1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JODI LA COE, : No. 4:14-cv-01818

:

Plaintiff, : (Judge Brann)

:

v. :

:

THE PENNSYLVANIA STATE :

UNIVERSITY, MEHRDAD :

HADIGHI, and JAMES KALSBEEK, :

:

Defendants. :

MEMORANDUM

March 24, 2016

Upon constructing her Second Amended Complaint, Jodi La Coe, Plaintiff 

here and a former architectural professor at The Pennsylvania State University, 

attempted to stretch to their breaking points the clear bounds of certain sex

discrimination laws on which she relied. As many a hasty architect has 

disappointedly discovered however, a structure can stand only as sturdy as the 

quality of the materials from which it was drawn. Because Plaintiff’s claims 

against her former co-worker Professor James Kalsbeek suffer from significant 

plausibility shortcomings and various procedural holes, Defendant Kalsbeek is 

correct in contending that Plaintiff’s Second Amended Complaint is structurally 

unsound. Consequently, all of Plaintiff’s claims against Kalsbeek, which upon 

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close inspection involve nothing more than personal grievances against a coworker, are dismissed in whole and with prejudice in accordance with the 

following reasoning.

I. BACKGROUND

For all intents and purposes, this is action is an employment discrimination 

lawsuit alleging systemic discrimination against women at an institutional level. 

Plaintiff Jodi La Coe worked as a tenure-track Assistant Professor of Architecture 

at The Pennsylvania State University (hereinafter the “University”) beginning in 

2007.1 After seven years with the University, Plaintiff was denied tenure.2

According to Plaintiff, the University’s tenure decision was due not to any 

professional shortcomings on her own part, but rather to a discriminatory animus 

against women that pervaded the University’s Department of Architecture. As 

Plaintiff fashions it in her Second Amended Complaint, “the Architecture 

Department historically has had a dearth of tenured female professors and a glass 

ceiling.”

3

Even viewing the facts in the light most favorable to the Plaintiff, the 

existence of this purported “glass ceiling” is nonobvious to the Court on the face of 

the Second Amended Complaint. According to Plaintiff, for example, only nine 

 

1

 ECF No. 32 at 6.

2

 Pl.’s Second Amd. Compl., ECF No. 27 ¶ 35.

3

 Id. at ¶ 39.

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female architecture professors have ever held tenure-track professorships as of 

2012.4 Of those nine female professors, Plaintiff acknowledges that one has yet to 

be evaluated but five of the other eight, or sixty-three percent (63%), were granted 

tenure.5 Citing another purported instance of sexual discrimination against women,

Plaintiff claims that the Architectural Department has never had a female 

Department Head.6Perhaps that fact is a natural consequence of the Department 

having only ever employed nine female tenure-track professors or perhaps it is a 

consequence of the historical dearth of female participation in disciplines such as 

architecture; regardless, the inference of sex discrimination at an institutional level 

is largely unclear from the bulk of Plaintiff’s allegations. In the Court’s view, the 

same goes for Plaintiff’s rather innocuous suggestions of uneven pay scales 

between men and women in the Architectural Department.7That such differences

were attributable to sex rather than some other lurking variable has yet to be seen 

at this point in the litigation.

Conceivably, Plaintiff’s institutional claim of sex discrimination may have 

some underlying merit, but in the end it also may not. Nevertheless, that is largely 

a question for another day, a question that all parties would do well to consider 

 

4

 Id. at ¶ 40.

5

 Id. at ¶ 41. See also ECF No. 27 Ex. 1 at ¶ 21.

6

 ECF No. 27 at ¶ 47.

7

 Am. Compl., ECF No. 12 ¶¶ 69–82 (“The difficult problem with Professor Kalsbeek began in 

2004 early in Professor La Coe’s career at Penn State.”).

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moving forward. The important takeaway from this review of the litigation is that 

its initial prosecution by Plaintiff was framed entirely as an action to redress 

systemic sexual discrimination. For example, Plaintiff’s initiating document, her 

August 7, 2013 Pennsylvania Human Rights Commission (PHRC) Charge, 

complained of systemic sexual discrimination at the University and more 

particularly, in the Architectural Department itself. In fact, the thrust of Plaintiff’s 

thirty-eight paragraph PHRC Charge went precisely to the institutional nature of 

the discrimination she faced, centering on the departmental statistics I have 

outlined above.8

By the time the case had progressed to federal court, one familiar with 

Plaintiff’s claims at birth might not have even recognized them at maturity. In 

addition to continuing her sweeping allegations of sex discrimination against the 

University, Plaintiff advanced in her September 18, 2014 Complaint, for the first 

time, individual causes actions against a former co-worker, Professor James 

Kalsbeek. Not only was Professor Kalsbeek not named in Plaintiff’s PHRC 

Charge, but he played a rather minor and removed, albeit strange, role in the 

context of Plaintiff’s sex discrimination claims.

 Despite Plaintiff’s tenure denial occurring nearly ten years later, the claims 

that she introduced against Kalsbeek in her federal Complaint dated back to 

 

8

 See id., Ex. 1.

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isolated incidents occurring in 2004 and subsequent academic semesters.9

Specifically, Plaintiff and Defendant were co-workers in the Architecture 

Department and even co-taught certain courses early in Plaintiff’s career.

10 From 

Plaintiff’s point of view, Kalsbeek “wanted to be in a romantic relationship with 

her” and expressed that such a relationship “would be a good path for her life to 

take.”11 Plaintiff points to three discrete and by this point in time, rather foggy past 

encounters with Kalsbeek: one in which he “bad-mouthed her to their students,” 

one in which he showed up uninvited at her house, and one in which he presented 

her with both a greeting card with his eyeglass prescription written inside and a 

signed copy of the Illustrated Encyclopedia of Sex.

12 Plaintiff contends that

Kalsbeek, despite his status as her co-worker in the Department, was her “de facto” 

supervisor, because for approximately three to four academic semesters, he 

exercised “control over the funding of a workplace-program.”13 As might already 

be evident, the nexus between these isolated incidents involving Kalsbeek and 

Plaintiff’s ultimate tenure denial is appreciably distant at best.

Be that as it may, Defendant Kalsbeek found himself ensnarled in Plaintiff’s 

eleven-count Second Amended Complaint, a document that reaches to the far 

 

9

 See ECF No. 27 at ¶¶ 87–94.

10

 ECF No. 32 at 6.

11

 Id.

12

 Id. at 6–7.

13

 See id. at 16–17.

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corners of the law for support in what might be described as a scattershot approach 

to bringing a rather plain sexual discrimination claim. The matter is therefore now 

before the Court on Defendant Kalsbeek’s Motion to Dismiss the Second Amended 

Complaint as it applies to him. Those claims averred against Kalsbeek include 

counts of gender discrimination and retaliation in violation of the Pennsylvania 

Human Relations Act, as well as a denial of equal protection count brought 

pursuant to 42 U.S.C. §1983.

14

Kalsbeek contends that the Second Amended Complaint “virtually mirrors” 

the original and First Amended Complaint and therefore “fails to assert any 

plausible claims” against him. For the reasons that follow, the Court concludes that 

Defendant Kalsbeek is correct. Plaintiff’s claims against him are procedurally 

defective and fail to state plausible claims under the laws on which she relies. I 

will now grant Kalsbeek’s Motion to Dismiss in full and with prejudice.

