Patra v. Pennsylvania State System of Higher Education

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HARISADHAN PATRA and No. 4:14-CV-02265

PETULA VAZ,

(Judge Brann)

Plaintiffs,

v.

PENNSYLVANIA STATE SYSTEM

OF HIGHER EDUCATION, et al.,

Defendants.

MEMORANDUM OPINION

MAY 27, 2020

I. BACKGROUND

Defendants have again moved for summary judgment. For the reasons that

follow, Defendants’ motion is granted.

II. DISCUSSION

A. Standard of Review

I begin my analysis with the standard of review which undergirds summary

judgment. “One 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.”1

Summary judgment is appropriate where “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.”2 “Facts that could alter the outcome are ‘material facts,’ and

disputes are ‘genuine’ if evidence exists from which a rational person could

conclude that the position of the person with the burden of proof on the disputed

issue is correct.”3 “A defendant meets this standard when there is an absence of

evidence that rationally supports the plaintiff’s case.”4 “A plaintiff, on the other

hand, must point to admissible evidence that would be sufficient to show all

elements of a prima facie case under applicable substantive law.”5

“The 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.”6 Thus, “if the defendant in a run-

of-the-mill civil case moves for summary judgment or for a directed verdict based

on the lack of proof of a material fact, the judge must ask himself not whether he

thinks the evidence unmistakably favors one side or the other but whether a fair-

minded jury could return a verdict for the plaintiff on the evidence presented.”7

“The mere existence of a scintilla of evidence in support of the plaintiff’s position

will be insufficient; there must be evidence on which the jury could reasonably

2 Fed. R. Civ. P. 56(a).

3 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 (1986) and Celotex, 477 U.S. at 322).

4 Clark, 9 F.3d at 326.

5 Id.

6 Liberty Lobby, Inc., 477 U.S. at 252.

find for the plaintiff.”8 “The judge’s inquiry, therefore, unavoidably asks . . .

‘whether there is [evidence] upon which a jury can properly proceed to find a

verdict for the party producing it, upon whom the onus of proof is imposed.’”9 The

evidentiary record at trial, by rule, will typically never surpass that which was

compiled during the course of discovery.

“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.”10 “Regardless of whether the moving

party accompanies its summary judgment motion with affidavits, the motion may,

and should, be granted so long as whatever is before the district court demonstrates

that the standard for the entry of summary judgment, as set forth in Rule 56(c), is

satisfied.”11

Where the movant properly supports his motion, the nonmoving party, to

avoid summary judgment, must answer by setting forth “genuine factual issues that

properly can be resolved only by a finder of fact because they may reasonably be

resolved in favor of either party.”12 For movants and nonmovants alike, the

8 Id.

9 Id. (quoting Schuylkill & Dauphin Imp. Co. v. Munson, 81 U.S. 442, 447 (1871)).

10 Celotex, 477 U.S. at 323 (internal quotations omitted).

11 Id.

assertion “that a fact cannot be or is genuinely disputed” must be supported by:

(i) ”citing to particular parts of materials in the record” that go beyond “mere

allegations”; (ii) ”showing that the materials cited do not establish the absence or

presence of a genuine dispute”; or (iii) “showing . . . that an adverse party cannot

produce admissible evidence to support the fact.”13

“When opposing summary judgment, the non-movant may not rest upon

mere allegations, but rather must ‘identify those facts of record which would

contradict the facts identified by the movant.’”14 Moreover, “if a party fails to

properly support an assertion of fact or fails to properly address another party’s

assertion of fact as required by Rule 56(c), the court may . . . consider the fact

undisputed for purposes of the motion.”15 On a motion for summary judgment,

“the court need consider only the cited materials, but it may consider other

materials in the record.”16

Finally, “at the summary judgment stage the judge’s 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.”17 “There is no issue for trial unless

there is sufficient evidence favoring the nonmoving party for a jury to return a

13 Fed. R. Civ. P. 56(c)(1).

14 Port Auth. of N.Y. and N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2003) (Weis,

J.).

