scientist-Educator academic pathway, funds for the supplemental- component of the salary will be derived from the individual investigator's research grants. This will require that the faculty member support a minimum of 25% of his/her effort with extramural funding to cover the supplement.ââ).
. ECF No. 228 Ex. 7 at 7.
. ECF No. 228 Ex. 7 at 7 ("It is the expectation of the College of Medicine that faculty members who have been employed by the College of Medicine for three or more years support a minimum of 50% of their assigned research effort from extramural sources.").
. Id.
. ECF No. 249 at 48 ¶¶ 177-78.
. Vrana Dep., ECF No. 231 Ex. 6 at 34:09-12.
. Id. at 34:13-14.
. Id. at 34:13-17.
. Id. at 34:17-18.
. See ECF No 249 at 48 ¶ 181 (âAdmitted with Clarification: Plaintiff did not miss a deadline, but disagreed with Dr. Vranaâs pressure to do so, believing that until publishing results of the funded research it would be unwise to submit a renewal application.â).
. See ECF No. 249 at 48 ¶ 181. ECF No. 231 Ex. 6 at 34:19-35:04.
. Id. at 34:25-35:01.
. ECF No. 249 at 32 ¶ 114.
. ECF No. 249 at 49 ¶ 183.
. ECF No. 231 Ex. 6 at 58:07-20.
. Id. at 58:09-12.
. Id. at 56:04-19.
. Id. at 21:18-20.
. Id. at 26:19-25. In terms of her absolute rather than relative pay, it should be noted for the record that Plaintiff did, however, receive three base salary increases of 7.9%, 2%, and 8% in years 2004, 2005, and 2006, respectively. Id. at 48:18-19; 29:23-30:02. The purpose of these increases, as Dr. Vrana explained, was to align as practicably as possible Plaintiffâs base salary with the Association of American Medical College's 50th percentileâa national standard that the Defendants aspired to meet for each faculty member. Id. at 19:16â 22.
. Moore v. CVS Rx Servs., Inc. 142 F.Supp.3d 321, 341 (M.D. Pa. 2015), affâd, 660 Fed.Appx. 149 (3d Cir. 2016).
. Harel v. Rutgers, State Univ., 5 F.Supp.2d 246, 266 (D.N.J. 1998), aff'd sub nom. Harel v. Rutgers, 191 F.3d 444 (3d Cir. 1999) (quoting Kunda v. Muhlenberg College, 621 F.2d 532, 548 (3d Cir. 1980)).
. Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 410 (3d Cir. 1999)
. Fuentes v. Perskie, 32 F.3d 759, 764-65 (3d Cir. 1994) (Becker, C.J.) (internal citations and quotations omitted) (emphasis in original).
. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. Onyiah v. St. Cloud State Univ., 684 F.3d 711, 717 (8th Cir. 2012). Anderson v. Haverford Coll., 868 F.Supp. 741, 746 (E.D. Pa. 1994).
. Coleman v. Donahoe, 667 F.3d 835, 841 (7th Cir. 2012) (Hamilton, J.).
. Id. at 846 (internal quotation marks omitted).
. Id.
. Onyiah, 684 F.3d at 716.
. ECF No. 249 at 79 ¶ 294.
. ECF No. 249 at 79 ¶ 294.
. Summy-Long Dep. ECF No. 231 Ex. 5 at 111-471:06-10. In fact, Dr. Vrana testified that he thought sex played no role in his salary decisions, "[p]rimarily because my highest paid professor was a female, and my lowest paid faculty member was a female,â ECF No. 231 Ex. 6 at 26:01-03.
. ECF No. 231 Ex. 5 at 111-472:21-111-473:05.
. See ECF No. 235 at 24. Plaintiff also points to two colleagues whom Defendants accurately point out were not responsible for substantially the same duties as she was. Those two individuals are Dr. Melvin Billings-ley and Dr. Elliot Vesellâboth named Defendants. However, since 2002, Dr, Billingsley has been the President and CEO of the Life Sciences Greenhouse of Central Pennsylvania and has spent the majority of his time working in that capacity. See Vrana Aff. ¶¶ 67-68, ECF No. 231-1; Pl.'s Dep. p, 271, ECF No. 231-5. Second, Dr. Vesell also held the title of Evan Pugh Professor in recognition of his service to the University and the scientific community and his publication record. The Pugh Professor title-is the highest honor given to a Penn State faculty member. ECF No. 249 ¶¶ 231-32. In addition, prior to 2000, Dr. Vesell had served as the founding Chair of the Department of Pharmacology and had directed its activities for 32 years. Id. at ¶ 233.
