                                                              NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                  ________

                                     No. 13-1600
                                     _________

                              KEITH R. KULL, ED.D.,
                                                  Appellant
                                        v.

                 KUTZTOWN UNIVERSITY OF PENNSYLVANIA

                                      ________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                               (D.C. No. 5-11-cv-06512)
                     District Judge: Honorable Berle M. Schiller
                                       _______

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 29, 2013

             Before: FISHER, JORDAN, and SLOVITER, Circuit Judges

                               (Filed: October 31, 2013)
                                    _____________

                                     OPINION
                                   _____________


SLOVITER, Circuit Judge.

      Dr. Keith R. Kull (“Kull”), appellant, was employed as an Assistant Professor in

the Mathematics Department at Kutztown University of Pennsylvania (“the University”).

The University denied Kull tenure and terminated him after six years of employment with
the University. Kull sued the University, alleging that the University denied him tenure

and terminated him on the basis of his gender, in violation of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq.

       After a jury verdict in favor of the University, the District Court entered judgment

accordingly. Kull filed a timely appeal. He then also filed, pro se, a “Motion for

Extension of Time to File a Motion for New Trial.” The District Court denied the motion

on the ground that the notice of appeal divested it of jurisdiction. Kull appeals the

District Court’s denial of his pro se motion, its decision to give the jury a Title VII

“pretext” instruction as distinguished from a “mixed-motives” instruction, and its failure

to grant him a new trial. For the reasons that follow, we will affirm.1

                                                  I.

       Because we write for the benefit of the parties, we will recount only the essential

facts. The University hired Kull as a tenure-track Assistant Professor in the Mathematics

Department, and he started teaching in the fall semester of 2004. Under the applicable

Collective Bargaining Agreement (“CBA”), tenure-track faculty members serve for five

years on probationary status, during which time their contract is subject to annual

renewal. After five years, the faculty members may apply for tenure and promotion. If a

tenure-track faculty member is denied tenure, his or her contract is terminated at the end

of the following year.


1
  The District Court had subject matter jurisdiction over Kull’s Title VII claim pursuant
to 28 U.S.C. § 1331. This court has jurisdiction over the final order of the District Court
pursuant to 28 U.S.C. § 1291. As explained below, Kull’s attempts at post-trial relief do
not divest this court of appellate jurisdiction.
                                              2
       The President of the University, or his or her designee, makes the ultimate

decisions as to contract renewal, tenure, and promotion. Tenure decisions are based on

recommendations by the University Tenure Committee.

       The CBA specifies three broad categories for evaluating faculty member

performance: effective teaching and fulfillment of professional responsibilities,

continuing scholarly growth, and service to the University and community. In the first

three years of his employment, Kull received an overall rating of “Good” (on a scale of

“Excellent,” “Good,” “Fair,” and “Unsatisfactory”) from both the Promotion, Evaluation,

and Tenure (“PET”) committee and the department chair. In his fourth year, Kull

received individual ratings of “Good” from four members of the PET committee, ratings

of “Fair” from five members, and a rating of “Unsatisfactory” from one member. Four

members of the PET committee voted against recommending his renewal that year. The

department chair voted in favor of his renewal. The department dean recommended his

renewal “with serious reservation.” In his fifth year, Kull received one rating of “Good,”

five ratings of “Fair,” and five ratings of “Unsatisfactory.” The department chair gave

him a rating of “Good.”

       Kull applied for tenure in his fifth year. The PET committee, composed of six

women and five men, voted against recommending tenure 9-2. At least one of the votes

in favor of tenure was cast by a woman. The committee, in a memorandum explaining its

decision, cited persistent concerns with Kull’s interpersonal skills and professionalism in

the classroom, his tendency to make mistakes in class, his scholarly progress, and his

student evaluations. The department chair, also a man, recommended against tenure,

                                             3
though he considered Kull’s scholarly progress sufficient. Based on these

recommendations, the President’s designee denied Kull’s application for tenure. In light

of the denial of tenure and pursuant to the CBA, the University terminated Kull’s

employment at the end of his sixth year.

