HOMEL v. CENTENNIAL SCHOOL DISTRICT et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 12/21/11. 12/21/11 ENTERED AND COPIES E-MAILED.(mbh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SANDY M. HOMEL
CENTENNIAL SCHOOL DISTRICT, et al
December 21, 2011
In her meandering “shotgun complaint,”1 Sandy Homel makes claims based on a
multitude of legal theories against her former employer, Centennial School District (“CSD”).
She alleges First Amendment retaliation under § 1983; sex discrimination under § 1983,
Title VII, and the Pennsylvania Human Relations Act (PHRA); retaliation for filing sex
discrimination complaints under Title VII and the PHRA; and age discrimination under the
ADEA and the PHRA. Each of her counts incorporates by reference all the allegations of
its predecessors, leaving to us the onerous task of matching each of her several years
worth of factual allegations with a cause of action.
CSD has moved for summary judgment on all counts. For the purpose of
considering CSD’s motion for summary judgment, we consider Homel’s arguments in her
response to the motion as best we can identify them.
We hold that CSD is entitled to summary judgment on Homel’s First Amendment
and ADEA claims. Homel has, however, established that there are triable issues of fact
related to her sex discrimination and Title VII/PHRA retaliation claims. Therefore, we shall
See Opdycke v. Stout, 233 F. App’x 125, 127 n.1 (3d Cir. 2007) (citing Strategic Income Fund, L.L.C.
v. Spear, Leeds & Kellogg Corp., 305 F.3d 1293, 1295 (11th Cir. 2002)).
grant in part and deny in part the summary judgment motion.
The last several years have been tumultuous ones for Centennial School District’s
administration. The district has had four superintendents in four years, and its school
board has been divided by political factions and personal quarrels. Sandy Homel found
herself at the center of much of this imbroglio.
The school district is divided into three geographic regions: Warminster,
Warminster/Ivyland (collectively, the “Warminster regions”), and Southampton. Three of
the school board’s nine members are elected from each of these three regions. As a
result, six of the board members are elected from the Warminster regions and three from
The divide between the Warminster and Southampton board members is more than
a matter of geography. According to the testimony of several school board members and
district administrators, the board members have formed factions that often split along
regional lines. On a number of issues, the board is divided roughly between the six
members of the Warminster majority and the three members of the Southampton minority.
One such issue is Sandy Homel.
Homel began her career with CSD in 1997 when she was hired as director of
secondary education. She has held a number of administrative positions during her
tenure. In 2006, CSD promoted Assistant Superintendent Michael Masko to become
superintendent in July 2007. Prior to Masko officially assuming the superintendency,
Homel interviewed with him for the position of assistant superintendent. To Homel’s
surprise, Masko offered her a different position–assistant to the superintendent. No one
at CSD had held this position before, and it carried a lower salary than assistant
Unlike assistant superintendent, the position of assistant to the
superintendent is not created by the Pennsylvania School Code. According to Homel, no
woman had served as assistant superintendent at CSD.2 Despite her misgivings, Homel
accepted the assistant to the superintendent position.3
Seven months later, CSD offered to promote Homel to assistant superintendent.
CSD first gave Homel a copy of Masko’s old assistant superintendent contract to review
because hers was not ready. When Homel received her own contract, she was surprised
to find a “termination without cause” provision that was not in Masko’s contract. According
to Homel, CSD denied her any opportunity to negotiate the contract or to have it reviewed
by an attorney, and informed her that the school board would not ratify her contract without
the “termination without cause” provision.4 Homel accepted the promotion to assistant
In February and March of 2008–shortly into Homel’s tenure as assistant
superintendent–school board member Mark Miller, a member of the Southampton minority,
However, a wom an had served as district superintendent. Nancy Reid was superintendent from
1993 to 2001.
The parties dispute whether Hom el retained her existing adm inistrative duties after she took the
position of assistant to the superintendent. Hom el claim s that she worked three positions–assistant to the
superintendent, director of elem entary education, and director of secondary education–while only being paid
for one. She claim s that when she eventually becam e acting superintendent she worked four adm inistrative
positions while only being paid for one. CSD counters that Hom el only worked in one position at a tim e, and
that the other positions were vacant. It claim s that Hom el was em powered to delegate the duties of those
vacant positions to other adm inistrators, and that it eventually hired a consultant to assist her in doing so while
she served as acting superintendent.
CSD denies that it did not give Hom el an opportunity to negotiate her contract or have it reviewed
by a lawyer.
approached Homel on at least two occasions and asked her about the purchase of a large
kiln for the high school’s art department. The kiln purchase allegedly had been made at
Masko’s direction while he served as assistant superintendent. Miller was apparently
concerned that Masko had purchased the kiln without the school board’s approval and
without following the mandatory bidding procedures for making such purchases. Miller also
thought it suspicious that Masko’s wife was a teacher in the art department when the kiln
Homel agreed with Miller that the purchase appeared suspicious, and eventually
provided Miller with a paper record of the transaction. Homel did not bring this information
to the full school board, but only worked through Miller. Miller and fellow board member
Cynthia Mueller–also a member of the Southampton minority–apparently took the lead on
investigating the kiln purchase. Masko resigned as superintendent in June 2008, allegedly
at the behest of the school board.
Homel claims that the board members in the Warminster majority disapproved of
her actions during Miller’s investigation and wanted to damage her career at CSD. She
claims that some board members blamed her for Masko’s resignation because they
believed she was disloyal in revealing his potential wrongdoing. She also claims that
members of the Warminster majority were angry for her working through two members of
the Southampton minority, rather than bringing the issue to the full board. In her view, the
Warminster majority believed that she was aligned with Miller and Mueller to undermine
The board appointed Homel acting superintendent in July 2008. Homel claims that,
during her tenure in February 2009, school board member Jane Lynch approached her
with a quid pro quo arrangement. According to Homel, Lynch asked her for help in getting
her grandchild into kindergarten, even though the grandchild was too young to make the
cutoff age. Homel testified that Lynch, knowing that Homel hoped to become full-time
superintendent, offered to help her get the school board votes she needed in exchange for
the favor.5 Homel claims that she rejected the offer and informed the school board
president Thomas Reinboth, but that Reinboth failed to take any action.
Homel interviewed for the full-time superintendent position in early 2009. Shortly
thereafter, she was informed that the school board had decided to hire another candidate.
Three board members voted for and six board members voted against her application to
move beyond the initial interview stage. Miller and Mueller of Southampton were two of
the board members who voted for Homel.6 The school board then unanimously selected
Thomas Turnbaugh, who had served as superintendent of another district, to become
CSD’s superintendent. Homel continued to serve as acting superintendent throughout the
2008-2009 school year and until August 2009, when Turnbaugh officially took over.
The parties disagree on why Homel was not selected for superintendent in 2009.
According to CSD, the board members preferred Turnbaugh in part because he, unlike
Homel, had a doctorate and had prior experience as a superintendent in another district.
Homel argues that Turnbaugh’s doctorate is pretext because at least two previous
superintendents did not have one. Instead, she argues that the school board’s decision
was politically motivated. She says that she could not garner the five votes she needed
Lynch and CSD deny that this occurred. They claim that Lynch m erely asked Hom el for advice on
whether to enroll her grandchild in kindergarten for the upcom ing school year or to wait for the following year.
Andrew Pollack from W arm inster voted for Hom el’s application to m ove beyond the first round.
Joseph Sim pson from Southam pton voted against.
because of the fallout from the kiln purchase incident and her refusal to accept Lynch’s
quid pro quo. She believes that a majority of the board had turned against her.
The district denies that either the kiln purchase controversy or her allegations
against Lynch had anything to do with the board’s decision not to promote her. It does not
dispute that Homel became entangled in board politics. CSD claims that the board
members who voted against her believed that she had become a divisive figure in the
district’s administration. They felt that she had aligned herself with the Southampton
minority–particularly Miller and Mueller–to the detriment of the full board. They believed
that she regularly met with and provided information to Miller and Mueller without sharing
it with the other board members.
