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DESANTO v. ROWAN UNIVERSITY
August 22, 2002
DR. ANDREW C. DESANTO, PLAINTIFF,
ROWAN UNIVERSITY, DEAN DAVID KAPEL, JANE ROE, JOHN DOE, DEFENDANTS.
The opinion of the court was delivered by: Orlofsky, District Judge.
Plaintiff, Dr. Andrew C. DeSanto ("DeSanto"), was employed by
Defendant, Rowan University ("University"), from September 1994 through
June 1998. DeSanto was originally hired as a temporary replacement for
one year for a faculty member on medical leave, and then, was rehired for
temporary three one-year contracts to replace a second faculty member who
had accepted a temporary dean's position. Alexander Aff., Exs. C, D.
DeSanto applied for four positions in 1998. One of these positions was a
tenure-track position, one was a managerial position, one was a part-time
position, and one was a temporary position. Alexander Aff., Ex. E.
DeSanto was not hired for any of those positions.
On August 20, 1999, DeSanto filed a complaint in this Court against the
University and the University's Dean, David Kapel ("Kapel"), alleging
that they unlawfully discriminated against him in his employment on the
basis of age, race, gender and national origin, in violation of
28 U.S.C. § 1981, 1983, 1985, 42 U.S.C. § 2000e et seq. ("Title
VII"), 29 U.S.C. § 621 et seq. ("ADEA"), and the New Jersey Law
Against Discrimination, N.J. Stat. Ann. § 10:5-1 et seq. ("NJLAD").
On July 17, 2001, the Honorable Joel A. Pisano heard oral argument on
Defendants' motion for summary judgment and DeSanto's cross-motion for
summary judgment. Tr. of Hr'g before Hon. Joel A. Pisano, Civ. A. No.
99-3952 (D.N.J. July 17, 2001). In a bench opinion, Judge Pisano ruled
that: (1) DeSanto could not prove an entitlement to tenure, pursuant to
N.J. Stat. Ann. § 18A:60-8; (2) there was no "substantive basis for a
separate claim under §§ 1981, 1983, and 1985, id. at 25; (3) there was
insufficient evidence in the summary judgment record to sustain DeSanto's
claim of discrimination on the basis
of national origin, id. at 38; (4)
questions of material fact existed on DeSanto's claims of employment
discrimination on the bases of age, gender, and race, pursuant to Title
VII, the ADEA, and the NJLAD, id. at 38; and, (5) DeSanto was barred by
the two-year statute of limitations from bringing any discrimination
claims based on conduct occurring before August 20, 1997. Id. at 32.
Therefore, by Amended Order, dated July 19, 2001, Judge Pisano: (1)
dismissed DeSanto's claims under §§ 1981, 1983, and 1985; (2)
dismissed DeSanto's claims made pursuant to Title VII, the ADEA, and the
NJLAD for events which occurred prior to August 20, 1997; (3) denied
DeSanto's cross-motion for summary judgment, and, (4) dismissed DeSanto's
Title VII and NJLAD claims which were premised on discrimination on the
basis of national origin. Order, DeSanto v. Rowan University, Civ. A.
No. 99-3952 (D.N.J. July 19, 2001).
With trial scheduled to begin on September 9, 2002, Defendants have
filed an exhaustive list of in limine motions, seeking to preclude or
limit DeSanto from introducing certain evidence. I will address each
Motion to Prohibit Plaintiff from Introducing Evidence
or Testimony Regarding Entitlement to or Property
Interest in Tenure and to Bar Plaintiff from Receiving
the Equitable Relief of a Tenured Position
Judge Pisano clearly held that DeSanto could not demonstrate that he
was entitled to tenure pursuant to N.J. Stat. Ann. § 18A:60-8,
because he had not served the requisite number of years, and because the
temporary positions he held would not have entitled him to an expectation
of a full-time position, or of tenure. Tr. at 21-25. Accordingly, Judge
Pisano ruled that DeSanto could not pursue a deprivation of due process
claim, under the Civil Rights Act. Id. at 25. Despite this unequivocal
ruling, DeSanto has included allegations that he was entitled to tenure
and was denied due process in the Joint Final Pre-Trial Order, and seeks
the equitable relief of instatement in a tenured position at the
University. J.F.P.T.O. at 2, 7, 8, 14, 20, 21. Defendants move to
prohibit DeSanto from introducing evidence that he was entitled to tenure
or possessed a constitutional property interest in tenure.
