NELATURY v. THE PENNSYLVANIA STATE UNIVERSITY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

SUDARSHAN NELATURY, )

Plaintiff, ) C. A. No. 1:21-cv-279

)

v. )

RE: Motion to Dismiss Amended

)

Complaint and Motion for Leave to File

THE PENNSYLVANIA STATE )

Second Amended Complaint (ECF Nos.

UNIVERSITY, RALPH FORD, )

10 & 19)

Defendants.

MEMORANDUM OPINION

Pending before this Court is a Motion to Dismiss the Amended Complaint filed by

Defendants The Pennsylvania State University and Dr. Ralph Ford. ECF No. 10. Also pending is

a Motion for Leave to File Second Amended Complaint by Plaintiff Dr. Sudarshan Nelatury.

ECF No. 19. Each of these Motions will be granted in part and denied in part.

I. RELEVANT PROCEDURAL HISTORY

Dr. Nelatury brings civil rights and breach of contract claims against The Pennsylvania

State University (PSU) and Dr. Ralph Ford, Chancellor and Dean of the college where Dr.

Nelatury teaches. The twenty-eight counts in the complaint can be separated into six categories:

(a) deprivation of free speech rights in violation of the First Amendment of the United States

Constitution and 42 U.S.C § 1983 (Count 1); (b) discrimination on the basis of race, national

origin, age, or sex in violation of Title VII, 42 U.S.C. § 2000e; the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. § 621; Title IX, 20 U.S.C. § 1681; and the Pennsylvania

Human Relations Act (PHRA), 43 P.S. § 951 (Counts 5, 8, 11, 14, 20, 23, 26); (c) retaliation in

violation of the same statutes as the discrimination claims (Counts 6, 9, 12, 15, 21, 24, 27);

(d) hostile work environment in violation of the same statutes as the discrimination and

retaliation claims (Counts 7, 10, 13, 16, 22, 25, 28); (e) employment discrimination, retaliation,

and hostile work environment in violation of 42 U.S.C § 1981 (Counts 2, 3, 4); and (f) breach of

contract in violation of Pennsylvania common law (Counts 17, 18, 19).

Dr. Nelatury brought these claims in his First Amended Complaint. ECF No. 8. The

Defendants filed a Motion to Dismiss, Dr. Nelatury filed a brief in opposition, and Defendants

filed a reply. ECF Nos. 10, 13, 16. Dr. Nelatury filed a Motion for Leave to File Second

Amended Complaint, which Defendants opposed. ECF Nos. 19, 28. Oral argument was held on

July 18, 2022. ECF No. 33. The Motions are ripe for disposition by this Court.

II. MOTION TO DISMISS STANDARD

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal

sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a

motion to dismiss, the court is not opining on whether the plaintiff will likely prevail on the

merits; rather, the plaintiff must only present factual allegations sufficient to “nudge[]” the

claims “across the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). A complaint should be dismissed pursuant to Rule 12(b)(6) only if it fails to allege

enough facts to state a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Twombly, 550 U.S. at 570). While a complaint does not need detailed

factual allegations to survive a motion to dismiss, it must provide more than labels and

conclusions. Twombly, 550 U.S. at 555. A “formulaic recitation of the elements of a cause of

action will not do.” Id. Nor does the Court accept legal conclusions disguised as factual

allegations. Id.

Following Twombly and Iqbal, district courts take a two-step approach to ruling on a

motion to dismiss. “First, the factual and legal elements of a claim should be separated.” Fowler

v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The well-pleaded facts are accepted as

true, while the legal conclusions are disregarded. Id. at 210–11. “Second, a District Court must

then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff

has a ‘plausible claim for relief.’” Id. at 211 (quoting Iqbal, 556 U.S. at 679). This determination

is “a context-specific task that requires the reviewing court to draw on its judicial experience and

common sense.” Iqbal, 556 U.S. at 679.

III. THE ALLEGATIONS OF THE AMENDED COMPLAINT

Dr. Nelatury is an Associate Professor of electrical and computer engineering at the

Behrend College (PSU-Behrend), a branch campus of PSU. ECF No. 8 ¶¶ 15, 18. He is of Indian

national origin, male, and over forty years of age. Id. ¶¶ 20, 269, 309. His claims arise from the

fact that he has not been promoted from Associate Professor to Full Professor.

Dr. Nelatury started teaching at PSU-Behrend in 2003. Id. ¶ 22. His primary research

areas include electrical engineering, electromagnetics, signal processing, and engineering

education. Id. ¶ 29. He has authored eight books and thirty-seven peer-reviewed journal papers

and has over thirty-eight years of teaching experience. Id. ¶¶ 30, 143. Over the past eighteen

years, Dr. Nelatury has published more papers in traditional peer-reviewed journals than any

other faculty member at PSU-Behrend. Id. ¶ 32.

Dr. Nelatury has also co-authored forty-eight papers published in open access journals.

Id. ¶ 34. Open access journals contain peer-reviewed scholarship that is available free on the

internet. Id. ¶¶ 113, 120. Compared to traditional publications, open access scholarship

eliminates technological and financial barriers, allows knowledge to be disseminated more

quickly to a wider audience, and is bound by fewer length restrictions, which permits more

detailed descriptions of experiments and results. Id. ¶¶ 111–14.

Dr. Nelatury applied for promotion to Full Professor during the 2018–19 academic year,

but Dr. Ford, the Dean and Chancellor of PSU-Behrend, recommended against Dr. Nelatury’s

promotion in February 2019. Id. ¶¶ 26, 49, 59. Despite the college ad hoc committee

recommending that Dr. Nelatury be promoted over a much younger, non-Indian, female faculty

member, Dr. Ford recommended that the other faculty member be promoted. Id. ¶ 67. Almost a

year later, in January 2020, Dr. Nelatury filed a petition with the PSU Senate Committee on

Faculty Rights and Responsibilities alleging procedural unfairness because Dr. Ford did not

allow him to supplement his dossier of academic work. Id. ¶¶ 50, 70, 73. In June 2020, the

Committee found in Dr. Nelatury’s favor and ruled that Dr. Nelatury would be allowed to

supplement his dossier and reapply during the 2020-2021 academic year. Id. ¶¶ 75, 77.

Dr. Nelatury filed an administrative charge with the U.S. Equal Employment Opportunity

Commission (EEOC) in November 2020 alleging, among other things, discrimination on the

basis of race, national origin, and gender. Id. ¶ 125.

Dr. Nelatury reapplied and was again recommended for promotion by the college-wide

ad hoc committee during the 2020-21 academic year. Id. ¶ 128. However, Dr. Ford again did not

recommend Dr. Nelatury for promotion. Id. ¶ 129. Dr. Ford blocked Dr. Nelatury’s progress

toward promotion by not forwarding Dr. Nelatury’s application to the University Promotion and

Tenure Review Committee. Id. ¶ 131.

