Tryboski, J. v. The PA State University

J-S56032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JULIE TRYBOSKI, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

THE PENNSYLVANIA STATE UNIVERSITY,

Appellee No. 124 MDA 2015

Appeal from the Order Entered December 16, 2014

in the Court of Common Pleas of Centre County

Civil Division at No.: 2011-4909

BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED NOVEMBER

09, 2015

Appellant, Julie Tryboski, appeals pro se from the order of the court of

common pleas granting the motion for summary judgment of Appellee, The

Pennsylvania State University, and dismissing her amended complaint with

prejudice. We affirm.

We take the following background from this Court’s April 1, 2013

memorandum opinion:

In August 1995, Appellant was accepted into a doctoral

program with the Communications Arts and Sciences

Department of Penn State. By 2000, Appellant began work on

her dissertation. Professor J. Michael Hogan served as

Appellant’s graduate advisor and chair of her dissertation

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*

Retired Senior Judge assigned to the Superior Court.

J-S56032-15

committee. Under the program rules, a student who did not

complete his or her dissertation within six years of passing

required comprehensive examinations must retake the

examinations to remain viable in the program. Appellant did not

complete her dissertation by her deadline of October 8, 2005,

having only turned in a first draft that month.

Arrangements were made for Appellant to retake her

comprehensive examinations on February 1, 2006. Additionally,

Appellant sought a retroactive two-year medical withdrawal,

which she hoped would effectively extend the deadline for

completion of her dissertation. On February 17, 2006, Graduate

School Associate Dean Mark Wardell advised Appellant that the

six-year deadline was not contingent on registration, and a

medical withdrawal would not affect her need to retake her

comprehensive examinations. It was subsequently approved for

Appellant to retake her comprehensive examination in the fall of

2006.

In May and June 2006, Appellant sent e-mails to Professor

Hogan detailing her dissatisfaction with the decision and

advancing various criticisms of his performance as her advisor.

On June 5, 2006, Professor Hogan resigned as Appellant’s

advisor, and from her dissertation committee, citing a lack of

collegiality. Appellant was promptly notified of Professor

Hogan’s resignation and advised that a replacement advisor

needed to be found. Unknown to Appellant at the time, two

other committee members resigned on June 6, 2006, and the

remaining member resigned on July 25, 2006. Neither

Appellant’s own efforts, nor efforts made on her behalf by the

Department and the University administration, succeeded in

securing a replacement advisor. Consequently, on August 4,

2006, Communications Arts and Sciences Department Head,

Professor James P. Dillard sent a letter to Appellant, informing

her that her “program of study in Communications Arts and

Sciences has reached its end as of August 1, 2006.” (Appellant’s

Amended Complaint, 2/21/12, Appendix K).

Appellant did not make a timely request for a departmental

appeal of her dismissal. However, on January 31, 2007,

Appellant filed a discrimination complaint with the Pennsylvania

Human Relations Commission. On November 12, 2009, the

Commission dismissed Appellant’s complaint. On November 4,

2011, Appellant filed a pro se complaint with the Court of

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Common Pleas of Centre County, alleging sexual discrimination

under the Pennsylvania Human Relations Act (PHRA). On

December 21, 2011 Penn State filed preliminary objections. The

trial court sustained Penn State’s preliminary objections on

February 2, 2012, and permitted Appellant leave to file an

amended complaint within 20 days.

Appellant timely filed her pro se amended complaint on

February 21, 2012. On March 9, 2012, Penn State filed renewed

preliminary objections raising various issues, including a

demurrer alleging Appellant failed to state a prima facie case of

gender discrimination. On June 5, 2012, the trial court

sustained Penn State’s preliminary objection in the nature of a

demurrer and dismissed Appellant’s complaint with prejudice.

On June 14, 2012, Appellant filed a motion for reconsideration,

which the trial court denied on June 19, 2012. Appellant filed a

timely notice of appeal on July 5, 2012.

