IN THE UNITED STATES DISTRICT COURT
 

FOR THE EASTERN DISTRICT OF PENNSYLVANI
 

BEATRICE WAGGAMAN, Ph.D., 

Plaintiff, 

v. 

VILLANOVA UNIVERSITY, 

Defendant. 

Civ. No. 04-4447 

f\l.ED 

4 IOOa 

KUNZ, CI.!\< . De? C\eli< 

_ 

~~-

OPINION 

Septemher 3, 2008 Pollak, J. 

Presently before the court is defendant Villanova University's motion for summary 

judgment (Docket Nn. 87). The molinn is ripe for disposition. 

I. Background 

I3ealrice Waggaman, a longtime assistant professor of French at Villanova, elaims 

that Villanova, in refusing to promote her to the rank of associate professor in 2002-2003, 

retaliated against her for serving as a witness for another professor, Shams Inatl, in Inati's 

disability discrimination suit against the university. She brings suit under the Americans 

with Disabilities Act (ADA), the Rehabilitation Act, the Pennsylvania Human Relalions 

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Act (PHRA), and for common-law brcaL:h of contract. I 

According to Villnnova's rank and tenure polky document, promotion is based on 

achievement in three areas: teaching, scholarship, and service to the university (with an 

admitted emphasis on teaching am] sL:holarship). Dcfs Ex. F, at 3-6. To be promoted to 

the rank of associate professor, a faculty member must submit "[clIear evidence of: (a) 

teaching and advising effcctivcucss; (b) continuing quality scholarship, induding work 

other than thnt contained in one's doctoral dissertation ... (c) effective service to the 

University, college. department, profession, and, as appropriate, community; and (d) ongoing professional development in these areas." Id. at 6. 

In terms of process, the application for promotion, which includes a dossier ofthe 

applicant's scholarly works, teaching reviews, and other materials. is first reviewed hy a 

departmental rank and tenure conunittee, as well as tbe department chair. The conunittee 

(acting by majority vote) and the L:hair submit separate recommendations. Id. al9-1O. 

Next, the application is reviewed by a college-level rank and tenure committee consisting 

of representatives from each of the college's areas of study. The departmental committee 

and department chnir's recommendations are available to the college committee. While 

!.he dean of the college attends the college committee meeting, and is flvailable for factual 

information. hc is prohibited from expressing a position 011 the caudidatc. The college 

I The COUlt previously dismissed a number of counts in the plaintiff's amended complaint 

of October 12, 2004 because some were lime-barred. others offered no valid cause of aclion for 

plaintiff, and still others: were subsUInl~d into other enumerated claims. See Memorandum/Urder 

of September 28, 2005. 111is opinion addresses all ofthe remaining claims: in this lawsuit. 

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commiLtt:t:. by majority vote, decides whether to recommend promotion. and it submits a 

rt:purt t:xplaining its recommendation. The dean then prepares and submits his own 

recommendation. ld. at 11-12. Next. the materials are reviewed by a university-level 

rank and tenure committee composed of representative from each ofthe colleges. The 

university committee votes whether to recommend promotion, nnd the vice president for 

academic affairs makes the final decision as to what university-level recommendation will 

be made; to the president. lei. at 12-13. The president. who has available to him tht: 

recommendations of (I) the departmental commitLee, (2) the department chair. (3) the 

college committee, (4) the college dean, and (5) the university committee as conveyed 

through the vice president for academic affairs, makes the final decision. ld at 1, 13. 

Waggaman began teaching at Villanova in 1987 and received lenure in 1993. She 

immediately applied for promotion in 1993-94. She was not recommended t()r promotion 

by the departmental committee (vote: 4_5_1),2 the department chair. the college committee 

(vote: 0-7), the dean, or tbe university committee (vote: 0-11). Def.'s Ex. E, Tab 1. 

Accordingly, the president decided against promotion primarily on the ground that she 

had not completed sufticient post-dissertation scholarship. ld. 

After publishing two additional articles, Waggaman applied again in 1997-98. 

This time, the departmental committee recommended promotion (by a 6-2-1 vOle). as did 

2 The first number represents the number of votes in lavor ofpromotion; the second 

number represents the number of votes against; and the third number, if there is one, represents 

the number of abstentions. 

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her department ehnir. Again, however, the college committee (vote: 0-7), dean, and 

university conunittee (vote: 0-11) declined to recommend her. and the president 

l:om;urred in their assessment. As summed up in a letter from John Johannes, Vke 

President for Academic Affairs, to Waggaman explaining the reasons for the president's 

decision, it was not thought that the production of two peer-reviewed articles over a tenyear at.:ademk career was sufficient to warrant promotion. Def. 's Ex. F, Tah 2. 

Waggaman applied again in 2000-01, having published two additional articles. 

This time, thc departmental committee supported lhe application unanimously. Def.'s Ex. 

E, Tab 4. The college committee, however, continued, unanimously. not to recommend 

promotion, and Kail Ellis, dean ur the College ofLibcral Arts and Sciences, concurred in 

its assessment. Id. The college committee and Ellis hath expressed dissatisfaction that 

her additional artides were short, that there was a publications gap hetween 1997 and 

2000, that Waggaman had not presented a conference paper since 1996, and that one of 

her external reviewers claimed that her scholarship ignored t.:ertain works that the 

reviewer deemed ofparticular importance. Id The college committee also noted that her 

two most recent articles were puhlished in journals 110t widely available in the United 

Waggaman takes issue with the dean's recitation that the ;;trtides werC 11-12 pages long, 

when, according to Waggaman, one was 18 pages. Yet, the dossier submitted in connection with 

her application for pwmotion in 2000-01 lisls lhal article as 12 pages. (Waggaman concedes thal 

the other was 11 pages long). As the court does not havc thc article in question before it, suffice 

it to say that there is some dispule over the length of the article (though the court notes that il 

would be more than di11iculllo infer that Ellis willfully misstated the article's length, when he 

merely recited the length that Waggaman represented to him via her curriculum vitae). 

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States, whil:h made quality difficult to asscss.,j ld. The university committee voted 1-10 

to recommend against promotion, based on the saIne basic reasoning as the college 

committee and Ellis, and Edmund Dobhin, president of the university, concurred find 

declined to promote Waggflman. Id. Waggaman appealed tbe decision, submitting a 

substantial brief that attempted to refule the dean and committees' reasoning. Waggaman 

Dep.. Ex. 10. 11 was in this submission that she first alleged retaliation on lhe basis of her 

protected activity. Id. Dobbin allowed an appeal (despite the fact that the policy 

document does not provide for one), but L:onJined the review to procedural error and 

delegated the appeal to a three-person currunittee (essentially following the procedure f{}r 

appeals of tenure denials). Waggaman Dep., Ex. 11. The committee did not find 

procedural error, and Dobbin abided by its decision. Id. 

Waggmuan applied for promotion j(lr the fourth time in 2002-03. The 2002-03 

application is the only one at issue in this litigation. The vote counts lined up the same 

way as in 2000-01. DeCsEx. E, Tab 6. The college committee voted unanimously 

against promotion, noting that Waggaman had not produced any additional publications 

since her prior application. Id. She had presented two papers at conferences, which tbe 

committee called "quite similar in topic" and which remained unpuhlished al the time of 

4 The record rel1ects that thc .iournals were publi.shed in France and Australia. Waggaman 

expresses some puzzlemcnt at why it would be unsatisfactory for a professor of French to publish 

in French joumals. The COllUllittee, however, was referencing a concern of externaL reviewer 

Byron Wells, who stated that the joumals' unavailability made il ditlicult to assess how much 

effect Waggaman's work had on scholarship in the United States. This seems a fair, albeir 

disputable, point and one that the college committee mighllcgitimately endorse. 

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the review. Id. The committee deemed that insufficient research and scholarship for the 

period and wrote that it "wisheldlto make clear that at least t\vo more publications in 

refereed journals [would beJ required." Id. Thc dean and university committee (vote: 1­

10) concurred in this assessment, as did Dobbin. Id. Waggaman again appealed, alleging 

retaliation. Waggaman Dep., Ex. 23. Dobbin responded to Waggaman, stating that he 

had "ordered and considered a full review of the concern you have expresscd about 

retaliation," but that he had concluded that it did nol occur. Waggaman Dcp.. Ex. 24. In 

his deposition. Dobbin testified that the review \\:a5 conducted by the university's general 

counsel. Dobbin Dep., at 188. The 1elLer also stated that Dobbin had "considered 

lWaggaman's] appeal with great care and concern," hut decided to abide by his initial 

decision to nol grant promotion. Waggaman Dep., Ex. 24. 

Wnggaman was listed as a witness in lnati's EEOC complaint filed in February 

1999. She was dcposed in connection with that litigation in May 2001. The content of 

her deposition does not appear in the record. According to this court's docket sheet, 

tnati's casc was settled before trial and voluntarily dismissed in January 2002. 

Inati was deposed in cOimection with Waggaman's case and testified that Ellis was 

angry with rnati for suing the university, to the point that she was told hy some faculty 

members that they were afTaid to be seen with hcr lest Ellis find out. 5 rnati Dep., at R3­

5 The eourt will consider this evidence, though it is hearsay, because it appears to be 

testimony about the declarants' motives and emotions. See Fed. R. Evid. 803(3). Thus, it would 

likely be admissihle at trial, and ean be considered on summary judgment. . . 

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86. Inati did not, in the excerpts submitted, testify to any action that Ellis took againsl her 

or anyone else as a result of his alleged anger. 

In exploring her allegations ofretaliation, Waggaman deposed some members of 

the college and university committees, as well as Johannes, Ellis, find Dobbin.6 

Michnel Hones, a member of the college commitlee, testified that he was unaware 

at the time of the college committee's decisions that Waggaman was involved with lnati's 

lawsuit. Hones Dcp. 119-20. He further testified that he had never heard Ellis, Johannes, 

Dohbin, or anyone dse at Villanova discuss Waggoman's participation in that matter. Id. 

In addition, he testified that Ellis did not offer opinions un G<mdidates at college 

committee meetings. Id. at 58-59. 

Robert DeFina, a member ofthe university committee in 2000-01 and 2002-03, 

testilicd that he did not know that Waggaman had participated in tho lnali suit, nor had he 

ever heard Ellis, Johannes, or anyone else at Villanova discuss her participation. DeFina 

Dep., at 148-49. 

