Overall v. Univ PA

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

6-27-2005

Overall v. Univ PA

Precedential or Non-Precedential: Precedential

Docket No. 04-1090

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-1090

KAREN OVERALL and ARTHUR DUNHAM,

Appellants

v.

UNIVERSITY OF PENNSYLVANIA;

GAIL SMITH

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(Dist. Ct. No. 02-CV-01628)

District Court Judge: Hon. Cynthia M. Rufe

Argued: March 31, 2005

Before: ALITO, SMITH, and FISHER, Circuit Judges

(Opinion Filed: June 27, 2005)

Counsel for Appellant

Stanley B. Cheiken (argued)

1626 Pine St.

Philadelphia, PA 19103

Counsel for Appellees

Michael L. Banks

Michael E. Dash, Jr. (argued)

Morgan, Lewis & Bockius, LLP

1701 Market St.

Philadelphia, PA 19103

OPINION OF THE COURT

ALITO, Circuit Judge

Karen Overall is a faculty member at the University of

Pennsylvania (“Penn”) Veterinary School. She and her husband

brought this action against Penn, alleging defamation and

fraudulent misrepresentation, among other things. The District

Court granted summary judgment for Penn on all counts, and

Overall appealed. Because the District Court incorrectly held that

statements made in a private internal University grievance

proceeding were “quasi-judicial” and therefore entitled to an

absolute privilege against defamation under Pennsylvania law, we

reverse and remand with respect to Dr. Overall’s defamation claim.

We affirm on all other counts.

I.

This case stems from the Veterinary School’s failure to hire

Dr. Overall for a newly created faculty position. Dr. Overall

worked for Penn in various capacities since 1987. In early 1999,

she was serving a single-year appointment as a “Lecturer” in the

School’s Department of Clinical Studies-Philadelphia (“DCS”),

where her responsibilities included running a behavioral medicine

clinic, teaching, and conducting research. Dr. Gail Smith, a male

professor who had taught at Penn since the early 1980s, became

chair of DCS in March 1999. Until Dr. Smith became Chair, Drs.

Smith and Overall rarely interacted.

Once Dr. Smith became chair of DCS, he and Dr. Overall

2

developed an amicable relationship. See Joint Appendix (“App.”)

at 368 (Overall admits during a deposition that “[w]e were

friends”); id. at 428 (Overall writes Dr. Smith in June 1999: “We

are making incredible progress, but that’s all your doing, none of

mine.”); id. at 433 (Overall writes Dr. Smith in July 1999: “[Y]ou

are actually doing a HEROIC job – everyone thinks so. Many,

many thanks.”). Dr. Overall approached Dr. Smith to discuss her

desire to obtain a tenured faculty position, her problems with her

residents and staff, and other administrative concerns. This

friendship prompted several University insiders to suggest that Dr.

Smith was Dr. Overall’s personal champion within DCS.

In April 1999, Dr. Smith announced that the Veterinary

School would create five new “Clinical Educator” positions on the

Penn faculty. One of these would be in Dr. Overall’s field of

expertise, behavioral veterinary medicine.1 Although Clinical

Educators are not eligible for tenure, they are typically awarded

longer term contracts than Lecturers like Dr. Overall, and the

positions are considered more prestigious. Based on Dr. Smith’s

friendship with Dr. Overall and her apparent interest in the job,

many within the Department surmised that Dr. Smith created the

position specifically for Dr. Overall. See App. at 490-91.

Despite these rumors, Dr. Smith followed protocol and set

up a Faculty Search Committee with five members, three of whom

had experience with behavioral veterinary medicine. See App. at

447-49. Dr. Smith charged the Committee with the task of picking

the best qualified candidate from all the applicants. App. at 386,

483 (Dr. Smith told the Committee that he wanted a “real” search

versus a “sham” search that simply gave the job to Dr. Overall).

The Committee had the authority to make

recommendations, but Dr. Smith retained the power to ignore or

veto any recommendation, with or without cause. See App. at 244,

1

This relatively new field studies the behavior of dogs, cats,

and other domestic animals. It focuses on methods for diagnosing

and treating behavioral problems, such as biting and constant

scratching.

