Atkinson v. Lafayette College

Citation460 F.3d 447
Decision Date21 August 2006
Docket NumberNo. 03-3426.,03-3426.
PartiesEve ATKINSON, Appellant v. LaFAYETTE COLLEGE; Arthur J. Rothkopf, Esquire, Individually and as President of Lafayette College.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Alan B. Epstein, Esquire (Argued), Jennifer L. Myers, Esquire, Spector, Gadon & Rosen P.C., Philadelphia, PA, for Appellant.

John G. Harkins, Jr. (Argued), Neill C. Kling, Esquire, Harkins Cunningham, Barry

Simon, Esquire, Dara P. Newman, Esquire, Simon Moran, Philadelphia, PA, for Appellees.

Dina R. Lassow, Esquire, Jocelyn Samuels, Esquire, National Women's Law Center, Washington, DC, for Amici-Appellants.

R. Alexander Acosta, Assistant Attorney General, Kenneth Marcus, Senior Counsel, Office for Civil Rights, Brian W. Jones, General Counsel, Dennis J. Dimsey, Esquire, Lisa W. Edwards, Esquire, Department of Justice Civil Rights Division Appellate Section, Washington, D.C., for Amicus-Appellant.

Before AMBRO and BECKER,* Circuit Judges, STAGG,** District Judge.

OPINION OF THE COURT

STAGG, District Judge.

In the fall of 1989, Dr. Eve Atkinson ("Atkinson") applied to Lafayette College for the position of "Director of Athletics and Professor and Head, Physical Education and Athletics." She learned of the position from Olav Kollevoll ("Kollevoll"), the departing Director of Athletics at Lafayette College, who had been hired by the College in 1965. Atkinson was hired in December of 1989. Her appointment letter provided, in pertinent part:

... [Lafayette College] is pleased to appoint you to the position of Director of Athletics and Professor and Head, Physical Education and Athletics, effective January 29, 1990, with term thereafter at the pleasure of the President of the College and the Board of Trustees. It is further understood that your initial appointment will be through June 30, 1992, and following that period that you would be subject to the procedures for due notice as apply to the faculty which would ensure you a minimum of one year's notice.

Atkinson's employment continued after her initial two and one-half year term. Each year, she received salary letters advising her of an annual increase.

In addition to her appointment letter, the Lafayette College Faculty Handbook and the Statutes of Lafayette College provided further guidance as to the terms and conditions of employment for faculty members. Regarding tenure, the Faculty Handbook stated:

B. Tenure. Tenure as described in the following paragraphs is defined as continuity of service, the institution having relinquished the freedom it normally possesses to terminate appointment, except for cause and subject to provision of the College with respect to retirement.

1. Professors shall have tenure except on an initial appointment to the Lafayette College Faculty. Such initial appointment may be with tenure or for a period not to exceed three years. This appointment shall be followed by appointment with tenure or termination of employment

...

5. Notification about Tenure Status. For those not on tenure a decision must be reached by September 1 of the last probationary year as to whether or not tenure will be granted, and the individual must be notified of this decision. In no case, however will tenure be granted by default. It is the responsibility of the individual concerned to notify his Department Head of a failure to receive written notification with regard to his continued employment.

From the inception of her employment, Atkinson raised issues of gender equality in the Lafayette College athletic program. In January of 1996, Atkinson specifically raised the issue in the context of the College's athletic budget. As a result of this instance and her continuing efforts, Atkinson claims that she was subjected to gender discrimination by her supervisor, Lafayette College's Dean of Students, Herman Kissiah ("Kissiah"), and that she was subjected to unlawful retaliation, ultimately resulting in her termination.

On November 4, 1999, the President of Lafayette College, Arthur J. Rothkopf ("President Rothkopf"), formally notified Atkinson of his decision to terminate her employment.1 In his termination letter to Atkinson, President Rothkopf expressed his belief that the Lafayette College Athletic Department would benefit from new leadership.2

Believing that she was a tenured member of the faculty, Atkinson attempted to appeal President Rothkopf's decision. In a letter to him dated November 22, 1999, Atkinson acknowledged that she was given proper notification of her termination from the position of Athletic Director, but argued that, as a tenured professor, she could not be terminated from her faculty position without cause. President Rothkopf refused to accept her claim of tenure and, by letter dated December 13, 1999, explained that Atkinson had never been a tenured member of the faculty, but instead served at the "pleasure of the President," as stated in her initial appointment letter.