15 Fed. R. Civ. P. 56(e)(2).

16 Fed. R. Civ. P. 56(c)(3).

verdict for that party.”18 “If the evidence is merely colorable . . . or is not

significantly probative, summary judgment may be granted.”19

B. Undisputed Facts

With that standard outlining the Court’s framework for review, I now turn to

the undisputed facts of this matter.

1. Introduction

Dr. Harisadhan Patra and Dr. Petula Vaz signed Contracts of Appointment to

employment with Bloomsburg University on May 18, 2010.20 Dr. Patra was hired

as an Assistant Professor in Bloomsburg’s Department of Audiology and Speech

Pathology beginning August 28, 2010.21 Dr. Vaz was hired as an Associate

Professor in the same department also beginning August 28, 2010.22

The relevant collective bargaining agreement provided for annual

evaluations.23 In Patra and Vaz’s first through fourth years of service, they

received performance evaluations that followed this annual timeframe.24

2. Dr. Patra’s Evaluations and Non-Renewal

In Patra’s first-year evaluation, Dr. Ira Blake, Bloomsburg’s provost, stated

that Patra was “reported to be a satisfactory instructor by the chairperson, peers

18 Id.

19 Id. at 249-50 (internal citations omitted).

20 Doc. 71 at ¶ 1.

21 Doc. 71 at ¶ 2.

22 Doc. 71 at ¶ 3.

23 See Doc. 71 at ¶ 5.

and students,” but that “[a]ll evaluations indicate room for improvement.”25 Blake

listed ways in which Patra could improve his performance. Blake recommended

that Patra’s contract be renewed for the following year.26

In Patra’s second-year evaluation, Blake stated that Patra’s “overall

performance . . . is satisfactory.” But she noted “a need for more improvement

during the next evaluation period.”27 Blake listed five areas in which Patra

“need[ed] to seek assistance from the chairperson and peers.” Blake also

encouraged Patra to “review the topics of [certain] workshops in order to identify

some that might be helpful.”28

In Patra’s third-year evaluation, Blake stated that Patra’s cumulative student

evaluations had “plummet[ed] significantly across the board.”29 Robert Marande,

Bloomsburg’s dean, reported that students had met with him in May 2012 to raise

concerns about Patra’s teaching.30 Marande met with Patra, who “confirmed that

he would make the appropriate changes to his teaching such that these issues

would not occur again. Also, at that time Dr. Patra did not dispute any of the

concerns that the students had.”31 Marande also reported that in October 2012

students from a different Patra class “raised concerns regarding Dr. Patra’s grading

25 See Doc. 71 at ¶ 7.

26 See Doc. 71 at ¶ 8.

27 See Doc. 71 at ¶ 9.

28 See Doc. 71 at ¶ 10.

29 See Doc. 71 at ¶ 11.

30 See Doc. 71 at ¶ 12.

practices.”32 Patra met with Marande, “acknowledged that the issues raised by the

students were correct,” but did not inform Marande “on how everything was

resolved.”33 Marande described Patra’s student evaluations as “not very

impressive” and noted that on each of three evaluation questions, Patra’s rating

was over 14% below the college average.34

Marande did not recommend renewing Patra’s contract for a fourth year.35

Despite this, Blake did recommend that Patra’s contract be renewed for the

following academic year.36 Blake noted that the “plummet[ing]” of student

evaluations, “the contradictory peer observations and several student letters

(including one from an entire class cohort of 2014) raise serious concern about Dr.

Patra’s progress as an instructor.”37 With respect to Patra’s service, which had

been “primarily at the departmental level,” Blake “suggest[ed] that Dr. Patra

consult with his dean and chairperson regarding additional service opportunities at

the college and university levels.”38

In Patra’s fourth year, Bloomsburg’s Tenure Committee, by unanimous vote,

recommended that Patra’s contract not be renewed because of “deficiencies in the

areas of teaching, research, and service. In particular there are significant concerns