3

385-86. Nevertheless, it is common practice at Penn for

department chairs to follow the recommendations of their hiring

committees. In fact, in some departments, it is apparently

considered a “sort of administrative suicide” for a chair not to

follow the faculty’s advice in hiring. See App. at 244, 496-97. Dr.

Overall’s husband, a Penn faculty member for more than 20 years,

stated in a deposition that “in our department, the chair never

would override the decision [of the faculty].” App. at 502. Dr.

Overall produced no evidence that any chair has ever overruled a

hiring committee in the Veterinary Medicine Department.

Upon learning of the new Clinical Educator position, Dr.

Overall applied and asked Dr. Smith to “put odds” on her

application. He responded: “I’ll work it out.” App. at 129-30. At

the time of this discussion, Dr. Overall was not aware that Dr.

Smith technically had the authority to overrule the Search

Committee’s decision.2

The Search Committee did not share Dr. Smith’s confidence

in Dr. Overall. It unanimously rejected her candidacy twice, first

in a May 22, 2000, interim report, and then again in a September

15, 2000, final report. Both times, the Committee provided non-

discriminatory reasons for its decision not to recommend Dr.

Overall. It acknowledged her strengths but also cited serious

reservations about her “history of unsuccessful interpersonal

interaction,” her “questioned integrity,” and “a poisoned

atmosphere which pits Karen against her staff.” App. at 7 n.3. Dr.

Smith elected not to overrule these recommendations.

Over the period of one year, the Search Committee

considered six candidates, five females and one male. Its final

2

The District Court credited Dr. Overall’s deposition

testimony that she “did not know what role the department chair

played in the search committee decision.” App. at 5-6 n.2, 24 n.14.

It chose to disregard portions of a later-submitted affidavit that

directly contradicted this statement. See Martin v. Merrell Dow

Pharm., Inc., 851 F.2d 703, 706 (3d Cir. 1988) (endorsing the sham

affidavit doctrine).

4

recommendation was in favor of Dr. Ilana Reisner, a woman. Once

Penn hired Dr. Reisner for the job that Dr. Overall desired, Dr.

Smith revoked Dr. Overall’s clinical privileges, based on an

agreement that they had allegedly made earlier.3 When Dr. Overall

continued working at the clinic, Dr. Smith confronted her and

demanded that she not return. In March 2001, after reports that

files were missing from the clinic, padlocks were placed on the

clinic door. Dr. Overall says she was not able to return to the

clinic, even to gather her personal belongings. She also alleges that

her mail was not forwarded. Dr. Smith claims that he knew

nothing about this.

On November 15, 2000, Dr. Overall instituted a proceeding

under the University’s Faculty Grievance Procedure, alleging

gender discrimination, among other things. Dr. Smith testified in

connection with this grievance, giving unsworn testimony that

provided the basis for Dr. Overall’s subsequent defamation claims.

He made three allegedly defamatory statements. First, he stated

that it was “common knowledge” that Overall was represented in

publications as having a Ph.D. years before she actually received

one. Second, he claimed that Overall represented numerous

articles in her CV as “peer reviewed,” even though they were

allegedly not peer reviewed, as that term is understood in academia.

Finally, Dr. Smith suggested that Dr. Overall misused grant funds

earmarked for clinical work. Ultimately, the University and Dr.

Smith were found innocent of any wrongdoing.

Unsuccessful in her grievance proceeding, Dr. Overall filed

a claim with the Pennsylvania Human Rights Commission

(“PHRC”) and cross-filed with the Equal Employment Opportunity

Commission. The PHRC elected not to take action in her case,

issuing a Right to Sue letter on December 27, 2001.4 Dr. Overall’s

3

The District Court found that Dr. Smith and Dr. Overall

agreed that she would have a “terminal appointment for the year

beginning on July 1, 2000 [that] would extend only until the Search

Committee had reached a decision.” App. at 8.

4

Two months later, Overall filed a complaint in state court,

alleging six causes of action. See App. at 149-165. In July 2001,

5

federal complaint asserted 11 causes of action. The District Court

granted summary judgment in favor of Penn on all counts. Overall

v. Univ. of Pennsylvania, 2003 WL 23095953 (E.D. Pa. Dec. 19,

2003).

II.

Dr. Overall raises four issues on appeal. She maintains that

the District Court erred when it granted summary judgment in

Penn’s favor on the defamation, fraudulent misrepresentation,

retaliation, and employment discrimination claims. We address

each in turn.

