Kunda v. Muhlenberg College, Civ. A. No. 77-1955.

• Decision Date: 17 November 1978
• Docket Number: Civ. A. No. 77-1955.
• Citation: 463 F. Supp. 294
• Parties: Connie Rae KUNDA, Plaintiff, v. MUHLENBERG COLLEGE.
• Court: U.S. District Court — Eastern District of Pennsylvania

463 F. Supp. 294

Connie Rae KUNDA, Plaintiff, v. MUHLENBERG COLLEGE.

Civ. A. No. 77-1955.

United States District Court, E. D. Pennsylvania.

October 19, 1978.

As Amended November 17, 1978.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Roy Yaffe, Yaffe & Golden, Philadelphia, Pa., for plaintiff.

Roberta S. Staats, Morgan, Lewis & Bockius, Philadelphia, Pa., for defendant.

FINDINGS OF FACT, DISCUSSION, CONCLUSIONS OF LAW AND ORDER

HUYETT, District Judge.

Plaintiff Connie Rae Kunda brought this action against her previous employer, Muhlenberg College, pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (Supp. V). In her complaint, plaintiff claimed that she had been denied promotion and a grant of tenure because of her sex.¹ We held a trial non-jury and now make the following Findings of Fact and Conclusions of Law pursuant to Rule 52(a).

FINDINGS OF FACT

1. Plaintiff, Connie Rae Kunda, is a female citizen of the United States residing at 1151 North 28th Street, Allentown, Lehigh County, Pennsylvania. She was employed by Muhlenberg College as an instructor

in the Department of Physical Education from September, 1966 through June, 1975. (Stipulation, ¶ 1)

2. Muhlenberg College (College) is a non-profit corporation organized and existing under the laws of the Commonwealth of Pennsylvania with principal administrative offices and places of instruction located in Allentown, Lehigh County, Pennsylvania. (Stipulation, ¶ 2)

3. John H. Morey has been President and Chief Executive Officer of Muhlenberg College since September 1, 1969. (Stipulation, ¶ 3)

4. Philip B. Secor was Dean of Muhlenberg College from July 15, 1967, until July 31, 1974. (Stipulation, ¶ 4)

College Practices and Policies

5. The following provision of the Muhlenberg College Bylaws (Bylaws), which has since at least 1966 been included in the Muhlenberg College Faculty Handbook, is the provision regarding tenure which was in effect at all times plaintiff was a member of the faculty at Muhlenberg College:

Continuous tenure shall be granted only by action of the Board of Trustees upon recommendation of the President. A faculty member shall obtain continuous tenure upon reappointment after seven years' full-time college and university teaching at the rank of Instructor, Assistant Professor or Associate Professor, at least four of which shall have been at the College. Not more than three of the total seven years shall be served at the rank of Instructor. No persons, however, shall teach at the College for more than nine years without obtaining continuous tenure. . . . (Exhibit No. 101)

At all times relevant to this matter, President Morey interpreted that portion of the tenure statement in the Bylaws providing that "not more than three of the total seven years" be served at the rank of Instructor as requiring that a faculty member have served at least four years at a professorial rank, i. e. a rank above Instructor, prior to undertaking a tenured appointment. (This portion of the Bylaws will be hereinafter referred to as the "three-year rule.") However, a different interpretation was given to the "three-year rule" by other faculty members. For example, Dr. Lohr, who took part in drafting the College Tenure Policy, did not believe that the three-year rule placed a limit on the ability of a faculty member who had served only as an Instructor to obtain tenure. Dr. Lohr interpreted the entire relevant clause of the College Bylaws as providing that a faculty member receives tenure automatically if he or she receives an appointment after teaching for seven years, so long as not more than three of those years were at the rank of Instructor. (Testimony of Dr. Lohr; Exhibit No. 69)

6. At all relevant times, the Board of Trustees retained the power to grant tenure to a faculty member even if the faculty member had not served for four years at a professorial rank. (Testimony of Dr. Reumann)

7. The policy of the College which was in effect at all times relevant to this action with respect to requirements for promotion was set forth in the Faculty Handbook as follows:

Promotion Requirements

Promotion is awarded for meritorious service to the College. For promotion to Professor or Associate Professor, the Ph.D. or its scholarly equivalent or recognized achievement in a field shall be required. These requirements normally apply to the rank of Assistant Professor also, although this rank may be obtained without the Ph.D. if there is sufficient evidence of progress toward the completion of all requirements for the degree. (Stipulation, ¶ 5)

8. A requirement for the grant of tenure at the College, although not specifically set forth in the Faculty Handbook, was the attainment of the Ph.D. (terminal degree), or its scholarly equivalent, or recognized achievement in a field. (Testimony of Dr. Lohr, President Morey)

9. For purposes of tenure and promotion, the masters degree was recognized as the terminal degree for members of the Physical Education Department. (Exhibits Nos. 43, 47)

10. The Faculty Handbook sets forth the normal pattern of promotion as follows:

Pattern of Promotion

A. To Assistant Professor:

No person may remain indefinitely at the rank of Instructor although contracts as Instructor may be renewed annually for no more than nine years.