Similarly, Johannes testified that he was unaware of Waggaman's participation in 

the Tnati malter, and that hc did not participate in any discussions ahout ht:r participation. 

Johannes Dep., at 119-20. Ht: also testified that the university committee disagrees wilh 

6 The review oftcstimony that follows does not purport to cover all of the LesLimony 

submitted to the court in connection with these motions. It is merely a summary. 

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the departmental committee on promotion applications about ollc-fourth ofthc time. 7 Id. 

at 40. 

In thc matcrials submitted. Ellis testified that he could not remember knov"jng \\lho 

any ofInati's \\litnesses were. Ellis Dep., at 83-83,184. Hc admitted to spending some 

lime on the Inati litigation as a witness, but he testified that he would have had no reason 

to know the identity of any othcr witnesses. Id. at 184. Whether Ellis was deposed in thc 

Inati matter is not clear from the record. Ellis further testilied that he was unaware of 

who Inati' s friends at Villanova were. Id. at 84. In addition, he testified that, while he 

was present for the college committee meetings in 2000-01 and 2002-03, at which 

Waggaman's applications \....ere discussed, he did not offer any commentary or 

recommendation on Waggaman's dossier. Id. at 26. 

Inali, on the other hand, testified that Ellis would "express really to [her] how he 

felt about certain candidates, you know, whether he fetl positively or ncgatively ... and 

[she] certainly got the message, you know, how [Ellis] would like [her] to vote." Inati 

Dep., at 83. On cross-examination, Inati backtracked a bit, and clarified that she had not 

meanl that Ellis actually told her how to vote, but merely that 'TEllis] definitely made his 

attitude toward certain people clear and, you know, [lnaliJ assumed he expcctcd [hcr] to 

vote in a ccrtain way." Id. at 89. Inati further clarified that she was speaking of 

7 Indeed, in the same acarlemic year as thc process disputed here, an assistant professor of 

history, M.S., applied lor promulion lo associate. After receiving an unanimous vote from her 

department, M.S. was nul recommended by the later conunittees on grounds that her record of 

scholarship was too weak to wan'ant advancement. Defs Ex. E, at 19-20, Tab 8. 

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candidates for the chainnanship of her department, not candidatcs for promotion. It!. at 

89-90. From the excerpt of the deposition submitted by plaintin: it is not clear under 

what circumstances Inati would have been voting for candidates. Nothing in the record 

suggests that she was ever a member of the college or university committees. Inati 

conceded that she had not heard Ellis talk about how he felt about promotion candidates: 

"I [Inati] have to give him [Ellis1credit for something with regard to conlidentia! papers 

of candidates[;] I don't think he would discuss conlidentia! papers, you know, with 

people. What I was referring to is he may give an idea how he feel abouts [sic] thc 

candidate, but he would not, even though I was close to him, he would not corne and tell 

me, you know, this person is not qualified for promotion and, you know, 1don't want 

people to volc for him, no, no, no. He was, you know, he wouldn't do something like 

that, but I ".... as able to sense how he fclt about pcoplc.... who, for example, came up for 

certain elections." Id. at 90. 

Dobbin also testified that he did not know of Waggaman's participation in thc Inati 

matter at thc times he made his decisions to not offer her promotion. Dobbin Dep., at 10. 

As to the 2002-03 promotion decision, this testimony is subjcct to dispute, since 

Waggaman's 2001 appeal letter brought Waggaman's participation in the lnati mattcr to 

Dobbin's attention. Waggaman Dep., Ex. 10. A reasonable juror could find that Dobhin 

read the letter, and, in contravention of his testimony, therefore knew of Waggaman's 

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participation by the time he decided not to offer Waggaman promotion in 2003. 8 

Estella Ogden, a member of Waggaman's dep<lrtment and the departmental 

committee, testified that she "wouldn't disregard" the possibility that Waggaman's deni<ll 

was retaliatory. Ogden Dep., at 47. She also testified, however, thal she had never heard 

Dobbin talk ahout Waggaman being a witncss for Inati and that. as to retaliation, she 

"[could not] really elabornte because [she] d(idIn't know." ld. She further testified Ihat il 

was, in her cxperience as a member of the modem languages department. highly unusual 

ror the college and university committees to disagree with the department's unanimous 

recommendation on promotion. Jd. at 48. 

Elsayed Ommn, an associate professor of Arabic at Villanova, testified that, soon 

after he was identified as a witness in the Inati matter, three of his courses were (;an(;eJ(ed 

despite the fnet that students had registered lor them. Omran Dep., al 21. He further 

testified that other courses with fewer students were not cancelled, and that Ellis rcfuscd 

to reinstate his (;ourses. Jd. 

III. Discussion 

Under Fed. R. Civ. P. 56(c), summary judgment is appropriate when ..the 

pleadings, the discovery and disclosure materials on Jile, and any affidavits show that 

.~ This is 110t to say that Dobbin's testimony is necessarily false or without credibility. A 

reasonable juror could conclude that, though Dobbin had been infonned 1)1' Waggaman's 

protected activity in Waggaman's 2001 appeal letter to him, thal information had slipped his 

mind between 2001 and 2003. Thus, it is possible that Dobbin testified al:l:uratdy that he did not 

have the retaliation issue in mind when he del:ided to not promote Wggllilllln in 2003. 

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there is no gennine issne as to any material fact and that the movant is entitled to 

judgment as a matter of1aw." 

Retaliatil>n <.;\aims under the IJHRA, ADA, and Rehabilitation Act are evaluated 

using the familiar McDonnell Douglas framework. Marra v. Phila. Housing Auth., 497 

!'.3d 286,300 (3d Cir. 2007); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 

802-01 (1973). The first step ofthe Jramework requires that the plaintiffeomc forward 

with evidence making out a prima facie case or retaliation. ld. The burden then shifts to 

the employer to come forward with legitimate non-retaliatory reasons for the allegedly 

retaliatory action. ld. Following this, the burden shins back to the plaintiff to show that 

the proffered non-retaliatory reasons comprise only a pretext for retaliation. ld 

A. Prima facie case 

The elements of a prima facie case of retaliation arc (I) protected activity by the 

employee, (2) the employer's adverse employmenl action against the employee, and (3) a 

causal link betwccn thc employee's protected activity and the employer's adverse adion. 

ld. Villanova admits that Waggaman's serving as a plaintiffs witness in the Innti suit 

was protected activity. It fhrther admits that its refusal to promote Waggaman constituted 

adverse action. It argues, however, that Waggaman has not produced evidenl:e from 

which a reasonahle juror \:ould infer a causal link bctwccn thc two events. 

The Third Circuit has noted that "a plaintitfmay rely on a 'hroad array of 

cvidencc' to dcmonstrate a causal link between his protected activity and the adverse 

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action taken against him." Id. at302 (quoting Farrell v. Planters Lifesavers Co" 206 

F.3d 271, 284 (3d CiL 2000)). The e"us"llink may be estahlished when Lhe adverse 

action followed so closely upon the protected activity that the temporal proximity of the 

two is "'unusually suggestive. ,,, Jd. (quoting Robinson v. City 0/Pil/sburgh, 120 F.3d 

1286, 1302 (3d Cir. 1997)). Failing thm, the link may be established by a patlem of 

antagonism in the intervening period, by evidence of retaliatory animus, by Ihe 

employer's failure to give consistent or credible reasons for the adverse action, or hy the 

employer's treatment of other employees. Id 

1. Employer's knowledge 

Villanova raises the threshold argument that plaintiff has not produced evidence 

from which a reasonable juror could infer that the relevant decision makers knew of 

plaintiffs protected activity at the time they made their decisions. This is relevant 

because a retaliation plaintiff cannot establish causation without, at tbe least, evidence 

from which the decision maker's knowledge of the protceted activity could be reasonably 

inferred. Moore v. City 0/Philo., 461 F.3d 331, 351 (3d Cir. 2006) (requiring that a 

retaliation plaintiff prove knowledge of the decision maker in addition to showing 

temporal proximity); cf Ambrose v. Twp. a/Robinson, 303 F.3d 488, 494 (3d Cir. 2002) 

(rejecting the proposition that, in a First Amendment-based retaliation case, temporal 

proximity alone could establish causation without additional evidence of the employer's 

knowledge of the protected activity). 

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Here, Dobbin, as president of the university, was the final decision maker. Though 

he testified to not knowing of Waggaman's protected activity in his deposition, it appears 

that Waggaman alerted him to it in her 200 1 letter to him appealing his decision not to 

offer her a promotion that year. From that letter, a reasonable juror could infer, 

notwithstanding Dobbin's testimony, that he was aware of her participation in the Inati 

suit as of the summer of200 1 (and was thus aware of it when he decided to deny her 

2002-03 application [or promotion).9 There is, ho\vever, no evidence that he was aware 

of Waggaman's protected activity any earlier than her 2001 letter. 

At his deposition, Dobbin testified that he shared Waggaman's 2001 appeal with 

Dr. Johannes. PI. '5 Ex. 5, at 128. Thus, there is record evidence that Dr. Johannes also 

knew of Waggaman's participation in the Inati matter at thc time of the 2002-03 

promotion decision. 

There is no evidence on record that any of the other decision makers were aware of 

the protected activity at the time of their partieipation in the 2002-03 promotion decision. 

In particular, the court notes that there is no evidence that Ellis, the person around whom 

plaintiffs allegations seem to center, knew about plaintiffs participation in the Inati 

matter. Though Ellis testified that he was consulted hy counsel for Villanova in the Inali 

malter, he also testified that he did not know-and had no reason to know---who Tnati's 

witnesses were. Ellis further admitted that he spent Hi) lot of time" on the Inati matter, hut 

9 But see supra note 8. 

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he pointed to giving a deposition as an example of spending a lot of time. so it is unclear 

how much time he meant, and plaintiffs counsel did not pursue the quesfion. See Def. 's 

Ex. I, at 184. While it may be possible in sOIne instances to infer from a person's position 

or involvement in his employer's legal actions that he knew the identity of an adverse 

witness in another case, on this record, Ellis's involvement with the Inati maUer-and 

with Vi!l(lnova' s lawsuits generally-- is too underdeveloped to allow for any inference 

that Ellis must have known of Waggaman's involvement in the Inati motter. It is of 

course possible---ns it is always possible---that Ellis's testimony on this point was not 

al:curate, but, because the record does not contain "suffieient grounds for impeal:hment 

that would place the facts to which he leslilie[d] in legitimate dispute," EI v. SEPTA. 479 

F.3d 232, 237 (3d Cir. 2007), Ellis's testimony on this point cannot be controverted.'" 