A.

We turn first to the defamation issue. The District Court

found that all of Dr. Smith’s allegedly defamatory remarks took

place “during Penn’s internal grievance proceedings relating to Dr.

Overall’s discrimination claims.” Overall, 2003 WL 23095953 at

*9. Quoting Binder v. Triangle Publ’ns, 275 A.2d 53, 56 (Pa.

1971), the District Court correctly noted that “[a]ll communications

pertinent to any stage of a judicial proceeding are accorded an

absolute privilege which cannot be destroyed by abuse.”

Acknowledging that Penn’s internal grievance proceedings were

not actually judicial, the District Court held that they were “quasi-

judicial” and therefore entitled to the same absolute immunity as

regular judicial proceedings.

In reaching this conclusion, the District Court relied on the

Pennsylvania Superior Court’s decision in Milliner v. Enck, which

states:

The “judicial proceeding” wherein absolute privilege

the Court of Common Pleas dismissed her fraudulent

misrepresentation claim, among others, for failure to state a claim

upon which relief can be granted. Dr. Overall then filed a Praecipe

to Discontinue the State Action, and brought suit in federal court.

6

attaches has not been precisely defined in our

Commonwealth. However, it has been defined to

include any hearing before a tribunal which performs

a judicial function, including many administrative

officers, boards and commissions, so far as they have

the powers of discretion in applying the law to the

facts which are regarded as judicial or “quasi-

judicial” in character.

709 A.2d 417, 419 n.1 (Pa. Super. Ct. 1998). The District Court

translated this language into a rule that any proceeding that applies

facts to law deserves “quasi-judicial” status. It wrote:

In this case, the purpose of the grievance

proceedings was to gather the facts and determine

whether those facts supported Dr. Overall’s claim for

discrimination and harassment. If the facts had

supported Dr. Overall’s claims, Dr. Smith would

have been disciplined. This application of the facts

to Dr. Overall’s claims was clearly quasi-judicial in

character. Therefore, the statements made by Dr.

Smith during the grievance proceedings are

absolutely privileged.

Overall, 2003 WL 23095953 at *9.

The District Court misapprehended the essence of quasi-

judicial proceedings. While “applying law to facts” is undeniably

an attribute of such proceedings, our research reveals that under

Pennsylvania law government involvement is also a necessary

condition for according quasi-judicial status to grievance

procedures.

We have not found a single Pennsylvania case according

quasi-judicial status to entirely private hearings. Rather,

Pennsylvania cases finding quasi-judicial privilege consistently

involve proceedings before federal, state, or local governmental

bodies, or proceedings held pursuant to a statute or administrative

regulation. Milliner is instructive on this point. In a lengthy

footnote, the Pennsylvania Superior Court cites – apparently with

7

approval – no fewer than 13 cases discussing quasi-judicial entities.

Without exception, each involves a grievance proceeding before a

government entity or an ostensibly private entity operating pursuant

to a state or federal statute.5

Secondary sources referenced in Pennsylvania quasi-judicial

privilege cases bolster this conclusion. Every case cited in the

leading torts treatise involves a government entity of some sort.6

The Restatement (Second) of Torts explains that quasi-judicial

privilege should be extended to

any person acting as a judge of a court, whether of

general or limited jurisdiction. It is also applicable to

any other official, judicial or otherwise, who

performs a judicial function, such, for example, as a

master in chancery, a referee in bankruptcy, a

5

See, e.g., LaPlante v. United Parcel Service, Inc., 810 F.

Supp. 19, 21 (D. Me. 1993) (Maine Human Rights Commission);

Magan v. Anaconda Indus., 429 A.2d 492, 494-96 (Conn. Super.

Ct. 1980) (Connecticut employment security division); Stiles v.

Chrysler Motors Corp., 624 N.E.2d 238, 242 (Ohio App. 1993)

(auto worker’s grievance proceeding pursuant to the National

Labor Relations Act); Shortz v. Farrell, 193 A. 20, 21-22, 24 (Pa.

1937) (Workmen’s Compensation Board); Urbano v. Meneses, 431

A.2d 308, 309 (Pa. Super. Ct. 1981) (Upper Merion Township

zoning board); Story v. Shelter Bay Co., 760 P.2d 368, 370-71

(Wash. Ct. App. 1988) (Land Sales Enforcement Division of the

Department of Housing and Urban Development).

