Linda TOTH, Plaintiff, v. CALIFORNIA UNIVERSITY OF PENNSYLVANIA, Angelo Armenti, and Sean Madden, Defendants, 844 F. Supp. 2d 611

MEMORANDUM OPINION NORA BARRY FISCHER, District Judge. I. Introduction This matter comes before the Court on cross-motions for

summary judgment filed by the parties pursuant to Federal Rule of Civil Procedure 56. Docket Nos. 47 & 49. For the reasons that follow, the Plaintiffs motion for partial

summary judgment (Docket No. 47) will be denied, and the Defendants’ motion for

summary judgment (Docket No. 49) will be granted, in part and denied, in part. II. Background California University of Pennsylvania (“California” or “the University”) is a post-secondary educational institution existing within Pennsylvania’s State System of Higher Education (“the System”). 24 Pa. Stat. § 20-2002~A(a)(2). Angelo Armenti (“Armenti”) has served as the University’s President since 1992. Docket Nos. 50 & 65 at ¶ 17. Sean Madden (“Madden”) started teaching at the University in 1989. Id. at ¶ 20. He became the Acting Dean of the University’s College of Liberal Arts in July 2006. Id. at ¶ 21. Donald J.

Thompson (“Thompson”), the University’s Provost, retired in January 2007. Id. at ¶¶ 17-18. After Thompson retired, Armenti selected Madden to serve as the University’s Interim Provost. Id. at ¶ 22. Laura Tuennerman-Kaplan (“Tuennerman-Kaplan”) became the Interim Dean of the College of Liberal Arts and assumed Madden’s prior duties. Id. at ¶ 34. Madden became the Provost and Vice-President of Academic Affairs in October 2007. Id. at ¶ 23. Linda Toth (“Toth”), a female of Polish descent, is a graduate of the University. Docket Nos. 68 & 75 at ¶¶ 2-3. She holds a doctorate degree in psychology. Id. at ¶ 6.

In 1990, Toth was hired by the University as an Assistant Professor of Psychology. Id. at ¶ 4. She was awarded tenure in 2003 and later promoted to the position of Associate Professor of Psychology retroactive to the fall of 2002. Id. at ¶¶ 5-6. The Association of Pennsylvania State College and University Faculties (“APSCUF”) serves as the union for the faculty members teaching within the System. Toth served as the Vice-President of the APSCUF’s California

chapter from 2002 to 2006. Id. at ¶ 7. She became the first female President of the

chapter in May 2006 and held that position until May 2010. Id. at ¶¶ 8-10. California’s University-Wide Promotion Committee (“UWPC”) consists of faculty members charged with the duty to review the applications and dossiers submitted by faculty members who are seeking promotions. Docket Nos. 50 & 65 at ¶ 28. The members of the UWPC are elected by the University’s faculty. Id. Only one professor from a particular department can serve on the UWPC at a given time. Id. Barbara Hess (“Hess”), a mathematics professor, served as the Chairperson of the UWPC during the 2005/2006 promotion cycle. Id. at ¶ 29.

She was succeeded by Robert Kane (“Kane”), a health sciences professor, who served as the UWPC’s Chairman during the 2006/2007 promotion cycle. Id. at ¶ 30. The collective bargaining agreement (“CBA”) between the System and the APSCUF that was in effect from July 1, 2003 to June 30, 2007, required applications from professors seeking promotions to be submitted to the “appropriate department chairperson[s]” in the first instance. Docket No. 70-12 at 21. Each application had to be considered by a “departmental committee” before it was presented to the UWPC. Id.

The relevant portion of the CBA required the appropriate Dean or department chairperson to submit a “detailed recommendation” to the UWPC concerning a professor’s application for promotion by February 1 of the year of the promotion cycle. Id. A copy of the “detailed recommendation” was to be forwarded to the applicant as well, who had until February 15 to submit a written response to the UWPC. Id. The Provost was required to submit a recommendation to the UWPC by February 21, and the applicant was given until March 1 to respond to that recommendation. Id.

The CBA directed the UWPC to forward the full list of applicants, along with its recommendation concerning each application, to the President (or the President’s designee) by April 15. Id. at 22. Each applicant was afforded the right to appear before the UWPC and speak in favor of his or her application. Id. Promotions approved by the President were to be announced no later than July 15. Id. During the fall of 2005, Toth applied for a promotion to the position of Full Professor of Psychology. ECF Nos. 50 & 65 at ¶ 41.

As the Acting Dean of the College of Liberal Arts, Madden was responsible for reviewing Toth’s application and making a recommendation. Id. at ¶ 42. In a letter to Hess dated January 27, 2006, Madden made several positive statements about Toth but did not specifically make a recommendation concerning her application. Docket No. 51-3 at 29-30. Six professors applied for promotions to the position of Full Professor during the fall of 2005. They were Aref Al-Kattar (“Al-Kattar”), John Nass (“Nass”), Ellen Michael (“Michael”), LeeRoy Black (“Black”), Mark DeHainaut (“DeHainaut”) and Toth. Id. at 43.

In letters dated January 13, 2006, Madden expressed the view that Al-Kattar and Black were qualified for the sought-after promotions. Id. at 31-34. Madden specifically recommended Nass for promotion in a letter dated January 24, 2006. Id. at 35-36. The UWPC scored each applicant on an 80-point scale. Docket No. 51-4 at 11. A minimum score of 50 was needed for a positive recommendation. Docket No. 51-3 at 43. The UWPC awarded Al-Kattar a score of 70.1, Nass a score of 66.67, Michael a score of 63.8, Toth a score of 57.78, Black a score of 55.3 1, and DeHainaut a score of 47.56. Id.

In a memorandum to Thompson dated March 28, 2006, the UWPC recommended that Al-Kattar, Nass, Michael, Toth and Black be promoted. Id. DeHainaut was not recommended for promotion because his score was lower than 50. Id. Thompson reviewed the recommendations and computed the percentage of the available points awarded to each applicant. Because Toth had been awarded 57.78 of the 80 points available on the scale, Thompson rounded her percentile score to 72%. Id. He ultimately decided against recommending the promotion of any applicant who had not received a percentile score of at least 80%. Docket No. 51-4 at 11.

In accordance with this standard, Thompson recommended that only Al-Kattar, Nass and Michael be promoted to the position of Full Professor. Docket No. 51-3 at 43. In a memorandum to the UWPC dated July 11, 2006, Thompson stated that the remaining applicants had “serious shortcomings” in the areas of “service” and “scholarship.” Docket No. 51-5 at 39. On July 14, 2006, Armenti announced that Al-Kattar, Nass and Michael had been approved for promotion. Docket No. 51-3 at 44. The applications submitted by Toth, Black and DeHainaut were denied. Id.

Toth responded on July 23, 2006, by initiating the grievance procedures that were available to her under the CBA. Docket No. 51-4 at 24. On June 14, 2006, Madden emailed Toth a message inviting her to “a nice informal chat over coffee.” Docket No. 51-2 at 38. The message made reference to the fact that Madden and Toth were “going to be working closely on issues more and more in the future.” Id. Madden again invited Toth to meet “for a cup of coffee” in a message sent on August 9, 2006. Id. at 37. Toth apparently never responded to Madden’s invitations.

Madden sent Toth another message inviting her to meet for “a cup of coffee” on August 17, 2006, suggesting that the two of them needed to discuss union-related issues. Id. at 39-40. In an attempt to portray himself as a reasonable person to deal with, Madden declared, “I don’t have a strong allegiance to either management or union.” Id. at 40. Later that day, Toth replied to Madden’s invitation with a message stating that she did not “have a spare minute to ‘hang out’ with anyone in a non-work-related fashion.” Id. at 39.

Toth concluded her message by stating as follows: So to sum it up, if you are requesting a professional meeting, let me know when and where. To not meet with you at your request would be insubordination. Other than that, I prefer that our contact remain at the formal, professional level. Id. Madden did not respond to Toth’s message. Docket Nos. 68 & 75 at ¶ 29. Toth submitted another application for promotion to the position of Full Professor of Psychology on September 6, 2006. Docket No. 51-4 at 63-67. Thompson retired in January 2007, and Madden became the Interim Provost. Docket Nos. 50 & 65 at ¶¶ 19, 22.

Tuennerman-Kaplan became the Interim Dean of the College of Liberal Arts. Id. at ¶ 34. By that time, Kane had become the Chairman of the UWPC. Id. at ¶ 30. In a letter to Kane dated January 29, 2007, Tuennerman-Kaplan acknowledged that Toth was “on track for promotion from Associate Professor to Full Professor in the area of teaching.” Docket No. 51-5 at 2. Tuennerman-Kaplan went on to state, however, that she had “some concerns” about the breadth of Toth’s “involvement in the areas of scholarship and contributions to the University and/or Community.” Id.

