DANIELS v. SCHOOL DISTRICT OF PHILADELPHIA et al

Filing 50

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE HARVEY BARTLE, III ON 11/7/13. 11/8/13 ENTERED AND COPIES E-MAILED.(mbh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DOROTHY E. DANIELS
v.

:
:
:
:
:
:

THE SCHOOL DISTRICT OF
PHILADELPHIA, et al.

CIVIL ACTION

NO. 12-2806

MEMORANDUM
Bartle, J.

November 7, 2013
Plaintiff Dorothy E. Daniels ("Daniels") brings this

employment discrimination action against the School District of
Philadelphia (the "School District") and individual defendants
Leslie Mason ("Mason"), Kenneth Christy ("Christy"), Rachel
Marianno ("Marianno"), and Katherine Pendino ("Pendino").
Daniels alleges violations of her civil rights under:

(1) Title

VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.; (2) 42
U.S.C. §§ 1981 and 1983; (3) the Age Discrimination in Employment
Act ("ADEA"), 29 U.S.C. § 621 et seq.; and (4) the Pennsylvania
Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. Ann. § 951 et
seq.

Daniels, a school teacher, asserts not only race and age

discrimination by the defendants but also retaliation when she
complained about it.

She further avers that this conduct

violated her constitutional rights to free speech and equal
protection.1

1.

We granted the motion of the individual defendants Mason,
(continued...)

Before the court is the defendants' motion for summary
judgment under Rule 56 of the Federal Rules of Civil Procedure.
I.
Summary judgment is appropriate "if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."

Fed. R. Civ.

P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986).

"A party asserting that a fact cannot be or is genuinely

disputed must support the assertion by ... citing to particular
parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations ..., admissions, interrogatory
answers, or other materials; or ... showing that the materials
cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible
evidence to support the fact."

Fed. R. Civ. P. 56(c).

A dispute is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).
Summary judgment is granted where there is insufficient record
evidence for a reasonable jury to find for the plaintiffs.
at 252.

Id.

"The mere existence of a scintilla of evidence in

support of the plaintiff's position will be insufficient; there

1.(...continued)
Marianno, Christy, and Pendino to dismiss Daniels' claims of age
discrimination and age-based retaliation under the ADEA in an
August 28, 2012 Order (Doc. #10).
-2-

must be evidence on which the jury could reasonably find for the
plaintiff."

Anderson, 477 U.S. at 252.

We view the facts and

draw all inferences in favor of the non-moving party.

Boyle v.

Cnty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998).

When

ruling on a motion for summary judgment, we may only rely on
admissible evidence.

See, e.g., Blackburn v. United Parcel

Serv., Inc., 179 F.3d 81, 95 (3d Cir. 1999).
II.
The following facts are undisputed or viewed in the
light most favorable to Daniels as the nonmoving party.

Daniels

is an African-American woman who was born on January 2, 1950.
She has a bachelor's degree in business administration, a
master's degree in elementary education, and the necessary
certification to teach Middle Years English, Reading, Literature,
Language Arts, Writing, and Speaking.2

The School District hired

Daniels on a permanent, full-time basis in August 2008 to teach
Middle Years English.

She taught at the Bregy Middle School

("Bregy") during the 2008-2009 school year.

While she had some

disputes with her superiors at Bregy, she improved her students'
standardized testing scores.

Daniels was complimented for this

achievement by her peers and supervisors and received
satisfactory ratings in her performance reviews that year.

She

was subjected to a forced transfer from Bregy at the end of the
school year in June 2009.

2. "Middle Years" corresponds with the seventh and eighth grade
levels.
-3-

A "forced transfer" means a teacher's transfer away
from a school because his or her position has been eliminated as
a result of a budget shortfall or another allocation-related
reason.3

For each school year, School District principals set

their individual school's budget, including the number of
teaching positions at each grade level and the subject-matter
certifications required for those positions.

The School

District's central office reviews the budgets, approves them, and
then uses a series of criteria to assign or transfer teachers to
match the principals' needs.

When a principal eliminates a

position or changes the certification requirements as part of the
yearly budget process, he or she does not have the authority to
determine which faculty members will be subject to a forced
transfer.

Once a teacher is "forced transferred," he or she is

given the opportunity in a "site selection process" to choose a
new school based on the availability of a position that meets the
teacher's qualifications, seniority, and other factors.
Following her forced transfer from Bregy, Daniels
selected a Middle Years English and Reading position at the
Thomas Mifflin School ("Mifflin") for the 2009-2010 school year.
Leslie Mason, a Caucasian female, was in her first year as
Mifflin's principal.

