520 F.2d 1364 (3rd Cir. 1975), 74-2201, Roseman v. Indiana University of Pennsylvania, at Indiana

Docket Nº:74-2201.
Citation:520 F.2d 1364
Case Date:July 22, 1975
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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520 F.2d 1364 (3rd Cir. 1975)

Eleanor ROSEMAN, Appellant,



No. 74-2201.

United States Court of Appeals, Third Circuit

July 22, 1975

Argued May 2, 1975.

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David Rudovsky, Kairys & Rudovsky, Philadelphia, Pa., for appellant.

Patricia Donovan, Deputy Atty. Gen., Dept. of Justice, Harrisburg, Pa., for appellees.

Before FORMAN, VAN DUSEN and GARTH, Circuit Judges.


VAN DUSEN, Circuit Judge.

This is a timely appeal from a September 24, 1974, judgment of the United States District Court for the Western District of Pennsylvania. The plaintiff, Roseman, was an associate professor in the Foreign Languages Department of Indiana University of Pennsylvania for the academic years beginning September of 1969 and 1970. Her contract was not renewed for the academic year beginning in September of 1971. Her complaint, filed December 20, 1973, alleged that the non-renewal violated her right to a pre-termination hearing, was in retaliation for her exercise of protected speech, and penalized her for her religious beliefs. 1 She sought reinstatement, injunctive relief, and damages. The district court found for the defendants on all counts. Roseman v. Hassler, 382 F.Supp. 1328, 1341-42 (W.D.Pa.1974). We affirm.

It will be unnecessary to restate the facts relevant to those claims in which we have no disagreement with the district court's opinion. 2 In particular, we find that as Pennsylvania contract law and Indiana University's tenure regulations apply to the plaintiff's negotiations with the University, she had no property interest in continued employment sufficient to require a pre-termination hearing under Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), and Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). We so find for the reasons stated by the district court. 382 F.Supp. at 1335-37, 1342 (Conclusions of Law 2-4). See also Skehan v. Board of Trustees, 501 F.2d 31 (3d Cir. 1974), vacated and remanded on other grounds, --- U.S. ---, 95 S.Ct. 1986, 44 L.Ed.2d 474 (1975). We also affirm the district court's holding that the plaintiff's

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First Amendment right to practice her religion freely was not violated. 3

The plaintiff's freedom of speech claim requires somewhat more extended discussion. The Committee on Merit and Tenure of the Faculty evaluated the plaintiff's performance at a meeting on March 20, 1970, and called several shortcomings to the plaintiff's attention. The Committee indicated at that time that it would meet again for a further discussion of the non-tenured staff. Shortly thereafter, a controversy arose within the Foreign Languages Department. Plaintiff apparently thought that Faust, the Acting Chairman of the Foreign Languages Department and a defendant in this action, may have suppressed the application of one Hyde for chairmanship of the Department. The district court found that Faust had committed no impropriety. 4 The Findings (37-40 are set forth in note 5 below) 5 indicate that plaintiff never made an investigation of the facts and her complaint was first made after the deadline for receiving applications had passed. Notwithstanding, on April 5, 1970, the plaintiff complained to the Dean of the College of Arts and Sciences of the University, McGovern, about what she believed to have been Faust's wrongful suppression of the Hyde application, and later repeated these charges at a May 5, 1970, meeting of the teaching staff of the Foreign Languages Department at the invitation of Dean McGovern, who specifically invited the plaintiff to explain them. 6 She did so; the faculty nevertheless gave a vote of confidence to Faust. On May 12, the Committee on Merit and Tenure, of which Faust was a member decided not to renew the plaintiff's contract by a vote of ten affirmatives and one abstention. This decision was subsequently ratified by University officials.

The district court expressed concern, which we share, over the "close proximity of the meeting of May 12, 1970, to the faculty meeting of May 5, 1970, at which plaintiff had voiced her complaints as to Mr. Faust." 382 F.Supp. at 1338-39. The district court found, however, that "there were adequate work-related reasons for not renewing plaintiff's contract," which language

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is supported by Findings 34 and 45 (382 F.Supp. at 1331 and 1332), reading as follows:

"34. Plaintiff was non-renewed because of her work practices which created administrative hardships and delays, her inadequate classroom performance and her failure to get along amicably in the department.

"45. The decision to non-renew plaintiff was not made in retaliation for the exercise of any valid right of free speech."

The district court also reasoned that "plaintiff has the burden of proving by a preponderance of the evidence that her non-retention was caused in substantial part by restraint on her freedom of speech . . .." 382 F.Supp. 1339. In this respect, the district court appears to have misunderstood the proper standard of review...

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