HomeMy WebLinkAbout2015-00674
H. SHELLEY MORRISETTE, : THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : No. 2015-00674 CIVIL TERM
:
PA STATE SYSTEM OF HIGHER :
EDUCATION :
Defendant : CIVIL ACTION – LAW
OPINION
IN RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
BEFORE SMITH AND HYAMS, J.J.
Smith, J., September 16, 2021 –
FACTS
From 2002 to 2012, Plaintiff was employed as an Associate Professor in
Marketing and Management at Shippensburg University, a member of the Pennsylvania
State System of Higher Education (Defendant). In December 2012, Plaintiff was one of
twenty (20) associate professors who applied for promotion to full professor via the
University Wide Promotion Committee ("UWPC").
Under a collective bargaining agreement, promotions are determined each year
by the UWPC and the Shippensburg University Statement of Promotion Policies and
1
Procedures (Promotion Procedures). The Promotion Procedures state that the UWPC
considers three areas: teaching effectiveness, continuing scholarly growth, and service
2
to the University and/or the community. Members of the UWPC are elected and serve
two-year terms. The members meet in the Spring semester to rank each candidate who
3
applies for promotion. Promotion candidates compile and submit binders to the UWPC
4
to highlight achievements, publications, and other qualifications. Before the UWPC
meeting in the Spring, each UWPC member reviews and ranks each candidate for
1
Appendix of Documents to Plaintiff’s Brief in Support of Plaintiff’s Motion for Summary Judgment, Exhibit
A , Shippensburg University Statement of Promotion Procedures and Policies, Morrisette v. PA State
System of Higher Education, No. 2015-00674 (August 13, 2020).
2
Id.
3
Id.
4
Id.
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promotion. During the Spring meeting, a committee member presents a candidate and
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the candidate's qualifications to the UWPC. After a member presents a candidate, the
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UWPC anonymously submits a new rank of the candidates. Each candidates' final
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ranking requires an 80% consensus of the UWPC members. The UWPC submits the
9
final rankings of the candidates to the University President. The University President
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makes the final determination on promotions.
The UWPC met in early March 2013 to discuss and rank the candidates.
Plaintiff's final ranking by the UWPC was 11 out of 20. Plaintiff did not appeal his final
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ranking of 11. In 2013, the University President promoted only the top ten candidates,
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and candidates ranked 11 through 20, including Plaintiff, were not promoted.
In December 2014, Plaintiff received an anonymous letter from a UWPC
13
member, later identified written by Dr. Ronald Taylor. The letter stated, in part, that
when UWPC members discussed Plaintiff's service component at the UWPC meeting,
some committee members discussed Plaintiff's lack of collegiality and inability to work
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well with others.
On February 5, 2014, Plaintiff filed suit against Defendant, the governing board of
the Commonwealth’s state system of universities, which includes Shippensburg
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University. Plaintiff’s original Complaint alleged 2 counts, Count 1 – Violation of the
5
Id.
6
Id.
7
Id.
8
Id.
9
Id.
10
Id.
11
Defendant’s Supplemental Record Appendix of Exhibits, Exhibit 1, Deposition of Dr. H. Shelley
Morrisette, 77, Morrisette, No. 2015-00674 (October 5, 2020).
12
Defendant’s Supplemental Record Appendix of Exhibits, Exhibit 2, Deposition of Dr. Sara Grove, 62,
Morrisette, No. 2015-00674 (October 5, 2020).
13
Appendix of Documents to Plaintiff’s Brief in Support of Plaintiff’s Motion for Summary Judgment,
Exhibit AA , December 21, 2014 Letter from Dr. Ronald Taylor, Morrisette v. PA State System of Higher
Education, No. 2015-00674 (August 13, 2020).
14
Id.
