Harisadhan Patra v. Pennsylvania State System of H ( 2023 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-2320
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HARISADHAN PATRA; PETULA VAZ,
Appellant
v.
PENNSYLVANIA STATE SYSTEM OF HIGHER EDUCATION;
BLOOMSBURG UNIVERSITY, of Pennsylvania; FRANK T. BROGAN,
individually and in his official capacity as Chancellor; DAVID SOLTZ,
individually and in his official capacity as President of Bloomsburg
University; RICHARD ANGELO; JORGE E. GONZALEZ; IRA BLAKE;
ROBERT P. MARANDE; THOMAS R. ZALEWSKI
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 4-14-cv-02265)
District Judge: Honorable Matthew W. Brann
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 4, 2021
Before: MCKEE, SHWARTZ and RESTREPO, Circuit Judges
(Opinion filed July 19, 2023)
_________
OPINION*
_________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Harisadhan Patra and Petula Vaz appeal pro se from the District Court’s order
granting summary judgment to the defendants. We will affirm the District Court’s
judgment.
I.
Patra and Vaz, who are married and originally from India, were hired as professors
at Bloomsburg University in 2010. The plaintiffs alleged that, during their interview,
Defendants Richard Angelo (the Department Chair at the time) and Robert Marande (the
College Dean) orally agreed to cover the couple’s relocation costs and provide them with
75,000 dollars in “start-up funds” for two laboratories with specific equipment. See ECF
No. 73-2 at 17 [hereinafter “Vaz Dep.”]. Angelo and Marande also assured the couple
that they would be allowed to teach in their areas of expertise. These oral agreements
were not included in the plaintiffs’ written contracts. See ECF Nos. 72-4 at 83 (Patra’s
contract) and 72-8 at 114 (Vaz’s contract); see also ECF No. 73-1 at 35 [hereinafter
“Patra Dep.”] (explaining Patra’s unsuccessful efforts to formalize the oral agreements).
Upon the plaintiffs’ arrival at Bloomsburg in August 2010, Angelo and Marande
reneged on their oral agreements, citing department-wide financial issues. In their
depositions, Patra and Vaz asserted that they were denied relocation and start-up costs
and given inadequate lab space and equipment, while other professors received start-up
funds and had well-equipped labs. Unlike her colleagues, Vaz was not assigned to teach
2
in her area of expertise. She was also made to teach a consolidated course, giving her, in
essence, five courses rather than the usual four. Additionally, another professor,
Defendant Jorge Gonzalez, was arrogant and disrespectful to the plaintiffs.
Like all new hires, the plaintiffs were evaluated annually to determine whether
their appointments would be renewed.1 During their first year, Patra and Vaz received
overall positive evaluations. The Provost observed that Patra had started to establish his
lab and was expected to pursue his research agenda. He described Vaz’s departmental
service as “admirable.” ECF No. 72-9 at 1. Two evaluators noted that Patra needed to
provide clearer explanations to his students, and the Provost stated that Vaz’s student
evaluations indicated “room for improvement.” See id. Marande encouraged Vaz to
participate on a university-wide committee. The plaintiffs’ contracts were renewed.
The following year, the plaintiffs continued to have disputes with the department
about their funding and equipment needs. According to the plaintiffs, Angelo became
increasingly hostile. On February 23, 2012, after Patra confronted him about his alleged
misappropriation of the plaintiffs’ internal grant funds, Angelo became irate and
“completely lost it,” screaming at Patra. See Vaz Dep. at 22–23.
Patra’s second-year evaluations were mixed. He was commended for his
publication record; however, the evaluation committee expressed concern about his
1
The evaluators included the Department Chair, other professors from Patra and Vaz’s
department, and several non-departmental administrators.
3
teaching, observing that most of his students “have a hard time following or
understanding [Patra’s] explanations.” ECF No. 72-5 at 34–35. Patra was also
encouraged to secure external grant funds. Vaz’s evaluations were more positive, noting
that her teaching had improved. She was again encouraged to pursue university-wide
service opportunities. The plaintiffs’ contracts were again renewed.