32 See Doc. 71 at ¶ 14.

33 See Doc. 71 at ¶ 15.

34 See Doc. 71 at ¶ 16.

35 See Doc. 71 at ¶ 17.

36 See Doc. 71 at ¶ 18.

37 See Doc. 71 at ¶ 19.

regarding professional development. Further, the majority of peer and the chair

observation[s] indicate that good instructional and professional practice is not

consistently evident in this case.”39 Bloomsburg’s Evaluation Committee also did

not recommend Patra for continued employment.40

The acting dean at the time, Jonathan Lincoln, noted in a letter to Patra that

“[t]he need for you to address certain aspects of your teaching has been noted

annually in evaluations conducted by your dean and the provost since your first

year. Your teaching evaluations have not improved and you present no evidence

of following previous recommendations to seek assistance for teaching.”41 Further,

Lincoln noted that “[y]our activity in the areas of scholarship and service are below

expectations for a fourth year faculty member in the College of Science and

Technology.”42

By letter dated January 27, 2014, Patra was advised that his contract would

not be renewed for the following year.43 His contract ended at the end of the

Spring 2014 semester – May 30, 2014.44

3. Dr. Vaz’s Evaluations and Non-Renewal

In Vaz’s first-year evaluation, Blake reported that Vaz was an “effective

instructor” but that her “[s]tudent evaluations present a varied profile and room for

39 See Doc. 71 at ¶ 21.

40 See Doc. 71 at ¶ 24.

41 See Doc. 71 at ¶ 22.

42 See Doc. 71 at ¶ 23.

43 See Doc. 71 at ¶ 25.

improvement.”45 Blake recommended that Vaz’s contract be renewed for the

following academic year while also “encourag[ing]” Vaz to “consult with her

chairperson and peers for instructional strategies in” five discrete areas.46

In Vaz’s second-year evaluation, Blake found that Vaz’s “overall

performance as a second-year probationary faculty member [was] sound.” Blake

also noted that Vaz “should continue addressing the” discrete areas that Blake had

set forth in the first-year evaluation.47 Blake recommended Vaz for a renewed

contract.48

In Vaz’s third-year evaluation, Blake found that Vaz was “reported to be an

effective instructor by the chairperson and peers for this evaluation period,” with

“improvement since the last evaluation period.”49 Blake “suggest[ed] that Dr. Vaz

continue to attend to the following areas: clarity and conciseness of explanations,

encouragement of active student learning and problem solving, and enhancement

of student’s knowledge construction and communication skills.”50 Blake also

noted that “[t]here is an expressed concern by the dean and chairperson regarding

Dr. Vaz’s non-use of research equipment and the fact that Bloomsburg University

45 See Doc. 71 at ¶ 27.

46 See Doc. 71 at ¶ 28.

47 See Doc. 71 at ¶ 29.

48 See Doc. 71 at ¶ 30.

49 See Doc. 71 at ¶ 31.

is not the institutional affiliation for her publications to date.”51 Blake

recommended that Vaz’s contract be renewed for the following academic year.52

In Vaz’s fourth year, the Tenure Committee, by unanimous vote,

recommended that Vaz’s contract not be renewed because of “deficiencies in the

area[s] of research and service, with particular concerns regarding the lack of

professional development. Further, the majority of peer and the chair observations

indicate that professional practice is not consistently evident in this case.”53

In evaluations before her fourth year, Vaz had been encouraged to review

her course content and materials for certain classes as a means of improving

student evaluations. But the Evaluation Committee reported that Vaz’s fourth-year

student evaluations indicated “an ‘average’ rating from close to 50% of our

students in key evaluation areas.” Per the Evaluation Committee, this was “not an

acceptable level of graduate-level teaching performance.”54 The Evaluation

Committee also reported that in Vaz’s evaluations before her fourth year:55

Dr. Vaz was advised to develop a line of independent and self-driven

research in her area of expertise here at Bloomsburg University that

would result in peer-reviewed journal publications and research

presentations at national and international level conferences. . . .

Though Dr. Vaz claims her area of research experience as being in

the area of pediatric swallowing disorders and has been provided

with departmental equipment funds for that area of research, she

shows no evidence of initiating or developing a body of research

51 See Doc. 71 at ¶ 33.

52 See Doc. 71 at ¶ 34.

53 See Doc. 71 at ¶ 35.

54 See Doc. 71 at ¶ 36.

investigation in this area here at Bloomsburg University. Dr. Vaz not

only denies herself scholarly progress in her claimed area of

expertise, but also potentially precludes students from pursing

research opportunities and experience in the area of pediatric

swallowing.