The tumult within CSD’s administration continued under Turnbaugh. The district’s
business manager, human resources manager, special education supervisor, and facilities
engineering and services director left during his tenure. Two female administrators filed
internal complaints against him. One of those administrators was Donna Dunar, who
claimed that Turnbaugh had sexually harassed her. During the pendency of this action,
Dunar filed a federal suit against CSD, Turnbaugh, and board member Andrew Pollock for
sex discrimination, sexual harassment, and retaliation. Dunar has filed an affidavit in
support of Homel in this case.
Homel claims that Turnbaugh regularly embarrassed her, berated her, undermined
her authority, excluded her, and devalued her work. On January 7, 2010, Turnbaugh
reminded her that, under her contract, she could be terminated without cause. The next
day, Turnbaugh informed her that she was being removed from her position and placed
on leave with pay. The following Monday, Turnbaugh handed her a letter stating that she
was being placed on administrative leave under the “no cause termination” provision of her
Homel quickly filed an internal “hostile environment” complaint against Turnbaugh.
She claims that, in keeping with its practice of not taking women’s discrimination
complaints seriously, CSD failed to meaningfully investigate her complaint. Homel filed a
charge with the U.S. Equal Employment Opportunity Commission (EEOC) on April 13,
2010, claiming that CSD had discriminated against her based on her age and sex by failing
to hire her as superintendent, removing her without cause, undermining her authority, and
generally abusing and humiliating her. She claims that CSD made no serious attempt to
resolve this or any of her future EEOC charges.
The school board never formally ratified Turnbaugh’s decision to put Homel on
administrative leave. However, the board did discuss that decision. Six of the board
members agreed with it. The three dissenters were Miller, Mueller, and Katherine Driban,
all of whom are from Southampton.7 The board members who opposed Homel claim to
have done so for the same reason they did not select her to be superintendent in
2009–they felt that she had become a divisive figure in the school administration and
continued to share information with Miller and Mueller to the detriment of the full board.
On May 11, 2010, while Homel remained on forced leave, CSD promoted two
younger employees, one of whom was male, to cover some of Homel’s previous
responsibilities. Homel filed a second EEOC charge on June 15, 2010, alleging that those
promotions were evidence that her removal was the product of age and sex bias in
Driban replaced Sim pson on the school board in May 2009.
violation of the ADEA and Title VII. She also alleged in that charge that CSD forced her
to work multiple jobs while only paying her for one.
In August, the school board voted to formally terminate Homel’s employment at the
end of her contract.8 Again, the vote was six to three, with the three board members from
Southampton in the minority. The six members who voted for termination claim that they
considered this a procedural step formalizing Homel’s removal.
Turnbaugh resigned as superintendent in December 2010.9 Homel–who was still
on leave–again applied for the position. Once again the count was six to three with the
three members from Southampton supporting her application. Ultimately, the board
selected Jennifer Cressman, who is 22 years younger than Homel.
Homel filed two additional EEOC charges while she remained on forced leave. On
January 11, 2011, she filed a charge alleging that CSD had discriminated against her
based on age and sex by terminating her. She also alleged that her termination was in
retaliation for her previous EEOC charges. On May 11, 2011, she filed another charge,
alleging that CSD’s decision to hire Cressman constituted age and sex discrimination and
was done in retaliation for her three previous EEOC charges.
Standard of Review
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of
Hom el’s contract was set to autom atically renew on June 30, 2011 unless the school board voted
to term inate it.
CSD did not cite any official reasons for Turnbaugh’s resignation. Hom el alleges that Turnbaugh
resigned because of Dunar’s sexual harassm ent allegations.
law.” Fed. R. Civ. P. 56(a). Judgment will be entered against a party who fails to
sufficiently establish any element essential to that party’s case and who bears the ultimate
burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In
examining the motion, we must draw all reasonable inferences in the nonmovant’s favor.
InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. 2003).
The initial burden of demonstrating there are no genuine issues of material fact falls
on the moving party. Fed. R. Civ. P. 56(a). Once the moving party has met its burden, the
nonmoving party must counter with “‘specific facts showing that there is a genuine issue
for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(citation omitted). The nonmovant must show more than the “mere existence of a scintilla
of evidence” for elements on which she bears the burden of production. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Bare assertions, conclusory allegations or
suspicions are not sufficient to defeat summary judgment. Fireman’s Ins. Co. v. DuFresne,
676 F.2d 965, 969 (3d Cir. 1982). Thus, “[w]here the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for
trial.’” Matsushita, 475 U.S. at 587 (citation omitted).
First Amendment Retaliation
Homel argues that the school board retaliated against her for engaging in
constitutionally protected speech. She claims that the board denied her a promotion to
superintendent and later removed her from her position as assistant superintendent
because she reported to Miller alone, not to the entire board, that Masko’s kiln purchase
was unusual.10 Homel argues that her discussion of the purchase with Miller led several
board members to believe that Homel had aligned herself with Miller and Mueller against
the other members. She also argues that some board members felt that she had betrayed
Miller by reporting the purchase.
To succeed on her First Amendment retaliation claim, Homel must demonstrate that
her speech is protected by the First Amendment and was a substantial factor in CSD taking
its retaliatory action. Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009) (citing Hill v.
Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006) (“Kutztown”)); see also Hill v. City
of Scranton, 411 F.3d 118, 125 (3d Cir. 2005). Whether Homel's speech is protected is
a question of law. Gorum, 561 F.3d at 184. Whether it was a substantial factor in CSD’s
actions against her is a question of fact. Id. If Homel meets her burden as to both
elements, the burden shifts to the district to demonstrate that it would have taken the same
action had the speech not occurred. Id. (citing Green v. Phila. Hous. Auth., 105 F.3d 882,
885 (3d Cir. 1997)).
As a threshold matter, we must decide whether Homel's statements to Miller were
protected speech. Public employees speaking on matters related to their employment are
not afforded the same protection under the First Amendment as are private citizens. See
Garcetti v. Ceballos, 547 U.S. 410, 418-19 (2006); see also Rutan v. Republican Party of
Ill., 497 U.S. 62, 95 (1990) (Scalia, J., dissenting) (listing cases). When a public employer
Hom el filed her original com plaint on March 23, 2011, which was within the two-year statutory
period. See Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) (holding that the statute of lim itations for § 1983
claim s in Pennsylvania is two years). Although she m ade the statem ents to Miller in early 2008, she alleges
that the district retaliated for those statem ents on March 30, 2009, when she was inform ed she would not be
hired as superintendent, and on January 11, 2010, when she was rem oved from her position as assistant
disciplines an employee for making certain statements, it presumably does so not as a
government regulator of private conduct but rather as an employer trying to run its
business. Garcetti, 547 U.S. at 418-19. Still, a government employee remains a citizen,
and may speak out as a citizen about matters of public concern. Id. at 419. The
government employer may only impose those speech restrictions that are necessary for
it to operate efficiently and effectively. Id. (citing Connick v. Myers, 461 U.S. 138, 147
The First Amendment protects a public employee's statements when: (1) the
employee speaks as a citizen and not in her capacity as an employee; (2) her statement
involves a matter of public concern; and (3) the government employer is not justified in
treating her differently from a member of the general public for making the same
statements.11 Gorum, 561 F.3d at 185 (quoting Kutztown, 455 F.3d at 241).
Homel Was Not Speaking as a Public Citizen
The critical question for determining whether Homel spoke to Miller as a citizen,
rather than as a public employee, is whether Homel made her statements "pursuant to" her
job responsibilities such that her speech "owes its existence" to those responsibilities.
Garcetti, 547 U.S. at 421; Cindrich v. Fisher, 341 F. App’x 780, 786 (3d Cir. 2009); see also
Weintraub v. Bd. of Educ., 593 F.3d 196, 201 (2d Cir. 2010). This inquiry presents a mixed
question of law and fact. Reilly v. City of Atl. City, 532 F.3d 216, 227 (3d. Cir. 2008)
(quoting Foraker v. Chaffinch, 501 F.3d 231, 240 (3d Cir. 2007)).