15
Prior to filing his Complaint with the Court of Common Pleas, Plaintiff filed a Complaint with the
Pennsylvania Human Relations Commission on October 30, 2013. It appears that no action was taken
Page 2 of 11
Age Discrimination in Employment Act (“ADEA”), and Count 2 – Violation of the
Pennsylvania Human Relations Act (“PHRA”). Both counts alleged only age
discrimination.
The Complaint went through several iterations. The First Amended Complaint,
filed April 20, 2015, was largely the same as the original complaint. The Second
Amended Complaint, filed October 8, 2015, dropped the claim under the ADEA, and
contained only a sole count for age discrimination under the PHRA. In the Third
Amended Complaint, filed August 12, 2016, Plaintiff claimed in a sole count, that
Defendant discriminated against him based on both age and sex, in violation of the
PHRA.
The Fourth Amended Complaint, filed February 14, 2018, under which we are
now proceeding, broke the sole count into two counts, Count I – Violation of the PHRA –
Age Discrimination, and Count II – Violation of the PHRA – Sex Discrimination. Plaintiff
alleges that he was discriminated against because of his age because he was
objectively more qualified than younger candidates promoted by the university. Plaintiff
further alleges he was discriminated against because of his sex because he received an
16
"artificially low rating" by the female members of the UWPC. Specifically, Plaintiff
believes he was better qualified than Ian Langella (younger candidate) and Betty
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Dessants (female candidate) promoted in 2013.
Plaintiff indicated in his deposition that he had previously served on the UWPC
for four years and acknowledged that UWPC members submit candidates' rankings via
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anonymous secret ballot. During Plaintiff's deposition, he acknowledged that the
on that Complaint within one year. Plaintiff then filed a Complaint in the U.S. District Court for the Middle
District of Pennsylvania on September 25, 2014. That Complaint was dismissed by stipulation of the
parties on December 9, 2014. Fourth Amended Complaint, ¶ 40, Morrisette¸ No. 2015-00674 (February
14, 2018).
16
In both Plaintiff’s Fourth Amended Complaint and Motion for Summary Judgment, Plaintiff provides an
average ranking of the Plaintiff by the female UWPC members of 12.625 and by the male members of 4.6
as evidence of discrimination by sex/gender. However, in Plaintiff’s deposition, and the deposition of each
UWPC member, each deponent acknowledged that rankings are done via secret ballot and thus
anonymous. The only ranking by UWPC members that was shared with other UWPC members is the
initial rankings at the start of the UWPC meetings in March 2013.
17
Id. at ¶ 25.
18
Defendant’s Supplemental Record Appendix of Exhibits, Exhibit 1, Deposition of Dr. H. Shelley
Morrisette, 22, 24, Morrisette, No. 2015-00674 (October 5, 2020).
Page 3 of 11
UWPC members are unaware of how many candidates will be promoted by the
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University President.
Plaintiff admitted during his deposition that he did not hear anything that UWPC
members discussed during the UWPC meetings in March of 2013, and he was not
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aware of anyone on the UWPC who spoke about his age or sex. Plaintiff further
acknowledged that candidates are ranked as a whole by the UWPC and not by
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discipline.
Both Plaintiff and Defendant have moved for Summary Judgment. Plaintiff
moved for Summary Judgment on August 13, 2020, alleging (1) that Defendant is
unable to articulate a legitimate, non-discriminatory reason for denying Plaintiff’s
application for promotion; (2) that Plaintiff was denied promotion because of illegal
consideration of his age; (3) that Plaintiff was denied promotion because of illegal
consideration of his gender; (4) that the Shippensburg University Promotion Polices and
Procedures were discriminatory in this case; and (5) Plaintiff is entitled to summary
judgment because of spoilation of evidence.
Defendant filed for Summary Judgment on October 7, 2020, alleging (1) that
Plaintiff cannot make a prima facie case under the PHRA, and (2) that Defendant had a
legitimate reason for not promoting Plaintiff.