While Waggaman's failure to prove that most of the decision makers had any 

knowledge of her protel:led al:livity does not prevent the analysis from continuing, the 

lack of knowledge on the part of these del:ision makers is, as discussed infra, relevant in 

considering what inferences a reasonnblejuror could draw from Waggaman's evidence. 

Recause there is rel:ord evidence-albeit disputed-that Dobbin, the final decision 

maker, and Johannes wcre aware of Waggaman's protected activity, this threshold portion 

of the causation prong is satisfied. 

10 Plaintiff, in trying tu elucidate Ellis's involvement with the Tnati matter, does nol 

appcar to have been impeded by any assertion of the attorney-client privilege by Villanova. If 

plaintiffs inquiries were impeded, she has not made the cuurt aware ofil. 

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2. Temporal proximity 

To raise a genuine issuc of fact as to whether the adverse (letion and the protected 

activity were causally related, the employee must produce evidence pointing toward such 

a link. The Third Cireuit has held that the temporal proximity between the protected 

aL:tivily and the adverse action, when "unusually suggestive," can be sufficient. Doe v. 

C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 369 (3d Cir. 2008); Fasoldv. Jus'ice, 409 

F.3d 178, 189-90 (3d Cir. 2005). lIere, however, the 2002-03 promotion denial was not 

particularly close in lime to Waggaman's participation in the Inati lawsuit. The tinal 

event in the lnati matter in which Waggaman was involved was Waggaman's deposition 

in May 2001. The tirst adverse action against her in the 2002-03 application process was 

Ihe (,;ollege committee's vote, which appears to have occurred on January 24,2003. 

Def.'s Ex. E, Tab 6. This is twenly months after the deposition. !'v1oreover, the college 

committee's recommendation cannot be attribUled lo retaliatory animus, as there is no 

evidence that any member of the committee knew ofWaggaman's protected activity. 

Dobbin, the only person whose knowledge is provable on this record, did nol ae! until 

May 2003, twenty-four months after Waggaman's deposition. I I Id. Thus, while the lack 

of temporal proximity is nol falal to Waggaman's claim, it is not suflkient, in and of 

II As stated earlier, Johannes also may have known about Waggaman's protected activity, 

but, in this case, he merely conveyed Ihe university committee's recommendation to Dobbin; he 

did not add any substantive comments of his own, so it does not appear that he played any 

~uh.<itantial role in the decision. 

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itself. to satisfy the causation prong of Waggaman's prima facie ease. l 

:: 

3. Pattern or antagonism 

One way a retaliation plaintilT can prove causation t1espile a lack of temporal 

proximity is by coming forward with evidence of a paUem or the employer acting 

antagonistically toward her. Marra, 497 F.3d at 302. Here, Waggaman argues that the 

record reveals a pattern of antagonism consisting primarily ofthe 2000-01 denial and the 

administration'5 discouraging Waggaman from reapplying in 2001-02. In other words, 

she argues that, from the tin.'I.e of her protected activity, Villanova has been determined 

not Lo promote her, and the 2002-03 denial was merely the last in a series of 

manifestations of Villanova's retaliation-based antagonism. 

The problem with this logic is that there is no record evidence that anyone 

involved in the 2000-01 t1enial, save Dobbin and .!ohannes (and they only by way of 

Waggaman's appeal) knew or Waggaman's protected activity. Thus, whilc thc 2000-01 

denial may have been antagonistic, in the sense that the decision \....a5 not in Waggaman's 

favor, it cannot be connel.:tetl with her protected activity, and thus cannot serve as part of 

the basis for inferring a causal link. 

Waggaman's allegation lhal she was diseouragcd from applying for promotion in 

2001-02 has a slightly different problem. The e-mail in which the administration 

12 Tn the Third Circuit's recent jurisprudence, "W1usually suggestive" refer.:; to a very short 

length oftime. Compare, e.g., CA.R.S. Protection Plus, 527 F.3d at 369 (three Jay.:; is unusually 

suggestive), with LeDoon v. LancClster Jewish Cmfy. Or.. 503 F.3d 217, 233 (3d Cir. 2007) 

(three month::; I::; not unu::;ually suggestive). 

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allegedly discouraged her was sent by Johannes, and copied to Ellis. Waggaman Dep., 

Ex. 29. While there is evidence that Johannes knew of Waggaman's protected activity, it 

would take a substantial 1lI110unt of creativity to view his e-mail to Waggaman as 

antagonistic. Waggaman notified Johannes of her intent to seek promotion on October 

31, 200 I, lilUr lull months after that year's deadline for giving notice had passed. 

primarily on the basis of a forthcoming conference pn:scnlation that Waggaman intended, 

in time, to convert into a peer-reviewed puhlication. Waggaman Dep., Ex. 2g, In 

response, Johannes asked Waggaman for two additional pieces ofinfonnation: (1) some 

assurance that her dossier would include something new (rather than merely promises of 

future Jevelopments), and (2) assurance that the department could evaluate her dossier in 

a timely fashion (as two departmental deadlines had also already passed). Waggaman 

Dep., Ex. 29. In light of the tardiness of Waggaman's notice, viewing Johannes's 

responses as antagonistic for purposes of proving retaliation would stretch the 

imagination too far. U 

111 support of her reading of Johannes's e-mail, plaintiff contends that another 

Villanova professor, Dr. A, Iq was pennitted to reapply the year after being denied 

I] The court is a,ware orits obligation to view the evidence in the light most favorable to 

plaintiff Reasonable inference, however, docs not convert into an act of antagonism a gentle 

attempt to garner the inlonnation necessary to dccide whether accommodating plaintiff's 

tardiness would bc possible or prndent. 

Iq In the interest of confidential ity. the court will use aliases to identify faculty members 

who are not parties to this action. and the court will preserve their personnel records under seal. 

In addition, to further promote confidentiality, the court will use feminine prononns with all 

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promotion. Dut plainti IT does not contend, and docs not identify evidence showing, that 

this professor applied late. Moreover, though plaintiff correetly obsen'es that one ofDr. 

A's cxtcrnal rcviewers did not submit his letter until December 9, 2001, after the college 

commiLtee had already mct, see Redacted File for Dr. A, at 01189, plaintiffnegleets to 

note a key difference between her application and Dr. A's; as cxplained at greater length 

infra, Dr. A had, in 2000-0 l, ohtaincd the support of the college committee. Her 

procurement of additional material supporting the scholarly quality of her work in 2001­

02 was geared entirely toward convincing the university committcc, the only body that 

voted against her in 2000-01. Thus, it WDS of no moment that she was unahle to procure 

one piece of that additional supportive material uutil after the college committee met, hut 

before the university committee met. PlainlirC however, ueeded to convince both the 

college and university committees that promotion should be granted, so, for ht:r, ensuring 

suflicienl time for a proper review at both levels was of more import, and thus of 

legitimate concern to Johannes. 

Plaintiff Dlso argues that Dr. A's application contDined nothing new exct:pt that a 

book accepted t(,r puhlicalion at the tilllC of her 2000-01 application had actually been 

published at the time of the 2001-02 application. A fair reading of the record rt:veals, 

however, that the primary difference in Dr. A's two applications was that, in her 2001-02 

application, Dr. A submitted materials clarifying the scholarly quality and import of her 

comparators, regardless oftheir actual gender. 

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book, ,ee, e.g., id. at 01189, 01201-02, something the university cammit1ee had doubted 

in 2000-0 I. Tn other words, Dr. A's situation was a bit different, insofar as her goal in 

submitting a 2001-02 application was not primarily to augment her scholarly record, but 

to clarify the quality oftha! record in response to the university committee's concerns. 

Plaintin: however, in seeking to fe-apply in 2001-02 did not represent that she wanted to 

try to clarify the quality of her rCL'orJ; rather, in her letter to Johannes, she stated that her 

goal was to show that she had augmented her record with a con ferem;e presentalion. 

Waggaman Dep., Ex. 28. Johannes's e-mail queried whether she really had substantial 

new mrlLerinl responsive to the college and univcrsity committee's comments, and 

whcthcr thcrc was sufficient time for any new material to be adequately reviewed. Thcse 

concerns make sense in light ofplaintifC's situation, but would have made less sen~e with 

regard to Dr. A's sitwuion. Given the dissimilarity of the situations of Dr. A and plaintiff, 

a reasonably jury could not use Dr. A's situation to conclude that Johannes acted 

anLagonistically toward plaintiff. 

4. Inconsistent or noncredihle l5 reasoning 

An aggrieved employee cnn also establish a causal link by coming forward with 

evidence that the employer offered inconsistent or noncredible reasons for the adverse 

action. Marra, 497 F.3d at 302. It is not enough flu the employee to proffer evidence 

15 Though the word "noncredible" is not in wide use, the court views it as preferable to 

the more common "incredible," beL'ause lhal word has acquired connotations that stray from its 

straightforward definilion, which is simply "not worthy ofbelief." 

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alluwing a reasonable juror to disagree with the employer's reasoning; rather, the 

employee must come forward with evidem;e irom which a reasonable juror could 

disbelieve the employer's proffered reason. See Combs v. Plantation Patterns, 106 F.3d 

1519,1543 (lith Cir. 1997). 

Waggaman argues that Ellis committed several errors in his 2000-0 I report that he 

repeated in his 2002-03 reporL despite the fact that Waggaman's 2000-01 appeal pointed 

out those errors. This, according to Waggaman; raises a lair inference that Ellis's 

reasoning is not credible. The alleged errors arc: (l) Ellis's statement that Waggaman's 

dossier should contain more recent peer reviews of her teaching, (2) Ellis's 

characterization of her articles published in 2000 as 11-12 pages long when, according to 

v.,'aggaman, one was 18 pages long, (3) Ellis's acceptance of nn outside reviewer's 

criticism as to the currency ofWaggaman's scholarship, (4) the "moving t(lrget" nnture of 

Ellis's scholmship expectations, and (5) Ellis's comment that Waggaman listed no 

memberships in professional organizations when, in fact, her dossier did list several 

memberships. 

