NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________

No. 13-1600

_________

KEITH R. KULL, ED.D.,

Appellant

v.

KUTZTOWN UNIVERSITY OF PENNSYLVANIA

 

________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 5-11-cv-06512)

District Judge: Honorable Berle M. Schiller

_______

Submitted Under Third Circuit LAR 34.1(a)

October 29, 2013

Before: FISHER, JORDAN, and SLOVITER, Circuit Judges

(Filed: October 31, 2013)

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OPINION

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SLOVITER, Circuit Judge.

Dr. Keith R. Kull (“Kull”), appellant, was employed as an Assistant Professor in 

the Mathematics Department at Kutztown University of Pennsylvania (“the University”). 

The University denied Kull tenure and terminated him after six years of employment with 
2

the University. Kull sued the University, alleging that the University denied him tenure 

and terminated him on the basis of his gender, in violation of Title VII of the Civil Rights 

Act of 1964, 42 U.S.C. § 2000e et seq. 

After a jury verdict in favor of the University, the District Court entered judgment 

accordingly. Kull filed a timely appeal. He then also filed, pro se, a “Motion for 

Extension of Time to File a Motion for New Trial.” The District Court denied the motion

on the ground that the notice of appeal divested it of jurisdiction. Kull appeals the 

District Court’s denial of his pro se motion, its decision to give the jury a Title VII 

“pretext” instruction as distinguished from a “mixed-motives” instruction, and its failure 

to grant him a new trial. For the reasons that follow, we will affirm.1

I.

Because we write for the benefit of the parties, we will recount only the essential 

facts. The University hired Kull as a tenure-track Assistant Professor in the Mathematics 

Department, and he started teaching in the fall semester of 2004. Under the applicable

Collective Bargaining Agreement (“CBA”), tenure-track faculty members serve for five 

years on probationary status, during which time their contract is subject to annual 

renewal. After five years, the faculty members may apply for tenure and promotion. If a 

tenure-track faculty member is denied tenure, his or her contract is terminated at the end 

of the following year. 

 

1

The District Court had subject matter jurisdiction over Kull’s Title VII claim pursuant 

to 28 U.S.C. § 1331. This court has jurisdiction over the final order of the District Court 

pursuant to 28 U.S.C. § 1291. As explained below, Kull’s attempts at post-trial relief do 

not divest this court of appellate jurisdiction.
3

The President of the University, or his or her designee, makes the ultimate 

decisions as to contract renewal, tenure, and promotion. Tenure decisions are based on 

recommendations by the University Tenure Committee. 

The CBA specifies three broad categories for evaluating faculty member 

performance: effective teaching and fulfillment of professional responsibilities, 

continuing scholarly growth, and service to the University and community. In the first 

three years of his employment, Kull received an overall rating of “Good” (on a scale of 

“Excellent,” “Good,” “Fair,” and “Unsatisfactory”) from both the Promotion, Evaluation, 

and Tenure (“PET”) committee and the department chair. In his fourth year, Kull 

received individual ratings of “Good” from four members of the PET committee, ratings 

of “Fair” from five members, and a rating of “Unsatisfactory” from one member. Four 

members of the PET committee voted against recommending his renewal that year. The 

department chair voted in favor of his renewal. The department dean recommended his 

renewal “with serious reservation.” In his fifth year, Kull received one rating of “Good,” 

five ratings of “Fair,” and five ratings of “Unsatisfactory.” The department chair gave 

him a rating of “Good.” 

Kull applied for tenure in his fifth year. The PET committee, composed of six 

women and five men, voted against recommending tenure 9-2. At least one of the votes 

in favor of tenure was cast by a woman. The committee, in a memorandum explaining its 

decision, cited persistent concerns with Kull’s interpersonal skills and professionalism in 

the classroom, his tendency to make mistakes in class, his scholarly progress, and his 

student evaluations. The department chair, also a man, recommended against tenure, 
4

though he considered Kull’s scholarly progress sufficient. Based on these 

recommendations, the President’s designee denied Kull’s application for tenure. In light 

of the denial of tenure and pursuant to the CBA, the University terminated Kull’s 

employment at the end of his sixth year.