Dr. Ford’s evaluations of Dr. Nelatury’s scholarship focused on his work in open access

publications. Id. ¶ 135. Dr. Ford discounted Dr. Nelatury’s open access output, implying that any

author could be published in open access publications. Id. ¶ 159. By not treating open access

work the same as traditionally published work, Dr. Ford punished Dr. Nelatury for publishing in

open access fora and making his work more available to the public. Id. ¶¶ 159, 162. In addition,

Dr. Ford did not recommend Dr. Nelatury for promotion during 2020–21 because Dr. Nelatury

had filed an internal grievance and an administrative complaint. Id. ¶ 149.

Dr. Ford also ignored Dr. Nelatury’s service on university committees and his high scores

for student reviews of his teaching effectiveness. Id. ¶¶ 55, 97–98. When Dr. Nelatury received

lower scores, this was because he was assigned low-level courses that often receive poor scores.

Id. ¶¶ 99–102, 184. Non-Indian faculty members were not given teaching assignments that

lowered their scores. Id. ¶¶ 100, 184.

The promotion review process has created stress for Dr. Nelatury. Id. ¶ 90. He has been

treated for a heart problem and depression. Id. ¶ 92. He has not received the salary increase that

would have come with promotion. Id. ¶¶ 413, 421, 443.

PSU’s Policy AC61, which Dr. Nelatury attached to his complaint, is titled “Faculty

Contracts.” ECF No. 8-4. This policy is not itself a contract, but it “establish[es] the terms and

conditions for making standing appointment offers to, and contracting the services of, individuals

classified as academic.” Id. at 1. Policy AC61 provides that faculty contracts “should include . . .

[a] statement that provisional appointments and appointments with tenure are subject to the terms

and conditions of University tenure policies.” Id. at 2–3; ECF No. 8 at ¶ 395.

Dr. Nelatury also attached to his complaint Policy AC23, “Promotion and Tenure

Procedures and Regulations.” ECF No. 8-1. The policy’s initial date is July 1, 1952. Id. at 1. The

version attached to the complaint became effective in 2018, after Dr. Nelatury was hired in 2003.

Id.; ECF No. 8 ¶ 22. This document provides the procedures for review and promotion and

specifies that “decisions to promote should be based on performance and scholarly achievement

in the light of the general criteria . . . rather than by time in rank.” ECF No. 8-1 at 10; ECF No. 8

at ¶ 407.

Finally, Dr. Nelatury attached Policy AC02, “Open Access to Scholarly Articles,” which

became effective in 2020, ECF No. 8-2; ECF No. 8 at ¶ 116, and “Open Access Policy

Recommendations” by the University Faculty Senate Committee on Libraries, Information

Systems, and Technology,” which is dated 2019, ECF No. 8-3; ECF No. 8 at ¶ 117. These latter

two documents are not mentioned in Policy AC61, “Faculty Contracts.” See ECF No. 8-4.

IV. ANALYSIS

A. First Amendment Claim

In Count 1, Dr. Nelatury alleges that PSU and Dr. Ford abridged his free speech rights in

violation of 42 U.S.C. § 1983. To state a § 1983 claim, he must allege that Defendants (1) acted

under color of law, (2) violated his First Amendment rights, and (3) caused him injury.

Schneyder v. Smith, 653 F.3d 313, 319 (3d Cir. 2011). The specific First Amendment violation

Dr. Nelatury alleges is retaliation: that Defendants violated his right to free speech by denying

him a promotion because he published articles in open access fora (as opposed to traditional

peer-reviewed publications). To state a retaliation claim, “a plaintiff must allege . . . that the

activity in question is protected by the First Amendment” and “was a substantial factor in the

alleged retaliatory action.” Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006).

Both Defendants argue that publishing in open access fora is not expressive conduct

entitled to First Amendment protection. They also argue that Dr. Nelatury, as a public employee,

must allege that his choice to place his scholarly work in open access publications addressed a

matter of public concern. This, they contend, he has failed to do. Finally, Dr. Ford argues that the

First Amendment claim against him should be dismissed because he is entitled to qualified

immunity. Each of Defendants’ three arguments is addressed in turn.

1. Expressive Conduct Constituting Speech

Dr. Nelatury alleges Defendants retaliated against him because he published scholarly

work in a particular forum. Defendants argue that the claim should be dismissed because Dr.

Nelatury’s forum choice is not entitled to First Amendment protection. No controlling case has

definitively settled whether an academic’s act of choosing a forum in which to publish is

protected conduct. Based on principles articulated by the Supreme Court and Third Circuit in

“expressive conduct” cases, however, I conclude that Dr. Nelatury’s decision to publish in open

access fora is protected expressive conduct.

The First Amendment does not shield “an apparently limitless variety of conduct” by

which a person “intends . . . to express an idea.” United States v. O’Brien, 391 U.S. 367, 376

(1968). Conduct is protected if “the nature of the activity, combined with the factual context and

environment in which it was undertaken, shows that the activity was sufficiently imbued with

elements of communication.” Tenafly Eruv Ass’n v. Borough of Tenafly, 309 F.3d 144, 158 (3d

Cir. 2002) (internal quotation marks, citation, and alteration omitted). Protected expressive

conduct includes activities like flag-burning, flag-displaying, and armband-wearing. Id. at 159

(collecting cases).1

Conduct is expressive if the actor “inten[ded] to convey a particularized message” and

“the likelihood was great that the message would be understood by those who viewed it.” Texas

v. Johnson, 491 U.S. 397, 404 (1989) (citation omitted). Accepting the allegations in the

complaint as true, Dr. Nelatury’s choice to publish in open access fora is expressive. He alleges

1 Sorrell v. IMS Health Inc., which Dr. Nelatury cites, is inapplicable because it involved literal

“speech.” 564 U.S. 552, 570 (2011). Determining whether the First Amendment protects drug

manufacturers’ “creation and dissemination of information” about doctors’ prescribing habits,

id., is different from determining whether conduct (here, the choice of a publication forum) is

expressive and therefore protected.

his intent to convey a message: his “motive[] in publishing through open access fora was to make

his scholarship available more widely to the general public.” ECF No. 8 ¶ 158. Further, his

allegations make it plausible his audience would likely understand his choice of forum to convey

that message. PSU, among other universities, has endorsed the use of open access publication to

increase access to academic scholarship. Id. ¶¶ 115–18. PSU has stated that adopting an open

access policy furthers “its mission of teaching, research, and public service.” Id. ¶ 116.

This case is distinguishable from those cited by Defendants. In one case, a panel of the

Third Circuit rejected a teacher’s claim that scheduling therapy sessions for a student,

transporting the student to the sessions, and attending them with the student was “expressive.”

Montanye v. Wissahickon Sch. Dist., 218 F. App’x 126, 129–31 (3d Cir. 2007). But Dr.

