Pahlevani

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

FARANAK PAHLEVANI, PH.D.,

Plaintiff, CIVIL ACTION NO. 3:23-cv-01189

v. (SAPORITO, J.)

THE PENNSYLVANIA STATE

UNIVERSITY

Defendant.

MEMORANDUM

This is an employment discrimination action. The plaintiff,

Faranak Pahlevani, Ph.D., is a female mathematics professor employed

by The Pennsylvania State University (“Penn State”). The main campus

of the defendant, her employer, Penn State, is located in Centre County,

Pennsylvania. Dr. Pahlevani teaches at Penn State Abington, a branch

campus of Penn State located in Montgomery County, Pennsylvania. Dr.

Pahlevani was born in Iran, and she is of the Middle-Eastern Iranian

race.

Dr. Pahlevani has brought claims of workplace sex, race, and

national origin discrimination. In her complaint, she alleges that, over

the course of several years, beginning in May 2016 and continuing until

the present, she was paid less than an American-born Caucasian male

colleague, Matthew A. Fury, Ph.D., despite their work requiring equal

skill, effort, and responsibilities. Her four-count complaint asserts a

racial discrimination claim under the Civil Rights Act of 1866, 42 U.S.C.

§ 1981, sex, race, and national origin discrimination claims under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, a sex

discrimination claim under Title IX of the Education Amendments of

1972, 20 U.S.C. § 1681(a), and a sex discrimination claim under the

Equal Pay Act of 1963, 29 U.S.C. § 206(d). For relief, she seeks an award

of damages.

Her employer has moved for summary judgment. Doc. 40. That

motion is fully briefed and ripe for decision. Doc. 45 (sealed); Doc. 52

(sealed); Doc. 56 (sealed).

I. LEGAL STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary

judgment should be granted only if “there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A fact is “material” only if it might affect the outcome

of the case. , 477 U.S. 242, 248 (1986). A

dispute of material fact is “genuine” only if the evidence “is such that a

reasonable jury could return a verdict for the non-moving party.”

, 477 U.S. at 248. In deciding a summary judgment motion, all

inferences “should be drawn in the light most favorable to the non-

moving party, and where the non-moving party’s evidence contradicts the

movant’s, then the non-movant’s must be taken as true.”

, 24 F.3d 508, 512 (3d Cir. 1994).

The party seeking summary judgment “bears the initial

responsibility of informing the district court of the basis for its motion,”

and demonstrating the absence of a genuine dispute of material fact.

, 477 U.S. 317, 323 (1986). If the movant makes

such a showing, the non-movant must set forth specific facts, supported

by the record, demonstrating that “the evidence presents a sufficient

disagreement to require submission to the jury.” , 477 U.S. at

251–52.

In evaluating a motion for summary judgment, the Court must first

determine if the moving party has made a prima facie showing that it is

entitled to summary judgment. Fed. R. Civ. P. 56(a); , 477 U.S.

at 331. Only once that prima facie showing has been made does the

burden shift to the non-moving party to demonstrate the existence of a

genuine dispute of material fact. Fed. R. Civ. P. 56(a); , 477

U.S. at 331.

Both parties may cite to “particular parts of materials in the record,

including depositions, documents, electronically stored information,

affidavits or declarations, stipulations (including those made for the

purposes of the motion only), admissions, interrogatory answers or other

materials.” Fed. R. Civ. P. 56(c)(1)(A). “An affidavit or declaration used to

support or oppose a motion must be made on personal knowledge, set out

facts that would be admissible in evidence, and show that the affiant or

declarant is competent to testify on the matters stated.” Fed. R. Civ. P.

56(c)(4). “Although evidence may be considered in a which is

inadmissible at trial, the of the evidence must be capable of

admission at trial.” , 994 F. Supp. 2d 593, 599

(M.D. Pa. 2014); , 192 F.3d

378, 387 n.13 (3d Cir. 1999) (noting that it is not proper, on summary

judgment, to consider evidence that is not admissible at trial).

II. MATERIAL FACTS1

Dr. Pahlevani was initially offered a tenure-track position as an

1 In compliance with Local Rule 56.1, the defendant’s motion for

partial summary judgment is “accompanied by a separate, short and

concise statement of the material facts, in numbered paragraphs, as to

which the moving party contends there is no genuine issue to be tried,”

Doc. 42-2 (sealed). M.D. Pa. L.R. 56.1. Moreover, each factual statement

presented by the defendants in support of their respective motions for

summary judgment “include[s] references to the parts of the record that

support the statements.” ; Fed. R. Civ. P. 56(c)(1).

A party opposing summary judgment is likewise required by the

local rules to file “a separate, short and concise statement of the material

facts, responding to the numbered paragraphs” in the movant’s

statement of material facts, which must similarly “include references to

the parts of the record that support the statements.” M.D. Pa. L.R. 56.1.

Here, the non-moving plaintiff has filed the requisite responsive

statement of material facts, responding to the numbered paragraphs of

the moving defendant’s statement of material facts. Doc. 51 (sealed)

¶¶ 1–310. But in addition to her responsive statement of material facts,

the plaintiff has also filed a separate “counter-statement of material

facts” that does not respond to the defendant’s statement of material

facts. ¶¶ 311–91. The local rules do not permit a non-moving party to

file an statement of material facts that does not respond to the

movant’s statement. , 353 F. Supp. 3d 342, 347 n.1

(M.D. Pa. 2018) (disregarding non-movant’s additional statement of facts

for non-compliance with Local Rule 56.1); , 131 F. Supp.

3d 321, 322 n.1 (M.D. Pa. 2015) (declining to consider separate counter-

statement of facts that was non-responsive to the movant’s statement

because it was “neither contemplated nor permitted by the Local Rules”);

, 793 Fed. App’x 84, 87 (3d

Cir. 2019) (upholding district court decision to strike non-movant’s non-

responsive counter-statement of facts under Local Rule 56.1);

, 909 F.3d 604, 613–14 (3d Cir. 2018) (upholding

district court decision to strike non-responsive paragraphs from non-

Assistant Professor of Mathematics at Penn State Abington in January

2010, with an August 2010, fall semester, start date. She had prior

experience teaching at Ramapo College of New Jersey and Medgar Evers

College before she was hired to be an Assistant Professor at Penn State

Abington.

Dr. Pahlevani received the offer to work as an Assistant Professor

of Mathematics at Penn State Abington from then-Chancellor and Dean

of Penn State Abington, Karen Wiley Sandler, who offered Pahlevani a

starting salary of $55,008 per year.

Shortly after Dr. Pahlevani received her job offer, Chancellor

Sandler also issued a job offer to Matthew Fury, Ph.D., a male, to begin

working as a tenure-track Assistant Professor of Mathematics, to begin

in the fall semester, beginning in August 2010. Dr. Fury obtained his

Ph.D. in Mathematics in the spring of 2010. Chancellor Sandler offered

Dr. Fury a starting salary of $52,506 per year.

Dr. Pahlevani and Dr. Fury began their work as tenure-track

Assistant Professors in the Math Department at Penn State Abington at

movant’s answer to movant’s statement of material facts under Local

Rule 56.1). Thus, we have simply disregarded the plaintiff’s non-

responsive additional “counter-statement of material facts.”

the same time, in the fall semester, beginning in August 2010. At the

outset, Dr. Pahlevani was paid a starting salary $2,502 higher than Dr.

Fury’s starting salary. Both were paid monthly by Penn State on or about

the last day of each month.

One year prior to hiring Dr. Pahlevani and Dr. Fury, Penn State

Abington hired Michael Tepper, Ph.D., a male, to work as an Assistant

Professor of Mathematics. Dr. Tepper had prior experience teaching at

Temple University and Baruch College (part of the City University of

New York) before he was hired as an Assistant Professor at Penn State

Abington. Penn State Abington offered Dr. Tepper a starting salary of

$55,008 per year.

Penn State Abington Professors of Mathematics, including the

plaintiff, are directly supervised by Penn State Abington’s Science and

Engineering Division Head. Division Heads serve as something like a

department chair or an academic dean. They are responsible for

leadership around academic affairs, including development of schedules

for academic programming, ensuring student success within their units,

and working through the annual faculty performance review and

promotion and tenure processes. Although a Division Head may engage

in teaching a class, they are mostly released from teaching to engage in

leadership and administration, and they are paid different, higher

salaries than faculty.2

At the time of Dr. Pahlevani’s initial hire, that official was Leah

Devlin, a woman. At some time prior to January 2014, Dr. Devlin was

succeeded in that position by Ann Schmiedekamp, also a woman. In

October or November 2015, Dr. Shmiedekamp was succeeded in that

position by Zafer Hatahet, a Middle Eastern man born in Syria.

Beginning on August 16, 2021, Dr. Fury, a Caucasian male, became

Penn State Abington’s Interim Science and Engineering Division Head,

succeeding Dr. Hetahet. He was then hired and served as the permanent

Science and Engineering Division Head from July 1, 2022, until the end

of June 2024. Once permanently appointed as Division Head, Dr. Fury

was paid $145,008. The last time Dr. Fury taught a full schedule of

classes as a faculty member was Spring 2021.