II. LAW

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may file a 

motion to dismiss for “failure to state a claim upon which relief can be granted.” 

Such a motion “tests the legal sufficiency of a pleading” and “streamlines litigation 

 

14 See ECF No. 27.

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by dispensing with needless discovery and factfinding.”15 “Rule 12(b)(6) 

authorizes a court to dismiss a claim on the basis of a dispositive issue of law.”16

This is true of any claim, “without regard to whether it is based on an outlandish 

legal theory or on a close but ultimately unavailing one.”17

Beginning in 2007, the Supreme Court of the United States initiated what 

some scholars have termed the Roberts Court’s “civil procedure revival” by 

significantly tightening the standard that district courts must apply to 12(b)(6) 

motions.18 In two landmark decisions, Bell Atlantic Corporation v. Twombly and 

Ashcroft v. Iqbal, the Roberts Court “changed . . . the pleading landscape” by 

“signal[ing] to lower-court judges that the stricter approach some had been taking 

was appropriate under the Federal Rules.”19 More specifically, the Court in these 

two decisions “retired” the lenient “no-set-of-facts test” set forth in Conley v. 

Gibson and replaced it with a more exacting “plausibility” standard.20

Accordingly, after Twombly and Iqbal, “[t]o survive a motion to dismiss, a 

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 

 

15

 In re Hydrogen Peroxide Litigation, 552 F.3d 305, 316 n.15 (3d Cir. 2008) (Scirica, C.J.) 

(quoting Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001) (Easterbrook, 

J.)). Neitzke v. Williams, 490 U.S. 319, 326–27 (1989).

16

 Neitzke, 490 U.S. at 326 (citing Hishon v. King & Spalding, 467 U. S. 69, 73 (1984)).

17

 Neitzke, 490 U.S. at 327.

18

 Howard M. Wasserman, The Roberts Court and the Civil Procedure Revival, 31 Rev. Litig. 

313 (2012).

19

 550 U.S. 544 (2007); 556 U.S. 662, 678 (2009). Wasserman, supra at 319–20.

20

 Iqbal, 556 U.S. at 670 (citing Conley v. Gibson, 355 U.S. 41 (1957)) (“[a]cknowledging that 

Twombly retired the Conley no-set-of-facts test”).

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to relief that is plausible on its face.’”

21 “A claim has facial plausibility when the 

plaintiff pleads factual content that allows the court to draw the reasonable 

inference that the defendant is liable for the misconduct alleged.”22 “Although the 

plausibility standard does not impose a probability requirement, it does require a 

pleading to show more than a sheer possibility that a defendant has acted 

unlawfully.”23 Moreover, “[a]sking for plausible grounds . . . calls for enough facts 

to raise a reasonable expectation that discovery will reveal evidence of 

[wrongdoing].”24

The plausibility determination is “a context-specific task that requires the 

reviewing court to draw on its judicial experience and common sense.”25 No matter 

the context, however, “[w]here a complaint pleads facts that are ‘merely consistent 

with’ a defendant’s liability, it ‘stops short of the line between possibility and 

plausibility of entitlement to relief.’”

26

When disposing of a motion to dismiss, a court must “accept as true all 

factual allegations in the complaint and draw all inferences from the facts alleged 

in the light most favorable to [the plaintiff].”27 However, “the tenet that a court 

 

21

 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

22

 Iqbal, 556 U.S. at 678.

23

 Connelly v. Lane Const. Corp., No. 14-3792, 2016 WL 106159, at *3 (3d Cir. Jan. 11, 2016) 

(Jordan, J.) (internal quotations and citations omitted).

24

 Twombly, 550 U.S. at 556.

25

 Iqbal, 556 U.S. at 679.

26

 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (internal quotations omitted)).

27

 Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d Cir. 2008) (Nygaard, J.).

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must accept as true all of the allegations contained in the complaint is inapplicable 

to legal conclusions.”28 “After Iqbal, it is clear that conclusory or ‘bare-bones’

allegations will no longer survive a motion to dismiss.”29 “Threadbare recitals of 

the elements of a cause of action, supported by mere conclusory statements, do not 

suffice.”30

As a matter of procedure, the United States Court of Appeals for the Third 

Circuit has instructed that:

Under the pleading regime established by Twombly and Iqbal, a court 

reviewing the sufficiency of a complaint must take three steps. First, it 

must tak[e] note of the elements [the] plaintiff must plead to state a 

claim. Second, it should identify allegations that, because they are no 

more than conclusions, are not entitled to the assumption of truth. 

Finally, [w]hen there are well-pleaded factual allegations, [the] court 

should assume their veracity and then determine whether they 

plausibly give rise to an entitlement to relief.31

III. ANALYSIS

A. Plaintiff’s PHRA Claims Against Defendant Kalsbeek Must Be 

Dismissed.

1. Plaintiff failed to exhaust her administrative remedies when 

she omitted Kalsbeek’s name from her PHRC Charge, and 

the Glus “identity of interests” exception cannot cure that 

oversight.

Plaintiff failed to name Defendant Kalsbeek in her PHRC Charge, an often 

 

28

 Iqbal, 556 U.S. at 678 (internal citations omitted).

29

 Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (Nygaard, J.).

30

 Iqbal, 556 U.S. at 678.

31

 Connelly, 2016 WL 106159, at *4 (internal quotations and citations omitted).

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fatal omission unless otherwise saved by a narrow, judge-made exception to the 

PHRA’s clear exhaustion requirements. As explained more fully below, that 

exception does not apply here, and Plaintiff’s PHRA claims against Kalsbeek fail 

because she did not properly exhaust the statutorily prescribed administrative 

prerequisites. 

Section 955 of the PHRA, its anti-discrimination provision, reads as follows:

It shall be an unlawful discriminatory practice . . . [f]or any employer 

because of the . . . sex . . . of any individual . . . to refuse to hire or 

employ or contract with, or to bar or to discharge from employment 

such individual . . . , or to otherwise discriminate against such 

individual . . . with respect to compensation, hire, tenure, terms, 

conditions or privileges of employment or contract, if the individual 

. . . is the best able and most competent to perform the services 

required.32

Furthermore, the PHRA’s procedural requirements, laid out in § 959, require 

that:

Any person claiming to be aggrieved by an alleged unlawful 

discriminatory practice may make, sign and file with the Commission 

a verified complaint, in writing, which shall state the name and 

address of the person, employer, labor organization or employment 

agency alleged to have committed the unlawful discriminatory 

practice complained of, and which shall set forth the particulars 

thereof and contain such other information as may be required by the 

Commission.33

“The purpose of requiring an aggrieved party to resort first to the EEOC is 

twofold: to give notice to the charged party and provide an avenue for voluntary 

 

32 43 Pa. Stat. Ann. § 955 (West).

33 43 Pa. Stat. Ann. § 959 (West) (emphasis added).

