                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-27-2005

Overall v. Univ PA
Precedential or Non-Precedential: Precedential

Docket No. 04-1090




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                                       PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                         No. 04-1090


       KAREN OVERALL and ARTHUR DUNHAM,

                               Appellants

                              v.

            UNIVERSITY OF PENNSYLVANIA;
                     GAIL SMITH


   ON APPEAL FROM THE UNITED STATES DISTRICT
                    COURT
   FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                  (Dist. Ct. No. 02-CV-01628)
          District Court Judge: Hon. Cynthia M. Rufe


                   Argued: March 31, 2005


     Before: ALITO, SMITH, and FISHER, Circuit Judges

                (Opinion Filed: June 27, 2005)




Counsel for Appellant
Stanley B. Cheiken (argued)
1626 Pine St.
Philadelphia, PA 19103
Counsel for Appellees
Michael L. Banks
Michael E. Dash, Jr. (argued)
Morgan, Lewis & Bockius, LLP
1701 Market St.
Philadelphia, PA 19103




                   OPINION OF THE COURT


ALITO, Circuit Judge

       Karen Overall is a faculty member at the University of
Pennsylvania (“Penn”) Veterinary School. She and her husband
brought this action against Penn, alleging defamation and
fraudulent misrepresentation, among other things. The District
Court granted summary judgment for Penn on all counts, and
Overall appealed. Because the District Court incorrectly held that
statements made in a private internal University grievance
proceeding were “quasi-judicial” and therefore entitled to an
absolute privilege against defamation under Pennsylvania law, we
reverse and remand with respect to Dr. Overall’s defamation claim.
We affirm on all other counts.

                                 I.

        This case stems from the Veterinary School’s failure to hire
Dr. Overall for a newly created faculty position. Dr. Overall
worked for Penn in various capacities since 1987. In early 1999,
she was serving a single-year appointment as a “Lecturer” in the
School’s Department of Clinical Studies-Philadelphia (“DCS”),
where her responsibilities included running a behavioral medicine
clinic, teaching, and conducting research. Dr. Gail Smith, a male
professor who had taught at Penn since the early 1980s, became
chair of DCS in March 1999. Until Dr. Smith became Chair, Drs.
Smith and Overall rarely interacted.

       Once Dr. Smith became chair of DCS, he and Dr. Overall

                                 2
developed an amicable relationship. See Joint Appendix (“App.”)
at 368 (Overall admits during a deposition that “[w]e were
friends”); id. at 428 (Overall writes Dr. Smith in June 1999: “We
are making incredible progress, but that’s all your doing, none of
mine.”); id. at 433 (Overall writes Dr. Smith in July 1999: “[Y]ou
are actually doing a HEROIC job – everyone thinks so. Many,
many thanks.”). Dr. Overall approached Dr. Smith to discuss her
desire to obtain a tenured faculty position, her problems with her
residents and staff, and other administrative concerns. This
friendship prompted several University insiders to suggest that Dr.
Smith was Dr. Overall’s personal champion within DCS.

       In April 1999, Dr. Smith announced that the Veterinary
School would create five new “Clinical Educator” positions on the
Penn faculty. One of these would be in Dr. Overall’s field of
expertise, behavioral veterinary medicine.1 Although Clinical
Educators are not eligible for tenure, they are typically awarded
longer term contracts than Lecturers like Dr. Overall, and the
positions are considered more prestigious. Based on Dr. Smith’s
friendship with Dr. Overall and her apparent interest in the job,
many within the Department surmised that Dr. Smith created the
position specifically for Dr. Overall. See App. at 490-91.

       Despite these rumors, Dr. Smith followed protocol and set
up a Faculty Search Committee with five members, three of whom
had experience with behavioral veterinary medicine. See App. at
447-49. Dr. Smith charged the Committee with the task of picking
the best qualified candidate from all the applicants. App. at 386,
483 (Dr. Smith told the Committee that he wanted a “real” search
versus a “sham” search that simply gave the job to Dr. Overall).

          The Committee had the authority to make
recommendations, but Dr. Smith retained the power to ignore or
veto any recommendation, with or without cause. See App. at 244,



       1
        This relatively new field studies the behavior of dogs, cats,
and other domestic animals. It focuses on methods for diagnosing
and treating behavioral problems, such as biting and constant
scratching.

                                 3
385-86. Nevertheless, it is common practice at Penn for
department chairs to follow the recommendations of their hiring
committees. In fact, in some departments, it is apparently
considered a “sort of administrative suicide” for a chair not to
follow the faculty’s advice in hiring. See App. at 244, 496-97. Dr.
Overall’s husband, a Penn faculty member for more than 20 years,
stated in a deposition that “in our department, the chair never
would override the decision [of the faculty].” App. at 502. Dr.
Overall produced no evidence that any chair has ever overruled a
hiring committee in the Veterinary Medicine Department.

       Upon learning of the new Clinical Educator position, Dr.
Overall applied and asked Dr. Smith to “put odds” on her
application. He responded: “I’ll work it out.” App. at 129-30. At
the time of this discussion, Dr. Overall was not aware that Dr.
Smith technically had the authority to overrule the Search
Committee’s decision.2

       The Search Committee did not share Dr. Smith’s confidence
in Dr. Overall. It unanimously rejected her candidacy twice, first
in a May 22, 2000, interim report, and then again in a September
15, 2000, final report. Both times, the Committee provided non-
discriminatory reasons for its decision not to recommend Dr.
Overall. It acknowledged her strengths but also cited serious
reservations about her “history of unsuccessful interpersonal
interaction,” her “questioned integrity,” and “a poisoned
atmosphere which pits Karen against her staff.” App. at 7 n.3. Dr.
Smith elected not to overrule these recommendations.

      Over the period of one year, the Search Committee
considered six candidates, five females and one male. Its final



       2
        The District Court credited Dr. Overall’s deposition
testimony that she “did not know what role the department chair
played in the search committee decision.” App. at 5-6 n.2, 24 n.14.
It chose to disregard portions of a later-submitted affidavit that
directly contradicted this statement. See Martin v. Merrell Dow
Pharm., Inc., 851 F.2d 703, 706 (3d Cir. 1988) (endorsing the sham
affidavit doctrine).

                                4
recommendation was in favor of Dr. Ilana Reisner, a woman. Once
Penn hired Dr. Reisner for the job that Dr. Overall desired, Dr.
Smith revoked Dr. Overall’s clinical privileges, based on an
agreement that they had allegedly made earlier.3 When Dr. Overall
continued working at the clinic, Dr. Smith confronted her and
demanded that she not return. In March 2001, after reports that
files were missing from the clinic, padlocks were placed on the
clinic door. Dr. Overall says she was not able to return to the
clinic, even to gather her personal belongings. She also alleges that
her mail was not forwarded. Dr. Smith claims that he knew
nothing about this.

        On November 15, 2000, Dr. Overall instituted a proceeding
under the University’s Faculty Grievance Procedure, alleging
gender discrimination, among other things. Dr. Smith testified in
connection with this grievance, giving unsworn testimony that
provided the basis for Dr. Overall’s subsequent defamation claims.
He made three allegedly defamatory statements. First, he stated
that it was “common knowledge” that Overall was represented in
publications as having a Ph.D. years before she actually received
one. Second, he claimed that Overall represented numerous
articles in her CV as “peer reviewed,” even though they were
allegedly not peer reviewed, as that term is understood in academia.
Finally, Dr. Smith suggested that Dr. Overall misused grant funds
earmarked for clinical work. Ultimately, the University and Dr.
Smith were found innocent of any wrongdoing.

       Unsuccessful in her grievance proceeding, Dr. Overall filed
a claim with the Pennsylvania Human Rights Commission
(“PHRC”) and cross-filed with the Equal Employment Opportunity
Commission. The PHRC elected not to take action in her case,
issuing a Right to Sue letter on December 27, 2001.4 Dr. Overall’s


       3
       The District Court found that Dr. Smith and Dr. Overall
agreed that she would have a “terminal appointment for the year
beginning on July 1, 2000 [that] would extend only until the Search
Committee had reached a decision.” App. at 8.
       4
        Two months later, Overall filed a complaint in state court,
alleging six causes of action. See App. at 149-165. In July 2001,

                                 5
federal complaint asserted 11 causes of action. The District Court
granted summary judgment in favor of Penn on all counts. Overall
v. Univ. of Pennsylvania, 2003 WL 23095953 (E.D. Pa. Dec. 19,
2003).

                                 II.

        Dr. Overall raises four issues on appeal. She maintains that
the District Court erred when it granted summary judgment in
Penn’s favor on the defamation, fraudulent misrepresentation,
retaliation, and employment discrimination claims. We address
each in turn.

                                 A.

       We turn first to the defamation issue. The District Court
found that all of Dr. Smith’s allegedly defamatory remarks took
place “during Penn’s internal grievance proceedings relating to Dr.
Overall’s discrimination claims.” Overall, 2003 WL 23095953 at
*9. Quoting Binder v. Triangle Publ’ns, 275 A.2d 53, 56 (Pa.
1971), the District Court correctly noted that “[a]ll communications
pertinent to any stage of a judicial proceeding are accorded an
absolute privilege which cannot be destroyed by abuse.”
Acknowledging that Penn’s internal grievance proceedings were
not actually judicial, the District Court held that they were “quasi-
judicial” and therefore entitled to the same absolute immunity as
regular judicial proceedings.

        In reaching this conclusion, the District Court relied on the
Pennsylvania Superior Court’s decision in Milliner v. Enck, which
states:

       The “judicial proceeding” wherein absolute privilege



the Court of Common Pleas dismissed her fraudulent
misrepresentation claim, among others, for failure to state a claim
upon which relief can be granted. Dr. Overall then filed a Praecipe
to Discontinue the State Action, and brought suit in federal court.


                                 6
       attaches has not been precisely defined in our
       Commonwealth. However, it has been defined to
       include any hearing before a tribunal which performs
       a judicial function, including many administrative
       officers, boards and commissions, so far as they have
       the powers of discretion in applying the law to the
       facts which are regarded as judicial or “quasi-
       judicial” in character.

709 A.2d 417, 419 n.1 (Pa. Super. Ct. 1998). The District Court
translated this language into a rule that any proceeding that applies
facts to law deserves “quasi-judicial” status. It wrote:

       In this case, the purpose of the grievance
       proceedings was to gather the facts and determine
       whether those facts supported Dr. Overall’s claim for
       discrimination and harassment. If the facts had
       supported Dr. Overall’s claims, Dr. Smith would
       have been disciplined. This application of the facts
       to Dr. Overall’s claims was clearly quasi-judicial in
       character. Therefore, the statements made by Dr.
       Smith during the grievance proceedings are
       absolutely privileged.

Overall, 2003 WL 23095953 at *9.

        The District Court misapprehended the essence of quasi-
judicial proceedings. While “applying law to facts” is undeniably
an attribute of such proceedings, our research reveals that under
Pennsylvania law government involvement is also a necessary
condition for according quasi-judicial status to grievance
procedures.

       We have not found a single Pennsylvania case according
quasi-judicial status to entirely private hearings.        Rather,
Pennsylvania cases finding quasi-judicial privilege consistently
involve proceedings before federal, state, or local governmental
bodies, or proceedings held pursuant to a statute or administrative
regulation. Milliner is instructive on this point. In a lengthy
footnote, the Pennsylvania Superior Court cites – apparently with

                                 7
approval – no fewer than 13 cases discussing quasi-judicial entities.
Without exception, each involves a grievance proceeding before a
government entity or an ostensibly private entity operating pursuant
to a state or federal statute.5

       Secondary sources referenced in Pennsylvania quasi-judicial
privilege cases bolster this conclusion. Every case cited in the
leading torts treatise involves a government entity of some sort.6
The Restatement (Second) of Torts explains that quasi-judicial
privilege should be extended to

       any person acting as a judge of a court, whether of
       general or limited jurisdiction. It is also applicable to
       any other official, judicial or otherwise, who
       performs a judicial function, such, for example, as a
       master in chancery, a referee in bankruptcy, a


       5
       See, e.g., LaPlante v. United Parcel Service, Inc., 810 F.
Supp. 19, 21 (D. Me. 1993) (Maine Human Rights Commission);
Magan v. Anaconda Indus., 429 A.2d 492, 494-96 (Conn. Super.
Ct. 1980) (Connecticut employment security division); Stiles v.
Chrysler Motors Corp., 624 N.E.2d 238, 242 (Ohio App. 1993)
(auto worker’s grievance proceeding pursuant to the National
Labor Relations Act); Shortz v. Farrell, 193 A. 20, 21-22, 24 (Pa.
1937) (Workmen’s Compensation Board); Urbano v. Meneses, 431
A.2d 308, 309 (Pa. Super. Ct. 1981) (Upper Merion Township
zoning board); Story v. Shelter Bay Co., 760 P.2d 368, 370-71
(Wash. Ct. App. 1988) (Land Sales Enforcement Division of the
Department of Housing and Urban Development).
       6
        See Page Keeton et al., Prosser & Keeton on Torts § 114,
at 818-19 (5th ed. 1984) (citing cases discussing proceedings
before, e.g., a New York court; civil service boards; industrial
boards; tax boards of appeals; state labor commissions; insurance
commissions; Civil Aeronautics Board; numerous administrative
proceedings to revoke licenses (e.g., liquor, dairy, insurance); state
revenue commissions; insurance commissions; state housing rent
commissions; investigating committees of aldermen; departmental
hearings before police superintendent; zoning board of appeals;
Ohio State Board of Embalmers).

                                  8
       member of a military tribunal or the governor of a
       State of the United States engaged in an extradition
       hearing.

Restatement (Second) of Torts § 585. Each example in this
passage involves a government actor. The Restatement goes on to
discuss other “governmental agencies” that sometimes perform
quasi-judicial functions, such as “public utility commissions and
utility boards.” Id. It concludes that “[i]t is immaterial whether the
body of which the judicial officer is a member is created by the
constitution or by statute.” Id. Implicit in this rule is the
assumption that the “judicial officer” must be a public official.7

       Unlike all of the cases cited above, the present case involves
an entirely private grievance procedure. No state or federal statute
authorized it, and no public officials presided over it. Nor was it
the product of a collective bargaining agreement. Furthermore, the
defendants could not point to any case, in Pennsylvania or
elsewhere, that involved an entirely private proceeding akin to the
one at issue here.8


       7
        See also Restatement (Second) of Torts, Reporter’s Note to
§ 585 cmt. b (citing dozens of additional public tribunals deemed
quasi-judicial). The only other type of proceeding deemed quasi-
judicial is a grievance proceeding arising under a collective
bargaining agreement, which is governed by the Fair Labor
Standards Act.
       8
        Defendant argues that Walker v. Gibson, 633 F. Supp. 88,
90 (N.D. Ill. 1985), stands for the proposition that statements
before a “grievance committee” are entitled to absolute privilege.
But the proceedings in that case “were convened pursuant to 5
C.F.R. § 771, with Examiner John M. Stewart, of the United States
Army Civilian Appellate Review Agency, as the presiding officer.”
Id. By statute, Examiner Stewart “had the discretion to review the
evidence and examine the witnesses, reach a conclusion, and
prepare a report.” Id. Since the hearing was conducted pursuant
to a federal regulation and involved a public official, it is readily
distinguishable from the private grievance procedure at issue in this
case.

                                  9
       Sound reasons exist for this public-private distinction.
Government hearings typically involve basic procedural safeguards
that may be lacking in private proceedings. For example, the Penn
grievance procedure at issue here did not require sworn testimony.
The volunteer faculty members who presided over the hearing
lacked the power to make any binding judgment or enforce any
disciplinary measures; they could only make recommendations.
And of particular relevance to this case, no one kept a transcript of
what was said during the hearing, so there is no record of exactly
what Dr. Smith said when he allegedly defamed Dr. Overall.

        Pennsylvania of course is free to set the scope of its quasi-
judicial privilege as it wishes, but we have found absolutely no
support for the argument advanced in this case by the University of
Pennsylvania. We agree with the Restatement that “the fact that an
official or board is required to find facts as a basis for its action
does not of itself make the function of the official or board
judicial,” and hold that the District Court erred in deeming Penn’s
procedure quasi-judicial. Restatement (Second) of Torts, § 585
cmt. b. We therefore reverse the entry of summary judgment in
favor of Penn on Dr. Overall’s defamation claim and remand for
further proceedings.

                                 B.

       Dr. Overall next claims that Dr. Smith committed fraudulent
misrepresentation when he said “I’ll work it out,” in response to
her request to “put odds” on her application. We disagree.

       Under Pennsylvania law, fraudulent misrepresentation has
six elements:

       (1) a representation; (2) which is material to the
       transaction at hand; (3) made falsely, with
       knowledge of its falsity or recklessness as to whether
       it is true or false; (4) with the intent of misleading
       another into relying on it; (5) justifiable reliance on
       the misrepresentation; and (6) the resulting injury
       was proximately caused by the reliance.



                                 10
Gibbs v. Ernst, 647 A.2d 882, 889 (Pa. 1994) (footnote and
citations omitted). Dr. Overall cannot meet all six elements.

        The District Court properly found that Dr. Overall could not
have reasonably relied on Dr. Smith’s statement. First, Dr.
Overall’s question did not invite a promise. A request to “put
odds” on a certain event asks that someone weigh the likelihood
that the event will occur in the future. Even here, where Dr. Smith
had significant control over the final decision, Dr. Overall’s request
was different in kind from saying “Do you promise to give me this
job?” Second, Dr. Smith’s response also fell short of a
straightforward promise. A more reasonable interpretation of it
would be that Dr. Smith would do all he could within reason to
help Dr. Overall’s candidacy along. This becomes an even more
natural interpretation when one considers that Dr. Smith made this
remark at a very early stage in the hiring process: the Committee
did not release its interim report until almost a full year later.

        Even if Dr. Smith’s representation constituted a promise, Dr.
Overall still could not have reasonably relied on it. As the District
Court noted, when the statement was made, Dr. Overall did not
know that Dr. Smith had the authority to overrule the Hiring
Committee. Overall, 2003 WL 23095953 at *11. If, as Dr. Overall
claims, she later investigated further and discovered that Dr. Smith
had that power, she also would have learned that department chairs
often suffer serious political repercussions when they ignore a
hiring committee’s recommendation.9 It was thus unreasonable for
Dr. Overall to assume that Dr. Smith’s representation would remain
binding no matter what happened during the hiring process.




       9
        She also would have seen that Dr. Smith’s license to ignore
the Committee’s decision does not give him free rein over the
hiring process. The record reveals that Dr. Smith’s hiring choice
had to be approved by an additional five layers of bureaucracy
before it became official. See App. at 245-46. There is some
indication – admittedly by Dr. Smith himself – that these layers are
not mere “rubber stamps.” Id.

                                 11
                                C.

       Dr. Overall’s two remaining claims do not require lengthy
discussion. On the retaliation claim, Dr. Overall engaged in
protected activity when she filed her grievance with Penn on
November 15, 2000. But the main adverse employment action on
which she relies was the University’s decision to revoke her
clinical privileges, which occurred on October 23 – three weeks
before she filed her University grievance. See App. at 19. Nothing
in the record indicates that Dr. Overall threatened to file her
grievance before that date. Since she cannot prove a causal
connection between her participation in a protected activity and an
adverse employment action, her retaliation claim must fail. See
Weston v. Pennsylvania, 251 F.3d 420, 430 (3d Cir. 2001).

        On appeal, Dr. Overall argues that “substantial retaliation”
took place after she filed her grievance. She points to incidents in
which Dr. Smith allegedly “berated” her in her office in the
presence of witnesses on November 1, 2000; placed a padlock on
the clinic door in March 2001; and then defamed her in June 2001.
Assuming for the sake of argument that these incidents amount to
“adverse employment actions,” Robinson v. City of Pittsburgh, 120
F.3d 1286, 1300 (3d Cir. 1997), there is no proof of a causal link
between any of these activities and Dr. Overall’s filing of a
grievance. The November 1 incident occurred the day after
Overall’s clinical privileges were suspended. The record shows
that Smith was “berating” Overall for contravening the terms of her
suspension. The padlock was placed on the clinic because items
were missing from it. And, finally, Dr. Smith made allegedly
defamatory remarks at the grievance proceeding to explain why he
did not override the Search Committee’s decision against
recommending Dr. Overall.

       Dr. Overall’s final claim is gender discrimination. The
District Court could not “find any evidence that gender motivated
Dr. Smith’s decision.” App. at 13. In fact, it found that “Dr. Smith
appears to have been more supportive of Dr. Overall than were the
members of the search committee.” App. 13-14. We agree. The
record is devoid of any credible evidence that Dr. Smith chose not
to override the Committee’s decision because of Dr. Overall’s

                                12
gender. In fact, the record is replete with evidence that Dr.
Overall’s candidacy had drawbacks so significant that even her
personal champion in the Department felt compelled to abide by
the Committee’s decision.

                              III.

       For the foregoing reasons, we affirm the District Court’s
entry of summary judgment in favor of Penn on the fraudulent
misrepresentation, retaliation, and employment discrimination
claims, but we reverse the entry of summary judgment on the
defamation claim, and remand for further proceedings on that
claim.




                              13