6

See Page Keeton et al., Prosser & Keeton on Torts § 114,

at 818-19 (5th ed. 1984) (citing cases discussing proceedings

before, e.g., a New York court; civil service boards; industrial

boards; tax boards of appeals; state labor commissions; insurance

commissions; Civil Aeronautics Board; numerous administrative

proceedings to revoke licenses (e.g., liquor, dairy, insurance); state

revenue commissions; insurance commissions; state housing rent

commissions; investigating committees of aldermen; departmental

hearings before police superintendent; zoning board of appeals;

Ohio State Board of Embalmers).

8

member of a military tribunal or the governor of a

State of the United States engaged in an extradition

hearing.

Restatement (Second) of Torts § 585. Each example in this

passage involves a government actor. The Restatement goes on to

discuss other “governmental agencies” that sometimes perform

quasi-judicial functions, such as “public utility commissions and

utility boards.” Id. It concludes that “[i]t is immaterial whether the

body of which the judicial officer is a member is created by the

constitution or by statute.” Id. Implicit in this rule is the

assumption that the “judicial officer” must be a public official.7

Unlike all of the cases cited above, the present case involves

an entirely private grievance procedure. No state or federal statute

authorized it, and no public officials presided over it. Nor was it

the product of a collective bargaining agreement. Furthermore, the

defendants could not point to any case, in Pennsylvania or

elsewhere, that involved an entirely private proceeding akin to the

one at issue here.8

7

See also Restatement (Second) of Torts, Reporter’s Note to

§ 585 cmt. b (citing dozens of additional public tribunals deemed

quasi-judicial). The only other type of proceeding deemed quasi-

judicial is a grievance proceeding arising under a collective

bargaining agreement, which is governed by the Fair Labor

Standards Act.

8

Defendant argues that Walker v. Gibson, 633 F. Supp. 88,

90 (N.D. Ill. 1985), stands for the proposition that statements

before a “grievance committee” are entitled to absolute privilege.

But the proceedings in that case “were convened pursuant to 5

C.F.R. § 771, with Examiner John M. Stewart, of the United States

Army Civilian Appellate Review Agency, as the presiding officer.”

Id. By statute, Examiner Stewart “had the discretion to review the

evidence and examine the witnesses, reach a conclusion, and

prepare a report.” Id. Since the hearing was conducted pursuant

to a federal regulation and involved a public official, it is readily

distinguishable from the private grievance procedure at issue in this

case.

9

Sound reasons exist for this public-private distinction.

Government hearings typically involve basic procedural safeguards

that may be lacking in private proceedings. For example, the Penn

grievance procedure at issue here did not require sworn testimony.

The volunteer faculty members who presided over the hearing

lacked the power to make any binding judgment or enforce any

disciplinary measures; they could only make recommendations.

And of particular relevance to this case, no one kept a transcript of

what was said during the hearing, so there is no record of exactly

what Dr. Smith said when he allegedly defamed Dr. Overall.

Pennsylvania of course is free to set the scope of its quasi-

judicial privilege as it wishes, but we have found absolutely no

support for the argument advanced in this case by the University of

Pennsylvania. We agree with the Restatement that “the fact that an

official or board is required to find facts as a basis for its action

does not of itself make the function of the official or board

judicial,” and hold that the District Court erred in deeming Penn’s

procedure quasi-judicial. Restatement (Second) of Torts, § 585

cmt. b. We therefore reverse the entry of summary judgment in

favor of Penn on Dr. Overall’s defamation claim and remand for

further proceedings.

B.

Dr. Overall next claims that Dr. Smith committed fraudulent

misrepresentation when he said “I’ll work it out,” in response to

her request to “put odds” on her application. We disagree.

Under Pennsylvania law, fraudulent misrepresentation has

six elements:

(1) a representation; (2) which is material to the

transaction at hand; (3) made falsely, with

knowledge of its falsity or recklessness as to whether

it is true or false; (4) with the intent of misleading

another into relying on it; (5) justifiable reliance on

the misrepresentation; and (6) the resulting injury

was proximately caused by the reliance.