The Evaluation Committee found “[m]ost disconcerting . . . Dr. Vaz’s

performance (or lack thereof) in the area of Service.” As the Evaluation

Committee reported, “In her third year evaluation, Dr. Vaz was encouraged to

increase her active participation in the departmental committees on which she

serves, and was also strongly encouraged to submit her name for appointment or

election to both College and University-wide committees. Instead, since those

recommendations were made, Dr. Vaz has been absent from over 78% of

departmental meetings and provides no evidence of attempts to provide service at

College and/or University-wide levels.”56

In concluding its evaluation, the Evaluation Committee reasoned that:57

While Dr. Vaz’s teaching performance at the graduate-level may be

amenable to improvement, Dr. Vaz’s progress in scholarly activity has

been limited and her service record has been substandard. When all

three areas of evaluation (Teaching, Scholarship, and Service) are

taken into account, combined with the expectations that this

committee have for a faculty member who was hired at the rank of

Associate Professor and who has several years of university-level

teaching experience prior to coming to Bloomsburg University, it is

the unanimous opinion of this committee that Dr. Vaz is not making

acceptable progress towards tenure here at Bloomsburg University.

56 See Doc. 71 at ¶ 38.

The Evaluation Committee did not recommend Vaz for continued

employment at Bloomsburg University.58 By letter dated January 27, 2014, Vaz

was advised that her contract would not be renewed with Bloomsburg University

for the following year.59 Vaz’s contract ended at the end of the Spring 2014

semester.60

4. Dr. Patra and Dr. Vaz’s EEOC Complaints

On December 29, 2012, Patra filed two complaints with the Equal

Employment Opportunity Commission.61 On March 11, 2013, October 31, 2013,

and October 14, 2014, Patra filed additional EEOC complaints.62 Vaz filed EEOC

complaints on December 4, 2012, March 11, 2013, October 31, 2013, and October

14, 2014.63

C. Analysis

1. Title VII Employment Discrimination (Counts I, II, and

V)64

A prima facie case of employment discrimination requires the following

showing: “(1) the plaintiff belongs to a protected class; (2) he/she was qualified for

the position; (3) he/she was subject to an adverse employment action despite being

58 See Doc. 71 at ¶ 40.

59 See Doc. 71 at ¶ 41.

60 See Doc. 71 at ¶ 42.

61 Doc. 71 at ¶ 54.

62 Doc. 71 at ¶¶ 55-57; Doc. 72-16.

63 Doc. 71 at ¶¶ 58-61.

64 The Court analyzes Title VII discrimination (Plaintiffs’ Counts I and II) and Pennsylvania

Human Relations Act discrimination (Plaintiffs’ Count V) claims under the same legal

standard. Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643-44 n.4 (3d Cir.

qualified; and (4) under circumstances that raise an inference of discriminatory

action, the employer continued to seek out individuals with qualifications similar

to the plaintiff's to fill the position.”65 “To prevail on a claim of disparate

treatment under Title VII . . . the plaintiff must demonstrate purposeful

discrimination.”66

An adverse employment action is “one which is serious and tangible enough

to alter an employee’s compensation, terms, conditions, or privileges of

employment.” It is “a significant change in employment status, such as hiring,

firing, failing to promote, reassignment with significantly different responsibilities,

or a decision causing a significant change in benefits.” A court may find an

adverse action if “an employer’s act significantly decreases an employee’s earning

potential and causes significant disruption in his or her working conditions.” By

contrast, an employment action that involves “no reduction in pay and no more

than a minor change in working conditions,” and that “does not involve a demotion

in form or substance, cannot rise to the level of a materially adverse employment

action.”67

Here, the potential adverse actions are Defendants’ non-renewal of Patra and

Vaz’s employment contracts, as well as the Evaluation Committee’s negative

fourth-year performance evaluations of Patra and Vaz, which factored into the non-

65 Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003).