On February 2, 2007, Toth sent a letter to Kane and his colleagues on the UWPC pointing out that Tuennerman-Kaplan had not made a specific recommendation as to whether she should be promoted. Id. at 3. In her letter, Toth mentioned that she had already filed a grievance pertaining to Madden’s failure to make a recommendation during the previous promotion cycle. Id. She also questioned whether Tuennerman-Kaplan had the requisite experience and qualifications to evaluate her application in a reliable manner. Id. at 3-4. The University’s

chapter of the APSCUF published a newsletter in March 2007. Docket No. 70-9 at 36-50. The newsletter contained a statement from Toth criticizing Judy Hample (“Hample”), the System’s Chancellor, for failing to increase the pay and hiring of faculty members at the same rate as she had increased the pay and hiring of managers. Id. at 36-38. At the conclusion of Toth’s statement was a cartoon lampooning the System’s administration and management for retaining increased revenues that were attributable to the increased productivity of faculty members. Id. at 38.

On March 3, 2007, Madden emailed Toth a message stating as follows: Among whatever other important points you may have been trying to make in your recent newsletter, I must admit that your effort was lost on me as a result of the tasteless and personal charicature [sic] attack on the chancellor. I don’t deny that there are serious issue [sic] out there and that tensions are heightened because it is a negotiation year, but I fail to see any value or civility at all in dragging this to a personal and insulting level.

I was a member of APSCUF for 17 years and I am ashamed and embarassed [sic] that the organization would lower itself to this kind of tactic. I can see absolutely no purpose or redeeming value in belittling a person, regardless of opposing viewpoints. We are a great university with great faculty in a great system of higher education and I do not think this attack is worthy of us. I assure you that no matter how much you and I may disagree on any subject, that you will never, ever, be subject to such a classless tactic by me. Just my personal opinion. Docket No. 51-4 at 60.

The date of Madden’s responsive message suggests that the newsletter was published very early in March 2007. Joseph Zisk (“Zisk”), Mary O’Connor (“O’Connor”), Mary Ann Salotti (“Salotti”), Syvia Barksdale (“Barksdale”), Patricia Milford (“Milford”), Hess, DeHainaut and Toth all applied for promotions to the position of Full Professor during the 2006/2007 promotion cycle. All eight applicants were awarded scores above the designated minimum score of 50. Docket No. 70-7 at 16. Toth received a score of 56.5, which placed her fifth among the eight applicants. Id.

The UWPC recommended that Zisk, O’Connor, Salotti, Barksdale, Hess, De-Hainaut and Toth be promoted. Id. The vote in favor of recommending Toth’s promotion was unanimous among the UWPC’s nine voting members. Id. The UWPC’s recommendations were relayed to Madden in a memorandum dated April 9, 2007. Id. On May 1, 2007, Madden emailed Toth a message inviting her to participate in a “pie-throwing” fundraiser designed to raise money for scholarships available to non-traditional students. Docket No. 51-4 at 61-62. The fundraiser was scheduled for May 3, 2007. Id.

Toth ultimately accepted the invitation and attended the event. Docket Nos. 68 & 75 at ¶ 32. After arriving for the fundraiser, Toth paid for a pie and threw it in Madden’s face. Id. Madden responded by hugging Toth tightly and smearing pie cream on her face, hair, neck and chest. Id. at ¶¶ 33-34. After that incident, Toth immediately left the event and went home. Id. at ¶ 41. On May 22, 2007, Toth forwarded Madden’s email message of August 17, 2006, to Armenti and called his attention to the sentence reading, “I don’t have a strong allegiance to either management or union.” Docket No. 51-2 at 42.

She explained to Armenti that she would “definitely watch [her] back” if she had Madden as her “second in command.” Id. In a subsequent message, emailed to Armenti on May 26, 2007, Toth pointed out that the members of the UWPC had unanimously recommended that she be promoted. Docket No. 51-2 at 4. Referring to her earlier grievance concerning the 2005/2006 promotion cycle, Toth stated that the matter had already been “voted to arbitration” and would eventually end up on Armenti’s desk. Id.

Three days later, Armenti responded to Toth’s message by stating that he had delegated the task of deciding who should be promoted to the Provost several years earlier. Id. He also opined that the grievance process concerning the denial of Toth’s prior application should be left to proceed without his interference. Id. On July 10, 2007, Madden sent Armenti a memorandum recommending that Zisk, O’Connor, Salotti and Barksdale be promoted to the position of Full Professor. Docket No. 70-7 at 18. Milford, Hess, DeHainaut and Toth were not recommended for promotion. Id.

That same day, Armenti sent Toth a letter informing her that her application had been denied. Id. at 20. Toth was encouraged to meet with Madden or Tuennerman-Kaplan to discuss ways that she could “strengthen” her “future applications for promotion.” Id. Toth met with Armenti on July 20, 2007, to discuss the situation. Docket Nos. 68 & 75 at ¶ 110. The matter remained unresolved. Shortly after the meeting, Toth emailed Armenti a message stating as follows: As promised, here are the updated local promotion guidelines.

It is odd that your provost doesn’t have a copy of the guidelines, being'that he made such serious decisions involving people’s lives without them. It is too bad for all of us that you chose Plan B over Plan A. If you want to reconsider Plan A, I’m still open to negotiations. Docket No. 51-2 at 3. Toth initiated the grievance procedures available to her under the CBA on July 23, 2007. Docket No. 51-4 at 24.

Toth filed a verified questionnaire with the Pennsylvania Human Relations Commission (“PHRC”) on August 23,. 2007, alleging that she had been subjected to discrimination because of her sex and national origin, and that the University had retaliated. against her for complaining about acts of discrimination perpetrated against other women. Docket Nos. 68 & 75 at ¶ 143. On November 9, 2007, Toth filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). Docket No. 70-7 at 25-28.

In her EEOC charge, Toth alleged that her requests for promotion had been denied for discriminatory and retaliatory reasons. Docket No. 70-7 at 25-28. She also claimed that Armenti had harassed her during the meeting conducted 'on July 20, 2007. Id. at 26-27. In the sixth, seventh and eighth paragraphs of her EEOC charge, Toth stated as follows: 6.

I met with President Amenti on July 20, 2007, to discuss the recommended candidates for promotion who had been arbitrarily and capriciously passed over for the 2006 promotion cycle, while a number of candidates with lower rankings assigned by the University-Wide Promotion Committee had been promoted, and in doing so I also objected to my not having been promoted; in this meeting, I was acting on my own behalf, and also in my capacity as President of the California

chapter of our teachers’ union, the Association of Pennsylvania State College and University Faculties (APSCUF). 7. In such meeting of July 20, 2007, Dr.

Armenti had me sit close to him, and then he asked me to give him my hand, which he held and stroked; I repeatedly pulled my hand back, indicating that I did not want him to hold and stroke my hand, but he persisted in attempting to hold and stroke my hand, saying, “Give me your hand, Linda,” and he indicated that he knew I wanted to be promoted, and he promised me I would be promoted; I continued to pull my hand away, until he finally stopped, after a substantial number of minutes had elapsed. 8. Dr.

Armenti’s insistence upon holding and stroking my hand demeaned and humiliated me; he had not held the hand or stroked the hand of the two Union Presidents prior to me, both males, and I allege that he did not have a practice of holding the hands and stroking the hands of male professors who met with him; his behavior was offensive and unwelcome. Id. After learning of Toth’s EEOC charge on November 27, 2007, Armenti emailed a message to Hample stating that it would be an “understatement” to call Toth’s allegation of sexual harassment a “total fabrication.” Id. at 29.

He further declared, “I will fight and defeat this lie with all the energy I possess.” Id. The University refuted Toth’s allegations in a position statement filed with the EEOC on February 7, 2008. Docket No. 51-5 at 23-32. In the position statement, the University asserted that Armenti had a firm policy of leaving the door to his office open, and having an administrative assistant at a nearby desk, whenever he was meeting with a female professor, staff member or student. Id. at 29.

The position statement described the encounter between Toth and Armenti as follows: Complainant arrived on time and was ushered into the conference room. She sat in a chair of her choosing—she was not told where to sit. She sat at the conference room table to the immediate left of President Armenti, who sat at the head of the table. Complainant reviewed her “Plan A” settlement proposal.