Nelatury’s choice of open access publication in the context of an alleged movement in favor of

expanding access to academic scholarship has more communicative weight than Montanye’s

extracurricular assistance of a disabled student. In a published opinion, a prison employee

challenged a regulation mandating display of the American flag on his uniform sleeve. Troster v.

Pa. State Dep’t of Corr., 65 F.3d 1086, 1088 (3d Cir. 1995). Unlike Troster’s “bare assertion”

that “passively wearing the flag patch” was expressive, id. at 1091, Dr. Nelatury’s allegations

about motive and context show his conduct was plausibly “demonstrative of an attitude or

belief,” id. at 1091, 1092 n.4.

These allegations also distinguish this case from Tenafly. There, Orthodox Jewish

individuals challenged an ordinance that prevented them from attaching lechis (thin black strips

of plastic) to utility poles. 309 F.3d at 154. The lechis designated areas in which the Jewish

residents could permissibly push or carry objects on the Sabbath. Id. at 151–52. The lechis were

not expressive because they served a “purely functional, non-communicative purpose

indistinguishable, for free speech purposes, from that of a fence surrounding a yard.” Id. at 162.

Dr. Nelatury’s choice of open access publication, in the context of a movement to make

scholarship more publicly available, is imbued with elements of communication that the lechis

were not. Thus, Dr. Nelatury pleads sufficient facts that his act of publishing in open access fora

was “expressive conduct” protected by the First Amendment.

2. Public Employee

Dr. Nelatury works at PSU, so he is a public employee, and “[n]ot all First Amendment

activity is constitutionally protected in the public workplace. ‘When a citizen enters government

service, the citizen by necessity must accept certain limitations on his or her freedom.’” Palardy

v. Twp. of Millburn, 906 F.3d 76, 81 (3d Cir. 2018) (quoting Garcetti v. Ceballos, 547 U.S. 410,

418 (2006)). A public employee bringing a First Amendment claim must demonstrate that he

(1) “spoke as a citizen,” not “pursuant to [his] official duties,” (2) on “a matter of public

concern,” and (3) the employer “did not have an adequate justification for treating the employee

differently from any other member of the general public.” Id. (internal quotation marks and

citations omitted). Defendants challenge only the second prong: whether Dr. Nelatury spoke on a

matter of public concern.2

2 As Defendants acknowledge, it remains an open question before both the Third Circuit and the

Supreme Court whether Garcetti—which added prong one, the pursuant-to-official-duties

analysis, to the test for First Amendment retaliation against public employees—“would apply in

the same manner to a case involving speech related to scholarship or teaching.” Gorum v.

Sessoms, 561 F.3d 179, 186 (3d Cir. 2009) (quoting Garcetti, 547 U.S. at 425). Numerous

Circuits have expressly declined to apply Garcetti in such cases. See, e.g., Adams v. Trs. of the

Univ. of N.C.-Wilmington, 640 F.3d 550, 562–64 (4th Cir. 2011). Defendants say that “Dr. Ford

could reasonably have believed that Plaintiff’s decision to publish in open access journals was

not protected, because publishing research in journals was part of Plaintiff’s official duties.” ECF

No. 11 at 9 n.2. But they stop short of arguing that Dr. Nelatury was required and failed to allege

that he was speaking as a citizen. Therefore, this Court will not dismiss the claim based on the

“official duty” prong.

Dr. Nelatury alleges that “[a]cademic freedom” and his engineering “academic work” are

of interest to the general public. ECF No. 8 ¶¶ 163–64. The latter is irrelevant because, as

Defendants note, Dr. Nelatury alleges his conduct of publishing, not the content of his research,

triggered the First Amendment violation. In any event, the alleged message expressed by Dr.

Nelatury’s conduct easily fits the bill for being a matter of public concern. Widespread access to

academic scholarship (or lack thereof) is “a social or political concern of the community”

relating to “broad social or policy issues.” Borden v. Sch. Dist. of Twp. of E. Brunswick, 523 F.3d

153, 170 (3d Cir. 2008) (citation omitted) (collecting cases). And Dr. Nelatury’s speech on the

matter extended into a public forum. Id. at 171.

Thus, Dr. Nelatury pleads sufficient facts that his act of publishing in open access fora

addressed a matter of public concern.

3. Qualified Immunity

Dr. Ford argues that the First Amendment claim against him, individually, should be

dismissed under the qualified immunity doctrine. “Qualified immunity shields government actors

from suit ‘insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.’” Zaloga v. Borough of Moosic, 841

F.3d 170, 174 (3d Cir. 2016) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A right

is “clearly established” when “every reasonable official would have understood that what he is

doing violates that right.” Id. at 175 (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)).

That is to say, “existing precedent must have placed the statutory or constitutional question

beyond debate.” Id. (quoting Reichle, 566 U.S. at 664).

“[T]he Supreme Court has repeatedly stressed the importance of resolving immunity

questions at the earliest possible stages of litigation.” Curley v. Klem, 298 F.3d 271, 277 (3d Cir.

2002). A court may dismiss a complaint based on qualified immunity when “the immunity is

established on the face of the complaint.” Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001)

(quoting Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996)). Dr. Nelatury’s allegations about

Dr. Ford’s actions—recommending against promoting Dr. Nelatury, ¶¶ 59, 86, 129; ignoring Dr.

Nelatury’s traditional journal scholarship, ¶ 135; and punishing Dr. Nelatury for publishing in

open access fora, ¶ 162—are all accepted as true. Fowler, 578 F.3d at 210–11. Thus, no disputes

of fact prevent the Court from ruling now on the purely legal issues raised by Dr. Ford’s

qualified immunity defense.

As discussed above, Dr. Nelatury plausibly alleges a violation of his First Amendment

right to free speech. However, the specific right at issue here—to convey a message through the

expressive conduct of choosing a publication forum—is not clearly established. No authority

binding on this Court has extended First Amendment protection of this right to public university

professors, nor squarely held that such protection does not apply. See Leveto, 258 F.3d at 172–73

(granting motion to dismiss based on qualified immunity in a Fourth Amendment case where

authorities neither applied the rule in question, nor held it did not apply).

The cases cited above led this Court to conclude that Dr. Nelatury’s forum choice was

expressive conduct. But none of these cases deal with academics or publishing, much less

academic publishing. See O’Brien, 391 U.S. at 369 (Selective Service registrants’ burning of

draft cards); Tenafly, 309 F.3d at 154 (Orthodox Jews’ attaching of lechis to utility poles);

Johnson, 491 U.S. at 399 (protestor’s burning of an American flag); Montanye, 218 F. App’x at

129–31 (public school teacher’s assistance of a student receiving therapy); Troster, 65 F.3d at

1088 (prison guard’s wearing of an American flag patch on his uniform). These cases permit a

court to conclude, through reasoning by analogy and distinction, that Dr. Nelatury’s conduct is

expressive. They do not, however, establish that “every reasonable official” in Dr. Ford’s

position “would have understood that what he is doing violates” a professor’s First Amendment

rights. Zaloga, 841 F.3d at 175 (quoting Reichle, 566 U.S. at 664).