The first two prongs overlap. Notably, the Suprem e Court in Garcetti articulated the first two prongs
as a single inquiry. 547 U.S. at 418.
Homel argues that her statements to Miller are protected because she was
speaking not as assistant superintendent, but as a citizen concerned about a potentially
illegal purchase with taxpayers’ money. She argues that because monitoring and reporting
such purchases were not part of her “official” job responsibilities, she was not speaking to
Miller in her official capacity.12
Contrary to Homel’s argument, we determine whether an employee speaks pursuant
to her job responsibilities based on a practical consideration of what her job really entails,
rather than a narrow delineation of enumerated “official” versus “unofficial” duties. See
Garcetti, 547 U.S. at 424-25 (“The proper inquiry is a practical one.
descriptions often bear little resemblance to the duties an employee actually is expected
to perform, and the listing of a given task in an employee's written job description is neither
necessary nor sufficient to demonstrate that conducting the task is within the scope of the
employee's professional duties . . . .”). Taking a practical view of Homel’s role in the CSD
administration, we conclude that she spoke to Miller in her capacity as assistant
Homel reported an act of potential wrongdoing to her superior. Courts have
consistently held that doing so falls within an employee’s professional responsibilities.
See, e.g., Garcetti, 547 U.S. at 421-22 (holding that a deputy district attorney’s memo to
his superiors reporting potentially serious deficiencies in a warrant affidavit was not
protected); Foraker, 501 F.3d at 243 (holding that an employee reporting complaints up the
Hom el also pursues a novel theory that she had a First Am endm ent right not to ally with the
W arm inster board m em bers and instead speak only to Miller. Because Hom el’s “association” theory is
inseparable from her free speech theory, we shall consider them part of one claim and apply the Garcetti
analysis. See Gorum, 561 F.3d at 185 n.4 (citing Sanguigni v. Pittsburgh Bd. of Public Educ., 968 F.2d 393,
400 (3d Cir. 1992)).
chain of command is acting within his job duties), abrogated on other grounds by Borough
of Duryea v. Guarnieri, 131 S.Ct. 2488 (2011); Cindrich, 341 F. App'x at 787 (holding that
a plaintiff's speech in chain-of-command letters was not protected); O’Neill v. Phila. Hous.
Auth., No. 11-0173, 2011 WL 2559716, at *2 (E.D. Pa. June 29, 2011) (holding that the
plaintiffs acted within their job responsibilities when they reported allegations of other
employees’ wrongdoing to their superior and the employer’s lawyers, even though their
primary job responsibility was not to monitor and prevent such wrongdoing); Armbruster
v. Cavanaugh, No. 09-1006, 2010 WL 816385, at *3 (E.D. Pa. Mar. 9, 2010) (holding that
the plaintiff was "complaining about his job function up the chain of command of his
department, and caselaw dictates this speech fell within his official duties").
Miller approached Homel because she was an administrator who he believed might
have information relevant to his investigation. She knew about the transaction because
the kiln was purchased for the high school’s art department when Homel was supervising
the high school’s operations as the district’s director of secondary education.13 See
Gorum, 561 F.3d at 185 ("We have held as well that a claimant's speech might be
considered part of his official duties if it relates to ‘special knowledge' or ‘experience'
acquired through his job.") (citing Foraker, 501 F.3d at 240). As the district’s assistant
superintendent, the second highest position in CSD’s administration, Homel had the
authority and responsibility to investigate wrongdoing within the district. Acting with this
authority, she instructed the district’s business manager, Timothy Vail, to produce the
payment record for the kiln purchase in response to Miller’s inquiry. She was asked about
The district’s director of facilities, Victor Lasher, inform ed Hom el about the purchase in 2007
because at that tim e she was director of secondary education.
the purchase in connection with her professional responsibilities. Speaking about it was
part of her job.
The undisputed facts belie Homel’s argument that she was acting as a concerned
citizen. The record shows that she treated the kiln purchase as a work issue. Although
she learned about the purchase in 2007, she did not report it to the school board on her
own initiative. She claims that doing so was the superintendent’s responsibility, not hers.
At no time did she take it upon herself to bring the purchase into the public light.14 She
only reported the purchase when a school board member asked her about it. She
responded to the kiln purchase only to the extent that her job responsibilities required it.
We hold that Homel's First Amendment retaliation claim fails as a matter of law
because Homel's statements to Miller are not constitutionally protected.15 Therefore, we
shall grant the district's motion on this claim.16
Courts have held that a public em ployee’s speech is protected where the em ployee spoke publicly
in a forum accessible to the general public. See, e.g., Pickering v. Bd. of Educ., 391 U.S. 563, 572-73 (1968)
(holding that the First Am endm ent protected a teacher's subm ission of a letter to a local newspaper criticizing
the school board's funding decisions). Conversely, when the em ployee only speaks to a supervisor or other
em ployees, courts are m ore likely to hold that the em ployee was speaking pursuant to her job responsibilities.
See, e.g., Garcetti, 547 U.S. at 421-22 (holding that a deputy district attorney’s m em o to his superiors was
not protected); Miller v. Clinton Cnty., 544 F.3d 542, 550 (3d Cir. 2008) (holding that the First Am endm ent did
not protect a probation officer's letter to a supervising judge com plaining about the alleged m isconduct of her
supervisor); Foraker, 501 F.3d at 237 (holding that the First Am endm ent did not protect a state trooper's
internal com plaint); Kutztown, 455 F.3d at 242 (holding that the First Am endm ent did not protect a form er
borough m anager's com plaint to the city council about the m ayor).
In her response to the district’s statem ent of uncontested facts, Hom el also claim s that her refusal
to help board m em ber Lynch’s grandchild get into kindergarten is another basis for her First Am endm ent
claim . Assum ing that Hom el’s actions in response to Lynch’s request im plicate the First Am endm ent, they
are not protected for the sam e reason as Hom el’s conversations with Miller about the kiln purchase. Hom el
acknowledges that Lynch approached her because she was a m em ber of the school board who m ight be able
to help her. Hom el therefore was speaking “pursuant to” her job duties, not as a public citizen.
Because we conclude that Hom el’s speech is not protected because she was not speaking as a
citizen, we need not determ ine whether the kiln purchase was a m atter of public concern or whether CSD had
an adequate justification for treating Hom el differently from a m em ber of the public. Nor do we consider
whether her speech was a substantial factor in the actions CSD took against her.
Homel alleges that CSD discriminated against her because of her age in violation
of the ADEA and the PHRA with three adverse employment actions. First, it removed her,
the oldest administrator at CSD, without cause. Second, it passed over her for district
superintendent and instead hired an applicant 22 years her junior. Third, it replaced her
as director of secondary education while she was on forced administrative leave with an
employee who is 24 years younger.17 In moving for summary judgment on this claim, CSD
argues that Homel is not an “employee” protected by the ADEA and that she cannot meet
her burden of persuasion to show that the district’s actions were motivated by age bias.
The ADEA prohibits discrimination in hiring, discharge, “compensation, terms,
conditions, or privileges of employment” on the basis of age. 29 U.S.C. § 623(a)(1) (2006).
Homel argues that CSD’s justifications for taking actions against her are pretext for age
discrimination. Therefore, we apply the McDonnell Douglas burden-shifting framework
familiar to Title VII race and sex discrimination claims. See Fasold v. Justice, 409 F.3d
178, 184 (3d Cir. 2005) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973));
see also Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009) (holding that the
McDonnell Douglas framework still applies to ADEA claims after the Supreme Court’s
decision in Gross v. FBL Fin. Servs, 129 S.Ct. 2343 (2009)).
If Homel makes out a prima facie case, the burden of production shifts to CSD “to
It is disputed whether Hom el was actually replaced by Khalid Mum in, a 38-year-old m an, as director
of secondary education. CSD argues that Hom el relinquished that position when she becam e assistant to
the superintendent. Hom el counters that she held both positions sim ultaneously.
identify a legitimate non-discriminatory reason for the adverse employment action.” Smith,
589 F.3d at 690 (citing Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir.
If the district satisfies that burden, Homel then must demonstrate that the
employer's proffered rationale was a pretext for age discrimination. Id. (citing Starceski v.
