SOLANO v. SLIPPERY ROCK UNIVERSITY OF PENNSYLVANIA

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ROGER SOLANO, PhD,

Plaintiff, Civil Action No. 2:24-cv-1542

V. Hon. William 8S. Stickman IV

SLIPPERY ROCK UNIVERSITY OF

PENNSYLVANIA and HOLLY MCCOY,

Defendants.

MEMORANDUM OPINION

WILLIAM S. STICKMAN IV, United States District Judge

Plaintiff Roger Solano, Ph.D. (“Dr. Solano”) brought an action against Defendants

Slippery Rock University (“SRU”) and Holly McCoy (“McCoy”) (collectively “the University

Defendants”) seeking damages and alleging discrimination on the basis of national origin, sex,

and sexual orientation under Title VII (42 U.S.C. § 2000e ef seq.), Title IX (20 U.S.C. § 1681 er

seq.), and the Pennsylvania Human Relations Act (“PHRA”) (43 P.S. § 962 ef seq.), retaliation

under Title VII, Title [X, and the PHRA, and discrimination on the basis of disability under the

Rehabilitation Act (“RA”) (29 U.S.C. § 794 et seq.) and the Americans with Disabilities Act

(“SADA”) (42 U.S.C. § 12101 et seg.). (ECF No. 11). The University Defendants filed a motion

to dismiss Dr. Solano’s first amended complaint. (ECF No. 15). For the following reasons, the

motion will be granted.

I. FACTUAL BACKGROUND

SRU is a state-owned higher education institution. (ECF No. 11, 2). McCoy is

employed by SRU as the director of human resources. (/d. {J 3, 16). Dr. Solano is employed by

SRU as chair of the Department of Management and Marketing (“Management and Marketing

Department.”) (/d. J 1); (ECF No. 15, § 1). Dr. Solano was born in Venezuela, is Hispanic, and

is fluent in both Spanish and English. (ECF No. 11, ff 18-19). He holds a Ph.D. in industrial

engineering from the New Jersey Institute of Technology. (Jd. { 17). Dr. Solano is openly

homosexual. (/d. J 20). He asserts that he has been treated for generalized anxiety disorder,

attention deficit hyperactivity disorder (“ADHD”), and insomnia since 2020. (Ud. § 21).

Dr. Solano has worked at SRU since 2009, and he has served as the Management and

Marketing Department chair since May 2019. (ECF No.11, { 22). He alleges that Dr. Nicholls,

a fellow professor in the Management and Marketing Department and former chair of the

University Promotion Committee and Departmental Promotion Committee, was a key instigator

in the campaign of hostility and harassment directed towards him that was further enabled by

SRU’s administration. (/d. § 26, 27, 34). Dr. Solano avers that since he became chair of his

department in 2019, Dr. Nicholls criticized nearly every decision he made, including decisions

related to trivial matters. (/d. { 36). He states that although this criticism gave rise to a “hostile

work environment,” SRU administrators failed to take any steps to ease these mounting tensions

within the Management and Marketing Department. (/d. { 38). Further, it is alleged that Dr.

Nicholls’ complaints against Dr. Solano alluded to his race/national origin, accused him of

giving preferential treatment to younger, male faculty with respect to scheduling, accused him of

fostering a lack of honesty and transparency in their department and blocking a curriculum

change, amongst other things. (Ud. §¥ 40, 41, 44, 61). SRU conducted an investigation and

concluded that Dr. Solano’s actions, specified in Dr. Nicholls’ complaints, did not violate their

Harassment and Discrimination Policy. (Ud. 4 79).

Dr. Solano also recounts that he was one of two candidates in the 2024 election for chair

of the Management and Marketing Department, and that SRU cancelled the election based on

claims that the ballots were not secret and based, in part, by Dr. Nicholls’ influence. (ECF No.

11, 100-103). Ultimately, Dr. Solano was elected chair of the Management and Marketing

Department. (/d. J 109). Dr. Solano believes that Dr. Nicholls’ complaints and harassment

towards him, along with SRU administration’s entertainment of her accusations, constituted

sexist and homophobic animus toward him. (/d. § 93). As a result of such treatment, Dr. Solano

states that he suffers from severe depression, insomnia, anxiety, fatigue, and lack of energy, and

that he is considering stepping down as department chair to preserve his health. Ud. ff] 120, 121,

130). Lastly, Dr. Solano alleges that his disabilities, including ADHD and other mental health

issues, were not accommodated by SRU, creating a hostile work environment, and that McCoy

knew this yet did nothing to remedy the situation. (Ud. ff] 129, 137, 139).

Dr. Solano filed an administrative complaint with the Equal Employment Opportunity

Commission (“EEOC”) in February 2024, docketed at 533-2024-01080, raising claims for

retaliation and discrimination on the basis of sex, sexual orientation, national origin, and

disability. (ECF No. 11, {§ 6-7). On August 20, 2024, the EEOC issued a “Right to Sue” notice.