One problem with plaintiffs use of her 2000-01 appeal to attack Ellis', reasoning 

is that she has not puinted the court to any evidence that Ellis saw plaintiffs appeal; thus, 

it is not apparent that he had reason to know of her critique of his reasoning. If the errors 

consisted solely of faulty representations of Waggaman's dossier, and were obvious and 

malerial, lhen it is possible that they could serve as evidence of noneredible reasoning on 

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Ellis's part, but the court is not persuaded that it should assume that Ellis was or should 

havt': ht':en aware or the material in Waggaman's appeal. 

As to the comments on teaching and service, it is clear that these ohservations 

were immaterial to Ellls's recommendation, and to the ultimflle decision. Rather, Ellis's 

report gave deficiencies in scholarship as the only reasons for his recommcndfltion ag.ainst 

promotion. Def.'s Ex. E, Tab 6. Ellis admiUed in his dt:position lhat he had overlooked 

Waggaman's professional-organization memberships. Ellis Dep., at 159. 

As to plaintirrs complaint that Ellis misstated the length of her articles, the court 

is unable to determine the length of the disputed essay for two reasons: (I) hecause a copy 

was not submitted Lo the court, and (2) because Waggaman's 2000-01 dossier Dnd 2002­

03 dossier appear to disagn:t: about Lht: t::isay's length. Plaintiffs 2000-01 dossier lists 

the article "Les Paysans de Balzac: structure:i, techniques et sLrategies d'un recit dc 

querelles" flS appeflring at pages 1-12 offl "special collection of essays" published by 

Presses de l'Universite de Reims-Champagne-Ardenne. Waggaman lJep., Ex. 3, at 20. 

Plaintiffs 2002-03 dossier, however, lists that same essay as appearing at pages 287-304 

of La Querelle: His/orie, e/hnologie, linguistique, IilterClfure, a book published by Presses 

de l'Universite de Reims-Champagne-Ardenne. Waggaman Dep., Ex. 16, at 34. How the 

article morphed from 12 pages in 2000-01 to 18 pages in 2002-03 is not clearto the court. 

What is clear is that Ellis's recitation of the [Irticle's length was correct per plaintifrs 

2000-01 dossier. It should also be noted that the sentence that includes Ellis's recitation 

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of the article's length in his 2002-03 report appears to be nn exact cut-and-paste oUhal 

very sentence in his 2000-01 report. Compare Waggaman Dep., Ex. 7. with Waggaman 

Dep., Ex. 19. From this, a jury could readily concludt: that Ellis had not noted the 

pagination chnnge in the 2002-03 dossier. It would be unreasonable, howt:vt:r, to vit:w 

this oversight as evidence of some untoward motive. The court cnn find nothing in 

Waggaman's 2002-03 dossier, or any other materials from the 2002-03 promotion 

process, highlighting the pagination change or the length of the article. Thus, ou this 

record, the only thing nilis had that would have alerted him to the change in the article's 

asserted length was the pagination entry in tht: 2002-03 dossier. Inferring willfulness 

from Ellis's fnilure to pick up on such a subtle alteration would strdch the imagination 

too far. 16 

It is true that Ellis, like the college and university committees, appears to have 

been bothered by a comment from outside reviewer Byron Wdls lhat Waggaman's 

scholarship l"ailt:d to grapple with recent notable works in her field. PI. 's Ex. 9. Whik 

Waggamnn's nppeal explains in great detail why she disagrees with this assessment, nnd 

IG The court is uncleur on whether the article itself was submitted to Ellis, and. if so, in 

what fonnat (or formats, iftbe fonnat ofthc 2000-01 submission varied tfom the format ofthe 

2002-03 submission). Had plaintiff submillcd the article itself ~s part ofthe record here, the 

court could count the pages tor it.selLmd determine whether any inference ofwillful ness could 

properly arise from Ellis's miscounting, ifindeed he did miseount. Rut no snch evidence appears 

in this fl~eord. It is plaintiffs obligation. when opposing summary judgment, to submit to the 

court evidence showing the existence of a genuine dispute ofmaterial fact. Here, given the 

materials submitted, the court can find no legitimate dispute as to whether Ellis willfully 

misstated the length ofplainlilrs article. 

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while Waggaman correctly notes that memhers of the departmental committee apparently 

were not bothered by Wells's critical comments, the court cannot fault Ellis, or the 

college or university committccs, for bcing concerned that an external reviewer criticized 

the quality ofplainlifl's work. Indeed, the faculty handbook states that one of the 

qualifications for promotion to associate professor is "publication in media of quality and 

signilieance as judgcd by the staff member's collengues and others in the field." 

Waggaman Dep., Ex. 42, at 318 (emphasis added). Plaintiffs argument, however. seems 

to be that Wells's criticisms were accorded too much weight in light of the fact that those 

criticisms were not repeatcd by other reviewcrs or by members of plaintiff s department. 

But it is not within the L'ourt's or the jury"s purview to redetennine how much weight thc 

various proper ingredients into Villanova's decision should have reccivcd. Wells, a full 

professor of Romance languages at a prestigious institution and an apparent expert in 

plaintiffs field of study, articulatcd cogent and relcvant criticisms ofplaintiffs work. 

Ellis and the college and university committees, not being Fn:nch scholars, were entitled 

to take note of his criticisms, and for those criticisms to be ingredients in a decision to not 

rceommend promotion. There is nothing untoward about the various decision makers 

refusing to discount Wells's criticisms simply because they were noL echoed by other 

reviewers or plaintiffs colleagues. The university may well solicit the views of multiple 

reviewers on the assumption that they will seize on different aspects of a candidate's 

work, and that one reviewer might notice a prohlem that another docs not. That Ellis and 

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others were bothered by Wells's criticism docs not give rise to any inference that their 

reasoning was disingenuous. 

Waggaman <.;omplains that Ellis set a "moving target" for the amount of scholarly 

production required. After the 2000-01 denial, Waggaman was ac..Jvisec..J to resume 

participation in academic conferences. Dcf.'s Ex. E. Tab 4. She did so by presenting two 

papers. Ellis and the college imd university committees were not satisfied hy this alone, 

and. in denying promotion in 2002-03, encouraged plaintiff to tum those papers into two 

additional refereed publications. Dcf.'s Ex. E, Tab 6. This moy not constitute 

Waggaman's claimed "moving target," though. Close reading of the various reports 

reveals that, in considering her 2000-01 application, the cOllege committee, Ellis, and the 

university <.;ommittee all recommended that Waggaman continue publishing in addition to 

resuming regular conferen<.;e parti<.;ipation. Def.'sEx. E, Tab 4. at 371 (college 

committee recommending that Wnggaman publish in journals ac<.;essihle to American 

s<.;holars and expand and strengthen her arguments), id. at 373 (Ellis recommendation 

noting that the college committee woulc..J like Lo see more puhlications), id. at 377 

(university committee recommendation noting weaknesses in publication record as well 

as conference-presentation record). Thus, Waggaman was on notice that she would he 

expected to continue publishing and resume conference participation. In light ofthe 

2000-0 I reports, she can claim no inconsistency in the dean and <.;ommittees' declining to 

recommend promotion in 2002-03 given that she had not published anything new. 

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Waggaman has identified several reasons why Ellis's reasoning could be viewed as 

inconsistcnt or not crcdiblc. On cxamination, howcvcr, it docs not appcar that any of the 

problems she identifies are ones that could support a fair infcrcncc of causation. At most, 

she has identilied room for reasonable persons to disagree as Lo Waggaman's 

qualifications, which is insufficient to defeat a motion for summary judgment. 

5. Retaliatory animus 

Direct evidence of retaliatory animus can satisly the causation element ora 

plaintiff's prima facie case. Marra, 497 F.3d at 302. On this record, however, there is no 

such evidencc. It is true that Inati tcstificd that Ellis was upset at her for suing the 

university. Pl.'s Ex. II, at 83. But there is no evidence of Ellis acting on his emotions in 

noy mnnner other thrln ceasing to be friends with Inati. Cutting off a social friendship 

because of a disagreement is very different from taking retaliatory action against an 

employee, and it is not dear that the former would raise a fair inference ofthc latter. 

More importantly, however, with no record evidence that Ellis knew of Waggaman's 

protected activity. his alleged annoyance with Inati cannot be causally connected to any 

adverse action against Waggaman, the plaintiff in this case. 

There is no evidence ofrecord of anyone else connected with the promoLion 

decision being unfavorably disposed toward Waggaman because of her protected activity. 

Moreover, the only other evidence of retaliatory treatment at Ellis's hands-Omran's 

complaint about his courses being cancelled-is too undeveloped to be of value. Nothing 

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submitted to the court suggests that Ellis knew of Omran's involvement in the Inati suit, 

thus precluding a finding that Omean's role there bore some relation to the cancellation of 

Omran's conrses. Tn addition, with no evidem:e on reeoed about the standards or practices 

associated with course cancellations, it would he difficult to conclude, on the short 

excerpt submitted, see Pl.'s Ex. 13, at 2], that the cancellations were somehow wrongful 

or retaliatory. 

Thus, the court concludes that there is no evidence of retaliatory animus on record 

that could causally connect Waggaman's protected activity and the decision not to 

promote her in 2002-03. 

6. Differential treatment 

Causation may also be established by showing that the employer treated the 

plaintiff differently Irom those similarly situated. Marra, 497 F.3d at 302. To 

successfully aver such treatment, a plaintiff must show that her comparators are similar in 

all relevant respeels. Singh v. Wal-Mart Stores, Inc., Civ. A. No. 98-1613, 1999 WL 

374184 (ED. Pa. Jun. 10, 1999), qlTd 225 F.3d 650 (3d Cir. 2000). 

At the time of her 2002-03 application, Dr. Waggaman's record stood as follows. 

She had been at Villanova for fifteen years. and had been tenured for nine. In that lime 

she had published one book based on her dissertation (1992), one book chapler (1999), 

three to five re!ereedjoumal articles (2000,1997,1995,1990,1987-88)," four refereed 

17 The college committee only counted three refereed publications, since two of the 

articles listed were in the Journal ofPatristic, Medieval, and Renaissance Studies, a Villanova­

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conference proceedings (1992,1988 (3)), and eighteen conference presentations (mix of 

national, regional, and university-level). Waggaman Dep., Ex. 16. 