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compliance without resort to litigation.”34 The PHRA’s procedural exhaustion 

requirements are also jurisdictional, meaning that “[a PHRA] action ordinarily may 

be brought only against a party previously named in an EEOC action.”35

Although failing to name a party in the EEOC charge normally results in 

dismissal of a subsequent PHRA action brought in federal court, the Third Circuit 

in Glus v. G. C. Murphy Co. crafted a narrow judicial exception to such a technical 

pre-requisite. Specifically, the Third Circuit “recognize[d] an exception when the 

unnamed party received notice and when there is a shared commonality of interest 

with the named party.”36 Glus thus instituted a two-part test for overriding the 

PHRA’s explicit naming requirement: (i) the unnamed defendant must have 

received notice of the pending EEOC proceeding and (ii) the unnamed defendant 

must have “shared a commonality of interest” with the named defendant. The case 

at hand fails both prongs of the Glus test.

“[W]hen a plaintiff fails to name individual defendants in the body of the 

EEOC complaint, these defendants have not been put on notice that they could be 

sued in their individual capacities—even when they were aware of the complaint’s 

existence.”

37 Federal courts have held, for instance, that the owner of a company 

 

34 Glus v. G. C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977).

35

 903 F.2d 243, 251 (3d Cir. 1990).

36 Schafer v. Bd. of Pub. Educ. of the Sch. Dist. of Pittsburgh, Pa., 903 F.2d 243, 252 (3d Cir. 

1990) (emphasis added).

37

 Hills v. Borough of Colwyn, 978 F. Supp. 2d 469, 480 (E.D. Pa. 2013).

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who went unnamed in the pertinent EEOC charge could not be sued even if he

“had notice that his company was under investigation for discriminatory 

conduct.”

38 Neither could unnamed managers and supervisors at a health club be 

sued because “they had no notice [Plaintiff’s] claims and were thus deprived of the 

opportunity to informally resolve those claims” and because “[plaintiff] identifie[d] 

no evidence demonstrating that either of these men represented to [her] that [they] 

should be contacted only through [their employer].”39 Lastly, a hospital’s human 

resource manager who was unnamed in the relevant charge could not later be sued 

in federal court, despite having contacted the claimant “on numerous occasions” to 

seek “further information as to the nature and extent of her disability” and having 

been “aware generally of the EEOC charge.”40

In line with these authorities, it is evident that the Defendant Kalsbeek here 

did not receive legally adequate notice of the pending PHRC charge and 

subsequent proceedings. Plaintiff argues otherwise for two reasons: first, because 

one paragraph in her thirty-eight paragraph PHRC charge contained a reference to 

an unnamed professor who was purportedly Kalsbeek and second, because 

Kalsbeek’s name was included in a response letter from her counsel to the EEOC 

 

38

 McInerney v. Moyer Lumber & Hardware, Inc., 244 F. Supp. 2d 393, 399 (E.D. Pa. 2002).

39

 Graudins v. Retro Fitness, LLC, 921 F. Supp. 2d 456, 464 (E.D. Pa. 2013).

40

 Lightcap-Steele v. KidsPeace Hosp., Inc., No. CIV.A. 05-02578, 2006 WL 1147476, at *3, *6 

n.6 (E.D. Pa. Apr. 27, 2006).

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Investigator assigned her case.41 For the obvious reason that neither of those 

documents provided Kalsbeek with sufficient notice as a matter of law, the counts 

of the Amended Complaint alleging violations by Kalsbeek must fail.

First, as it relates to Plaintiff’s PHRC charge, Plaintiff contends that 

Kalsbeek should have been put on notice by her referencing “a male professor with 

whom she co-teaches” in paragraph fifteen of her thirty-eight paragraph charge.

Viewing the charge as a whole, Plaintiff states a claim of entrenched, institutional 

discrimination—that systemic shortcomings in the way in which the Architecture 

Department at the University selects its tenured professors disparately impacts 

female candidates. The focus of her charge hardly hinged upon the alleged dispute 

between her and Kalsbeek. In fact, the paragraph that mentions the unnamed 

professor is framed in such a way as to emphasize that the alleged incidents went 

unaddressed by superiors. As the last line of that paragraph states, “Professor La 

Coe complained to her senior faculty/management without consequences for the 

male professor.”42

Moreover, as a matter of practice, Plaintiff chose to name certain individuals 

while omitting others. For instance, Plaintiff named the Department Head, 

Mehrdad Hadighi, and explained his involvement in the alleged discriminatory 

 

41

 ECF No. 12 Exs. 1, 2.

42

 ECF No. 12 Ex. 1 ¶ 15.

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scheme in numerous of the paragraphs of her PHRC Charge.

43 When the law 

requires clear notice and naming of potential defendants, Plaintiff’s choice to 

include certain individuals but to omit others not only bears on her lack of mistake, 

but also evidences her ultimate intent to charge some of those co-workers but not 

others. 

Just as importantly, permitting an individual such as Kalsbeek, who is 

vaguely referenced in one paragraph of Plaintiff’s PHRC Charge, would set an 

egregiously low threshold for applying the Glus exception. It cannot be the case 

that a single mention of an unnamed individual in connection with discrete, 

isolated incidents in a charge document exposes that individual to a lawsuit in 

federal court without prior notice. Were this Court to hold otherwise, Plaintiff 

might rightly be able pursue federal lawsuits against anyone in the Architectural 

Department or in a management position at the University. Again, for obvious 

reasons, both in terms of judicial economy and in terms of a legislative preference 

for mediation of such disputes, Kalsbeek lacked sufficient notice solely from the 

face of Plaintiff’s PHRC Charge.

The argument that Kalsbeek obtained adequate notice by virtue of his name 

being mentioned in a response letter from Plaintiff’s counsel to the EEOC 

Investigator is equally unavailing in the Court’s eyes. First, there is no indication 

 

43

 ECF No. 12 Ex. 1 ¶¶ 13,14, 16, 30, 34, 35.

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that Kalsbeek ever had any knowledge of the said letter whatsoever. The letter, 

written by James B. Lieber, Esquire, counsel for Plaintiff, is addressed to Mr. Paul 

Southworth, the assigned EEOC Investigator.44 The letter is carbon-copied to two 

individuals: Plaintiff and Thomas M. Huber, Esquire, also counsel for Plaintiff.45

Based on the copy of the letter that Plaintiff attached to her Amended Complaint, it 

is unclear that counsel for any of the Defendants ever received a carbon copy of 

this communication, let alone counsel for Kalsbeek or Kalsbeek himself. 

Moreover, given that the entire purpose of the PHRA’s notice requirement is 

to enable formal resolution in advance of any formal proceedings, it is difficult to 

suggest that the January 10, 2014 letter, sent more than five months after Plaintiff’s 

filing of her charge on August 5, 2013, could have cured the Charge’s deficiencies. 

Placing an unnamed defendant on notice five months late in relation to the filing of 

the charge squandered a significant period of time in which informal resolution 

could have been attempted.

Having concluded that Kalsbeek lacked the requisite notice that the Glus

exception anticipates, I now turn to whether Kalsbeek and the University share an 

“identity of interests” under applicable law.46 They do not. 

The Third Circuit in Glus enumerated four factors that districts should 

 

44

 ECF No. 12 Ex 2 at 1.

45

 Id.