After listening carefully to her “Plan A” proposal, President Armenti calmly stated that he was unwilling to sign the document or approve the Complainant’s demand for immediate promotion to full professor because he thought her “remedy” for what had been a minor technical violation of the collective bargaining agreement (Sean Madden’s letter to the chair of the promotion committee should have gone out on a Friday, not a Monday since the required collective bargaining date in 2007 happened to fall on the weekend) was disproportionate to the infraction.

He calmly told her that he doubted that an arbitrator would impose such a stern penalty and that he would prefer to take his chances by letting any grievance process proceed normally to arbitration, if APSCUF so chose. The Complainant suddenly became extremely agitated and angry and said, in a loud voice, “You are so stubborn!” President Armenti was so startled by the outburst and sudden change in Complainant’s demeanor that, in a fatherly effort to calm the Complainant, he placed his hand on top of her hand and told her, “Linda, this is not personal.” He asked her to calm down.

He did not stroke her hand either slightly or repeatedly. While keeping control of the document with both hands, Complainant then showed President Armenti certain portions of a document which she referred to as “Plan B,” but which she did not leave with him. It was stapled and contained about ten pages and from what he could see, it appeared to have contained a letter from the Complainant to her attorney and a grievance against President Armenti.

After reading several items which she pointed out for him with gréat emphasis from a long list contained in the “Plan B” document and concluding that the purpose of revealing “Plan B” was to coerce the President into promoting her, President Armenti stood up and said “this meeting is over.” Complainant refused to leave and was still in her seat when the participants for the next meeting entered the conference room. When she rose to ■ leave Complainant said to President Armenti: “I’ll see you in court.” Id. at 29-30. Armenti supplemented the University’s position statement with a letter to Joel S.

Pretz (“Pretz”), the EEOC’s Alternative Dispute Resolution Coordinator, detailing his efforts to end sexual harassment and promote opportunities for women on campus. Docket No. 70-7 at 30-33. Toth’s grievances were eventually consolidated. Docket No. 51-4 at 24. Hearings were held before Ira F. Jaffe (“Jaffe”), an impartial arbitrator, on December 12, 2008, and February 19, 2009. Id. at 2. In a decision dated July 20, 2009, Jaffe determined that the conduct of Thompson and Madden during the two promotion cycles had failed to comport with the requirements of the CBA. Id. at 1-67.

Armenti was directed to reconsider both of Toth’s applications for promotion without giving consideration to the prior determinations made by Thompson and Madden. Id. at 54. He was further ordered to discuss the matter with the members of the UWPC before issuing a final decision in the event that he opted to reject their recommendation that Toth be promoted. Id. On September 28, 2009, the EEOC dismissed Toth’s charge of discrimination and provided her with notice of her right to sue the University on her own behalf. Docket No. 51-2 at 43-44.

In a letter to Hess dated December 1, 2009, Armenti stated that he had decided to reject the UWPC’s recommendation that Toth be promoted during the 2005/2006 promotion cycle. Docket No. 51-5 at 57. Armenti discussed the matter with Hess and her colleagues on the UWPC during a meeting conducted on December 14, 2009. Docket No. 51-16 at 6-9; Docket Nos. 68 & 75 at ¶ 178. Later that day, Armenti sent Toth a letter stating that he had denied her 2005/2006 promotion application. Docket No. 70-10 at 4.

Toth commenced this action against the University, Armenti and Madden on December 24, 2009, alleging violations of the First and Fourteenth Amendments to the United States Constitution, Title VII of the Civil Rights Act of 1964 (“Title VII”) [42 U.S.C. § 2000e et seq.], Title IX of the Education Amendments of 1972 (“Title IX”) [20 U.S.C. § 1681 et seq.], the Rehabilitation Act of 1973 (“Rehabilitation Act”) [29 U.S.C. § 701 et seq.], and the Pennsylvania Human Relations Act (“PHRA”) [43 Pa. Stat. § 951 et seq.]. Docket No. 1.

On December 31, 2009, Armenti reviewed Toth’s 2006/2007 application for promotion and decided to deny it. Docket No. 51-5 at 58; Docket Nos. 68 & 75 at ¶ 189. He discussed his decision with Kane and the other members of the UWPC during a meeting conducted on January 25, 2010. Docket No. 51-16 at 9-10; Docket Nos. 68 & 75 at ¶ 193. In a letter dated January 26, 2010, Armenti informed Toth that her 2006/2007 promotion application had been denied. Docket No. 70-10 at 5.

On April 5, 2010, Toth amended her complaint and added allegations pertaining to Armenti’s most recent decisions denying her applications for promotion. Docket No. 10 at ¶¶ 38-48. A supplemental hearing was held before Jaffe on January 25, 2011, to facilitate a determination as to whether Armenti’s decisions denying Toth’s applications had constituted violations of the CBA and Jaffe’s decision of July 20, 2009. Docket No. 51-16 at 4. In a decision dated April 22, 2011, Jaffe determined that Armenti’s decisions had been rendered in conformity with the CBA and the previous decision. Id. at 24.

The Defendants filed a motion for

summary judgment on June 16, 2011, seeking the dismissal of all claims asserted by Toth. Docket No. 49. Toth filed a motion for partial

summary judgment that same day, seeking an order requiring her promotion and a determination that the Defendants had violated the anti-retaliation provisions of Title VII and the PHRA. Docket Nos. 47 & 47-1. The cross-motions for

summary judgment filed by the parties are the subject of this memorandum opinion. III. Standard of Review

Summary judgment may only be granted where the moving party shows that there is no genuine dispute as to any material fact, and that a judgment as a matter of law is warranted. Fed. R. Civ. P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the Court must enter

summary judgment against a party who fails to make a showing sufficient to establish an element essential to his or her case, and on which he or she will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In evaluating the evidence, the Court must interpret the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in his or her favor. Watson v. Abington Township, 478 F.3d 144, 147 (3d Cir.2007).

The burden is initially on the moving party to demonstrate that the evidence contained in the record does not create a genuine issue of material fact. Conoshenti v. Public Service Electric & Gas Co., 364 F.3d 135, 140 (3d Cir.2004). A dispute is “genuine” if the evidence is such that a reasonable trier of fact could render a finding in favor of the nonmoving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir.2005).

Where the nonmoving party will bear the burden of proof at trial, the moving party may meet its burden by showing that the admissible evidence contained in the record would be insufficient to carry the non-moving party’s burden of proof. Celotex Corp., 477 U.S. at 322, 106 S.Ct. 2548. Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who must go beyond his or her pleadings and designate specific facts by the use of affidavits, depositions, admissions or answers to interrogatories showing that there is a genuine issue of material fact for trial. Id. at 324, 106 S.Ct. 2548.

The nonmoving party cannot defeat a well-supported motion for

summary judgment by simply reasserting unsupported factual allegations contained in his or her pleadings. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir.1989). IV. Discussion The Defendants move for

summary judgment with respect to all of Toth’s claims. Docket No. 49. Toth moves for

summary judgment with respect to her retaliation claims under Title VII and the PHRA. Docket Nos. 47 & 47-1. She also seeks an order requiring the University to promote her to the position of Full Professor of Psychology. Id. Toth’s first amended complaint contains a retaliation claim under the Rehabilitation Act stemming from her alleged opposition to discrimination perpetrated by the University against disabled members of its faculty. Docket No. 10 at ¶¶ 143-148. In her brief in opposition to the Defendants’ motion for

summary judgment, Toth consents to the dismissal of that claim. Docket No. 67 at 2, n. 1. Therefore, the Defendants’ motion for

summary judgment will be granted with respect to Toth’s Rehabilitation Act claim. Docket No. 10 at ¶¶ 143-148. A. The Quid Pro Quo and “Hostile Work Environment” Claims Title VII’s anti-discrimination provision is codified at 42 U.S.C. § 2000e-2(a), which provides: § 2000e-2. Unlawful employment practices (

a) Employer practices.

It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a).

The University is an “employer” within the meaning of Title VII. 42 U.S.C. § 2000e(b). Toth is an “employee” entitled to statutory protection. 42 U.S.C. § 2000e(f).

The PHRA declares it to be an “unlawful discriminatory practice” “[fjor any employer because of the race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability ... to refuse to hire or employ or contract with, or to bar or to discharge from employment such individual or independent contractor, or to otherwise discriminate against such individual or independent contractor with respect to compensation, hire, tenure, terms, conditions or privileges of employment or contract, if the individual or independent contractor is the best able and most competent to perform the services required.” 43 Pa.