Because any violation did not involve a clearly established right, Dr. Nelatury’s First

Amendment claim against Dr. Ford will be dismissed. However, PSU has not invoked qualified

immunity, and the First Amendment claim against it will not be dismissed.

B. Discrimination Claims Under Title VII, Title IX, the ADEA, and the PHRA

Dr. Nelatury alleges that he experienced discrimination on the basis of race/national

origin in violation of Title VII (Count 5) and the PHRA (Count 20); discrimination on the basis

of age in violation of the ADEA (Count 8) and the PHRA (Count 23); and discrimination on the

basis of sex in violation of Title IX (Count 11), Title VII (Count 14), and the PHRA (Count 26).

These claims are partly based on occurrences during the 2018–19 academic year. See, e.g., ECF

No. 8 ¶¶ 237, 234 (Count 5); id. ¶¶ 271, 276 (Count 8). And they are partly based on occurrences

during the 2020–21 academic year. See, e.g., id. ¶ 228 (Count 5); id. ¶ 272 (Count 8).

1. Statute of Limitations

Defendants argue that Dr. Nelatury’s discrimination claims related to the 2018–19

academic year are time-barred. Several statutes of limitation are implicated. “To bring suit under

the PHRA, a plaintiff must first have filed an administrative complaint with the PHRC within

180 days of the alleged act of discrimination.” Woodson v. Scott Paper Co., 109 F.3d 913, 925

(3d Cir. 1997); 43 Pa. Stat. § 959(h). For a Pennsylvania plaintiff’s Title VII or ADEA claim to

be timely, a charge must have been filed with the EEOC within 300 days of the allegedly

unlawful act. Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165 (3d Cir. 2013); Seredinski

v. Clifton Precision Prods. Co., 776 F.2d 56, 63 (3d Cir. 1985). The statute of limitations under

Title IX is two years and does not depend on first taking any administrative action. Bougher v.

Univ. of Pittsburgh, 882 F.2d 74, 78 (3d Cir. 1989).

Dr. Nelatury alleges he was denied permission to supplement his dossier in January 2019

and denied a promotion in February 2019. He filed his charge with the EEOC and PHRC more

than one year later, on November 13, 2020, and the complaint more than two years later, on

October 11, 2021. He argues that his claims are timely, however, citing Cooper v. Children’s

Behavioral Health, Inc., 2021 WL 4481093 (W.D. Pa. Sept. 30, 2021), which in turn cites Miller

v. Beneficial Management Corp., 977 F.2d 834 (3d Cir. 1992).

Miller established that the equitable “continuing violation doctrine” may be applied to

failure-to-promote claims. The Miller plaintiff sued because she was not promoted to vice

president. Id. at 840. The District Court granted summary judgment for the defendants,

concluding that her claims were time-barred. Id. at 841. The Third Circuit reversed, holding that

because the plaintiff’s “promotion was not based on specific vacancies” and she “could have

been promoted at any time,” there was a continuing violation. Id. at 844 (quoting EEOC v. Hay

Assocs., 545 F. Supp. 1064, 1082–83 (E.D. Pa. 1982)). Under the continuing violation doctrine,

“when a defendant’s conduct is part of a continuing practice, an action is timely so long as the

last act evidencing the continuing practice falls within the limitations period.” Cowell v. Palmer

Twp., 263 F.3d 286, 292 (3d Cir. 2001) (internal quotation marks omitted).

Two legal developments since Miller are worthy of note. First, the Third Circuit has

added a test, holding that “courts should consider at least three factors” when deciding whether

there was a continuing violation:

(1) subject matter—whether the violations constitute the same type of

discrimination, tending to connect them in a continuing violation; (2) frequency—

whether the acts are recurring or more in the nature of isolated incidents; and

(3) degree of permanence—whether the act had a degree of permanence which

should trigger the plaintiff’s awareness of and duty to assert his/her rights and

whether the consequences of the act would continue even in the absence of a

continuing intent to discriminate.

Id. The Third Circuit emphasized that “[t]he focus of the continuing violations doctrine is on

affirmative acts of the defendants,” id. at 293, and that “[a] continuing violation is occasioned by

continual unlawful acts, not continual ill effects from an original violation,” id. (quoting Ocean

Acres Ltd. v. Dare Cnty. Bd. of Health, 707 F.2d 103, 106 (4th Cir. 1983)).

The second noteworthy development since Miller is the Supreme Court’s holding that

“[d]iscrete acts such as . . . failure to promote . . . are easy to identify” and therefore “[e]ach

incident . . . constitutes a separate actionable ‘unlawful employment practice’”—they may not be

considered together as a continuing violation, and each is subject to the statutory 300-day

limitation. Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002) (quoting 42 U.S.C.

§ 2000e–5(e)(1)).3

There is no indication in Morgan that the plaintiff could have been promoted at any time,

so District Courts in the Third Circuit have continued to follow Miller in cases where the

plaintiff was not applying for a specific vacancy. See, e.g., Cooper v. Children’s Behav. Health,

Inc., 2021 WL 4481093, at *12 (W.D. Pa. Sept. 30, 2021); Henderson v. Pa. State Univ., 2022

WL 838119, at *6 (M.D. Pa. Mar. 21, 2022). Still, Morgan counsels caution; a “connection” to

other discriminatory acts is not enough for a continuing violation. 536 U.S. at 111 (“We have

repeatedly interpreted the term ‘practice’ to apply to a discrete act or single ‘occurrence,’ even

when it has a connection to other acts.” (quoting 42 U.S.C. § 2000e–5(e)(1)). “The ‘continuing

3 The Supreme Court held in Morgan that, for a hostile work environment claim, the third

factor—permanency—“is not required to establish a continuing violation.” Mandel v. M & Q

Packaging Corp., 706 F.3d 157, 166 (3d Cir. 2013). That is “because the entire hostile work

environment encompasses a single unlawful employment practice.” Id. (quoting Morgan, 536

U.S. at 117–18). Outside the hostile work environment context, however, the Third Circuit has

continued to ask whether the “defendants’ actions ‘had a degree of permanence which should

trigger [the plaintiff’s] awareness of and duty to assert his[ ] rights.’” Wisniewski v. Fisher, 857

F.3d 152, 158 (3d Cir. 2017) (quoting Cowell, 263 F.3d at 292).

violation doctrine’ applies only to a narrow class of . . . violations . . . .” Heraeus Med. GmbH v.

Esschem, Inc., 927 F.3d 727, 740 (3d Cir. 2019).

In light of the Third Circuit’s three-factor test and the narrowness of the continuing

violation doctrine, I do not follow the same analytical path as the District Courts in Cooper and

Henderson, which focused solely on whether a promotion could have been granted at any time.

Instead, I apply the three-factor Cowell test. I integrate into that test the consideration of whether

Dr. Nelatury’s promotion to full professor could have taken place at any time.