46 Schafer v. Bd. of Pub. Educ. of the Sch. Dist. of Pittsburgh, Pa., 903 F.2d 243, 252 (3d Cir. 

1990).

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consider in determining whether the omission of a defendant’s name in an EEOC 

charge was excusable and therefore would not deprive the court jurisdiction.47

Those factors are:

(1) whether the role of the unnamed party could through reasonable 

effort by the complainant be ascertained at the time of the filing 

of the EEOC complaint;

(2) whether, under the circumstances, the interests of a named are 

so similar as the unnamed party’s that for the purpose of 

obtaining voluntary conciliation and compliance it would be 

unnecessary to include the unnamed party in the EEOC 

proceedings; 

(3) whether its absence from the EEOC proceedings resulted in 

actual prejudice to the interests of the unnamed party; and 

(4) whether the unnamed party has in some way represented to the 

complainant that its relationship with the complainant is to be 

through the named party.48

In my view, the first, third, and forth Glus factors weigh decidedly against 

Plaintiff. Yet, appealing to the second factor, Plaintiff contends that her omission 

of Kalsbeek’s name in the charge was harmless because Kalsbeek and the 

University share an “identity of interests.”49 In support, Plaintiff primarily argues 

that an identity of interests exists because Kalsbeek “had an important role” in her 

discriminatory treatment and because the University may ultimately be held liable 

 

47 562 F.2d 880 (1977).

48 Id.

49

 See ECF No. 32 at 11–12.

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for Kalsbeek’s actions under the doctrine of respondeat superior.

50 Neither 

contention is enough to overcome the PHRA’s explicit notice provisions by using a 

narrow, judge-made exception.

If Kalsbeek “had an important role” in the alleged discriminatory conduct, 

that is not evident from the PHRA Charge, and that shortcoming is fatal by law. 

The paragraph of the Charge that purportedly refers to Kalsbeek amounts to 

nothing more than an alleged example of undisciplined mistreatment, an example 

that Plaintiff attempts to use to support her general contention that an overarching 

system of discrimination against female faculty permeated the University’s 

Architecture Department. Such an allegation fails to plausibly establish that the 

accused played a significant role in the underlying conduct that formed the basis 

for Plaintiff’s Charge.

In addition, Plaintiff’s blanket reliance on the employer-employee 

relationship existing between Kalsbeek and the University is inadequate to trigger 

the Glus exception. Specifically, Plaintiff cites to Johnson v. PSI Pizza, Inc., in 

which then United States Magistrate Judge, now United States District Judge

Malachy E. Mannion wrote: “As to the second factor, the parties interests are 

deeply entwined as the defendant Nolan is an employee of defendant PSI Pizza.”51

In this Court’s view, the Johnson decision is incomplete for our purposes here. 

 

50

 See id. at 11–12.

51

 No. CIV.A. 3:11-1698, 2012 WL 4450897, at *5 (M.D. Pa. Sept. 25, 2012).

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Employment relationships by their very nature often result in numerous parties’

interests becoming “deeply entwined.” What matters under Glus and its progeny, 

however, is the extent to which those interests share “an identity” during the 

applicable conciliation process that renders the omission of an unnamed defendant 

harmless. That conclusion is simply not meant to be taken as given every time an 

employment relationship exists between the named and unnamed defendants.

Though they may be coexistent in theory, the interests of an employer and 

its employees often stand adversely or in direct conflict with one another. In fact, 

imposing respondeat superior liability on employers for employees who have acted 

within the scope of their employment gives rise to a quite obvious incentive for 

employers to distance themselves from their misbehaving employees. It would be 

naïve to assume that an employer and its counsel would spend their time during 

mediation advocating on behalf of an absent, unrepresented employee, particular if 

that employee had acted wrongly and beyond the scope of the employment 

relationship. An equally plausible and perhaps even more likely mode of argument

would involve the employer’s emphasizing the rogue nature of the employee’s 

conduct as a justification for why it should not be held vicariously liable.

The interests of an employer and its employees are likely to conflict so often 

that the American Bar Association (ABA) has devoted an entire Model Rule of 

Professional Conduct to the generally disfavored nature of dual representation of 

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employers’ and employees’ interests. Model Rule of Professional Conduct 1.13 

(“Organization as Client”) provides as follows at subparts (a) and (f):

(a) A lawyer employed or retained by an organization represents the 

organization acting through its duly authorized constituents.

. . .

(f) In dealing with an organization’s directors, officers, employees, 

members, shareholders or other constituents, a lawyer shall explain 

the identity of the client when the lawyer knows or reasonably should 

know that the organization’s interests are adverse to those of the 

constituents with whom the lawyer is dealing.

The Comments to Rule 1.13 go on to explain that such a proscription of dual 

representation is appropriate precisely because of the strong propensity for 

conflicts of interest to arise in employer-employee cases:

Clarifying the Lawyer’s Role

[10] There are times when the organization’s interest may be or 

become adverse to those of one or more of its constituents. In such 

circumstances the lawyer should advise any constituent, whose 

interest the lawyer finds adverse to that of the organization of the 

conflict or potential conflict of interest, that the lawyer cannot 

represent such constituent, and that such person may wish to obtain 

independent representation. Care must be taken to assure that the 

individual understands that, when there is such adversity of interest, 

the lawyer for the organization cannot provide legal representation for 

that constituent individual, and that discussions between the lawyer 

for the organization and the individual may not be privileged.

As a matter of interpretation, Plaintiff’s contentions as to common interests

similarly carry little weight when one considers the singular purpose behind the 

Glus exception. That exception is a judicially carved loophole to an otherwise clear 

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legislative text, which therefore merits, in this Court’s view, an especially narrow 

construction.52 “Because we are assessing judicially created exceptions to a broad 

statutory grant, one of the principles that must guide our inquiry is that judge-made 

exceptions to properly enacted statutes are to be narrowly construed.”53 “Indeed, 

the Supreme Court has cautioned that, to avoid improper narrowing by courts of 

congressional enactments, resort to judge-made exceptions to statutory grants must 

be rare.”54

The sole purpose of the Third Circuit’s crafting the Glus exception in 1977

was to dispense with a technical requirement that ensures adequate representation

of a defendant’s interests during the EEOC proceedings that preface a civil action.

Such evident disregard of a legislative prerequisite is appropriate, the Third Circuit 

emphasized, only in the exceptional case where an unnamed defendant shared a 

commonality of interests with a named defendant who had participated in the

prefatory proceedings. In that limited circumstance, “demanding full and technical 

compliance would have no relation to the purposes for requiring those procedures 

 

52 See, e.g., W. Union Tel. Co. v. Lenroot, 323 U.S. 490, 514 (1945) (“[T]he judicial function 

does not allow us to disregard that which Congress has plainly and constitutionally decreed 

and to formulate exceptions which we think, for practical reasons, Congress might have made 

had it thought more about the problem.”); United States v. Rutherford, 442 U.S. 544, 559 

(1979) (“Whether, as a policy matter, an exemption should be created is a question for 

legislative judgment, not judicial inference.”).

53 CLS Bank Int’l v. Alice Corp. Pty., 717 F.3d 1269, 1303 (Fed. Cir. 2013), aff’d, 134 S. Ct. 

2347 (2014).