Stat. § 955(a). Although the PHRA is a statute of independent force under Pennsylvania law, its proscriptions have generally been construed to be coextensive with their federal counterparts. Kelly v. Drexel University, 94 F.3d 102, 105 (3d Cir.1996). In this vein, the provisions of the PHRA are typically construed to be coterminous with parallel federal anti-discrimination statutes unless a difference in the applicable statutory language indicates that a different construction is warranted. Fogleman v. Mercy Hospital, 283 F.3d 561, 567 (3d Cir.2002). Individual employees may not be held liable under Title VII.

Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173, 184 (3d Cir.1997). The PHRA, however, expressly makes it unlawful “[f]or any person, employer, employment agency, labor organization or employe [sic], to aid, abet, incite, compel or coerce the doing of any act declared ... to be an unlawful discriminatory practice ..., or to attempt, directly or indirectly, to commit any act declared ... to be an unlawful discriminatory practice.” 43 Pa. Stat: § 955(e) (emphasis added).

For this reason, there are circumstances in which an individual may be held liable under the PHRA even though he or she may not be held liable under Title VII. Dici v. Commonwealth of Pennsylvania, 91 F.3d 542, 552-553 (3d Cir.1996). A discriminatory alteration of one’s “terms, conditions, or privileges” of employment occurs whenever a tangible employment action is taken against an employee because of his or her refusal to comply with a supervisor’s sexual demands. Pergine v. Penmark Management Co., 314 F.Supp.2d 486, 491, n. 9 (E.D.Pa. 2004).

In any case involving a supervisor’s sexual interest in a subordinate employee, it is reasonable to infer that Title VII’s sex-based “discrimination” criterion is satisfied. As the United States Supreme Court observed in Oncale v. Sundowner Offshore Services, 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), a heterosexual supervisor will ordinarily direct sexual advances only to members of the opposite sex.

A tangible employment action taken against an employee who resists the sexual advances of his or her supervisor constitutes an alteration in the “terms, conditions, or privileges” of his or her employment. Llampallas v. Mini-Circuits, Inc., 163 F.3d 1236, 1247 (11th Cir.1998). In Meritor Savings Bank, FSB v.

Vinson, 477 U.S. 57, 63-69, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), the Supreme Court declared that an employer unlawfully “discriminates” against an employee “because of’ his or her “sex” when it perpetrates sex-based harassment that is sufficiently “severe or pervasive” to alter the “terms, conditions, or privileges” of his or her employment. “Harassment which does not alter the ‘terms, conditions, or privileges’ of one’s employment, however reprehensible it may be, does not run afoul of Title VII.” Howard v. Blalock Electric Service, Inc., 742 F.Supp.2d 681, 689 (W.D.Pa.2010).

An isolated incident can amount to a change in the “terms, conditions, or privileges” of one’s employment only if it is “extremely serious.” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). In order for “an atmosphere of sexual harassment or hostility to be actionable” under Title VII, “the offending behavior ‘must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ ” Pennsylvania State Police v.

Suders, 542 U.S. 129, 146-147, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004), quoting Meritor Savings Bank, 477 U.S. at 67, 106 S.Ct. 2399. This standard incorporates both objective and subjective elements. In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), the Supreme Court explained: Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview.

Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation. Harris, 510 U.S. at 21-22, 114 S.Ct. 367. The relevant inquiry cannot be reduced to “a mathematically precise test.” Id. at 22, 114 S.Ct. 367.

In determining whether discriminatory harassment constitutes a violation of Title VII, a trier of fact must consider whether the harassment is frequent or severe, whether it is “physically threatening or humiliating,” and whether it “unreasonably interferes with an employee’s work performance.” Id. at 23, 114 S.Ct. 367. In her first amended complaint, Toth alleges that the University’s decision not to promote her was based, at least in part, on her rejection of “unwanted advances” made by Armenti and Madden. Docket No. 10 at ¶¶ 60-65, 92-97.

She further alleges that these “unwanted advances” caused her work environment to be “hostile or abusive.” Id. at ¶¶ 68-73, 100-105. In essence, Toth relies on the same set of facts to assert both quid pro quo and “hostile work environment” claims. The framework for considering these claims was discussed in Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). In that decision, the Supreme Court remarked: We do not suggest the terms quid pro quo and hostile work environment are irrelevant to Title VII litigation.

To the extent they illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general, the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII. When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor’s sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII.

For any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive. Burlington Industries, 524 U.S. at 753-754, 118 S.Ct. 2257. The Supreme Court went on to explain that a case involving only “unfulfilled threats” should be treated as a “hostile work environment” case rather than as a quid pro quo case. Id. at 754, 118 S.Ct. 2257. In this case, however, Toth alleges that tangible employment actions were taken against her because she resisted the “unwanted advances” made by Armenti and Madden. Docket No. 10 at ¶¶ 60-65, 92-97.

Consequently, her claims must be considered under both theories of discrimination. In order to establish a violation of Title VII pursuant to a quid pro quo theory, Toth must establish that the “unwanted advances” were made by Armenti and Madden because of her “sex.” Oncale, 523 U.S. at 80-81, 118 S.Ct. 998. She must also demonstrate that there was a causal relationship between her rejection of the “advances” and the subsequent denials of her applications for promotion. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 281-284 (3d Cir.2000).

The evidentiary record will be considered in relation to both of these issues. On October 19, 2005, Madden emailed Toth a message asking whether the two of them could “sit down for a few minutes sometime.” Docket No. 51-2 at 36. He stated that while he was the Acting Dean of the College of Liberal Arts, he was still a member of the APSCUF and did not know how to “appropriately” disagree with his own union. Id. Madden invited Toth to have “a nice informal chat over coffee” in a message sent on June 14, 2006. Id. at 38.

In that message, Madden remarked that he and Toth were “going to be working closely on issues more and more in the future.” Id. In a message sent on August 9, 2006, Madden again inquired as to whether Toth had time for “a cup of coffee.” Id. at 37. Toth apparently never responded to Madden’s invitations. On August 17, 2006, Madden sent Toth a message reiterating his suggestion that the two of them meet for “a cup of coffee.” Id. at 39-40. He went on to state that he was willing to earn her respect, and that he did not have a “strong allegiance” to either the “management” or the “union.” Id.

Shortly after receiving Madden’s message of August 17, 2006, Toth responded with a message indicating that she was willing to come to a “professional meeting,” and that she wanted her contact with Madden to “remain at the formal, professional level.” Id. at 39. In an affidavit signed on August 18, 2011, Toth declared that Madden had never responded to her message. Docket No. 70-4 at ¶ 17. On July 10, 2007, Madden declined to recommend that Toth be promoted. Docket No. 70-7 at 18.

Toth contends that Madden’s meeting invitations constituted “uninvited romantic solicitations,” and that Madden’s decision not to recommend her for a promotion was attributable to his bitterness over her rejection of those “solicitations.” Docket No. 67 at 4-5. The record indicates that Madden had a “romantic relationship” with Tuennerman-Kaplan during the spring of 2008. Docket No. 71-1 at 4849; Docket No. 71-2 at 5-8; Docket No. 71-3 at 26-27.

In her brief, Toth insinuates that Madden’s “romantic affair with another female subordinate” constitutes evidence that his meeting invitations were really designed to initiate a sexual relationship or encounter, with her. Docket No. 67 at 5. That line of reasoning, however, requires a long chain of unwarranted inferences to connect the evidence in the record with a showing of sex-based discrimination.

Where a male supervisor expresses a sexual interest in a female subordinate, it is reasonable to assume (in the absence of conflicting evidence) that the supervisor would not express a similar sexual interest in a male subordinate. Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 262 (3d Cir.2001). For this reason, an inference of sex-based discrimination normally arises in any case in which a tangible employment action is linked to an employee’s refusal to become sexually involved with a supervisor. Jensen v.

Potter, 435 F.3d 444, 454 (3d Cir.2006) (remarking that “an inference of sex-based intent will usually arise” whenever an individual engages in harassing conduct that is “facially sexual”). The mere fact- that a male supervisor has a sexual interest in one female subordinate, however, does not give rise to an inference that he has a similar sexual interest in another female subordinate. In Oncale, the Supreme Court noted that a heterosexual individual would not be expected to convey sexually suggestive proposals to “someone of the- same sex.” Oncale, 523 U.S. at 80, 118 S.Ct. 998.

That is because a heterosexual individual will ordinarily be sexually disinterested in all members of. the same sex. It does not follow that a heterosexual individual can be presumed to have a sexual interest in all members of the opposite sex. Because one’s sexual attraction to members of the opposite sex is considerably less categorical that his or her sexual aversion to members of the same sex, no reasonable trier, of fact could infer that Madden was seeking to enter into a “romantic relationship” with Toth simply because he subsequently entered into a similar relationship with Tuennerman-Kaplan.

