Howell v. Millersville Univ. of Pa.

283 F.Supp.3d 309

Allen HOWELL, Plaintiff,

v.MILLERSVILLE UNIVERSITY OF PENNSYLVANIA; Micheal Houlahan; Phillip Tacka; N. Keith Wiley; Christy Banks; and Diane Umble, Defendants.

No. 5:17–cv–00075

United States District Court, E.D. Pennsylvania.

Signed October 20, 2017

Filed October 23, 2017

Jacob M. Simon, James B. Lieber, Thomas M. Huber, Lieber Hammer Huber & Paul, P.C., Pittsburgh, PA, for Plaintiff.

Sue Ann Unger, PA Office of Attorney General Litigation Section, Philadelphia, PA, for Defendants.

OPINION

Defendants' Motion to Dismiss the Third Amended Complaint in Part Against Millersville, ECF No. 40—Granted

Defendants' Motion for Summary Judgment, ECF No. 41—Granted

JOSEPH F. LEESON, JR., United States District Judge

I. INTRODUCTION

Plaintiff Dr. Allen Howell filed this action against Millersville University of Pennsylvania and several fellow members of the Millersville University Music Department: Dr. Micheál Houlahan, Dr. Phillip Tacka, Dr. N. Keith Wiley, Dr. Christy Banks, and Dean Diane Umble. Plaintiff alleges age discrimination and age-related hostile work environment against the individual Defendants in their official capacities in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 – 634 ; retaliation under the First Amendment pursuant to 42 U.S.C. § 1983 against the individual Defendants in their individual and official capacities; and aiding and abetting age discrimination and age-related hostile work environment against the individual Defendants in violation of the Pennsylvania Human Relations Act ("PHRA"), 43 P.S. §§ 951 – 963. Presently pending are Defendants' Motion to Dismiss the Third Amended Complaint in Part as to Millersville University, ECF No. 40, and Defendants' Motion for Summary Judgment, ECF No. 41. For the reasons set forth herein, both motions are granted.

II. BACKGROUND

A. Procedural Background

Howell filed his Third Amended Compliant on August 22, 2017, alleging that he suffered age discrimination when the Music Department of Millersville denied him a promotion, demoted him from the position of Director of Choral Activities, and subjected him to two internal investigations, and that various members of the Department retaliated against him for exercising his First Amendment rights. ECF No. 39. Defendants filed their Motion to Dismiss the Third Amended Complaint in Part on September 1, 2017, arguing that although Howell included Millersville University of Pennsylvania as a defendant in the caption of his Third Amended Complaint, he brings no claims against the University in any of the five counts of his Third Amended Complaint. ECF No. 40. On the same day, Defendants filed their Motion for Summary Judgment. ECF No. 41. Howell filed a Response to the Motion to Dismiss on September 15, 2017, ECF No. 54, and a Response to the Motion for Summary Judgment on September 22, 2017, ECF No. 57.

B. Factual Background

The following facts are either undisputed or viewed in the light most favorable to Howell, the non-moving party.

From 1996 through the spring of 2014, Dr. Allen Howell taught music education and conducted non-auditioned choirs in the music department of Edinboro University. Defs.' Stat. Facts ¶ 1, ECF No. 41–1; Pl.'s Resp. to Stat. Facts ¶ 1, ECF No. 57. When he learned in late 2013 that Edinboro was retrenching him, Howell applied for the Director of Choral Activities position at Millersville University, a tenure-track position with the rank of Associate Professor. At the time that this position was advertised, Dr. Jeffrey Gemmell, an adjunct professor with a doctoral degree in choral conducting who is the same age as Howell, conducted Millersville's choirs. Howell Dep. 213:6, Pl.'s Ex. B, ECF No. 57–3.

Under the collective bargaining agreement with Howell's faculty union and the Pennsylvania State System of Higher Education (PASSHE), Howell's application was to be judged as to whether he was "minimally qualified" for the position, which was a very low standard. Defs.' Stat. Facts ¶ 5; Pl.'s Resp. to Stat. Facts ¶ 5; Houlahan Dep. 68:1–15, 95:18–98:21, Pl.'s Ex. H, ECF No. 57–12; Banks Dep. 40:1–12, Pl.'s Ex. D, ECF No. 57–8. The Music Department faculty assessed Howell's application first and the President of the University made the final decision. Defs.' Stat. Facts ¶ 7; Pl.'s Resp. to Stat. Facts ¶ 7; Houlahan Dep. 68:17–24. The Music Department concluded that Howell was not minimally qualified: faculty members expressed concerns about Howell's familiarity with the repertoire of choral music. Additionally, some faculty felt that Howell's degree did not qualify him for the position. The advertised position stated that a doctorate in choral conducting was "preferred," but that an applicant, at minimum, should have completed all the requirements for a doctorate in Choral Conducting except the dissertation. Banks Decl. ¶ 7; Banks Dep. 48–51; Defs.' Ex. D17, ECF No. 47–1. Howell has a Doctorate of Musical Arts with a primary concentration in Music Education and a secondary concentration in Choral Conducting. Howell Dep. at 20–21, 193; Pl.'s Ex. 98, p. 2, ECF No. 57–7. Regardless, the President of the University found Howell to be minimally qualified and, against the Department's recommendation, offered him a position as Director of Choral Activities at the rank of Associate Professor with tenure. Defs.' Ex. 83, ECF No. 45–6.