B. To Associate Professor:

Promotion normally takes place before six years of full-time teaching as Assistant Professor. During the third year of active teaching at the Assistant's rank, a comprehensive review of the individual's record shall be made and continued yearly thereafter, as necessary.

C. To Professor:

Promotion normally takes place any time after six years of full-time teaching as Assistant Professor. During the sixth year of active teaching at the Associate's rank, a comprehensive review of the individual's record shall be made and continued yearly thereafter, as necessary. (Stipulation, ¶ 5)

11. The Faculty Handbook sets forth the procedures followed by the College with respect to the awarding of promotion or the granting of tenure. The process is usually initiated by the Department Chairman, who prepares a recommendation in writing and forwards it to the Dean of the College. The Dean then sends to the Faculty Personnel and Policies Committee (FPPC) the personnel files and recommendations of Department Chairmen of those persons to be considered for promotion or tenure. The FPPC discusses those persons, and votes upon its recommendations for promotion or tenure; the Committee subsequently forwards a written recommendation concerning each candidate to the President. The criteria used by the FPPC in deciding whether to recommend a faculty member for promotion or tenure are those listed in the Faculty Handbook. The President reviews the recommendations of the Department Chairmen, the Dean, and the FPPC and then makes a decision as to the recommendation for promotion or tenure with respect to each candidate. The President's recommendations are then sent to the Board of Trustees, which makes the final decision with regard to promotion and tenure.

12. Additionally, the College has a Faculty Board of Appeals (FBA), made up of seven non-administrative faculty members and three alternates elected by the faculty, which is charged with considering, on appeal, questions of promotion and tenure with regard to individual faculty members and making recommendations to the President.

13. The FPPC and the FBA are charged with the responsibility of communicating to the President the faculty's recommendation with respect to promotion and tenure of candidates.

14. In May, 1974, the Board of Trustees approved a modification of the College's tenure policy which provided that new faculty hired after the 1973-74 academic year would be offered only "non-tenurable" positions in departments already two-thirds or more "tenured." That policy affected only persons initially hired in or after the 1974-75 academic year and did not affect the tenure consideration of "non-tenured" faculty members, including plaintiff, who had been on the faculty prior to 1974-75. The plaintiff was considered for promotion and tenure in accordance with the procedures and regulations which were in effect at the time she was hired.

Summary of Plaintiff's Employment at Muhlenberg College

15. Plaintiff was initially appointed as Instructor in the Physical Education Department of the College for the 1966-67 academic year (Exhibit J.6) and was thereafter reappointed annually to serve through the 1974-75 academic year. At the time plaintiff was hired by Muhlenberg, she was not told that a masters degree was necessary for employment with or advancement at Muhlenberg. (Stipulation, ¶¶ 11, 12, 13, 15, 16, 18, 22, 31, 53; Testimony of Mrs. Kunda).

16. A department chairman normally initiates action with regard to promotion and tenure of a faculty member in his or her department by forwarding a written recommendation to the Dean. Raymond Whispell was the Chairman of the Physical Education department at Muhlenberg College during the entire period of plaintiff's employment at the College. (Stipulation, ¶ 8)

17. On February 13, 1969, Professor Whispell sent a memorandum to Dean Secor in which he rated Mrs. Kunda's performance as "superior" and stated that he planned to recommend her for a promotion in the near future. However, Professor Whispell did not actually recommend that plaintiff be promoted to the rank of Assistant Professor until October 14, 1971 during plaintiff's fifth year on the Muhlenberg faculty. (Exhibit Nos. 13 and 22)

18. In response to Professor Whispell's recommendation, plaintiff's name was submitted by Dean Secor to the FPPC for consideration for promotion. The vote of the FPPC with respect to the promotion of Mrs. Kunda, taken at a meeting held December 14, 1971, was three (yes) to three (no). (Stipulation ¶¶ 19, 20; Exhibit No. 23) President Morey viewed this tie vote as a...