66 Weldon v. Kraft, Inc., 896 F.2d 793, 796 (3d Cir. 1990).

67 Torres v. Deblasis, 959 F. Supp. 2d 772, 780 (E.D. Pa. 2013) (citations and quotations

renewal of their contracts.68 Plaintiffs complain of other perceived adverse

actions,69 but, unfortunately, their assertions are misplaced.70 For example,

reducing laboratory space is not an adverse employment action.71 Teaching

assignments that a plaintiff merely sees as unfair or undesirable are not adverse

employment actions.72 Being criticized or spoken to in a harsh, derogatory manner

does not constitute an adverse employment action.73

But even assuming the existence of a prima facie case of discrimination,

Plaintiffs here have not shown that Defendants’ proffered non-discriminatory

reasons for the evaluations and non-renewals were a pretext for discrimination. To

discredit a proffered reason, a plaintiff must “demonstrate such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s

proffered legitimate reasons for its action that a reasonable fact finder could find

68 Defendants argue that these evaluations should not constitute adverse actions, but, as the

above facts show, these evaluations were clearly accompanied by the “tangible job

consequences” of Plaintiffs’ non-renewal. Shenk v. Pennsylvania, No. 1:11-CV-1238, 2013

WL 1969311, at *9 (M.D. Pa. May 13, 2013). The first-year through third-year evaluations

are distinguishable because, as Defendants point out, both Patra and Vaz had their contracts

renewed after their third year of teaching.

69 See Doc. 103 at 10-11.

70 The Court acknowledges the United States Court of Appeals for the Third Circuit’s statement

that “the plaintiffs alleged numerous adverse actions in their counterstatement of facts.”

Patra v. Pennsylvania State Sys. of Higher Educ., 779 F. App’x 105, 107 (3d Cir. 2019).

Based on the record before the Court at this time, as well as the authorities cited below, the

Court is compelled to hold that only the non-renewals and evaluations qualify as adverse

actions.

71 Summy-Long v. Pennsylvania State Univ., 226 F. Supp. 3d 371, 417 (M.D. Pa. 2016), aff’d,

715 F. App’x 179 (3d Cir. 2017).

72 Dorsett v. Bd. of Trustees for State Colleges & Universities, 940 F.2d 121, 123 (5th Cir.

1991).

73 Yarnall v. Philadelphia Sch. Dist., 57 F. Supp. 3d 410, 421 (E.D. Pa. 2014) (collecting

them unworthy of credence, and hence infer that the employer did not act for the

[stated] non-discriminatory reasons.”74 The plaintiff must “point to some evidence,

direct or circumstantial, from which a factfinder could reasonably either (1)

disbelieve the employer’s articulated legitimate reasons; or (2) believe that an

invidious discriminatory reason was more likely than not a motivating or

determinative cause of the employer's action.”75 A plaintiff must “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.”76

Plaintiffs have not proven by a preponderance of the evidence that the

legitimate reasons offered by Defendants were a pretext for discrimination.

Plaintiffs have identified insensitive race-based comments and statements made by

Defendants.77 Yet the Court finds that these comments “are too isolated for a

factfinder to reasonably find a nexus between the comments and any potential

unlawful discrimination.”78 Further, Plaintiffs point out instances of Defendants

holding non-Indian / non-Hindu faculty members to a different standard. But “[i]n

the absence of such a significant degree of difference in qualifications that may

arouse a suspicion of discrimination, [a district court should] defer to the

74 Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994).

75 Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1067 (3d Cir. 1996)

76 Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).

77 See Doc. 103-7 at ¶ 45A.

employer’s hiring decisions.”79 The Court fails to find “such a significant degree

of difference” here.

2. Title VII Retaliation (Counts III and V)80

“A 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 employee’s protected activity; and (3) a causal

connection between the employee’s protected activity and the employer’s adverse

action.”81 “To establish the requisite causal connection a plaintiff usually must

prove either (1) an unusually suggestive temporal proximity between the protected

activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled

with timing to establish a causal link.”82

“Title VII retaliation claims must be proved according to traditional

principles of but-for causation, not the lessened causation test.”83 “This requires

proof that the unlawful retaliation would not have occurred in the absence of the

alleged wrongful action or actions of the employer.”84

Defendants argue that Patra and Vaz cannot prove their prima facie case of

retaliation because they have not proven a causal connection between (a) their

79 Steele v. Pelmor Labs. Inc., 642 F. App’x 129, 135 (3d Cir. 2016).

80 As before, the Court treats Title VII and PHRA claims under the same legal standard.

81 E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 449 (3d Cir. 2015) (Hardiman, J.) (internal

quotation marks omitted).