DISCUSSION
Summary judgment is proper only when the pleadings, depositions,
answers to interrogatories, admissions and affidavits and other materials
demonstrate that there is no genuine issue of material fact and that the
moving party is entitled to judgment as a matter of law. The reviewing court
must view the record in the light most favorable to the nonmoving party and
resolve all doubts as to the existence of a genuine issue of material fact
against the moving party. Only when the facts are so clear that reasonable
22
minds could not differ can a trial court properly enter summary judgment.
19
Id. at 47-48.
20
Id. at 74, 94-95.
21
Id. at 104.
22
Safe Auto Ins. Co. v. Oriental-Guillermo, 170 A.3d 1170, 1173 (Pa. Super. 2017), aff'd, 214 A.3d 1257
(Pa. 2019), quoting Wall Rose Mut. Ins. Co. v. Manross, 939 A.2d 958,962 (Pa. Super. 2007) (citations
omitted).
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Additionally, "a proper grant of summary judgment depends upon an evidentiary
record that either (1) shows the material facts are undisputed or (2) contains insufficient
evidence of facts to make out a prima facie cause of action or defense, and, therefore,
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there is no issue to be submitted to the jury."
DISCRIMINATION UNDER THE PENNSYLVANIA HUMAN RELATIONS ACT
The Pennsylvania Human Relations Act (“PHRA”) is codified at 43 P.S. § 955,
and makes it unlawful for any employer to discriminate based on, among other things,
age and sex. "Generally, claims brought under the PHRA are analyzed under the same
24
standards as their federal counterparts." In analyzing employment discrimination
cases, “Pennsylvania courts utilize the analytical model adopted by the United States
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Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792." Under the
McDonnell Douglas model, the plaintiff bears the burden of establishing a prima facie
26
case of discrimination by a preponderance of the evidence. A plaintiff establishes a
prima facie case by showing he is a member of a protected class, has suffered an
adverse employment action, and others not in the plaintiff's protected class were treated
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differently.
The McDonnell Douglas model is burden-shifting, and if Plaintiff can establish a
prima facie case, the burden shifts to the defendant to articulate a legitimate, non-
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discriminatory reason for the employment action. If the defendant meets their burden,
the plaintiff may prove that the Defendant's reason(s) are untrue and just a pretext for
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discrimination by the preponderance of the evidence.
To survive summary judgment at the pretext stage, the plaintiff must point to
some evidence from which a factfinder could reasonably either (1) disbelieve the
defendant's reason; or (2) believe that the "invidious discriminatory reason was more
23
McCarthy v. Dan Lepore & Sons Co., Inc., 724 A.2d 938, 940 (Pa. Super. 1998).
24
Kroptavich v. Pa. Power & Light Co., 795 A.2d 1048, 1055 (Pa. Super. Ct. 2002).
25
Campanaro v. Pa. Elec. Co., 738 A.2d 472, 476 (Pa. Super Ct. 1999) (citing Fairfield Township
Volunteer Fire Co. No. 1 v. Commonwealth, Pennsylvania Human Relations Commission, 530 Pa. 441,
444).
26
Id.
27
Id.
28
Id.
29
Id.
Page 5 of 11
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likely than not a motivating or determinative cause of the employer's action." The
plaintiff must point to weaknesses, inconsistencies, contradictions, or implausibilities
that the defendant's proffered reason(s) that a reasonable factfinder could find the
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reason(s) "unworthy of credence." The evidentiary burden in the "pretext stage is to
point to triable, admissible evidence that would allow a factfinder to find pretext and/or
3233
outright discrimination." Ultimately, the burden of proof remains with Plaintiff.
AGE DISCRIMINATION
In Plaintiff's Fourth Amended Complaint, Plaintiff states that "younger, less
experienced and less qualified female members for full professor, were ranked above
34
Plaintiff by UWPC…" Plaintiff further states that Defendant did not promote Plaintiff
because of his age, and Defendant has routinely treated younger professors more
35
favorably. Plaintiff specifically states that he was more qualified than Ian Langella, a
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40 year-old associate professor who was promoted.