Complaints by Daniels of illegal conduct

begin with her time at Mifflin.

3. A forced transfer is distinct from an "administrative
transfer with prejudice," which is disciplinary in nature.
-4-

On Parent's Night, September 9, 2009, Daniels states
that Mason explained to the group present that some of the
Mifflin teachers were old enough to be "grandparents."

Daniels,

the oldest teacher in the room, urges that Mason's words
constituted ageism and were directed against her.

She made her

feelings known to Mason at some point, but Mason took no action
in response.

Months later, in March 2010, a colleague informed

Daniels that "[t]hey call you Old School."

Daniels points to

this as further evidence of age-based discrimination.
Daniels also highlights two race-related circumstances
during her time at Mifflin.

First, at a teachers' meeting during

the 2009-2010 school year, one teacher stated that the racial
composition of the Mifflin staff did not reflect that of the
student body, which is 90% African-American.

The teacher

suggested that Mifflin hire more African-American staff to remedy
this problem.

There is evidence that Mason replied that she was

not required to hire minority teachers, although in her
deposition Mason vigorously contests the circumstances of the
conversation.4

It is not clear whether Daniels was present.

Second, Daniels without elaboration refers to a continuing
Department of Justice investigation at Mifflin for failure to

4. Neither party has provided briefing on this point, but it
appears as though individual principals in the School District
have the ability to make certain hiring decisions on their own.
This is distinct from staffing decisions that are made in order
to conform the composition of a school's faculty to the
principal's proposed budget for the coming year, which happens at
the School District's central office without the principal's
input.
-5-

follow undefined federal mandates regarding racial tension.

With

respect to this investigation, the U.S. Department of Education
appears to be facilitating an "Early Complaint Resolution
Agreement" between unnamed parties at Mifflin.

There is no

evidence that that agreement is related in any way to Daniels and
her situation.
Daniels' tenure at Mifflin was marked by trouble in the
classroom.

Since Daniels was new there, School District policy

required Mason to conduct a number of formal observations of
Daniels' teaching throughout the year.

In November 2009 and

January 2010 observations, Mason found Daniels' performance to be
below standard.5

At the year-end evaluation, however, Mason

rated Daniels as satisfactory overall.
In addition to formal observations, Christine Lokey
visited Daniels' classroom at Mason's direction on several
occasions throughout the year in order to provide Daniels
teaching support.

Lokey was a "literacy and math lead" at

Mifflin in 2009-2010.

In this position, she was expected to help

Mifflin teachers with curriculum, teaching practices, classroom
management, lesson planning, and professional development.

5. The bases for these evaluations and the overall quality of
Daniels' pedagogy are contested here and throughout the record.
In short, Daniels considers herself to be a good teacher, but her
superiors at each of the three schools at which she taught from
2009 to 2012 do not. With regard to 2009-2010 specifically,
Daniels and Mason disagree over whether, for example, Daniels
used the appropriate curriculum, whether Daniels' classroom met
standards for appearance, and whether Daniels properly
incorporated technology into her lesson plans.
-6-

Independent of Mason's direction, Lokey, who is an AfricanAmerican female in her fifties, had also formed a judgment that
Daniels was in need of assistance due to the unruly, disobedient
behavior in Daniels' class that Lokey observed.

For her part,

Daniels did not request this support and states that Lokey's
presence interfered with her teaching.

It is contested whether

Lokey's visits constituted "excessive monitoring" and whether
Lokey was sent "to any Caucasian teacher's classroom to harass
them."6
At the end of the 2009-2010 school year, Daniels was
forced transferred away from Mifflin as a result of Mason's
budget allocation for the coming fall.

In preparing that budget,

Mason made the determination that Mifflin would go "dual cert" in
the Middle Years classes.

Rather than using three teachers to

teach the four Middle Years subjects, one of whom held a dual
certification, Mifflin would instead rely on two dual-certified
teachers to cover the same instructional ground.

It is disputed

whether the School District or Mason notified Daniels of the

6. Daniels further states in her affidavit that Lokey's
observations constituted a violation of the collective bargaining
agreement between the School District and the Philadelphia
Federation of Teachers. There is evidence that at least one
other teacher — the same one who took issue with the racial
composition of the Mifflin staff — viewed Lokey's visits as
violations of the collective bargaining agreement. However, the
defendants explain, and Daniels does not contest, that Lokey's
visits were informal and that no permanent evaluation or
discipline could follow from them. They were not formal
observations that under the collective bargaining agreement could
only be performed by certain authorized supervisors.
-7-

impending dual certification requirement, but it is conceded that
she did not obtain a second certification.
Her position at Mifflin was filled by Amanda Meiers.
Meiers is a Caucasian woman, born in 1984.