(Tryboski v. Penn State Univ., No. 124 MDA 2015, unpublished

memorandum, at *1-*4 (Pa. Super. filed April 1, 2013)) (footnotes omitted;

parentheses added).

As further detailed by the trial court in its December 16, 2014 opinion:

On April 1, 2013, the Superior Court reversed and

remanded, indicating that the trial court had erroneously

determined that [Appellant] had failed to plead sufficient facts to

show that she is qualified for the position and failed to plead

sufficient facts to show she was discharged under circumstances

that gave rise to an inference of discrimination. . . .

On February 6, 2014, [Appellee] filed its Answer and on

February 24, 2014, [Appellant] filed a Reply. On September 30,

2014, [Appellee] filed a Motion for Summary Judgment along

with a statement of material facts and relevant documents.

[Appellant] filed a brief in opposition to summary judgment on

November 11, 2014 along with relevant documents. [Appellee]

thereafter submitted a reply brief. A hearing was held December

1, 2014.

(Trial Court Opinion, 12/16/14, at 2).

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On December 16, 2014, the trial court granted Appellee’s motion for

summary judgment based on its finding that “Professor Hogan’s stated

reasons for resigning were not a pretext for gender discrimination.” (Id. at

11). The trial court denied Appellant’s motion for reconsideration. Appellant

timely appealed.1

Appellant raises one issue for our review:

1. Did the trial court error [sic] in granting [Appellee’s]

Motion for Summary Judgment because the court improperly

held that [Appellant’s] evidence failed to establish that genuine

issues of material fact remain as to whether [Appellee’s] averred

reasons for discharging her were pretextual because the court

improperly weighed conflicting evidence and failed to draw all

inferences in the light most favorable to [Appellant]?

(Appellant’s Brief, at 2).2

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1

Appellant filed a timely statement of errors on appeal on February 11,

2015 pursuant to the court’s order. See Pa.R.A.P. 1925(b). The court filed

a Rule 1925(a) opinion in which it relied on the reasons stated in its

December 16, 2014 opinion. See Pa.R.A.P. 1925(a).

2

As a preliminary matter, we observe that Appellant’s brief is forty-one

meandering pages long, and does not contain a certification that it is not in

excess of 14,000 words, as required by Pennsylvania Rule of Appellate

Procedure 2135. (See Appellant’s Brief, at 1-41); see also Pa.R.A.P.

2135(a)(1), (d). Additionally, the argument section of the brief is flawed.

First, other than a citation to one binding United States Supreme Court case,

the argument section of the brief only cites law from the Commonwealth

Court and lower federal courts. (See Appellant’s Brief, at 11-40). However,

we can consider this authority as persuasive, even if not binding. See

Cresci Const. Serv., Inc. v. Martin, 64 A.3d 254, 256 n.3, 258 n.7 (Pa.

Super. 2013) (Decisions of Commonwealth Court and lower federal courts

not binding, but provide persuasive authority and guidance). Also, the vast

majority of this section contains a self-serving, tortuous recitation of the

underlying facts of this case, rather than pertinent discussion, in violation of

(Footnote Continued Next Page)

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Our standard and scope of review of a court’s order granting a motion

for summary judgment is well-settled:

A reviewing court may disturb the order of the trial court only

where it is established that the court committed an error of law

or abused its discretion. As with all questions of law, our review

is plenary.

In evaluating the trial court’s decision to enter summary

judgment, we focus on the legal standard articulated in the

summary judgment rule. Pa.R.C.P. 1035.2. The rule states that

where there is no genuine issue of material fact and the moving

party is entitled to relief as a matter of law, summary judgment

may be entered. Where the nonmoving party bears the burden

of proof on an issue, he may not merely rely on his pleadings or

answers in order to survive summary judgment. Failure of a

non-moving party to adduce sufficient evidence on an issue

essential to his case and on which he bears the burden of proof

establishes the entitlement of the moving party to judgment as a

matter of law. Lastly, we will review the record in the light most

favorable to the non-moving party, and all doubts as to the

existence of a genuine issue of material fact must be resolved

against the moving party.

