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DESANTO v. ROWAN UNIVERSITY

August 22, 2002

DR. ANDREW C. DESANTO, PLAINTIFF,
V.
ROWAN UNIVERSITY, DEAN DAVID KAPEL, JANE ROE, JOHN DOE, DEFENDANTS.



The opinion of the court was delivered by: Orlofsky, District Judge.

      OPINION

BACKGROUND

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 below.

DISCUSSION

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 position.
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 male.

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.
In his ruling of July 17, 2001, Judge Pisano allowed DeSanto's claims of discrimination based on sex, age, and race to go forward because he found that questions of material fact existed as to whether Defendants' reasons for not hiring DeSanto were pretextual. Specifically, Judge Pisano cited the following evidence proffered by DeSanto: (1) statements allegedly made by Kapel that DeSanto would never get tenure; (2) statements and conduct of Affirmative Action Officer Williams in instituting the University's Affirmative Action Plan; and, (3) the University's Affirmative Action Plan, itself. Tr. at 38. The University's Affirmative Action Plan is relevant to DeSanto's claims of discrimination if Defendants applied the Plan in a manner which unlawfully discriminated against Caucasian males in order to increase the diversity of the teaching staff.
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 denied.
C. Motion to Preclude Introduction of Evidence Pertaining to DeSanto's Claims of Discrimination Based on "National Origin"
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, 1997.
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 ...

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