Although Toth characterizes Madden’s meeting invitations as “repeated solicitations for an inappropriate relationship,” she acknowledged during her deposition that she did not know whether Madden had truly intended to initiate a sexual relationship or encountér' with her. Docket No. 51-1 at 36; Docket No. 67 at 8. When questioned about the matter, Toth testified as follows: Q. Do you think that Sean Madden, in the email requests to have coffee or to chat, was making a sexual advance to you? • A. I don’t know what he was doing.

I subsequently found out he had been having an affair with the woman he made dean when he became provost, so I don’t know, maybe he was, maybe he wasn’t. All I know is it was unprofessional and I am glad I didn’t put myself in the situation to find out. Q. You heard something about that after the period of time relating to your '05/'06 and '06/'07 promotions? A. There were always rumors flying around about him, so I didn’t know what to believe or what not to believe. He was always being accused of doing something. He was always doing unexpected things.

I didn’t know if the rumors of him cheating on his wife were true, not true and I didn’t care. I just knew that whatever he was doing in his personal life, I didn’t want involved in it. I wanted to stay professional. Q. My question does not—I am not asking you to figure out what Sean Madden was thinking, it was actually the opposite. My question is, at the time when you received an email from Sean Madden saying I would like to have a cup of coffee or chat or words to that effect, did you perceive that as a sexual advance? A. I perceived it as what could possibly be perceived as a sexual advance.

I didn’t want to put myself in any position where anybody would hear that I had been having coffee chats with Sean Madden, given the nature of his personality, and there were always rumors flying about him. I wanted to stay as far away from that as possible and to remain professional. Docket No. 51-1 at 36. The ambivalent nature of Toth’s testimony suggests that she did not necessarily perceive Madden’s invitations as attempts to begin a sexual relationship, and that she is merely speculating as to what his intentions were at the time of the communications in question.

In this context, however, Toth cannot defeat the Defendants’ motion for

summary judgment solely by speculating that Madden might have had a sexual interest in her. Budenz v. Sprint Spectrum, L.P., 230 F.Supp.2d 1261, 1273-1274 (D.Kan.2002). Toth’s reliance on Farrell v. Planters Lifesavers Co., 206 F.3d 271 (3d Cir.2000), is unavailing. Docket No. 67 at 8.

In Farrell, the United States Court of Appeals for the Third Circuit was presented with a situation in which a male supervisor traveling on an airplane with a female subordinate had allegedly placed his hand on her leg, stated that his wife sometimes became jealous when he was traveling alone with the subordinate, and asked whether the subordinate’s husband ever became jealous when the subordinate traveled alone with the supervisor. Farreü, 206 F.3d at 276.

The female subordinate had allegedly responded to the male supervisor’s inquiry by stating, “No, I don’t give him a reason to and I suggest you do the same.” Id. Because of the sexually suggestive nature of the supervisor’s inquiry and the subsequent termination of the subordinate’s employment under questionable circumstances, the Court of Appeals treated the subordinate’s sex-based discrimination claim against the employing entity as a quid pro quo claim. Id. at 278-288.

In contrast to the supervisor’s inquiry in Farrell, Madden’s communications to Toth did not include statements that were suggestive of a sexual interest. Madden merely asked Toth if she wanted to meet for “a cup of coffee.” Docket No. 51-2 at 37, 39. An offer of this kind may reasonably be extended to any individual, regardless of his or her gender. Indeed, Madden specifically complained in his message of August 17, 2006, that Toth’s male predecessor had been unwilling to meet with certain University officials to discuss union-related matters. Id. at 39.

Madden went on to mention several work-related matters that he wanted to discuss with Toth. Id. at 40. Under these circumstances, no reasonable trier of fact could conclude that Madden wanted to meet with Toth because of her sex. Guarino v. St. John Fisher College, 553 F.Supp.2d 252, 261-262 (W.D.N.Y.2008). At Madden’s request, Toth attended a “pie-throwing” fundraiser on May 3, 2007. Docket Nos. 68 & 75 at ¶ 32. She paid for a pie and threw it in Madden’s face. Id. Madden responded by hugging Toth tightly and smearing pie cream on her face, hair, neck and chest. Id. at ¶¶ 3 3-34.

After her encounter with Madden, Toth apparently left the event and went home. Id. at ¶ 41. During her deposition, Toth provided the following testimony about the incident at the fundraiser: Q. Why did you accept his invitation to show up for this pie throwing? A. A good faith attempt to participate in an administrative APSCUF endeavor. Q. Now, you said, I think, in one of your answers, that you think you paid for a pie and threw a pie at Sean Madden? A. Yes, he was a target. When I went down there, he was the target. Q. And you hit him with the pie? A. Yes. Q. And then what happened? A.

Then he lunged forward, grabbed me in a bear hug, held me tightly in a bear hug up against his body and rubbed himself all over me, with special emphasis in trying to get that stuff to cover as much of my body as he possibly could.

And then somebody yelled back something like, ‘You didn’t jump back fast enough” or—and then the sex jokes started. “Donna and I don’t need pie throwing contests as an excuse to get out the whipped cream.” And Joyce Hanley said something to the effect of, “Oh, after something like that, she deserve as [sic] raise.” I guess the reference was to the informational picket rally and the negotiations or something. I don’t know what it is. Docket No. 51-1 at 54-55. When asked about the duration of Madden’s contact with her body, Toth testified as follows: Q.

Well, you indicated that he had you in a bear hug or had you in his grasp? A. Oh, yes, he did. Q. How long? For how long? A matter of seconds? A. Long enough to cover almost every part of the front of my body with his goo. I had to wash my clothes, wash my hair, go home immediately afterwards. I couldn’t walk around like that. Q. Could you say whether it was more or less than 10 seconds? A. Longer than 10 seconds. He was thoroughly enjoying this. It almost seemed like it was a culmination of something to him. Q. Was it more than 30 seconds? A. I would say. I would say, yes.

I would say, yes, it seemed like even more than that. Q. Did— A. He seemed to be enjoying it immensely, and everybody was enjoying it. Id. Toth went on to state that she had been “shocked,” “upset,” “disgusted” and “repulsed” by the incident. Id. at 56. In her brief, Toth describes Madden’s conduct as an “amorous advance” that was both “physical” and “degrading.” Docket No. 67 at 8. Despite Toth’s characterization of the incident as a sexual “advance,” no reasonable trier of fact could conclude that Madden’s behavior amounted to an “earnest sexual solicitation.” English v.

Pohanka of Chantilly, Inc., 190 F.Supp.2d 833, 845 (E.D.Va.2002). Madden’s actions were taken in the presence of other University employees and did not involve an explicit sexual proposition. Id. at 845-846. In the quid pro quo context, “[tjhere is a significant distinction between harassment that is sexual in content and harassment that is sexually motivated.” Id. at 840. Even if the encounter was perceived by Toth and others to be “tinged with offensive sexual connotations,” nothing in the record suggests that it was viewed as a serious attempt by Madden to initiate a sexual relationship.

Oncale, 523 U.S. at 81, 118 S.Ct. 998. After all, Madden made contact with Toth’s body immediately after she had thrown a pie in his face. The surrounding circumstances were not suggestive of a serious or businesslike atmosphere. Toth herself stated that Madden’s objective had been to cover her with the same pie cream that she had just thrown on him. Docket No. 51-1 at 55. Toth does not allege that Madden improperly touched or fondled her breasts or genital area, or that he pressed his genital area against her body.

English, 190 F.Supp.2d at 845 (holding that an individual’s “reprehensible act” of “pressing his genitals” against another person’s shoulder could not reasonably be viewed as a serious sexual solicitation in light of the surrounding circumstances). Under these circumstances, no reasonable jury could conclude that Madden’s conduct in relation to Toth was something more serious than “teasing” or “horseplay.” Id. at 846. Toth alleged in her EEOC charge that, during the meeting conducted on July 20, 2007, Armenti had “stroked” her hand and promised that a promotion would be forthcoming. Docket No. 70-7 at 25-28.

She later testified that he had “stroked” her hand and promised that she would eventually be promoted. Docket No. 51-1 at 22. During his deposition, Armenti acknowledged that he had placed his hand on top of Toth’s hand in an attempt to calm her down. Docket No. 51-6 at 19. He denied that he had “stroked” her hand. Id. at 23. Armenti stated that he had tried to convince Toth to speak with Madden about her desire for a promotion. Id. at 19. In the present context, the facts must be viewed in the light most favorable to Toth. Watson, 478 F.3d at 147.