Moreover, Defendants have argued as follow in their reply brief:
Plaintiff states in her Response to Defendantsâ Statement of Facts that her closest comparators for salary purposes are Elliot Vesell, the long-time Chair of the Pharmacology Department, and Melvin Billingsley, President and CEO of the Life Sciences Greenhouse of Central Pennsylvania. The most glaring flaw in this argument is that the record contains no evidence whatsoever about Dr. Vesellâs or Dr, Billingsley's compensation. This would ordinarily be a remarkable omission in a salary discrimination case. Here, however, it illustrates Dr. Summy-Longâs continued penchant for making arguments that bear no relationship to the evidentiary record.
ECF No. 257 at 17 n.8.
.See, e.g., ECF No. 249 at ¶ 7 (âmy research careerâ); ¶ 108 ("my workâ); ¶ 158
. ECF No. 249 at 59 ¶ 221.
. ECF No. 210 Ex. 1 at 5.
. As counsel for Defendants aptly put it, this shortage of factual supports "seems to be of no moment to Dr, Summy-Long (or her attorney).â ECF No. 235 at 30. I would note that Defendants filed their answer on August 14, 2006, ECF No. 7, before the Supreme Court handed down its heightened pleading
. Amir v. St. Louis Univ. 184 F.3d 1017, 1029 (8th Cir. 1999).
. ECF No. 244 at 23.
. ECF No. 257 at 18.
. ECF No. 244 at 44.
. ECF No. 244 at 24.
. ECF No. 244 at 22-24.
. ECF No. 257 at 18 (citing Nov. 20, 2007 Dean Kevin Grigsby Memo to Faculty Organization, ECF No. 67 at 78).
. See id.
. ECF No. 244 at 24.
. See Vrana Dep., ECF No. 231 Ex. 6 at 33:13-34:02.
. (Vrana Affidavit ¶¶ 61-63, ECF No. 231-1, p. 10-11; Pl.'s HR40 Evaluations, ECF No. 231-11).
. ECF 231 Ex. 6 at 33:14-34:02.
. Nagle v. RMA, The Risk Mgmt. Ass'n, 513 F.Supp.2d 383, 387 (E.D. Pa. 2007).
. Id.
. Weston v. Pennsylvania, 251 F.3d 420, 426 n.3 (3d Cir. 2001).
. Sapko v. Ringgold Area Sch. Dist., No. 2:06CV893, 2008 WL 2367321, at *6 n.5 (W.D. Pa. June 10, 2008). See also Marriott v. Audiovox Corp., No. CIVA 04-1307, 2006 WL 3805145, at *4 (W.D. Pa. Dec. 22, 2006) (âThe discussion and disposition of plaintiffâs Title VII claims will apply to the related PHRA claims and will be granted or denied in the same manner as the Title VII claims.â).
. Dawn L. v. Greater Johnstown Sch. Dist., 586 F.Supp.2d 332, 381 (W.D. Pa. 2008).
. Atkinson v. Lafayette Coll., 653 F.Supp.2d 581, 594 (E.D. Pa. 2009). See also Toth v. California Univ. of Pennsylvania, 844 F.Supp.2d 611, 636 (W.D. Pa. 2012).
. Bruneau By & Through Schofield v. S. Kortright Cent. Sch. Dist., 935 F.Supp. 162, 170 (N.D.N.Y. 1996).
. Mabry v. State Bd. of Cmty. Colleges & Occupational Educ. 813 F.2d 311, 317 n.6 (10th Cir. 1987) ("Because Title VII prohibits the identical conduct prohibited by Title IX, i.e., sex discrimination, we regard it as the most appropriate analogue when defining Title IXâs substantive standards.â).
. Stocky v. Hawaii, No. CIV 0600594 JMS/ KSC, 2008 WL 214944, at *17 (D. Haw. Jan. 25, 2008) ("[E]ven if Plaintiff had set forth a prima facie case, her Title IX claim must fail for the same reason as her Title VII claim; she fails to demonstrate pretext.â).