2 The non-moving plaintiff’s response indicates that she disputes

this factual statement, but her answer to this fact statement is non-

responsive, stating only that such administrators receive a base salary

and supplemental compensation for administrative duties, citing a letter-

agreement confirming the terms of Dr. Fury’s appointment as Interim

Division Head in August 2021. Thus, the moving defendant’s statement

of fact is deemed admitted.

The current Science and Engineering Division Head is Judith

Ozment, a woman.

Within the various Divisions at Penn State Abington, there are also

Program Chairs, who are tasked with being the connection between

faculty and Division Heads, scheduling classes, providing faculty with

professional development, and generally providing information to faculty

within a particular department. Dr. Tepper has been Chair of the

Mathematics Program at Penn State Abington from 2015 to present. In

that role, Dr. Tepper has never been Dr. Pahlevani’s direct supervisor, but

he has been tasked with providing management and administrative

support for the Math Department and its faculty. Program Chairs engage

in teaching but are frequently compensated through a combination of

course reassignments and stipend for work performed, which is

determined through negotiation with their respective Division Heads.

Chancellor Sandler served as Chancellor and Dean of Penn State

Abington between 1994 and July 1, 2016. Between June 2016 and July

2020, Dr. Damian Fernandez, a Cuban-born man, served as Chancellor

of Penn State Abington. Dr. Margo Dellicarpini became Chancellor in late

2020 or early 2021.

Between 2016 and 2024, Dr. Andrew August served as Vice

Chancellor for Academic Affairs, in which role he served as Chief

Academic Officer and was responsible for overseeing all of the academic

activities of Penn State Abington. He remains currently employed as a

Professor of History at Penn State Abington.

At the end of June or beginning of July 2024, Dr. Fury was

promoted to work as Penn State Abington’s Interim Vice Chancellor for

Academic Affairs, succeeding Dr. August in the role. As Interim Vice

Chancellor, Dr. Fury oversaw three Division Heads and directly

supervised Penn State Abington’s Student Success Coordinator, Global

Programs Director, Advising Manager, and the Coordinator for the Vice

Chancellor. He also oversaw promotion and tenure reviews and

sabbatical applications, and he was considered the Chief Academic

Officer and the Chief Director of Undergraduate Education Policy,

reporting directly to the Chancellor and Dean. As Interim Vice

Chancellor, Dr. Fury no longer taught any classes.

Throughout Dr. Pahlevani’s tenure at Penn State Abington, Daniel

Meuleners worked as Penn State Abington’s Financial Officer; he has

worked for Penn State Abington for approximately thirty years.

Between 2016 and 2022, Lisa Marranzini worked as a Regional HR

Strategic Partner for Penn State. Ms. Marranzini oversaw operations at

Penn State Abington as part of her Regional HR Strategic Partner role

from 2016 to 2022. In 2023, Ms. Marranzini began reporting to Penn

State’s University Park campus as the Assistant Vice President for

Administration and Chief of Staff for Penn State’s Commonwealth

Campuses.3

Penn State has a policy,

, which prohibits discrimination and

harassment in all forms, as well as retaliation related to reports of such

conduct.4 The policy specifically prohibits discrimination or harassment

3 Penn State Abington is one of twenty Penn State branch campuses

across the state.

4 The non-moving plaintiff’s response indicates that she disputes

this factual statement, but in support, she cites only to her own counter-

statement of facts . Thus, this statement of material fact by the

moving defendant is deemed admitted.

, 21 F. Supp. 3d 442, 448 (E.D. Pa. 2014) (“The party opposing

summary judgment must cite specific evidence in the record and may

not[] ‘rest solely on assertions made in the pleadings, legal memoranda,

or oral argument.’”); , 442

F.3d 812, 820 n.8 (3d Cir. 2006) (“Judges are not like pigs, hunting for

truffles buried in the record.”) (internal quotation marks omitted);

, 636 F. Supp.

2d 368, 399 (M.D. Pa. 2009) (“[I]t is not the Court’s responsibility to

dredge through the record evidence to find questions of material fact.”).

against any person because of their actual or perceived race, national

origin, sex, or gender.5 This policy is a companion to another policy, AD85,

which states Penn State’s policy against discrimination and harassment

under Title IX.6 Dr. Pahlevani, Dr. Fury, Dr. Tepper, Dr. Hetahet,

Chancellor Sandler, Chancellor Fernandez, Chancellor Dellicarpini, Dr.

August, Mr. Meuleners, and Ms. Marranzini each received annual ethics

and compliance training.7

Penn State Abington’s professors undergo annual performance

reviews. Those who have been hired into tenure eligible positions (i.e.,

tenure track) undergo promotion and tenure reviews (“P&T reviews”) in

or around their second, fourth, and sixth years of employment. They are

not subject to an annual performance review during these P&T review

5 note 4.

6 note 4.

7 The plaintiff does not dispute that she received this training. She

contends that the evidence cited by the moving defendant does not

support the defendant’s statements that others received this training as

well, but we note that the cited materials include certificates of training

for multiple faculty members, including Pahlevani, Fury, Tepper, and

others. Dr. Pahlevani also disputes the defendant’s additional

characterization of this training in its statement of material facts, albeit

without citing any evidence to the contrary. note 4. We have

nevertheless disregarded this additional characterization as it is

immaterial to our decision.

years. Tenure-track professors may be promoted from Assistant Professor

to Associate Professor, and then from Associate Professor to Full

Professor.

During annual performance reviews, a professor’s performance is

assessed across three categories: (a) teaching; (b) research; and

(c) service.8 To prepare for the annual performance review process,

professors must compile and submit a Faculty Activity Report (“FAR”)

detailing their teaching, research, and service activities. A professor’s

FAR serves as the basis for his or her annual performance review and

impacts what, if any, merit increase he or she may receive to his or her

salary following that review.9 Each professor is responsible for putting

the FAR together for submission to his or her Division Head.

In the first year of her employment at Penn State Abington, Dr.

Pahlevani prepared her FAR to contain information about her teaching,

8 The non-moving plaintiff’s response indicates that she disputes

this factual statement, but in support, she cites to certain paragraphs of

her non-responsive counter-statement of material facts, which provide

her own characterization of the annual performance review process as

“subjective and general in nature,” but they do not contradict this

particular statement of fact by the moving defendant. Thus, the moving

defendant’s statement is deemed admitted.

9 note 8.

research, and service activities. After her first year, she used a

University-provided template to complete her FAR, in which a faculty

member could input information about his or her teaching, research, and

service under these categories and titles in the template document. In

this template, data was partially automated into the document, including

numerical teaching ratings from students, and any grants the faculty

member has through Penn State or which had been historically recorded

by Penn State. It was incumbent upon the faculty member to include in

the FAR as much as he or she would like to share with their Division

Head, and then the faculty member would generate a final Microsoft

Word or PDF version of the FAR to send to the Division Head when

completed.

It was explained to all faculty in the Math Department by the

Division Heads for Science and Engineering that it was important to

complete the FAR and that each faculty member should highlight his or

her accomplishments in teaching, research, and service over the

preceding year to be submitted for annual performance review. Preparing

the FAR and submitting it is significant.

As part of the annual evaluation of a professor’s teaching, the FAR

includes student evaluations of teaching (“SRTEs”). Students are asked

to rate their course and instructor on a scale from one to seven, with one

being low or poor, and seven being very high. Students can also provide

open-ended comments as part of their evaluations.

Dr. Pahlevani was aware of the existence of student evaluations

being part of her annual review, and she was informed of the specific

scores given to her by the students over the years because she needed to

include this information in her FAR.

The majority of Division Heads at Penn State Abington have been

professors themselves, and any student comment about a professor’s

accent or the professor speaking English as a second language is not

counted against the faculty member in the annual evaluation.10 Division

Heads also independently verify any negative student comments to

determine their veracity.11 At his deposition, Dr. Hatahet testified that,

10 The non-moving plaintiff’s response indicates that she disputes

this factual statement, but her answer to this fact statement is non-

responsive, stating only that she was informed by Vice Chancellor August

on October 25, 2021, that the student evaluation portion of the annual

review process had been changed from “counting mean to median and the

mode” because minority faculty members were receiving low evaluation

scores. Thus, the moving defendant’s statement is deemed admitted.

11 note 10.

as Division Head, he never saw a student display hostility toward a

faculty member who spoke with an accent, and he had never heard a

student complain about a professor’s accent.

Student evaluations are considered indicators of good teaching;

however, the variety of courses and development of new courses by a

professor are also factors considered in the annual evaluations.12 Part of

the teaching evaluation for the annual review also includes a once-a-year

observation of a professor’s classroom teaching by his or her Division

Head or a designee.13

In their FAR, professors are also asked to report on their research,

which can include juried or peer-reviewed articles, or something

presented at a conference.

The service component of the annual evaluation requires

information in the FAR about a professor’s service in the community, to

the University, to the department, and to the discipline in which the

professor works.