54 Id.

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21

in the first instance.”55 Such was true only because the interests of the named and 

unnamed defendants “were identical in all significant aspects,” and the unnamed 

defendant “was not harmed by its absence from the EEOC proceedings.”56

In fact, Glus itself involved an omission that amount to nothing more than a 

minor oversight. In Glus, the plaintiff was permitted to bring suit in federal court 

against both the local and international chapters of the labor union of which she 

was a member, despite her failing to name the international chapter in her EEOC 

charge.57 The Glus court described the close factual nexus between the local and 

international union chapters as follows:

Their liability arises from their participation in the same collectivebargaining agreements. The International was the sole union signatory 

to the collective-bargaining agreement for a portion of the period 

where discrimination was found to have taken place; later both the 

International and Local 940 signed the agreements. The 

International’s representative was the chief union negotiator at many 

of the negotiation sessions. The International’s interests were 

vigorously litigated by Local 940 at the EEOC proceedings. Local 940 

stood firm in its denial of liability. Further, both the International and 

Local 940 were represented by the same attorney, Emil E. Narick, 

Esq., in the district court proceeding until Murphy filed its claim for 

contribution.

. . .

If a settlement had been reached during the EEOC proceeding, 

 

55

 Glus v. G. C. Murphy Co., 562 F.2d 880, 889 (3d Cir. 1977).

56 Schafer v. Bd. of Pub. Educ. of the Sch. Dist. of Pittsburgh, Pa., 903 F.2d 243, 252 (3d Cir. 

1990) (citing Glus v. G.C. Murphy Co., 629 F.2d 248, 251 (3d Cir.1980), vacated on other 

grounds, 451 U.S. 935 (1981)).

57

 Glus v. G. C. Murphy Co., 562 F.2d 880, 888 (3d Cir. 1977).

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22

complete relief could have been obtained from the defendants then 

present. We also note the finding of the district court that the close 

relationship between the International and Local 940 could have led 

the plaintiff to reasonably assume that the interests of both unions 

were to be represented by Local 940.58

Glus, therefore, traced a narrow inconsistency restricted to a very limited set 

of facts—not a panacea meant to remedy incomplete or haphazard pleading. For 

the reasons outlined above, its application to the instant matter is inappropriate. I

find that all of the Glus factors weigh against Plaintiff. She has failed to establish 

the requisite “identity of interests” not only because Kalsbeek played a minor role 

in the alleged discriminatory conduct but also because the employer-employee 

relationship is a poor predictor of shared interests.

2. Plaintiff’s PHRA claims against Kalsbeek stem from 

discrete acts that are time-barred by the statute of 

limitations and that cannot be saved by the continuing 

violation doctrine.

Plaintiff’s claims against Kalsbeek are time-barred. This means that they 

must satisfy the requirements of the continuing violation theory to survive

dismissal. They do not. The “continuing violation theory” is a means by which 

claimants may “reach back” and recover for certain unlawful employment practices 

that occurred before the statutory period, so long as the appropriate indicia of a 

 

58

 Glus v. G.C. Murphy Co., 629 F.2d 248, 251 (3d Cir.1980), vacated on other grounds, 451 

U.S. 935 (1981)).

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23

continuing violation are present.59 “In order to establish a continuing violation, a 

plaintiff must (1) ’demonstrate that at least one act occurred within the filing 

period,’ and (2) ’that the harassment is more than the occurrence of isolated or 

sporadic acts of intentional discrimination.’”

60 Because the Plaintiff here has failed 

on both prongs of the continuing violation test, I hold that her claims are also timebarred and not covered by the continuing violation theory.

As one federal court in the Third Circuit’s venire has explained, “[t]he 

‘continuing violation’ theory merely affects the time available to a complainant to 

file the charge with the agency or EEOC.”61 The “continuing violation” theory 

does not “excuse[ ] the exhaustion requirement.”62 Later, the Third Circuit would 

go on to clarify that to invoke the continuing violation theory, a plaintiff must 

“allege [a] specific act of discrimination that occurred within the statute of 

limitations period.”63 A plaintiff cannot “seek[ ] to invoke the continuing violation 

doctrine to resurrect his now moribund claims.”64 Thus, a plaintiff “cannot revive 

his time-barred allegations of discrimination or hostile work environment without 

 

59

 See Metsopulos v. Runyon, 918 F.Supp. 851, 858 (D.N.J. 1996); National R.R. Passenger 

Corp. v. Morgan, 536 U.S. 101, 110–18.

60 Camplese v. Morgan Stanley Smith Barney, LLC, No. 1:15-CV-00784, 2016 WL 930728, at 

*3 (M.D. Pa. Mar. 11, 2016) (Kane, J.) (quoting West v. Phila. Elec. Co., 45 F.3d 744, 754-55 

(3d Cir. 1995) (internal quotations omitted)).

61

 Metsopulos, 918 F.Supp. at 858.

62

 Id. at n.2.

63

 Snyder v. Baxter Healthcare, Inc., 393 F. App’x 905, 909 (3d Cir. 2010).

64

 Id.

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24

alleging at least one specific, timely violation.”65

In fact, as the Supreme Court of the United States has already explained in a 

similar case, “[m]ere continuity of employment, without more, is insufficient to 

prolong the life of a cause of action of employment discrimination.”66 Quite the 

opposite, “[d]iscrete acts such as termination, failure to promote, denial of transfer, 

or refusal to hire are easy to identify.”67 Thus, “[e]ach incident of discrimination 

and each retaliatory adverse employment decision constitutes a separate actionable 

‘unlawful employment practice.’”

68

Plaintiff’s claims against Defendant Kalsbeek in particular date back to 

2004.69 Plaintiff does not dispute this. Rather, she contends that Kalsbeek’s 

harassment constituted a “continuing” effect that ultimately reared its head upon 

her March 1, 2013 tenure denial.70 To allege that discrete acts of harassment 

permeated Plaintiff’s everyday work environment for nearly a decade of time is 

imaginative at best.

The discrimination allegedly instituted by Kalsbeek occurred in separate, 

distinct past instances. Specifically, Plaintiff suggests that Defendant Kalsbeek, 

 

65

 Id.

66

 Morgan, 536 U.S. at 112–13.

67

 Id. at 114.

68

 Id.

69

 Am. Compl., ECF No. 12 ¶¶ 69–82 (“The difficult problem with Professor Kalsbeek began in 

2004 early in Professor La Coe’s career at Penn State.”).

70 See ECF No. 32 at 14.

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25

with whom the Plaintiff co-taught certain courses, “bad-mouthed her to their 

students” because “she had rebuffed his disturbing romantic and sexual 

advances.”71 For instance, Plaintiff claims that Kalsbeek “professed his love for 

[her],” stating that he “wanted to be in a romantic relationship with her” and that 

beginning a relationship with him “would be a good path for [her] life to take.”72

Among other incidences, Plaintiff alleged that Kalsbeek once visited her at her 

home uninvited, gave her a greeting card with his eyeglass prescription, and gifted 

her a signed copy of the Illustrated Encyclopedia of Sex.