In the fall of 2014, Howell began teaching the required credits per year, with extra pay for overloads. Houlahan Decl. ¶ 16, ECF No. 43–7. Howell directs the non-auditioned Men's Glee Club, a standard activity for a choral director. Prabhu Dep. 87: 23–24, Pl.'s Ex. M, ECF No. 57–17; Howell Dep. 68:4–8, 69:6–9. However, he does not conduct the Department's two auditioned choirs or the Women's Choir, which Gemmell still conducts. Gemmel Decl. ¶ 2, ECF No. 43–6.¹ Gemmell states that these three groups "perform a more extensive, complex repertoire at a consistently higher level of musicality than the level of the Men's Glee Club," which aims at a "fun-based experience more than curriculum-based learning." Id. In November, Howell met with Defendant Dr. Micheál Houlahan, Chair of the Music Department, concerning critical comments from students and faculty about Howell's performance. Defs.' Stat. Facts ¶ 18; Pl.'s Resp. to Stat. Facts ¶ 18. Howell reiterated his credentials to Chair Houlahan and asked to direct the more advanced choral ensembles in addition to the Men's Glee Club. Id. In December 2014, Howell and Dr. Toney, another retrenchee hired at the same time as Howell, met with Defendant Dean Diane Umble and complained about Chair Houlihan's micromanagement of the Department and course assignments. Defs.' Exs. 142, 142A, ECF Nos. 45–15, 45–16.

In June 2015, Howell sent an email to the entire Music Department and Dean Umble, stating that he refused to comply with the Department policy requiring students to buy specific lecture notes to defray the cost of live concerts and objected to the requirement that the students attend those concerts. Defs. Exs. 5, 8, ECF No. 44–1; Wiley Dep. 116–119, ECF No. 42–9; Umble Dep. 196–199, ECF No. 42–8. By November 2015, the Dean's office knew of three complaints about Howell's Popular Music Class: one concerning an explicit and violent music video he had shown in class, another complaining about his unstructured teaching style and open syllabus—and changing that style to "appease" Chair Houlahan on the day he observed class—and a third complaint alleging Howell's inappropriate behavior with his significant other while manning a recruitment table at a school event. Defs.' Ex. 94, ECF No. 45–9; Defs.' Exs. D7, D8, D9, ECF No. 46–1. Dean Umble and Howell met to discuss the complaints, and Dean Umble reported the results to Provost Prabhu, who considered Howell's teaching style unorthodox. Defs.' Exs. 94, D9.

In Fall 2015, Howell applied for promotion to full professor. Defs.' Ex. 144, ECF No. 45–17; Defs.' Ex. D13, ECF No. 47–1. Promotion criteria as listed in the Millersville University Promotion Statement include: (1) outstanding teaching, (2) service to the department and the University, and (3) evidence of scholarly program with sustained accomplishments in peer-reviewed scholarship. Prabhu Decl. ¶ 10, ECF No. 43–9; Defs.' Ex. 65, ECF No. 44–8. The Department's professional development committee reviewed Howell's application; the committee included Defendant Dr. N. Keith Wiley and Defendant Dr. Phillip Tacka. Wiley Dep. 140–141, 160. Because Howell had only been at Millersville for two years, and the prerequisites for promotion ordinarily required five years as an associate professor, the committee considered his application under the "Exceptional" clause, which allowed unusually qualified candidates early promotion if they met the levels of expectation in all three of the promotion criteria and exceeded them in two out of the three. Defs.' Exs. 22, 23, ECF No. 44–2; Millersville University Promotion Statement p. 8, attached to Prabhu Decl. The committee unanimously recommended against promotion, concluding that Howell's documents included student evaluations from only four classes he taught as opposed to the required five, and that although Howell's CV listed various professional activities, only four of them occurred in the previous four years, and he presented no documentation to support them. Id. Chair Houlahan and Dean Umble both agreed with the committee. Defs.' Exs. 23–24, ECF No. 44–2; Umble Dep. 219:10–14, 227:1–228:2. Lastly, the University-wide promotion and tenure committee considered Howell's application independently and unanimously determined not to recommend him for promotion. Defs.' Stat. Facts ¶ 38; Pl.'s Resp. to Stat. Facts ¶ 38; Defs.' Ex. 32, ECF No. 44–3.

In 2016, Howell was the subject of an "Article 43" investigation, carried out pursuant to Article 43 of the Collective Bargaining Agreement to resolve a complaint against Howell.² DeSantis Decl. ¶¶ 2–3, ECF No. 43–3. The complaint...