Wht:n (;omparing Dr. Waggaman's dossier to those of other applicants for 

promotion, it is to be noted tl1..t, at the time of her 2002-03 applkation, Dr. Waggaman 

had been on the Villanova faculty substantially longcr than U1C typical applicant for 

promotion to associate professor. 

The closest compamtor appears to be Dr. A,18 a longtime assistant professor of 

French, who was promoted to associate professor in 2001-2002. Dr. A was hired ras an 

assistant professor in 1981 and tenured in 1987. At the time of her 19 promotion, Dr. A 

had puhlished one book not based on her dissertation (2002), one book chapler, two 

refereed articles, one book review, and thirteen conference presentations. See Redacted 

File lor Dr. /I, at 01147-50. 

Dr. A's application was somewhat controversiall at least at tht': university level. 

Sht': applied in 2000-01 and received the recommendation of her dep~rtment, department 

chair, the college committee, nnd ElIls (though in somewhat equivocal terms). All 

based journal published following em annual conference. See Waggaman Depl Ex. 6. The 

ulliversity is entitled to decide what journals are considered of sufficient quality to count a!> 

refereed journals. Since Waggaman has not pointed to any cases in which the university has 

viewed that publication differently. the court cannol consider Villanova's treatment of the journal 

as probalive of noncredible reasoning on its part; rather, it appears to be a permissible exercise of 

the university's aeadcmie judgment. 

19 Thi!> is, of course, the same Dr. A referenced in Part IU.AA, supra. 

J~ For reasons stated in note 14 supra, the court uses feminine pronouns for all 

comparators. 

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acknowledgcd that Dr. A's scholarly output was small, but believed that her book. a 

translation of correspondence between two important French writers and philosophers, 

including a translation of the original french annotations and the addition of some new 

annotations, was important enough to make up for the gaps in production. See id. at 

1127, 1129. The university committee, however, declined to recommend promotion by a 

2-9 vote, and Dobbin concurred. Jd. at 1602. The two members who voted in Dr. A's 

Cavur commented that her case was not strong-indeed, one wrute that she "minimally 

meets the criteria for promution," and the other observed that her "research is not al a 

superior level." Id. Those voting againsl all commented on Dr. A's IDCk of scholarship. 

Id. 

Dr. A applied fur promotion again in 2001-02, primarily on the grounds that her 

book had actuDlly been published (as opposed lu merely bcing accepted for publicatiun) 

and that outside reviews of her book had been received. This time, the university 

committee recummended promotion by a vote of 7-4. Id at 1212. Several members who 

voted in favor of the application commented thal the outside reviews cltlrified the 

scholarly character and quality of her book. Id. Others opined again that thc application 

was sufficient, butjuSl barely. id. (e.g., "rDr. A's] case is not a strong one."). Thc 

negative voters commented that the book, though scholarly, was not enough to make up 

for Dr. A's Iimitcd scholarly output. Id. (e.g.. "Although the ... translation is a good 

piece of scholarship - il's very meager."). 

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The comparison between plaintiff and Dr. A presents, on the one hand. plaintiff s 

small but more steally prolluetion of short journal articles and conference presentations 

with Dr. A's production of a substantial work of scholarly translation after several years 

ofless regular scholarly activity. The court cannot regard this comparison as one IhaL 

gives rise to a fair inference of ditl"erential treatment To do so would be to allow the jury 

to delve into weighing two different, but not manifestly mismatched. bodies ofs<.:holarly 

work against one another, which is exactly the sort of thing that a jury-silting as a trier 

or fact and not as a super-personnel department-may not do. Cf Brewer v. Quaker Stale 

Oil R~f Corp., 72 F.3d 326, 332 (3d Cir. 1995). Dr. A also received her promotion by a 

very close margin. This does not support an interen<.:e thaL plaintiff, also a marginal 

candidate, fa<.:ell differential treatment. 

Another comparator is Dr. R, a Spanish s<.:holar who was granted tenure and 

promotion LD associate professor in 1998-99. At the time of her promotion, Dr. B was in 

her seventh year ofteaching (fifth at Villanova), and had published one book based on her 

dissertation, two refereed journal articles,21J three invited articles, two edited texts, Dnd 

20 Waggaman takes issue with Dr. 8's assertion, in her dossier, that Allegorica, a journal 

ofmedieval and renaissance studies, is peer reviewed. Dr. B slated that Allegorica was the top 

Americnnjournal for medieval and renaissance sLudies, and that it was blind peer reviewed. See 

Redacted File for Dr. R, at 2152. She further claimed to have submitted with her dossier an 

explanation from the journal of the its review process. ld Unfortunately, the appendix of Dr. 

B's dossier was not submitted to Lhe l;ourl. Plaiutiff, however. at Dr. Hones's deposition, 

produced an internet printoul from the MLA Directory of Periodicals that lists the journal as not 

peer reviewed. PL's Ex. 6, at 102-03. 

For purposes of this motion, it is enough to note that, at the time of Dr. B's application, 

no one seems to have disputed her contention that Allegorica was a pccr-rcvjewedjournal. If 

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seven conference proceedings; in addiLion. she had madc sixteen conference 

presenLaLions. Plaintiffcmphasizes that Dr. B, at the time of her promoLion, had only one 

or two retereedjoumal articles. But she also had three invited articles, which, it appears, 

some of the committee members viewed as important signs of scholarly development,21 

had been very active in presenting at conferences, and had already published a book that, 

accon.ling Lo some, reviewers. substantially added to her dissertaLion. See Redacted File 

for Dr. B., at 2154, 2179, 2181, 2183. Given thal Dr. B had only been teaching for Seven 

years aL the Lime of her application-as opposed to Dr. Waggaman's fifteen years at the 

time of her 2002-03 application-it eaMot be said that the university's <.It:lenninatioll that 

Dr. B's scholarly prm]ucLion qualified for promotion in any way undermines iLs 

determination that Dr. Waggaman's did noL. Moreover, it must be noted that the external 

revie","s of Dr. B's sebolarship \....ere effusive in their praise for both the importance of her 

\....ork and the quantity produced in a relatively short academic eareer. Jd. at 2155-58, 

indeed it is not peer reviewed, then perhaps this is something the departmenl should hlwe found 

out-though iL should be noted thnt the department chair claimed lo have verified thnt the journal 

was peer reviewed. Redacted File for Dr. B, at 2177. At all events, without evidence that 

anyone purposefully overlooked the nalure of the journal, it must he assumed that the various 

committees in good faith considered the article flS though it had been published in a peer 

reviewed journal. 

Zl The Department of Classical and Modern Langnages Department's rank and tenure 

policy states as follows: 

[Wjhile we lend to [fIte peer-reviewed (refereed) publications more highly than 

invited ones, we do nat presume to say that invited work is a priori inferior. The 

invited essay. often allotted to a leading experl in the field, can indeed be a matter 

of prestige; it represents the favorable judgment of one's colleagues, which is 

itself a touchstone of scholarly proficiency. 

Pl.'s Ex. 7, aL 3. 

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2164-68. In sum, the university's treatment of Dr. I3' s application simply cannot support 

plaintitTs contention that its reason for not promoting plaintiff'''as not credible. 

Dr. C, a Japanese and Chincse scholar, was prol'noted from assistant to associate 

professor in 2003-04. At the time of her application, Dr. C had published one book based 

on her dissertation, seven refereed journal articles, two refcreed conference proceedings, 

three invited articles, and two abstracts, had submitted two additional articles to peerreviewed joumals, and had presented at twenty-two conferences. Redacted File of Dr. C, 

at 2208- I6. Thc thrust of plaintiffs argument with regard Lo Dr. C is that many of Dr. 

C's articles were published in peer reviewed journals oflimited distrihution, whereas 

plaintiffs articles were published in journals of wider distribution. The court does not 

helieve that plaintiff points to territory into which a jury may wander when considering 

disparate treatment. The "core facts" regarding Dr. C as compared to plaintiff are not in 

dispute, 'f Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005): Dr. C had more 

publications in pccr-reviewedjournals in a slightly shorter academic career, more 

conference presentations, more invited articles, and excellent external reviews of her 

work (with particular emphasis on the rarity oCa scholar capable of reading and 

intelligently comparing classical Chinese literature to medieval Japanese literature, see 

Redacted File of Dr. C, at 2408, 2413). All that is in dispute is what weight the various 

dccision makers should have given to those core facts, and neither the ADA, the 

Rehabilitation Act, nor the PHRA, empowers the court or the jury to make that sort of 

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decision. 

The parties bring up Dr. D, a poet, who was both tenured and promoted to 

associate professor in 1999. The court does not regard Dr. D as a useful compJrator, 

since her primary output was poetry, see Redacted File for Dr. 0, at 3935, which neilher 

the court nor the jury is in any position to compare with Dr. Waggaman's analytic 

scholarship with a view to detennining diff't:rentiallreatment.22 

The court has now reviewed all of the compamtors from the classical and modem 

languages department 1'laiutiff points to ten additional comparators outside the 

department. The court will address those comparators, but, before doing so, it must be 

ueled that comparisons between members of ditlerent departments are of diminished 

value. Comparisons between members of the classical and modem language." department 

are facilitated by the fact that memhers orthe department, as a gcncral matter, produce the 

same kinds of scholarship and are bound by n relatively common sd of expectations 

reflected in the departmental guidelines for tcnurc and promotion.2J See PI.'sEx. 7. 

Comparisons bctween members of different departments, however, becomc more 

n It should be mentioned, however, that Dr. D appears to be a poet of some consequence. 

The college cummit(ee called her '-a poet ofintemational stature," Redacted File for Dr. D, at 

3986; Ellis observed that "[b]ooks and articles have been "mtten about" her, id. a13991 

(emphasis in original). 

2j This is not always the case. For example, Dr. D's primary scholarly output was poetry. 

As noted in the lext, poetry is so uulike the analytic scholarship that has heen the mainstay or 

plaintiff's career thaI comparing hel" dossier to Dr. D's in the context of this litigation is not 

feasible. 