For this reason, any conflict in the testimonial evidence must be resolved in her favor. Thompson v. Wagner, 631 F.Supp.2d 664, 678 (W.D.Pa.2008). In her brief, Toth intimates that Armenti’s “seductive stroking” of her hand, when coupled with his alleged promise that she would be promoted, constitutes evidence that his subsequent decisions denying her applications in December 2009 and January 2010 were motivated by her unwillingness to engage in sexual activities with him. Docket No. 67 at 8-9. The problem with Toth’s position is that it is inconsistent with her own deposition testimony.

When asked about Armenti’s conduct and demeanor at the time of the meeting, Toth testified that Armenti’s act of “stroking” her hand had constituted a form of “sexual harassment.” Docket No. 51-1 at 36. Yet, she denied that she had used the term “sexual advance” to describe Armenti’s conduct. Id. In this respect, Toth seemed to take issue with the very language contained in her first amended complaint. Docket No. 10 at ¶¶ 60, 65, 68, 92, 97, 100.

In order to establish a violation of Title VII based on a quid pro quo theory, Toth must demonstrate that her response to Armenti’s “sexual advance” was later used as a basis for denying her promotion applications. Farrell, 206 F.3d at 281-282. Toth’s own testimony illustrates that Armenti’s conduct on July 20, 2007, did not constitute an “earnest sexual solicitation.” English, 190 F.Supp.2d at 845. Consequently, no reasonable trier of fact could conclude that Armenti based his decisions denying Toth’s applications for promotion on her unwillingness or refusal to engage in sexual activities.

Budenz, 230 F.Supp.2d at 1274. Because the record cannot support a finding that Madden or Armenti attempted to begin a sexual relationship with Toth, the Defendants are entitled to

summary judgment with respect to Toth’s quid pro quo claims under Title VII and the PHRA. Docket No. 10 at ¶¶ 59-66, 91-98. The conduct of Madden and Armenti, however, remains relevant to Toth’s “hostile work environment” claims. Id. at ¶¶ 67-74, 99-106.

Although Toth clearly cannot demonstrate that “a tangible employment action resulted from [her] refusal to submit to a supervisor’s sexual demands,” it remains to be determined whether the actions of her supervisors nevertheless constituted “sexual harassment” that was sufficiently “severe or pervasive” to constitute actionable violations of Title VII and the PHRA. Burlington Industries, 524 U.S. at 753-754,118 S.Ct. 2257. Toth’s “hostile work environment” claims are based primarily on the harassing conduct allegedly engaged in by Armenti and Madden. Docket No. 10 at ¶¶ 68-72, 99-104.

That conduct, however, was not sufficiently severe or pervasive to constitute actionable violations of Title VTI and the PHRA. An objectively reasonable employee would not have found Madden’s invitations to meet for “a cup of coffee” to be hostile or abusive. The incident at the “pie-throwing” fundraiser occurred in a “social context” in which outlandish behavior was to be expected. Oncale, 523 U.S. at 81-82, 118 S.Ct. 998. Armenti only touched Toth’s hand, which was not an intimate part of her body. Worth v. Tyer, 276 F.3d 249, 268 (7th Cir.2001) (recognizing that “direct contact with an intimate body

part constitutes one of the most severe forms of sexual harassment”). While the conduct of Madden and Armenti may have invaded Toth’s personal space and caused her to suffer some degree of humiliation, it did not render her work environment sufficiently hostile or abusive to be violative of Title VII and the PHRA. Dreshman v. Villa, 733 F.Supp.2d 597, 614-615 (W.D.Pa.2010). It is also worth noting that Toth has presented no evidence which suggests that the behavior of her supervisors had the effect of interfering with her duties as a professor. Harris, 510 U.S. at 23, 114 S.Ct. 367.

Toth attempts to buttress her “hostile work environment” claims by pointing to the conduct of Armenti and Madden in relation to other women. Docket No. 67 at 4-6. Joyce Hanley (“Hanley”), the University’s Executive Vice-President, testified that Armenti “had a habit” of placing his hands on the hands of women while trying to calm them down. Docket No. 51-11 at 8. Domenica Stalvey (“Stalvey”), Armenti’s Executive Associate, similarly testified that Armenti had “patted” the hands of women during the course of “emotional” discussions. Docket No. 51-12 at 11-12.

In a declaration dated August 17, 2011, Laura DeFazio (“DeFazio”), a Professor of Liberal Arts, described situations in which Madden had shouted expletives at female subordinates and made offensive comments about his wife’s sexual practices. Docket No. 71-12 at ¶¶3-13. DeFazio stated that she had left her previous position as a departmental chairperson because of Madden’s hostility toward women. Id. at ¶ 6. The manner in which Armenti and Madden allegedly treated other women has no bearing on Toth’s “hostile work environment” claims.

As noted earlier, the relevant inquiry incorporates both objective and subjective components. Harris, 510 U.S. at 21-22, 114 S.Ct. 367. In order to establish a violation of Title VII pursuant to a “hostile work environment” theory, Toth must demonstrate that she subjectively perceived her work environment to be abusive. Id. She points to nothing in the record which suggests that she was aware of the manner in which Armenti and Madden interacted with other women. Toth testified that she could not remember or identify specific instances in which Armenti or Madden had made offensive statements about women.

Docket No. 51-1 at 3-4. “[A]n employee who is totally unaware of harassing behavior cannot subjectively perceive such conduct to be hostile or abusive.” Howard, 742 F.Supp.2d at 694 (emphasis in original), citing Cottrill v. MFA Inc., 443 F.3d 629, 636-638 (8th Cir.2006). The Court acknowledges that an employee’s work environment may be adversely affected by a supervisor’s mistreatment of similarly-situated employees. Broderick v. Ruder, 685 F.Supp. 1269, 1277-1278 (D.D.C.1988).

A female employee may perceive her own work environment to be hostile or abusive if she frequently witnesses a supervisor harass or ridicule other women. It does not follow, however, that an employee can construct a viable “hostile work environment” claim by referring to harassing conduct of which he or she was not even aware during the period of time at issue. Harris, 510 U.S. at 21-22, 114 S.Ct. 367 (explaining that “if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation”).

Since Toth had no subjective knowledge of the alleged incidents involving other women prior to the commencement of this action, her reliance on those incidents is misplaced. Cottrill, 443 F.3d at 636-639. Toth faults Armenti for failing to discipline Madden for having a “romantic affair” with Tuennerman-Kaplan. Docket No. 67 at 5. Nonetheless, Madden’s relationship with Tuennerman-Kaplan is totally irrelevant to Toth’s “hostile work environment” claims. Title VII does not prohibit consensual “relationships” between supervisors and subordinates.

Indeed, many employees would find an employer’s interference with a consensual relationship to be highly objectionable. Lawrence v. Texas, 539 U.S. 558, 572, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003) (referring to “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex”). Since Madden’s consensual relationship with Tuennerman-Kaplan did not constitute “sexual harassment,” it follows a fortiori that the relationship did not render Toth’s work environment hostile or abusive. Drinkwater v.

Union Carbide Corp., 904 F.2d 853, 859-863 (3d Cir.1990) (holding that a female employee could not establish an actionable violation of a New Jersey anti-discrimination statute by relying on a consensual relationship between her male supervisor and another female employee). Moreover, Toth cannot establish a violation of Title VII by contending that Tuennerman-Kaplan received preferential treatment because of her relationship with Madden. Womack v. Runyon, 147 F.3d 1298, 1299-1300 (11th Cir.1998).

For these reasons, Madden’s actions in relation to Tuennerman-Kaplan provide no support for Toth’s “hostile work environment” claims. To the extent that Toth subjectively perceived her work environment to be hostile or abusive because of the behavior of Madden at the “pie-throwing” fundraiser or the conduct of Armenti at the meeting conducted on July 20, 2007, that perception was not objectively reasonable. Harris, 510 U.S. at 21, 114 S.Ct. 367. The Defendants are entitled to

summary judgment with respect to Toth’s “hostile work environment” claims. Docket No. 10 at ¶¶ 67-74, 99-106. Given that no reasonable trier of fact could conclude that Armenti or Madden actually tried to initiate a sexual relationship with Toth, the Defendants are likewise entitled to

summary judgment with respect to her quid pro quo claims. Id. at ¶¶ 59-66, 91-98. Accordingly, the Court will dismiss all of Toth’s “harassment” claims under Title VII and the PHRA. Id. at ¶¶ 59-74, 91-106. B. The Trait-Based Discrimination Claims Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance ----” 20 U.S.C. § 1681(a).