She was the Middle

Years Science and Social Studies teacher at Mifflin in 2009-2010.
While Mason claims that Meiers became triple-certified by
obtaining a Middle Years English certification in the months
before the coming 2010-2011 school year, Meiers' personnel file
does not reflect this fact.

Under the collective bargaining

agreement ("CBA") between the School District and the teachers'
union, the Philadelphia Federation of Teachers ("PFT"), teachers
may be asked to teach one subject outside of their area of
certification.

No party has pointed us to a reason why teachers

must be dual certified in order to avoid a forced transfer when
they can stray from their subject-matter certifications in this
manner.
The circumstances of Daniels' replacement at Mifflin
are thus unclear.

Daniels sent her first informal complaint to

the School District concerning her experience at Mifflin on
September 6, 2010.

In addition to a series of disagreements that

Daniels had with Mason concerning, for instance, Lokey's
classroom visits and the handling of student discipline, this
complaint took issue with Mason's "grandparents" comment and the
revelation for a colleague that "[t]hey call you old school."
Daniels explained that these circumstances constituted ageism and
harassment.

Daniels followed up by filing her first formal
-8-

Pennsylvania Human Relations Commission ("PHRC") complaint on
October 28, 2010, in which she formally claimed that the
treatment she received at Mifflin was age and race
discrimination.
Daniels taught at the Edwin H. Vare Middle School
("Vare") during the 2010-2011 school year.

It is disputed

whether Daniels was given any notice of her forced transfer from
Mifflin before September 2010, but it is not contested that
Daniels did not fully participate in the 2010 site selection
process.7

The extent of her participation is unclear.

Either

the School District unilaterally assigned Daniels to Vare or she
selected that school from a severely restricted set of options.
Either way, Daniels "was the only teacher in her age group
teaching at Vare."

Rachel Marianno, an African-American female

with twenty years' experience in the School District of
Philadelphia, was Vare's principal that year.

Marianno's

assistant principal for the sixth grade was Kenneth Christy, a
Caucasian male.
Daniels did not have a positive experience at Vare.

At

the outset, she did not report for the first three days of the
school year because she claims that she was not aware of her
forced transfer.

Christy issued Daniels a disciplinary memo on

7. It is not clear whether it was the School District's or
Mason's responsibility to notify a teacher of a forced transfer.
Mason claims to have had two face-to-face conversations with
Daniels about the pending dual certification requirement and the
possibility of a forced transfer during the spring and summer of
2010. Daniels denies that these conversations took place.
-9-

December 22, 2010 for this and other absences.

Marianno has

conceded that Daniels' absences at the start of the school year
should not have been counted if she did not know of her
assignment to Vare.

In addition, in the first week or two of the

school year, Daniels was not assigned a classroom.

She did not

have keys to her classroom for weeks despite several requests.
She was required to "float" between classrooms, while the
teachers in adjacent classrooms did not do so.

Furthermore,

while at Vare, Daniels was asked to teach Social Studies, for
which she was not certified.

It is contested whether Daniels in

fact taught Social Studies at Vare as requested.
Daniels' students at Vare were, as a general rule,
severely undisciplined.

She maintains that students with

disciplinary problems were funneled into her class.

Daniels

attempted to bring several instances of student misconduct to her
supervisors' attention in October 2010, November 2010, February
2011, and March 2011.

They went unaddressed.

In one instance,

she filed a police report when one student threatened physical
violence against her.

Marianno and Christy took no action in

response.
Daniels sent an informal complaint via email to
Marianno, the principal, on February 2, 2011 in which she stated
that the conduct of Marianno and Christy constituted harassment.
In the email, Daniels noted her disagreement with Marianno on
issues like inputting grades, access to classrooms, and being
asked to do more than other teachers.
-10-

She accused Marianno of

changing her teaching assignment in order to justify a formal
observation.

However, Daniels did not mention any race- or age-

related problems.

Two days later, Marianno first formally

observed Daniels' performance at Vare as unsatisfactory.

Two

more unsatisfactory observations followed, one of which was
conducted by Christy, the assistant principal.

