Filed: Apr. 11, 2018
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 17-1961 _ ANDREW KORTYNA, Appellant v. LAFAYETTE COLLEGE _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 5-15-cv-04625) District Judge: Honorable Lawrence F. Stengel, Chief Judge _ Submitted Under Third Circuit L.A.R. 34.1(a) on March 23, 2018 Before: HARDIMAN, BIBAS, and ROTH, Circuit Judges. (Opinion Filed: March 30, 2018) _ OPINION* _ * This disposition is not a
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 17-1961 _ ANDREW KORTYNA, Appellant v. LAFAYETTE COLLEGE _ On Appeal from the United States District Court for the Eastern District of Pennsylvania (E.D. Pa. No. 5-15-cv-04625) District Judge: Honorable Lawrence F. Stengel, Chief Judge _ Submitted Under Third Circuit L.A.R. 34.1(a) on March 23, 2018 Before: HARDIMAN, BIBAS, and ROTH, Circuit Judges. (Opinion Filed: March 30, 2018) _ OPINION* _ * This disposition is not an..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 17-1961
_______________
ANDREW KORTYNA,
Appellant
v.
LAFAYETTE COLLEGE
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(E.D. Pa. No. 5-15-cv-04625)
District Judge: Honorable Lawrence F. Stengel, Chief Judge
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on March 23, 2018
Before: HARDIMAN, BIBAS, and ROTH, Circuit Judges.
(Opinion Filed: March 30, 2018)
_______________
OPINION*
_______________
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not
constitute binding precedent.
BIBAS, Circuit Judge.
Andrew Kortyna was fired from his job as a tenured physics professor at Lafayette
College because he retaliated against two female students who accused him of sexually
harassing them. He sued the College, alleging sex and disability discrimination,
retaliation, violation of the Family and Medical Leave Act (FMLA), and breach of
contract. We will affirm the District Court’s dismissal because one cannot plausibly infer
from the facts alleged that he was fired for any unlawful reason. Instead, as the record
supports, the College fired Kortyna because it found that he had retaliated against
students who complained that he had sexually harassed them.
I.
In the fall of 2013, two female students, AB and HW, filed complaints of sexual
harassment against Kortyna. HW’s complaint described him as “a man who ‘cried,’
exhibited emotion, was ‘lonely,’ ‘strange,’ ‘awkward,’ and ‘disconnected.’” Am. Compl.
¶ 27 (quoting HW’s complaint). HW wondered what she had “‘done that could make a
grown man cry on so many occasions.’” Id. ¶ 28.v (quoting HW’s complaint). A series
of emails that Kortyna sent to HW over the spring and summer of 2013 give color to her
description, such as:
“It must be obvious to you that I like you. One would have to be blind not
to notice this [. . . .] I could easily see that you might think I’m trying to
draw you into an inappropriate relationship.” App. 445.
“[Y]our way of acting of late is a really really [sic] crappy way of treating
another person [. . .] I have obviously created an intimidating situation
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where you are not able to be open with me. . . . I have no idea if our
relationship is strong enough to withstand my words.” Id.
“Unless we wanted to completely turn our backs on each other, we needed
to renegotiate our relationship such that prickly parts of one person didn’t
stick into the sensitive parts of the other person. And I think that we both
have prickly and sensitive parts.” Id.
In October 2013, Provost Wendy Hill told Kortyna of the complaints, but warned
him not to discuss the case with AB. Nevertheless, the next day, he sought out AB and
apologized, telling her that he was “‘probably going to get fired.’” App. 475-76.
Kortyna cried during his apology. Five days later, Hill reiterated: “‘Let me be clear:
should you see the two students[,] you should have no verbal interaction with them or
interact with them in any way.’” App. 481.
As a result of the complaints, Kortyna began experiencing anxiety attacks and
severe depression. So, in April 2014, he took medical leave as permitted by the FMLA.
Kortyna alleged (and the College did not dispute) that those conditions were disabilities
within the meaning of federal and state law. When those disabilities first arose, he
complained to the College that the Committee investigating the complaints was failing to
accommodate his disability by not letting a lawyer represent him during the Committee’s
hearings. He eventually filed suit under the Americans with Disabilities Act and the
Rehabilitation Act, which the District Court dismissed. The Committee suspended its
work while the College’s motion to dismiss Kortyna’s first lawsuit was pending.