The protection from sex-based discrimination provided under Title IX extends not only to students attending covered educational institutions, but also to individuals employed by those institutions. New Haven Board of Education v. Bell, 456 U.S. 512, 520-535, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982). In Cannon v.

University of Chicago, 441 U.S. 677, 709-717, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the Supreme Court held that victims of sex-based discrimination could seek redress under Title IX even though the applicable statutory language provided only for the discontinuation of an offending entity’s federal financial assistance. Congress later embraced the holding in Cannon by abrogating the States’ Eleventh Amendment immunity in actions brought under Title IX by private individuals. Pub.L. No. 99-506, § 1003; 100 Stat. 1807, 1845 (1986); 42 U.S.C. § 2000d-7(a).

In light of this legislative action, it is “beyond dispute” that private individuals can sue recipients of federal financial assistance under Title IX. Alexander v. Sandoval, 532 U.S. 275, 280, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Monetary relief is available in actions brought under Title IX to redress instances of sex-based discrimination. Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). Toth alleges that the University violated both Title VII and Title IX by failing to promote her because of her “sex.” Docket No. 10 at ¶¶ 50-58, 127-136.

She further alleges that the University violated Title VII by failing to promote her because of her “national origin.” Id. at ¶¶ 50-58. In addition to the Title VII and Title IX claims brought against the University, Toth brings discrimination claims against Armenti and Madden under the PHRA. Id. at ¶¶ 82-90. Since this is an employment discrimination case in which no “direct evidence” of discrimination is presented, the Supreme Court’s analyses in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v.

Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), provide the formulation for allocating the requisite burdens of proof and production for purposes of the pending motions for

summary judgment. In an employment discrimination case of this kind, the plaintiff must establish a prima facie case of illegal discrimination. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. If a prima facie case of discrimination is established, the defendant must articulate legitimate, nondiscriminatory reasons for treating the plaintiff in an adverse manner. Id. at 802-803, 93 S.Ct. 1817.

If the defendant articulates legitimate, nondiscriminatory reasons for the plaintiffs adverse treatment, the plaintiff must demonstrate that the reasons given by the defendant for such treatment are merely a pretext for unlawful employment discrimination. Id. at 804-805, 93 S.Ct. 1817. Evidence suggesting that an employer’s stated reasons for an adverse employment action are unworthy of credence is one form of circumstantial evidence that a plaintiff can use to establish the existence of intentional discrimination. Desert Palace, Inc. v. Costa, 539 U.S. 90, 100, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003).

The plaintiffs burden of establishing a prima facie case of disparate treatment is not onerous. Burdine, 450 U.S. at 253, 101 S.Ct. 1089. In order to establish a prima facie case of discrimination, the plaintiff need only show that: (1) he or she was a member of a statutorily-protected class; (2) he or she was aggrieved by an adverse employment action; and (3) the adverse employment action occurred under circumstances giving rise to an inference of illegal discrimination. Shah v. Bank of America, 598 F.Supp.2d 596, 604 (D.Del.2009).

The specific elements of a prima facie case generally “depend on the facts of the particular case” before the court and “cannot be established on a one-size-fits-all basis.” Jones v. School District of Philadelphia, 198 F.3d 403, 411 (3d Cir.1999). The prima facie inquiry “remains flexible and must be tailored to fit the specific context in which it is applied.” Sandio v. United States Postal Service, 352 F.3d 789, 797-798 (3d Cir.2003).

Because the prima facie inquiry in any case is fact-specific, “[t]he touchstone of the inquiry is whether the circumstances giving rise to an inference of discrimination are of evidentiary value, not whether they fit into a mechanical formula.” Cobetto v. Wyeth Pharmaceuticals, 619 F.Supp.2d 142, 153, n. 3 (W.D.Pa.2007) (emphasis in original), citing O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 312-313, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996). A prima facie case “raises an inference of discrimination” sufficient to shift the burden of production to the defendant. Furnco Construction Corp. v.

Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978). This inference is based on an assumption that certain actions, if left unexplained, “are more likely than not based on the consideration of impermissible factors.” Id. If the plaintiff establishes a prima facie case of discrimination, the burden of production shifts to the defendant to rebut the presumption of discrimination through the introduction of admissible evidence indicating that the challenged employment action was taken for legitimate, nondiscriminatory reasons. Burdine, 450 U.S. at 254-255, 101 S.Ct. 1089.

To sustain this burden, “[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons.” Id. at 254, 101 S.Ct. 1089. The inquiry concerning whether the defendant has met its burden of production “can involve no credibility assessment,” since “the burden-of-production determination necessarily precedes the credibility-assessment stage.” St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (emphasis in original).

The defendant satisfies its burden of production, and rebuts the plaintiffs prima facie showing of discrimination, simply by introducing admissible evidence that, if taken as true, would permit a finding that the challenged employment action was taken for legitimate, nondiscriminatory reasons. Id. If the defendant meets its burden of production, the dispositive factual issue is framed with “sufficient clarity” to provide the plaintiff with “a full and fair opportunity to demonstrate pretext.” Burdine, 450 U.S. at 255-256, 101 S.Ct. 1089.

In order to establish that the defendant is liable for illegal employment discrimination, the plaintiff must ultimately convince the trier of fact that a discriminatory animus was the real reason for the adverse employment action at issue. Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir.1994). Liability cannot be established upon a jury’s mere disbelief of the defendant’s proffered reasons for an adverse employment action, but rather upon the jury’s affirmative belief of the plaintiffs contention that the action was taken on the basis of an impermissible discriminatory criterion. St.

Mary’s Honor Center, 509 U.S. at 519, 113 S.Ct. 2742 (“It is not enough, in other words, to dis believe the employer; the factfinder must believe the plaintiffs explanation of intentional discrimination.”) (emphasis in original). Nevertheless, evidence suggesting that an employer’s proffered reasons for an adverse employment action are false, when coupled with a plaintiffs prima facie case, may sufficiently undermine the employer’s credibility to enable a reasonable trier of fact to conclude that illegal discrimination has occurred. Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 147-148, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Evidence used to establish a prima facie case of discrimination may also be relied upon to demonstrate pretext, since nothing about the McDonnell Doug las-Burdine burden-shifting framework requires a court to ration the evidence presented in a particular case among the prima fade and pretext stages of the analysis. Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 370 (3d Cir.2008).

Proof that an employer’s explanation for an adverse employment action is unworthy of credence can be a powerful form of circumstantial evidence that is probative of intentional discrimination. Reeves, 530 U.S. at 147, 120 S.Ct. 2097. Circumstantial evidence is not only sufficient to sustain a finding of liability for intentional discrimination, “but may also be more certain, satisfying and persuasive than direct evidence.” Desert Palace, 539 U.S. at 100, 123 S.Ct. 2148, quoting Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 508, n. 17, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957).

Depending on the circumstances of the particular case, a plaintiff can sometimes prevail on the basis of circumstantial evidence without introducing “additional, independent evidence of discrimination.” Reeves, 530 U.S. at 149, 120 S.Ct. 2097. Whether

summary judgment is warranted in a given case depends upon the strength of the plaintiffs prima facie case, the probative value of the evidence discrediting the defendant’s proffered reasons for the challenged employment action, and the presence or absence of additional evidence that may properly be considered by a court in determining whether a judgment as a matter of law is appropriate. Id. at 148-149, 120 S.Ct. 2097. 1. National Origin Title VII prohibits a covered employer from discriminating against an employee because of his or her “national origin.” 42 U.S.C. § 2000e-2(a).

The Supreme Court has construed the term “national origin” broadly enough to prohibit discrimination based on an individual’s ancestry. Espinoza v. Farah Manufacturing Co., Inc., 414 U.S. 86, 88, 94 S.Ct. 334, 38 L.Ed.2d 287 (1973) (“The term ‘national origin’ on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came.”). The PHRA expressly prohibits a covered employer from discriminating against an employee because of his or her “ancestry” or “national origin.” 43 Pa. Stat. § 955(a).

Toth alleges that she was not promoted because of her Polish ancestry. Docket No. 10 at ¶¶ 50-58, 82-90. She testified that Armenti had referred to her as a “provocative Pollock” prior to a meeting conducted during the early part of 2007. Docket No. 51-1 at 9-10. He apparently made this reference to Toth’s ancestry while suggesting that the meeting would be over more quickly if Toth, the “provocative Pollock,” did not “open her mouth.” Id. at 10. Toth met with Armenti and the University’s golf coach, Merrilyn Gibbs (“Gibbs”), on May 4, 2007.