It is clear from Judge Pisano's July 19, 2001 Order that DeSanto's
argument asserting an entitlement to tenure has been dismissed from this
case. Accordingly, DeSanto shall be precluded from introducing evidence
in support of such a claim at trial. DeSanto also alleges, however, that
certain representations made by his superiors at the University induced
him to believe that he might be considered for tenure if he provided
service beyond that required by his yearly contracts. Id. at 18. To the
extent that such evidence is relevant to proving his claim for
intentional discrimination, it shall be permitted.
Defendants also move to bar DeSanto from receiving the equitable remedy
of instatement to a tenured position. As an initial matter and as
discussed more fully below, the decision to grant the equitable remedy of
reinstatement, rather than an award of "front pay," is a question for the
Court to decide. See discussion supra, Part II.L.1. The Defendants
argue that because Judge Pisano found that DeSanto had no entitlement to
tenure, the only equitable remedy that DeSanto might be awarded if the
jury finds that Defendants unlawfully discriminated against him would be
reinstatement to the tenure-track position, not to a tenured position.
To award DeSanto a tenured position, Defendants argue, would allow him to
by-pass the additional requirements necessary for tenure-track employees
to gain tenure,
namely, five years of service in a tenure-tracked
position, substantial contributions to scholarly research, demonstrated
service to the University, and rigorous review by a faculty committee.
See generally, Alexander Aff. at Exs. F, G.
The United States Court of Appeals for the Third Circuit has agreed
with Defendants' arguments under very similar circumstances. Gurmankin
v. Costanza, 626 F.2d 1115, 1125 (3d Cir. 1980).*fn1 Thus, in the event
that the jury finds in favor of DeSanto and I decide that the equitable
remedy of reinstatement is appropriate under the circumstances of the
case, I conclude that the maximum equitable remedy which is available to
DeSanto is reinstatement to a tenure-tracked position, not to a tenured
Motion to Preclude Introduction of Documents or
Testimony of Defendants' Affirmative Action Plan
Defendants move to exclude evidence relating to the University's
Affirmative Action Plan pursuant to Fed.R.Evid. 401, 402, and 403.
Defendants argue that because there is no evidence that the Affirmative
Action Plan was the basis for Defendants' personnel decisions regarding
DeSanto, it is irrelevant and would confuse the jury. Defendants argue,
in the alternative, that if such evidence is admitted, it should be
limited to the plan or plans that were in effect after August 20, 1997.
This, Defendants argue, would be in keeping with Judge Pisano's ruling
limiting DeSanto's claims to those which occurred after August 20, 1997.
DeSanto argues that the University's Affirmative Action Plan, when
viewed in combination with the increase in hiring of female and racial
minorities after the institution of that Plan, and statements made by the
Affirmative Action Officer, Richard A. Williams, is relevant to show that
he was denied a tenure-track position because he was an older white
Fed.R.Evid. 401 provides: "`Relevant evidence' means evidence having
any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable that it
would be without the evidence."
Rule 402 dictates that relevant evidence is admissible, while evidence
which is not relevant is not. Finally, Rule 403 allows the exclusion of
relevant evidence if is "probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading
the jury, . . . undue delay, waste of time, or needless presentation of
cumulative evidence." Fed.R.Evid. 403.
