                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-21-2006

Atkinson v. Lafayette College
Precedential or Non-Precedential: Precedential

Docket No. 03-3426




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                                    PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT


                 No. 03-3426


               EVE ATKINSON,

                            Appellant

                       v.

         LAFAYETTE COLLEGE;
ARTHUR J. ROTHKOPF, ESQUIRE, Individually
    and as President of Lafayette College




  Appeal from the United States District Court
     for the Eastern District of Pennsylvania
       (D.C. Civil Action No. 01-cv-02141)
 District Judge: Honorable Ronald L. Buckwalter


             Argued March 9, 2006
      Before: AMBRO and BECKER, * Circuit Judges,
                STAGG,** District Judge

             (Opinion filed August 21, 2006 )

Alan B. Epstein, Esquire (Argued)
Jennifer L. Myers, Esquire
Spector, Gadon & Rosen P.C.
1635 Market Street
Seven Penn Center, 7th Floor
Philadelphia, PA 19103

      Counsel for Appellant

John G. Harkins, Jr. (Argued)
Neill C. Kling, Esquire
Harkins Cunningham
2005 Market Street
2800 One Commerce Square
Philadelphia, PA 19103-7042

Barry Simon, Esquire


      *
       This case was argued before the panel of Judges Ambro,
Becker, and Stagg. Judge Becker died before the filing of this
Opinion. It is filed by a quorum of the panel. 28 U.S.C. §
46(d).
      **
         Honorable Tom Stagg, District Judge for the Western
District of Louisiana, sitting by designation.

                              2
Dara P. Newman, Esquire
Simon Moran
1600 Market Street, Suite 2020
Philadelphia, PA 19103-7218

      Counsel for Appellees

Dina R. Lassow, Esquire
Jocelyn Samuels, Esquire
National Women’s Law Center
11 DuPont Circle, N.W., Suite 800
Washington, DC 20036

      Counsel 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 – PHB 5026
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530

      Counsel for Amicus-Appellant


                              3
                 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.




                               4
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

                               5
              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,

                                6
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


       1
       The termination was to be effective approximately one
and one-half years later, on June 30, 2001, due to the notice
required by Lafayette College’s procedures. A male succeeded
Atkinson as Director of Athletics.
       2
       In answers to interrogatories, President Rothkopf
expounded by stating, inter alia, that he believed that Atkinson’s
leadership and management skills were deficient and that her
management style alienated others, and led to poor relations and
low morale.

                                7
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


       3
       In a declaration attached to the defendants’ motion for
summary judgment, Schlueter also noted that two separate sets
of minutes from the Appointments, Promotions and Dismissals
Committee of 1989 stated that the position of Athletic Director
and Professor of Physical Education would be a twelve month

                               8
        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. Con.
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


administrative position with faculty rank and status but without
tenure at the time of the appointment or in the future.

                               9
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 (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

                               10
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 (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 Atkins’s Title IX retaliation claim must be vacated
and the case remanded for further proceedings consistent with
Jackson.




                                11
C.     Breach Of Contract.

        Atkinson contends that Lafayette College breached her
contract of employment by terminating her. In interpreting a
contract, a court must first consider the “intent of the parties as
expressed in the words used in the agreement.” Martin v.
Monumental Life Ins. Co., 240 F.3d 223, 232-33 (3d Cir. 2001)
(citing Mellon Bank, N.A. v. Aetna Bus. Credit, 619 F.2d 1001,
1009 (3d Cir. 1980)). Where the language is clear and
unambiguous, the express terms of the contract will control. See
Bohler-Uddeholm Am., Inc. v. Ellwood Group, Inc., 247 F.3d
79, 92-93 (3d Cir. 2001). The court can grant summary
judgment on an issue of contract interpretation if the contractual
language being interpreted “is subject to only one reasonable
interpretation.” Arnold M. Diamond, Inc. v. Gulf Coast Trailing
Co., 180 F.3d 518, 521 (3d Cir. 1999) (citations omitted).

       Atkinson’s appointment letter clearly provides that the
term (singular) of her position (singular) is “at the pleasure of
the President of the College and the Board of Trustees.” This
language expressly negates any possibility of tenured status as
a faculty member.

        Atkinson, however, argues that the word “and” separates
the three aspects of her position--Director of Athletics,
Professor, and Head, Physical Education and Athletics--and,
thus, that the position of professor was a separate and individual



                                12
position.4 She contends that the words “at the pleasure of the
President of the College and the Board of Trustees” refer only
to her roles as Director of Athletics and Department Head, rather
than to her position as a professor.