.The same conclusion must be trae of Plaintiffs conspiracy claim brought pursuant to 42 U.S.C. § 1985. To establish a conspiracy claim under 42 U.S.C. § 1985(3), a plaintiff is required to show: (1) a conspiracy between two or more persons, (2) for the purpose of depriving her of the equal protection of the laws, and (3) an act in furtherance of the conspiracy, (4) whereby she was deprived of a right or privilege of a citizen of the United States. See Slater v. Susquehanna County, 465 Fed.Appx. 132, 136 (3d Cir. 2012). Thus, Plaintiff's conspiracy claim requires her to show that the Defendants acted together, motivated by a discriminatory animus towards women, to deprive her of her legal rights. Id. at 136. I agree that "Plaintiff falls woefully short of identifying evidence that would carry this burden.â ECF No. 235 at 32-33. As Defendants point out, "In the first instance, many of the Defendants worked at the College of Medicine at different times,â Id. at 33. Clearly, then they did not find themselves "in a position to conspire with each other about faculty salary decisions or any other matters.â See Kerstetter v. Pennsylvania Dep't of Corrections, 2010 WL 936457, *14 (M.D. Pa. 2010) (holding that § 1985 requires "a meeting of the mindsâ among the alleged co-conspirators).
. Pa. Const. Art. 1, § 28.
. See Hartford Acc. and Indem. Co. v. Insurance Com'r of Com., 505 Pa. 571, 482 A.2d 542, 549 (1984). See also Adoption of Walker, 468 Pa. 165, 360 A.2d 603 (1976); DiFlorido v. DiFlorido, 459 Pa. 641, 331 A.2d 174 (1975); Hopkins v. Blanco, 457 Pa. 90, 320 A.2d 139 (1974).
. 601 Pa. 488, 975 A.2d 555, 572 (2009).
. Cap v. Lehigh Univ., 433 F.Supp. 1275, 1283 (E.D. Pa. 1977).
. Lord v. Pennsylvania Nat. Mut. Cas. Ins. Co., No. 1:07-CV-1229, 2009 WL 55949, at *3 (M.D. Pa. Jan. 7, 2009) (Conner, J.) (internal citations omitted).
. 29 U.S.C. § 206(d)(1).
. Wildi v. Alle-Kiski Med. Ctr., 659 F.Supp.2d 640, 657-58 (W.D. Pa. 2009).
. Brobst v. Columbus Servs. Int'l, 761 F.2d 148, 156 (3d Cir. 1985).
. Id. at 151, 155.
. Puchakjian v. Twp. of Winslow, 804 F.Supp.2d 288, 295 (D.N.J. 2011), aff'd, 520 Fed.Appx. 73 (3d Cir. 2013).
. Wildi, 659 F.Supp.2d at 658.
. Id.
. Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 344 (4th Cir. 1994).
. Reiff v. Bd. of Regents of the Univ. of Wisconsin Sys. No. 13-CV-192-JDP, 2014 WL 4546041, at *13 (W.D. Wis. Sept. 12, 2014) ("To the extent that Reiff bases her Title VII claim on the theoiy that she has received discriminatory pay during the limitations period, that claim fails because UWS has shown that any pay differential between Reiff and her comparators is due to factors other than sex. Thus, her Title VII claim fails for the same reason her Equal Pay Act claim fails.â); Parr v. Nicholls State Univ., No. CIV. A. 09-3576, 2011 WL 838903, at *8 (E.D. La. Mar. 3, 2011), aff'd sub nom. Parr v. Hulbert, 518 Fed.Appx. 275 (5th Cir. 2013), and aff'd sub nom. Parr v. Hulbert, 518 Fed.Appx. 275 (5th Cir. 2013) ("Specifically, for essentially the same reasons stated with respect to Plaintiffâs EPA claim, any assertions of gender discrimination by Plaintiff relative to her pay rate fail because she does not show that Kaslow or Cheramie was 'similarly situated.â â). See also Clark v. Johnson & Higgins, 181 F.3d 100 (6th Cir. 1999) (âThis court has held that when an Equal Pay Act claim and a Title VII claim arise out of the same set of underlying facts, both stating a charge of wage discrimination, the standards of liability under the two statutes are sufficiently similar that the disposition with respect to the two claims should be the same.â) (internal citations and quotation marks omitted).
. Gunther v. Washington Cty., 623 F.2d 1303, 1313 (9th Cir. 1979), aff'd, 452 U.S. 161, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981).
. No. C80-311, 1982 WL 320, at *13 (N.D. Ohio May 10, 1982).
. Id.
. Id.
. Id. at *14.
. 848 F.2d 1023, 1031 (10th Cir. 1988).
. Id.
. Chang v. Univ. of Rhode Island, 606 F.Supp. 1161, 1243 (D.R.I. 1985).
. Id. at 1219.
. ECF No. 249 at 11 ¶ 45.