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problematic because different disciplines engender different types and quantities of 

seholarship.24 This is not to say that the comparison is necessarily impossible; it is merely 

to say, as a preface to considering whether a proffered comparison gives rise to a 

reasonable inference of di t'len:ntial treatment or disingenuousness on the part of the 

university, that some allowance must be made for the natural dilTerences in disciplines 

and the type and amount of scholarship deemed sufficient. In short, there is some sense at 

the outset that these comparators arc less "similarly situated" than the first gronp.25 

24 The eourt has not been provided with the guidelint:s on It:nure and promotion for any 

departmt:nt other than the classical and modern languages department, making comparators from 

outside that departmenl particularly difficult to eVflluate. 

2~ Villanova has advanced thc argumt:nl thal all ofthcsc proffered comparators should ht: 

ignored because of their dissimilarity to plaintiff. Tht: \,;Qurt acknowledges thflt, as a general 

matter, differential treatment may only be demonstralt:d through compflrisons with persons 

similarly situated with rcspt:d to pt:rfonnancc, qualifit:ations and conduct, and 

that the rekvant aspects of LtheirJ employment situation were nearly identical to 

[the] alleged comparator[s]. Such a showing nonnally entails establishing that the 

two employt:es dealt with the same supervisor, were subject to the same standArds, 

and had engaged in similar conducl without sueh differentiating or mitigating 

cin;umslam.:es as would distinguish their conduct or the employer's treatment of 

them. In addition, the [p]laintiffmust establish that the similarly situated 

employees were treated more favorably at the time of the alleged djscrilllinfltioll 

against [her]. 

Ken' v, Bd. ofTr. ofPurdue Untv., 428 f.3d 620, 624 (7lh eir. 2006) (intcfllfll citations and 

quotation marks omitted, first three sets of brackets in original). 

There is considerable weight in the defendant university's argument that, once ont: leaves 

the bounds ofthe same a(;ademic departmcnt, and further once one strays from decisions made in 

lhe 2002-03 academic year, the similArities in terms of standards, t:xpectations, and decision 

makers becomes too attenuated to he of any use. Ultimately, however, the court is of thc vicw 

that the compamtors should be considered because they, along with plaintiff, were all subject to 

the promotion criteria set forth in the university faculLy handbook, and because, though many of 

the individual decision makers changed, the prt:scnee of Ellis, Johannes, Dobbin. and several 

members ofthe college and univcrsity committees was constant. These similarities are enough lo 

at least mcrit an examination of plaintiffs proffered comparators. 

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Plaintiff identified Dr. E, a historian who was tenured in J999 and promoted to 

associate professor in 2000-01. At the time of her promotion, Dr. E hnd published one 

book based on her dissert(ltion (which was nominated for an award by a national literary 

organization), three refereed journal articles, two book chapters, nnd four not-peerrevie\ved nrticles, and had presented at seven conferences. PI.'s Supp. Exs" at 2467-69. 

The college committee also noted thnt one of her most recent conference presentations 

was the starting point for a new and substantial project. Id. at 250&. The department 

chair noted that she had another article in manuseript fonn, nnd that external reviewers 

had proised it as an original work of scholarship. 'd. at 2506-07. All told, Dr. E's dossier 

docs not look substantially different from plaintiffs in tenns of quantity of scholarship, 

except that Dr. E's dossier retlel:ts eight years of work, whcrcas plaintiffs reflects fifteen. 

But Dr. E's book was nominated for whnt nppears to be a prestigious award. In addition, 

what apparently made Dr. E's application compelling is not just her current output, but 

the fact tbat she bad embarked on a focused research program that WaS expected to yield 

scholarly dividends for some time. Nothing in the commentary on plaintiffs 

application---even from those favorable to her-seems to reflect this sort orscholarly 

focus or expectation for future work. Given these diffcrences, mnny of which would 

seem favorable to Dr. E's application as compared to plainlilT's, the court docs not 

believe that a reasonable jury could draw a fair inference of differential treatment or 

noncredible reasoning on the part ot'the university. 

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Dr. F, a theology scholar, was tenured and promoted to associate professor in 

199X-99. At the time of her promotion, Dr. F had published one book based on her 

dissertation, five refereed journal articles (four of which were in press at the time of 

application). three book chapters, and three refereed conference proceedings, and had 

presented at thirteen conferences. Id. at 38]9-20, 3834-36. It is important to note that Dr. 

F's seholmship, though similar in quantity to plaintiff's, was produced in about half the 

time. Plnintiff asserts that the three-year gap bdween Dr. F's 1996 articles and ber four 

1999 articles was not held against her, but that the gap is explained in the departmental 

committee report, wbich slales that "articles 'iu press' have, in several cases, been 'in tht: 

pipeline' for some time as a result ofthe slowness with which submissions reach print in 

somejoumals." Jd. at 3865. Put simply, Dr. F's record of publication included an 

extended dry-spell which was then followed by a publication glut. and this was traceable 

not to shortcomings on the part ofDr. F bUI to tbe quirks ofjournal publication schedules. 

Though plaintiff experienced several gaps in sCbolarship, the court is unable to ideutify 

[lny ensuing glut tbat would bt: similarly explainable; more importantly, no explanation 

seems to appear in plaintiffs dossier.26 The court sees nothing in the comparison 

between Dr. F and plaintitIthat would raise a fair inference of differentialtrt:atment or 

,11 In her appeal, plaintiff stated that one her articles published in 2000 was ready for 

publication in 1999, but publication wa~ delayed for reasonS beyond her I,;vnlrol, see Waggaman 

Dep., Ex. 10, at 9. Even taking this as true, there is a one-article ditference betVt'een the threearticle glut at the end ofDr. F's three-year gap, and the two-article glut at the end of plaintiff's 

three-year gap. 

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noncr~dibl~ r~asoning on th~ part of th~ univ~rsity with regard to its assertion that 

plaintiffs publication record was considered insut1icient. 

Dr. G, also a theology scholar, was promoted to associate professor in 2000-01. At 

the lime or her promotion, she had one monograph in press, three journal articles (one of 

which was in press), one book chapter, three refereed conference proceedings, one 

encyclopedia entry, two invitcd electronically published studies as part of an ongoing 

working group, and two long book rcvicws. and had prcsented at twelve conferences. Jd 

at 8530-33. Dr. G's scholarship record rellecls only live-and-a-halfycars of post-doctoral 

work. The department chair attributed the speed with which Dr. G became an important 

scholar in her field to tht: J'act that she had many ycars ofprofcssional experience dealing 

with hcr suhjcct prior to commencing formal doctoral work. Jd. at 8562. Indeed, the 

amount of scholarship product:d in a relatively short amount of tilnc was noted by the 

decision makers at all levels, as were the comments of the extemal reviewers, which were 

thought to be markedly et1iJsive. Jd. at 8557, 8562, 8565, 8567, 8569. As with Dr. F, Dr. 

G's dossier is broadly comparable with plaintitl'''s in terms of the quantity of scholarship, 

hut Dr. G's record reflects only five-a.1ld-a-halfyears of work, as compared to plaintiffs 

fifteen. Thus. nothing in Dr. G's record, as compared with plaintiffs, allows for a fair 

inference of differential treatment or noncredible reasoning on the part of the university. 

Dr. H, an English scholar, was promoted to assOl:iate professor in 2001-02, after 

seventeen years of post-doctoral teaching (twelve of them at Villanova). At the timc of 

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her promotion, Ur. H had published two books (one of which was in press and supported 

by a National Endowment for the Humanities grant), five refereed articles, four book 

chapters, and one refereed conference proceeding, and had made twenty-six conference 

presentations. Id. at 7786-91. PlaintilTnoles that the various dedsion makers did not 

take issue with the gaps in article publication present in Dr. H's dossier. Dr. H, however, 

in addition to compiling a journal-article record similflf to pillintiff s, published a book 

unrelated to her dissertation that garnered high praise, See, e,g" id at 7841, 7845, It 

would seem permissihle for the university to determine that Dr. Irs work on her book 

more than made up for any gap in joumal-nrticle publicntions. Thus, in the court's view, 

a comparison between Dr. H's record and plaintiff's cannot yield any reasonable 

inference of differential treatment or noncredible rensoning. 

Dr. T, an English scholar, was promoted to associate professor in 2001-02, after six 

years of post-doctoral work. At the time of her promotion, she had published six refereed 

articles (three of which were in press) and two hook chapters (one ol'which was in press). 

Id at 7506-10. In addition, she had made nine conference presentations, and represented 

thDt she was four ehDpters into writing a book. Id. She had also submitted an additional 

article to a peer-reviewed journal. Id. The departmental and college committees 

observed that Dr. I explained persuasively her decision to publish a series of refereed 

articles bef()re finishing her book, and expressed confidence, based on her record, that her 

book was indeed well under way and would be finished before long. Id. at 7536-38, 

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7541. Given the quantity of academic work that Dr. I produced in a relatively short 

pt:riod of time, and the universal praise [or its quality, the court docs not belicvc that it 

would be reasonable, on comparing Dr. I's record to plaintiffs) to draw any inft:rence that 

the university was disingenuous in its assessmenl that plaintiff's scholarship record was 

insuflicient to warrant promotion. 

Dr. J, a religious education scholar. was promoted in 2001-02 aftt:r fourkt:n-afuJ-ahalf years of post-doctocal work. At the time of her promotion she had published her 

dissertation as a book, five monographs (disseminated by the commissioning 

organizations, apparently not published in the traditional sense), eight rt:H:reed journal 

articles (w'ith two additional articles drafted and submitted), two book chapters, and three 

invited articles. fd. at 7071-76. Sht: had also made thirteen conference presentations and 

twenty invited lectures. Id. In addition, Dr. Trepresented thai she was thrt:t: chapters into 

writing a book. Id. Plaintiff faults the college committee for not distinguishing hetwt:en 

work completed before and after tcnure was granted in 1995. But this criticism seems 

inaccurate. In fact, the college committee did nott: a slight gap in publications bctween 

1994 and 1996 (during which tenure was granted), but further observed thal the 

publications picked up again in 1997 and continued to the time of promotion. Id. at 7160. 

In addition, the college committee pointed out that she was working on a hook and that 

she had madc important contributions to the National Conference of Catholic Rishops and 

to Catholic-Jewish dialog. Id. Vit:wt:d as a whole, the short gap notwithstanding, the 

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various decision makers believed her record of scholarship sufficient to warrant 

promotion. In tenns of pure quantity. Dr. J appt:ars to have produced more scholarship 

than plaintiff; moreover, it was noted th[lt Dr. J had established herself as a national 

authority in the field of religious education. Id. llast:d on the apparent quantity and 

quality of Dr. J's scholarly rt:cord. the court cannot determine that the comparison 

between Dr. J's record and plaintiffs gives rise to a fair inference of noncredible 

reasoning on the part of the university. 