       Kull then filed suit, alleging that the University had denied him tenure because of

his gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq. In support of his claim, Kull pointed to the University’s decisions to grant tenure to

three women he claimed were less qualified than he was, and its decision not to renew

the contract of Dr. Brad Slonaker, a man. He alleged that these actions showed that the

University held women to “fewer and less stringent criteria” than men.

       At trial, Kull highlighted his receipt of a Doctorate in Education, seven

publications, numerous conference presentations, and work in developing a new course.

He contrasted these accomplishments with the pre-tenure records of women professors

who had been granted tenure, such as Dr. Anke Waltz, whose only publication was a

book she translated from German to English, and Dr. Lyn Phy, who had no publications.

       The District Court gave the jury an instruction, modeled on Third Circuit Model

Jury Instructions 5.1.2 (Elements of a Title VII Claim–Disparate Treatment – Pretext),

stating that Kull had the burden of proving that “his gender was a determinative factor in

Kutztown University’s decision to not grant him tenure.”

       The jury found in favor of the University. The District Court entered judgment

accordingly on January 31, 2013. Kull filed a notice of appeal on March 1, 2013. On

March 11, 2013, he also filed, pro se, a motion that the District Court construed as

                                             4
requesting a thirty-day extension to file a motion for new trial. In his motion, Kull

explained his understanding that he had “to file a Motion for a New Trial in order to

‘preserve’ certain issues for the appeals court to review.” The District Court denied the

motion, citing Fed. R. Civ. P. 59(b), according to which the deadline for Kull to file a

motion for new trial expired on February 28, 2013, as well as Fed. R. Civ. P. 6(b)(2)

which prohibited extensions of that deadline. The District Court also held that it was

without jurisdiction to grant the motion as a result of Kull’s timely notice of appeal.

                                             II.

       Kull first argues that the District Court erred in denying his pro se motion which

the District Court construed as a motion for an extension of time to file a motion for a

new trial—the filing itself contains no specific heading.

       If construed as a request for an extension of time to file a post-trial motion, Kull

concedes that the District Court could not grant his motion. “A court must not extend the

time to act under Rules . . . 59(b) . . . and 60(b).” Fed. R. Civ. P. 6(b)(2). Thus, whether

the District Court construed Kull’s motion as a Rule 60(b) motion for relief from

judgment or a Rule 59(b) motion for a new trial, the District Court could not have granted

an extension. Moreover, if Kull’s pro se motion were construed as a Rule 59(b) motion,

it could not be granted because such motions must be made within 28 days of entry of

judgment. Thus, Kull had to file a Rule 59(b) motion by February 28, 2013, and his pro

se motion filed on March 11, 2013 would have been untimely.

       Kull argues instead that the District Court should have construed his motion as a

Rule 60(b) motion for relief from a final judgment. However, as mentioned above, this

                                              5
argument too must fail. Federal Rule of Civil Procedure 6(b)(2) also bars courts from

extending the time to act under a Rule 60(b) motion. Moreover, as the District Court

pointed out, it no longer retained jurisdiction over the case after Kull filed a timely notice

of appeal. Generally, a notice of appeal divests the District Court of jurisdiction “over

those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Disc.

Co., 459 U.S. 56, 58 (1982).

       Although certain post-trial motions preserve jurisdiction in the District Court for

the purposes of disposing of the motion, that is not the case under a Rule 60(b) motion.

A Rule 60(b) motion preserves jurisdiction in the District Court only if filed no later than

28 days after judgment is entered. Fed. R. App. P. 4(a)(4)(A)(vi). Because Kull’s

motion was not filed within that time, the District Court lacked jurisdiction to grant

Kull’s pro se motion even if it had treated it as a Rule 60(b) motion.