Westinghouse Elec. Corp., 54 F.3d 1089, 1095 n.4 (3d Cir. 1995)). This final burden of
production “merges with the ultimate burden of persuading [the jury] that she has been the
victim of intentional discrimination.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
256 (1981). The ultimate burden of persuasion, including the burden to show that
discriminatory intent was a “but-for” cause of the district’s adverse employment actions,
rests with Homel at all stages of the proceeding. Smith, 589 F.3d at 690-691 (citing Gross
v. FBL Fin. Servs., 129 S.Ct. at 2349-51).
To make out a prima facie case of age discrimination, Homel must show that: (1)
she is 40 years of age or older; (2) the district took an adverse employment action against
her; (3) she was qualified for the position for which she applied or from which she was
removed; and (4) she “was ultimately replaced by another employee who was sufficiently
younger to support an inference of discriminatory animus.” Id. (citing Potence v. Hazleton
Area Sch. Dist., 357 F.3d 366, 370 (3d Cir. 2004)).
Homel has made out a prima facie case on her claim that the district discriminated
against her when it failed to hire her for the superintendent position in 2011. She was 62
years of age at the time she applied for the position; she was not hired as superintendent;
she was qualified to be superintendent;18 and she was passed over for 40-year-old
The district does not dispute this.
candidate Jennifer Cressman. See Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d
Cir. 1995) (holding that the plaintiff need not show any specific age difference to satisfy the
fourth element of the prima facie case, and that even a five-year difference can be
sufficient) (citations omitted).
The district puts forward a number of reasons for not hiring Homel, which boil down
to a contention that a majority of the school board members found her a divisive figure in
the CSD administration. Some of the board members felt that Homel was improperly
allying herself with a minority faction of the board against the majority. Other members
simply did not like her management style. In contrast, the district argues, a majority of the
board members thought that Cressman would be a unifying presence in the school
administration. In short, CSD contends that it made a managerial decision, not one based
on age. CSD has met its burden of production to show that it had non-discriminatory
reasons for its employment decisions.
Homel’s ADEA claim falters at the third McDonnell step. To meet her burden of
persuasion to show that age bias was a “but-for” cause of CSD’s actions against her, see
Smith, 589 F.3d at 690-91, Homel must present evidence from which the jury could either
“(1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or determinative cause of the
employer's action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (citations omitted).
Other than making conclusory statements that it was, Homel offers no evidence beyond
her prima facie case that the board was motived by age bias in taking any of its adverse
employment actions.19 See Blanchard v. Gallick, No. 11-2957, 2011 WL 4867556, at *2
(3d Cir. Oct. 14, 2011) (holding that a conclusory allegation of liability is insufficient to avoid
summary judgment (citing Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146
(3d Cir. 1972))). She tries to meet her burden only by attacking CSD’s articulated reasons
Homel attacks CSD’s stated reasons in two ways. First, she challenges the factual
assertions on which CSD’s reasons are based. She claims that the school board members
who now criticize her performance never made any such complaints previously, which
belies CSD’s argument that the board was unhappy with her performance. She also
contends that Cressman is far less qualified to be superintendent than she is. Second, she
presents an alternative account of why the school board took actions against her. She
argues that CSD retaliated against her because of her EEOC complaints and her refusal
to accept Lynch’s quid pro quo offer.
Homel’s pretext arguments fail because she concedes that age was not a “but-for”
cause of CSD’s actions against her. Whether a jury would believe CSD’s or Homel’s
proffered reasons for the adverse employment actions is immaterial. Neither set of
reasons tends to show that age bias was a determinative factor. See Fakete v. Aetna, Inc.,
308 F.3d 335, 337 (3d Cir. 2002) (“To prevail on an ADEA termination claim, a plaintiff
Hom el m entions that two other adm inistrators who are close to her in age suffered sim ilar
m istreatm ent. She does not m ake any age discrim ination claim based on this fact. Even if she did, this does
not create an inference of age discrim ination sufficient to overcom e sum m ary judgm ent. Hom el provides no
contextual evidence to suggest that CSD had a culture or pattern of age discrim ination. She does not provide
statistical evidence to show that CSD generally treated older adm inistrators worse than younger ones. See,
e.g., Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736 (7th Cir. 1994). She does not offer any other
circum stantial evidence, such as derogatory com m ents by school board m em bers, to show that the actions
against the other adm inistrators were because of age bias. See, e.g., Hasan v. Foley & Lardner LLP, 552
F.3d 520, 527-28 (7th Cir. 2008) (citing Troupe, 20 F.3d at 737). Standing alone, this fact only shows that two
other adm inistrators of roughly the sam e age were m istreated.
must show that his or her age ‘actually motivated’ and ‘had a determinative influence on’
the employer's” adverse action. (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 141 (2000))); see also Adams v. Wal-Mart Stores, Inc., 324 F.3d 935, 939 (7th
Cir. 2003) (“That circumstantial evidence, however, must point directly to a discriminatory
reason for the employer's action.”).
A plaintiff need not always put forward evidence of age discrimination beyond what
is required for her prima facie case. A plaintiff may, in some cases, meet her ultimate
burden of persuasion simply by making out a prima facie case and establishing that the
employer’s allegedly non-discriminatory reasons are pretext. See Reeves, 530 U.S. at 147
(citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)). In those cases, the
plaintiff proves that age discrimination was the cause of the adverse employment action
by showing that no other believable reason for the action exists. Id. This is not such a
case because Homel contends that CSD had a non-age discriminatory motive.
Without saying so, Homel tries to use a mixed motives theory to prove age
discrimination. Prior to the Supreme Court’s decision in Gross, a plaintiff could prevail on
a summary judgment motion by offering evidence to show that discrimination was a
substantial factor among other factors in the adverse employment actions. See Fakete,
308 F.3d at 338 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 265-66 (1989)). When
a plaintiff did so, the burden of persuasion shifted to the employer to show that it would
have taken the action regardless of the plaintiff’s age. Id. The Supreme Court held in
Gross, however, that this burden-shifting mechanism did not apply to age discrimination
cases. Gross, 129 S.Ct. at 2350-51; see also Smith, 589 F.3d at 690-691. Thus, the
burden remains with Homel to show that age discrimination was a determinative factor in
CSD’s actions, not merely a substantial one among several. She cannot meet that
The PHRA’s age discrimination protections are identical to the ADEA’s. See Fasold,
409 F.3d at 184 n.8 (3d Cir. 2005) (quoting Fogleman v. Mercy Hosp., Inc., 283 F.3d 561,
567 (3d Cir. 2002)). Thus, for the reasons stated in our ADEA analysis, we shall grant
CSD’s motion for summary judgment on Homel’s age discrimination PHRA claim as well
as the ADEA claim.
Homel alleges that CSD discriminated against her on the basis of her sex in
violation the Equal Protection Clause, Title VII, and the PHRA. The standard for proving
sex discrimination by disparate treatment is identical under each of these three laws.
Stewart v. Rutgers, The State Univ., 120 F.3d 426, 432 (3d Cir. 1997) (the same standards
apply to proving intentional discrimination under the Equal Protection Clause and Title VII
(citing St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 n.1 (1993))); Jones v. Sch. Dist.
of Phila., 198 F.3d 403, 409-10 (3d Cir. 1999) (the same standards apply to Title VII and
Statute of Limitations
As a threshold matter, we must determine how the applicable statutes of limitations
impact her various causes of action. Each of the three statutes upon which Homel relies
Because we hold that Hom el cannot m eet her ultim ate burden of persuasion, we need not address
CSD’s argum ent that Hom el is not an “em ployee” under the ADEA.
has a different statute of limitations. Any adverse discriminatory action that forms the basis
of Homel’s sex discrimination claims must have occurred within each statute’s limitations
period. See Talbert v. Judiciary of N.J., 420 F. App’x 140, 142 (3d Cir. 2011). Hence, we
must determine which of CSD’s alleged actions against Homel can form the basis of her
claims under each statute separately.
