Bougher v. University of Pittsburgh

Decision Date14 March 1989
Docket NumberCiv. A. No. 86-1096.
Citation713 F. Supp. 139
PartiesRuth Ann BOUGHER, Plaintiff, v. UNIVERSITY OF PITTSBURGH, Wesley W. Posvar, Trevor Melia and Maryann Bishop Coffey, Defendants.
CourtU.S. District Court — Eastern District of Pennsylvania

Matthew E. Jackson, Jr., Pittsburgh, Pa., for plaintiff.

Martha Hartle Munsch, Pittsburgh, Pa., for defendants.


SMITH, District Judge.

The History:

This quagmire began as a pro se complaint filed May 27, 1986, in which plaintiff alleged that the University of Pittsburgh had engaged in a policy and practice of sexual harassment and discrimination against her and against other female students. Actions such as "failing to protect Pitt's unsuspecting female students from the devious use of authority to emphasize sexuality in a manner which prevents or impairs the student's full enjoyment of educational benefits"1 allegedly caused plaintiff a loss of educational opportunities, and consequently of opportunities for employment and income. Wesley Posvar, the chancellor of the University of Pittsburgh, was alleged to have negligently failed to implement policies which would prohibit gender-based harassment. Both Posvar and Pitt were alleged to have thereby violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq. Plaintiff had retained an attorney, and counsel for defendants Pitt, Posvar, and Melia had filed a motion to dismiss for failure to state a claim, by the end of July, 1986.

The litigation took a further step on August 21, 1986, when plaintiff filed a counseled, Amended Complaint. This complaint asserted that the University of Pittsburgh, Wesley Posvar, Trevor Melia, and Maryann Bishop Coffey had violated not only Title IX, but also 42 U.S.C. § 1985(3). All defendants except Melia were alleged to have violated 42 U.S.C. § 1983 as well. The defendants filed their answer September 2, 1986, and withdrew their motions to dismiss at a status conference held before Judge Teitelbaum on September 29, 1986.

Discovery was marred by repeated motions asserting irregularities, bad faith, and criminal conduct. The first exchange, in November, 1986, saw plaintiff unsuccessfully attempting to suppress her own deposition transcript because the court reporter would not provide her a copy for examination prior to receiving payment. The second, in November and December of 1986, saw defendants seeking sanctions against plaintiff's counsel for his failure to have plaintiff's parents appear for their depositions. The closing days of 1986 also were the beginning of a protracted skirmish over defendants' attempt to schedule an independent medical examination of plaintiff, to obtain plaintiff's medical history, and to depose plaintiff's psychologist. On December 22, 1986, Judge Teitelbaum ordered plaintiff to submit to a mental examination, and denied plaintiff's request for a protective order, thereby allowing deposition of plaintiff's psychologist, and granted the first extension of the discovery deadline.

Plaintiff began 1987 as 1986 had ended, with a discovery motion, this one seeking a psychiatric examination of defendant Melia. Judge Teitelbaum denied this specious request and also the attempt to block defendants' obtaining of plaintiff's medical records, by orders dated January 14, 1987, and January 13, 1987. The order permitting defendant access to plaintiff's medical records required defendant to keep the records confidential and placed the filed medical records under seal. Unhappy with the order for psychiatric examination, plaintiff again filed a request for a protective order, seeking to have the Court appoint the examining psychiatrist and to have certain areas of inquiry blocked. Meanwhile, defendants were attempting to compel the depositions of the von Eckartsbergs, plaintiff's psychologist/counselors, and plaintiff was seeking an order compelling defendants to produce peer review records of defendant Melia, an associate professor tenured at Pitt in 1972. Plaintiff also sought once more on February 3, 1987, to obtain a court order for Melia's psychiatric examination, which was denied.

On March 6, 1987, Judge Teitelbaum issued ground rules for the psychiatric examination of plaintiff, denied plaintiff's attempt to obtain defendant Melia's 1972 peer review records, and extended the discovery deadline again to permit the Von Eckertsbergs' depositions. March was consumed, however, by a conflict which arose at plaintiff's long-delayed examination which led to the two motions for sanctions by defendants, two responses by plaintiff, and two court orders, on April 8, 1987, and April 15, 1987.