Kull then filed suit, alleging that the University had denied him tenure because of 

his gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et 

seq. In support of his claim, Kull pointed to the University’s decisions to grant tenure to 

three women he claimed were less qualified than he was, and its decision not to renew 

the contract of Dr. Brad Slonaker, a man. He alleged that these actions showed that the 

University held women to “fewer and less stringent criteria” than men. 

At trial, Kull highlighted his receipt of a Doctorate in Education, seven 

publications, numerous conference presentations, and work in developing a new course. 

He contrasted these accomplishments with the pre-tenure records of women professors 

who had been granted tenure, such as Dr. Anke Waltz, whose only publication was a 

book she translated from German to English, and Dr. Lyn Phy, who had no publications. 

The District Court gave the jury an instruction, modeled on Third Circuit Model 

Jury Instructions 5.1.2 (Elements of a Title VII Claim–Disparate Treatment – Pretext), 

stating that Kull had the burden of proving that “his gender was a determinative factor in 

Kutztown University’s decision to not grant him tenure.” 

The jury found in favor of the University. The District Court entered judgment 

accordingly on January 31, 2013. Kull filed a notice of appeal on March 1, 2013. On 

March 11, 2013, he also filed, pro se, a motion that the District Court construed as 
5

requesting a thirty-day extension to file a motion for new trial. In his motion, Kull 

explained his understanding that he had “to file a Motion for a New Trial in order to 

‘preserve’ certain issues for the appeals court to review.” The District Court denied the 

motion, citing Fed. R. Civ. P. 59(b), according to which the deadline for Kull to file a 

motion for new trial expired on February 28, 2013, as well as Fed. R. Civ. P. 6(b)(2) 

which prohibited extensions of that deadline. The District Court also held that it was 

without jurisdiction to grant the motion as a result of Kull’s timely notice of appeal.

II.

Kull first argues that the District Court erred in denying his pro se motion which 

the District Court construed as a motion for an extension of time to file a motion for a 

new trial—the filing itself contains no specific heading. 

If construed as a request for an extension of time to file a post-trial motion, Kull 

concedes that the District Court could not grant his motion. “A court must not extend the 

time to act under Rules . . . 59(b) . . . and 60(b).” Fed. R. Civ. P. 6(b)(2). Thus, whether

the District Court construed Kull’s motion as a Rule 60(b) motion for relief from 

judgment or a Rule 59(b) motion for a new trial, the District Court could not have granted 

an extension. Moreover, if Kull’s pro se motion were construed as a Rule 59(b) motion, 

it could not be granted because such motions must be made within 28 days of entry of 

judgment. Thus, Kull had to file a Rule 59(b) motion by February 28, 2013, and his pro 

se motion filed on March 11, 2013 would have been untimely. 

Kull argues instead that the District Court should have construed his motion as a 

Rule 60(b) motion for relief from a final judgment. However, as mentioned above, this 
6

argument too must fail. Federal Rule of Civil Procedure 6(b)(2) also bars courts from 

extending the time to act under a Rule 60(b) motion. Moreover, as the District Court 

pointed out, it no longer retained jurisdiction over the case after Kull filed a timely notice 

of appeal. Generally, a notice of appeal divests the District Court of jurisdiction “over 

those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Disc. 

Co., 459 U.S. 56, 58 (1982). 

Although certain post-trial motions preserve jurisdiction in the District Court for 

the purposes of disposing of the motion, that is not the case under a Rule 60(b) motion. 

A Rule 60(b) motion preserves jurisdiction in the District Court only if filed no later than 

28 days after judgment is entered. Fed. R. App. P. 4(a)(4)(A)(vi). Because Kull’s 

motion was not filed within that time, the District Court lacked jurisdiction to grant 

Kull’s pro se motion even if it had treated it as a Rule 60(b) motion. 