Furthermore, the Court can discern no legal principle, nor have the
Defendants advanced one, that supports limiting the introduction into
evidence of the University's Affirmative Action Plans that were in effect
after August 20, 1997. The claims which DeSanto is entitled to assert
were limited because of his failure to file them before the expiration of
the applicable statute of limitations. There is no rational
relationship, however, between this temporal limitation and a limitation
on the evidence, if relevant, which may be introduced in support of his
viable claims. To bar DeSanto from introducing the University's
Affirmative Actions Plans from before August 20, 1997, would prevent him
from attempting to show a relationship between the University's
Affirmative Action Plans and an increase in the diversity of the
University's teaching staff. Accordingly, Defendants' motion to bar
introduction of the University's Affirmative Action Plan shall be
C. Motion to Preclude Introduction of Evidence Pertaining
to DeSanto's Claims of Discrimination Based on "National
In his bench opinion, Judge Pisano clearly found that "there is
insufficient evidence in this record, indeed there's no evidence in this
record from which it can be established or even argued, . . ., that
there's been discrimination on the basis of him [sic] being Italian
American." Tr. at 38. In his July 19, 2001 Order, Judge Pisano ordered
"defendants' motion to dismiss any claims based [sic] which arise under
Title VII and NJLAD and which are based on national origin is granted and
those claims are dismissed." Accordingly, Defendants' motion in limine
to bar DeSanto from introducing evidence that he was discriminated
against based upon his "national origin" shall be granted.
D. Motion to Preclude Introduction of Evidence Relevant to
Hiring Decisions Made Before August 20, 1997
In his bench opinion, Judge Pisano "dismiss[ed] any Title VII and NJLAD
and ADEA claims which occurred prior to August 20, 1997" because of
DeSanto's failure to file his complaint before the expiration of the
applicable statute of limitations. Tr. at 32. Based on that exclusion,
Defendants now move to preclude DeSanto from introducing evidence of any
of the University's hiring decisions that occurred before August 20,
While Judge Pisano's ruling bars any claims which DeSanto might have
pursued based on conduct that occurred before August 20, 1997, it does not
mean that "the events surrounding [his timely claims] are not relevant
evidence which [DeSanto] could use at trial." Stewart v. Rutgers, The
State University, 120 F.3d 426, 433 (3d Cir. 1997) (citing United Air
Lines v. Evans, 431 U.S. 553, 558 (1977) ("A discriminatory act which is
not made the basis for a timely charge is the legal equivalent of a
discriminatory act which occurred before the statute was passed. It may
constitute relevant background evidence in a proceeding in which the
status of a current practice is at issue, but separately considered, it
is merely an unfortunate event in history
which has no present legal consequences.").
Accordingly, although DeSanto may not pursue any claims of
discrimination based upon events which occurred before August 20, 1997,
he may introduce evidence of those events provided they constitute
"relevant background evidence."
Motion to Preclude Plaintiff's "Other Acts" Evidence
DeSanto seeks to introduce into evidence a letter from Dean Kapel to
Dr. James, President of Rowan University, outlining the reasons why Dr.
Shirley A.B. Muller was denied re-contracting for a fifth year, Alexander
Aff. at Ex. G, and a letter from Kapel to James concerning the
re-contracting of Dr. Marguerite McInnes, in the Department of Secondary
Education/Educational Foundations. Id. at Ex. H. DeSanto contends that
these letters demonstrate the fact that he received disparate treatment
because Drs. Muller and McInnes, both females, were given certain
procedural safeguards, which he should have, but did not, receive.
Defendants argue that the letter concerning Dr. Muller is not relevant
to this case because it involved a tenure-track position, a different
stage of review, and a different set of participants, and because the
letter does not support the conclusion that discrimination played a role
in the decision not to re-contract Dr. Muller. Defendants argue that the
second letter concerning Dr. McInnes is not relevant because there is no
indication that discrimination played a role in the decision not to
re-contract McInnes, and because that decision occurred two and half
years before DeSanto began working at the University. Finally, Defendants
assert that DeSanto's contention that he should have been afforded ...