       Simply stated, Atkinson’s attempt to construe her
appointment letter to provide that she was entitled to tenure is an
attempt to create ambiguity where there is none. The
appointment letter expressly provides that, after the initial two
and one-half years, her appointment would lack a defined
temporal period, stating that “following that [initial] period you
would be subject to the procedures for due notice as applied to
the faculty which would insure you a minimum of one year’s



       4
        A finding that the appointment letter is unambiguous,
which the wording of the appointment letter necessitates,
negates the use of parol evidence, which Atkinson sought to use
in support of her argument. For example, one of the many items
outside of the four corners of her appointment letter upon which
Atkinson attempts to rely is a draft report from the Promotion,
Tenure and Review Committee of Lafayette College, wherein
two members of the committee indicated their belief that
Atkinson was entitled to tenure or, at a minimum, an appeal.
However, this conclusion by two members of the committee was
reached in a draft report, prior to either member having
reviewed Atkinson’s appointment letter. Thus, neither this, nor
any of her other arguments, overcomes the clearly unambiguous
wording of her appointment letter.

                                13
notice.” 5

       In short, the language of Atkinson’s appointment letter is
clear and unambiguous. It unequivocally provides that she was
to serve at the pleasure of the President of the College and its
Board of Trustees. She cannot now revise the words of her
employment letter into a document that provides a position that
was guaranteed tenure. Nor can she somehow claim to have
received tenure by default, as Lafayette College’s provisions on
tenure clearly do not allow tenure to occur simply by inaction.
See Lafayette College Faculty Handbook, supra, at 3-4 (“In no
case, however, will tenure be granted by default.”). Thus, the


        5
         In a further attempt to interpret the unambiguous
language of her contract, Atkinson also refers us to her
predecessor’s appointment letter and subsequent treatment to
illustrate that a male received tenure when she did not.
However, this reliance only serves to highlight the differences
between Kollevoll and Atkinson. Kollevoll’s letter specifically
applied the language “with term at the pleasure of the President
of the College” only to his appointment as Director of Athletics
and Physical Education. His letter further stated, in a separate
clause, that he was appointed “as Professor of Physical
Education for a term of five years (1965-70).” Finally,
Kollevoll’s appointment letter specifically held open the
possibility of faculty tenure, providing that “reappointment
beyond the initial term would normally involve decision on
continuous tenure in the professional position.”          These
provisions were noticeably absent from Atkinson’s letter.

                               14
District Court correctly concluded that Atkinson’s claim for
breach of contract could not survive summary judgment.

3.     Retaliation.

        Atkinson next alleges that the defendants retaliated
against her, in violation of Title VII and the PHRA, for
opposing practices of gender discrimination. Generally, before
filing a Title VII suit, an employee must file a complaint with
the EEOC to attempt to resolve the dispute before involving
litigation. See Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir.
1984). The District Court granted summary judgment in favor
of the defendants on Atkinson’s retaliation claims under Title
VII and the PHRA, finding that she had failed to exhaust her
administrative remedies for these claims.

        This Court has held that “the parameters of the civil
action in the district court are defined by the scope of the EEOC
investigation which can reasonably be expected to grow out of
the charge of discrimination.” Ostapowicz v. Johnson Bronze
Co., 541 F.2d 394, 398-99 (3d Cir. 1976) (citations omitted). As
already noted, Atkinson failed to mention retaliation in her
PHRC complaint, but she did include it in her response to the
EEOC questionnaire, which clarified that the retaliation she
allegedly suffered stemmed only from her opposition to gender
inequity in the funding of sports programs at Lafayette College.
The District Court found this type of retaliation constituted
retaliation under Title IX, but that Title VII’s prohibition against

                                15
retaliation did not cover that type of funding activity, citing
Lamb-Bowman v. Delaware State University, 39 F. App’x 748,
750 (3d Cir. 2002).

       Atkinson’s Title VII retaliation claims were properly
dismissed by the District Court because the allegations in her
complaint did not fall “fairly within the scope of the . . . EEOC
complaint, or the investigation arising therefrom.” Antol v.
Perry, 82 F.3d 1291, 1295 (3d Cir. 1996). The criticisms made
by Atkinson pertained only to the treatment of coaches of
women’s sports, as opposed to the treatment of coaches who
were women. As such, Atkinson’s retaliation claim is more
properly characterized as a claim predicated on activities in
support of Title IX, rather than a claim predicated on activities
protected under Title VII. Accordingly, the District Court
committed no error in entering summary judgment for the
defendants on Atkinson’s retaliation claim.

D.     Gender Discrimination Claims.

        Title VII prohibits employers from engaging in
discrimination on the basis of race, color, religion, sex or
national origin. See 42 U.S.C. § 2000e-2. To prevail on a claim
for sex discrimination under Title VII or its analogous provision
in the PHRA,6 Atkinson must satisfy the three-step burden-


       6
        Claims under the PHRA are interpreted coextensively
with Title VII claims. See Kelly v. Drexel Univ., 94 F.3d 102,

                               16
shifting inquiry under McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802-04, 93 S. Ct. 1817 (1973).7 First, she must
establish a prima facie case of sex discrimination. If she
succeeds, the burden shifts to Lafayette College to advance a
legitimate, non-retaliatory reason for its action. See id. at 802-
03, 93 S. Ct. 1817. If the College advances such a position, the
burden shifts back to Atkinson to prove that the non-
discriminatory explanation is merely a pretext for
discrimination. Id. at 804, 93 S. Ct. 1817.

       This Court will assume, without deciding, that Atkinson
established a prima facie case of discrimination. Atkinson does
not contest that Lafayette College articulated legitimate,
nondiscriminatory reasons for each of the actions alleged to
have been discriminatory--her termination, the denial of her
claim to have tenure and the denial of her request for a faculty
appeal. Thus, the burden shifts back to Atkinson to prove that
the reasons articulated by Lafayette College 8 were pretextual.


105 (3d Cir. 1996).
       7
       Because Atkinson seeks to establish her gender
discrimination claim through indirect evidence, we follow the
evidentiary framework set forth in McDonnell Douglas.
       8
       With respect to termination, President Rothkopf’s
November 4, 1999 letter to Atkinson explained that he had
concluded that the Athletic Department needed new leadership.
With respect to Atkinson’s claim that she was entitled to tenure,

                               17
We have recognized two ways in which a plaintiff can prove
pretext. First, the plaintiff can present evidence that “casts
sufficient doubt upon each of the legitimate reasons proffered by
the defendant so that a factfinder could reasonably conclude that
each reason was a fabrication.” Fuentes v. Perskie, 32 F.3d 759,
762 (3d Cir. 1994). Second, and alternatively, the plaintiff can
provide evidence that “allows the factfinder to infer that
discrimination was more likely than not a motivating or
determinative cause of the adverse employment action.” Id.
“[T]he nonmoving plaintiff must demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions
in the employer’s proffered legitimate reasons for its actions that
a reasonable factfinder could rationally find them unworthy of
credence.” Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101,
1108-09 (3d Cir. 1997) (citation omitted). The plaintiff must
show not merely that the employer’s proffered reason was
wrong, but that it was “so plainly wrong that it cannot have been
the employer’s real reason.” Id. at 1109. “The question is not
whether the employer made the best, or even a sound, business
decision; it is whether the real reason is [discrimination].” Id.
(citation omitted).




President Rothkopf explained that it was wholly inconsistent
with the terms of her appointment letter. Similarly, with respect
to the denial of Atkinson’s request for a faculty appeal, the
terms of her appointment letter removed the issue from the
faculty’s consideration.

                                18
       Atkinson has failed to challenge President Rothkopf’s
reasons for her termination. Instead, she suggests that President
Rothkopf’s beliefs about her management style and
inadequacies were influenced by Kissiah, with whom she
allegedly had an argument twelve months earlier (prior to
receiving notice of her termination), and who she alleges is
“harder on females.” This is pure conjecture and is wholly
insufficient. Furthermore, Atkinson does not raise any genuine
issues of material fact that the reason given by President
Rothkopf and Provost Schlueter for not recognizing her as
having tenure (the language of her employment agreement) was
pretextual. Instead, she essentially contends that because her
predecessor, Kollevoll, had tenure, then she had tenure.
However, as previously mentioned, her appointment was clearly
not comparable to Kollevoll’s. Finally, Atkinson’s pretext
argument regarding the availability of a faculty appeal is
similarly flawed. She contends that another faculty member was
given an appeal when she was not. However, she fails to note
the fundamental distinction of the specific language of her
appointment letter, which rendered faculty interference with her
termination inappropriate.

       Faced with legitimate, non-discriminatory reasons for
Lafayette College’s actions, the burden of proof rested with
Atkinson to demonstrate that the reasons proffered were
pretextual and that gender was a determinative factor in the
decisions. See Watson v. SEPTA, 207 F.3d 207, 215 (3d Cir.
2000). She has failed to satisfy her burden. The District Court

                               19
correctly found that Atkinson failed to point to any evidence that
demonstrated weaknesses, implausibilities, inconsistencies,
incoherencies or contradictions in Lafayette College’s reasons
for its employment decisions. A reasonable jury could not find
that Atkinson’s gender played a role in the decisions at issue.9

E.     Conclusion.

        The District Court’s ruling dismissing Atkinson’s claim
under Title IX is reversed and remanded in accordance with
Jackson v. Birmingham Board of Education, 544 U.S. 167, 125
S. Ct. 1497 (2005). We affirm its rulings in all other respects.




       9
        Atkinson’s claims for sex discrimination appear to be
focused upon her advocacy of Title IX issues, and are more
appropriately considered as Title IX claims, which she will now
have a chance to fully explore before the District Court.

                               20