All three

observations reflected poor classroom management, tardiness, and
a lack of preparation on Daniels' part.

In her deposition,

Marianno stated that "[Daniels'] instruction was extremely
lacking, if not the worst I've seen in my 20 years with the
district."
Shortly after the first formal observation, Daniels
filed a second PHRC complaint on February 22, 2011, which alleged
that the conduct of Marianno and Christy at Vare constituted
retaliation that was related to the race and age discrimination
at Mifflin of which Daniels had complained in her earlier October
2010 PHRC complaint.

Daniels then went on sick leave starting

March 12, 2011 due to anxiety and depression.
April 18.

She returned on

During her absence, Marianno shouted at Daniels over

the telephone concerning her students' grades.

Ultimately,

Daniels was rated as unsatisfactory for the 2010-2011 school year
and was suspended by the School District for three days without
pay.

Daniels was again forced transferred when Vare became a

charter school at the end of the 2010-2011 school year and all
School District faculty and personnel were reassigned.

-11-

Daniels subsequently participated in the 2011 site
selection process and chose to teach at the Penrose School
("Penrose") during the 2011-2012 school year as the Middle Years
Literacy teacher.

Katherine Pendino was the Penrose principal, a

position she had held since 1998.8

Beginning in mid-September

and continuing through the fall of 2011, Pendino found Daniels'
teaching to be below standard.

The two women were at loggerheads

throughout Daniels' abbreviated tenure at Penrose.
For example, on September 14, 2011, Pendino observed
that Daniels' lesson plan was not effective, that she did not
communicate expectations to students, and that her lessons were
ineffectively delivered.

As at Vare, Daniels referred Penrose

students to Pendino for disciplinary problems, and Pendino in
turn held Daniels responsible for the students' misbehavior.
Daniels purportedly engaged in two "unsatisfactory incidents"
when she sent a student to the faculty lounge and when she failed
to prepare literacy plans in accordance with school policy.
Following these incidents, Pendino issued Daniels a disciplinary
memo and had a conference with Daniels and her union
representative.

Indeed, Pendino issued disciplinary memos to

Daniels on a near-weekly basis from mid-September to mid-December
2011, a frequency which Daniels described as harassment that
"border[ed on] terrorism—water boarding."

8.

The parties do not make reference to Pendino's race or age.
-12-

Daniels vigorously disputes the assessments made in
these memos.

According to Daniels, Pendino held her accountable

for tardiness after assuring her that she need not note her
arrival time on a sign-in sheet.

Daniels further states that she

had timely submitted lesson plans and that Pendino made a number
of comments disparaging Daniels' teaching in front of students.
Pendino remarked that Daniels was "no good" and "want[ed] to get
rid of her."

Daniels was moved from Middle Years English to

sixth grade English and Mathematics in October 2011, and her
replacement was a "younger, Caucasian teacher."

In a memo,

Pendino wrote that a "Ms. Foy" would be teaching Middle Years
English from then on as part of a larger rearrangement of
teaching assignments, but there is no further evidence on Foy or
this reassignment.
Daniels complained to school officials about Pendino.
She wrote a December 7, 2011 letter to a School District
administrator in which she detailed several instances of
Pendino's conduct with which she took issue.

She supplemented

her February 2010 PHRC complaint against Marianno and Christy
with a December 13, 2011 letter listing grievances against
Pendino, among them complaints of ageism and racism.

Finally,

she filed a confidential Educator Misconduct Complaint with the
Pennsylvania Department of Education on December 17, 2011.

-13-

In

that complaint, she asserted that Pendino had recruited students
to write surreptitiously what Daniels said to them.9
Importantly, however, at no point did Daniels complain
directly to Pendino.

Indeed, when presented the opportunity to

defend herself from further discipline with the assistance of a
union representative, Daniels failed to appear at scheduled
conferences with Pendino on at least three occasions.

In her

brief, Daniels wonders what could explain "Pendino's sudden
animosity towards [her]" so early in the school year, ultimately
concluding that Pendino "ha[d] been enlisted by [School District]
administrators to subject [Daniels] to retaliatory harassment and
hostile work environment."

Nonetheless, other than this

conjecture, there are no facts presented to suggest Pendino had
any knowledge of Daniels' complaints against any defendant.

On

or about December 15, 2011, citing repeated performance
deficiencies, Pendino made a formal recommendation that Daniels
be terminated.
That same month, Daniels requested "Family Medical
Leave Absence" ("FMLA") until March 21, 2012 to address the
anxiety and depression that she continued to suffer as a result
of her work difficulties.