Dr. K, a philosophy scholar, presents a record that is difficult to evaluale. At the 

time of her promotion to associate professor in 2002-03 (concurrent to Dr. K being 

granted tenure). she had published four referccd journal articles (onc of which was in 

press) and two rdereed conference proceedings. ld. at 690R-l O. She also had two 

rdert:t:d conlerence proceedings in press, one invited article in press, and one scholarly 

urticle in press with a non-peer-reviewed journaL Id. She had madc fourtccn conference 

prcscntations and given three invited papers. Id. She reprt:st:nted that she was working 

on a book manuscript and an invitedjoumal article. Id. Dr. K's application for 

promotion was controversial at u1l1evels. In particulur, the college committee, though 

recommending Dr. K for tenure, did not recommend her for promotion. Id. at 6954. On 

the scholarship criteria, the committee voted 3-4 against her. Id. The committee noted 

that she had demonstrated a commitmcnt to scholarly publicatiou but, because of a 

relatively late start-her 1irst rdt:rt:t:d article appeared in 2000, some four years after she 

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arrived at VilIfmovfl-was insufficiently developed to warrant promotion. lei. Ellis 

concurred in that assessment, and recommended Dr. K for tenure but not promotion. lei. 

at 6956 & 6958. The university committee, however, voted 6-5 in favor of promotion, 

and Dobbin accepted its recommendation. lei. at 211 L In their comments, commiuee 

members appear to have relied on the overwhelmingly positive comments from the 

externnl reviewers regarding the y'ualily of Dr. K's scholarship, which was thougbt to 

make up for her relative lack of quantity. ld. Indeed, according to the departmental 

committee report, some ofthe external evaluators expressed interest in having Dr. K in 

their department. Id. at 6945. 

What apparently struck those voting in favor ofDr. K's promotion was her ability, 

once she overcame tbe doldrums of her first few post-doctoral years, to produce a good 

amount of very high quality scholarship in a very short period of time. ld. at 2111. This 

apparent burst of scholarly energy seems to have convinced just enough voters that Dr. K 

had embarked on a program of research that would make her a productive scholar for 

years to come. Dr. K~s wave of productivity also distinguishes her dossier from 

plaintiffs, whieh docs not seem to reflect the same sort ofstrong upward trend in 

scholarly production. Moreover, in terms of pure quantity, after taking into account that 

Dr, K was only seven )'ears removed from her Ph.D., as compared to fifteen for plnintiff, 

it does not appear that plaintiff can claim j) higher rate of scholarly production than Dr. K. 

Nothing in the comparison of Dr, K's record, which squeaked tbrough the promotion 

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process, to plaintiffs, which did not, reveals the sort of contradiction, objective 

wcakness, or implausibility on which a jury could rely in finding the university's 

reasoning with regard to plaintiff not credible. 

Dr. L, a historian, was granted tenure and promoted to associate professor in 2002­

03, after six years of post-doctoral work. At the time of her promotion, Dr. L had 

publisbed one book based on, but a substantial reworking of an elaboration ot~ her 

dissertation as well as two refereed journal articles. Id. at 7012-15. One of her articles 

won on aword for being the best article published in the top journal in her field in 1999. 

Id. She also gave nine conference presentations and seventeen invited lectures. Id. Dr. L 

claimed to be working on two new research projects, each of whicb she expected to 

eugender a book and multiple journal articles. Id. Plaintiff appears to contend that her 

level ofscholorship clearly exceeded Dr. L's. But Dr. L's scholarship, like Dr. A's, 

included a book that, though somewhat based on her dissertation, was unifonnly thought 

to be (l) a substantial reworking and expansion of her dissertation, and (2) a particularly 

notable work. Id. at 7048, 7051, 7053. In addiliou, Dr. L'sjournal articles were 

adjudged to be of markedly high quality, with one winning a prestigious award. Id. 

Given Dr. L's conference and invited lecture activity, and given that her book appears to 

have been a very substantial undertaking, and given that Dr. L's record is based on only 

six years of work, it is not clear that, even were quantities alone a useful means of 

comparison, plaintiffs productivity could be considered superior. Moreover, Dr. L's 

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record seems to have been thought to be of markedly high quality, and was accompanied 

by a program of tuture research that was thought to he coherent and productive. These 

factors distinguish Dr. L's record from plaintiffs, and effectively prevent a reasonahle 

jury from drawing a fair inference that the university was disingenuous in its assessment 

that plainti1f's scholarship record was insufficient for promotion. 

Dr. M, an English sl:holar. was tenured and promoted to assoeiate professor in 

2004-05.27 This decision wns somewhat controversial, inasmuch as one memher of the 

departmental committee, a slight 3-4 majority ofthc collegc committee, nnd one member 

ofthe university committee opposed tenure and promotion on the ground that Dr. M had 

not produced surticienl scholarship. Id. at 21 06, 5665, 5672. At the time of her 

promotion, Dr. M had one ediled manuseript in press. olle refereed journal article, two 

book chapters (one of which was in press), two articles submitted for publication to 

refereed journals, four conference presentations, nnd eight invited lectures. Jd. at 5638­

42. In addition. she had received a Ford Foundation fellowship to support her research, 

and represented thnt she had two ml~jor research projeets under way. Jd. Dr. M's edited 

manuseripl was a nineteenth century document that was unpublished and obscure nntil 

Dr. M uncovered it in her arehival research, recognized its value, and undertook to 

annotate and publish it. Jd at 5662. Most members of Dr. M's department agreed that 

27 It appears that, by 2004-05, the heretofore separate tenure and promotion processes 

were fonllal1y combined in such a way that each committee member. rather than casting a tenure 

vote and a promotion vote, cast a single vote lor or against tenure and promotion. 

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the process of rediscovering and annotating a previously little known, but ultimately 

valuable, manuscript is an arduous task involving far morC work than thc finished product 

would suggest. Id As to the value ofthe manuscript itself: one ofDr. M's external 

reviewers labeled it "one of the most significant finds ... in the last 10 years" in Dr. M's 

field. Id The departmental committet: recognized that Dr. M had not bccn as prolific in 

producing scholarship i'lS an ideal candidate might be, but conduded Lhat she had 

produced a small but significant body of scholarship and was very much on track to 

continue producing high quality scholarship at an acccptable rate. Id at 5663-64. A 

slight majority of the college committee, however, took a ditTerenl view, arguing that her 

one manuscript was nol entirely finished, and that, as a whole, Dr. M's scholarly reeord 

did not support tenure/promotion. ld. at 5672. Ellis agret:d with the departmental 

committee, nrguing that the scholarship produced was orhigh quality and that Dr. M 

filled a teaching and service niche that was previously unfilled-and was difticult to 

/ill-at Villanova. ld. at 5676-77. Given her distinctly vnIunbIe contributions to the 

university's teaching, and given her small but high-quality body of scholarship, Ellis 

recommended in favor of tenure and promotion. Id 

Plaintiff argues that Dr. M is a probative comparator because the quantity of 

scholarship reflected in Dr. M's dossier is substantially les.'\ than that retlected in 

plaintiffs, thus casting doubt on the university's assertion that plaintiff did not produce 

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cnough scholarship for promotion. Plaintiffs C1rgument has two problems. 

foirst, it is not clear to the court that the diffcrcncc bctween Dr. M's n:cord and 

plaintiff's is substantial cnough to support a fair inIerence of noncredible reasoning. To 

be sure, Dr. M produccd only a relatively small budy of scholarship in her six postdoctoral years. Dr. M's manuscript, however, was not based on her dissertation (thus, 

under Villanova's criteria, it carried more weight than plaintiffs book), her participation 

in conferenccs and invited lectures set:med to outpace plaintiff s, C1nd her production of 

book chapters was the same (except that Dr. M's wcrc produced over the course of six, 

not tiftccn, years). In light ofthest: aspects of scholarly production in which Dr. M seems 

to compare favorably to plaintin~ the court is not convinced that Dr. M's failure to 

produce as many refereed journal articles as plaintiff (one in print with two submitted, 

versus three to five C1IreC1dy in print) makcs plaintiffs dossier elearly superior. 

Second, and pcrhaps more importantly, tht: dt:cision makers voting in Dr. M's 

favor gave plausible justificC1tions for their acceptancc ofhcr relatively thin scholarship 

record. For one, hcr cdited manuscript was thought to be a more substantial contribution 

than is typically made by a junior faculty member-both in terms of the "finding" ofthc 

manuscript and the quality of the anootC1tions. For another. it was noted that she had put 

forward C1 continuing research program that was thought to bt: coht:rent and suhstantial, 

thus demonstrating that her scholarly productivity would continue to improve. For yet 

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another, it was thought that her teaching and service-and particularly her 

teaching-were so impressive as to balance out her modest but high-quality scholarship 

£Ind, as a whole, to recommend in favor oftenure and promotion. These are justifications 

that make sense in light of the university's published criteria, particularly since the 

university claims to emphasize teaching, Waggaman Dep., Ex. 42, at 10 ("Villanova has 

traditionally given and conlinues to give priority to teaching ability."). They also are 

justifications that, it would seem, \vere not thought to apply to plaintitrs application.28 

Because any differential between Dr. M and plainliff, based on their respective scholarly 

records. is cogently explained by the various decision makers, it \\'ould not be reasonable 

to draw from the comparison any inference of noncredible reasoning on the university's 

part with regard to its assertion that plaintiffs record was insufficient for promotion. 

Dr. N, a historian, was tenured and promoted to associate professor in 2004-05 

after six years of post-doctoral work. At the time oj' her promotion, she had one book in 

press, two rel'ereedjournal articles. two invited biographical entries in press, five 

conference presentation.1i (all at national or international conferences), and eight invited 

28 Plaintitf's external reviewers, though positive in their evaluations, appear not to have 

claimed that plaintiff had made the kind of namc for herself, or that she had produced a work of 

as much substancc, as the Dr. M's reviewers claimed for Dr. M. Plaintiffs dossier does not 

appear to contain any explanation of her future research plans; it certainly does not conlain the 

sort of detailed explanation of ongoing projects that Dr. M's contains. While plaintilT's tcaching 

reviews were positive, her department does not appcar to portray her as the sorl ofuniquc1y 

valuable and highly gilted teacher that thc English dcpartmcntjudged Dr. M to be. 