82 Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007).

83 Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 360 (2013).

filing of EEOC complaints against Bloomsburg and (b) the decision not to renew

their contracts.85 According to Defendants, the gist of their rationale was that Patra

and Vaz “performed poorly and failed to meet contractual obligations.”86

Plaintiffs have failed to prove the requisite causal connection. With respect

to a “pattern of antagonism,” any “disciplinary actions” that Plaintiffs have offered

in support of a causation finding do not suffice because Plaintiffs have not offered

a “basis for linking the disciplinary actions to [their] [protected activity].”87

Further, Plaintiffs have not presented a “consistent, continuous course of

discriminatory treatment” following the filing of their EEOC complaints.88

Finally, the Court finds that the ten months between Plaintiffs’ first filing of their

EEOC complaints and the Evaluation Committee’s fourth-year negative

evaluations is not an “unusually suggestive temporal proximity.”89

3. First Amendment Retaliation (Count VI)

A First Amendment retaliation claim requires “(1) constitutionally protected

conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from

exercising his constitutional rights, and (3) a causal link between the

85 See Doc. 73 at 9-11.

86 Doc. 73 at 16.

87 Wells v. Retinovitreous Associates, Ltd., 2016 WL 3405457, *3 (E.D. Pa. June 21, 2016) (J.

Sánchez) (citing Barton v. MHM Correctional Servs, Inc., 454 F. App’x 74, 79 (3d Cir.

2011).

88 Wright v. Shore Mem’l Hosp., No. CIV. 11-5583 JBS/AMD, 2013 WL 6080072, at *12

(D.N.J. Nov. 19, 2013).

89 See, e.g., Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 198 (3d Cir. 2015) (ten months

did not qualify as an “unusually suggestive temporal proximity”); LeBoon v. Lancaster

constitutionally protected conduct and the retaliatory action.”90 Speech is

“protected conduct” when “(1) in making it, [the plaintiff] spoke as a citizen, (2)

the statement involved a matter of public concern, and (3) the government

employer did not have an adequate justification for treating the employee

differently from any other member of the general public as a result of the statement

he made.”91

With respect to speaking as a citizen, when “public employees make

statements pursuant to their official duties, the employees are not speaking as

citizens for First Amendment purposes, and the Constitution does not insulate their

communications from employer discipline.”92 The critical question, here, is

“whether the speech at issue is itself ordinarily within the scope of an employee's

duties, not whether it merely concerns those duties.” Further, “though speech may

be protected even if it concerns information related to or learned through public

employment, an employee does not speak as a citizen if the mode and manner of

his speech were possible only as an ordinary corollary to his position as a

government employee.”93 As the United States Court of Appeals for the Third

90 Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citations omitted).

91 Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir. 2006) (quotations omitted).

92 Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Plaintiffs argue that per Demers v. Austin,

746 F.3d 402, 406 (9th Cir. 2014), Garcetti should not control my analysis. I disagree for

two reasons. First, Demers is a decision from the United States Court of Appeals for the

Ninth Circuit and is not binding on this Court. Second, the court in Demers limited its

holding to speech concerning “teaching and academic writing.” Id. at 411. Plaintiffs have

made no showing that their speech here concerned their teaching or academic writing.