The School District, in denying the

FMLA request, explained that Daniels had not worked the requisite

9. Pendino states in response that she asked the students to
write what any adult said to them after she received reports from
students and parents that Daniels had called a child "stupid" and
told others to "shut the hell up." Daniels strongly denies these
allegations.
-14-

number of hours in order to be eligible.
contest this finding.

Daniels does not

A School District-employed physician, who

was not a psychiatrist or psychologist, examined Daniels in
January 2012 and found her fit to return to work.

Thereafter,

Daniels requested a third-party physician's evaluation through
her union, the PFT.

This physician's determination would be

binding under the CBA.
Carol Kenney, a School District administrator, then
asked the physician, Dr. Burton Weiss, to examine Daniels.
Daniels considers the opinion of Dr. Weiss to have been
improperly "influenced by Carol Kenney's desire to have [Daniels]
returned to work in February 2012 regardless of Plaintiff's
medical and mental conditions."

Daniels describes Dr. Weiss as

"[the School District]'s handpicked third-party physician" and a
"so-called[] independent" doctor.
There is evidence that Kenney had some knowledge of
Daniels' ongoing workplace complaints when she wrote her letter
to Dr. Weiss.

In her letter, Kenney simply explains exactly what

Daniels contends in this lawsuit:

she, Daniels, was out on sick

leave for treatment by a physician and therapist because her
principals failed to support her and harassed her.

The letter

reads in pertinent part:
Please allow me to give you some background
information. Ms. Daniels was previously out
on sick leave during the last school year
from March 2011 until September 2011. She
stated that she was not supported by the
principal at her last school and therefore
transferred to a new school in September.
-15-

During the months of her absence, she was
treated by both a physician and a therapist.
She went out again on sick leave in December
2011 with the same complaints of being
harassed by her new principal. She was seen
by our school district physician and [ordered
to return] to work on Feb 1, 2012. She did
not report to duty.
Please opine on whether Ms. Daniels should
have returned to work on February 1st. Our
requests for third party evaluations are
specific. Ms. Daniels was not denied
additional treatment by her doctors, but was
asked to return to work while treatment is
ongoing.
There is nothing in this language beyond what Daniels herself
contends was the cause of her sick leave.
Furthermore, while the School District selects the
doctor from the pool of third-party physicians to evaluate an
employee, the School District and the PFT paid the selected
physician jointly and the PFT had the ability to have him or her
removed from the pool should it have a reason to do so.

The PFT

took no such action in this case, and there is nothing in the
record from which one could infer that Dr. Weiss had any
knowledge of Daniels generally or her complaints specifically
before Kenney reached out to him.
Dr. Weiss was asked to opine whether Daniels should
have returned to work when ordered.

He ultimately concluded in a

February 15, 2012 opinion that Daniels' symptoms did not preclude
her from working:
Ms. Daniels's symptoms of anxiety and
depression arise from her dispute with the
Principal and not from a definable
psychiatric illness. Her problem is legal
-16-

and administrative, not psychiatric....
Psychiatric treatment and psychotropic
medication is not able to change this
situation and will not solve the source of
Ms. Daniels's distress.... For this reason, I
do not consider Ms. Daniels's absence from
school to be due to a psychiatric disability.
In my opinion, Ms. Daniels should have
returned to work on February 1, 2012.
Because she was found to be able to return to work, Daniels was
denied wage continuation benefits.

She was given a mandatory

return date of February 27, 2012.

Her treating physician, Dr.

Fitzpatrick, recommended a return date of March 27, 2012.
Daniels did not come back to work in February, and Kenney
recommended that Daniels' employment be terminated.

The School

District initiated termination proceedings on May 2, 2012, and
Daniels filed this lawsuit twenty days later on May 22.10
III.
Daniels' complaint contains nine counts.

We enumerate

them here in an attempt to bring some clarity to what is being
pleaded and what is being argued by the parties in favor of and
against the defendants' motion for summary judgment.

Count one

alleges race discrimination under Title VII against the School
District.

Count two pleads race discrimination under 42 U.S.C.

§ 1981 against all defendants, asserted through 42 U.S.C. § 1983.
In count three Daniels avers retaliation under Title VII against

10. Neither party has directed us to anything in the record that
Daniels was terminated. However, Daniels pleads in her complaint
that she was terminated "[o]n or about May 2, 2012." The
defendants have not challenged the fact of Daniels' termination
in the briefing before us.
-17-

the School District, and, in count four, retaliation under § 1981
against all defendants.

