804 F.

2d 40
42 Fair Empl.Prac.Cas. 170,
41 Empl. Prac. Dec. P 36,647, 55 USLW 2314,
35 Ed. Law Rep. 913

Janet L. SOLA, Appellant,

v.
LAFAYETTE COLLEGE, David W. Ellis and Howard Gallup.
No. 85-1746.

United States Court of Appeals,

Third Circuit.
Argued Aug. 6, 1986.
Decided Oct. 28, 1986.

Martricia McLaughlin (argued), McLaughlin & Glazer, Easton, Pa., for

appellant.
Matthew R. Sorrentino (argued), Holland, Taylor and Sorrentino,
Bethlehem, Pa., for appellee.
Before: SEITZ, ADAMS and STAPLETON, Circuit Judges.
OPINION OF THE COURT
SEITZ, Circuit Judge.

The plaintiff, Janet Sola, appeals the order of the district court granting the
motion for summary judgment of the defendants, Lafayette College, its
president and the Chairman of the Pyschology Department, on her claims
arising out of a denial of tenure. Jurisdiction in the district court was based on
diversity of citizenship. We have jurisdiction under 28 U.S.C. Sec. 1291.

I.
2

Janet Sola became an assistant professor of psychology at Lafayette College in

1976. In 1982 Sola applied for tenure at the college.

Tenure decisions at the college are governed by the college's Faculty

Handbook and section 70 of the college Statutes. Under the procedures set forth
by the personnel manuals, tenure determinations are first made by the
Appointments, Promotions and Dismissals Committee (the "AP & D
Committee"). After reviewing the record of the tenure candidate, which
includes the recommendation of the department chairperson, the AP & D
Committee makes a recommendation to the President. If the AP & D
Committee's decision is adverse, the candidate may appeal the decision to the
President of the college or request that the committee reconsider its
recommendation. The President makes a final recommendation to the college's
Board of Trustees.

The Faculty Handbook sets forth the following criteria for tenure decisions:

5
Appointments
and promotions are made on the basis of merit and in consideration of
departmental and institutional characteristics. These latter include, but are not
restricted to, enrollment trends, the need for a desirable mix of specialties, the tenure
guidelines, the principles of Affirmative Action, economic priorities, and other
relevant needs.
6

A major factor in the tenure decision is the recommendation of the department

chairperson. Under the guidelines in the Faculty Handbook, the
recommendation of the department chairperson is to include "a statement
indicating his judgment as to the probable effect of the promotion or award of
tenure to the candidate on other members of the department." At the time that
Sola's tenure decision was rendered, the AP & D Committee was bound to a
tenure quota in which not more than two-thirds of a department could be
tenured faculty members, absent an exceptional "guideline breaking" candidate.

The Chairman of the Psychology Department, Dr. Howard Gallup,

recommended that Janet Sola receive tenure. His recommendation, however,
was not unqualified. He noted that a male professor, whom he viewed as
stronger than Sola, would come up for tenure within the next three years, and
that a decision on Sola's application should not jeopardize this professor's
candidacy. If Sola had been granted tenure, the Psychology Department would
have had the maximum number of tenured professors under the tenure quota.

The AP & D Committee voted preliminarily in favor of granting Sola tenure.

The next day, however, the final vote was a tie, which resulted in a denial of
tenure under college procedures.1

Sola appealed the decision to the President of the college. An Advisory

Sola appealed the decision to the President of the college. An Advisory

Committee was formed, consisting of three professors, one chosen by the
provost, one by Sola, and the third by the other two professors. The Committee
expressed its concern that the record did not have sufficient information to
substantiate Dr. Gallup's comparison of the two professors and recommended
that the tenure decision be reconsidered. After requesting further explanation
from Gallup, the President affirmed the judgment of the AP & D Committee
denying Sola tenure.

10

Subsequent to the final tenure decision, Sola filed complaints with the
Pennsylvania Human Relations Commission and the Equal Employment
Opportunity Commission, claiming that the decision was a result of genderbased discrimination. Both agencies dismissed the complaints as untimely. Sola
then filed this diversity action in district court, alleging wrongful discharge,
breach of contract, and intentional infliction of emotional distress.