The following fall, Angelo (who had been promoted to Assistant Dean) and
Gonzalez (who had become the Department Chair) made several offensive remarks to the
plaintiffs about their race and religion.2 Angelo mocked the Hindu practice of making
food offerings to God, see Vaz Dep. at 58–59, and Gonzalez told Patra that “Indian men
have vaginas” and “cannot control their wives,” Patra Dep. at 97. More than once,
Gonzalez told the plaintiffs that if he were not a professor, he would be a “sniper,” and
that there are “some people in the world who deserve to be taken out.” Vaz Dep. at 63–
64.
In December 2012, the plaintiffs submitted charges of discrimination to the Equal
Employment Opportunity Commission (“EEOC”). Soon after, Patra’s teaching
assignments were changed, and Gonzalez began to surveil and “stalk” the plaintiffs. See
id. at 105–06. To escape the abusive work environment at Bloomsburg, Patra and Vaz
2
The plaintiffs do not know exactly when or how often these comments were made.
Patra alleged that Angelo made ethnically offensive comments for the first time in 2011
and “several times” in 2012. See Patra Dep. at 89. Gonzalez’s comments were made in
2012, but he kept making “[t]hese types of comments” after 2012. Id. at 99–100.
4
applied for openings at Utah State University. Utah State offered them the positions,
which they accepted in early 2013. However, the couple decided to remain at
Bloomsburg. In March 2013, the plaintiffs made additional EEOC complaints.
Additionally, in fall 2012, Patra and Vaz discovered that the graduation statistics
being published by their department were incorrect and reported the inaccuracies to
Angelo, Marande, and Gonzalez. They continued to raise the issue in department
meetings and e-mails to administrators throughout the school year.
The plaintiffs’ third-year evaluations were worse than before. Patra’s student
reviews had plummeted, and several students had met with Marande to discuss Patra’s
problematic teaching and grading practices. The evaluation committee observed that
Vaz’s teaching had continued to improve but expressed concern that her publications to
date had been made using her previous affiliation with the University of Nebraska, not
Bloomsburg. Gonzalez and Marande noted that Vaz had not used the clinical space or
equipment provided to her. The Provost opined that Vaz’s lack of research development
was reasonable given that she had been focused on improving her teaching, but suggested
that, moving forward, she work with the department to establish an “aggressive timeline”
for establishing a functional lab. ECF No. 72-10 at 49. The plaintiffs’ contracts were
renewed, although three evaluators recommended against Patra’s renewal.
The plaintiffs alleged that, throughout their fourth year, Gonzalez continued to
generally intimidate and harass them. They filed additional EEOC charges in October
5
2013 and raised numerous internal complaints via e-mail and in meetings with
administrators. They asserted that department and university administrators conspired to
harass them and thwart their success in retaliation for their filing EEOC charges and
whistleblowing about the inaccurate graduation rates.
In early 2014, the plaintiffs were notified that their contracts at Bloomsburg would
not be renewed. Patra’s student evaluations had shown no improvement, and there were
severe inadequacies with regard to his research and departmental service. While Vaz’s
undergraduate student evaluations were positive, a large number of her graduate students
rated her as “average.” See ECF No. 72-11 at 27. She also had not progressed in
developing an independent line of research at Bloomsburg, nor had she attempted to
receive outside funding. The evaluators noted that tenure-track professors are expected
to demonstrate not only strength in teaching, scholarship, and service, but also continual
improvement—and that Vaz had stagnated or even regressed in the areas of research and
service. The departmental evaluation committee’s decisions not to renew were
unanimous as to both Patra and Vaz and supported by the university-wide tenure
committee.
In November 2014, the plaintiffs filed a complaint in the District Court against the
University, its state-controlled parent organization, and several Bloomsburg employees,
alleging: (1) Title VII discrimination and retaliation based on their race and religion,
(2) retaliation in violation of the First Amendment, (3) conspiracy under 42 U.S.C.
6
§ 1983, and (4) violations of state law. The defendants moved for summary judgment.
The District Court granted the motion on procedural grounds, citing the plaintiffs’ non-
compliance with the Federal Rules of Civil Procedure. The plaintiffs appealed, and we
issued a partial remand to revisit the merits of the plaintiffs’ claims. See Patra v. Pa.
State Sys. of Higher Educ., 779 F. App’x 105 (3d Cir. 2019). With direction from the
District Court, the plaintiffs submitted a new brief in opposition to the defendants’
motion. Addressing the merits of the plaintiffs’ case, the District Court determined that
the defendants were entitled to judgment as a matter of law. Patra and Vaz appealed.3
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
plenary review over the District Court’s grant of summary judgment. See Blunt v.
Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). Summary judgment is
proper “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Although
“[w]e view the facts and draw all reasonable inferences in the non-movant’s favor,” we
will conclude that “[a] disputed issue is ‘genuine’ only if there is a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving party.” Resch v. Krapf’s
3
To the extent that Patra and Vaz now challenge the District Court’s orders regarding the
deposition schedule, see ECF Nos. 58 and 61; Appellants’ Br. at 76–78 (explaining that
the plaintiffs “do not seek reversal” of these orders), the issue is forfeited because it was
not raised in their prior appeal, see Beazer E., Inc. v. Mead Corp., 525 F.3d 255, 263 (3d
Cir. 2008).
7
Coaches, Inc., 785 F.3d 869, 871 n.3 (3d Cir. 2015). We may affirm for any reason
supported by the record. Brightwell v. Lehman, 637 F.3d 187, 191 (3d Cir. 2011).
III.
We first address the plaintiffs’ Title VII discrimination claims. To establish a
prima facie case of disparate treatment under Title VII, Patra and Vaz were required to
show that: (1) they belong to a protected class, (2) they were qualified for the positions
they occupied, and (3) they were subject to an adverse employment action (“AEA”)
(4) under circumstances that give rise to an inference of unlawful discrimination. See In
re Tribune Media Co., 902 F.3d 384, 401 (3d Cir. 2018). After a prima facie case is
made, the burden shifts to the defendants to offer a legitimate, non-discriminatory reason
for the AEA. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Then, the
burden shifts back to the plaintiffs to demonstrate that the defendants’ reason was, in fact,
pretext for discrimination. Id. at 803–04.
Patra and Vaz argue that the District Court erred in concluding that the
defendants’ negative fourth-year evaluations and the non-renewal of their contracts were
the only AEAs that they suffered. See Mem. Op., ECF No. 109 at 13–14. They claim
that the record supports additional AEAs: (1) the defendants’ failure to provide them with
promised relocation costs and start-up funds, (2) the defendants’ failure to provide them
with functional labs and equipment, and (3) the defendants’ failure to provide them with
teaching opportunities in their areas of expertise and summer teaching opportunities. See
8
Appellants’ Br. at 44–45. This argument is unavailing because the plaintiffs failed to
establish that the additional AEAs arose under circumstances that could give rise to an
inference of discrimination.
Declining to provide the plaintiffs with funds, equipment, or teaching
opportunities could be considered AEAs. See Weston v. Pennsylvania, 251 F.3d 420,
431 (3d Cir. 2001) overruled in part on other grounds by Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53 (2006) (explaining that an AEA is one that renders a “material
change” in working conditions). However, “[t]he central focus of the prima facie case is
always whether the employer is treating some people less favorably than others because
of their race, color, religion, sex, or national origin.” Sarullo v. U.S. Postal Serv., 352
F.3d 789, 798 (3d Cir. 2003) (per curiam) (internal quotation marks and citation omitted).
Here, the record does not support an inference that Patra and Vaz were denied funds or
opportunities that other professors in the department received—let alone that the
defendants denied them such things on account of their race or religion.
The plaintiffs’ allegations that they were treated differently than their non-Indian
peers are, for the most part, vague, speculative, and riddled with contradictions. For
example, Patra’s assertion that he was asked to give some research equipment to a non-
Indian professor, is not, without more, evidence of racial animus. See Patra Dep. at 71–
72. And there is no support for the plaintiffs’ allegation that other professors received
start-up funds rather than being made to solicit funding through grants. See ECF Nos.
9
72-4 at 83 and 72-8 at 114 (showing that grant-writing activities were “expected” as part
of the plaintiffs’ contracts). Nor does the record support the contention that the plaintiffs
were given unusual teaching assignments. See Patra Dep. at 85 (noting that other
professors complained about being made to teach lower-level courses).
Moreover, the plaintiffs failed to support their more specific allegations with
evidence that other professors were “similarly situated” with regard to them. See
Patterson v. Avery Dennison Corp., 281 F.3d 676, 680 (7th Cir. 2002). The plaintiffs
stated that a non-Indian professor named Robert Nozza was provided with relocation
costs, see Vaz Dep. at 51, and that a non-Indian professor named Pam Smith was given a
more reasonable teaching assignment than Vaz, see id. at 88. However, the plaintiffs did
not show that either non-Indian professor was “directly comparable to [them] in all
material respects.” See Patterson, 281 at 680. Thus, as to the additional AEAs, Patra and
Vaz failed to state a prima facie case of disparate treatment.