Homel alleges that the district did the following21: forced her to perform three and
four jobs without assistance while only paying her for one from July 2007 to January 2010;
initially promoted her to the lower-paying and less prestigious position of assistant to the
superintendent, rather than assistant superintendent, in July 2007; failed to promote her
to superintendent in March 2009; undermined her authority as assistant superintendent by
requiring the elementary school principals to report directly to the superintendent in August
2009; forced her to accept a “without cause” termination provision in her employment
contract and then used it to remove her as assistant superintendent on January 11, 2010;
failed to hire her as superintendent in January-February 2011; and terminated her
employment in August 2011.
a. Section 1983 claim22
Hom el alleges that the district engaged in a slew of unlawful or otherwise unsavory actions against
her, and she does not specify which of those constitute adverse em ploym ent actions and which are m erely
evidence of discrim inatory intent. For the purposes of our statute of lim itations analysis, we consider those
actions that m ight plausibly be considered adverse em ploym ent actions.
CSD argues that Hom el’s entire § 1983 claim is barred as a “class of one” claim . However, Hom el
is not proceeding as a class of one. See Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 604-05 (2008)
(defining a “class of one” claim as one in which a plaintiff argues that she was treated irrationally irrespective
of her m em bership in a protected class). Although a num ber of CSD’s allegedly discrim inatory actions were
taken only against her, Hom el alleges that those actions were taken because she is fem ale, and as part of
CSD’s practice of discrim inating against fem ale adm inistrators.
Homel alleges that CSD violated her Fourteenth Amendment right to equal
protection by discriminating against her because of her sex. State personal injury tort law
provides the appropriate statute of limitations for claims brought under § 1983. See
Wallace v. Kato, 549 U.S. 384, 387 (2007). In Pennsylvania, a personal injury claim must
be filed within two years. 42 Pa. Cons. Stat. § 5524(2) (2004). Thus, the statute of
limitations for § 1983 claims in Pennsylvania is two years. Kach v. Hose, 589 F.3d 626,
634 (3d Cir. 2009).
Homel filed her original complaint on March 23, 2011. Accordingly, she may only
base her claims on adverse employment actions that occurred on or after March 23, 2009.
Six of these actions survive the statute of limitations. They are: forcing her to
perform three and four jobs without assistance while only paying her for one from July 2007
to her termination in June 2011;23 failing to promote her to superintendent on March 30,
2009; undermining her authority over the elementary school principals on August 19,
2009;24 removing her without cause from her position as assistant superintendent and
placing her on administrative leave on January 11, 2010;25 terminating her employment in
This alleged action survives under the “continuing violations doctrine,” which is “an equitable
exception to the tim ely filing requirem ent.” Soppick v. Borough of W . Conshohocken, 118 F. App’x 631, 635
(3d Cir. 2004) (quoting Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001) (internal quotations om itted)).
To avail herself of this theory, Hom el m ust show that: 1) at least one act occurred within the statutory period;
and 2) the prior conduct was not isolated or sporadic, but was part of a continuing, ongoing pattern. Id.
(quoting W est v. Phila. Elec. Co., 45 F.3d 744, 754-55 (3d Cir. 1995)). Hom el m eets this standard because
she alleges that she was constantly forced to perform the duties of m ultiple positions while only being paid
for one over the course of four years.
W e do not decide whether this action satisfies the m unicipal liability doctrine under Monell because
Hom el fails to establish that it was sufficiently adverse to her working conditions to constitute an “adverse
em ploym ent action.”
Although the initial decision to rem ove Hom el was m ade by Turnbaugh and not the school board,
we conclude that the school board can be held liable under the Monell doctrine because it ratified Turnbaugh’s
decision. See Hill v. Borough of Kutztown, 455 F.3d 225, 245 (3d Cir. 2006) (holding that m unicipal liability
can be established by showing that the final decision-m aker ratified the subordinate’s decision); McGreevy
August 2010, effective June 30, 2011; and failing to hire her as superintendent in JanuaryFebruary 2011. CSD’s decision to promote her to assistant to the superintendent instead
of assistant superintendent in July 2007 is time barred.
b. Title VII claim
Homel bases her Title VII gender discrimination claim on the same adverse
employment actions as her § 1983 claim. The statue of limitations for her Title VII causes
of action is not the same as for her § 1983 claims.
A plaintiff must file a charge of discrimination with the Equal Employment
Opportunity Commission (EEOC) or its state equivalent within 300 days of the alleged
unlawful action. Mikula v. Allegheny Cnty., 583 F.3d 181, 183 (3d Cir. 2009); West v.
Phila. Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995).26
On April 13, 2010, Homel filed her first charge with the EEOC regarding the district’s
failure to promote her to superintendent on May 30, 2009, its undermining of her authority
over the elementary school principals on August 19, 2009, and its removing her from the
position of assistant superintendent on January 11, 2010. Because the alleged actions of
intentional discrimination must have occurred on or after June 17, 2009–300 days before
v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005) (citing City of St. Louis v. Praprotnik, 485 U.S 112, 127 (1988));
see also Amnesty America v. Town of W . Hartford, 361 F.3d 113, 126 (2d Cir. 2004). Turnbaugh’s decision
is therefore attributable for the purposes of m unicipal liability. The board m em bers discussed the decision
shortly after it occurred, and CSD adm its that m ost m em bers favored Hom el’s rem oval. The board later voted
to m ake her rem oval perm anent by voting not to renew her contract. A school board is considered the
equivalent of a m unicipal governm ent for the purposes of Monell analysis. See Monell v. Dep’t of Soc. Servs.
of N.Y.C., 436 U.S. 658 at 696-97 (1978).
A plaintiff m ust ordinarily file her charge with the EEOC within 180 days of the discrim inatory act.
42 U.S.C. § 2000e-5(e)(1) (2006). However, in jurisdictions where there is a parallel state adm inistrative entity
for investigating com plaints of discrim ination, such as Pennsylvania, a plaintiff has 300 days to file. See
W atson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000); 29 CFR 1601.74(a) (2011).
she filed her EEOC charge–Homel’s Title VII cause of action for CSD’s failure to hire her
as superintendent on May 30, 2009 is barred. Her other two claims in the April 13, 2010,
charge are not barred.
On June 15, 2010, Homel filed her second EEOC charge. In it she alleged that the
district forced her to work multiple jobs while only paying her for one.27 Because Homel
alleges that this adverse employment action began prior to August 19, 2009–300 days
before June 15, 2010–this claim implicates the “Lilly Ledbetter Fair Pay Act of 2009” (the
“Fair Pay Act”) Pub. L. No. 111-2, 123 Stat. 5, which amended 42 U.S.C. § 2000e-5(e).
The amendment is applicable “to all claims of discrimination in compensation under Title
VII of the Civil Rights Act of 1964 . . . that are pending on or after” May 28, 2007. Pub.
L. 111-2, § 6.
Finding that “the Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., 550
U.S. 618 (2007), significantly impairs statutory protections against discrimination in
compensation” and that the “decision undermines those statutory protections by unduly
restricting the time period in which victims of discrimination can challenge and recover for
discriminatory compensation decisions or other practices,” Id. § 2(1), Congress passed the
Lilly Ledbetter Fair Pay Act of 2009. It amended §2000e-5 as follows:
For purposes of this section, an unlawful employment practice
occurs, with respect to discrimination in compensation in
violation of this title, when a discriminatory compensation
decision or other practice is adopted, when an individual
becomes subject to a discriminatory compensation decision or
other practice, or when an individual is affected by application
of a discriminatory compensation decision or other practice,
In her June 15, 2010 charge, Hom el claim ed that she was forced to work two jobs while only being
paid for one. In her January 11, 2011 EEOC charge, she alleged that she was forced to work as m any as four
jobs while only being paid for one.
including each time wages, benefits, or other compensation is
paid, resulting in whole or in part from such a decision or other
42 U.S.C. § 2000e-5(e)(3)(A) (2006).
Thus, Homel must show that she received
paychecks pursuant to CSD’s previously made discriminatory policy within the 300-day
Homel satisfies this requirement because she alleges that she was paid only as
assistant superintendent on and after August 17, 2009–300 days prior to June 15,
2010–even though she was entitled to compensation for two or three other positions.