In order to make out a continuing violation, Dr. Nelatury needs to allege a series of

discriminatory actions connecting his 2019 non-promotion, which falls outside the 300-day

statutory limit, with “the last act evidencing the continuing practice”—his 2021 non-promotion,

which undisputedly “falls within the limitations period.” Cowell, 263 F.3d at 292 (internal

quotation marks omitted). The first Cowell factor is “subject matter—whether the violations

constitute the same type of discrimination, tending to connect them in a continuing violation.” Id.

This factor weighs in favor of finding a continuing violation because the failure to promote in

2019 is the exact same discriminatory act as the failure to promote in 2021.

The second Cowell factor is “frequency—whether the acts are recurring or more in the

nature of isolated incidents.” Id. This factor weighs against finding a continuing violation

because there was not a recurring or ongoing series of actions. Two years elapsed between the

initial failure to promote and the more recent one, and Dr. Nelatury does not allege any

discriminatory act that occurred in the intervening time. See ECF No. 8 at ¶¶ 59–129.

The third Cowell factor is “whether the act had a degree of permanence which should

trigger the plaintiff’s awareness of and duty to assert his/her rights and whether the consequences

of the act would continue even in the absence of a continuing intent to discriminate.” 263 F.3d at

292. This is the appropriate factor under which to consider the promotion-at-any-time arguments.

Dr. Nelatury contends “[t]here is nothing that would suggest that the University could not have

promoted [him]” at any time since his first application in 2018–19. ECF No. 13 at 10–11.

Defendants counter, correctly, that Dr. Nelatury’s allegations do not allow this inference. Dr.

Nelatury alleged that he applied for promotion in 2018–19. ECF No. 8 ¶ 49. “Ultimately”—that

is, at the end of that application process—Dr. Ford recommended against promotion. Id. ¶ 59.

When the Faculty Rights and Responsibilities Committee ruled in Dr. Nelatury’s favor, the

outcome was not an immediate promotion or even immediate reconsideration for one. Rather, he

“was allowed to reapply for promotion during the 2020–21 academic year.” Id. ¶ 87. Even

considered in the light most favorable to Dr. Nelatury, with inferences drawn in his favor, the

allegations do not show he could have been promoted at any time.

The unfavorable decision in 2019 should have “trigger[ed] [Dr. Nelatury’s] awareness of

and duty to assert [his] rights” because “the consequences of the act”—the lack of the full

professor title and its accompanying pay raise—“would continue even in the absence of a

continuing intent to discriminate.” Cowell, 263 F.3d at 292. As it turned out, Dr. Nelatury was

permitted to reapply in 2021. But when the 2019 decision was made, it was intended to be final.

Dr. Nelatury seems to have understood it as a final decision; this is presumably why he took

action and petitioned the faculty committee.4

4 Dr. Nelatury has not argued that he waited to file his EEOC/PHRC complaint because the

faculty committee was adjudicating his petition. Even if he did, the outstanding petition would

not render the 2019 promotion decision non-final. See Morgan, 536 U.S. at 111–12 (explaining

that an employee’s union grievance did not render his termination “nonfinal”; rather, “the

discriminatory act occurred on the date of discharge—the date that the parties understood the

termination to be final,” regardless of the ongoing grievance process).

Two Cowell factors weigh against a conclusion there was a continuing violation

(frequency and permanency), while one factor weighs in favor (subject matter). Taken together,

the factors do not show a continuing violation. The result of this factor-balancing exercise

comports with the Third Circuit’s admonition that “[a] continuing violation is occasioned by

continual unlawful acts, not continual ill effects from an original violation.” Id. Although Dr.

Nelatury suffered continual ill effects from the 2019 promotion decision, he does not allege

continual unlawful acts by Defendants. This distinguishes his case from Miller, where the

defendants committed a series of acts, each separated by weeks or a few months, culminating in

the final decision that the plaintiff would never be promoted. 977 F.2d at 837–41.

For these reasons, Dr. Nelatury’s Title VII, ADEA, Title IX, and PHRA claims for the

2019 refusal to supplement his dossier and 2019 refusal to promote in Counts 5, 8, 11, 14, 20, 23,

and 26 will be dismissed. That does not mean, however, that the allegations about the 2019

incidents are irrelevant. Title VII does not “bar an employee from using the prior [time-barred]

acts as background evidence in support of a timely claim.” Morgan, 536 U.S. at 113.

2. Whether the non-time-barred claims are adequately stated

The burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–

03 (1973), governs discrimination claims under Title VII, Title IX, the ADEA, and the PHRA.

Burton v. Teleflex Inc., 707 F.3d 417, 425–26, 432 (3d Cir. 2013); Doe v. Mercy Cath. Med. Ctr.,

850 F.3d 545, 564 (3d Cir. 2017). To show a prima facie case of sex, age, or national origin

discrimination under the ADEA, Title VII, or the PHRA, a plaintiff must show: (1) he is a

member of a protected class; (2) he is qualified for the position; (3) he suffered an adverse

employment action; and (4) members outside the protected class were treated more favorably or

the adverse employment action occurred under circumstances that could give rise to an inference

of intentional discrimination. See Burton, 707 F.3d at 426, 432. A prima facie case of sex

discrimination under Title IX requires a plaintiff to “allege (1) that he or she was subjected to

discrimination in an educational program, (2) that the program receives federal assistance, and

(3) that the discrimination was on the basis of sex.” A.H. v. Minersville Area Sch. Dist., 408 F.

Supp. 3d 536, 550 (M.D. Pa. 2019); Bougher v. Univ. of Pittsburgh, 713 F. Supp. 139, 143–144

(W.D. Pa. 1989), aff’d, 882 F.2d 74, 77–78 (3d Cir. 1989).

Defendants argue that Dr. Nelatury has not pled sufficient facts to show that his non-

promotion was discriminatory. To the contrary, Dr. Nelatury states a plausible claim for relief.

He is male, of Indian national origin, over forty years of age and, as such, is a member of classes

protected by Title VII, Title IX, the ADEA, and the PHRA. ECF No. 8 ¶¶ 223, 269, 309, 352,

446, 448; 2 U.S.C. § 1311(a); 20 U.S.C. § 1681; 29 U.S.C. § 623; 43 Pa. Stat. and Cons. Stat.

§ 955. Dr. Nelatury pleads that “[o]ver the past eighteen years [he] has been the faculty member

at PSU-Behrend with the highest number of publications in traditional peer-reviewed journals.”

ECF No. 8 ¶ 32. He was subjected to adverse employment action because he has not been

promoted from Associate Professor to Full Professor, despite applying. Id. at ¶ 49, 128. Finally,

“[a] non-Indian faculty member was promoted by Dr. Ford ahead of Dr. Nelatury,

notwithstanding the fact that she had a lesser publication record and the fact that the college-

level promotion committee advised that Dr. Nelatury be promoted ahead of her.” Id. at ¶ 458.