Krauss v. Trane U.S. Inc., 104 A.3d 556, 562-63 (Pa. Super. 2014) (case

citation omitted).

Established for Title VII cases, where, as here, direct

evidence of discriminatory treatment is lacking, is “an allocation

of the burden of production and an order for the presentation of

proof” according to which a court may assess a plaintiff’s indirect

evidence of discrimination. This Title VII burden-shifting

framework as developed in McDonnell Douglas [Corp. v.

Green, 411 U.S. 792 (1973),] is a three-part one. First, the

plaintiff bears the initial burden of establishing a prima facie case

of discrimination. The burden on the plaintiff of presenting a

_______________________

(Footnote Continued)

Rule 2119(a). (See Appellant’s Brief, at 15-40); see also Pa.R.A.P.

2119(a). However, although Appellant fails to clearly explain her argument,

we will consider it on the merits to the extent possible.

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prima facie case under McDonnell Douglas is minimal. If the

plaintiff cannot meet this minimal burden, the employer is

entitled to judgment as a matter of law.

If the plaintiff does establish a prima facie case, a

presumption of discrimination arises, and the burden of

production shifts to the employer to articulate a legitimate,

nondiscriminatory reason for the challenged employment

decision. . . . If the employer articulates a legitimate business

explanation, then the presumption of discriminatory intent

created by the employee’s prima facie case is rebutted and the

presumption simply drops out of the picture.

If the employer satisfies its burden of production, the third

and final part of the McDonnell Douglas framework gives the

plaintiff the opportunity to show that the legitimate reasons

proffered by the employer were pretexts for what, in reality, was

a discriminatory motivation. In the pretext discrimination case,

the employer need not prove that the tendered reason actually

motivated its behavior, as throughout this burden-shifting

paradigm the ultimate burden of proving intentional

discrimination always rests with the plaintiff.

Kroptavich v. Penn. Power and Light Co., 795 A.2d 1048, 1055 (Pa.

Super. 2002) (citations omitted; some quotation marks omitted).3

Here, Appellant seeks to hold Appellee liable for terminating her

because its stated reasons for doing so were inconsistent, and resulted from

the alleged discriminatory actions of her advisor, its employee, Professor

Hogan. (See Appellant’s Brief, at 15). Specifically, she states that “[she]

has offered evidence supporting the fact that the demise of her PhD

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3

As stated previously, a panel of this Court found that Appellant stated a

prima facie case. (See Trial Ct. Op., at 2). The only prong at issue in this

appeal is the third prong, i.e., whether the trial court properly found that

Appellant failed to establish pretext. (See Appellant’s Brief, at 12).

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aspirations was a fait accompli once Prof. Hogan’s animus infected the

process. (There are, thus, issues of fact as to ‘cat’s paw’ liability sufficient to

avoid summary judgment[.] . . .).” (Id. at 16). Appellant’s claim does not

merit relief.

In Staub v. Proctor Hosp., 562 U.S. 411 (2011), the United States

Supreme Court held that, under the cat’s paw theory, “[i]f a supervisor

performs an act motivated by [discriminatory] animus that is intended by

the supervisor to cause an adverse employment action, and if that act is a

proximate cause of the ultimate employment action, then the employer is

liable . . . .” Staub, supra at 422 (footnote and emphasis omitted).

However, as aptly discussed by the trial court in this case, Appellant

failed to create a genuine issue of material fact regarding whether Professor

Hogan acted with discriminatory intent when he resigned, much less about if

he intended her termination. Specifically, the trial court observed:

[Appellant] did not raise a material issue by casting

substantial doubt on Professor Hogan’s proffered reasons for

resigning or by coming forward with sufficient evidence from

which a factfinder could reasonably conclude that an illegitimate

factor more likely than not was a motivating or determinative

cause of his decision to do so. [Appellant] argues that Professor

Hogan relied on “ingrained sex stereotypes, particularly the ones

that anger and assertiveness are unacceptable in women” when

he decided to resign as her advisor after receiving her email on

June 5, 2006. In support of her argument, [Appellant]

presented emails wherein Professor Hogan and Dr. Dillard

referred to the June 5, 2006 email as “combative” and

“aggressive.” Additionally, discovery revealed emails wherein

Professor Hogan writes critically of [Appellant]. For example, on

October 5, 2005, Professor Hogan sent an email to Dr. Dillard

wherein he said that “the decision NOT to take a forceful stand

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and terminate [Appellant] back in November of 2005 is coming

back to haunt us.” Similarly, on April 13, 2004, Professor Hogan

stated in another email to administration that “if [Appellant’s]

past behavior is any indication, she’ll try to blame us [for her

situation].” Despite the fact that it is clear Professor Hogan did

not have a great deal of respect for [Appellant] leading up to his

resignation, the [c]ourt cannot find any evidence in the record

that his feelings toward [Appellant] were a result of gender

discrimination. The evidence shows that Professor Hogan

eventually resigned due to his long history with [Appellant],

including her failure to adhere to his expectations of graduate

students. For example, [Appellant’s] draft dissertation arrived to

Professor Hogan on October 5, 2005─three days before her

deadline─though she had sent him the same draft by email two

weeks earlier. Professor Hogan does not accept dissertations by

email and thus did not consider the emailed draft a submission.

He therefore did not have sufficient time to review her draft,

suggest edits to her, and allow her to revise it before the rest of

her committee reviewed it by the deadline.

[Appellant] also presented comparator evidence. Professor

Hogan told another female student, Corinne Weisberger, that he

treated seeking one’s request to view comprehensive exam

scores as an “adversarial action.” In an email in June 2002,

Professor Hogan also told Corinne Weisberger that he was

“becoming increasingly concerned. about [her] apparent

obsession with these perceived past injustices” in reference to

the student’s desire to see her scores on her comprehensive

exams. While the correspondence between Professor Hogan and

Corinne Weisberger was tense─like much of [Appellant’s]

correspondence with Professor Hogan─the [c]ourt finds no

evidence of pretext in it. [Appellant] additionally presented

evidence regarding a male student, George Elder, who spoke out

publically against the [d]epartment but was not terminated.

Notably, Mr. Elder had a different advisor and committee

members, with the exception of Professor Johnstone. Upon

consideration of all of [Appellant’s] evidence, the [c]ourt finds

that Professor Hogan’s proffered reasons for his resignation─the

eventual demise of their working relationship─to be credible.

[Appellant] argues that she was continually penalized with a

difficult dissertation, a hostile adviser, and persistent poor

health. These arguments cut against her theory that Professor

Hogan resigned because she failed to adhere to sex stereotypes,

but instead bolster Professor Hogan’s stated reasons for

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resigning. [Appellant] failed to “cast substantial doubt” on

Professor Hogan’s legitimate, nondiscriminatory reasons for

resigning from her committee. In other words, the [c]ourt finds

that Professor Hogan’s stated reasons for resigning were not a

pretext for gender discrimination. . . .

(Trial Ct. Op., at 10-11) (citation omitted).

After our independent review of the record, we agree with the trial

court that Appellant failed to adduce sufficient evidence to raise a genuine

issue of material fact regarding whether Professor Hogan’s stated reasons

for resigning were merely a pretext for gender discrimination. See Krauss,

supra at 562-63; Kroptavich, supra at 1055.

Appellant’s amended complaint alleges, in pertinent part, that, “Prof.

Hogan, in making his decision to resign, and in citing a ‘lack of collegiality,’

illegally relied on deeply ingrained sex stereotypes, particularly the ones that

anger and assertiveness are unacceptable in women,” and that “[his]

interest in collegiality was . . . a pretext to cover his discriminatory animus

toward [Appellant].” (Amended Complaint, 2/21/12, at 5 ¶ 33, 16 ¶ 76).

However, none of the numerous exhibits in the certified record support her

allegation.