11

The district court granted the defendants' motion for summary judgment. It held
that the Pennsylvania Human Relations Act, 43 Pa.Stat.Ann. Secs. 951 et seq.
(Purdon's 1964 & Supp. 1986) [the "PHRA"], preempts a tort action for
wrongful discharge based on alleged gender discrimination. Assuming that the
Faculty Handbook constituted a contract, the court turned to Sola's contract
claims. First, it found that the PHRA also bars a contract action when the claim
is based on contractual provisions that provide the employee with the same
protections as those contained in the PHRA. The court, however, did not
address whether the PHRA is the exclusive remedy when a contract provides
greater protections than the statute, finding that this issue was not raised by the
plaintiff. Second, the court found no evidence supporting Sola's assertion that
the tenure decision violated the procedural protections contained in the
personnel manuals. In particular, it rejected her claim that Dr. Gallup's
comparison was against college policy. Finally, the district court dismissed the
intentional infliction of emotional distress claim because Sola did not allege any
outrageous conduct on the part of the college.

12

Sola appeals the district court's order insofar as it dismisses her wrongful
discharge and breach of contract claims. Our review is plenary. We must
review the record and ascertain whether, resolving all doubts in favor of the
nonmoving party, there are no genuine issues of material fact remaining for
trial. Anderson v. Liberty Lobby, Inc., --- U.S. ----, 106 S.Ct. 2505, 91 L.Ed.2d
202 (1986); Goodman v. Mead Johnson & Co., 534 F.2d 566 (3d Cir.1976),
cert. denied, 429 U.S. 1038, 97 S.Ct. 723, 50 L.Ed.2d 748 (1977).

II.

13

Sola does not challenge the district court's decision that a wrongful discharge
action based on gender discrimination is preempted by the PHRA. 43
Pa.Stat.Ann. Sec. 962(b) (Purdon's Supp.1986).2 Rather, she contends that
because the tenure quota adopted by the college violates public policy by
threatening the principles of academic freedom, the tenure decision comes
within the public policy tort of wrongful discharge.

14

The Pennsylvania courts have recognized a cause of action for wrongful

discharge where an employee demonstrates that the termination violates a
"clear mandate of public policy." Geary v. United States, 456 Pa. 171, 185, 319
A.2d 174, 180 (1974). Noting the reluctance of the courts to give this tort wideranging application, we have held that only a discharge in violation of a
"significant and recognized public policy" constitutes a claim for wrongful
discharge under Pennsylvania law. Novosel v. Nationwide Ins. Co., 721 F.2d
894, 898 (3d Cir.1983).

15

The cases that have recognized wrongful discharge claims have involved
infringements on statutory and constitutional rights. See, e.g., Novosel, supra
(discharge for refusal to participate in lobbying effort implicates important first
amendment rights); Reuther v. Fowler & Williams, Inc., 255 Pa.Super. 28, 386
A.2d 119 (1978) (discharge for serving jury duty infringes on important
societal interests). We are not persuaded that Sola's claim of a potential threat
to the tenure system rises to the level of the public policy concerns that have
been recognized in the previous wrongful discharge cases. In addition, there are
significant policy concerns counseling against recognizing Sola's claim. We
have expressed our reluctance to interfere with the internal operations of
academic institutions absent direction from the legislature. See, e.g., Kunda v.
Muhlenberg College, 621 F.2d 532, 546-51 (3d Cir.1980). Adoption of Sola's
position would require us to evaluate the wisdom of the college's decision to
limit the number of tenured professors on its faculty. Such an evaluation may
threaten the college's institutional academic freedom. Thus, the implications of
Sola's position may pose a greater threat to academic freedom than does the
tenure quota. Accordingly, we find that as a matter of law, the college was
entitled to summary judgment on the wrongful discharge claim.

III.
16

Sola presents three distinct breach of contract claims on appeal. The defendant
has conceded for purposes of summary judgment that the Faculty Handbook
and Statutes created a unilateral contract.3 Consistent with this concession, we
will proceed to address Sola's claims. First, she contends that summary
judgment was inappropriate because there are material issues of fact as to

whether the college followed the procedures set forth in the handbook in
rendering the tenure decision. Second, she argues that the district court erred in
holding that the PHRA preempts a breach of contract claim based on an equal
opportunity provision in the contract. Finally, Sola asserts that the district court
erred in refusing to consider the affirmative action provisions of the handbook
as providing a separate basis for her breach of contract claim.
A.
17

Sola contends that the college's customs and the Faculty Handbook create a
unilateral contract right to a full, fair, impartial and substantiated tenure
decision.4 The gravamen of her complaint is that the department chairman's
comparison of her and the other professor violated this right.