Therefore, Dr. Nelatury’s claims of discrimination related to the 2021 promotion decision will

not be dismissed.

Defendants assert in a footnote that the PHRA claims against Dr. Ford should be

dismissed because he allegedly engaged in direct discrimination and the statute “does not

provide for liability for direct acts of discrimination, only aiding and abetting.” ECF No. 11 at p.

16 n.6 (citing Dici v. Commonwealth, 91 F.3d 542, 552–53 (3d Cir. 1996)). The District Court in

Toth v. Cal. Univ. of Pa., responding to this exact argument, explained that Dici “stands for the

proposition that individual liability under § 955(e) can extend only to an employee who shares

the discriminatory purpose and intent of the offending employer. The reasoning employed in

Dici does not preclude the imposition of individual liability upon supervisory employees who

implement unlawful acts of discrimination.” 844 F. Supp. 2d 611, 647 (W.D. Pa. 2012). I agree

with this reasoning. As another District Court put it, under Dici, “an individual supervisory

employee can be held liable under an aiding and abetting/accomplice liability theory pursuant to

§ 955(e) for his own direct acts of discrimination or for his failure to take action to prevent

further discrimination by an employee under supervision.” Davis v. Levy, Angstreich, Finney,

Baldante, Rubenstein & Coren P.C., 20 F. Supp. 2d 885, 887 (E.D. Pa. 1998). Therefore, the

PHRA claims against Dr. Ford will not be dismissed.

C. Retaliation Claims Under Title VII, Title IX, the ADEA, and the PHRA

Dr. Nelatury alleges that he was retaliated against in violation of Title VII for complaints

of racial discrimination (Count 6) and sex discrimination (Count 15); in violation of Title IX for

complaints of sex discrimination (Count 12); in violation of the ADEA for age discrimination

(Count 9); and in violation of the PHRA for complaints of racial discrimination (Count 21), age

discrimination (Count 24), and sex discrimination (Count 27).

To make out a prima facie case of retaliation under these statutes, a plaintiff must show

that: (1) he engaged in activity protected by the statute; (2) the employer took an adverse

employment action against him; and (3) there was a causal connection between the two. Daniels

v. Sch. Dist. of Phila., 776 F.3d 181, 193 (3d Cir. 2015); Doe, 850 F.3d at 564.

Defendants’ sole attack on this claim is that Dr. Nelatury has not pled that Dr. Ford knew

about the protected activity. ECF No. 11 at 18–19. But Dr. Ford was named as a respondent in

Dr. Nelatury’s EEOC charge. Id. at ¶¶ 125–26. Dr. Nelatury’s petition to the Faculty Rights and

Responsibilities Committee also directly implicated Dr. Ford: Dr. Nelatury complained of

unfairness in the promotion process, id. at ¶¶ 73–76, and the Committee concluded that “Dr.

Ford’s review of Dr. Nelatury’s promotion application violated Penn State policy,” id. at ¶ 419.

It can be inferred that Dr. Ford knew about a charge on which he was named as a respondent,

and about an internal complaint that led to a ruling he had violated university policy. Therefore,

the retaliation claims will not be dismissed.

D. Hostile Work Environment Claims Under Title VII, Title IX, the ADEA, and

the PHRA

Dr. Nelatury alleges he was subjected to a hostile work environment in violation of Title

VII on account of his race (Count 7) and sex (Count 16); in violation of Title IX on account of

his sex (Count 13); in violation of the ADEA on account of his age (Count 10); and in violation

of the PHRA on account of his race and national origin (Count 22), age (Count 25), and sex

(Count 28).

To succeed on a hostile work environment claim under Title VII or the PHRA, the

plaintiff must prove (1) intentional discrimination because of sex (2) that was severe and

pervasive, (3) that subjectively affected the plaintiff detrimentally, (4) that would similarly affect

a reasonable person, and (5) the employer is liable on a respondeat superior theory. Mandel, 706

F.3d at 167; Renna v. PPL Elec. Utilities, Inc., 207 A.3d 355, 368 (Pa. Super. Ct. 2019).

Similarly, the ADEA and Title IX also require the plaintiff to prove “severe and pervasive”

discrimination. See Howell v. Millersville Univ. of Pa., 749 F. App’x 130, 135 (3d Cir. 2018)

(assuming that the ADEA permits a hostile work environment claim and holding that such a

claim would require severe and pervasive discrimination); see also DeJohn v. Temple Univ., 537

F.3d 301, 316 (3d Cir. 2008) (explaining that one element of a student’s Title IX hostile

environment claim is severe and pervasive discrimination).

Defendants are correct that Dr. Nelatury has not alleged severe and pervasive

discrimination. A hostile work environment is one so “permeated with discriminatory

intimidation, ridicule, and insult” that it becomes “abusive.” Morgan, 536 U.S. at 116 (internal

quotation marks omitted) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The

allegations do not reach this threshold. Dr. Nelatury does not allege insulting comments,

taunting, the display of offensive cartoons, or the like. Being denied promotion and the

opportunity to supplement a dossier does not create a workplace “permeated with . . .

intimidation, ridicule, and insult.” Id. Therefore, the retaliation claims will be dismissed.

E. Discrimination, Retaliation, and Hostile Work Environment Claims Under

Section 1981 and Motion for Leave to Amend

Dr. Nelatury alleges that Defendants violated 42 U.S.C. § 1981 by discriminating against

him (Count 2), retaliating against him (Count 3), and subjecting him to a hostile work

environment (Count 4). Defendants argue that the claims should be dismissed because § 1981

does not confer a private right of action against state and municipal actors such as PSU and Dr.

Ford. Defendants are correct that these claims, as they currently stand, are subject to dismissal.

McGovern v. City of Phila., 554 F.3d 114, 120–21 (3d Cir. 2009) (holding that Congress did not

create a remedy against state actors under § 1981). Dr. Nelatury seeks leave to amend his

complaint to bring these claims through 42 U.S.C. § 1983. ECF No. 19 at 2–3. The proposed

amendment, if permitted, would cure the problem because “while § 1981 creates rights, § 1983

provides the remedy to enforce those rights against state actors.” McGovern, 554 F.3d at 116.

A “court should freely give leave [to amend the complaint] when justice so requires.”

Fed. R. Civ. P. 15(a)(2). The decision to grant or deny a motion for leave to amend is within the

“sound discretion of the district court.” Cornell & Co. v. Occupational Safety & Health Rev.

Comm’n, 573 F.2d 820, 823 (3d Cir. 1978). Absent “undue delay, bad faith, or dilatory motive

on the part of the movant, repeated failure to cure deficiencies by amendments previously

allowed, undue prejudice to the opposing party . . . [or] futility of amendment,” leave should be

given. Id. Amendment is futile when the complaint as amended would not “withstand a renewed

motion to dismiss.” City of Cambridge Ret. Sys. v. Altisource Asset Mgmt. Corp., 908 F.3d 872,

878 (3d Cir. 2018) (citation omitted). Defendants argue leave should not be granted for four

reasons.