Finally, Kull urges that, nonetheless, the District Court could have proceeded 

under Rule 62.1—by providing an indicative ruling on a motion for relief that is barred 

by a pending appeal. See Fed. R. Civ. P. 62.1(a)(3). Kull argues that the District Court 

could have entered an order indicating to this court that it was inclined to grant the 

motion for a new trial, and would act on it if we remanded for that purpose. However, 

under Rule 62.1(a)(2), the District Court had discretion to deny the motion. 

Although there is not binding precedent, the standard applied in such 

circumstances is abuse of discretion. We will apply that standard here. The District 

Court did not abuse its discretion in treating Kull’s pro se motion as a request for an 

extension of time to file a motion for a new trial because that is the relief Kull requested. 
7

Further, we note that Kull was without counsel for only a short time. His attorney filed 

an appearance in this appeal just eleven days after Kull filed his pro se motion. Kull

could have filed an appropriate Rule 62.1 motion at that time, but did not. 

III.

Kull next argues that the District Court erred in giving the jury a Title VII 

“pretext” instruction, when a “mixed motives” instruction was allegedly appropriate. 

Because Kull did not object to the jury instructions at trial, we will review the District 

Court’s decision for plain error. Fed. R. Civ. P. 51(d)(2). Under the plain error standard, 

this court considers “the obviousness of the error, the significance of the interest 

involved, and the reputation of judicial proceedings if the error stands uncorrected.” 

Franklin Prescriptions, Inc. v. New York Times Co., 424 F.3d 336, 340-41 (3d Cir. 2005)

(quotations and citation omitted).

“Whether a case is a pretext case or mixed-motives case is a question for the court 

once all the evidence has been received.” Starceski v. Westinghouse Elec. Corp., 54 

F.3d 1089, 1098 (3d Cir. 1995) (citation omitted). In a pretext case, the plaintiff must 

show that gender was a “determinative factor” in an adverse employment decision, while 

in a mixed-motives case, the plaintiff need only show that gender was a “substantial 

motivating factor.” See Watson v. SEPTA, 207 F.3d 207, 215 (3d Cir. 2000). A plaintiff 

must demonstrate with “sufficiently direct” evidence that gender was a motivating factor 

in the employer’s decision to warrant a mixed-motives instruction. See id. 

The District Court did not commit plain error in treating this as a pretext case and 

instructing the jury accordingly. Kull did not present “sufficiently direct” evidence that 
8

gender played a role in the University’s decision. The evidence Kull presented was 

circumstantial. He testified that certain women had been tenured despite having fewer 

publications, while a man’s contract had not been renewed. From this circumstantial 

evidence, the jury was to conclude that the University applied less stringent criteria to 

women. It is not “sufficiently direct” evidence to justify a mixed-motives instruction

under Watson. Moreover, Kull represented in his proposed jury instructions that his 

claim was one of “Disparate Treatment – Pretext.” Therefore, the District Court did not 

err in treating this as a pretext case rather than a mixed-motives case and instructing the 

jury accordingly.

IV.

Kull lastly argues that the District Court erred in refusing to grant him a new trial, 

on the ground that the jury verdict in the case is against the weight of the evidence. This 

argument cannot be entertained because Kull did not timely move for a new trial. “[N]ew 

trials because the verdict is against the weight of the evidence are proper only when the 

record shows that the jury’s verdict resulted in a miscarriage of justice or where the 

verdict, on the record, cries out to be overturned or shocks our conscience.” Williamson 

v. Consol. Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991) (citation omitted). The record 

shows that between 2003 and 2012 the University granted tenure to every faculty 

member in the Mathematics Department who applied, four men and four women, except 

Kull. It also shows that evaluators were consistently worried about Kull’s interpersonal 

skills and behavior in class, and that the women professors who were granted tenure with 

fewer publications had compensating strengths, like exceptional student evaluations. The 
9

jury heard this evidence and concluded that the University’s stated reasons for denying 

Kull tenure were not pretextual. On the record before us, we cannot say that the jury’s 

verdict shocks the conscience or “cries out to be overturned.” Williamson, 926 F.2d at 

1353.

V.

For the aforementioned reasons we will affirm the District Court’s denial of Kull’s 

March 11, 2013 motion and its order entering judgment in favor of the University.