18

As noted above, the guidelines in the Faculty Handbook explicitly authorize

department chairpersons to consider the effect of an affirmative tenure decision
on other members of the department. Thus, that Gallup compared Sola with
another professor is not in itself a breach of contract. Sola asserts, however, that
since the Advisory Committee found that the comparison was unsubstantiated,
there was a material issue of fact as to whether there was a breach of contract.

19

After receiving the recommendation of the Advisory Committee, the President

requested and received further explanation of the comparison from Dr. Gallup,
and subsequently determined that the AP & D Committee's decision denying
tenure should be affirmed. We will not insist on further actions by the college
in this regard because we will "not substitute [our] judgment for that of the
college with respect to the qualifications of faculty members for promotion and
tenure." Kunda v. Muhlenberg College, 621 F.2d at 548.

20

Sola also asserts that Gallup's recommendation was in effect a request that the
AP & D Committee reserve a tenure slot for the other professor, and that this
request violated her right to a full and fair tenure determination. The tenure
quota guidelines state that "ordinarily no more than two thirds of the faculty in
any department shall hold tenure.... A department may exceed this two-thirds
guideline if and only if the guideline-breaking candidate is an exceptionally
valuable teacher-scholar." Sola argues Gallup's request forced her to prove that
she was a "guideline breaking" candidate despite the fact that the department
had not reached the tenure limit when her application was considered, and thus
it violated the procedures set forth under the tenure quota system.

21

There is no evidence, however, that the AP & D Committee placed any weight

on Dr. Gallup's request that a tenured position be reserved. In fact, the

uncontroverted evidence shows that the Committee rejected this
recommendation. Therefore, we conclude that there is no factual support for
Sola's claim that she was denied the procedural protections of her contract.
B.
22

We turn to Sola's contention that the district court erred in holding that she
could not bring a gender discrimination claim based on an express contractual
provision. Sola argues that the precedents establishing that section 962(b) of the
PHRA preempts a claim of wrongful discharge for terminations that violate the
statute are not applicable to actions brought under the traditional common law
of contracts. Sola's argument is not without merit.

23

The first time this court addressed the relationship between the PHRA and
common law actions, it held that the remedies contained in the statute were the
exclusive state remedy for discrimination. Bonham v. Dresser Industries, Inc.,
569 F.2d 187 (3d Cir.1977). Two years later, however, the Pennsylvania
Supreme Court expressed a different view, stating that the legislature, in
enacting the PHRA, "provided an election for the complaining person to opt for
relief under the provisions of the PHRA or the right to seek redress by other
remedies that might be available." Fye v. Central Transportation Inc., 487 Pa.
137, 409 A.2d 2 (1979). Nevertheless, this court has continued to accord much
respect to the administrative procedures established by the Pennsylvania
legislature, and has refused to recognize new causes of action designed to
further the state's anti-discrimination policies. Murray v. Commercial Union
Ins. Co., 782 F.2d 432 (3d Cir.1986); Wolk v. Saks Fifth Avenue Inc., 728 F.2d
221 (3d Cir.1984); Bruffett v. Warner Communications, Inc., 692 F.2d 910 (3d
Cir.1982).

24

Sola contends that these cases do not apply when the employee is proceeding
under an established common law action, rather than requesting the court to
recognize a new cause of action. In support of this contention she argues that
we should adopt the reasoning of the district court in Deramo v. Consolidated
Rail Corp., 607 F.Supp. 100 (E.D.Pa.1985). In Deramo, the court refused to
find the breach of contract claim preempted by the PHRA, explaining that our
cases:

25 only causes of action whose factual underpinnings are grounded exclusively in

bar
the public policy tort theory of wrongful discharge. They do not bar recovery for
claims grounded in the contract theory, a theory which requires a factual predicate
independent of any alleged breach of public policy.

26

607 F.Supp. at 102. Deramo, however, involved a contract claim that was
factually distinct from the employee's discrimination claim. In this case, the
claim is that the college discriminated against Sola in breach of her
employment contract.

27

We will assume without deciding that Sola is correct in her assertion that the
PHRA does not preempt actions based on express contracts. We will further
assume without deciding that the handbook's policy statement with regard to
equal employment opportunity is sufficient to create a contractual right to be
free from gender discrimination.5 These assumptions, however, do not lead to
the conclusion that summary judgment was improper on this claim.