(Ud. § 9). Then on October 18, 2024, Dr. Solano filed a second EEOC complaint, docketed at

533-2025-00283, alleging sex, sexual orientation, national origin, disability discrimination,

retaliation, and hostile work environment. (d. 9 11-12). Both EEOC complaints were cross-

filed with the Pennsylvania Human Relations Commission (“PHRC”). (Ud. §§ 8, 13). The PHRC

indicated, per a letter dated October 21, 2024, that it would be closing its investigation into Dr.

Solano’s complaint, making his claims ripe for adjudication under Pennsylvania law. (ld. § 10).

Dr. Nicholls also filed an administrative complaint with the EEOC against Dr. Solano and SRU

in October 2022, specifically alleging that “Dr. Solano gave preferential treatment to younger,

male faculty with respect to scheduling.” (d. § 60). Dr. Solano contends that this was “a thinly

veiled anti-gay attack.” (/d. § 61). Dr. Nicholls’ complaint was ultimately dismissed by the

EEOC when they issued a “Right to Sue” notice. (/d. § 67).

Dr. Solano filed his initial complaint on November 11, 2024. (ECF No. 1). The

University Defendants filed a motion to dismiss this initial complaint. (ECF No. 8). In response,

Dr. Solano filed an amended complaint on March 26, 2025, which is the operative complaint at

issue. (ECF No. 11). The University Defendants then filed a renewed motion to dismiss the

amended complaint. (ECF No. 15).

II. STANDARD OF REVIEW

A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of the complaint.

Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). A plaintiff must allege sufficient facts that,

if accepted as true, state a claim for relief plausible on its face. See Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A court must

accept all well-pleaded factual allegations as true and view them in the light most favorable to a

plaintiff. See Doe v. Princeton Univ., 30 F.4th 335, 340 (3d Cir. 2022); see also Fowler v.

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Although a court must accept the

allegations in the complaint as true, it is “not compelled to accept unsupported conclusions and

unwarranted inferences, or a legal conclusion couched as a factual allegation.” Baraka v.

McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citations omitted).

The “plausibility” standard required for a complaint to survive a motion to dismiss is not

akin to a “probability” requirement but asks for more than sheer “possibility.” Iqbal, 556 U.S. at

678 (citing Twombly, 550 U.S. at 556). In other words, the complaint’s factual allegations must

be enough to raise a right to relief above the speculative level, on the assumption that all the

allegations are true even if doubtful in fact. Twombly, 550 U.S. at 555. Facial plausibility is

present when a plaintiff pleads factual content that allows the court to draw the reasonable

inference that a defendant is liable for the misconduct alleged. Jgbal, 556 U.S. at 678. Even if

the complaint’s well-pleaded facts lead to a plausible inference, that inference alone will not

entitle a plaintiff to relief. Jd. at 682. The complaint must support the inference with facts to

plausibly justify that inferential leap. Jd.

TIL. ANALYSIS

A. Dr. Solano’s Claims Arising Under Title VII and Title IX

1. Count I - Discrimination on the basis of national origin under Title VII

Dr. Solano brings a discrimination claim on the basis of national origin in violation of

Title VII at Count I. (ECF No. 11, p. 15). He alleges that “he was subjected to a hostile work

environment in the form of increased criticism and scrutiny,” and that “similarly situated SRU

faculty members who were not Hispanic or of Venezuelan national origin were not subjected to

similar adverse employment action on account of his race/national origin.” (Ud. {§ 144, 154). In

response, the University Defendants argue that the facts alleged do not bear an inference of

intentional discrimination, and that none of Dr. Nicholls’ conduct or comments referenced Dr.

Solano’s national origin. (ECF No. 16, pp. 5, 8).

Title VII makes it “an unlawful employment practice for an employer . . . to discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e-2(a)(1). Title VII prohibits discrimination with respect to employment decisions

that have direct economic consequences, such as termination, demotion, and pay cuts. Vance v.

Ball State Uniy., 570 U.S. 421, 426 (2013). Additionally, Title VII prohibits the creation of a

hostile work environment. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65-66 (1986).

The United States Supreme Court held that for a plaintiff to establish a hostile work environment

claim, he or she must show that the work environment was so pervaded by discrimination that

the terms and conditions of employment were altered. See, e.g., Harris v. Forklift Systems, Inc.,

510 U.S. 17, 21 (1993) (stating that “when the workplace is permeated with discriminatory

intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of

the victim’s employment and create an abusive working environment, Title VII is violated.”)

(internal citations omitted). Specifically, the United States Court of Appeals for the Third

Circuit has held that to succeed on a hostile work environment claim, a plaintiff must establish

that “1) the employee suffered intentional discrimination because of his/her sex/membership in a

protected class, 2) the discrimination was pervasive and regular, 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 element determines employer

liability.” Mandel v. M & O Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013) (internal

citations omitted); Woodard v. PHB Die Casting, 255 F. App’x 608, 609 (3d Cir. 2007). A

plaintiff must be able to show that the workplace was permeated with discriminatory

intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of

his employment and create an abusive work environment. Perry v. Harvey, 332 F. App’x 728,

730-31 (3d Cir. 2009) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116

(2002)).

As to the first element of a hostile work environment claim, Dr. Solano’s averments in

his amended complaint do not establish that he endured true, intentional discrimination due to his

Hispanic heritage. To support this claim, he refers to an isolated incident in 2019 when Dr.