Count five asserts race and age

discrimination under the PHRA against all defendants, while count
six alleges retaliation against all defendants under the PHRA.
Daniels sets forth in count seven age discrimination under the
ADEA against all defendants.

Count eight alleges retaliation

under the ADEA against all defendants.

Following our August 28,

2012 order, counts seven and eight are presently before us only
as to the School District.

Finally, count nine pleads violations

of Daniels' rights to free speech and equal protection, brought
under § 1983 against all defendants.
IV.
We turn first to the defendants' argument that they are
entitled to summary judgment because there is no genuine dispute
of material fact with respect to Daniels' claims under 42 U.S.C.
§§ 1981 and 1983.

We begin with § 1983, which creates a private

cause of action to remedy deprivations of constitutional rights:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State or Territory or the District of
Columbia, subjects, or causes to be
subjected, any citizen of the United States
... to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in
equity, or other proper proceeding for
redress.
42 U.S.C. § 1983.

Public school districts are among the state

actors that can be liable under § 1983.

Mohammed v. School Dist.

of Phila., 355 F. Supp. 2d 779, 782 (E.D. Pa. 2005).
-18-

However, it

remains a necessary prerequisite to municipal liability under
§ 1983 that the offending personnel were operating under an
official policy or practice.

Monell v. Dep't of Social Servs.,

436 U.S. 658, 690 (1978); see also Hill v. Borough of Kutztown,
455 F.3d 225, 245 (3d Cir. 2006).

The policy or practice must be

the "moving force" behind the constitutional violation.
v. Stiles, 456 F.3d 298, 314 (3d Cir. 2006).

Sanford

A failure to train,

supervise, or discipline employees can constitute an official
policy or practice when it rises to the level of "deliberate
indifference" to known or obvious consequences.
Brown, 520 U.S. 397, 410 (1997).

Bryan Cnty. v.

The plaintiff has a heavy

burden, and a showing of "simple or even heightened negligence
will not suffice."

Bryan Cnty., 520 U.S. at 407.

There is simply no evidence in the record that an
official School District policy or practice was the "moving
force" behind any of the events complained of in this case.
Similarly, the only evidence of a failure to train, supervise, or
discipline is a statement from Kenney, the administrator at the
School District's central office who referred Daniels' case to
the third-party physician and ultimately recommended Daniels'
termination, that she is unaware of any School District
discrimination policies.

Daniels makes no other reference to the

record in support of her § 1983 or § 1981 claims.

This "mere ...

scintilla of evidence" is not enough to raise a genuine dispute
of material fact, Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986), and is certainly not sufficient to meet the heavy
-19-

"deliberate indifference" standard.
407.

Bryan Cnty., 520 U.S. at

Summary judgment will be granted in favor of the School

District on count nine of Daniels' complaint, which is her claim
brought under § 1983, the First Amendment, and the Fourteenth
Amendment.
As to the individual defendants, we are provided very
little briefing from the defendants on § 1983 and none at all
from Daniels.

The defendants note that Daniels has not put

forward evidence to support the elements of a First Amendment or
Fourteenth Amendment violation on the part of any defendant.
Daniels is silent on these arguments, and she does not defend her
First and Fourteenth Amendment claims from summary judgment.

We

will therefore grant summary judgment in favor of all individual
defendants on count nine.
We analyze Daniels' § 1981-based claims of race
discrimination and race-related retaliation against the School
District under the same rubric as that used for § 1983.

Title 42

U.S.C. § 1981(a) gives "[a]ll persons within the jurisdiction of
the United States ... the full and equal benefit of all laws" as
that "enjoyed by white citizens," but it has no enforcement
provision of its own.

McGovern v. City of Philadelphia, 554 F.3d

114, 121 (3d Cir. 2009).

Rather, "the express cause of action

for damages created by § 1983 constitutes the exclusive remedy
for violation of the rights guaranteed in § 1981 by state
governmental units," and a failure to bring forward evidence of a
policy, practice, or failure to train precludes a § 1981 claim
-20-

just as it does a § 1983 claim.

McGovern, 554 F.3d at 121.

Daniels has presented no evidence of a policy or practice on the
part of the School District endorsing race discrimination or a
failure on the part of the School District to train its employees
not to discriminate on the basis of race.

Her § 1981 claims

therefore fail against the School District.