73

“Nothing takes the taste out of peanut butter quite like unrequited love.”74

When it comes to the working relationship between Plaintiff and Kalsbeek, it 

appears evident that Kalsbeek’s actions were odd and unwelcome, and went a long 

way to souring the dynamic between the two professors. However, a court’s role in 

such cases is not to pass moral judgment upon the parties but to discern whether 

such conduct is legally actionable here. 

Prior to filing a federal employment discrimination lawsuit, a plaintiff must 

file an administrative charge with the EEOC or a comparable state agency within 

 

71

 ECF No. 32 at 6.

72

 ECF No. 32 at 6.

73

 ECF No. 32 at 6–8.

74

 Charles M. Schulz, Peanuts.

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26

the 300-day statutory time period.75 Under the PHRA, however, a plaintiff has only

180 days from the date of the alleged discriminatory conduct to initiate 

administrative action.76 The instant PHRC Charge was filed by Plaintiff on August 

7, 2013, meaning that discrete conduct occurring before February 8, 2013 falls 

beyond the reach of the limitations period unless otherwise covered by the 

“continuing violation” theory. That theory is inapplicable here because none of the 

discrete actions committed by Kalsbeek occurred within that time period, and 

moreover, it is not evident to this Court that Kalsbeek’s actions rose to the level of 

something more than discrete, isolated incidents. To the extent that Plaintiff 

contends that Kalsbeek’s purported harassment affected her chances of obtaining 

tenure, I find the connection between the discrete acts of discrimination and the 

tenure denial to be tenuous and unsubstantiated at best.

If Plaintiff believed that Kalsbeek’s conduct rose to sexual discrimination in 

violation of federal, her remedy was to bring those claims in the appropriate 

timeframe. When an alleged victim of sexual discrimination chooses not to pursue 

potential claims, not only do those claims become time-barred, but the evident 

judicial inference is that the substance of those claims was not so egregious as to 

rise to the level of discrimination at the time during which they occurred. The 

 

75

 Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000); Snyder v. Baxter 

Healthcare, Inc., 2009 WL 185993, *2 (W.D.Pa. 2009).

76

 Woodson v. Scott Paper Co., 109 F.3d 913,925 (3d Cir. 1997).

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27

passage of a decade does nothing to ripen those claims. Quite the opposite, with 

the eroding of witness memories and the deterioration of evidence, such claims 

only become more evanescent over time. Because I would hold that Plaintiff’s 

PHRA claims are also time-barred, they must be dismissed for this second, 

independent reason.

3. Plaintiff has failed to plausibly show that Kalsbeek was a 

“supervisory employee,” requiring that her PHRA claims

also be dismissed as a matter of law.

“A PHRA plaintiff may advance individual liability claims against 

supervisory employees who bear responsibility for implementing an allegedly 

unlawful discriminatory practice.”77 “Direct incidents of harassment by nonsupervisory co-employees are not covered by § 955(e) [of the PHRA]. Supervisory 

employees, however, may be held liable under § 955(e) on the theory that only 

supervisors can share the discriminatory purpose and intent of the employer that is 

required for aiding and abetting.”78

The parties cite to largely the same authorities when it comes to making the 

determination of who precisely constitutes a “supervisor.” “The question of 

whether a particular individual holds a ‘supervisory position’ over another must be 

answered by reference to the power that the individual actually holds, not by 

 

77

 O’Donnell v. Pennsylvania Dep’t of Corr., 790 F. Supp. 2d 289, 309 (M.D. Pa. 2011) 

(Carlson, Mag. J.), aff’d, 507 F. App’x 123 (3d Cir. 2012).

78

 Holocheck v. Luzerne Cty. Head Start, Inc., 385 F. Supp. 2d 491, 496-97 (M.D. Pa. 2005)

(Vanaskie, C.J.).

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28

reference to his or her formal job title.”79 “In determining whether a de 

facto supervisory relationship exists, a court must consider whether the defendant 

could alter the plaintiff’s workload, or whether the plaintiff would face internal 

charges of insubordination for failing to adhere to the defendant’s instructions.”80

Moreover, in 2013, the Supreme Court of the United States in a decision 

entitled Vance v. Ball State University expounded upon the “clear distinction 

between supervisors and co-workers” as it pertains to vicarious liability under Title 

VII for employment discrimination and workplace harassment.

81 In Vance, the 

Court held “that an employee is a ‘supervisor’ for purposes of vicarious liability 

under Title VII if he or she is empowered by the employer to take tangible 

employment actions against the victim.”82 “A tangible employment decision 

requires an official act of the enterprise, a company act.”

83 Specifically, a tangible 

employment action must “effect a ‘significant change in employment status, such 

as hiring, firing, failing to promote, reassignment with significantly different 

responsibilities, or a decision causing a significant change in benefits.’”

84

Existing determinations handed down by the Third Circuit are largely in line 

 

79

 McCleester v. Mackel, No. CIV.A. 06-120J, 2008 WL 821531, at *9 (W.D. Pa. Mar. 27, 

2008) (Gibson, J.).

80

 Id.

81

 133 S. Ct. 2434 (2013) (Alito, J.).

82

 Id. at *2439.

83

 Id. at 2442.

84

 Id. at 2443 (quoting in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (Kennedy, 

J.).

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with the Supreme Court’s discussions in Vance, sharing some of the same 

determinative factors enumerated by the Supreme Court. In fact, since Vance’s

discussion of supervisory liability, several courts in the Third Circuit’s venire have 

applied the test in Vance to the determination of which employees constitute 

“supervisors” under the PHRA.85 Although the Vance Court reached the 

determination of who constitutes a “supervisor” in the context of Title VII 

vicarious liability, I would join my fellow district courts who have already applied 

Vance to the PHRA, as the harms against which Title VII and the PHRA protect 

are sufficiently close and the supervisor determination is necessarily a factual one 

capable of spanning various statutory regimes.

Applying Vance’s definition of a “supervisor” to the instant claim makes it 

evident that Kalsbeek cannot be liable under the PHRA. Plaintiff argues that 

because of the “unique nature of university governance,” one could find that 

Kalsbeek exercised supervisory authority over her. Plaintiff contends, for instance, 

that at one point, Kalsbeek controlled the budget of a course that Plaintiff and 

others co-taught, at which time Kalsbeek would set faculty meetings, determine the 

agenda for those meetings, and allegedly attempt to divert funds away from 

 

85

 See Kamara v. Horizon House, Inc., No. CV 13-6728, 2015 WL 9260031, at *10 (E.D. Pa. 

Dec. 18, 2015); Burlington v. News Corp., 55 F. Supp. 3d 723, 734 (E.D. Pa. 2014); LeBlanc 

v. Hill Sch., No. CIV.A. 14-1674, 2015 WL 144135, at *21 (E.D. Pa. Jan. 12, 2015); Isenhour 

v. Outsourcing of Millersburg, Inc., No. 1:14-CV-1170, 2015 WL 6447512, at *8 (M.D. Pa. 

Oct. 26, 2015); Nelson v. Allan’s Waste Water Serv., Inc., No. 2:11-CV-01334-TFM, 2013 

WL 4045787, at *4 (W.D. Pa. Aug. 8, 2013).