For example, at her deposition, when repeatedly asked if she had any

evidence that Professor Hogan “relied on the deeply ingrained stereotypes”

alleged in her complaint, Appellant consistently replied in the negative.

(N.T. Appellant’s Deposition, 3/28/14, at 125, 127; see id. at 126). She

also admitted that she did not have any evidence that Professor Hogan

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treated the female students whom he advised differently than the males.

(See id. at 128-29). Further, in spite of her allegation that Professor Hogan

used “lack of collegiality” as a pretext, she admitted that the June 5, 2006

email she sent to him was angry and confrontational. (Amended Complaint,

2/21/12, at 5 ¶ 33; see id. at 16 ¶ 76; N.T. Appellant’s Deposition, at 128).

Finally, although Appellant asserts that her entire doctoral committee

resigned at the urging of Professor Hogan, she admitted at her deposition

that she does not have any evidence of that. (See N.T. Appellant’s

Deposition, at 133-37).

Indeed, a review of the email communications between Appellant and

Professor Hogan reveal a history of an antagonistic relationship between the

two that certainly could be characterized as lacking collegiality, but do not

even suggest discrimination. (See, e.g., Amended Complaint, Appendix F,

Email Exchange Between Appellant and Professor Hogan, 5/30/06-6/05/06);

id. at Appendix S, Email Exchange Between Appellant and Professor Hogan,

2/26/04-2/27/04; Appellee’s Motion for Summary Judgment, Appendix 7,

Documents Provided in Discovery, Exhibit G1, Email Exchange Between

Appellant and Professor Hogan, 2/07/02-2/11/02; id. at Exhibit G3, Email

Exchange Between Appellant and Professor Hogan, 8/23/02-8/24/02; id. at

Exhibit H1, at unnumbered pages 3-6, Email Exchange Between Appellant

and Professor Hogan, 9/23/04-9/24/04; id. at Exhibit I6, Email Exchange

Between Appellant and Professor Hogan, 11/28/05-12/05/05).

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Also, we also find no abuse of discretion in the trial court’s

characterization of the comparator evidence. (See Trial Ct. Op., at 11; see

also Amended Complaint, Appendix I, Letter from Dr. George H. Elder to

Trial Court, 12/29/11; id. at Appendix J, Samples of Elder’s Editorials and

Controversies at Penn State; id. at Appendix P, Email from Corinne

Weisgerber to Appellant, 8/24/07, at 1). The email sent from Corinne

Weisgerber to Appellant claimed that she and Professor Hogan had a

contentious relationship, but did not contain any allegation of gender

discrimination. (See id. at Appendix P, Email from Corinne Weisgerber to

Appellant, 8/24/07, at 1). Dr. Elder is a male who had a different advisor

than Appellant and spoke against the school. (See id. at Appendix I, Letter

from Dr. George H. Elder to Trial Court, 12/29/11; id. at Appendix J,

Samples of Elder’s Editorials and Controversies at Penn State).

In short, Appellee discontinued Appellant’s doctoral program for her

failure to meet its requirements. Appellant did not provide one piece of

evidence that would link her termination to her speculation that Professor

Hogan resigned, persuaded other committee members to resign, and

rendered her somehow unable to meet the requirements of the doctoral

program on the basis of gender bias. Therefore, the trial court properly

found that Appellant failed to meet her burden of proving that there is a

genuine issue of material fact regarding whether Professor Hogan’s stated

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reason for resigning as her advisor was pretext for discrimination.4 See

Kroptavich, supra at 1055.

Hence, after our own independent review, we conclude that the trial

court did not abuse its discretion or commit an error of law when it granted

Appellee’s motion for summary judgment where it is entitled to judgment as

a matter of law. See Krauss, supra at 562-63. Appellant’s issue lacks

merit.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/9/2015

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4

Although Appellant baldly accuses many members of Appellee’s faculty of

not acting in her best interest and conspiring against her, she does not

allege that their actions were premised on their own gender discrimination.

(See Appellant’s Brief, at 16-40).

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