Nicholls complained about the wording of an email he sent, thereby “alluding to” his efficiency

with the English language. (ECF No. 11, 441). This is the only national origin-specific incident

Dr. Solano alleges to support his discrimination claim. The Court finds that while this may have

been an intentional criticism by Dr. Nicholls, there is not enough substance within the amended

complaint to plausibly infer that this constituted intentional discrimination based on Dr. Solano’s

national origin.

Further, even if the Court found this to be intentional discrimination, it does not find the

alleged conduct to be pervasive or regular because Dr. Solano alleges no incidents beyond the

one discussed above that relate to his national origin. One complaint, containing comments that

do not specifically mention Dr. Solano’s race or ethnicity, but that he subjectively believes

“alluded” to such, is not enough to satisfy the second element.

The University Defendants also point out that although Dr. Solano claims he has been

detrimentally affected by the above, he is unable to point to a negative impact upon his

employment because he, ultimately, was promoted to chair of the Management and Marketing

Department. (ECF No. 16, pp. 10, 14); (ECF No. 11, {§] 109-115). Thus, Dr. Solano also fails to

meet the third and fourth elements.

As Dr. Solano has failed to plead the existence of a hostile work environment based on

his national origin!, Count I of the amended complaint will be dismissed.

' Respondeat superior liability was also not adequately pled. As the University Defendants point

out, liability under this theory exists depending on whether the perpetrator/harasser is the

victim’s supervisor or a co-worker. Here, the amended complaint merely alleges that Dr.

2. Count Il — Discrimination on the basis of sex/sexual orientation under Title VII

Dr. Solano brings a discrimination claim on the basis of sex/sexual orientation in

violation of Title VII at Count II. (ECF No. 11, p. 16). He alleges that he is an openly

homosexual man and that “attacks on [him] were specifically homophobic in that he was accused

of favoring young, male faculty for favorable assignments.” (/d. 161). He further alleges that

similarly situated female and/or non-homosexual faculty members at SRU were not subjected to

similar adverse employment action. (/d. § 170). In response, the University Defendants argue

that the facts alleged do not bear an inference of intentional discrimination, and that none of Dr.

Nicholls’ conduct or comments infer animus based on his sexual orientation. (ECF No. 16, p. 7).

Title VII sex discrimination claims are controlled by the McDonnell-Douglas burden-

shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03

(1973); Tourtellotte v. Eli Lilly & Co., 636 F.App’x 831 (3d Cir. 2016). To establish a prima

facie case for discrimination under Title VII and the McDonnell Douglas burden-shifting

framework, a plaintiff must show that (1) he is a member of a protected class, (2) he was

qualified for the position he sought to attain or retain, (3) he suffered an adverse employment

action, and (4) the action occurred under circumstances that could give rise to an inference of

intentional discrimination. Makky v Chertoff, 541 F.3d 205, 214 (3d Cir. 2008). Once a plaintiff

makes out aprima facie case of sex discrimination, the burden of production shifts to the

employer to offer a legitimate, non-discriminatory reason for the adverse employment action.

See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993). Ifthe employer does so, the

Nicholls “taught in the Management and Marketing department.” (ECF No. 11, 28). There is

no allegation that Dr. Nicholls was Dr. Solano’s supervisor. Where the harassing employee is a

co-worker, the employer is only liable if it was negligent in controlling working conditions.

Vance v. Ball State Univ., 570 U.S. 421, 423 (2013). Dr. Solano raises only threadbare

allegations of administrative involvement, and the Court finds that he does not plead enough

facts to imply that SRU handled Dr. Nicholls’ complaints with negligence.

inference of discrimination drops and the burden shifts back to the plaintiff to show that the

employer’s proffered reason is merely pretext for intentional discrimination. See id. at 507-08.

To survive a motion to dismiss on a Title VII difference in treatment claim, a plaintiff “need only

set forth sufficient facts to raise a reasonable expectation that discovery will reveal evidence that

[the plaintiff] was a member of a protected class and that she suffered an adverse employment

action.” Connelly v. Lane Constr. Corp., 809 F.3d 780, 791 @d Cir. 2016)). “[D]etailed

pleading is not generally required” but the plausibility standard requires that a pleading show

than a sheer possibility that a defendant has acted unlawfully.’” Connelly, 809 F.3d at

786 (quoting Igbal, 556 U.S. at 678).

Here, Dr. Solano satisfies the first element of his prima facie case because he is

homosexual, and sexual orientation falls within the umbrella of “sex” for purposes of Title VII.

Thus, he is a member of a protected class. He also satisfies the second element because he

alleges that he holds a Ph.D. in industrial engineering, is fluent in English, has worked at SRU

since 2009, and was thus qualified both for employment at SRU and promotion to chair of his

department. (ECF No. 11, §§ 17, 19, 22). He further states that he was eventually elected chair,

in part because the faculty favored his “strategic vision” for the department. (/d. { 29).