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Plaintiff.86 Plaintiff admits that the former Department Head restored any 

misappropriated funds.87 Thus, Plaintiff contends, Kalsbeek must be a “de facto” 

supervisor, because for approximately three to four academic semesters, he 

exercised “control over the funding of a workplace-program.”88

Kalsbeek was not Plaintiff’s supervisor for several reasons, most apparent of 

which is that one co-worker of equal status typically does not “supervise” his peers 

as a matter of law. After Vance, a supervisor must be “empowered by the employer 

to take tangible employment actions against the victim. The type of temporary 

control Kalsbeek exercised over Plaintiff, if it even can be termed as such, simply 

does not rise to the level of authority contemplated in Vance. Plaintiff’s own 

allegations reveal that Kalsbeek’s discretion was subject to review and was even 

reversed on some occasions. 

To operate efficiently, employers must afford employees at various levels of 

the institutional hierarchy some level of independent decision-making authority. 

What Vance teaches, however, is that supervisory status is determined not by the 

existence of minor pockets of “control” but by the force and extent of that control

as it relates to the employee’s ability to carry out tangible employment actions.

Here, Plaintiff fails to allege facts plausibly suggesting that Kalsbeek could at any 

 

86

 See ECF No. 32 at 17.

87

 Id.

88

 See id. at 16–17.

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31

time fire or promote her of his own accord. The evidence thus far adduced suggests 

that Kalsbeek’s altercations with Plaintiff were personal in nature, not supervisory 

or otherwise legally attributable to the managing branches of the University.

4. Plaintiff’s PHRA retaliation claim must also be dismissed 

because Plaintiff has failed to plausibly allege a causal 

connection between Kalsbeek’s conduct and any subsequent 

adverse employment action.

“In the absence of direct evidence of retaliation, retaliation claims under . . . 

the PHRA typically proceed under the McDonnell Douglas framework.”89 “[T]he 

employee bears the initial burden of establishing a prima facie case of 

retaliation.”90 “[The employee] must show: (1) protected employee activity; (2) 

adverse action by the employer either after or contemporaneous with the 

employee’s protected activity; and (3) a causal connection between the employee’s 

protected activity and the employer’s adverse action.”91

“Claims under the PHRA are interpreted coextensively with Title VII 

claims.”92 “[R]etaliation claims must be proved according to traditional principles 

of but-for causation, not the lessened [‘motivating factor’] causation test.”93 “This 

requires proof that the unlawful retaliation would not have occurred in the absence 

 

89

 Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005).

90

 Marra v. Philadelphia Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007) (Ambro, J.).

91

 Id. (internal quotations omitted).

92

 Atkinson v. LaFayette Coll., 460 F.3d 447, 454 (3d Cir. 2006).

93

 Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013) (Kennedy, J.).

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32

of the alleged wrongful action or actions of the employer.”94 “Throughout the 

burden-shifting exercise, the burden of persuasion, including the burden of proving 

but for causation or causation in fact, remains on the employee.”95

“It is important to emphasize that it is causation, not temporal proximity 

itself, that is an element of plaintiff’s prima facie case, and temporal proximity 

merely provides an evidentiary basis from which an inference can be drawn.”96

“The element of causation, which necessarily involves an inquiry into the motives 

of an employer, is highly context-specific.”97

In the instant context, Plaintiff has failed to alleged sufficient facts plausibly 

suggesting that her protected activity in any way caused Defendant Kalsbeek to 

retaliate against her. First, there are blatant temporal defects with any purported 

claim of retaliation against Kalsbeek. It seems fundamental that for protected 

activity to trigger an adverse action, such an adverse action must occur subsequent 

in time to the protected activity.

Moreover, in determining what might constitute an adverse action in this 

case for the purposes of gauging causality, the Supreme Court’s recent decision in 

 

94

 Id.

95

 Cridland v. Kmart Corp., 929 F. Supp. 2d 377, 385 (E.D. Pa. 2013) (internal quotations 

omitted).

96

 Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 178 (3d Cir. 1997).

97

 Id.

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Burlington Northern & Santa Fe Railway Co. v. White is insightful.

98 In that case, 

the Supreme Court stated that for an employment action to be a “materially 

adverse” action, “a plaintiff must show that a reasonable employee would have 

found the challenged action materially adverse, which in this context means it well 

might have dissuaded a reasonable worker from making or supporting a charge of 

discrimination.’”

99

The only action even plausibly rising to the level of material adversity under 

the Burlington Northern definition is the denial of tenure that ultimately led to 

Plaintiff’ departure from the University. Plaintiff’s application for tenure was 

denied on March 1, 2013.100 Confusingly, however, Plaintiff’s Second Amended 

Complaint avers—in a manner quite contradictory to a retaliation claim—that 

Plaintiff’s internal complaints as to Kalsbeek’s conduct did not occur until 2014, 

well after she had sustained the adverse action of tenure denial. For good reason, 

the law does not permit a purportedly aggrieved plaintiff, like Ms. La Coe here, to 

selectively prosecute retaliation claims against non-offending individuals by 

engaging in additional protected activity after incurring an adverse employment 

consequence.

Further, the paragraphs of Plaintiff’s Second Amended Complaint detailing 

 

98

 548 U.S. 53 (2006).

99

 Id. at 68.

100

 ECF No. 31 at 3.

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34

the alleged retaliation fall well short of the plausibility standard established by the 

Supreme Court in Twombly and Iqbal. Specifically, the Second Amended 

Complaint alleges the following two paragraphs:

108. Professor La Coe has complained to Penn State about his 

conduct, but it was never addressed adequately, and Professor 

Kalsbeek continued to disparage her in front of students and to 

mistreat her. 

109. To the extent possible, Professor Kalsbeek has acted with 

revenge and interfered with Professor La Coe’s well-being, 

advancement, performance, and reputation.101

Even taking as true that Kalsbeek “acted with revenge” or “interfered with 

[Plaintiff’s] well-being,” those allegations fall well short of facts plausibly entitling 

Plaintiff to relief under the guise of a retaliation claim. In fact, as the Supreme 

Court itself observed in the Burlington Northern decision, the entire purpose of 

requiring a “materially” adverse action is that courts must “separate significant 

from trivial harms.” 102 To her detriment, Plaintiff has suffered nothing more than 

trivial harms at the hands of her co-worker Kalsbeek. Because Plaintiff has failed 

to allege sufficient facts to plausibly establish a prima facie case of unlawful 

retaliation, in regard to both the causation and adverse action elements, Kalsbeek’s 

motion to dismiss the PHRA retaliation claim must be granted.

 

101

 Second Amd. Compl., ECF No. 27 ¶¶ 108–09.

102 Burlington Northern, 548 U.S. at 68.

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B. Plaintiff’s Section 1983 Claim Against Defendant Kalsbeek Must 

Be Dismissed.

Finally, Plaintiff brings denial of equal protection count pursuant to 42 

U.S.C. §1983 against Kalsbeek. Section 1983 provides, in pertinent part:

Every person who, under color of any statute, ordinance, regulation, 

custom, or usage, of any State or Territory or the District of 

Columbia, subjects, or causes to be subjected, any citizen of the 

United States or other person within the jurisdiction thereof to the 

deprivation of any rights, privileges, or immunities secured by the 

Constitution and laws, shall be liable to the party injured in an action 

at law, suit in equity, or other proper proceeding for redress . . . .