As to the AEAs that the District Court did address—the defendants’ negative
fourth-year evaluations and the non-renewal of the plaintiffs’ contracts—we agree that
the plaintiffs failed to show that the defendants’ ample and well-supported non-
discriminatory reasons were mere pretext for discrimination under the McDonnell
Douglas burden-shifting framework. See Mem. Op., ECF No. 109 at 14–16.
Accordingly, the District Court properly granted summary judgment on the plaintiffs’
disparate treatment claim.
10
IV.
We now turn to the plaintiffs’ Title VII retaliation claim. To establish a prima
facie case of retaliation, Patra and Vaz were required to show that: (1) they engaged in
activity protected by Title VII, (2) the defendants took adverse employment action
against them, and (3) there was a causal connection between the protected activity and
the adverse action. Moore v. City of Philadelphia, 461 F.3d 331, 340–41 (3d Cir. 2006).
The McDonnell Douglas burden-shifting framework applies in the retaliation context,
too. Id. at 342.
As with their discrimination claim, the plaintiffs argue that the District Court erred
in failing to consider certain retaliatory AEAs. In addition to their negative evaluations
and the non-renewal of their contracts, the plaintiffs argue that the following actions were
AEAs: (1) the defendants’ misappropriating grant funds, (2) the defendants’ assigning
unreasonable work schedules and teaching assignments outside of the plaintiffs’ specialty
areas, and (3) the defendants’ refusing to allow Patra to resume teaching after he returned
from medical leave. See Appellants’ Br. at 47. This argument fails for similar reasons as
the plaintiffs’ previous argument.
First, the record does not support the assertion that the defendants misappropriated
the plaintiffs’ grant funds. Nor, as explained above, does the record support the assertion
that Patra and Vaz were given unreasonable teaching assignments. There is also no
evidence demonstrating that the defendants’ refusal to allow Patra to resume teaching
11
after returning from medical leave was an unusual practice. See Patra Dep. at 216, 221
(explaining that Patra was not permitted to return to teaching because changing
instructors around the finals period risked disrupting the class). Besides, none of these
actions would have “dissuaded a reasonable worker from making or supporting a charge
of discrimination.” See Moore, 461 F.3d at 341. Indeed, the plaintiffs were not
dissuaded: Patra and Vaz made continuous internal and external complaints from 2012
until their termination. See Patra Dep. at 291.
Second, even if the record did support the plaintiffs’ alleged AEAs, the couple
failed to establish causation. Patra stated that the defendants changed his teaching
assignment in response to the plaintiffs’ filing their first EEOC charges in December
2012. See id. at 81, 140. However, he had been receiving poor student evaluations for
several semesters prior to the change. See Carvalho-Grevious v. Del. State Univ., 851
F.3d 249, 258 (3d Cir. 2017) (explaining that a plaintiff must show that the AEA would
not have been committed “but for” the protected activity). Moreover, the temporal
proximity between when the plaintiffs filed their first EEOC complaint (December 2012)
and when the defendants decided not to renew their contracts (January 2014) is not
“unusually suggestive of retaliatory motive.” See id. at 260.
Accordingly, the plaintiffs did not state a prima facie case of retaliation under Title
VII. Additionally, even if the plaintiffs had stated a prima facie case, under the
McDonnell Douglas burden-shifting framework, they failed to overcome the defendants’
12
well-documented reasons for not renewing their contracts.
V.
Patra and Vaz also argue that the District Court did not consider the evidence in
support of their hostile work environment claim. To succeed on such a claim, the couple
had to show that: (1) they suffered intentional discrimination because of their race or
religion, (2) the discrimination was severe or pervasive, (3) the discrimination
detrimentally affected them, (4) the discrimination would detrimentally affect a
reasonable person in similar circumstances, and (5) the existence of respondeat superior
liability. Tribune, 902 F.3d at 399. They failed to do so.