       Finally, Kull urges that, nonetheless, the District Court could have proceeded

under Rule 62.1—by providing an indicative ruling on a motion for relief that is barred

by a pending appeal. See Fed. R. Civ. P. 62.1(a)(3). Kull argues that the District Court

could have entered an order indicating to this court that it was inclined to grant the

motion for a new trial, and would act on it if we remanded for that purpose. However,

under Rule 62.1(a)(2), the District Court had discretion to deny the motion.

       Although there is not binding precedent, the standard applied in such

circumstances is abuse of discretion. We will apply that standard here. The District

Court did not abuse its discretion in treating Kull’s pro se motion as a request for an

extension of time to file a motion for a new trial because that is the relief Kull requested.

                                              6
Further, we note that Kull was without counsel for only a short time. His attorney filed

an appearance in this appeal just eleven days after Kull filed his pro se motion. Kull

could have filed an appropriate Rule 62.1 motion at that time, but did not.

                                             III.

       Kull next argues that the District Court erred in giving the jury a Title VII

“pretext” instruction, when a “mixed motives” instruction was allegedly appropriate.

Because Kull did not object to the jury instructions at trial, we will review the District

Court’s decision for plain error. Fed. R. Civ. P. 51(d)(2). Under the plain error standard,

this court considers “the obviousness of the error, the significance of the interest

involved, and the reputation of judicial proceedings if the error stands uncorrected.”

Franklin Prescriptions, Inc. v. New York Times Co., 424 F.3d 336, 340-41 (3d Cir. 2005)

(quotations and citation omitted).

       “Whether a case is a pretext case or mixed-motives case is a question for the court

once all the evidence has been received.” Starceski v. Westinghouse Elec. Corp., 54

F.3d 1089, 1098 (3d Cir. 1995) (citation omitted). In a pretext case, the plaintiff must

show that gender was a “determinative factor” in an adverse employment decision, while

in a mixed-motives case, the plaintiff need only show that gender was a “substantial

motivating factor.” See Watson v. SEPTA, 207 F.3d 207, 215 (3d Cir. 2000). A plaintiff

must demonstrate with “sufficiently direct” evidence that gender was a motivating factor

in the employer’s decision to warrant a mixed-motives instruction. See id.

       The District Court did not commit plain error in treating this as a pretext case and

instructing the jury accordingly. Kull did not present “sufficiently direct” evidence that

                                              7
gender played a role in the University’s decision. The evidence Kull presented was

circumstantial. He testified that certain women had been tenured despite having fewer

publications, while a man’s contract had not been renewed. From this circumstantial

evidence, the jury was to conclude that the University applied less stringent criteria to

women. It is not “sufficiently direct” evidence to justify a mixed-motives instruction

under Watson. Moreover, Kull represented in his proposed jury instructions that his

claim was one of “Disparate Treatment – Pretext.” Therefore, the District Court did not

err in treating this as a pretext case rather than a mixed-motives case and instructing the

jury accordingly.

                                             IV.

       Kull lastly argues that the District Court erred in refusing to grant him a new trial,

on the ground that the jury verdict in the case is against the weight of the evidence. This

argument cannot be entertained because Kull did not timely move for a new trial. “[N]ew

trials because the verdict is against the weight of the evidence are proper only when the

record shows that the jury’s verdict resulted in a miscarriage of justice or where the

verdict, on the record, cries out to be overturned or shocks our conscience.” Williamson

v. Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991) (citation omitted). The record

shows that between 2003 and 2012 the University granted tenure to every faculty

member in the Mathematics Department who applied, four men and four women, except

Kull. It also shows that evaluators were consistently worried about Kull’s interpersonal

skills and behavior in class, and that the women professors who were granted tenure with

fewer publications had compensating strengths, like exceptional student evaluations. The

                                              8
jury heard this evidence and concluded that the University’s stated reasons for denying

Kull tenure were not pretextual. On the record before us, we cannot say that the jury’s

verdict shocks the conscience or “cries out to be overturned.” Williamson, 926 F.2d at

1353.

                                            V.

        For the aforementioned reasons we will affirm the District Court’s denial of Kull’s

March 11, 2013 motion and its order entering judgment in favor of the University.




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