“It is for violations of such constitutional and statutory rights that 42 U.S.C. 

§ 1983 authorizes redress; that section is not itself a source of substantive rights, 

but a method for vindicating federal rights elsewhere conferred by those parts of 

the United States Constitution and federal statutes that it describes.”103 Success on 

a § 1983 claim requires proof of two elements. First, a Plaintiff must prove that she 

suffered a “violation of a right secured by the Constitution and laws of the United 

States.”104 Second, she must “show that the alleged deprivation was committed by 

a person acting under color of state law.”105

“The ultimate issue in determining whether a person is subject to suit under 

§ 1983 is the same question posed in cases arising under the Fourteenth 

Amendment: is the alleged infringement of federal rights fairly attributable to the 

 

103

 Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979).

104

 West v. Atkins, 487 U.S. 42, 48 (1988).

105

 Id.

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36

State?”106 The Supreme Court has commented that whether conduct is “fairly 

attributable to the State” depends upon “a two-part approach.”107 “First, the 

deprivation must be caused by the exercise of some right or privilege created by

the State or by a rule of conduct imposed by the state or by a person for whom the 

State is responsible.”108 “Second, the party charged with the deprivation must be a 

person who may fairly be said to be a state actor.”109 “Without a limit such as this, 

private parties could face constitutional litigation whenever they seek to rely on 

some state rule governing their interactions with the community surrounding 

them.”110

Given these stringent pre-requisites before a finding of state action may be 

made, “[c]ourts have generally declined to find liability under § 1983 against a coworker unless the harassment involved an abuse of authority or position.”111 In 

Andrews v. City of Philadelphia, the Honorable Max Rosenn, writing for the Third 

Circuit, explained that “[t]o bring a successful claim under 42 U.S.C. § 1983 for a 

denial of equal protection, plaintiffs must prove the existence of purposeful 

discrimination.”112 Judge Rosenn went on to clarify that “[s]upervisory liability 

 

106

 Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).

107

 Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982).

108

 Id.

109

 Id.

110

 Id.

111

 Washington-Pope v. City of Philadelphia, 979 F. Supp. 2d 544, 560 (E.D. Pa. 2013).

112

 Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3d Cir. 1990) (Rosenn, J.).

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37

cannot be based solely upon the doctrine of respondeat superior, but there must be 

some affirmative conduct by the supervisor that played a role in the 

discrimination.”113 “The necessary involvement can be shown in two ways,” Judge 

Rosenn added, “either through allegations of personal direction or of actual 

knowledge and or through proof of direct discrimination by the supervisor.”114

Specifically, when it came to cases such as this one, which allege violations 

of 1983 against a complainant’s supervisors as well as against a complainant’s 

low-level co-workers who “had done much of the actual harassing,” Judge Rosenn 

in Andrews affirmed the outright rejection by the district court of that portion of 

the 1983 claim alleged against the co-workers.115 Were it not for such an outcome, 

“[a]s a practical matter this would allow plaintiffs to essentially bring two identical 

causes of action against the same parties. It would also allow plaintiffs to 

circumvent the strictures of respondeat superior liability, including the lack of 

respondeat superior liability under section 1983.”116 “The district court rejected 

such a tactic and we agree.”117

In the instant case, the Court believes that certain of the same shortcomings 

that neutralized Plaintiff’s PHRA claims necessarily foreclose her bringing a 

 

113 Id.

114 Id (internal quotations omitted).

115

 Id. at 1488.

116

 Id.

117

 Id.

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38

successful 1983 claim against Defendant Kalsbeek personally, as a matter of law.

Specifically, Plaintiff’s 1983 claims Kalsbeek must fail for two separate, 

independent reasons. First, Kalsbeek, as mere co-worker who exercised no 

supervisory authority over Plaintiff, is not subject to 1983 liability. Second, 

Plaintiff’s 1983 claims against Kalsbeek are time-barred.

As a starting point, I have already concluded that Kalsbeek did not function 

in a supervisory capacity in relation to Plaintiff. That analysis, which considered 

Defendant Kalsbeek’s inability to carry out tangible employment actions, among 

other relevant factors enumerated by the Supreme Court in Vance, applies with 

equal force to the Section 1983 context. This lack of supervisory control 

establishes that Kalsbeek does not meet the legal pre-requisites for individual 

liability under Section 1983. Furthermore, Plaintiff has offered no facts plausibly 

suggesting affirmative conduct on the part of the University that sanctioned or 

otherwise directed Kalsbeek’s actions in a way that would sweep them within an 

indirect respondeat superior theory of liability. Thus, because I conclude that 

Kalsbeek’s actions were personal and necessarily not committed “under the color 

of state law,” Plaintiff’s Section 1983 claims against him must be dismissed.

Second, as far as the statute of limitations is concerned, “In a Section 1983 

claim, a court must look to the state’s statute of limitations for personal injury 

claims; therefore, the law is well-settled that the statute of limitations for a Section 

Case 4:14-cv-01818-MWB Document 39 Filed 03/24/16 Page 38 of 40
39

1983 claim in Pennsylvania is two years.”118 As best as the Court can discern, 

Plaintiff’s alleged confrontations occurred well beyond the two-year statutory 

period as prescribed by law, dating in fact in most instances as far back as the 2004 

academic year and subsequent semesters. Because I have already held that the 

continuing violation theory is insufficient to save these isolated, discrete incidents 

of alleged harassment from the PHRA’s explicit limitations period, the same is 

necessarily true in the Section 1983 context. Thus, because those discrete incidents 

fall well beyond the reach of Section 1983’s two-year statute of limitations, they 

cannot be considered and for this subsequent reason, Plaintiff’s Section 1983 claim 

is dismissed for this subsequent reason.

IV. CONCLUSION

A most difficult, yet fundamental determination for a lawyer is the initial 

decision of whom to sue and what claims to bring. Undoubtedly, the academic and 

legal debates as to the merits of broad, scattershot pleading will persist in various 

forms. What can be gleaned from this case, however, is that, rather unfortunately 

for Plaintiff, her primary claims have been put on hold pending disposition of what 

ultimately amounted to mere tertiary issues in the grand scheme of this litigation. 

What impact the instant analysis on the prosecution of Plaintiff’s core claims 

has had is a matter worth considering, but ultimately a matter for another day. It 

 

118

 Johnson v. Dep’t of Corr., No. 1:14-CV-0896, 2014 WL 5823092, at *4 (M.D. Pa. Nov. 10, 

2014) (Kane, J.).

Case 4:14-cv-01818-MWB Document 39 Filed 03/24/16 Page 39 of 40
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suffices to state that all claims brought against Defendant Kalsbeek are 

procedurally defective and supported by insufficient plausible facts. As such, all 

claims against Kalsbeek are dismissed with prejudice.

An appropriate Order follows.

BY THE COURT:

/s Matthew W. Brann

Matthew W. Brann

United States District Judge

Case 4:14-cv-01818-MWB Document 39 Filed 03/24/16 Page 40 of 40