Age discrimination cases have a variant standard for the Plaintiff to establish a
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prima facie case. To survive summary judgment on a claim of age discrimination, the
Plaintiff must first establish a prima facie case with evidence that: (i) the Plaintiff
belonged to a protected class (was at least 40 years of age); (ii) was qualified for the
position; (iii) suffered an adverse employment action despite being qualified; (iv)
suffered an adverse employment action despite Defendant's need for someone to
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perform the same work. Plaintiff may satisfy the fourth element of a prima facie case
by simply showing Defendant has a continued need for someone to perform the same
39
work.
30
Kroptavich, 795 A.2d at 1059.
31
Id.
32
Id. at 1060.
33
Campanaro, 738 A.2d at 476-77.
34
Plaintiff’s Fourth Amended Complaint, ¶ 18, Morrisette, No. 2015-00674 (February 14, 2018).
35
Id. at ¶ 29-30
.
36
Id. at ¶ 23.
37
Kroptavich, 795 A.2d at 1056.
38
Id. at 1058.
39
Id.
Page 6 of 11
Since neither party disputes that Plaintiff was at least 40 years of age and that
Shippensburg University continued to need full professors, elements (i) and (iv) are
satisfied. Additionally, nothing in the record indicates that Plaintiff was not qualified for
the full professor position, and Defendant does not dispute that Plaintiff was qualified for
the position. Plaintiff has satisfied element (ii). Plaintiff did not receive a promotion to the
position of full professor despite being qualified for the position, and thus element (iii) is
satisfied. Plaintiff has established a prima facie case of age discrimination under the
PHRA.
Under the McDonnell Douglas model, the burden shifts to Defendant, and
Defendant must articulate a legitimate, non-discriminatory reason for not promoting
Plaintiff. This is a burden of production, as opposed to burden of persuasion in that “it
involves no credibility assessment. If the employer articulates a legitimate business
explanation, ‘then the presumption of discriminatory intent created by the employee’s
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prima facie case is rebutted and the presumption simply ‘drops out of the picture.’”
Defendant’s contention is that Plaintiff did not receive a promotion because ten
other candidates were better qualified for promotion than Plaintiff. Defendant
elaborates that the UWPC was not only evaluating Plaintiff, but the UWPC evaluated
and ranked all 20 candidates against each other. The UWPC determined that Plaintiff
was ranked 11 out of the 20 candidates for promotion compared to the other
candidates.
The UWPC did not decide if a single candidate is qualified for promotion but
instead ranked each promotion candidate against each other candidate. In fact, the
members of the UWPC do not know how many people will be promoted in any given
year. In the deposition of Dr. Sara Grove, the chairperson of the UWPC during the year
in question, Ms. Grove testified that the UWPC did not know how many people would be
promoted to full professor.
Q \[Karen Romano, Esquire, for Defendant\]: Okay. When the Promotion
Committee meets, do they know how many candidates are going to be
promoted?
A \[Dr. Grove\]: They do not.
Q: Do they know how many – is there a cap on how many candidates can
be promoted in any given year?
40
Kroptavich, 795 A.2d at 1055.
Page 7 of 11
A: By the regulations of the State system, there is a percentage of
individuals who can be at the rank of full professor. My understanding is
that approximately one-third of the faculty may be at that rank.
Q: Okay. When the Promotion Committee meets, do they know how many
people can be promoted to full professor to get to that cap?
A: We do not typically know. It is in the policy stated that the President is
to tell the Committee the minimum number of individuals that he will
promote or she will promote in any given year.
Q: In the 2012-2013 year, did the President provide the Committee with
that minimum number?
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A: He did not.
Eight of the ten promoted candidates were over the age of 40, with 3 of them
42
being over the age of 50. Conversely, eight of the ten candidates not promoted were
43
under the age of 50, with one of them being under 40. When specifically asked if Dr.