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lectures. PI.'s Supp. Exs., at 4995-98. In addition, she hod received severol fellowship 

and grants to support her work. Id. She had also embnrked on a detailed new research 

projCL't; in furtherance of that project, she had secured one gr£lnt to aid in funding and had 

presented preliminary findings at a national conference. Id. 

Plaintiff argues that Dr. N was promoted despite her scholnrly record being, at 

least in terms of"quantily. inlerior to plaintiffs own. The court cannot agree. The college 

committee appenrs to have determined that Dr. N's book. though ostensibly based on her 

dissertation, was almost (,'ntircly new work, and thus, according to Villanova's stated 

policy, of substantial weight (and. it would seem, of morc weight than plaintiff's book, 

which appears to have been seen ilS a re-working of her dissertation, but nol a ncarly ncw 

elTort). fd. al5039. In tcrms of refereed journal articles, Dr. N's two in six years would 

seem to compare favorably 10 plaintiffs three in fiftccn years, and not unfavorably if 

plaintiff were credited with five. Moreover, in tt:·rm.'i or rate of production, Dr. N appears 

to have been similarly prolific in terms of regular participation in national or inlernational 

conferences and in giving invited lectures. Dr. N also proved successful in obtaining 

funding for hcr rescarch, and had embarked on a detailed new project, which was 

expel:tt:'d to bear substantial fruit going fornrard. Given the similarity of plaintiff's and 

Dr. N's scholarly records, and Dr. N's record of obtaining funding and of beginning work 

on il new project thought to be of substantial value, any comparison bctwccn the treatment 

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of Dr. Nand plaintiff cannot give rise to n fair inference that the university was 

disingenuous in its conclusion that plaintiffs scholarly record was insufficient to warrant 

promotion. 

.... .. ..
 

In sum. though plaintiff has pointed to much evidence in the record perceived by 

plaintIff as supportive of her claim ofa causal link between her promution denial and her 

protected activity, on examinatiun the court can find no evidence capable of supporting 

plaintiffs contention. Starting in 1993, Waggmnan began seeking a promotion and failed 

to achieve her goal multiple times. In each instance, a lack of substantive schularship in 

light of her time as a post-doctoral scholar was the stated reason. The record suggests 

that this same reason, and not invidious motivatiuns, caused the decisiun maker:) tu reject 

her bid during the period at issue in this suit. Plaintiff has not advanced sufficient 

evidence tu raise any issue uf material fact concerning causation within Ule first phase of 

the McDonnell Douglas framework. Accordingly, plaintiffs claim must foil and 

summary judgment is appropriate because there are uu outstanding issues of fact am] the 

defendant is entitled to judgment as a matter of law. 

B. Pretext 

IL is the court's view that plaintitT's case fails at step une of the IdcDonnell 

Douglas framework hecause plaintiff cannot point to evidence that her protected activity 

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was the cause of her promotion denial. However, for the sake of complett':nt':::i::i, tht': court 

finds that even werc plaintiff to survive step one, her case would fail at step three. 

At the second step of the AfcDonnell Douglas framework, the employer must 

advance a reason for the adverse action against the aggrieved employee. A defendant 

meets its burden of rebutting the prima facie case if it articulates any legitimate reason for 

the adverse employment aclion. Krouse v. Am. Sterilizer Cu., 126 F3d 494, 500 (3d Cir. 

1997). This burden is "relatively light." rd. Ifere, Villanova University asserts that the 

plaintiff was denied a promotion based on "her continued failure to meet the standards f()r 

scholarship in the opinions of those who reviewed her application," Def.'s Reply Memo. 

at 2. This stated reason is legitimate and would meet the burden to rebut even a 

successful prima facie case. 

At step three, to avoid summary judgment. a plaintiff must establish by a 

preponderance of the record evidence that the employer's proffered non-retaliatory 

reasons are pretextual. To do so, the employee must identify (1) evidence that 

undermines the credibility of the employer's proffered reasons, or (2) evidence of 

relalialory animus. Keller v. Orix Credit Aliiance, 130 F.3d 1101, 1108-09 (3d CiT. 1997) 

(en bane). Waggaman has averred neither successfully. 

Under the first prong, the plaintiff cannot merely assert that the employer's 

decision was wrong. Instead, the plaintiff must demonstrate such wt':aknesses, 

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implausihilities, inconsistem;ies, incoherencies, or contradictions in the employer's 

proffered reasons that a reasonable jury could find them unworlhy or credence and thus 

suggestive of improper motive. ld. As stated in Parts JJ1.A(4), (6) supra, Dr. 

Waggaman's arguments for inconsistency of action by the defendants or differential 

treatment toward herself fail to reveal inconsistencies or contradictions or to suggest 

improper motive. She appears to have received a full and thorough process of review 

during the year in question. The prohlems she identifies may be subject to policy debate 

among her colleagues at Villanova, hut none ofthem hdps her meeL her burden to defeat 

summary judgment. 

Under the second prong, a plaintiff must advance evidence sufficient to pennit a 

reasonable jury to infer that diserimination was more likely than not a motivating or 

determinative cause of the adverse aclion. ld. atllll. As stated in Part III.A(5) supra, 

the record here reveals no reJiable evidence of discriminatory motive, let alone enough to 

meellhe plaintiffs burden. Mere allegations of improper animus will not suffice. 

Thus, plaintiff would not survive the final review under the McDonnell Douglas 

framework, even if she were to establish a viable prima facie case. 

IV.	 Motion for summary judgment - breach of eontract 

Dr. Waggaman daims lhal, in denying her application for promotion, Villanova 

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hreached her employment contract by not fairly considering her application and by failing 

to evaluate it on the basis of the criteria set forth in the university's Rank and Tt:nurt: 

Policies and Procedures manual. The court disagrees. 

Since the defendant dOt:s not dispute that provisions of the manual at issut: here 

constitute part of an enforceable contract, the following rules of Pennsylvania law apply 

to plaintiffs claim of breach. The .'itandard of review for an action for breach of a tenure 

contract is the same as that applicable to a contract between private parties. Murphy v. 

Duquesne Univ., 777 A.2d 418, 429 (Pa. 2001). Breach of a tenure contract can consist 

offailurt: by lht: in.'ititution Lo comply with the procedures established. but no action exists 

to challenge whether a university simply made the wrong decision after following the 

correct process. Id. at 433. The Villanova manual does not guarantee promotion; rather, 

it guaranlt:t:s good-faiLh consideration and particular procedures. The manual emphasizes 

that acting on a promotion or tenure application is "inherently a process a/judgment that 

looks prospectively and retrospectively and which evolves over time." Def.' sEx. F, at 3 

(emphasis in original). This stance reflects the t:stablished view of courts in the 

Commonwealth of Pennsylvania concerning such dispntes. See Murphy, 777 A.2d at 433 

("All of these decisions involved subjective judgments of a teacher's professional and 

personal qualities.... The Contract, therefore, gave to the University's process, final 

authority to make them."); Baker v. Lafayette College, 532 A.2d 399, 403 (Pa. 1987) 

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(cxpressing a similar stance that established process, even if imperfect, govcrns 

promotion lJ~(,;isions anlJ only deviation from establishcd proccss providcs rceourse 

through the eoucts). 

Concerning br~ach of contract, Waggaman's claim is two-fold. First, shc elaims 

that retaliatory animus infected the decision, in violation of the conlIacl's provision that 

the sole criteria are service, teaehing, and scholarship. Second, she claims that the 

university failed to apply standards to hcr application comparable to those applied to other 

applications. 

As to the retaliation claim, for the same reasons given in the pn:vious section of 

this opinion, thc court concludes that there is not evidence on record from which a 

rcasonable juror could infer that the promotion decision was infected by retaliatory 

animus. 'lbe rccord suggests that thc dccision to dcny the plaintiff a promotion arose 

from legitimate reasons spelled out in the contract doeument. 29 

As to the comparable-standards claim, the (,;ourt has already explained why thc 

lJiffen:nce in oUlcome betwccn Dr. Waggaman's application and the applications of her 

eomparators is within the realm of reasonable acadcmic judgmcnt. The fact that plaintiff 

29 Furthermore, this court already has acknowledged, in its MernonmdumJ Order of 

September 28, 2005, that Pennsylvania courts disallow claim:; lor br~ach of contract on the basis 

of discrimination alone because such claims are preempted by statutory elaims. See also Keck v. 

Commerdal Union Ins. Co., 785 F. Supp. 1034, 1039 (M.D. Pa. 1991). 

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is convinced that she was equally or more deserving of promotion than ccrtain of her 

colleagues who were advanced does not suggest breach via misapplication of established 

proccdures. This court cannot review every decision and factor that entered into a very 

complex calculus in order to dctcrminc if it was corrcct; it can only determine \vhelher the 

process followed the steps outlined in the contract and properly relied on by employces. 

Murphy, 777 A.2d at 433. The record suggests that, in Dr. Waggaman's case, the 

established process was followed and the consideration of hcr application for promotion 

was fair. 

v. Conclusion 

For the reasons stated above, the court will grant Villanova University's motion for 

summary judgment. A separate ordcr ofjudgmcnt follows. 

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Case 2:04-cv-04447-LP Document 108 Filed 09/04/08 Page 52 of 53
IN THE UNITED STATES DISTRICT COURT
 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA
 

BEATRICE WAGGAMAN, PhD.,
 

PlainlilT,
 

v.
 

VILLANOVA UNIVERSITY,
 

Defendant. 

eiv. No. 04-4447 

f\l.ED 'LGG~

~\JNZ. Clat\< Ce? Clat\< 

ORDER 

. 

~rr---

AND NOW, this 3rd day of September, 2008, for the reasons in the foregoing 

opinion, it is hereby ORDERED that defendant's motion fur summary judgment (Docket 

No. 87) is GRANTED. 

ENTERED 

BY THE COURT:
 

CLERK OF COURT 

L: }-{. ~!i- Pollak, J. 

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Case 2:04-cv-04447-LP Document 108 Filed 09/04/08 Page 53 of 53