The Fair Pay Act, as its title connotes, applies only to discrimination in
compensation. Noel v. The Boeing Co., 622 F.3d 266, 273 (3d Cir. 2010). It does not
apply to all adverse employment actions that may affect compensation, such as a failure
to promote. Id. Discrimination in compensation “means paying different wages or
providing different benefits to similarly situated employees. . . .” Id. (quoting Schuler v.
PricewaterhouseCoopers, LLP, 595 F.3d 370, 374 (D.C. Cir. 2010)).
To assert a
discrimination in compensation claim, a plaintiff must plead that there is a nexus between
the adverse employment action and the resultant lower salary. Id. at 272.
It appears that Homel’s claim about being forced to hold several jobs while only
being paid for one is a claim of discrimination in compensation. She alleges that CSD
made her do work for free that it later paid other employees, two of whom are male, to do.
If Homel is correct, she was paid less to do the same work as similarly situated
employees.28 Id. at 274 (“To maintain a pay disparity claim, a plaintiff must demonstrate
that employees were paid differently for performing ‘equal work’–work of substantially equal
skill, effort and responsibility, under similar working conditions.”) (quoting Stanziale v.
Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000) (internal quotations and alterations omitted)).
This evidence can show a nexus between CSD’s actions and her lower salary. Thus, the
Fair Pay Act’s statute of limitations applies to Homel’s claim.
Homel filed a third charge on January 11, 2011. There she alleged that CSD
terminated her employment in August 2010, effective June 30, 2011. Because this
occurred after March 17, 2010–300 days prior to January 11, 2011–it is not barred by the
statute of limitations.
Homel filed her fourth EEOC charge on May 10, 2011. In it she alleged that CSD
failed to promote her to superintendent in January-February 2011. This claim is not barred
because it occurred after July 14, 2010–300 days prior to May 10, 2011.
Homel never alleged before the EEOC that she had been offered the position of
assistant to the superintendent instead of assistant superintendent. Thus, that claim is
barred by Title VII.
c. PHRA claims
Homel makes no additional factual allegations for her PHRA claim. A complaint of
discrimination in violation of the PHRA must be filed with the Pennsylvania Human Rights
Because Hom el has alleged discrim ination in com pensation, we do not apply the “continuing
violations” doctrine. That doctrine allows a plaintiff to base her claim s on actions that occurred outside the
statutory period where those actions are part of a continuous discrim inatory pattern. See Rush v. Scott
Specialty Gases, 113 F.3d 476, 480 (3d Cir.1997) (quoting W est v. Phila. Elec. Co., 45 F.3d at 754). Discrete
em ploym ent actions such as the issuance of discrim inatory paychecks cannot be part of a continuing violation.
See Mikula, 583 F.3d at 185-86.
Commission (PHRC) within 180 days of the alleged wrongful act. Woodson v. Scott Paper
Co., 109 F.3d 913, 925 (3d Cir.1996); 43 Pa. Stat. Ann. §§ 959(a), 962 (West 2011).
When Homel filed her EEOC complaints, she elected to have the agency cross-file them
with the PHRC. Thus, we consider her EEOC and PHRC complaints filed on the same
day. See Ryan v. Gen. Mach. Prods., 277 F. Supp. 2d 585, 591 (E.D. Pa. 2003).
On April 13, 2010, Homel filed her initial EEOC charge. She alleged that CSD
failed to promote her to superintendent on May 30, 2009, undermined her authority over
elementary school principals on August 19, 2009, and removed her from the position of
assistant superintendent on January 11, 2010. The first two claims are barred under the
PHRA because they occurred prior to October 15, 2009, and therefore more than 180 days
before she filed her charge. Homel’s claim that she was removed in January 2010
In her June 15, 2010, EEOC charge, Homel claimed that she was forced to work
multiple jobs while only being paid for one. This claim raises the question of whether the
Fair Pay Act’s changes to Title VII affect our statute of limitations analysis under the PHRA.
The Third Circuit has held that the PHRA “is to be treated as identical to federal
anti-discrimination laws except where there is something specifically different in its
language requiring that it be treated differently.” Fogleman, 283 F.3d at 567 (citing Dici v.
Commonwealth, 91 F.3d 542, 552 (3d Cir. 1996)). Prior to the Ledbetter decision and the
Fair Pay Act, both Title VII and the PHRA counted each paycheck issued pursuant to a
discriminatory decision as a discrete action for statute of limitations purposes. See Mikula,
583 F.3d at 184-86 (holding that Title VII counted each paycheck as a discrete action prior
to Ledbetter); Barra v. Rose Tree Media Sch. Dist., 858 A.2d 206, 213 (Pa. Cmwlth. 2004)
(holding the same as to both Title VII and the PHRA). As a result of the Fair Pay Act, Title
VII now contains language specifying that each paycheck constitutes a discrete
employment action. The PHRA contains no such language. The Third Circuit has not
decided whether this difference warrants interpreting Title VII and the PHRA’s statutes of
We conclude that the PHRA’s statute of limitations provision remains the same as
it was prior to Ledbetter and the Fair Pay Act. According to the Third Circuit, the Fair Pay
Act’s purpose was to “restore the law that was in place prior to the Ledbetter decision.”
Mikula v. Allegheny Cnty., 583 F.3d at 185; see also Schengrund v. Pa. State Univ., 705
F. Supp. 2d 425, 438 (M.D. Pa. 2009). Given that purpose, there is no reason to read one
statute’s amendments into the other. Furthermore, Congress did not simply alter Title VII
after Ledbetter. It repudiated the decision as contrary to established law. Given that
Ledbetter adopted an incorrect reading of Title VII, we will not apply that reading to the
To succeed under the PHRA, Homel must have received discriminatory paychecks
on or after December 17, 2009–180 days prior to June 15, 2010. Because she continued
to receive paychecks until her termination in June 2011, this claim survives the PHRA’s
statute of limitations.
In Schengrund v. Pa. State Univ., 705 F. Supp. 2d 425, 437-38 (M.D. Pa. 2009) and Summy-Long
v. Pa. State Univ., No. 06-1117, 2010 W L 1253472, at *7 (M.D. Pa. Mar. 24, 2010), modified on reh’g,
Summy-Long v. Pa. State Univ., No. 6-1117, 2010 W L 4514312 (M.D. Pa. Nov. 2, 2010), the defendant
argued that the Suprem e Court’s Ledbetter decision changed the interpretation of the PHRA when it ruled on
Title VII because both acts are generally to be interpreted identically. According to the defendant, because
the Fair Pay Act changed the language of Title VII, and because the Fair Pay Act’s new language does not
appear in the PHRA, the two statutes should now be interpreted differently. According to this argum ent,
Ledbetter still applies to the PHRA because it interpreted the language of Title VII when the two statues were
the sam e, even though it no longer applies to Title VII’s post-Fair Pay Act language.
Homel filed a third charge on January 11, 2011. There she alleged that CSD
terminated her employment in August 2010, effective June 30, 2011. Because this
occurred after July 15, 2010–180 days prior to January 11, 2011–it is not barred by the
statute of limitations.
Homel alleged in her May 10, 2011 EEOC charge that CSD failed to hire her as
superintendent in January-February 2011. This claim is not barred because the action
occurred within 180 days prior to June 15, 2011.
Homel never alleged before the EEOC that she had been offered the position of
assistant to the superintendent instead of assistant superintendent. Thus, that claim is
barred by the PHRA for the reason stated in the Title VII analysis.
Adverse Employment Actions
We must now determine which of CSD’s alleged actions against Homel that
occurred within the statute of limitations constitute “adverse employment actions” forming
the basis of Homel’s direct or indirect claims. An “adverse employment action” is a
“significant change in employment status, such as hiring, firing, failing to promote,
reassignment, or a decision causing a significant change in benefits.”
Pennsylvania, 251 F.3d 420, 431 (3d Cir. 2001) (quoting Burlington Indus. Inc. v. Ellerth,
524 U.S. 742, 749 (1998)).
“Minor changes in duties or working conditions, even
unpalatable or unwelcome ones, which cause no materially significant disadvantage, do
not rise to the level of an adverse employment action.” Clegg v. Ark. Dep’t of Corr., 496
F.3d 922, 926 (8th Cir. 2007) (quoting Higgins v. Gonzales, 481 F.3d 578, 584 (8th Cir.
2007) (internal quotations omitted)). Homel carries the burden of demonstrating that
CSD’s alleged actions against her were sufficiently detrimental to form the basis of her sex
discrimination cause of action. See Colon-Fontanez v. Municipality of San Juan, 660 F.3d
17, 42 (1st Cir. 2011).
Of the actions Homel alleges CSD took against her that survive the various statutes
of limitations, all but one are significant enough to meet the definition of an “adverse
employment action.” CSD’s failure to promote Homel to superintendent, its placing her on
administrative leave, and its termination of her employment, clearly meet the Third Circuit’s
definition in Weston of a “significant change in employment status, . . . or a decision
causing a significant change in benefits.” 251 F.3d at 431 (quoting Burlington Indus., 524
U.S. at 749). This includes the district’s failure to promote her to superintendent in favor
of Cressman in 2011, even though Cressman is also female. Although the fact that Homel
was passed over for another woman is strong evidence against an inference of sex
discrimination, this fact alone does not bar Homel’s claim. See O’Connor v. Consol. Coin
Caterers Corp., 517 U.S. 308, 312 (1996) (“The fact that one person in the protected class
has lost out to another person in the protected class is . . . irrelevant, so long as he has lost
out because of [prohibited discrimination].”); Connecticut v. Teal, 457 U.S. 440, 445 (1982)
(holding that “Congress never intended to give an employer license to discriminate against
some employees on the basis of race or sex merely because he favorably treats other
members of the employees' group”). It is for the factfinder to determine whether, despite
CSD’s decision to hire a female superintendent, the district discriminated against Homel
because of her sex.
Additionally, the assignment of additional, burdensome
responsibilities is an adverse employment action, particularly when those responsibilities
do not come with additional pay. See Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th
Cir. 2008); Ledbetter v. Alltel Corporate Servs., Inc., 437 F.3d 717, 724 (8th Cir. 2006).
Homel fails to establish that Turnbaugh’s ordering the district’s elementary school
principals to report directly to him rather than to Homel “adversely affect[ed] [her] status as
an employee.” Robinson v. City of Pittsburgh, 120 F.3d 1286, 1297 (3d Cir. 1997) (quoting
42 U.S.C. § 2000e-2(a)(2)), abrogated on other grounds by Burlington N. & Santa Fe Ry.
Co., 548 U.S. 53 (2006). An employer’s decision to relinquish an employee of supervisory
authority may constitute an adverse employment action. See Simas v. First Citizens' Fed.
Credit Union, 170 F.3d 37, 50 (1st Cir.1999). However, such decisions may simply be the
result of organizational restructuring or an employer’s prerogative to free-up the employee
for other work. See Colon-Fontanez, 660 F.3d at 42. The plaintiff must show that the
decision significantly harmed her working conditions, and was not merely unwanted or
unpleasant. Id. Homel has not done so. She states only that Turnbaugh made the
decision. She points to no evidence of the decision’s meaning or effect. Therefore,
bypassing Homel in the reporting structure cannot form the basis of her sex discrimination
Genuine Issues of Material Fact
We now determine whether Homel has demonstrated the existence of genuine
issues of material fact such that summary judgment is inappropriate for her sex
A claim of intentional employment discrimination, disparate
treatment, may be proven by either “direct” evidence of discriminatory intent or “indirect”
evidence from which one can infer an intent to discriminate. See Doe v. C.A.R.S. Prot.
Plus, Inc., 527 F.3d 358, 364 (3d Cir. 2008) (“C.A.R.S.”); Logue v. Int’l Rehabilitation
Assocs., 837 F.2d 150, 153 (3d Cir. 1988) (citing Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 257 (1981). Homel proceeds under the indirect method, also called the
Relying on the pretext method, Homel must prove sex discrimination using the
McDonnell Douglas burden-shifting test. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973); see also Jones v. Sch. Dist. of Phila., 198 F.3d 403, 409 (3d Cir. 1999)
(applying the McDonnell Douglas test to Title VII and PHRA claims). She bears the initial
burden of showing that: (1) she is a member of a protected class; (2) she was qualified for
the position she held or sought; (3) she suffered an adverse employment action; and (4)
nonmembers of the protected class were treated more favorably. Goosby v. Johnson &
Johnson Med., Inc., 228 F.3d 313, 318-19 (3d Cir. 2000). If she does, the burden shifts
to CSD to show that it had legitimate, nondiscriminatory reasons for taking the actions
against Homel. C.A.R.S., 527 F.3d at 364. The burden then reverts back to Homel to
show that CSD’s articulated reasons are pretext for discrimination. Id. The ultimate
burden of persuading the fact-finder that CSD intentionally discriminated against her
because of her sex always remains with Homel. Burdine, 450 U.S. at 256.
Homel has made out a prima facie case of sex discrimination. She is a woman; she
was qualified for the positions she held and for which she applied;31 she suffered a number
of adverse employment actions as discussed above; and she alleges that male district
administrators received various forms of preferential treatment in hiring, promotion, and
Hom el does not say explicitly which theory she uses. Because she refers to the McDonnell
Douglas fram ework in her brief, we understand her to be proceeding under the indirect m ethod.
The district does not dispute this.
CSD has met its burden to put forth legitimate, nondiscriminatory reasons for the
actions it took with respect to Homel. Primarily, it presents testimony of the school board
members that Homel had become a divisive figure in the CSD administration, as well as
hiring data to show that women hold many prominent positions–including that of
superintendent–in the district.
To attack CSD’s reason as pretextual, Homel must present evidence from which the
jury could either “(1) disbelieve the employer's articulated legitimate reasons; or (2) believe
that an invidious discriminatory reason was more likely than not a motivating or
determinative cause of the employer's action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d
Cir. 1994) (citations omitted). Homel offers both. As to the first form of evidence, she
argues that she was always well-regarded throughout her tenure in the CSD administration
and never received any complaints about her performance. As to the second form, Homel
points to the existence of the termination without cause provision in her contract, which she
alleges was only present in female administrators’ contracts prior to her filing this suit. See
Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736 (7th Cir. 1994) (holding that evidence
of a discriminatory intent includes suspicious circumstances surrounding the actions
against the plaintiffs, behavior toward other employees in the protected group, and
systematic differences in the way the employer treats members of the protected and nonprotected groups). She argues that the decision to offer her the newly created and less
prestigious position of assistant to the superintendent, rather than that of assistant
superintendent, is additional evidence of discrimination.32 She also presents her own
testimony and that of several other CSD administrators that the district administrator
fosters an “old boys club” atmosphere that protects male administrators and devalues the
work of female administrators. Homel’s evidence of a discriminatory culture at CSD
includes several complaints of sexual harassment and other discriminatory behavior filed
by other female administrators.
Homel has presented evidence from which the jury could find that CSD’s stated
reasons for taking actions against her are pretext for discrimination. The jury must decide
whose version of the facts is more credible.33
Although this action is not an “adverse em ploym ent” action because the statutes of lim itations have
run, Hom el m ay present it as circum stantial evidence of the district’s discrim inatory m otive. See Jute v.
Hamilton Sundstrand Corp., 420 F.3d 166, 176 (2d Cir. 2005) (“The statute of lim itations requires that only
one alleged adverse em ploym ent action have occurred within the applicable filing period. But, evidence of
an earlier alleged retaliatory act m ay constitute relevant background evidence in support of that tim ely claim .”
(quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (internal alterations and quotations
om itted))); Roebuck v. Drexel Univ., 852 F.2d 715, 733 (3d Cir. 1988) (holding that a decisionm aker’s
statem ents exhibiting racial bias could add support to the plaintiff’s claim of racial discrim ination, even though
they occurred too far in the past to stand alone as an incident of racial discrim ination).
Our decision would be the sam e even if Hom el used the direct m ethod. Under the direct m ethod,
also referred to as a “m ixed m otives” theory, the plaintiff bears the initial burden of establishing that sex was
a substantial factor in the em ployer’s actions against her. See Fakete v. Aetna, Inc., 308 F.3d 335, 338 (3d
Cir. 2002) (citing Price W aterhouse v. Hopkins, 490 U.S. 228, 265-66 (1989)). If she does, the em ployer then
bears the burden to show that it would have taken the adverse em ploym ent actions regardless of the plaintiff’s
In m aking her indirect case, Hom el does not sim ply attack CSD’s articulated reasons for its actions
as unbelievable. Rather, she puts forth affirm ative evidence that sex discrim ination is the real reason behind
CSD’s adverse em ploym ent actions. W hen a plaintiff does so, the direct and indirect theories overlap. Under
either, the core question for sum m ary judgm ent is whether a reasonable jury could believe the plaintiff’s
affirm ative evidence of sex discrim ination. The standard under the direct theory is lower at this stage,
because the plaintiff need only put forth evidence from which a reasonable jury could conclude that sex
discrim ination was a substantial factor in the em ployer’s decisions. Because a reasonable jury could decide
under the pretext theory that sex discrim ination, rather than CSD’s articulated reasons, was the real reason
for CSD’s actions against Hom el, we conclude that a reasonable jury could also hold under the m ixed m otives
theory that sex discrim ination was a substantial factor.
Title VII and PHRA Retaliation
Lastly, we consider Homel’s claim that CSD retaliated against her because she filed
charges with the EEOC. Title VII prohibits an employer from discriminating against an
employee “because he has opposed any practice made an unlawful employment practice
by [Title VII], or because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing . . . .” 42 U.S.C. § 2000e-3(a) (2006).
The PHRA provides identical substantive protections against retaliation as Title VII. Thus,
we therefore consider Homel’s Title VII and PHRA retaliation claims together. Jones v.
Sch. Dist. of Phila., 198 F.3d 403, 409-10 (3d Cir. 1999).
Statute of Limitations
As with Homel’s sex discrimination claims, we must first determine whether her
retaliation claims satisfy the applicable statute of limitations. Homel must have filed a
charge with the EEOC or the state equivalent within 300 days of the allegedly retaliatory
action. She must have filed her charge within 180 days for the PHRA.34
Homel originally filed with the EEOC on April 13, 2010, and again on June 15, 2010.
On January 11, 2011, she filed a third EEOC charge alleging that CSD terminated her
employment in August 2010 in retaliation for making her first two charges. Because
August 2010 is after March 17, 2010–300 days prior to January 11, 2011–CSD’s decision
to terminate her employment may form the basis of her Title VII retaliation claim. Because
August 2010 is after July 15, 2010–180 days prior to January 11, 2011–that action may
Hom el filed her charges with the EEOC and Pennsylvania’s Hum an Rights Com m ission (PHRC)
also form the basis of her PHRA retaliation claim.
On May 10, 2011, Homel filed her fourth EEOC charge, alleging that CSD failed to
hire her as superintendent in January-February 2011 because she had filed the January
11, 2011, charge. Because January 2011 is after July 14, 2010–300 days prior to May 10,
2011–CSD’s failure to hire her as superintendent may form the basis of her Title VII claim.
Because January 2011 is after November 11, 2010–180 days prior to May 10, 2011–that
action may also form the basis of her PHRA claim.
Genuine Issues of Material Fact
As with her Title VII discrimination claim, Homel can seek to prove unlawful
retaliation using either a direct or indirect method of proof. See Walden v. Georgia-Pacific
Corp., 126 F.3d 506, 512 (3d Cir.1997). Again, Homel proceeds with the indirect method.35
To make out a prima facie case of Title VII retaliation under the indirect method
using the McDonnell Douglas framework, Homel must show that: (1) she engaged in
protected activity; (2) CSD took an adverse employment action against her; and (3) there
was a causal connection between Homel’s activity and CSD’s action. See Moore v. City
of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006) (citing Nelson v. Upsala Coll., 51 F.3d 383,
386 (3d Cir. 1995)). If Homel does so, the burden shifts to CSD to advance a legitimate,
non-retaliatory reason for its actions. Id. at 342. If CSD succeeds, the burden is Homel’s
to persuade the jury that CSD’s articulated reasons are pretext for its unlawful retaliation.
As with her sex discrim ination claim , see supra, note 30, Hom el does not state explicitly which
theory she uses. Because she references the McDonnell Douglas fram ework, we understand her to be using
the indirect m ethod.
Homel makes out a prima facie case of retaliation. Homel filed EEOC charges on
June 15, 2010 and January 11, 2011. Two months after her June 15, 2010 charge, the
school board voted to terminate her employment. Within a month of Homel’s January 11,
2011 charge, CSD hired Cressman, instead of her, as superintendent. The close proximity
of these actions and the filing of the EEOC charges provides evidence of a causal
connection. See Jensen v. Potter, 435 F.3d 444, 450 (3d Cir. 2006) (holding that the
timing of alleged retaliatory acts can be evidence of a retaliatory motive), abrogated on
other grounds by Burlington N. & Santa Fe. Ry. Co. v. White, 548 U.S. 53 (2006).
CSD has met its burden to put forth legitimate, non-retaliatory reasons for its
actions. It argues, as it does regarding Homel’s sex discrimination claims, that it took
actions against Homel because the school board saw her as a divisive figure in the
Homel attacks CSD’s articulated reasons as pretextual in the same way she does
for her sex discrimination claims–by arguing both that CSD’s reasons are not believable
and that retaliation was the real reason for CSD’s actions. See Fuentes v. Perskie, 32 F.3d
759, 764 (3d Cir. 1994). She claims that CSD’s reasons are not believable because she
was well-regarded during her tenure and never received any complaints about her
performance. To prove CSD’s retaliatory motive, Homel presents evidence that the CSD
had a pervasive culture of retaliating against women who engaged in similarly protected
activity and generally did not take her and other female administrators’ complaints
seriously. She complains that members of the school board laughed at her complaint and
that CSD refused to investigate her claims.
Homel has established the existence of genuine issues of material fact regarding
why CSD took its actions against Homel.
It is up to the jury to determine whose
explanation is more persuasive.36
For the reasons stated, we shall grant CSD’s motion for summary judgment on
Homel’s First Amendment retaliation and age discrimination claims. We shall deny the
motion on her Title VII/PHRA retaliation claims. We shall grant in part and deny in part
CSD’s motion with respect to the sex discrimination claim.
We shall grant the motion as to Homel’s § 1983, Title VII, and PHRA sex
discrimination causes of action regarding her claims that CSD failed to promote her to
assistant superintendent in 2007 and required the elementary school principals to report
directly to the superintendent in 2009; and her Title VII and PHRA sex discrimination
causes of action regarding her claim that CSD failed to promote her to superintendent in
2009. We shall deny the motion as to her remaining claims. Thus, trial will proceed on her
§1983 cause of action regarding her claim that CSD failed to promote her to
superintendent in 2009; and her § 1983, Title VII, and PHRA causes of action regarding
her claims that CSD forced her to work multiple jobs while only paying her for one,
removed her as assistant superintendent in January 2010, terminated her employment in
August 2010, and failed to hire her as superintendent in 2011.
As with Hom el’s sex discrim ination claim , our decision regarding her retaliation claim would be the
sam e if she proceeded under the direct m ethod. See supra, note 33. Her evidence that CSD’s stated
reasons are pretext for retaliation also establishes triable issues regarding whether a retaliatory m otive was
a substantial factor in CSD’s actions against her.
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