. Id. at 12 ¶ 46.
. Id. at 12 ¶¶ 48-52,
. Id. at 13 ¶ 53.
. Id. at 13 ¶¶ 54-55. See also Vrana Dep. pp. 41-42, ECF No. 231-6; Zolko Dep. p. 64, ECF No. 231-8; Base Salary History for Summy-Long and Colleagues, ECF No. 228, Exhibit 101; Vrana Dep. pp. 41-42, ECF No. 231-6.
. Id. at 14 ¶ 56. See also Zolko Aff. p15, ECF No. 44-2, p. 16; Grigsby Dep. pp. 99-102, ECF No. 231-7)
. Vrana Dep. at 26:12-25.
. Id. at 56:04-19.
. See Part I.D (quoting Nagle v. RMA, The Risk Mgmt. Ass'n, 513 F.Supp.2d 383, 387 (E.D. Pa. 2007) (âThe 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.â)). Accordingly, for the same reasons that Plaintiff's Title VII retaliation claim fails, her PHRA retaliation claim must also fail.
. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).
. Id.
. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998); Zaloga v. Borough of Moosic, No. 3:10-CV-2604, 2015 WL 3755003, at *11 (M.D. Pa. June 16, 2015).
. E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 449 (3d Cir. 2015) (Hardiman, J.) (internal quotation marks omitted).
. Mitchell v. Vanderbilt Univ., No. 3:01â 1578, 2003 WL 24135107, at *9 (M.D. Tenn. Mar. 18, 2003), aff'd, 389 F.3d 177 (6th Cir. 2004) (citing Kocsis v. Multi-Care Mgmt.,
. Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).
. Univ. of Texas Sw. Med. Ctr. v. Nassar, - U.S. -, 133 S.Ct. 2517, 2533, 186 L.Ed.2d 503 (2013).
. Id.
. Mitchell, 2003 WL 24135107, at *9.
. Id. at *8.
. Naftchi v. N.Y. Univ., 14 F.Supp.2d 473, 487 (S.D.N.Y. 1998).
. ECF No. 249 at 82 ¶309. See also Barnstable Aff. ¶ 13, ECF No. 231-2; Pl.âs Dep. p. 443, ECF No. 231-5; Vrana Dep. p. 32, ECF No. 231-6; Facilities Research Metrics, ECF No. 231-40.
. ECF No. 249 at 82 ¶ 307.
. ECF No. 235 at 31. See aslo Packer v. Trustees of Indiana Univ. Sch. of Med., 800 F.3d 843, 851-52 (7th Cir. 2015):
Packer also pursues a claim of retaliation under Title VII, contending that the University took a series of adverse actions against her (including denying her pay raises and then decreasing her pay, and depriving her of adequate research lab space) because of the complaints she had filed internally with the University's office of equal opportunity and externally with the EEOC, But in her summary judgment memorandum below, Packer only devoted a few sentences to explaining the evidentiary basis for this claim.,.. The problem, though, is that Packerâs abbreviated analysis of the claim made no effort to weave such evidence into a cogent argument, grounded in the case law, as to why a factfinder might be able to conclude that Brater and the University had embarked on a course of retaliatory conduct because she had engaged in protected conduct. Nor, apart from the direct framework for establishing retaliation, did Packer offer any suggestion as to how she might establish retaliation indirectly. In short, Packerâs cursory treatment of the retaliation claim was wholly insufficient and, in our view, waived,
. ECF No. 249 at 48-49 ¶ 181.
. ECF No. 184.
. ECF No. 235 at 31.
. See ECF No. 249 at 88-89 ¶¶ 336-44.
. Id. at ¶ 341.
. Id. at ¶ 340.
. Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
. Further, Plaintiff alleges that she was retaliated against in violation of the First Amendment to the United States Constitution. As the elements and defenses of such a claim parallel those previously discussed, summary judgment is also warranted as to that allegation. "The elements of a retaliation claim under 42 U.S.C. § 1983 predicated on the First Amendment and under the Rehabilitation Act are the same. In both cases plaintiffs must show (1) that they engaged in a protected activity, (2) that defendantsâ retaliatory action was sufficient to deter a person of ordinary firmness from exercising his or her rights, and (3) that there was a causal connection between the protected activity and the retaliatory action.â312 "A defendant may defeat the claim of retaliation by showing that it would have taken the same action even if the plaintiff had not engaged in the protected activity."312
.Vrana Dep. at 52:23-25.
. T.S. Eliot, "The Waste Landâ (1922).