Accordingly, summary

judgment will be granted in favor of the School District on
counts two and four of Daniels' complaint.
We will discuss plaintiff's § 1981 claims against the
individual defendants in conjunction with our discussion of her
race-related claims under Title VII and the PHRA since the legal
analysis is the same.
V.
To begin our analysis of Daniels' statutory claims of
race discrimination and retaliation under Title VII against the
School District, race discrimination and retaliation against the
individual defendants under § 1981, race and age discrimination
and retaliation under the PHRA against all defendants, and age
discrimination and retaliation under the ADEA against the School
District, we set forth the familiar burden-shifting framework
provided in McDonnell Douglas Corp. v. Green.
(1973).

411 U.S. 792, 802

McDonnell Douglas supplies the standard for claims under

§ 1981, Title VII, the PHRA, and the ADEA.

Pamintuan v.

Nanticoke Mem'l Hosp., 192 F.3d 378, 386 (3d Cir. 1999); Connors
v. Chrysler Fin. Corp., 160 F.3d 971, 973 (3d Cir. 1998); Jones
v. School Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1997).
-21-

The

plaintiff bears the initial burden of moving forward by making
out a prima facie case, after which the defendant must come
forward with evidence that there is a legitimate, nondiscriminatory reason for its actions.
U.S. at 802.

McDonnell Douglas, 411

If the defendant succeeds in doing so, in order to

survive summary judgment, "the plaintiff must point to some
evidence, direct or circumstantial, from which a factfinder could
reasonably 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).
VI.
In light of this burden-shifting framework, we address
Daniels' race and age discrimination claims.

We consider these

claims together because the standards are nearly the same and the
factual circumstances relevant to these claims are limited and
intertwined.

To make out a prima facie case of race

discrimination, Daniels must come forward with evidence to
establish the following four elements:
(1) [s]he is a member of a protected class;
(2) [s]he was qualified for the position
[s]he sought to attain or retain;
(3) [s]he suffered an adverse employment
action; and
(4) the action occurred under circumstances
that could give rise to an inference of
intentional discrimination.

-22-

Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir. 2008).

A prima

facie case of age discrimination requires the same showing save
that the fourth element instead asks more specifically whether
the plaintiff "was ultimately replaced, or the position was
filled by, a younger person."

Connors, 160 F.3d at 974.

What constitutes an "adverse employment action" in the
context of a discrimination case is not to be determined on a
"one-size-fits-all basis."

Jones, 198 F.3d at 411.

Rather, "the

elements of a prima facie case depend on the facts of the
particular case."

Id.

A transfer can be an adverse employment

action sufficient to satisfy the third element of a prima facie
discrimination case when it is shown to be detrimental or
undesirable in some objective way.

See id.

Ultimately, the

circumstances must show that the action altered the "terms and
conditions of employment."

See Burlington N. & Santa Fe Ry. Co.

v. White, 548 U.S. 53, 64 (2006).

As for the fourth element, a

plaintiff may come forward with evidence of "circumstances that
could give rise to an inference of intentional discrimination" by
showing that, for example, similarly situated individuals outside
of the protected class were treated differently.

Anderson v.

Wachovia Mortg. Corp., 621 F.3d 261, 273 (3d Cir. 2010).
In the present matter, we initially note that the first
two elements in Daniels' prima facie case are not disputed.

She

is a member of a protected class as an African-American female
and as a person over forty years of age, and she was qualified as
a teacher according to School District standards.
-23-

As to the

third element, the defendants do not challenge that Daniels' 2010
forced transfer from Mifflin constitutes an adverse employment
action.

Daniels also maintains that the failure of the School

District and Mason to notify her of her 2010 forced transfer
until September 2010 such that she was denied full participation
in the 2010 site selection process, as well as her discipline in
December 2010, constitute adverse employment actions.
We note that there are genuine disputes of material
fact as to whether it was Mason's responsibility to notify
Daniels of the forced transfer and whether the responsible party
did, in fact, fulfill the obligation to tell Daniels that she
would need to choose a new school.

Summary judgment will

therefore be denied to the School District under counts one,
five, and seven, Daniels' claims of race and age discrimination
under Title VII, the PHRA, and the ADEA, and to Mason under
counts two and five, which are Daniels' race discrimination claim
under § 1981 and her race and age discrimination claim under the
PHRA, to the extent those claims relate to Daniels' inability to
participate fully in site selection as a result of the
defendants' failure to notify her of her forced transfer.
Even so, as to the forced transfer itself, Daniels'
race and age discrimination claims can only move forward against
the School District.