However, Dr. Solano fails to plead sufficient facts that meet the third and fourth elements

of a prima facie case. The University Defendants highlight that he merely points to “his general

frustration with her [Dr. Nicholls] complaints and a cancelled department chair vote” to

demonstrate that he was subjected to an adverse employment action. (ECF No. 16, p. 9). But, as

already mentioned herein, Dr. Solano became the department chair, and he fails to plead facts

showing that he was subjected to an adverse employment action. He attempts to remedy this

defect by accusing SRU of reorganizing his department by transferring the sports management

program to another department, causing a decrease in responsibilities, department faculty, and,

ultimately, his pay. (Jd. at 9); (ECF No. 11, §§ 112, 165-66). However, the Court sees this as

nothing more than an administrative/department transitional decision made in SRU’s regular

course of business. Further, the fourth element requires the adverse employment action to have

occurred under the circumstances that could give rise to an inference of intentional

discrimination. Dr. Solano failed to plead facts that draw a direct connection between the

alleged adverse employment action and Dr. Nicholls’ alleged harassment or comments and, thus,

the Court cannot plausibly infer intentional discrimination.

A plaintiff can make out a prima facie case of sex discrimination by pointing to a

similarly-situated individual who is outside the plaintiffs protected class, who engaged in the

same conduct as the plaintiff, but whom the defendant treated more favorably. Simpson v. Kay

Jewelers, 142 F.3d 639, 646 (3d Cir. 1998). Where a plaintiff claims to have

suffered disparate treatment but does not refer to any similarly-situated individuals and their

similar protected conduct, the plaintiff's allegations are insufficient to state a clatm under Rule

12(b)(6). See e.g., Hobson y. St. Luke’s Hosp. and Health Network, 735 F.Supp.2d 206, 213

(E.D. Pa. 2010). Here, the amended complaint does not identify any other similarly situated

employees, nor does it reference facts to support Dr. Solano’s averment that SRU treated him

differently from similarly situated female and/or heterosexual faculty members. Dr. Solano

alleges that he was subjected to “adverse employment action on the basis of his sex and sexual

orientation” and that “similarly situated female and/or non-homosexual faculty members at SRU

were not subjected to similar adverse employment action.” (ECF No. 11, □□ 170-71).

Nevertheless, Twombly is clear that such a formulaic recitation of the elements of a cause of

action is insufficient to state a plausible claim. Twombly, 550 U.S. at 555; see also Fisher v.

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Catholic Soc. Servs., 2019 WL 3731688, (E.D. Pa. Aug. 8, 2019) (dismissing plaintiff's

discrimination claims where plaintiff failed to plead direct evidence of different treatment based

on protected class and where plaintiff failed to identify a similarly-situated comparator.). Dr.

Solano’s conclusory allegation does not offer any additional support as to the working conditions

or complaints against other female or heterosexual faculty members. An allegation of this

nature, that tenders threadbare assertions devoid of further factual enhancement, does not have

sufficient facial plausibility to allow for a reasonable inference that the University Defendants

are liable for the alleged discrimination. Thus, the Court cannot draw a reasonable inference that

the University Defendants are liable for the alleged difference in treatment based on sex/sexual

orientation. The Court will dismiss Count II of the amended complaint.

3. Count IV — Discrimination on the basis of sex/sexual orientation under Title [X

Dr. Solano brings a discrimination claim on the basis of sex/sexual orientation in

violation of Title IX at Count IV. (ECF No. 11, p. 19). He states that SRU receives funding

from the federal government as a state-owned institution of post-secondary education, and that

Title IX prohibits educational institutions that receive federal funding from engaging in

discrimination on the basis of sex. (/d. 189-190). He alleges that he is an openly homosexual

man and that “attacks on [him] were specifically homophobic in that he was accused of favoring

young, male faculty for favorable assignments.” (/d. §{ 191, 194). He further alleges that

similarly situated female and/or non-homosexual faculty members at SRU were not subjected to

similar adverse employment action. (Jd. § 203). In response, the University Defendants argue

that the facts alleged do not bear an inference of intentional discrimination and that none of Dr.

Nicholls’ conduct or comments infer animus based on his sexual orientation. (ECF No. 16, pp.

5-11).

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To establish a Title IX claim for sex discrimination, the plaintiff must plead that (1) 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., 290 F. Supp. 3d 321, 326 (M.D. Pa. 2017) (quoting Evancho v. Pine-Richland

Sch. Dist., 237 F. Supp. 3d 267, 295 (W.D. Pa. 2017)).

The University Defendants concede the second element relating to federal funding and

focus only on the remaining elements. (ECF No. 16, p. 5, fn. 1). The Court’s analysis, following

this concession, is the same as that of a Title VII claim. (/d.) Dr. Solano’s failure to plead facts

directly connecting the alleged adverse employment action and harassment or a case involving a

similarly-situated individual does not infer intentional discrimination. Thus, the Court

incorporates the prior analysis and holding as to the Title VII discrimination case.

It additionally notes that Dr. Solano cites cases in his argument that, ultimately, support

the University Defendants’ dismissal argument. He references two cases in which motions to

dismiss were denied where “false rumors that a female subordinate was having an affair with a

male superior was sufficient to support a sex discrimination claim” and “the insinuation that

homosexual men are promiscuous could support a finding that a plaintiff was subjected to a

discriminatory or a hostile work environment.” (ECF No. 22, p. 6). The allegation against Dr.