10

Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994) (footnote and

citations omitted). Dr. Overall cannot meet all six elements.

The District Court properly found that Dr. Overall could not

have reasonably relied on Dr. Smith’s statement. First, Dr.

Overall’s question did not invite a promise. A request to “put

odds” on a certain event asks that someone weigh the likelihood

that the event will occur in the future. Even here, where Dr. Smith

had significant control over the final decision, Dr. Overall’s request

was different in kind from saying “Do you promise to give me this

job?” Second, Dr. Smith’s response also fell short of a

straightforward promise. A more reasonable interpretation of it

would be that Dr. Smith would do all he could within reason to

help Dr. Overall’s candidacy along. This becomes an even more

natural interpretation when one considers that Dr. Smith made this

remark at a very early stage in the hiring process: the Committee

did not release its interim report until almost a full year later.

Even if Dr. Smith’s representation constituted a promise, Dr.

Overall still could not have reasonably relied on it. As the District

Court noted, when the statement was made, Dr. Overall did not

know that Dr. Smith had the authority to overrule the Hiring

Committee. Overall, 2003 WL 23095953 at *11. If, as Dr. Overall

claims, she later investigated further and discovered that Dr. Smith

had that power, she also would have learned that department chairs

often suffer serious political repercussions when they ignore a

hiring committee’s recommendation.9 It was thus unreasonable for

Dr. Overall to assume that Dr. Smith’s representation would remain

binding no matter what happened during the hiring process.

9

She also would have seen that Dr. Smith’s license to ignore

the Committee’s decision does not give him free rein over the

hiring process. The record reveals that Dr. Smith’s hiring choice

had to be approved by an additional five layers of bureaucracy

before it became official. See App. at 245-46. There is some

indication – admittedly by Dr. Smith himself – that these layers are

not mere “rubber stamps.” Id.

11

C.

Dr. Overall’s two remaining claims do not require lengthy

discussion. On the retaliation claim, Dr. Overall engaged in

protected activity when she filed her grievance with Penn on

November 15, 2000. But the main adverse employment action on

which she relies was the University’s decision to revoke her

clinical privileges, which occurred on October 23 – three weeks

before she filed her University grievance. See App. at 19. Nothing

in the record indicates that Dr. Overall threatened to file her

grievance before that date. Since she cannot prove a causal

connection between her participation in a protected activity and an

adverse employment action, her retaliation claim must fail. See

Weston v. Pennsylvania, 251 F.3d 420, 430 (3d Cir. 2001).

On appeal, Dr. Overall argues that “substantial retaliation”

took place after she filed her grievance. She points to incidents in

which Dr. Smith allegedly “berated” her in her office in the

presence of witnesses on November 1, 2000; placed a padlock on

the clinic door in March 2001; and then defamed her in June 2001.

Assuming for the sake of argument that these incidents amount to

“adverse employment actions,” Robinson v. City of Pittsburgh, 120

F.3d 1286, 1300 (3d Cir. 1997), there is no proof of a causal link

between any of these activities and Dr. Overall’s filing of a

grievance. The November 1 incident occurred the day after

Overall’s clinical privileges were suspended. The record shows

that Smith was “berating” Overall for contravening the terms of her

suspension. The padlock was placed on the clinic because items

were missing from it. And, finally, Dr. Smith made allegedly

defamatory remarks at the grievance proceeding to explain why he

did not override the Search Committee’s decision against

recommending Dr. Overall.

Dr. Overall’s final claim is gender discrimination. The

District Court could not “find any evidence that gender motivated

Dr. Smith’s decision.” App. at 13. In fact, it found that “Dr. Smith

appears to have been more supportive of Dr. Overall than were the

members of the search committee.” App. 13-14. We agree. The

record is devoid of any credible evidence that Dr. Smith chose not

to override the Committee’s decision because of Dr. Overall’s

12

gender. In fact, the record is replete with evidence that Dr.

Overall’s candidacy had drawbacks so significant that even her

personal champion in the Department felt compelled to abide by

the Committee’s decision.

III.

For the foregoing reasons, we affirm the District Court’s

entry of summary judgment in favor of Penn on the fraudulent

misrepresentation, retaliation, and employment discrimination

claims, but we reverse the entry of summary judgment on the

defamation claim, and remand for further proceedings on that

claim.

13