In May 2014, while Kortyna was on medical leave, he moderated a campus
lecture. Both HW and AB also attended. After the lecture ended, Kortyna was asked to
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leave campus. In response, he stood at the front of the room and announced that he was
being forced off campus.
Once Kortyna returned from his medical leave for the fall semester, the
Committee resumed its hearings. After meeting dozens of times and reviewing
documentary evidence, it issued detailed reports on both complaints. The Committee
found that Kortyna had violated the College’s policies by sexually harassing HW and
retaliating against HW and AB. It focused on two incidents of retaliation against AB:
first, Kortyna’s apology, which the Committee viewed as a manipulative ploy to induce
guilt; and second, Kortyna’s conduct at the May lecture. As the Committee explained,
participating in the lecture “placed [Kortyna] in a position of potentially violating two
separate no-contact orders.” App. 480. AB “reasonably perceived Professor Kortyna’s
outburst [when asked to leave campus] as retaliatory.” App. 482.
The Committee also found that Kortyna’s attorney had made an “intimidating
statement” when he warned AB in an email not to repeat her accusations because she was
“‘at risk of being held responsible for doing so.’” App. 483. Moreover, though grades
are confidential, Kortyna had disparaged AB’s grades to one of his colleagues. Finally, a
student reported that Kortyna had said that AB and HW “‘would regret filing this
complaint’” because Kortyna “‘would come after [them] personally with a lawsuit.’”
App. 490.
Ultimately, the Committee recommended suspending Kortyna for two years for
sexually harassing and retaliating against HW. Although it did not find that Kortyna had
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sexually harassed AB, it recommended firing him for retaliating against her because his
pattern of retaliation was “grav[e] and persisten[t].” App. 491.
Kortyna appealed to the College’s Hearing Review Committee, the College
President, and the Board of Trustees. All agreed that Kortyna should be fired. At least
six times in late 2014 and early 2015, Kortyna complained that he was being
discriminated against because of his sex, disability, and use of medical leave. He filed
the last of these complaints on March 6 and was fired on March 30, 2015.
Kortyna filed suit in the District Court, alleging violations of Titles VII and IX of
the Civil Rights Act of 1964, the Americans with Disabilities Act, the Rehabilitation Act,
the Pennsylvania Human Relations Act, the FMLA, and breach of contract. The District
Court dismissed each of these counts for failure to state a claim, except for FMLA
interference, which was dismissed by stipulation. Kortyna appeals the dismissal of all of
his claims except FMLA interference.
II.
We review the District Court’s dismissal for failure to state a claim de novo,
viewing all allegations in the light most favorable to the plaintiff. Evancho v. Fisher, 423
F.3d 347, 350 (3d Cir. 2005). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly,
550 U.S. 544, 570 (2007)). “Although the plausibility standard ‘does not
impose a probability requirement,’ it does require a pleading to show ‘more than a sheer
5
possibility that a defendant has acted unlawfully.’” Connelly v. Lane Constr. Corp., 809
F.3d 780, 786 (3d Cir. 2016) (quoting Twombly and Iqbal) (internal citation omitted).
We may “consider an undisputedly authentic document that a defendant attaches as an
exhibit to a motion to dismiss,” such as the Committee’s reports here, if that document is
“integral to or explicitly relied upon in the complaint.” Pension Benefit Guar. Corp. v.
White Consol. Indus., Inc.,
998 F.2d 1192, 1196 (3d Cir. 1993); In re Burlington Coat
Factory Sec. Litig.,
114 F.3d 1410, 1426 (3d Cir. 1997) (emphasis in original). Here,
Kortyna does not dispute the authenticity of the Committee’s reports or the emails,
statements, and historical facts described therein.
III.
Kortyna alleges no facts that plausibly suggest that he was fired even in part
because he seemed stereotypically unmasculine, was disabled, or had complained of
discrimination. Nor do we perceive any plausible link between his termination and either
his use of medical leave or any breach of contract.