Solano, that he favored “. . . younger, male faculty with respect to scheduling .. .” is vastly

different than the allegations contained within the cases he cites. (/d.). An allegation of

“favoritism” with nothing more is not the same thing as spreading rumors of a workplace affair

or the specific insinuation that male homosexuals are promiscuous. More specifically, in the

Erdmann case which Dr. Solano cites, the supervisor characterized the plaintiff employee’s

homosexuality as sinful and urged the employee to adopt her [the supervisor’s] religion, and the

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court denied summary judgment in the plaintiffs favor. Erdmann y. Tranquility, Inc., 155 F.

Supp. 2d 1152, 1156 (N.D. Cal. 2001). This type of characterization is far from what occurred in

Dr. Solano’s case. There are not enough facts alleged to push these alleged accusations against

Dr. Solano into the same category of cases upon which he relies. Thus, the Court will dismiss

Count IV of the amended complaint for failure to state a claim.”

2 Dr. Solano raises a “cat’s paw” theory in conjunction with his national origin and sexual

orientation discrimination claims but does not allege satisfactory facts. “Today the term ‘cat's-

paw’ refers to ‘one used by another to accomplish his purposes.’ ... In the employment

discrimination context, ‘cat's paw’ refers to a situation in which a biased subordinate, who lacks

decision-making power, uses the formal decisionmaker as a dupe in a deliberate scheme to

trigger a discriminatory employment action.” E.E.0.C. v. Coca-Cola Bottling Co. of Los

Angeles, 450 F.3d 476, 484 (10th Cir. 2006). Under the theory, an “employer is at fault because

one of its agents committed an action based on discriminatory animus that was intended to cause,

and did in fact cause, an adverse employment decision.” Staub v. Proctor Hosp., 562 U.S. 411,

421 (2011). As to Eubanks’ cat's paw theory of liability, an employer may “be liable for

employment discrimination if the source of illegal animus was not the final employment

decision-maker but rather another employee whose animus proximately caused the adverse

employment action at issue in the case.” Mason v. Se. Pa. Transp. Auth., 134 F. Supp. 3d 868,

874 (E.D. Pa. 2015) (citing McKenna v. City of Phila., 649 F.3d 171, 178 Gd Cir. 2011)); see

also Carter v. Midway Slots & Simulcast, 894 F. Supp. 2d 529, 543 (D. Del. 2012), aff'd, 511 F.

App'x 125 (3d Cir. 2013). Eubanks had to establish (1) a genuine issue of material fact

concerning the bias of the subordinate and (2) a genuine issue of material fact “as to whether the

proffered reason for the employment action is pretextual, which in a [cat's paw] claim requires

[Eubanks] to demonstrate a causal relationship between the subordinate's actions and the

employment decision.” Mason, 134 F. Supp. 3d at 874 (quoting E.E.O.C, 450 F.3d at 488.). To

establish a causal relationship between the actions of a subordinate and the employment decision,

a plaintiff must show proximate cause—‘ ‘some direct relation between the injury asserted and

the injurious conduct alleged’ and excludes links that are ‘remote, purely contingent, or indirect.’

” Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 330 (3d Cir. 2015) (quoting Staub, 562 U.S. at

419). Dr. Solano argues that, as a voting member of the Management and Marketing

Department, she has input and influence over hiring and personnel decisions, and that she has

close relationships with SRU administrators. (ECF No. 22, p. 9); (ECF No. 11, 9/31, 32). He

states that due to these relationships and status, SRU itself can be held liable for Dr. Nicholls’

alleged discriminatory behavior. It has been established herein that Dr. Nicholls is not Dr.

Solano’s supervisor. However, the University Defendants argue that, per the above, Dr. Solano

must be able to establish a causal link between the actions of a subordinate/non-supervisor and

the employment decision. (ECF No. 24, p. 4). The Court incorporates its prior reasoning herein

that no adverse employment action occurred, but even if it were to find the opposite, Dr.

Solano’s factual averments fall short of establishing any causal link between Dr. Nicholls’

behavior and the opinions/decisions of SRU’s administration. Dr. Solano alleges no facts

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4. Count III: Retaliation under Title VII

Dr. Solano brings a retaliation claim in violation of Title VII at Count HI. (ECF No. 11,

p. 18). He alleges that he was subjected to homophobic harassment and that following his

complaints, the election for department chair was nullified, the number of faculty members

within the department was reduced, his income decreased, and that SRU administrators worked

in furtherance of Dr. Nicholls’ ongoing harassment campaign aimed at harming his career. (d.

174, 179, 180, 181, 183). In response, the University Defendants argue that Dr. Solano’s

claim fails because he is unable to plead facts establishing the second and third elements of a

prima facie retaliation claim. (ECF No. 16, p. 15).

To establish a prima facie case for retaliation under Title VII, a plaintiff must prove that

(1) he is engaged in activity protected by Title VII, (2) the employer took an adverse

employment action against him, and (3) there was a causal connection between his participation

in the protected activity and the adverse employment action. Moore v. City of Philadelphia, 461

F.3d 331, 340-41 (3d Cir. 2006) (citing Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995)).