28

The record shows no factual support for the claim that Sola's gender played any
role in the college's decision. Sola produced no evidence that she was denied
tenure in part based on her gender. Rather, she claims that the college created
an inhospitable atmosphere for women, that the tenure quota had a disparate
impact on women, and that Gallup's preference for the other professor was an
outgrowth of the old-boy network. In light of the substantial discovery material
negating any reasonable inference of gender discrimination, Sola's allegations
alone are insufficient to establish a material issue of fact. The defendants,
therefore, were entitled to summary judgment on this claim.

C.
29

Finally, we consider whether the district court erred in finding that Sola did not
raise the issue of whether the Faculty Handbook provided greater protections
against discrimination than those provided in the PHRA. We agree that the
complaint does not specifically allege a contract claim based on the statement
that "[a]ppointments and promotions are made in conformity with the
principles of Equal Opportunity and Affirmative Action." In her brief in
opposition to summary judgment, however, Sola did raise the claim, albeit in
the context of her wrongful discharge claim, that the denial of tenure violated
affirmative action principles. Moreover, at the hearing on summary judgment,
Sola's attorney explicitly stated that the college was contractually bound to
consider the fact that Sola was a woman.

30

Although the record is not clear on this point, we find that Sola did raise the
issue of whether the college breached the contract in failing to consider her
gender as a positive factor. Under Rule 15 of the Federal Rules of Civil
Procedure, leave to amend the complaint "shall be freely given when justice so
requires." Although the trial court has discretion to deny such a motion, this
discretion is tempered by the liberal mandate of the rule. Foman v. Davis, 371

U.S. 178, 182, 83 S.Ct. 227, 229-30, 9 L.Ed.2d 222 (1962). The district court
should have considered the affirmative action claims raised in the brief and at
oral argument as a motion to amend the complaint. See Sherman v. Hallbauer,
455 F.2d 1236 (5th Cir.1972) (district court should have construed new legal
theory raised in plaintiff's memorandum in opposition to summary judgement
as a motion to amend complaint). In this case, justice requires that the
affirmative action claim be heard. See id. at 1242.
31

Therefore, we conclude that the district court erred in not considering Sola's
affirmative action claim. Because the district court did not consider this claim,
we express no opinion as to whether Pennsylvania would recognize a breach of
contract claim based upon the handbook's statements expressing the college's
adherence to affirmative action principles. Accordingly, we will remand for the
district court to consider whether Sola's claim is cognizable under Pennsylvania
law and for such further proceedings as may be appropriate.

IV.
32

The order of the district court granting defendant's summary judgment motion
on Sola's claims for wrongful discharge, for breach of contract based on the
procedural protections of the handbook, and for breach of contract based on
gender discrimination will be affirmed. To the extent the order of the district
court granted the defendant's summary judgment motion on Sola's affirmative
action claim, it will be vacated and that claim will be remanded to the district
court for further proceedings consistent with this opinion.

33

The court directs that seventy-five percent of the costs be assessed against
appellant and twenty-five percent against the appellee.

One member of the AP & D Committee recused himself from the decision as a
result of Gallup's comparison of the two professors; the Committee thus only
had six voting members rather than its normal seven

Section 962(b) provides: "as to acts declared unlawful by section five of this act
the procedure herein shall, when invoked, be exclusive and the final
determination therein shall exclude any other action, civil or criminal, based on
the same grievance of the complaint concerned."

Although the parties disagree as to the scope of the college's obligations under
the contract, in view of our determinations we find it unnecessary to resolve this
conflict

Whether the handbook creates these procedural protections is currently being

litigated in the Pennsylvania courts. In Baker v. Lafayette College, 350
Pa.Super. 68, 504 A.2d 247 (1986), a faculty member brought an action for the
college's refusal to reappoint him, alleging breach of contract and defamation.
Although the Superior Court agreed with him that under the handbook the
College was obligated to perform the evaluations in good faith, the court
rejected his claim because it found that the college fully complied with the
handbook's procedures. The Supreme Court of Pennsylvania recently granted
the appeal in this case. See Baker v. Lafayette College, 350 Pa.Super. 68, 504
A.2d 247 (1986). We will assume arguendo that Sola is correct in her assertion
that the contract provides certain procedural protections

We also find it unnecessary to decide in this case whether the attempt by Sola
to invoke the PHRA renders her contract claim preempted under Fye