Dr. Nelatury failed to cure the deficiency previously. First, Defendants contend that Dr.

Nelatury did not take advantage of earlier opportunities to amend after the parties’ December

2021 and January 2022 meet-and-confers. ECF No. 28 at 2–3. They argue this constitutes the

kind of “repeated failure to cure deficiencies” that justifies denial of leave. Cornell, 573 F.2d at

823. However, the cases Defendants cite in support of this argument are distinguishable. In

Heraeus Medical GmbH v. Esschem, Inc., the plaintiff sought to amend over two years after

filing the complaint and about a month before the end of discovery, and amendment would have

“necessitate[d] a new wave of motion practice.” 321 F.R.D. 215, 218 (E.D. Pa. 2017). In Cureton

v. National Collegiate Athletic Association, the plaintiff sought to amend three years after the

complaint was filed and after summary judgment was entered; amendment would have required

“burdensome new discovery and significant new trial preparation.” 252 F.3d 267, 273–74, 275–

76 (3d Cir. 2001). Here, it has been less than a year since the complaint was filed; discovery is

yet to begin; amendment would not spur a new round of motions; and—as Defendants

acknowledge—the proposed amendment “does not change any of the factual allegations.” ECF

No. 28 at 4. In these circumstances, Dr. Nelatury’s earlier failure to amend before does not doom

his effort to do so now.

Race versus national origin. Second, Defendants argue that amendment would be futile

because § 1981 prohibits discrimination only on the basis of race, not national origin. The

Supreme Court examined this issue in a case where a college denied tenure to a professor who

described himself as Iraqi-born and “of the Arabian race.” St. Francis Coll. v. Al-Khazraji, 481

U.S. 604, 606 (1987). The Court noted that when § 1981 was passed in the mid-nineteenth

century, groups such as “Finns,” “Russians,” “Italians,” and “Basques” were described as

“separate races.” Id. at 611–12. Section 1981, the Court held, protects “identifiable classes of

persons who are subjected to intentional discrimination solely because of their ancestry or ethnic

characteristics,” regardless of whether such discrimination “would be classified as racial in terms

of modern scientific theory.” Id. at 613. Therefore, the professor stated a claim. See id.

Similarly here, amendment would permit Dr. Nelatury to state a claim. True, his

complaint repeatedly refers to his Indian origin and others’ non-Indian origin. See, e.g., ECF

No. 8 ¶¶ 20, 67, 88. But he also describes himself as “non-Caucasian (white),” “a person of

color,” and “a person of dark skin color.” ECF No. 8 ¶¶ 20, 66, 173. And in his allegations, race

and national origin often appear together. See, e.g., id. at ¶¶ 89, 95, 145, 190, 192, 216, 469. This

is sufficient to state a claim under § 1981. See St. Francis Coll., 481 U.S. at 613. Defendants

argue otherwise, citing Mudie v. Philadelphia College of Osteopathic Medicine, 577 F. Supp. 3d

375 (E.D. Pa. 2021). But Mudie observes that courts have “permitted claims based on national

origin and race, ethnicity, or ancestry to proceed,” while “repeatedly dismiss[ing] claims that are

based solely on national origin” or on a combination of “national origin and other non-protected

characteristics.” Id. at 383 (citation omitted). Dr. Nelatury advances claims of the first type—that

is, the type that has been permitted to proceed. So the fact that his claims are based on a

combination of national origin and race does not mean amendment would be futile.

Insufficiency of the allegations. Third, Defendants argue that amendment would be

futile because Dr. Nelatury’s factual allegations, which would not be changed by his proposed

amendment, fail to state claims for § 1981 discrimination, retaliation, and hostile work

environment. A § 1981 discrimination claim requires a plaintiff to establish “(1) that he belongs

to a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and

(3) discrimination concerning one or more of the activities enumerated in § 1981.” Castleberry v.

STI Grp., 863 F.3d 259, 266 (3d Cir. 2017) (citation omitted). First, as explained, Dr. Nelatury

alleges that he belongs to a racial minority. Second, for the same reasons given above with

regard to the discrimination claims under Title VII, Title IX, the ADEA, and the PHRA, Dr.

Nelatury has adequately alleged that Defendants intended to discriminate against him by

deliberately preventing him from receiving a deserved promotion. And third, § 1981 reaches

employment discrimination. See, e.g., McGovern, 554 F.3d at 116. Therefore, amendment of the

§ 1981 discrimination claim (Count 2) would not be futile (except for the portion of Count 2 that

is time barred, as explained below).

The elements of § 1981 claims for retaliation and hostile work environment are the same

as the elements of those claims under Title VII. Castleberry, 863 F.3d at 263, 267. Therefore, for

the same reasons explained above with regard to the retaliation and hostile work environment

claims under Title VII, Title IX, the ADEA, and the PHRA, amendment of the § 1981 hostile

work environment claim (Count 4) would be futile and amendment of the § 1981 retaliation

claim (Count 3) would not.

Statute of limitations. Finally, Defendants argue that the portion of Count 2 based on

failure to promote in February 2019 is time-barred. A § 1981 claim brought through § 1983 is

governed by the § 1983 statute of limitations. See McGovern, 554 F.3d at 115–21 (rejecting the

plaintiff’s attempt to apply the § 1981 four-year statute). In § 1983 actions, “federal courts apply

the state’s statute of limitations for personal injury,” and “Pennsylvania’s statute of limitations

for personal injury is two years.” Sameric Corp. v. City of Phila., 142 F.3d 582, 599 (3d Cir.

1998) (citing 42 Pa. Cons. Stat. Ann. § 5524).

Dr. Nelatury alleges he was denied permission to supplement his dossier in January 2019

and denied a promotion in February 2019. He filed this lawsuit more than two years later, on

October 11, 2021. For the reasons explained in the discussion of the statute of limitations for the

discrimination claims, see Part IV.B.1 above, the continuing violation doctrine cannot render

Count 2 timely to the extent it advances claims based on the failure to supplement Dr. Nelatury’s

dossier in January 2019 and the failure to promote in February 2019. This portion of Count 2 will

be dismissed.

In sum, Dr. Nelatury’s motion for leave to amend his complaint will be granted in part.

He will be permitted to amend Count 2 (§ 1981 discrimination) and Count 3 (§ 1981 retaliation)

as requested in his motion and shown in the proposed amended complaint. However, the portion

of Count 2 that advances a claim for allegedly discriminatory actions in January and February

2019 is time-barred and will be dismissed. The remainder of Counts 2 and 3, as amended, will

not be dismissed. It would be futile to amend Count 4 (§ 1981 hostile work environment), so

leave to amend will not be granted and that count will be dismissed.