The plaintiffs made numerous allegations about Angelo and Gonzalez’s hostile
behavior. However, most of the alleged incidents had nothing to do with the couple’s
race or religion, see, e.g., Vaz Dep. at 62 (claiming that Gonzalez entered Patra’s locked
office without his permission and took one of his books), and none of their allegations
were corroborated. We agree with the District Court that the few comments that Angelo
and Gonzalez made about the plaintiffs’ race or religion, while offensive, were too
isolated to support a hostile work environment claim. See Faragher v. City of Boca
Raton, 524 U.S. 775, 788 (1998). Moreover, the plaintiffs failed to account for the fact
that, despite being offered positions at Utah State at the alleged height of the defendants’
13
abusive behavior, they chose not to leave Bloomsburg.4 Accordingly, Patra and Vaz
failed to make a prima facie hostile work environment claim under Title VII.
VI.
The plaintiffs also argue that the District Court incorrectly decided their First
Amendment claim, which was based on their whistleblowing regarding the department’s
inaccurate published graduation rates. To make a First Amendment retaliation claim,
Patra and Vaz had to show that: (1) their speech was protected by the First Amendment,
and (2) the defendants’ retaliatory action was substantially motivated by the protected
activity. Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006). Public
employees’ speech is only protected when they speak as citizens rather than within the
scope of their duties. See Javitz v. Cty. of Luzerne, 940 F.3d 858, 864–65 (3d Cir. 2019)
(explaining that who the plaintiffs spoke to, what they spoke about, and why they spoke
are central to the protected speech inquiry).
During their depositions, the plaintiffs stated that they reported the department’s
inaccurate graduation statistics as “citizen[s] of the state,” and that such reporting was not
part of their official duties. Vaz Dep. at 135–36. However, their speech was limited to
4
There is nothing in the record to support Patra’s suggestion that their appointments at
Utah State fell through because of the defendants’ investigation into Patra’s failure to
send in his grades while on medical leave. According to Patra, the investigation was
never disclosed to Utah State. See Patra Dep. at 231; see also Vaz Dep. at 200
(explaining that their Utah State contacts were “really upset” that Patra and Vaz backed
out of the agreement).
14
internal e-mails and private conversations with colleagues, not the community at large,
and thus it was not protected. See id. at 134–35; see also De Ritis v. McGarrigle, 861
F.3d 444, 454 (3d Cir. 2017) (explaining that, generally, public employees’ internal
complaints about internal policies are not protected speech). Even if the plaintiffs’
speech was protected under the First Amendment, they concede that, far from “chilling”
their speech, see Appellants’ Br. at 66–77, the defendants’ actions never dissuaded them
from speaking out about the school’s graduation rates, see Patra Dep. at 291 (stating that
the plaintiffs “never stopped” blowing the whistle). Besides, there is no indication from
the record that the defendants’ ultimate decision not to renew the plaintiffs’ contracts was
a result of their whistleblowing rather than their increasingly inadequate performance in
the areas of teaching, research, and departmental service. 5 Thus, Patra and Vaz’s First
Amendment claim fails.6
VII.
Finally, the plaintiffs’ state law claims lack merit. Their claims under the
Pennsylvania Human Relations Act (“PHRA”) fail for the same reasons that their Title
VII claims fail. See Simpson v. Kay Jewelers, Inc., 142 F.3d 639, 644 n.4 (3d Cir. 1998)
5
In fact, because of the plaintiffs’ reporting, Bloomsburg revised the incorrect graduation
statistics. See ECF No. 73 at 26 n.11.
6
Because the plaintiffs failed to establish that their constitutional rights were violated,
their § 1983 conspiracy claim also fails. See Dykes v. Se. Pa. Transp. Auth., 68 F.3d
1564, 1570 (3d Cir. 1995) (concluding that we need not reach the issue of conspiracy
where there is no cognizable violation of constitutional rights).
15
(explaining that we use the same framework to assess Title VII and PHRA claims).
Additionally, the plaintiffs’ allegations—supported by nothing but their own deposition
testimony—that the defendants intentionally inflated the graduation statistics for their
personal gain are too speculative to establish a claim under the Pennsylvania
Whistleblower Law. See generally Sukenik v. Twp. of Elizabeth, 131 A.3d 550, 555–56
(Pa. Commw. Ct. 2016). And there is nothing in the record to support the plaintiffs’
claims of defamation, intentional infliction of emotional distress, or loss of consortium.
VIII.
For the above reasons, we will affirm the judgment of the District Court. The
plaintiffs’ motion to expand the record pursuant to Federal Rule of Appellate Procedure
10(e) is denied.
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