A. Sex Discrimination. The Committee recommended that Kortyna be fired for
retaliating against AB. Part of that retaliation was an apology in which, as Acting
Provost Cohn noted, Kortyna cried. The Committee understood that his “apology” was
really a retaliatory attempt to make AB feel guilty. Viewed in this context, the only
reasonable inference from Cohn’s statement is that he thought that Kortyna’s tears were
unprofessional and intimidating to a student, not that Kortyna had fallen short of a
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masculine stereotype. Kortyna does not allege that Cohn has a history of discriminating
against unmasculine men or even that Cohn himself seems and acts masculine.
Nor does Kortyna allege any facts suggesting that Provost Hill’s investigation was
motivated even in part by discriminatory animus. Kortyna claims that Hill relied on “the
students’ gender-stereotyped perception of” him. Appellant’s Br. 25. But being
“lonely,” “strange,” or “awkward,” as HW described him, is not stereotypically unmanly.
Moreover, HW’s statements that Kortyna was emotional and often cried do not suggest
that Hill thought Kortyna was unmanly. We see no hint of male stereotyping, but simply
HW’s reasonable appraisal of Kortyna’s statements as sexual and emotional, such as:
“[W]e needed to renegotiate our relationship such that prickly parts of one person didn’t
stick into the sensitive parts of the other person.” App. 445 (emphasis added).
Because we will affirm the District Court’s dismissal of Kortyna’s sex-
discrimination claims for lack of plausibility, even on a cat’s-paw theory, we do not
decide whether Title IX creates a private right of action.
B. Disability Discrimination. Kortyna’s amended complaint alleges no facts
suggesting that he was fired because of his disability. The District Court reached the
same conclusion in dismissing his claim under the Pennsylvania Human Relations Act,
which is coextensive with the Americans with Disabilities Act. Kelly v. Drexel Univ., 94
F.3d 102, 105 (3d Cir. 1996). Kortyna argues that he alleged “each element of his prima
facie case,” including causation, because “he was replaced by someone outside his
protected class.” Appellant’s Br. 19-20. That argument confuses McDonnell-Douglas’s
7
burden-shifting analysis (the proof required at summary judgment) with the elements of a
disability-discrimination claim (the plausible allegations required at the pleading stage).
McDonnell Douglas’s “evidentiary standard is not a proper measure of whether a
complaint fails to state a claim.” Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir.
2009). Kortyna pleads nothing that plausibly suggests he was fired even in part because
of his disability.
C. Retaliation. Likewise, Kortyna failed to allege a causal link between his
complaints of sex or disability discrimination and his firing. The timing of his firing,
more than three weeks after his last complaint, does not by itself support an inference of
retaliation. Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (holding
three weeks insufficient). And he alleges no facts showing a “pattern of antagonism”
between the complaints and the firing. Jensen v. Potter,
435 F.3d 444, 450 (3d Cir. 2006)
(internal quotation marks omitted), overruled in part on other grounds by Burlington N.
& Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006). Though the Committee was aware of
Kortyna’s “numerous and at times unrelenting challenges to the process and procedures,”
Kortyna alleges nothing further that suggests antagonism. App. 468.
Kortyna’s FMLA retaliation claim fares no better. The Committee observed that
he was “taking advantage of his medical leave to try to initiate a whole new, other
disciplinary process.” App. 485. As the District Court noted, “[t]he fact that Dr. Kortyna
was on FMLA [leave] at the time he filed these charges is noteworthy because Dr.
Kortyna asked that the prosecution of the charges against the students be expedited,
8
despite the fact that the original charges against him could not be.” App. 51. The
Committee understood that he was retaliating against his accusers at the same time that
his leave halted the proceedings against him.
D. Breach of Contract. Finally, Kortyna’s amended complaint alleges no facts
showing that the alleged breaches of contract caused him any harm. As the District Court
held, most of the allegations of breaches of the Faculty Handbook are “bald assertions.”
App. 52 (internal quotation marks omitted). “Kortyna was terminated because of his
retaliatory actions against AB,” and the allegations that were more than conclusory
asserted modest procedural irregularities that would not plausibly have affected the
outcome. App. 53-54.
*****
As the District Court correctly held, Kortyna did not plausibly allege
discrimination, retaliation, or breach of contract. The record supports the College’s
decision to fire Kortyna because he had retaliated against his students after they
complained that he had sexually harassed them. Any college would have done the same
to protect its students. We will thus affirm the District Court’s dismissal of Kortyna’s
claims.
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