Once a professor’s FAR has been submitted, it is reviewed by the

12 note 10.

13 note 8.

Division Head with supervisory authority over the professor’s

department. Professors are then afforded an opportunity to voluntarily

meet with their Division Head to review and discuss the FAR as part of

the annual review process. During these optional meetings with the

Division Head, professors are able to review the scoring rubric, to discuss

any necessary updates, improvements, or clarifications regarding their

teaching, research, or service, and to discuss their goals going forward.

The goal of the in-person meetings with the Science and Engineering

Division Head was for the professor to go over each category of teaching,

research, and service and to explain in more detail what was done in the

preceding academic year.

After this in-person meeting, the Science and Engineering Division

Head would submit a final letter with scores to the Chancellor.14 Based

on the information contained in a professor’s FAR, as well as any

additional information obtained from the professor during the voluntary

meeting with his or her Division Head, the Division Head would assign a

numerical score to each of the areas of teaching, research, and service,

14 note 8.

ranging from 1 for “poor” to 5 for “excellent.”15 On this scale, a score of 3

is designated as “good,” but it is really a score of “average.”16

Evaluators objectively consider performance indicators when

assigning professors’ categorical scores.17 Overall annual performance

review scores for professors are calculated by taking a weighted average

of each professor’s teaching, research, and service scores, typically

weighted at 60% for teaching, and 20% each for research and service.18

Since Penn State Abington adopted a human resources information

management system called “Workday” in 2018 or 2019, at the end of the

annual performance evaluation process, a professor can check a box

indicating that he or she is not happy with their evaluation to escalate

the issue.19 While Dr. Fury served as Dr. Pahlevani’s Division Head, she

never complained to him that she was displeased with the scores she

received on her evaluations. To date, Dr. Pahlevani has never complained

about or appealed any of the performance scores issued to her by any of

15 note 8.

16 note 8.

17 note 8.

18 note 8.

19 note 8.

her Division Heads.20

In advance of their second, fourth, and sixth year P&T reviews,

professors must provide an overall statement of their activities up to that

time in terms of all areas of teaching, research, and service—referred to

as the professor’s “dossier.” The criteria upon which promotion and

tenure decisions are based include teaching, research, and service, which

are applied in light of the mission of the academic unit and the

professional responsibilities carried by the professor. P&T reviews are far

more extensive than annual performance reviews, and they include

several levels of review by various committees. The P&T review

committees also evaluate professor performance in teaching, research,

and service using the same five-point scale Penn State Abington uses for

annual performance reviews.

The results of a professor’s P&T review are shared with the

professor seeking promotion. Dr. Pahlevani never complained to

20 The non-moving plaintiff’s response indicates that she disputes

this factual statement, but her answer to this fact statement is non-

responsive, stating only that University officials had some difficulty

confirming the accuracy of her performance evaluation ratings when they

compiled them in connection with an August 2019 inquiry into Dr.

Pahlevani’s concerns about her salary. Thus, the moving defendant’s

statement is deemed admitted.

Chancellor Sandler about the performance scores she was given during

her P&T review years.

A professor who receives a positive second year P&T review is

recommended to continue on the tenure track and remains eligible for

promotion. Similarly, a professor who receives a positive fourth year P&T

review is recommended to continue on the tenure track and remains

eligible for promotion. Finally, a professor who receives a positive sixth

year P&T review is promoted from Assistant Professor to Associate

Professor.

Both Dr. Pahelvani and Dr. Fury were promoted to Associate

Professor in 2016.

After certain standards have been met, Associate Professors

become eligible to apply for promotion to Full Professor. Eligible

Associate Professors who are successful in the final P&T review process

are promoted to Full Professor.

The moving defendants have provided comparative information

regarding Dr. Pahlevani’s and Dr. Fury’s performance scores over the ten-

year period between 2011 and 2021.

In 2011, Dr. Pahlevani received annual performance review scores

of 3 (teaching), 3.5 (research), and 4 (service) for an overall score of 3.5;

Dr. Fury received scores of 5 (teaching), 5 (research), and 4 (service) for

an overall score of 5.21

In 2012, Dr. Pahlevani received P&T review scores of 3 (teaching),

3 (research), and 3 (service), and she was recommended to continue on

tenure track; Dr. Fury received scores of 5 (teaching), 3.5 (research), and

4 (service, and he was recommended to continue on tenure track.22

In 2014, Dr. Pahlevani received P&T review scores of 3.5 (teaching),

3 (research), and 4 (service), and she was recommended to continue on

tenure track; Dr. Fury received scores of 5 (teaching), 4 (research), and 5

(service), and he was recommended to continue on tenure track.23

In 2015, Dr. Pahlevani received annual performance review scores

of 4 (teaching), 3 (research), and 5 (service) for an overall score of 4; Dr.

Fury received scores of 5 (teaching), 5 (research), and 5 (service) for an

overall score of 5.24

In 2016, Dr. Pahlevani received P&T review scores of 4 (teaching),

21 note 8.

22 note 8.

23 note 8.

24 note 8.

5 (research), and 5 (service), and she was promoted to Associate

Professor; Dr. Fury received scores of 5 (teaching), 5 (research), and 5

(service), and he was promoted to Associate Professor.25

In 2017, Dr. Pahlevani received annual performance review scores

of 3.5 (teaching), 3 (research), and 5 (service) for an overall score of 3.5;

Dr. Fury received scores of 5 (teaching), 4.5 (research), and 4 (service) for

an overall score of 4.5.26

In 2018, Dr. Pahlevani received annual performance review scores

of 4.5 (teaching), 4 (research), and 4.5 (service) for an overall score of 4.5;

Dr. Fury received scores of 5 (teaching), 4 (research), and 5 (service) for

an overall score of 4.5.27

In 2019, Dr. Pahlevani received annual performance review scores

of 4 (teaching), 3 (research), and 3 (service) for an overall score of 3.5; Dr.

Fury received scores of 5 (teaching), 5 (research), and 5 (service) for an

overall score of 5.28

In 2020, Dr. Pahlevani received annual performance review scores

25 note 8.

26 note 8.

27 note 8.

28 note 8.

of 4 (teaching), 5 (research), and 4 (service) for an overall score of 4.5; Dr.

Fury received scores of 5 (teaching), 5 (research), and 5 (service) for an

overall score of 5.29

In 2021–2022, Dr. Pahlevani received P&T review scores 4

(teaching), 4.5 (research), and 4 (service), and she was promoted to Full

Professor; Dr. Fury received scores of 5 (teaching), 3 (research), and 5

(service), and he was promoted to Full Professor.

Dr. Fury earned the highest possible teaching rating of 5 (excellent)

each and every time his performance was reviewed.30 Professor teaching

scores are the most critical scores in the general salary increase process,

as they are weighted at 60% of the overall score.31 One of Dr. Pahlevani’s

and Dr. Fury’s Division Heads, Dr. Hatahet, testified at his deposition

that Dr. Fury was a “very good teacher” with student evaluations that

were “consistently some of the best in the division,” whereas Dr.

Pahlevani was “good” but “not as engaging as Dr. Fury,” and her student

evaluations were not as good as Dr. Fury’s.32 Dr. Pahlevani never earned

29 note 8.

30 note 8.

31 note 8.

32 note 8.

the highest possible teaching rating of 5 at any point between 2011 and

2021.33

The general salary increase (“GSI”) process is a multi-step process.

If the Penn State Board of Trustees determines that there is sufficient

funding to provide merit-based annual salary increases for faculty in a

particular year, information is provided to the Chancellor of Penn State

Abington about the funds available (the “allocated funds”) for

distribution to professors in the form of salary increases, which are

generally based on the professor’s annual performance review scores.34

When funds are made available for increases, a letter from the

President of Penn State regarding the GSI plan is provided to the

Chancellor, Financial Officer, and HR Strategic Partner of Penn State

Abington, along with guidelines for most effectively administering the

merit increase funds.35 These guidelines provide a suggested range of

33 note 10.

34 The non-moving plaintiff’s response indicates that she disputes

this factual statement, but her answer to this fact statement is non-

responsive, stating only that other factors—such as market

considerations and equity (or fairness)—have been considered and used

at times. Thus, the moving defendant’s statement of fact is deemed

admitted.

35 note 34.

increases for employees who are expectations during that

particular year.36 Penn State Abington has also been instructed to use

the GSI process as an opportunity to recognize excellence beyond just

meeting expectations by providing higher percentage merit increases to

employees whose performance consistently the performance

standards for their positions.37 Penn State has reiterated to Penn State

Abington that it is committed to awarding salary increases principally on

the basis of performance as determined by annual evaluations, and it

charged Penn State Abington with distributing the allocated funds for

professor salary increases in accordance with that commitment.38

As part of the GSI process, and in accordance with Penn State’s

instructions and guidance, Penn State Abington’s Financial Officer or HR

Strategic Partner completed a draft worksheet to distribute the allocated

funds to professors based on their overall annual performance review

scores (the “GSI worksheet”).39 The GSI worksheet, containing all of the

current faculty salaries, is sent from Penn State’s HR department in

36 note 34.