Also in April 1987, plaintiff moved to amend her complaint to add additional state law breach of contract counts. Meanwhile, plaintiff filed with the Court of Appeals for the Third Circuit a Petition for a Supervisory Writ of Mandamus once more attempting to block defendants' psychiatric examination. This resulted on April 22, 1987, in a stay of all proceedings, until the Third Circuit denied plaintiff's invitation to micro-manage the micro-management of discovery that Judge Teitelbaum had been forced to undertake, on May 15, 1987. Plaintiff's petition for writ of certiorari was filed in the Supreme Court, and was denied on November 30, 1987.

The matter was transferred to Judge Standish, who issued a new discovery schedule on December 21, 1987, calling for discovery to be completed by March 3, 1988, almost two years from the filing of the complaint. Judge Standish also granted plaintiff's renewed motion to amend her complaint, by a Memorandum and Order of February 4, 1988. Plaintiff's Second Amended Complaint was filed February 26, 1988, and was met immediately with a Motion to Strike filed by defendant because the pleading did not comply with Judge Standish's order. The Motion to Strike was granted in part by Judge Standish on March 9, 1988. Defendants' Answer was filed March 25, 1988, bracketed by yet another discovery dispute.

The litigation was returned to Judge Teitelbaum in May, 1988, due to an objection to Judge Standish's participation in the case. Defendants filed their Motion for Summary Judgment, currently before the Court, on May 20, 1988. Plaintiff, in addition to a reply, filed an ad hominem attack against Judge Teitelbaum, seeking recusal, in July, 1988. The recusal was denied, but the matter was reassigned to this judge by Chief Judge Cohill on November 8, 1988.

We have chosen to review the procedural history of this action at some length, not to assess blame (for it is not the duty of a trial judge to act as presiding responsible adult), but rather to observe that the delay that litigants suffer is frequently the result, in this case and others, of unnecessary, ill-tempered, and repetitive motions practice. The time spent attending to a needless dispute in this case has a ripple effect throughout the entire system. For that reason, we call the attention of the entire trial bar once again to Local Rule 4, and Fed.R.Civ.P. 11.

The causes of action:

Turning to the merits of the action, we look first to the allegations of plaintiff's Second Amended Complaint, filed February 26, 1988, which sets forth the following: Plaintiff, Ruth Ann Bougher, a female, has been a student at the University of Pittsburgh, a state institution receiving federal funds, since 1976; since that time, defendant Trevor Melia, a professor of rhetoric, has continuously harassed and intimidated plaintiff; from 1976 until August 1986, all defendants have engaged in a pattern of sexual harassment and discrimination against plaintiff and against other (presumably female) students; the defendants have done this generally by failing to have an adequate internal grievance procedure to resolve charges of sexual harassment, and specifically by failing to investigate, prevent or control the harassment plaintiff suffered at the hands of defendant Melia, even after plaintiff had presented a complaint to the University; further, Pitt allegedly fraudulently represented to plaintiff that it would investigate and resolve her complaint, but not only did not do so, but also retaliated against her because of her complaints. By taking these actions, defendants violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., 42 U.S.C. § 1983, and 42 U.S.C. § 1985(3). Pendent claims of breach of contract, intentional infliction of emotional distress, and harassment under Pennsylvania common law are also asserted.

Defendants' Answer generally denies the general allegations of plaintiff. Defendants also assert that plaintiff failed to state a claim, that any claims that are stated are time-barred, and that this Court has no jurisdiction over the Title IX complaint because the individual defendants were not recipients of any federal funds. Defendant Pitt additionally asserts the Eleventh Amendment as a defense, and all defendants claim absolute and qualified immunity for any actions taken.

To put substance on these formless claims of harassment and constitutional violation, we examine plaintiff's evidence. In ruling on this motion for summary judgment under Fed.R.Civ.P. 56, we consider whether the plaintiff has produced evidence of record which would establish the existence of every element essential to her claims on which she bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). There must be evidence on the basis of which a factfinder could reasonably find for plaintiff if it accepted her evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986).

Title IX:

Our initial inquiry must be whether this court has jurisdiction over plaintiff's Title IX claims.2 The Supreme Court, in Grove City College v. Bell, 465 U.S. 555, 570-74, 104 S.Ct. 1211, 1219-22, 79 L.Ed.2d 516 (1984) held that Title IX coverage is triggered only when "an education program...

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