F. Breach of Contract Claims

Dr. Nelatury alleges that PSU committed a variety of breaches of contract in connection

with his non-promotion (Counts 17, 18, and 19). “To successfully maintain a cause of action for

breach of contract the plaintiff must establish: (1) the existence of a contract, including its

essential terms, (2) a breach of a duty imposed by the contract, and (3) resultant damages.”

McShea v. City of Phila., 995 A.2d 334, 340 (Pa. 2010) (citation omitted).

Although the Complaint is not entirely clear on this point, it seems Dr. Nelatury alleges

the tenure policy was a binding contract for two different reasons. The first is his allegation that

“an internal employee handbook and/or employer policies may give rise to a binding contract

between an employer and an employee.” ECF No. 8 ¶ 425. As a point of Pennsylvania law, this

is correct. “A handbook distributed to employees as inducement for employment may be an offer

and its acceptance a contract.” Morosetti v. La. Land & Expl. Co., 564 A.2d 151, 152 (Pa. 1989).

But there appears to be a significant distinction between this case and cases in the

Morosetti line: Dr. Nelatury is employed under a contract and thus is not an at-will employee.

See id. at 155 (Larsen, J., dissenting) (noting at-will status of Morosetti plaintiffs). This leads to

the second reason Dr. Nelatury alleges the tenure policy was a binding contract: because it was

“incorporated into the general employment contract between full-time faculty and the

University.” ECF No. 8 ¶ 429.

Dr. Nelatury attached to his complaint a copy of University Policy AC61, “Faculty

Contracts.” ECF No. 8-4. This policy is not itself a contract, but it provides that “[a]ll standing

appointment faculty members will be employed on a . . . contract.” Id. at 1. Policy AC61

“establish[es] the terms and conditions for making standing appointment offers to, and

contracting the services of, individuals classified as academic . . . .” Id. at 1. The policy states

that faculty contracts “should include . . . [a] statement that provisional appointments and

appointments with tenure are subject to the terms and conditions of University tenure policies.”

Id. at 2–3. Dr. Nelatury also attached to his complaint a copy of Policy AC23, “Promotion and

Tenure Procedures and Regulations.” ECF No. 8-1. Reading these two documents together, the

tenure policy is incorporated into the employment contracts governing all faculty hires.

Therefore, the complaint and its attachments permit the inference that Dr. Nelatury is employed

under a contract whose terms include the tenure policy.5

Because the complaint and attachments permit the inference that a contract existed, it

must be determined whether Dr. Nelatury has adequately alleged a breach. His three contract

claims contain a profusion of breach allegations.

Dr. Nelatury alleges that PSU “failed to afford equal treatment to the open access

publications [he] authored.” ECF No. 8 ¶ 399(a). But the two documents discussing open access

publication, which he attached to his complaint, are not incorporated into faculty contracts under

the terms of Policy AC61; indeed, Policy AC61 does not mention them. See ECF No. 8-4.

Therefore, ¶ 399(a) of the complaint does not sufficiently allege a breach.

Dr. Nelatury alleges that Dr. Ford failed to forward his dossier for review by the

university-wide committee. ECF No. 8 ¶¶ 399(b), 441(b). But he does not cite any provision of

the faculty contracts policy or the tenure and promotion policy that was breached by this

inaction. Therefore, ¶¶ 399(b) and 441(b) of the Complaint do not sufficiently allege a breach.

Dr. Nelatury makes several allegations about how his application was reviewed and the

results of the review. He alleges that PSU disregarded his publications in traditional peer-

reviewed publications, ECF No. 8 ¶ 399(c), his service to the university, id. ¶ 399(d), and his

peer review report, id. ¶ 438. He also alleges that Dr. Ford did not “apply [the policy regarding

student teaching evaluations] in a facially neutral manner,” id. ¶ 441(c), or “[s]et forth the

particulars of his discussion with the college-wide ad hoc committee regarding the divergence of

5 True, the tenure policy became effective in 2018, well after Dr. Nelatury was hired in 2003.

Presumably, however, this tenure policy replaced an older one, as the policy indicates a version

was first published in 1952; and presumably, faculty contracts incorporate the tenure policy that

currently controls.

opinion with respect [to] recommending Dr. Nelatury for promotion,” id. ¶ 441(a). Although

these allegations are phrased in terms of PSU failing to follow the tenure policy, their essence is

not a contractual breach—but that Dr. Nelatury’s performance should have been assessed

differently and the promotion decision should have turned out differently.

Dr. Nelatury gets at the nub of the question when he argues that “[t]he issue raised in the

complaint is whether there was a binding agreement that assured Dr. Nelatury’s promotion.”

ECF No. 13 at 20. The tenure policy assures no such thing. It is replete with language

emphasizing that review is subjective. See, e.g., ECF No. 8-1 at 4 (“Tenure and promotion

standards . . . cannot be fixed and absolute . . . .”); id.at 2 (“A formal statement of criteria for

tenure and promotion is necessary but not sufficient . . . . Rather, general and broad guidelines

will permit the exercise of skilled professional and academic judgment in their interpretation and

application.”); id. at 3 (“[T]he presumption is that recommendations based on the professional

expertise and competence of the faculty will usually be heeded.” (emphasis added)). Therefore,

¶¶ 399(c), 399(d), 438, 441(a), and 441(c) do not sufficiently allege a breach.6

Dr. Nelatury alleges he was not informed how student assessments of his teaching

effectiveness would factor into the promotion decision. Id. ¶¶ 437, 441(c). The tenure policy

provides that policies and procedures governing promotion “should be made widely known.”

ECF No. 8-1 at 2; see also id. at 3 (same). Therefore, these allegations state a breach of contract.

Dr. Nelatury alleges that Dr. Ford rejected the ad hoc review committee that had been

appointed, replaced it with his own, and did not allow Dr. Nelatury to supplement his dossier, all

6 Paragraph 441(c) nests two allegations together: that Dr. Ford failed to [1] “[e]xplain the SRTE

policy to Dr. Nelatury and [2] apply that policy in a facially neutral manner.” ECF No. 8 at

¶ 441(c). The second portion of ¶ 441(c) will be dismissed as just explained. The first portion of

¶ 441(c), alleging failure to explain the policy, will be addressed below.

of which led the faculty committee to conclude that Dr. Ford did not follow the tenure review

process. ECF No. 8 ¶¶ 416–19. These allegations state a breach of contract claim, because PSU’s

faculty committee found the tenure policy had not been followed.

To summarize, Count 17 will be dismissed because ¶¶ 399(a)–(d) fail to allege a breach

of contract. Count 18 will not be dismissed because ¶¶ 416–19 sufficiently allege a breach of

contract. And Count 19 will be partly dismissed because, while ¶¶ 438, 441(a), 441(b), and part

of ¶ 441(c) fail to allege a breach of contract, ¶ 437 and part of ¶ 441(c) allege a breach.

V. CONCLUSION

For the reasons explained above, the Motion for Leave to Amend will be granted in part

and denied in part. The Motion to Dismiss will also be granted in part and denied in part.

An appropriate order follows.