37 note 34.

38 note 34.

39 note 34.

University Park to Penn State Abington’s Financial Officer or HR

Strategic Partner for their use in the GSI process.40

Penn State Abington’s Financial Officer or HR Strategic Partner

also receives a report, either directly from the Division Heads or from the

Vice Chancellor, of the evaluation scores for each faculty member.41 Each

of these scores, which range from 1 to 5, is assigned a percentage based

on the allocated funds designated to Penn State Abington for faculty

salary increases.42 Penn State Abington’s Financial Officer uses the

lump-sum budget for faculty increases, which was received from Penn

State’s HR in University Park, to determine which percentage increase

will be allocated for each level of evaluation score given to a faculty

member.43 That percentage is then added to the spreadsheet and is used

to determine each faculty member’s merit increase for that evaluation

year.44 All of these percentage increases are then tallied to ensure that

Penn State Abington comes to a balanced amount, meeting the budget

40 note 34.

41 note 34.

42 note 34.

43 note 34.

44 note 34.

that was allocated from University Park.45

When Penn State has funds available to provide a salary increase

for professors, those salary increases are directly tied to the evaluation

scores the professors received that year.46 Professors who are performing

better (i.e., those with higher overall performance evaluation scores)

receive higher merit-based increases than professors who are not

performing as well (i.e., those with lower overall scores).47

Between 2016 and 2019, Dr. Pahlevani received merit-based

increases that were at least within the “meeting expectations” range for

each year.48 In 2016 and 2018, Dr. Pahlevani’s merit-based inreases

exceeded the “meeting expectations” range for those years.49

Penn State Abington also occasionally provides “equity”

adjustments to compensation, which are increases in professor salaries

to address compression among salaries due to shifts in the market.50 For

example, when the salary of a faculty member is adjusted because a new

45 note 34.

46 note 34.

47 note 34.

48 note 34.

49 note 34.

50 note 34.

hire was brought into the same department at a higher salary due to

market conditions, or when there is a rapid shift in a particular academic

field (e.g., computer science) which requires an adjustment of salaries to

retain current faculty under the pressure of market competition outside

Penn State Abington.51

Upon reviewing the initially assigned salary increases, Chancellors

have the discretion to recommend such an equity adjustment.52 Penn

State Abington does not make equity adjustments to a faculty member’s

salary unless the faculty member has evaluation scores that meet

expectations; the equity adjustment is not based on the faculty member’s

sex, religion, or national origin.53

In January 2012, Penn State increased both Dr. Pahlevani’s and Dr.

Fury’s salaries to $60,003 to address the “equity” or market position of

mathematics professors in the Math Department.54 In September 2012,

51 note 34.

52 note 34.

53 note 34.

54 The non-moving plaintiff has admitted this statement in part and

denied it in part. She appears to have admitted that salaries for both

professors were increased to $60,003. But she has qualified that

admission with an additional observation that Dr. Fury’s salary

increased more than Dr. Pahlevani’s to reach that point. She provides

Penn State Abington provided a merit increase to Dr. Pahlevani as part

of the typical GSI process, bringing her total salary to $62,190. Dr. Fury’s

salary was similarly increased.55

Between 2013 and 2019, Penn State Abington provided additional

salary increases to Dr. Pahlevani and Dr. Fury.56

Fall 2018 and Spring 2019, Dr. Pahlevani took a sabbatical leave of

absence, in accordance with Penn State’s Sabbatical Policy, AC17, and

she was compensated, in accordance with Penn State policy, at 67% of her

base salary for that academic year.

In 2020, during the COVID-19 pandemic, Penn State Abington was

not given any funds to provide salary increases for professors as part of

additional non-responsive commentary as well, which we have

disregarded. note 4.

55 The moving defendant’s state of material facts has attributed Dr.

Fury’s increase to the typical GSI process as well, but as the non-moving

plaintiff has pointed out, the evidence cited in support does not

specifically indicate his salary was increased at this time.

56 The non-moving plaintiff has admitted the moving defendant’s

statement in part and denied it in part. She has admitted that both

professors received salary increases, and she has pointed out that the

evidence cited in support does not specifically indicate Dr.

Pahlevani’s or Dr. Fury’s salary was increased at these times.

note 55. She provides additional non-responsive commentary as well,

which we have disregarded. note 4.

the GSI process.57

In 2021, Penn State Abington provided salary increases to both Dr.

Pahlevani and Dr. Fury.58

In August 2021, Dr. Fury was promoted to Interim Division Head

for Science and Engineering, at which point he was predominantly

engaged in administration, he was no longer engaged in full-time

teaching, and he was no longer considered for merit-based increases in

the same way as Dr. Pahlevani.59

57 The non-moving plaintiff has admitted the moving defendant’s

statement in part and denied it in part. She has admitted that neither

Dr. Pahlevani nor Dr. Fury received a salary increase in 2020. But she

further comments that Dr. Fury’s salary remained $7,992 higher than Dr.

Pahlevani’s salary, citing to documents produced by the defendant.

58 The non-moving plaintiff has indicated that this factual

statement by the moving defendant is disputed, but the evidence she has

cited is consistent with the moving defendant’s statement that both

professors received a salary increase, although, as the non-moving

plaintiff has pointed out, the evidence cited in support does not

specifically indicate their salaries were increased at this time. The

non-moving plaintiff further comments that Dr. Fury’s salary was now

$8,856 higher than Dr. Pahlevani’s salary, citing to documents produced

by the defendant.

59 The non-moving plaintiff has indicated that this factual

statement by the moving defendant is disputed, but the evidence she has

cited is not inconsistent with the moving defendant’s statement. Thus,

the moving defendant’s statement of fact is deemed admitted. The non-

moving plaintiff further comments that Dr. Fury’s based salary in 2021

was $8,856 higher than Dr. Pahlevani’s salary, citing to documents

produced by the defendant.

Between 2011 and 2015, Dr. Fury received higher merits-based

increases than Dr. Pahlevani because he earned higher annual

performance and P&T review scores than Dr. Pahlevani.60

The moving defendants have provided comparative information

regarding Dr. Pahlevani’s and Dr. Fury’s salaries over the twelve-year

period between 2010 and 2022. In August 2010, Dr. Pahlevani’s initial

salary was $55,008, and Dr. Fury’s initial salary was $52,506.61 In

January 2012, both professors’ salaries were increased to $60,003.62 In

September 2012, Dr. Pahlevani’s salary was increased to $62,190, and Dr.

Fury’s salary was increased to $62,829.63 In October 2013, Dr.

Pahlevani’s salary was increased to $64,080, and Dr. Fury’s salary was

increased to $67,410.64 In October 2014, Dr. Pahlevani’s salary was

increased to $66,042, and Dr. Fury’s salary was increased to $70,056.65

In July 2015, Dr. Pahlevani’s salary was increased to $67,482, and Dr.

Fury’s salary was increased to $73,971.66 In July 2016, after being

60 note 4.

61 note 4.

62 note 4.

63 note 4.

64 note 4.

65 note 4.

66 note 4.

promoted to Associate Professor, Dr. Pahlevani’s salary was increased to

$74,322, and Dr. Fury’s salary was increased to $80,811.67 In October

2016, Dr. Pahlevani’s salary was increased to $76,761, and Dr. Fury’s

salary was increased to $82,413.68 In July 2017, Dr. Pahlevani’s salary

was increased to $77,805, and Dr. Fury’s salary was increased to

$83,844.69 In July 2018, Dr. Pahlevani’s salary was increased to $79,362,

and Dr. Fury’s salary was increased to $86,148.70 In July 2019, Dr.

Pahlevani’s salary was increased to $80,964, and Dr. Fury’s salary was

increased to $88,956.71 In July 2021, Dr. Pahlevani’s salary was increased

to $83,196, and Dr. Fury’s salary was increased to $92,052.72 In July

2022, after being promoted to Full Professor, Dr. Pahlevani’s salary was

increased to $95,220, but Dr. Fury no longer remained a similarly

situated comparator due to his promotion to an administrative position.73

Dr. Tepper currently works as an Associate Professor of

Mathematics and Program Chair for the Mathematics Department. He

67 note 4.

68 note 4.

69 note 4.

70 note 4.

71 note 4.

72 note 4.

73 note 4.

has not been promoted to Full Professor. Although Dr. Tepper earned a

higher salary than Dr. Pahlevani between 2017 and 2021, when both

were Associate Professors, Dr. Pahlevani has earned a higher annual

salary than Dr. Tepper since July 1, 2022.

In May 2016, Dr. Pahlevani learned that Dr. Fury was paid more

than she was, and she also learned Dr. Tepper’s salary range. Dr.

Pahlevani is of the opinion that she and Dr. Fury should have been set at

the same salary because they were both promoted to Associate Professor

in the same academic year, notwithstanding their respective performance

evaluation scores, as both were qualified for the job and both performed

satisfactorily.