On January 6, 2000, Atkinson wrote a second letter to President Rothkopf, further detailing why she felt she was a tenured member of the faculty and requesting a hearing by the faculty tenure review appeals committee. President Rothkopf again responded by letter, explaining that "[s]erving `at the pleasure of the President of the College and the Board of Trustees' is inherently at odds with the `tenure' you are now claiming for the first time." He thus denied her request for a hearing.

On February 18, 2000, Atkinson wrote a letter to the Provost of the College, Dr. June Schlueter ("Provost Schlueter"), reasserting Atkinson's perceived right to remain in her position as a tenured member of the faculty and requesting a faculty appeal. Provost Schlueter responded by stating that she could neither accept Atkinson's claim to have tenure nor act upon her request for a faculty appeal, because her appointment letter expressly stated that she served at the pleasure of the President and the Board.3

In none of these written exchanges with the President or the Provost did Atkinson mention an argument she claims to have had with her supervisor, Kissiah, on November 18, 1998. According to Atkinson, on that date, Kissiah became enraged as a result of differing opinions regarding athletics funding and stood over her with his fists raised. Atkinson does, however, claim that she immediately met with Lafayette College's Vice President of Human Resources and General Counsel, and President Rothkopf, following the incident and informed them of such, stating that she was discriminated against because of the allocations she wanted to make to the men's and women's sports programs. Atkinson argues that, as a result of these complaints, she was subjected to retaliation. For example, in April of 1999, Atkinson was relieved of her duties as supervisor of intramurals and recreation, a significant component of her position.

On May 2, 2000, Atkinson filed a complaint under the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. § 951 et seq. The complaint, filed with Pennsylvania's Human Relations Commission ("PHRC"), challenged her termination and the denial of her tenure status and requested faculty appeals. In it, Atkinson alleged that she was terminated and denied a faculty appeal based on her gender and Lafayette College's pattern and practice of discharging qualified female employees, and that similarly situated males had not been terminated or had the status of their tenure denied under similar circumstances. She did not allege retaliation in her PHRC complaint, which was also filed with the federal Equal Employment Opportunity Commission ("EEOC").

On July 10, 2000, Atkinson responded to an EEOC questionnaire concerning her employment claim by submitting a verified document entitled "Allegations of Employment Discrimination," wherein she stated that the basis for her charge was sex, retaliation and age. Atkinson's allegation of sex discrimination was that she was treated differently from similarly situated males. She further alleged that her "notice of termination [was] retaliation against her for her insistence that Title IX antidiscrimination law be followed, i.e., that additional financial funding and personnel be given to the women's sports programs."

Atkinson then filed suit in the Eastern District of Pennsylvania. Thereafter, the defendants filed a motion to dismiss. The District Court granted the defendants' motion for partial dismissal as to Atkinson's retaliation claims under Title IX, finding that under Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), there was no private right of action to enforce such claims. The District Court further granted the defendants' motion for partial dismissal on Atkinson's claims of breach of contract and Title VII claims against President Rothkopf individually. The defendants then moved for summary judgment as to all of Atkinson's remaining claims, which was granted in its entirety.

A. Standard Of Review.

We have jurisdiction under 28 U.S.C. § 1291. Our standard of review of the District Court's dismissal under Rule 12(b)(6) is plenary. See Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir.2005). Our review of a grant of summary judgment is also plenary, and we must grant all reasonable inferences from the evidence of the non-moving party. See Anderson v. Consol. Rail Corp., 297 F.3d 242, 246-47 (3d Cir.2002).

B. Title IX.

The United States Supreme Court decided the case of Jackson v. Birmingham Board of Education, 544 U.S. 167, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005), on March 29, 2005, holding that Title IX's private right of action encompasses claims of retaliation against an individual because he or she has complained about sex discrimination. The basis for the District Court's dismissal in Atkinson's case for failure to state a claim for relief under Title IX is inconsistent with the decision in Jackson. Accordingly, the dismissal of...

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