The Supreme Court of the United States has found that the discrimination and retaliation

provisions of Title VII have different statutory language and different purposes, and accordingly,

“that the anti-retaliation provision, unlike the substantive provision, is not limited to

discriminatory actions that affect the terms and conditions of employment.” Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 63-64 (2006). Specifically, judicial standards for sexual

harassment must filter out complaints attacking “the ordinary tribulations of the workplace, such

as the sporadic use of abusive language, gender-related jokes, and occasional teasing.” Jd. at 68

showing that Dr. Nicholls’ “close relationships” with members of the administration equate to

the administration sharing in or encouraging her alleged animus.

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(citing Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). The Supreme Court reasons

that this standard is in place due to the importance of separating significant harms from trivial

harms. Jd. Further, to establish a causal connection, a plaintiff must show a connection between

his or her opposition to, or participation in proceedings against, unlawful discrimination and an

action that might have dissuaded a reasonable worker from making or supporting a charge of

discrimination. Moore, 461 F.3d at 342.

It is established, and the University Defendants concede, that Dr. Solano engaged in

protected activity when he complained of Dr. Nicholls’ allegedly homophobic harassment to the

SRU administration, satisfying the first element. As to the second element, the Court has already

held that Dr. Solano fails to plead that SRU took an adverse employment action. Dr. Solano

argues that “the hostile work environment [he] has been experiencing is itself an adverse

employment action.” (ECF No. 22, p. 11). Not only is this statement conclusory, but the Court

has found that he failed to establish the existence of a hostile work environment.

As to the third element, even if the Court were to hold that an adverse employment action

existed, Dr. Solano is unable to sufficiently plead causation. He attempts to argue that shortly

after his complaints about Dr. Nicholls’ disconcerting behavior, the hostility towards him

worsened, establishing causation, and that from the evidence gleaned from the record as a whole,

causation can be inferred. (/d. at 14-15). Dr. Solano tries to support this with the claim that he

attempted to raise concerns regarding the ongoing harassment that he has been experiencing with

SRU Provost Michael Zeig, but was cautioned against doing so by SRU administrators. (ECF

No. 11, § 97).

The University Defendants counter with the following timeline of events: Dr. Nicholls

filed her EEOC complaints against Dr. Solano and SRU in October 2022, then Dr. Solano found

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out in October 2023 that the internal investigation had been terminated with a finding that he did

not violate SRU’s Harassment and Discrimination policy, and that four months later, SRU

cancelled the department chair election in February 2024. (ECF No. 11, 9] 60, 79, 101). And

Dr. Solano alleges that he complained to the SRU HR department about Dr. Nicholls’ comments

as early as 2019, right after he mentions one of her complaints occurred. (Id. {ff 41-42). While

there is no bright-line rule for what amount of time demonstrates unusually suggestive behavior,

“a span of days, and not months, satisfies the requirement because of the ‘unusually suggestive’

timing.” Ahern v. Eresearch Tech., Inc., 183 F. Supp. 3d 663, 669-70 (E.D. Pa. 2016) (citing

Farrell y. Planters Lifesavers Co., 206 F.3d 271, 279 n.5 (3d Cir. 2000)). For an unusually

suggestive temporal proximity to have occurred between Dr. Solano’s protected activity and the

alleged retaliatory action, the election cancellation should have occurred much closer in time to

Dr. Nicholls’ alleged behavior and Dr. Solano’s subsequent complaints. However, the election

cancellation did not occur until 2024, well over two years after Dr. Solano first complained to the

university. The Court finds that no such causal connection exists, nor can one be inferred from

the amended complaint’s allegations.

Count III will be dismissed.

5. Count V: Retaliation under Title IX

Dr. Solano also brings a retaliation claim in violation of Title [X at Count V, alleging the

same theory of relief as that contained within Count III. (ECF No. 11, p. 21). The Title VI

retaliation framework is used to analyze claims under Title IX. See Franklin v. Gwinnett Cnty.

Pub. Schs., 503 U.S. 60, 75 (1992) (relying on Meritor Sav. Bank, FSB y. Vinson, 477 U.S. 57,

64 (1986), a Title VII case, in determining discrimination under Title IX). To state a claim for

retaliation under Title [X, the plaintiff must plausibly allege that he “engaged in activity

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protected by Title [X,” that he “suffered an adverse action,” and that “there was a causal

connection between the two.” See, e.g., Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545, 564 Gd

Cir. 2017) (cleaned up); Moore v. City of Phila., 461 F.3d 331, 340-42 (Gd Cir. 2006). The

analysis must include a federally funded educational institution that engaged in an adverse

employment action.

As discussed above, Dr. Solano failed to meet the requisite elements under the Title VII

retaliation framework for a prima facie case. The Court incorporates that analysis and finds that

he also fails to plead a prima facie case under the Title IX retaliation framework. The Court will

dismiss Count V of the amended complaint.

B. Dr. Solano’s Claims Arising Under the RA and the ADA

Dr. Solano brings two disability discrimination claims in violation of the RA and the

ADA at Counts VI and VII, respectively. (ECF No. 11, pp. 23-26). He alleges that he suffers

from and has been treated for severe anxiety and depression, and that his mental condition has

led to the impairment of basic bodily functions — “namely thinking.” (Ud. §{ 228, 231). He

further alleges that SRU administrators were fully aware of the ongoing harassment directed

toward him, that this adverse treatment exacerbated his mental health problems, and that

similarly situated non-disabled faculty members were not subjected to similar treatment. (Ud. □

235, 242, 244). In response, the University Defendants argue that Dr. Solano’s claims fail

because he is unable to plead facts establishing a true disability or that he suffered adverse

employment action. (ECF No. 16, p. 16).

A plaintiff's claims under both the RA and the ADA may be analyzed together because

the substantive standards for determining liability are the same. McDonald v. Com. Of Pa.,

Dep’t of Pub. Welfare, Polk Ctr., 62 F.3d 92, 95 (3d Cir. 1995). For either claim, a plaintiff must

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plausibly allege that (1) he is a disabled person, (2) he is otherwise qualified to perform the

essential functions of the job, with or without reasonable accommodations, and (3) he suffered an

otherwise adverse employment decision as a result of discrimination. Gibbs v. City of

Pittsburgh, 989 F.3d 226, 229 (3d Cir. 2021) (see also Gaul v. Lucent Techs., Inc., 134 F.3d 576,

580 (3d Cir. 1998)). The RA and ADA provide that an individual is disabled if he (1) has a

physical or mental impairment that substantially limits one or more major life activities, (2) has a

record of such an impairment, or (3) is regarded as having such an impairment. Laguna, 616 F.

Supp. 3d at 468 (citing 42 U.S.C § 12102(1)). “A request for a reasonable accommodation is a

protected activity under the ADA.” Mascioli v. Arby’s Rest. Grp., Inc., 610 F. Supp. 2d 419, 448

(W.D. Pa. 2009).

The administrative regulations concerning the ADA define mental impairment as “any

mental or psychological disorder, such as an intellectual disability (formerly termed ‘mental

retardation’), organic brain syndrome, emotional or mental illness, and specific learning

disabilities,” and depressive disorders presumably fall within the emotional illness category. 29

C.F.R § 1630.2(h)(2) (see also Gaul, 134 F.3d at 579-80 (Gd Cir. 1998). The ADA requires a

plaintiff-specific analysis as to whether an individual’s specific disorder impairs his life in a

manner which renders him handicapped or disabled under the acts. Gaul v. AT & T, Inc., 955 F.

Supp. 346, 350 (D.N.J. 1997), aff'd sub nom. Gaul v. Lucent Techs., Inc., 134 F.3d 576 (3d Cir.

1998). “The inquiry is, of necessity, an individualized one — whether the particular impairment

constitutes for the particular person a significant barrier to employment.” Jd. (citing Forrisi v.

Bowen, 794 F.2d 931, 933 (4™ Cir. 1986)).

Turning first to the analysis of whether Dr. Solano is a disabled person, he clearly meets

this definition. “Thinking” is considered a major life activity within the meaning of the ADA.

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Wilkie v. Luzerne County, 207 F. Supp. 3d 433, 438 (M.D. Pa. 2016); see also Taylor vy.

Phoenixville Sch. Dist., 184 F.3d 296, 307 (3d Cir. 1999). He highlights that in Wilkie

specifically, the court held that a reasonable jury could find that the plaintiffs anxiety

substantially limited the major life activity of thinking, placing the claim within the ADA’s

authority. Wilkie, 207 F. Supp. at 437. Federal regulations provide that major life activities

include, but are not limited to, caring for oneself... “concentrating, thinking, communicating,

and working.” Jd. (citing 42 U.S.C. § 12102(2)(A)). Dr. Solano pleads that he has been treated

for severe depression and anxiety, that he has been diagnosed with ADHD, and that his

physicians have prescribed him powerful anti-depressant medications, clearly indicating that he

suffers from these conditions based upon their professional opinions. (ECF No. 11, {ff 125, 228-

230, 248-250). Dr. Solano alleges that his anxiety and depression cause him insomnia, poor

appetite, and fatigue, and that his condition has led to the impairment of basic bodily functions,

specifically, “thinking.” (ECF No. 11, ff 229, 231). He also pleads that he is considering

stepping down as department chair to preserve his health. (Ud. J 130). Dr. Solano need only

meet one of the three prongs to qualify as “disabled,” and with the facts averred he meets the

second and third prongs. The Court finds that Dr. Solano has sufficiently pled that he is disabled

and, thus, satisfies the first element.

As to the second element, the amended complaint does not provide sufficient facts to

support Dr. Solano’s conclusory allegation that SRU failed to accommodate his disability. Dr.

Solano does not allege that he specifically requested a reasonable accommodation. The amended

complaint contains no facts regarding the manner in which he reported his disability or requested

accommodations, what Dr. Solano allegedly reported and requested, to whom he made his

alleged reports and requests, or when he made them. All that is alleged is that “SRU

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administrators are aware of Dr. Solano’s mental health problems and ADHD diagnosis,” and that

“SRU has not taken any steps to accommodate Dr. Solano’s disability.” (ECF No. 11, 126,

129). Regardless of this, Dr. Solano has adequately pled that he was qualified to perform the

essential functions of his job. The Court held earlier herein, “Dr. Solano was qualified for his

position at SRU” made clear via his education, credentials, and experience. (ECF No. 11, { 252).

As to the third element, the Court is unable to hold, as already discussed herein, that Dr.

Solano was subjected to an adverse employment action.

Counts VI and VII will be dismissed.

C. Dr. Solano’s Claims Arising Under the PHRA

Dr. Solano brings two discrimination claims, at Count VIII and Count IX, and one

retaliation claim at Count X in violation of the PHRA against McCoy. (ECF No. 11, pp. 23-26).

He alleges the same facts for these claims that he did for Counts I, I, and HI, and more

specifically, he alleges that as a supervisory employee, McCoy aided and abetted the

discriminatory actions against Dr. Solano. (Jd. at 282, 300, 316). In response, the University

Defendants argue that Dr. Solano’s claims against McCoy fail because they are barred by

sovereign immunity. (ECF No. 16, p. 18).

To timely file a suit under the PHRA, a plaintiff must file a claim with the Pennsylvania

Human Relations Commission (““PHRC”) within 180 days of the alleged act. Woodson v. Scott

Paper Co., 109 F.3d 913, 925 (3d Cir.1997). To prove disparate treatment or discrimination

under the PHRA, a plaintiff must show that (1) he belongs to a protected class, (2) he was

qualified for the position, (3) he was subject to an adverse employment action despite being

qualified, and (4) the action occurred under circumstances raising an inference of unlawful

discrimination. Wilson vy. Columbia Gas of Pennsylvania, 676 F. Supp. 3d 424, 435 (W.D. Pa.

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2023) (see also Rosencrans v. Quixote Enters., 755 F. App’x 139, 141 (3d Cir. 2018)).

Additionally, to prove retaliation under the PHRA, the plaintiff must meet the same three

elements required for retaliation under Title VII. Yeager v. UPMC Horizon, 698 F. Supp. 2d

523, 543 (W.D. Pa. 2010) (citing Slagle v. County of Clarion, 435 F.3d 262, 265 (3d Cir. 2006)).

The University Defendants argue that sovereign immunity precludes each of Dr. Solano’s

PHRA claims, filed against McCoy, personally. The PHRA imposes liability upon supervisory

employees who engage in discriminatory actions. 43 P.S. § 955(e) (2025). Per Pennsylvania’s

sovereign immunity statute, a Commonwealth employee acting within the scope of his or her

employment or duties is protected by sovereign immunity from the imposition of liability for

intentional tort claims. Holt v. Nw. Pennsylvania Training P’ship Consortium, Inc., 694 A.2d

1134, 1140 (Pa. Commw. Ct. 1997). A “Commonwealth party,” which Pennsylvania’s

Sovereign Immunity Act shields from civil liability, is defined broadly enough to include “any

employee” of a “Commonwealth agency” but “only with respect to an act within the scope of his

or her office of employment.” Mitchell vy. Miller, 884 F. Supp. 2d 334, 380 (W.D. Pa. 2012)

(citing 42 Pa. C.S.A. § 8501). Discriminatory and retaliatory acts committed within the

employment context are not among the categories of conduct which the Sovereign Immunity Act

has expressly waived the immunity from liability. Jd. However, Eleventh Amendment

sovereign immunity does not apply to officials who are sued in their individual capacities. /d. at

381 (citing Hafer v. Melo, 502 U.S. 21, 29-31 (1991)).

Sovereign immunity does not apply to Dr. Solano’s three PHRA claims because he

clearly states that “this claim is being brought against Defendant McCoy in her personal

capacity.” (ECF No. 11, § 268, 285, 303). The merits of these claims must be considered.

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Dr. Solano cross-filed each of his complaints with the PHRC, indicating that he

exhausted the appliable administrative remedy. In terms of the facts alleged as to McCoy, she

has oversight over the internal grievance process, she was or should have been aware of the fact

that Dr. Nicholls’ complaints were baseless yet still used them as a basis to conduct frivolous

investigations into Dr. Solano’s conduct, she failed to protect Dr. Solano from further harassment

and served to facilitate his continued harassment, and that she knew a hostile work environment

existed yet did nothing to curtail it. (ECF No. 11, 9] 16, 96, 127, 128, 137).

As to Count VIII and Count IX, the factual averments do not change the analysis

regarding discrimination on the basis of national origin or sex/sexual orientation. Dr. Solano’s

accusations against McCoy are threadbare and conclusory, at best. He neglects to plead specific

facts supporting how she “served to facilitate the continued harassment” — leaving the Court to

make that inference in his favor, which the Court is not inclined to do given his deficient

pleading. As to Count X, the Court draws the exact same conclusion. Dr. Solano failed to meet

the requisite elements proving a retaliation claim under Title VII, and with no change to the

analysis for a PHRA retaliation claim, the Court finds that Dr. Solano does not meet his burden.

The Court will dismiss Counts VII, IX, and X.

IV. CONCLUSION

For the foregoing reasons, the Court will grant Defendants’ motion to dismiss. Orders of

Court will follow.

Dated: _lialzs BY THE COURT:

WILLIAM S. STICKMAN IV

UNITED STATES DISTRICT JUDGE

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