The meeting was apparently conducted so that Gibbs’ contract could be renewed over the objection of the University’s Athletic Director. Docket No. 51-6 at 19. During the meeting, Armenti allegedly exclaimed that Toth was a “Pollock just like [his] wife.” Docket No. 51-18 at 2. On July 20, 2007, Toth emailed Gibbs a message inquiring as to whether she had found the statement to be offensive. Id. Four days later, Gibbs responded by stating that she did not believe that Armenti had tried to be offensive, and that he had merely “tried to say something slightly abrasive in a way that was not offensive.” Id. at 1.

Aside from the two statements allegedly made by Armenti, Toth points to nothing in the record which suggests that she was not promoted because of her “national origin” or “ancestry.” Docket No. 67 at 31. Stray remarks uttered by decisionmakers are “rarely given great weight” in the employment discrimination context. Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 333 (3d Cir. 1995). This is especially true when such remarks are wholly unrelated to the decisionmaking process. Id. In the present case, Armenti’s use of the term “Pollock” was not necessarily derogatory.

Armenti apparently used the term to reference a characteristic that Toth shared with his own wife. Docket No. 51-18 at 1-2. This is not a situation in which an individual’s reference to another person’s ancestry is indicative of a discriminatory animus. Gray v. United States Postal Service, 133 F.Supp.2d 593, 597-599 (N.D.Ohio 2001) (describing a situation in which a supervisor had allegedly vandalized an employee’s vehicle by inscribing the word “Pollock” on her trunk).

Since Armenti’s comments do not give rise to an inference that Toth was not promoted because of her “national origin” or “ancestry,” Toth cannot establish a prima facie case of discrimination based on her Polish heritage. The Defendants’ motion for

summary judgment will be granted with respect to Toth’s discrimination claims to the extent that those claims are based on her status as a descendant of Polish nationals. Docket No. 10 at ¶¶ 50-58, 82-90. 2. Sex Toth maintains that the University did not promote her because of her sex. She seeks redress against the University under Title VII and Title IX. Docket No. 10 at ¶¶ 50-58, 127-136. She also asserts corresponding claims against Armenti and Madden under the PHRA. Id. at ¶¶ 82-90.

In a stipulation filed on May 25, 2011, Toth clarified that she seeks relief under Title VII and the PHRA only for the initial denial of her 2006/2007 promotion application and Armenti’s subsequent decisions denying both promotion applications in December 2009 and January 2010. Docket No. 36 at ¶ 4(a). She does not seek relief for the initial denial of her 2005/2006 promotion application. Id.

Toth further clarified that she seeks relief under Title IX only for the December 2009 and January 2010 decisions denying her promotion applications, and that she does not seek relief thereunder for the initial denials of her 2005/2006 and 2006/2007 promotion applications. Id. at t4(b). Nonetheless, Toth relies on both initial denials as background evidence supporting her allegations of sex-based discrimination.

It is undisputed that Toth was within the category of persons entitled to statutory protection from sex-based discrimination when her promotion applications were denied, and that the denials of those applications constituted adverse employment actions. The parties’ dispute with respect to the prima facie inquiry relates to whether the applications were denied under circumstances giving rise to an inference of sex-based discrimination. Shah, 598 F.Supp.2d at 604.

In order to establish her prima facie case, Toth may rely on any form of evidence which is “adequate to create an inference” that she was not promoted because of her sex. Pivirotto v. Innovative Systems, Inc., 191 F.3d 344, 355 (3d Cir.1999). Among the most important factors relevant to the prima facie inquiry is Toth’s ability to qualify for the promotion that she sought. An applicant’s inability to qualify for a position or promotion is one of the most common (if not the most common) reason why an employer may decline to hire or promote him or her. Burdine, 450 U.S. at 253-254, 101 S.Ct. 1089.

For this reason, no inference of discrimination can be drawn where an applicant who is obviously unqualified for the desired position or promotion is rejected. Howard, 142 F.Supp.2d at 700, n. 9 (observing that “no inference of sex-based discrimination can be drawn where a hospital seeking to employ a new surgeon chooses to hire a female physician rather than a male with no medical background”). In the present case, however, the UWPC twice recommended that Toth be promoted to the position of Full Professor of Psychology. Docket No. 51-3 at 43; Docket No. 70-7 at 16.

The Court does not understand the Defendants to argue that Toth was completely unqualified for the promotion. Under these circumstances, it cannot be doubted that Toth was a “qualified” applicant when she submitted her promotion applications. Makky v. Chertoff 541 F.3d 205, 215-216 (3d Cir.2008). During the 2005/2006 promotion cycle, four males and two females applied for promotions to the position of Full Professor. Docket No. 51-3 at 43. The males were Al-Kattar, Nass, Black and DeHainaut. Id. The females were Michael and Toth. Id. The UWPC ranked Toth fourth among the six applicants. Id.

Al-Kattar, Nass and Michael were ranked higher than Toth, while Black and DeHainaut received lower rankings. Id. The UWPC recommended that Al-Kattar, Nass, Michael, Toth and Black be promoted, and that DeHainaut not be promoted. Id. Thompson, however, decided to recommend only Al-Kattar, Nass and Michael for promotion. Id. In accordance with Thompson’s recommendation, Armenti approved the applications submitted by AlKattar, Nass and Michael and rejected the applications submitted by Toth, Black and DeHainaut. Id. at 44.

As a result, the University promoted two of the four male applicants and one of the two female applicants. Two males and six females applied for promotions to the position of Full Professor during the 2006/2007 promotion cycle. Docket No. 70-7 at 16. The males were Zisk and DeHainaut. Id. The females were O’Connor, Salotti, Hess, Barksdale, Milford and Toth. Id. The UWPC assigned Toth a ranking of fifth among the eight applicants. Id. Zisk, O’Connor, Salotti and Hess were ranked ahead of her, while DeHainaut, Barksdale and Milford were ranked below her. Id.

Eight members of the UWPC voted 4-4 as to whether Milford should be promoted. Id. The UWPC recommended the remaining seven applicants for promotion. Id. Nevertheless, Madden decided to recommend that only Zisk, O’Connor, Salotti and Barksdale be promoted. Id. at 18. Armenti ultimately followed Madden’s recommendation. Id. at 20. The University initially promoted one of the two male applicants and three of the six female applicants. Hess was promoted shortly thereafter, making her the fourth of the six female applicants to receive a promotion. Docket No. 53 at 15, n. 7.

The initial decision denying Hess’ application had apparently been based on a mathematical error pertaining to a policy permitting only 3% of the University’s Full Professors to have less than a terminal degree. Id. During the two promotion cycles, the University promoted male and female applicants on an equal basis. Since Armenti was required to reconsider only Toth’s applications pursuant to Jaffe’s decision of July 20, 2009, no other applicants were involved in the reconsideration process. Docket No. 51-4 at 1-67.

The circumstances surrounding the University’s decisions during the promotion cycles at issue do not give rise to an inference that Toth’s applications were rejected because of her sex. Toth attempts to narrow the prima facie inquiry by pointing out that she and Zisk were the only two applicants to receive the unanimous support of the UWPC’s members during the 2006/2007 promotion cycle. Docket No. 67 at 9-10. The members of the UWPC voted 9-0 to recommend both Zisk and Toth. Docket No. 70-7 at 16.

Toth contends that an inference of sex-based discrimination can be drawn from the fact that the University ultimately denied her application while promoting Zisk. Docket No. 67 at 9-10. The argument advanced by Toth is unpersuasive. When the University decided to promote Zisk, both his Dean and the UWPC had recommended that he be promoted. Docket No. 70-7 at 19. Toth did not have Tuennerman-Kaplan’s recommendation behind her when her application was presented to the UWPC and Madden. Id.

The University promoted Barksdale, a female with a lower ranking than Toth, even though the members of the UWPC had only voted 5-4 to recommend her promotion. Id. at 16, 18-19. Unlike Toth, Barksdale had received a favorable recommendation from her Dean. Id. at 19. Among the eight applicants, only DeHainaut and Toth failed to secure favorable recommendations from their respective Deans. Id. Neither DeHainaut nor Toth was promoted. Although Milford had received a recommendation from her Dean, the UWPC did not recommend her promotion. Id.

The five applicants who had the support of their respective Deans and the UWPC were ultimately promoted. The three applicants who failed to secure one of the two recommendations were rejected. It is also worth noting that while Jaffe prohibited Armenti from considering the recommendations made by Thompson and Madden during the reconsideration process, he specifically permitted Armenti to consider Tuennerman-Kaplan’s opinion in determining whether Toth should be promoted. Docket No. 51-4 at 54.

Toth cannot establish a violation of Title VII, Title IX or the PHRA simply by demonstrating that the University’s decisions denying her promotion applicat

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