93 Javitz v. Luzerne Cty., No. 3:15-CV-2443, 2018 WL 1545589, at *9 (M.D. Pa. Mar. 29,

Circuit analyzed in a recent decision, it is important whether “[w]ho [the plaintiff]

spoke to, what she spoke about, and why she spoke at all” fell “outside the scope of

her primary job duties and evidence citizen speech.”94 “A public employee’s

speech involves a matter of public concern if it can be fairly considered as relating

to any matter of political, social, or other concerns to the community.”95

To show the requisite “causal link,” a plaintiff must show that their

“protected activity was a substantial motivating factor in the state actor’s decision

to take the adverse action.”96 The plaintiff is not required to show that the

protected activity was the sole, dominant, or primary factor in the decision.97

“Defendants can counter this “by showing that [they] would have taken the same

action even in the absence of the protected conduct.”98 At that point, Plaintiffs

may only prevail by “discrediting [Defendants’] proffered reason for [the

employment action], . . . or by adducing evidence . . . that discrimination was more

likely than not a motivating or substantial cause of the adverse action.”99

I find that Plaintiffs have not shown that their protected activity –

commentary on Bloomsburg’s graduation rates – was “a substantial motivating

2018), and aff’d in part, rev’d in part and remanded sub nom. Javitz v. Cty. of Luzerne, 940

F.3d 858 (3d Cir. 2019).

94 Javitz v. Cty. of Luzerne, 940 F.3d 858, 865 (3d Cir. 2019).

95 Majewski v. Fischi, 372 F. App’x 300, 303 (3d Cir. 2010).

96 Brightwell v. Lehman, 637 F.3d 187, 194 (3d Cir. 2011) (citations omitted).

97 Suppan v. Dadonna, 203 F.3d 228, 236 (3d Cir. 2000) (citing Village of Arlington Heights v.

Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977)).

98 Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir. 2002).

factor” in Defendants’ decisions to issue the fourth-year negative evaluations and

ultimately not renew Patra and Vaz’s contracts. Just as Plaintiffs have failed to

show that Defendants’ proffered legitimate reasons for their actions were a pretext

for discrimination based on race, religion, or national origin, Plaintiffs have failed

to show that Defendants’ proffered legitimate reasons for their actions were a

pretext for retaliating against Plaintiffs’ commentary on graduation rates.100 This

absence of causation is dispositive.

4. Civil Conspiracy (Count VII)

A Section 1983 conspiracy claim requires “(1) the existence of a conspiracy

involving state action; and (2) a deprivation of civil rights in furtherance of the

conspiracy by a party to the conspiracy.”101 A conspiracy without the

accompanying deprivation of civil rights does not yield liability.102 A conspiracy

itself requires “a combination of two or more persons to do a criminal act, or to do

a lawful act by unlawful means or for an unlawful purpose.”103

Plaintiffs’ conspiracy claim fails for two independent reasons. First, as I

explain in the surrounding analysis, Defendants have not deprived Plaintiffs of

their civil rights. Second, Defendants have not conspired as a matter of law

100 See Gorum v. Sessoms, 561 F.3d 179, 188 (3d Cir. 2009) (plaintiff could only make inference

that defendant was aware of protected activity); O’Connell v. Williams, 241 F. App’x 55, 58

(3d Cir. 2007) (“Because Appellant has not demonstrated that these actions would not have

been taken against him had he not [engaged in protected activity], we agree with the

determination of the District Court that he has not stated a claim for retaliation.”).

101 Marchese v. Umstead, 110 F. Supp. 2d 361, 371 (E.D. Pa. 2000).

102 See Holt Cargo Sys. Inc. v. Delaware River Port Auth., 20 F.Supp.2d 803, 843 (E.D. Pa.

1998)

because they were not acting as “two or more persons”—they were all acting as

agents of Bloomsburg University, an entity within the Pennsylvania State System

of Higher Education. “Conspiracy requires an agreement—and in particular an

agreement to do an unlawful act—between or among two or more separate

persons. When two agents of the same legal entity make an agreement in the

course of their official duties, however, as a practical and legal matter their acts are

attributed to their principal. And it then follows that there has not been an

agreement between two or more separate people.”104

5. Hostile Work Environment

Though Plaintiffs have not listed hostile work environment as a formal

claim, the parties have, nonetheless, briefed the issue. “To succeed on a hostile

work environment claim, the plaintiff must establish that 1) the employee suffered

intentional discrimination because of his/her [race or religion], 2) the

discrimination was severe or pervasive, 3) the discrimination detrimentally

affected the plaintiff, 4) the discrimination would detrimentally affect a reasonable

person in like circumstances, and 5) the existence of respondeat superior liability.”