Grove believed that Plaintiff was more qualified than Ian Langella, a younger candidate
who was promoted, she stated that she believed Plaintiff was better qualified, but when
asked if she voted in favor of Plaintiff’s promotion, she stated “\[i\[t’s not a vote in favor or
against someone’s promotion,” and elaborated that the UWPC’s job is to merely rank
the candidates based on the packets they present without knowing how many
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candidates will be promoted. Based on the blind nature of the promotion procedure,
and that members of Defendant’s age cohort were both promoted and not promoted,
Defendant has met its burden.
Continuing under the McDonnell Douglas model, the burden shifts back to
Plaintiff to show that Defendant's purported reason was pretextual. Plaintiff points to his
accomplishments and qualifications for promotion as evidence of Defendant's pretext.
While the Plaintiff's qualifications are enough to establish the (ii) element of a prima
facie case, it fails to point "to triable, admissible evidence that would allow a factfinder to
45
find pretext and/or outright discrimination."
41
Defendant’s Supplemental Record Appendix of Exhibits, Exhibit 2, Deposition of Dr. Sara Grove, 91-92,
Morrisette, No. 2015-00674 (October 5, 2020).
42
Defendant’s Supplemental Record Appendix of Exhibits, Exhibit 13, 2012-2013 Promotion Candidates
Ranked with Ages, Morrisette, No. 2015-00674 (October 5, 2020).
43
Id,
44
Defendant’s Supplemental Record Appendix of Exhibits, Exhibit 2, Deposition of Dr. Sara Grove, 26-27,
Morrisette, No. 2015-00674 (October 5, 2020).
45
Kroptavich, 795 A.2d, at 1060.
Page 8 of 11
Furthermore, in Plaintiff's deposition, he acknowledged that no one ever told him
46
the UWPC discussed his age. When presented with a document showing the ages of
the candidates, Dr. Grove stated “I have never seen this document…I would never
47
include age in a document like this,” and when asked if she knew if any person over
the age of 60 had ever been promoted she stated “I don’t know the answer to that
48
question, because I don’t know the ages of my colleagues.” The only evidence in the
record that mentions Plaintiff's age is a comment from Plaintiff's colleague who did not
49
serve on the UWPC.
Therefore, Plaintiff has not met his burden to show that Defendant’s reason for
failing to promote him was pretextual and Defendant's Motion for Summary Judgment
as to Count I – Age Discrimination is GRANTED.
SEX DISCRIMINATION
In Plaintiff's Fourth Amended Complaint, Plaintiff alleges that he was subjected to
sex discrimination because female members of the UWPC ranked Plaintiff artificially
50
low. Plaintiff further alleges that he did not receive the promotion because of his
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gender, violating the PHRA.
Defendant argues that Plaintiff has not established a prima facie case under the
McDonnell Douglas model, and if Plaintiff did establish his prima facie case, Defendant
articulated a legitimate, non-discriminatory reason for not promoting the Plaintiff.
As stated, supra, Pennsylvania courts use the burden-shifting analytical
52
McDonnell Douglas model outlined above in employment discrimination cases. A
plaintiff establishes a prima facie case by showing: (i) he is a member of a protected
46
Defendant’s Supplemental Record Appendix of Exhibits, Exhibit 1, Deposition of Dr. H. Shelley
Morrisette, 94-95, Morrisette, No. 2015-00674 (October 5, 2020).
47
Defendant’s Supplemental Record Appendix of Exhibits, Exhibit 2, Deposition of Dr. Sara Grove, 35-36,
Morrisette, No. 2015-00674 (October 7, 2020).
48
Id. at 76.
49
Defendant’s Supplemental Record Appendix of Exhibits, Exhibit 1, Deposition of Dr. H. Shelley
Morrisette, 123-24, Morrisette, No. 2015-00674 (October 5, 2020).
50
Plaintiff’s Fourth Amended Complaint, ¶ 36, Morrisette, No. 2015-00674 (February 14, 2018).
51
Id. at ¶ 39.
52
Campanaro, 738 A.2d at 476.
Page 9 of 11
class; (ii) has suffered an adverse employment action; (iii) and others not in the
53
plaintiff's protected class were treated differently.
Neither party disputes that Plaintiff is a male, a protected class, and was not
promoted to full professor by Shippensburg University. Thus, elements (i) and (ii) of the
prima facie case are met.
In 2013, Shippensburg University promoted ten candidates and did not promote
ten other candidates. Plaintiff’s promotion class included sixteen males and four
females. The University did not promote all females and they did not fail to promote all
54
males. One of the unpromoted candidates was a female. Seven of the promoted
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candidates were male.
Plaintiff contends, however, that he was not promoted based on his sex because
female UWPC members gave Plaintiff an artificially low ranking. Plaintiff put forth
evidence representing the UWPC final rankings by committee members and asserted
that the female UWPC members artificially ranked him low. The record reflects,
however, that not all female UWPC members ranked Plaintiff low. In fact, Dr. Sara
Grove stated that it was her belief that Plaintiff should have been promoted, but stated
that “I have to abide by what the Committee decides. I’m one person. And that’s part of
the responsibility of being the co-chair. We have an 80 percent rule for getting on the
list; and that’s, unfortunately, the way things work sometimes. Individual faculty
56
members don’t always get what they want.”
Assuming arguendo that Plaintiff established a prima facie case, Defendant must
now articulate a legitimate, non-discriminatory reason for not promoting the Plaintiff. As
stated, supra, the UWPC did not know how many candidates would be promoted. This
is further illustrated through the deposition testimony of UWPC member Dr. David
Kennedy, who stated that Plaintiff should have been promoted “if the budget allowed,”
and went on to testify that “I’m not sure of what all goes into the decision of how many
to promote in a given year. I do think there are years where more are promoted and
53
Id.
54
Defendant’s Supplemental Record Appendix of Exhibits, Exhibit 13, 2012-2013 Promotion Candidates
Ranked with Ages, Morrisette, No. 2015-00674 (October 5, 2020).
55
Id.
56
Defendant’s Supplemental Record Appendix of Exhibits, Exhibit 2, Deposition of Dr. Sara Grove, 75,
Morrisette, No. 2015-00674 (October 5, 2020).
Page 10 of 11
57
years where fewer are promoted.” He then stated that he had seen years where more
than ten employees were promoted. The UWPC did not know how many candidates
would be promoted. Defendant has met its burden.
Continuing the McDonnell Douglas burden-shifting model, the burden shifts back
to Plaintiff to show that Defendant's purported reason was pretextual. Plaintiff again
articulates that female members of the UWPC ranked him lower than the male
members. When asked to explain why it appeared that female voters ranked Plaintiff
lower than male voters, Dr. Ronald Taylor, a member of the UWPC at the time, stated “I
don’t think – I’m not sure I could. Other than – I mean, I don’t know. I know it would be
58
pure speculation.” Unarticulated speculation cannot sustain Plaintiff’s claims of
pretext.
Therefore, Plaintiff has not met his burden and Defendant's Motion for Summary
Judgment as to Count II – Sex Discrimination is GRANTED.
BY THE COURT,
__________________________
Matthew P. Smith, J.
Keith E. Kendall, Esquire
20 North Hanover Street, Suite 201
Carlisle, PA 17013
Karen M. Romano, Esquire, Chief Deputy Attorney General
Allison L. Deibert, Esquire, Deputy Attorney General
th
15 Floor, Strawberry Square
Harrisburg, PA 17120
57
Defendant’s Supplemental Record Appendix of Exhibits, Exhibit 7, Deposition of Dr. David I. Kennedy,
40, Morrisette, No. 2015-00674 (October 5, 2020).
58
Defendant’s Supplemental Record Appendix of Exhibits, Exhibit 6, Deposition of Dr. Ronald Taylor, 31,
Morrisette, No. 2015-00674 (October 5, 2020).
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