Dr. Pahlevani never made any complaints to Chancellor Sandler

about her annual performance review scores or her P&T review scores

received between 2010 and 2016. A few months after she learned in May

2016 that Dr. Fury was paid a higher salary than her, Dr. Pahlevani

brought the issue to the attention of Chancellor Sandler. But Chancellor

Sandler retired only a few days later, working her last day before

retirement on July 1, 2016.

On July 30, 2016, Dr. Pahlevani contacted the new Chancellor, Dr.

Fernandez, with questions regarding her salary. Dr. Fernandez worked

with Vice Chancellor August and Mr. Meuleners to investigate Dr.

Pahlevani’s complaint and review Dr. Pahlevani’s historical performance

documentation and salary increase. Dr. Fernandez observed that Dr.

Pahlevani under-performed compared to the evaluations of her peers.74

Finding that Dr. Pahlevani’s salary was properly based on her historical

performance, and that merit increases were awarded to her based on that

performance, Dr. Fernandez determined that no further modification to

her salary was warranted.75 On August 15, 2016, Dr. Fernandez met with

Dr. Pahlevani to explain the GSI process, and he confirmed that her

salary would only be reviewed in accordance with the regular, annual GSI

process. Thus, in 2016, Dr. Pahlevani was aware that Penn State did not

plan to increase her salary to make it equal to Dr. Fury’s or Dr. Tepper’s

salaries, but she did not file an administrative charge of discrimination

or a legal complaint at that time.

On February 8, 2017, Dr. Pahlevani met with then-HR Strategic

Partner Lisa Marranzini to again raise a complaint about her

74 note 4.

75 note 4.

compensation. Ms. Marranzini acknowledged Dr. Pahlevani’s complaint

about her salary by explaining, if an equity issue exists that warrants

correction, she would consult with the Chancellor and the Finance Officer

to determine next steps.76 But when Dr. Pahlevani’s historical evaluation

scores were reviewed, it was determined that no equity issues existed.77

After completing her investigation, Ms. Marranzini spoke with Dr.

Pahlevani to educate her about the instances when pay changes may

occur, and she explained that pay decisions are based on professor

performance.78

Dr. Pahlevani had also complained to Ms. Marranzini about alleged

mistreatment and discrimination in her interactions with her Division

Head and Program Chair, and in connection with her profile on Penn

State Abington’s website. With respect to these discrimination

complaints, Ms. Marranzini referred Dr. Pahlevani to Penn State’s

Affirmative Action Office (“AAO”). Dr. Pahlevani never contacted Penn

State’s AAO.

In August 2019, Dr. Pahlevani sent an email to Dr. Fernandez to

76 note 4.

77 note 4.

78 note 4.

complain about her 2019 salary. Dr. Fernandez conducted another

investigation and reviewed Dr. Pahlevani’s historical performance

documentation and the salary increase given to her in 2019.79 Dr.

Fernandez again determined that any difference between Dr. Pahlevani’s

salary and her peers was correlated with her performance review scores

being lower than her peers’ performance review scores.

On June 12, 2019, Dr. Pahlevani had requested and received a copy

of her personnel file to review. On October 13, 2019, Dr. Pahlevani

confirmed in an email message to Dr. Fernandez that she found her

performance ratings and salary increases during his tenure as

Chancellor to be fair. But Dr. Pahlevani has maintained her position that

her performance evaluations should not have impacted her salary, and

that she should have been paid the same as her male colleagues in the

same position.

In January 2021, within a few days after Dr. Dellicarpini began her

79 note 4. The non-moving plaintiff also cites to an email

exchange between Chancellor Fernandez, Vice Chancellor August, and

HR Strategic Partner Marranzini discussing the investigation and

response to Dr. Pahlevani’s email complaint, but the evidence cited is

consistent with this fact statement by the moving defendant. Thus, the

moving defendant’s statement of fact is deemed admitted.

work as Chancellor of Penn State Abington, Dr. Pahlevani contacted her

to request a review of her salary. In response, Dr. Dellicarpini conducted

an investigation, which included requesting and reviewing any data

relevant to Dr. Pahlevani’s evaluation scores and salary increases.80

Ultimately, Dr. Dellicarpini determined that any difference in pay

between Dr. Pahlevani and white male faculty members in the Math

Department was a direct result of their respective merit scores and merit

evaluations.81 On March 16, 2021, Dr. Dellicarpni advised Dr. Pahlevani

by email that she had concluded her investigation and determined that

Dr. Pahlevani’s “starting salary was equitable and aligned with other

incoming faculty in the discipline at Abington,” and that “[a]ny variance

in compensation now is a result of performance reviews and the award of

merit increases over the years.”

On or about July 21, 2022, counsel representing Dr. Pahlevani sent

80 The non-moving plaintiff’s response indicates that she disputes

this factual statement, but her answer to this fact statement is non-

responsive, stating only that it mischaracterizes events that occurred and

the alleged efforts by others at Penn State Abington to keep her salary

lower than her male colleagues. In support, the non-moving plaintiff cites

evidence that is not inconsistent with the moving defendant’s statement.

Thus, the moving defendant’s statement of fact is deemed admitted.

81 note 80.

letters to Penn State’s Vice President and General Counsel and to Mr.

Meuleners seeking to resolve issues with her salary without the need for

litigation. She then dual-filed a charge of discrimination with the U.S.

Equal Employment Opportunity Commission (“EEOC”) and the

Pennsylvania Human Relations Commission (“PHRC”) on October 31,

2022, alleging compensation-related discrimination based on her sex and

national origin. After receiving a right-to-sue notice from the EEOC, Dr.

Pahlevani initiated this litigation by filing her complaint in this federal

civil action on July 18, 2023.

III. DISCUSSION

A. Potential Waiver by the Defendant of Statute of Limitations and

Failure to Exhaust Administrative Remedies Defenses

The defendant has interposed statute of limitations and failure to

exhaust administrative remedies defenses. It contends that part or all of

each of the plaintiff’s discrimination claims is barred as untimely filed or

for failure to exhaust administrative remedies.

The plaintiff has responded by arguing that the defendant waived

any such affirmative defenses by failing to include them in its original

answer to the complaint. She contends that, because the defendant’s

amended answer was filed after the deadline for amending pleadings

established by a case management order and leave of court, it

should be stricken.

The plaintiff dual-filed a charge of discrimination with the U.S.

Equal Employment Opportunity Commission (“EEOC”) and the

Pennsylvania Human Relations Commission (“PHRC”) on October 31,

2022, alleging compensation-related discrimination based on her sex and

national origin. On June 20, 2023, the EEOC issued her a right-to-sue

letter.

The plaintiff commenced this civil action by filing her complaint in

this federal district court on July 18, 2023. Doc. 1. The defendant waived

formal service of process and timely filed its original answer to the

complaint on September 18, 2023. Doc. 8. While that original answer set

forth several affirmative defenses to the plaintiff’s claims, it did not

assert an affirmative defense under the applicable statutes of limitations

or for failure to exhaust administrative remedies.

On October 26, 2023, counsel for the parties appeared before the

court for a case management conference. Following that conference, the

court entered a Rule 16 case management order, which included a

December 15, 2023, deadline for the defendant to amend its pleadings.

Doc. 13 ¶ 2. By separate order, the case was referred for mandatory

mediation before a court-appointed mediator. Doc. 14.

On February 21, 2024, the parties filed a joint motion for a 60-day

extension of pretrial deadlines established by the case management

order. Doc. 17. The joint motion indicated that the parties had not yet

been able to schedule their mediation session with the court-appointed

mediator. The parties’ proposed order extended fact discovery and

dispositive motions deadlines by approximately 60 days each, and it

cancelled all other pretrial deadlines. Later that same day, the court

endorsed and entered the proposed order. Doc. 18.

On April 23, 2024, the court-appointed mediator reported that the

parties had been unable to reach a settlement. Doc. 19.

Three days later, on April 26, 2024, the defendant filed its amended

answer, with written consent from the plaintiff. Doc. 21. The amended

answer was substantially identical to the defendant’s original answer,

except for the addition of several new affirmative defenses. Doc.

21, Doc. 8. Among these new additions was the defendant’s

fourteenth affirmative defense, which now asserted that “Plaintiff’s

claims are barred, in whole or in part, by the applicable statute of

limitations and/or her failure to exhaust all administrative remedies.”

Doc. 21, at 10.

After the amended answer was filed, the plaintiff raised no

objections to it, nor did she promptly move to strike the amended answer

as untimely filed. The parties proceeded with discovery and another

round of mediation, this time before a United States magistrate judge.

On August 25, 2025, the defendant timely filed its motion for

summary judgment, which relied extensively on its statute of limitations

and failure to exhaust administrative remedies affirmative defenses.

Doc. 40. On September 8, 2025, the defendant timely filed its brief in

support of the motion for summary judgment, which again relied

extensively on its statute of limitations and failure to exhaust

administrative remedies affirmative defenses. Doc. 42 (sealed).

On October 1, 2025, the plaintiff timely filed her brief in opposition

to the motion for summary judgment. Doc. 52 (sealed). In her opposition

brief, the plaintiff argued for the first time that the defendant had waived

its statute of limitations and failure to exhaust administrative remedies

defenses, and that the amended answer should be stricken from the

record because it failed to comply with the requirements of Fed. R. Civ.

P. 16(b)(4).82

On October 17, 2025, the defendant timely filed its reply brief. Doc.

56 (sealed).

Generally, amended pleadings are governed by Fed. R. Civ. P. 15. A

party has a right to amend its pleading once as a matter of course within

21 days after serving it, or 21 days after a responsive pleading or a motion

under Fed. R. Civ. P. 12(b), (e), or (f) is filed. Fed. R. Civ. P. 15(a)(1). After

that right has been exercised once, or the time for doing so has expired,

“a party may amend its pleading only with the opposing party’s written

consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2).

But “when a party moves to amend or add a party after the deadline

in a district court’s scheduling order has passed, the ‘good cause’ standard

of Rule 16(b)(4) of the Federal Rules of Civil Procedure applies. A party

must meet this standard before a district court considers whether the

party also meets Rule 15(a)’s more liberal standard.”

, 970 F.3d 316, 319 (3d Cir. 2020); Fed. R. Civ. P.

16(b)(3) (requiring the court to enter a scheduling order in each civil case,

82 The plaintiff, however, has at no point filed a motion to strike the

amended answer.

which “must limit the time to . . . amend the pleadings”); Fed. R. Civ. P.

16(b)(4) (“A schedule may be modified only for good cause and with the

judge’s consent.”); , 790 F.

Supp. 3d 466, 473 (D.V.I. 2025) (quoting );

, No. 3:15-CV-01435, 2022 WL 23029027, at *2 (M.D.

Pa. Aug. 16, 2022) (citing ).

“[W]hether ‘good cause’ exists under Rule 16(b)(4) depends in part

on [the amending party’s] diligence.” , 970 F.3d at

319; , 790 F. Supp. 3d at 473 (quoting

); , 2022 WL 23029027, at *2 (same). “Thus, where a movant

fails to meet its burden under Rule 16(b)(4) to show that, despite its

diligence, it could not meet the court’s scheduling order, the court need

not determine whether the movant meets Rule 15(a)’s requirements.”

, 790 F. Supp. 3d at 473; , 2022 WL 23029027, at *2

(“Thus, leave to amend is properly denied under Rule 16 when the moving

party has failed to establish due diligence.”). “[T]he focus of a Rule 16

analysis is the moving party’s diligence and not prejudice to the non-

moving party.” , 341 F.R.D. 553, 559

(D.N.J. 2022). “Good cause may also be satisfied if the movant shows that

the inability to comply with a scheduling order is ‘due to any mistake,

excusable neglect or any other factor which might understandably

account for failure of counsel to undertake to comply with the Scheduling

Order.’” (quoting another source). Extending case management

deadlines to accommodate a settlement conference that may facilitate

resolution of the case and thereby conserve party and judicial resources

may also, in the discretion of the court, constitute good cause for

modification of a scheduling order. ,

No. 23-cv-04965, 2025 WL 4481077, at *2 (N.D. Cal. Apr. 28, 2025);

, No. 5:20-CV-05082, 2023

WL 7181704, at *3 (D.S.D. July 19, 2023) (acknowledging “the possibility

that mediation could constitute good cause in some circumstances”);

, 773 F. Supp. 2d 446, 451 (D. Del. 2011)

(finding “sufficient diligence” where the parties had been interested in

attempting mediation, and the party seeking modification had continued

to seek discovery in the interim).

Here, the plaintiff provided written consent to the defendant’s

amendment, but that does not absolve the defendant of its obligation to

demonstrate good cause under Rule 16.

, No. 3:24-CV-20, 2024 WL 3296946, at *1 (S.D. Miss. July 3, 2024)

(“The party seeking untimely leave to amend bears the burden of

demonstrating good cause, and neither consent nor absence of opposition

obviates the need to satisfy Rule 16(b)(4) and its applicable factors.”). But

under the circumstances presented, we find that the defendant has

demonstrated good cause for modification of the scheduling order to

accommodate the filing of its amended answer. As the parties

contemporaneous filings indicate, the parties continued to diligently seek

discovery while also pursuing an early-stage resolution of this case

through mediation, and the defendant promptly filed its amended answer

with the plaintiff’s written consent within three days after that

mediation effort ended unsuccessfully.

The defendant having satisfied the “good cause” requirement of

Rule 16(b)(4), we turn then to the more liberal requirements of Rule

15(a)(2). Under that rule, leave of court was not required because the

defendant had plaintiff’s written consent, which it then filed on the

record as an attachment to its amended complaint. Doc. 21.

Fed. R. Civ. P. 15(a)(2).

Accordingly, we decline to strike the amended answer as untimely

filed under the circumstances presented. We find that the defendant has

demonstrated good cause to modify the scheduling order, satisfying the

requirements of Fed. R. Civ. P. 16(b)(4), and that it filed the amended

answer with the written consent of the plaintiff, satisfying the

requirements of Fed. R. Civ. P. 15(a)(2). Thus, the defendant’s statute of

limitations and failure to exhaust administrative remedies affirmative

defenses have not been waived.

B. Equal Pay Act Claim

In Count I, Dr. Pahlevani brings a discriminatory pay claim,

claiming that she was paid less than a male counterpart for equivalent

work, in violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d).

In evaluating an Equal Pay Act claim, “[t]he court applies a two-

step burden-shifting test to its analysis.” ,

996 F. Supp. 2d 302, 319–20 (M.D. Pa. 2014). First, “[a] plaintiff

establishes a case by showing that employees of the opposite

sex were paid differently for performing ‘equal work’; that is, work of

substantially equal skill, effort and responsibility, under similar working

conditions.” , 865 F.2d

1408, 1413–14 (3d Cir. 1989); ,

715 Fed. App’x 179, 183 (3d Cir. 2017); , 996 F. Supp. 2d at 320.

If a plaintiff is able to demonstrate a Equal

Pay Act case, the burden then shifts to the employer to

show that the pay difference resulted from (1) a

seniority system, (2) a merit system, (3) a system

that measures earnings by quantity or quality of

production, or (4) a differential based on any factor

other than sex.

, 715 Fed. App’x at 183; , 865 F.2d at 1414;

, 996 F. Supp. 2d at 320. On summary judgment, “[t]he defendant

must prove its affirmative defense ‘so clearly that no rational jury could

have found to the contrary.’” , 996 F. Supp. 2d at 320 (quoting

, 865 F.2d at 1414 (affirming district court’s post-trial grant of

judgment n.o.v.)).

Here, the plaintiff has established a Equal Pay Act case

with respect to the period beginning in September 2012, when Dr. Fury’s

salary first exceeded Dr. Pahlevani’s, and ending in July 2021, the last

pay period before Dr. Fury’s promotion to Interim Department Head, at

which point he was no longer a suitable comparator, because he and Dr.

Pahlevani were no longer performing work of substantially equal skill,

effort and responsibility, under similar working conditions.

With the burden of persuasion then shifting to the employer, the

defendant has raised one of the four statutory affirmative defenses set

forth in the Equal Pay Act, contending that the difference in payment

between opposite sexes in this case is permissible because it was made

pursuant to a merit system. But based on the record before the court,

viewed in the light most favorable to the non-moving plaintiff, we are

unable to conclude that it has proven this affirmative defense so clearly

that no rational jury could find to the contrary.

In addition, the defendant has raised the Equal Pay Act’s statute of

limitations as an affirmative defense.

The statute of limitations for an Equal Pay Act violation is two

years, unless the violation is shown to be willful, in which case it is three

years. 29 U.S.C. § 255(a); , 705 F. Supp. 2d

425, 440 (M.D. Pa. 2009). A violation may only be considered “willful” if

the employer “knew or showed reckless disregard for the matter of

whether its conduct was prohibited” by the Equal Pay Act.

, 486 U.S. 128, 130 (1988); ,

935 F.3d 141, 148 (3d Cir. 2019) (quoting ). “A plaintiff need

not show that an employer acted with intent to discriminate or in bad

faith.” , 132 F.3d 115, 119 (2d Cir. 1997)

(citing , 469 U.S. 111, 126 n.19

(1985)).

“[A]n Equal Pay Act claim accrues each time a discriminatory

paycheck is issued and . . . each discriminatory paycheck is considered a

discrete act rather than an incident of a continuing violation.”

, 173 Fed. Cl. 636, 647 (2024);

, 579 F.3d 546, 553 (5th Cir. 2009)

(holding that university professor’s Equal Pay Act claim accrued, for

limitations purposes, when she received her last paycheck from her state

university employer); , 24 F.3d 861, 864 (6th Cir.

1994) (“The Equal Pay Act is violated each time an employer presents an

‘unequal’ paycheck to an employee for equal work. . . . [E]ach check paid

at the discriminatory rate is a denial of equal pay and a separate violation

of the Act.”); , 705 F. Supp. 2d at 440 (“[U]nder the EPA each

paycheck issued to the [female] Professors at a lower pay rate than that

received by their male colleagues constitutes a new discriminatory action

for purposes of EPA accrual.”).

This action was commenced on July 18, 2023. If willful, any Equal

Pay Act violation that occurred prior to July 18, 2020, is barred by the

applicable statute of limitations. If willfulness is not shown, any violation

that occurred prior to July 18, 2021, is barred. Moreover, because Dr.

Fury was promoted into an administrative position on August 16, 2021,

the latest violation for which Dr. Pahlevani has established a

case is her July 2021 end-of-month paycheck.

We find that the non-moving plaintiff has adduced sufficient

evidence to demonstrate a genuine dispute of material fact with respect

to whether any Equal Pay Act violation was willful. In particular, the

evidence adduced indicates that, on multiple occasions over several

years, Dr. Pahlevani complained to decisionmakers at Penn State

Abington about discrepancies between her salary and the salaries of her

male colleagues. Those decisionmakers investigated and responded to

her complaints, demonstrating the defendant’s awareness of this

potential Equal Pay Act violation, but they did not rectify the

discrepancy, continuing to pay Dr. Pahlevani less than her male

colleague, Dr. Fury, until he became a University administrator in

August 2021. Viewing these facts in the light most favorable to the non-

moving plaintiff, Dr. Pahlevani, we are unable to conclude that no

reasonable jury could find that the defendant’s conduct was willful or

reckless. , 132 F.3d at 119–20.

Accordingly, finding genuine disputes of material fact exist with

respect to the non-moving plaintiff’s Equal Pay Act claims for her

monthly paychecks received between July 2020 and July 2021, and with

respect to the defendant employer’s affirmative defense that any pay

discrepancy was based on a merit system, we will grant summary

judgment in favor of the defendant with respect to the plaintiff’s Equal

Pay Act claims, set forth in Count I of the complaint, to the extent they

concern monthly paychecks received July 18, 2020, or August

16, 2021. The plaintiff’s Equal Pay Act claims concerning monthly

paychecks received between July 18, 2020, and August 16, 2021, will be

set down for trial.

C. Section 1981 Race Discrimination Claim

In Count II, Dr. Pahlevani brings a racial discrimination claim,

claiming that she was paid less than a Caucasian counterpart on the

basis of her Middle-Eastern Iranian race, in violation of the Civil Rights

Act of 1866, 42 U.S.C. § 1981.

We analyze the plaintiff’s pay-related § 1981 race discrimination

claims under the familiar burden-shifting framework set forth in

, 411 U.S. 792 (1973).

, 484 Fed. App’x 710, 712 (3d Cir. 2012); ,

996 F. Supp. 2d at 316. As summarized by the Supreme Court of the

United States:

Under , a plaintiff must first

establish a prima face case of discrimination. The

burden then shifts to the employer to articulate a

legitimate, nondiscriminatory reason for its

employment action. If the employer meets this burden,

the presumption of intentional discrimination

disappears, but the plaintiff can still prove disparate

treatment by, for instance, offering evidence

demonstrating that the employer’s explanation is

pretextual.

, 540 U.S. 44, 49 n.3 (2003) (citations omitted).

To establish a case of race discrimination under § 1981,

a plaintiff must establish that he or she: (1) is a member of a protected

class; (2) was qualified for the position; (3) suffered an adverse

employment action; and (4) the circumstances of the adverse employment

action give rise to an inference of racial discrimination.

, 411 U.S. at 802; , 484 Fed. App’x at 712; , 996 F.

Supp. 2d at 316.

Here, the defendant argues that Dr. Pahlevani has failed to

demonstrate a cognizable adverse employment action. But as this court

has previously recognized, “paying an individual a lower salary for

discriminatory reasons can be an adverse employment action.” ,

996 F. Supp. 2d at 317. In their briefs, the defendants argue that Dr.

Pahlevani was paid less than Dr. Fury because of her annual

performance review and P&T review scores, not because of her race. But

viewing the evidence of record in the light most favorable to the non-

moving plaintiff, we find that Dr. Pahlevani has adduced sufficient

evidence to demonstrate a genuine dispute of material fact with respect

to whether she suffered an adverse employment action.

Similarly, the defendant argues that Dr. Pahlevani has failed to

present sufficient evidence to support an inference of unlawful

discrimination. But as this court has previously recognized, “[a]n

inference of racial discrimination may arise when ‘similarly situated

persons who are not members of a protected class are treated more

favorably.’” (quoting , 241 Fed. App’x 895, 898

(3d Cir. 2007) (brackets omitted)). Viewing the evidence in the light most

favorable to the non-moving plaintiff, we find that Dr. Pahlevani has

adduced sufficient evidence for a reasonable jury to infer racial

discrimination. at 318.

The defendant employer has clearly satisfied its “relatively light’

burden to articulate a legitimate, nondiscriminatory reason for the pay

differential at issue here—its merit system for determining salary

increases based on annual performance review and P&T review scores.

Finally, the defendant argues that Dr. Pahlevani has failed to

adduce sufficient evidence of pretext. It highlights many details of the

University’s merit-system for determining salary increases we have

discussed above, characterizing the merit-system as “objective.” But, as

the plaintiff has pointed out in her papers, repeatedly, the basis for the

numerical performance scores, from which all salary increases were then

almost-mechanically derived, is entirely subjective. As courts of this

circuit have recognized, reliance on such subjective criteria can be

suggestive of pretext. , , 445 F.3d 702, 706

(3d Cir. 2006) (“[L]ow evaluation scores may be a pretext for

discrimination, especially where, as here, an employer uses subjective

criteria . . . to rate its employees.”);

, 228 F.3d 313, 320 (3d Cir. 2000) (“[T]he Matrix criteria and their

weighting are themselves highly subjective even though they are given

an apparently objective numerical ranking. . . . Moreover, ‘subjective’

scoring is sometimes based upon factors that are too speculative to base

a meaningful comparison.”); , 896 F.2d 793, 798 (3d

Cir. 1990) (“[S]ubjective evaluations are more susceptible of abuse and

more likely to mask pretext.”) (internal quotation marks omitted);

, 498 F. Supp. 3d 669, 678 (E.D. Pa. 2020) (“[R]eliance

on subjective criteria can be, under certain circumstances, a mask for

discrimination.”).

Based on the record before us, viewing the evidence in the light

most favorable to the non-moving plaintiff, we find that Dr. Pahlevani

has adduced sufficient evidence for a reasonable jury to find that the

defendant’s proffered nondiscriminatory reason for the pay differential at

issue here was a pretext for unlawful racial discrimination.

In addition, the defendant has raised the statute of limitations as

an affirmative defense to this claim.

A § 1981 claim for race discrimination arising out of workplace

discrimination is subject to a four-year limitations period. 28 U.S.C.

1658 (providing a catch-all four-year statute of limitations);

, 541 U.S. 369, 372–73 (2004) (holding that

employment discrimination claims arising under § 1981(b) are subject to

the four-year catch-all statute of limitations); , 996 F. Supp. 2d

at 314. With respect to pay discrimination claims under brought § 1981,

“each paycheck issued pursuant to a discriminatory decision is a discrete

and complete discriminatory act for which a claim may be brought.”

, 996 F. Supp. 2d at 316.

As previously noted, this action was commenced on July 18, 2023.

Thus, any § 1981 pay discrimination claim based on a paycheck received

prior to July 18, 2019, is barred. Moreover, because Dr. Fury was

promoted into an administrative position on August 16, 2021, the latest

violation for which Dr. Pahlevani has established a case is

her July 2021 end-of-month paycheck.

Accordingly, finding genuine disputes of material fact exist with

respect to the non-moving plaintiff’s pay-related § 1981 race

discrimination claims based on her monthly paychecks received between

July 2019 and July 2021, we will grant summary judgment in favor of

the defendant with respect to the plaintiff’s § 1981 race discrimination

claims, set forth in Count I of the complaint, to the extent they concern

monthly paychecks received July 18, 2019, or August 16,

2021. The plaintiff’s § 1981 race discrimination claims concerning

monthly paychecks received between July 18, 2019, and August 16, 2021,

will be set down for trial.

D. Title VII Race, Sex, National Origin Discrimination Claims

In Count III, Dr. Pahlevani brings race, sex, and national origin

discrimination claims, claiming that she was paid less than an American-

born Caucasian male colleague on the basis of her Iranian birth, Middle-

Eastern Iranian race, and female gender, in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-5.

The defendant first argues that, with respect to her Title VII claim

of race discrimination, Dr. Pahlevani has failed to exhaust her

administrative remedies, a prerequisite to suit under Title VII.

“As a precondition for filing suit under Title VII, . . . a plaintiff must

exhaust a claim by presenting it in an administrative charge to the [U.S.

Equal Employment Opportunity Commission (“EEOC”)] . . . .”

, 106 F. Supp. 3d 590, 601 (E.D. Pa. 2015). An

employee is not permitted to bypass the administrative process.

, 541 F.2d 394, 398 (3d Cir. 1976). The

“fundamental aim of the pre-suit requirements is to ‘give prompt notice

to the employer’ and ‘encourage the prompt processing of all charges of

employment discrimination.’” , 992 F.3d 198, 207

(3d Cir. 2021) (quoting , 536 U.S.

101, 109, 121 (2002)).

“The ensuing suit is limited to claims that are within the scope of

the initial administrative charge.” , 361 Fed.

App’x 411, 413–14 (3d Cir. 2010). “A claim has been administratively

exhausted when the specifics of a charge with the administrative agency

‘fairly encompass a claim’ and would put the agency and the defendant

employer ‘on notice’ of that claim.” , 106 F. Supp. 3d at 600–

01 (quoting , 82 F.3d 1291, 1296 (3d Cir. 1996)). The

“relevant test” in the Third Circuit for exhaustion of administrative

remedies is “whether the acts alleged in the subsequent . . . suit are fairly

within the scope of the prior EEOC complaint, or the investigation

arising therefrom.” , 729 F.2d 233, 237 (3d Cir. 1984);

, 992 F.3d at 207 (quoting , 729 F.2d at 237);

, 355 F. Supp. 3d 227, 235 (E.D. Pa. 2019).

“This determination turns on whether there is a close nexus between the

facts supporting each claim or whether additional charges made in the

judicial complaint may fairly be considered explanations of the original

charge or growing out of it.” , 35 F. Supp. 3d at 235.

Here, Dr. Pahlevani, acting with the assistance of counsel, dual-

filed an administrative charge of discrimination with the EEOC and the

PHRC that made no reference whatsoever to any claim of race

discrimination. On the charge form, she checked boxes indicating that

she alleged discrimination based on “sex” and “national origin” only,

failing to check the box marked “race.” In relaying the particulars of her

claim of discrimination, the charge stated only that she “was born in Iran

and is female,” that she was “being paid less than a male, American-born

co-worker,” and that she “believes that the pay inequity and

discrimination she has endured is due to her gender and national origin.”

Doc. 40-1.83 The parties have cited nothing in the record to suggest that

Dr. Pahlevani later amended or supplemented her EEOC charge to add

a Title VII race discrimination claim, or that the EEOC investigation

expanded to include such a claim within its scope. Thus, without more,

we are compelled to agree that the plaintiff failed to exhaust

administrative remedies with respect to her Title VII race discrimination

83 The same document can also be found in the defendant’s

summary judgment exhibits. Def.’s Appx. 276–78, Doc. 42-6 (sealed).

claim. , 813 Fed. App’x 754, 757 (3d Cir.

2020) (affirming grant of summary judgment for failure to exhaust

administrative remedies with respect to racial discrimination claim

where employee’s EEOC charge alleged only national origin

discrimination, and employee never supplemented his EEOC charge with

an amendment).

The defendant has also raised the statute of limitations as an

affirmative defense to Dr. Pahlevani’s Title VII discrimination claims.

“Title VII requires that a claimant file a charge with the EEOC

within 300 days of the allegedly discriminatory act.”

, 994 F. Supp. 332, 336 (W.D. Pa. 1997) (citing 42 U.S.C. § 2000e-

5(e)(1)). With respect to Title VII discriminatory compensation cases,

each allegedly discriminatory paycheck constitutes an independent,

actionable employment practice under Title VII. 42 U.S.C. § 2000e-

5(c)(3)(A); , 705 F. Supp. 2d at 432 (quoting the Lilly

Ledbetter Fair Pay Act, Pub. L. No. 111-2, § 3, 123 Stat. 5 (2009) (codified

at 42 U.S.C. § 2000e-5(c)(3)(A)). In addition, a claimant may recover back

pay for up to two years prior to the earliest paycheck received within Title

VII’s 300-day limitation period. 42 U.S.C. § 2000e-5(c)(3)(B);

, 705 F. Supp. 2d at 432–33.

As previously noted, Dr. Pahlevani filed her initial EEOC charge in

this case on October 31, 2022. Thus, any Title VII discriminatory

compensation claims must be based on a paycheck received on or after

January 4, 2022, or her claims are barred by the 300-day statute of

limitations. Because Dr. Fury was promoted into an administrative

position on August 16, 2021, the latest discriminatory compensation

violation for which Dr. Pahlevani has established a case is

her July 2021 end-of-month paycheck, which is well outside the 300-day

limitation period under Title VII.84

Accordingly, based on the undisputed material facts of this case, the

moving defendant has demonstrated that it is entitled to judgment as a

matter of law with respect to all of the plaintiff’s Title VII race, sex, and

national origin discrimination claims, set forth in Count III of the

complaint.

E. Title IX Sex Discrimination Claim

In Count IV, Dr. Pahlevani brings a sex discrimination claim,

84 Title VII discrimination claims are analyzed under the same

burden-shifting framework as § 1981 discrimination

claims. , 100 F.4th 458, 470 (3d Cir. 2024).

claiming that she was paid less than a similarly situated male colleague

on the basis of her gender, in violation of Title IX of the Education

Amendments of 1972, 20 U.S.C. § 1681(a).

Title IX discrimination claims are analyzed under the same

burden-shifting framework as § 1981 and Title VII

discrimination claims. , 166 F.3d 1209,

1999 WL 7860, at *4 (4th Cir. 1999) (unpublished table decision) (Title

VII, Title IX, and § 1981); , No. 2:223-cv-02451,

2024 WL 4680032, at *9 (E.D. Pa. Nov. 5, 2024) (Title VII, Title IX, and

§ 1981); , 15 F. Supp.

2d 740, 755 (E.D. Pa. 1998) (Title VII and Title IX). For the same reasons

discussed above in the context of Dr. Pahlevani’s § 1981 race

discrimination claims, but substituting her gender in place of her race:

(1) Dr. Pahlevani has adduced sufficient evidence to establish a

case of sex discrimination under Title IX; (2) the defendant employer

has clearly met its burden to articulate a legitimate, nondiscriminatory

reason for the pay differential at issue here; and (3) Dr. Pahlevani has

adduced sufficient evidence for a reasonable jury to find that the

defendant’s proffered nondiscriminatory reason for the pay differential at

issue here was a pretext for unlawful sex discrimination.

In addition, the defendant has raised the statute of limitations as

an affirmative defense to this claim.

A Title IX claim for sex discrimination must be filed within two

years of the discriminatory action. ,

882 F.2d 74, 77–78 (3d. Cir. 1989) (citing , 468 U.S. 42,

51 (1984), and 42 Pa. Cons. Stat. Ann. § 5524); , 705 F. Supp.

2d 425, 439 (citing ). With respect to pay discrimination claims

brought under Title IX, “each paycheck received by [the plaintiff] that

reflects a discriminatory employment decision constitutes a new,

actionable adverse employment action.” , 705 F. Supp. 2d at

440.

As previously noted, this action was commenced on July 18, 2023.

Thus, any Title IX sex discrimination claim based on a paycheck received

prior to July 18, 2021, is barred. Moreover, because Dr. Fury was

promoted into an administrative position on August 16, 2021, the

violation for which Dr. Pahlevani has established a case is

her July 2021 end-of-month paycheck.

Accordingly, finding genuine disputes of material fact exist with

respect to the non-moving plaintiff’s pay-related Title IX sex

discrimination claim based on her monthly paycheck received at the end

of July 2021, we will grant summary judgment in favor of the defendant

with respect to the plaintiff’s Title IX sex discrimination claims, set forth

in Count IV of the complaint, to the extent they concern monthly

paychecks received July 18, 2021, or August 16, 2021. The

plaintiff’s Title IX sex discrimination claim concerning her monthly

paycheck received between July 18, 2021, and August 16, 2021, will be

set down for trial.

IV. CONCLUSION

For the foregoing reasons, the defendant’s motion for summary

judgment will be granted in part and denied in part. The clerk will be

directed to enter judgment in favor of the defendant and against the

plaintiff with respect to the plaintiff’s: (a) Title VII race, sex, and national

origin discrimination claims, set forth in Count III of the complaint;

(b) Equal Pay Act sex discrimination claims, set forth in Count I of the

complaint, to the extent they concern monthly paychecks received

July 18, 2020, or August 16, 2021; (c) Section 1981 race

discrimination claims, set forth in Count II of the complaint, to the extent

they concern monthly paychecks received July 18, 2019, or

August 16, 2021; and (d) Title IX sex discrimination claims, set forth in

Count IV of the complaint, to the extent they concern monthly paychecks

received July 18, 2021, or August 16, 2021. The plaintiffs’

remaining claims—(a) Equal Pay Act sex discrimination claims, set forth

in Count I of the complaint, concerning monthly paychecks received

between July 18, 2020, and August 16, 2021; (b) Section 1981 race

discrimination claims, set forth in Count II of the complaint, concerning

monthly paychecks received between July 18, 2019, and August 16, 2021;

and (c) Title IX sex discrimination claims, set forth in Count IV of the

complaint, concerning her monthly paycheck received between July 18,

2021, and August 16, 2021—shall be set down for a jury trial.

An appropriate order follows.

Dated: March 31, 2026

JOSEPH F. SAPORITO, JR.

United States District Judge