“The first four elements establish a hostile work environment, and the fifth

determines employer liability.”105 “The statute prohibits severe or pervasive

harassment; it does not mandate a happy workplace. Occasional insults, teasing, or

episodic instances of ridicule are not enough; they do not ‘permeate’ the workplace

104 Ziglar v. Abbasi, 137 S. Ct. 1843, 1867 (2017).

and change the very nature of the plaintiff's employment.” Factors to be weighed

include “the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee's work performance.” No one factor is

dispositive, and the analysis must focus on the “totality of the circumstances.”106

Defendants argue that Patra and Vaz have not established that any comments

made about Patra and Vaz’s race and religion were severe or pervasive enough to

change the terms and conditions of their employment. Per Defendants, this failure

dooms Patra and Vaz’s hostile work environment claim.107 I find that Defendants

are correct; the comments that Plaintiffs list were “isolated” and “sporadic” and did

“not demonstrate the pervasive atmosphere of harassment required to prove a Title

VII violation.”108

6. Plaintiffs’ State Law Claims (Counts IV, V, VIII, IX, X, and

XI)

Under Pennsylvania statute, sovereign immunity bars claims brought against

the Commonwealth, its agencies, and its employees when they are acting within

the scope of their office or employment.109 Sovereign immunity applies to claims

106 Jensen v. Potter, 435 F.3d 444, 451-52 (3d Cir. 2006) (Alito, J.).

107 See Doc. 73 at 16-17.

108 King v. City of Philadelphia, 66 F. App’x 300, 305 (3d Cir. 2003).

that plaintiffs assert against Commonwealth officials in their individual capacities.

And it encompasses liability for intentional torts.110

An employee’s actions are within the scope of their employment if the

actions are of the kind the employee was employed to perform, occurred

substantially within the employee’s authorized time and space limits, and are

“actuated, at least in part, by a purpose to serve the master.”111 “Even willful

misconduct does not vitiate a Commonwealth employee’s immunity if the

employee is acting within the scope of his employment, including intentional acts

which cause emotional distress.”112

Defendants argue that sovereign immunity protects them from Patra and

Vaz’s state law claims. According to Defendants, Defendants were within the

scope of their employment during all of these events, and that triggers the

protections of sovereign immunity.113 Plaintiffs’ opposition argument is disjointed

and difficult for the Court to interpret. It appears to rely on the Eleventh

Amendment of the United States Constitution, which provides a different grant of

immunity than does the Pennsylvania statute I cite above.114 Further, Plaintiffs’

110 See Shoop v. Dauphin Cty., 766 F. Supp. 1327, 1334 (M.D. Pa.), aff’d, 945 F.2d 396 (3d Cir.

1991).

111 Johnson v. Townsend, 314 F. App’x 436, 440 (3d Cir. 2008)

112 Cooper v. Beard, No. CIV.A. 06-0171, 2006 WL 3208783, at *16 (E.D. Pa. Nov. 2, 2006).

113 See Doc. 73 at 23-24.

114 Plaintiffs’ statement that the Pennsylvania legislature has waived sovereign immunity for

Pennsylvania Human Relations Act claims is incorrect in this context. “[T]he legislature

waived the Commonwealth's immunity from suit under the PHRA—but only in state court.”

Nelson v. Com. of Pennsylvania Dep’t of Pub. Welfare, 244 F. Supp. 2d 382, 391 (E.D. Pa.

opposition argument does not contest that Defendants were acting within the scope

of their employment during the relevant events here.115

Sovereign immunity bars Plaintiffs’ Count IV (aiding and abetting

discrimination and retaliation pursuant to the PHRA), Count V (discrimination and

retaliation pursuant to the PHRA), Count VIII (retaliation in violation of

Pennsylvania’s Whistleblower Law), Count IX (defamation), Count X (intentional

infliction of emotional distress), and Count XI (loss of consortium).

III. CONCLUSION

For the above reasons, Defendants’ motion for summary judgment is

granted. An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge