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


12-5-2005

Manning v. Temple Univ
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1215




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                                                   NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ___________

                       No. 05-1215
                       ___________

                  VALERIE MANNING,

                                      Appellant,

                             v.

               TEMPLE UNIVERSITY;
      TEMPLE UNIVERSITY SCHOOL OF MEDICINE;
             RICHARD J. KOZERA, M.D.;
            GERALD H. STERLING, PH.D;
               JAMES P. RYAN, PH.D;
              THOMAS MARINO, PH.D;
              HELEN PEARSON, PH.D;
                JOHN DOE NOS. 1-25,

                                    Appellees.
                ________________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                 (D.C. Civil No. 03-cv-04012)
     District Court Judge: The Honorable Harvey Bartle III
                         ___________

                Argued: November 14, 2005

   BEFORE: ROTH, FUENTES, and BECKER, Circuit Judges

                 (Filed: December 5, 2005)




                            1
Richard J. Silverberg (ARGUED)
Richard J. Silverberg & Associates, P.C.
1500 Walnut Street, Suite 1500
Philadelphia, PA 19102

ATTORNEY FOR APPELLANT

Matthew W. Strickler (ARGUED)
3420 North Broad Street
Room 107
Philadelphia, PA 19140

Lance David Lewis
101 North Easton Road, Suite 202
Glenside, PA 19038

ATTORNEYS FOR APPELLEES




                               OPINION OF THE COURT




FUENTES, Circuit Judge.

       Valerie Manning entered Temple University School of Medicine in 1999. After

failing two courses in her first semester, she took a leave of absence and was placed on

academic probation, requiring her to repeat her first year. When she returned in

September 2000, Manning failed two courses in the first semester of her repeat year and

two additional courses in the second semester. In July 2001, Manning was dismissed from

Temple. She filed a complaint against Temple University, Temple University School of

Medicine, and several professors and physicians at the medical school alleging that her

                                             2
dismissal was motivated by race discrimination in violation of 42 U.S.C. § 1983, 42

U.S.C. § 1981, Title VI of the Civil Rights Act, the Pennsylvania Human Relations Act

(PHRA), and the Pennsylvania Fair Educational Opportunities Act (PFEOA). Manning

also asserts substantive and procedural due process violations under the United States

Constitution, and several state common law claims. We conclude that defendant/appellees

are entitled to judgment as a matter of law on all claims, and therefore affirm the decision

of the District Court.1

                                     BACKGROUND

       Manning entered Temple in September 1999, and although she apparently

undertook a stringent study regime, she failed Gross Anatomy and Neuroanatomy in her

first semester.2 Claiming illness and problems with her student loans, Manning took a

leave of absence at the end of her first semester. At that time, she received a letter from

Temple stating that upon her return she would be placed on academic probation and

would be required to repeat her first year. Manning failed Histology and Embryology in

the first semester of her repeat year, and Biochemistry and Physiology in the second



       1
         Manning appeals the District Court’s grant of summary judgment as to her
common law claims of breach of contract, breach of fiduciary duty, fraud, and intentional
infliction of emotional distress. We conclude that the District Court analyzed these
claims properly, see Manning v. Temple University, No. 03-4012, 2004 WL 3019230 at
*9-12 (E.D.Pa. Dec. 30, 2004), and we need not discuss them in further detail here.
       2
        Under the summary judgment standard, we present the facts in the light most
favorable to Manning. Reichley v. Penn. Dep’t of Agric., 427 F.3d 236, 244 (3d Cir.
2005).

                                              3
semester.

       Manning claims that her professors were generally inaccessible outside of class. In

January 2001, she met with Dr. Helen Pearson, one of her professors, to discuss her study

habits. Dr. Pearson suggested that Manning study from her notes rather than from index

cards. Manning found that this advice was very helpful and led to an improvement in her

performance in Dr. Pearson’s course. Dr. Pearson also advised Manning to visit Temple’s

Recruitment, Admission, and Retention Office (RAR) for extra help. RAR is a federally-

funded program that actively recruits minority students to Temple and offers student

support services, including a seven-week summer program that provides a preview of the

first year. Before the beginning of classes, students considered to be socioeconomically

disadvantaged are invited to take advantage of RAR and the seven-week program. All

African-American students receive an invitation, regardless of their academic

qualifications or background. Students not considered to be disadvantaged are not

specifically invited to join, although any student at Temple is permitted to participate in

RAR activities. Manning did not believe that RAR could help her, and was upset that Dr.

Pearson suggested that she try the program.

       Manning also met with Dr. James P. Burke and Dr. James P. Ryan. Dr. Burke

suggested that Manning study from old exams, and stated that he was surprised that Dr.

Pearson had not offered the same advice. Dr. Ryan agreed that Manning should study

from old exams. In May 2001, Manning spoke with a Caucasian student one year ahead



                                              4
of her at Temple, known to her only as “Tracy.” Tracy told Manning that Dr. Pearson had

advised her to study from past exams. Manning was upset to learn that Dr. Pearson had

provided this advice to Tracy but not to her.

       In June 2001, Dr. Ryan told Manning that she would have to appear before the

Student Promotions Committee (the “Committee”), which would determine whether she

would advance to the next year or be dismissed. Dr. Ryan chaired the Committee, and

requested that Manning meet with him to discuss the Committee’s proceedings. Manning

states that at this meeting, Dr. Ryan told her that she would not be dismissed and would

simply have to retake some of her exams. Manning also states that Dr. Ryan discouraged

her from appearing before the Committee with an advocate, and offered to advocate on

her behalf. That same month, Manning received a letter from Dr. Gerald H. Sterling, the

Assistant Dean for Medical Education, stating that she was being considered for dismissal

according to Temple policy because she had received several failing grades while on

probation. Manning submitted a letter stating that her performance was due to poor study

methods, and that she had recently discovered better study methods.

       In July 2001, Manning appeared alone before the eight-person Committee that

included Drs. Pearson, Ryan, and Sterling. The meeting lasted about ten minutes and

Manning was permitted to present her position. She was then asked to leave the room,

and the committee members voted unanimously to dismiss her. That same day, Manning

received a letter from Dr. Sterling explaining that, as stated in the Student and Faculty



                                                5
Advisor Handbook, a student could appeal a Committee decision to the Dean “for cause,

i.e., procedural irregularity.” The letter did not mention an alternative procedure described

in the Handbook, which allows a student who has received a failing grade while on

probation to appeal based on “extenuating circumstances,” defined as “severe and

documented situations which were beyond the student’s control and which prevented the

student from performing in a manner truly reflective of his/her knowledge and skills.”

       Manning told Dr. Ryan that she intended to appeal to Dean Richard J. Kozera, and

asked Dr. Ryan to write a letter of support. Manning says that Dr. Ryan agreed to do so.

Manning picked up the sealed letter that same day, and e-mailed Dr. Ryan to request a

copy for her records. When she did not receive a response over the weekend, she opened

the letter. In the letter, Dr. Ryan stated that the vote against Manning had been

unanimous, that Manning was “inefficient in her approach to learning,” and that despite

helpful advice on her study habits, “her final exam performance showed little

improvement.” He acknowledged that he told Manning that he would present her view to

the committee and serve as her advocate. He also stated that he had told Manning that a

letter of support to the Dean would not be appropriate, but that he “would explain [his]

actions leading up to [the meeting before the SPC].”

       Manning did not submit Dr. Ryan’s letter, and instead procured a letter of support

from Dr. Burke. In her own letter to the Dean, she blamed poor study methods for her

failing grades. Manning and Dean Kozera met a few days later. Although Manning had



                                              6
not transmitted Dr. Ryan’s letter, Dean Kozera had read it. Dean Kozera sent her a letter

soon after the meeting, stating that he had decided to uphold the Committee’s decision

and dismiss her from Temple.

                               STANDARD OF REVIEW

       We review a district court’s grant of summary judgment de novo. Blair v. Scott

Specialty Gases, 283 F.3d 595, 602-03 (3d Cir. 2002). Summary judgment is appropriate

if, taking the facts in the light most favorable to the non-moving party, “there is no

genuine issue as to any material fact and . . . the moving party is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c).




                                         DISCUSSION

                                              I

       Racial discrimination claims under the statutes asserted by Manning are considered

under the framework established by the Supreme Court in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973). See Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 410

(3d Cir. 1999) (applying McDonnell Douglas framework to 42 U.S.C. § 1981 and PHRA

claims); McKenna v. Pac. Rail Serv., 32 F.3d 820, 825 & n.3 (3d Cir. 1994) (noting that

McDonnell Douglas framework applies to 42 U.S.C. §§ 1983 and 1981 claims); Freeman

v. Fahey, 374 F.3d 663, 666 (8th Cir. 2004) (applying McDonnell Douglas framework to




                                              7
Title VI claim).3

       Under McDonnell Douglas, a plaintiff may establish a prima facie case of

employment discrimination in hiring by showing “(i) that he belongs to a racial minority;

(ii) that he applied and was qualified for a job for which the employer was seeking

applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his

rejection, the position remained open and the employer continued to seek applicants from

persons of complainant’s qualifications.” 411 U.S. at 802. This test has been tailored to

apply to discrimination claims in various other contexts. See, e.g., Anderson v. Consol.

Rail Corp., 297 F.3d 242, 249 (3d Cir. 2002) (applying a modified version of the

McDonnell Douglas test to an age discrimination claim based on a reduction in force by

an employer).

       This Court has not adapted the McDonnell Douglas prima facie test to the

education discrimination context. We need not do so here, because under any rendering of

the test, Manning fails to raise the required inference of discrimination as to her dismissal

from Temple. See, e.g., Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir.

2004) (“Although the prima facie elements of a discrimination claim vary depending on

the particular facts of the case, the plaintiff must generally present evidence that ‘raises an

inference of discrimination.’”) (citations omitted); Pivirotto v. Innovative Sys., Inc., 191



       3
        Although the McDonnell Douglas analysis has not been applied to a claim under
the PFOEA, neither party disputes that McDonnell Douglas provides the appropriate test
under that statute.

                                                8
F.3d 344, 352, 355 (3d Cir. 1999) (noting that the McDonnell Douglas prima facie test

“was never intended to be rigid, mechanized, or ritualistic,” but that it “‘requires evidence

adequate to create an inference that an employment decision was based on a[n] [illegal]

discriminatory criterion . . . .’”) (quoting O'Connor v. Consolidated Coin Caterers Corp.,

517 U.S. 308, 312 (1996)) (internal citation omitted).

       Here, Manning relies almost exclusively on the RAR program to establish a prima

facie case of discrimination, arguing that the program stereotyped her. She asserts that

because the RAR program invites all African-American students to join regardless of

their academic background, it suggests that “African-Americans/RAR students . . . lack

the qualifications or capabilities to meet the demands of the medical school program.”

She provides no link, however, between this stereotyping and the adverse action she has

claimed – her dismissal from Temple. Although Manning argues that “[Temple]

determines that once an RAR student falters academically it is more cost-effective to

simply let them fail than devote the resources to educate them,” she points to no evidence

to support this assertion. Without such evidence, she fails to raise an inference of

discrimination. See Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 264 (3d

Cir. 2001) (noting in the gender discrimination context that “‘[w]hatever evidentiary route

the plaintiff chooses to follow, he or she must always prove that the conduct at issue . . .

actually constituted discrimina[tion].’”) (citation omitted).

       Relatedly, Manning suggests that she was stereotyped by the RAR program



                                              9
because professors at Temple referred her to RAR rather than helping her with her

coursework. Manning’s only evidence to support this claim is that when she came to Dr.

Pearson for help, Dr. Pearson referred her to the RAR program. Given that RAR is an

established study assistance program at Temple, Dr. Pearson’s suggestion that Manning

try RAR does not in itself imply that Dr. Pearson was unwilling to help Manning with her

coursework. Notably, in addition to her suggestion that Manning try RAR, Dr. Pearson

gave Manning studying advice that proved to be quite helpful.

       Manning has failed to present evidence that her dismissal was due to race or that

the RAR program was related her to dismissal in any way. The only evidence of

differential treatment Manning offers is her testimony that a Caucasian student known

only as “Tracy” told her that she was advised by Dr. Pearson to study from old exams,

while Dr. Pearson did not give Manning the same advice. As the District Court noted, this

testimony about Tracy’s statement is hearsay and therefore may not be considered at

summary judgment. Philbin v. Trans Union Corp., 101 F.3d 957, 961 n.1 (3d Cir. 1996).

Even if the testimony could be considered, Dr. Pearson’s dispensation of different

studying advice to two different students is not sufficient to raise an inference of

discrimination.

       Because Manning fails to present a prima facie case of discrimination, we need not

consider the later steps of the McDonnell Douglas test. We affirm the District Court’s

grant of summary judgment as to Manning’s race discrimination claims.



                                             10
                                            II.

       To establish a substantive due process claim, a plaintiff must show that she was

deprived of a fundamental property right through an arbitrary and deliberate abuse of

authority. Indep. Enter., Inc. v. Pittsburgh Water and Sewer Auth., 103 F.3d 1165, 1179-

80 (3d Cir. 1997). This Court has strongly suggested that the right to continued graduate

education is not protected by substantive due process. Mauriello v. Univ. of Medicine

and Dentistry of New Jersey, 781 F.2d 46, 50 (3d Cir. 1986) (noting that such an interest

bears “‘little resemblance to the fundamental interests that previously have been viewed

as implicitly protected by the Constitution.’”) (quoting Regents of Univ. of Michigan v.

Ewing, 474 U.S. 214, 229-30 (1985) (Powell, J., concurring)). We need not decide that

issue here, however, because Manning has presented no evidence of an arbitrary exercise

of authority.

       In Regents, the Supreme Court rejected a student’s claim that his dismissal from a

joint undergraduate and medical school program constituted arbitrary action, noting that:

       When judges are asked to review the substance of a genuinely academic
       decision, such as this one, they should show great respect for the faculty’s
       professional judgment. Plainly, they may not override it unless it is such a
       substantial departure from accepted academic norms as to demonstrate that
       the person or committee responsible did not actually exercise professional
       judgment.

474 U.S. at 225. See also Mauriello, 781 F.2d at 51 (“In an educational setting, a student

bears a heavy burden in persuading the courts to set aside a faculty’s judgment of

academic performance.”).

                                            11
       Manning has not satisfied her burden here. Even if Dr. Ryan’s conduct toward

Manning was unfair, there is no evidence that Manning’s dismissal was motivated by any

factor other than her failing grades in numerous classes over two years. The defendants’

academic judgment in dismissing Manning was “not beyond the pale of reasoned

academic decision-making,” Regents, 474 U.S. at 227-28, and her substantive due process

claim therefore fails. See also Mauriello, 781 F.2d at 52 (in entering judgment for

defendants on a substantive due process claim, noting that “[a]lthough there may have

been personality conflicts between plaintiff and some of the faculty members, the

evidence does not permit a finding that the plaintiff’s dismissal was for reasons other than

the quality of her academic performance.”).




                                              III

       Manning argues that procedural due process was not satisfied because Dr. Ryan

and Dr. Sterling made material misrepresentations that prevented her from exercising her

rights, and the Committee proceedings were not adequate.

       In Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78

(1978), the Supreme Court found no procedural due process violation where a student

was dismissed from medical school for academic reasons, finding that “[t]he school fully

informed respondent of the faculty’s dissatisfaction with her clinical progress and the

danger that this posed to timely graduation and continued enrollment” and that “[t]he



                                              12
ultimate decision to dismiss respondent was careful and deliberate.” Id. at 85. Interpreting

Horowitz, this Court has held that “when a student is discharged for academic reasons, an

informal faculty evaluation with the student is all that is required.” Mauriello, 781 F.2d at

51. The Mauriello Court found adequate process where a student dismissed from a PhD

program “was informed of her academic deficiencies, was given an opportunity to rectify

them during a probationary period before being dismissed, and was allowed to present her

grievance to the graduate committee.” Id. at 52.

       In light of these cases, the procedure provided to Manning was clearly sufficient.

Manning was given fair warning that she had been placed on probation and was in danger

of dismissal. She presented her position to an eight-member board, and a vote of that

board was required for her dismissal. Manning was also permitted a limited appeal to the

Dean. Even if, as she claims, Dr. Ryan or Dr. Sterling gave her inaccurate information

about her appeal rights, all relevant information about Temple’s appeals process was

contained in the Student Handbook, which was easily available to Manning. We conclude

that, in light of the great deference that we must allow academic judgments, Temple’s

dismissal of Manning satisfied procedural due process requirements.

                                      CONCLUSION

       For all of the reasons discussed above, we conclude that the District Court’s grant

of summary judgment was proper. We will accordingly affirm the District Court’s order.




                                             13