It is uncontested in the record that Mason

had neither the power nor the opportunity to determine which
faculty members would be forced transferred from Mifflin in the
2010-2011 school year as a result of her budget allocation.
-24-

There is no evidence from which a factfinder could reasonably
infer that it was Mason's prerogative to make the actual staffing
determination of which Daniels complains in this suit, and
summary judgment will therefore be granted to Mason on counts two
and five for the 2010 forced transfer itself.
We now determine whether there is evidence that the
2010 forced transfer occurred under circumstances that could give
rise to an inference of intentional race or age discrimination.
Daniels has come forward with such evidence.

She was replaced at

Mifflin by Meiers, who is both Caucasian and many years Daniels'
junior.

Daniels has therefore shown that a similarly situated

peer outside her protected class replaced her.

This gives rise

to an inference of intentional discrimination.

Anderson, 621

F.3d at 273; Connors, 160 F.3d at 974.

Accordingly, Daniels has

made out a prima facie case of race and age discrimination
against the School District stemming from her forced transfer
from Mifflin in 2010.
We now move to the next step in the McDonnell Douglas
framework and assess whether the School District has put forth
legitimate, non-discriminatory reasons for the forced transfer.
We find that it has.

Mason has explained that going "dual cert"

in the Middle Years classes was fiscally responsible and that
changing the number of Middle Years classrooms from three to two
would reduce student movement and thus remove opportunities for
misbehavior.

After the budget was approved by the School

District's central office, Daniels was transferred away from
-25-

Mifflin to meet that budget according to neutral criteria such as
certification and seniority.

These are legitimate, non-

discriminatory reasons for the budget change and Daniels'
subsequent forced transfer away from Mifflin.
The burden therefore shifts back to Daniels to show
"some evidence" with respect to the forced transfer from Mifflin
"from which a factfinder could reasonably 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).
satisfied this burden against the School District.

Daniels has
As Daniels

points out, Meiers, a younger, Caucasian teacher, took on
Daniels' duties as Middle Years English teacher at Mifflin in
2010-2011.

But while Daniels did not obtain a second

certification in anticipation of Mifflin's 2010-2011 budgetary
changes, Meiers' personnel file does not reflect that she held
the certification necessary to take over Daniels' class either.
Furthermore, the defendants highlight in their brief that
teachers can be asked to teach one subject matter outside their
area of certification.

This evidence would allow a factfinder

reasonably to disbelieve that the reason Daniels was forced
transferred from Mifflin was her lack of a second certification
to teach an additional class when a white teacher much younger
than she lacked the qualifications necessary to take her place.

-26-

As such, the motion of the School District for summary
judgment will be denied on Daniels' race and age discrimination
claims under Title VII, the PHRA, and the ADEA to the extent they
are predicated on her 2010 forced transfer, her subsequent
replacement at Mifflin by Meiers, and the failure of the School
District and Mason timely to notify Daniels of the forced
transfer.

Against Mason, only Daniels' claims of race

discrimination under § 1981 and race and age discrimination under
the PHRA that are based upon Mason's failure to notify Daniels of
the forced transfer will survive summary judgment.
With regard to the 2010-2011 school year at Vare,
Daniels argues only that her receipt of a disciplinary memo for
being absent without leave in September 2010 is an adverse
employment action.

Daniels' disputed knowledge of the forced

transfer from Mifflin, or lack thereof, has a material bearing on
these events.

Looking at the facts in the light most favorable

to Daniels as the non-moving party, we will take it as true for
present purposes that Daniels was not notified by the School
District or Mason of her forced transfer.
The disciplinary memorandum is an adverse employment
action.

It constituted an official reprimand of Daniels for an

absence from a position that she did not know she had.

This

altered the "terms and conditions of employment" sufficiently to
satisfy the third prong of Daniels' prima facie case of race and
age discrimination.

See Burlington, 548 U.S. at 64.

-27-

However, the facts of the December 22, 2010
disciplinary memo do not give rise to an inference of race- or
age-related discrimination with respect to any defendant.
Daniels has not come forward with any evidence that her receipt
of the memo constituted any treatment of her different from that
of any other teacher under similar circumstances.

Christy, the

assistant principal at Vare who issued the memo, has explained
that a disciplinary memo must be issued as a matter of School
District policy when any teacher is absent without leave for
three days.

He received an automated payroll report from the

School District's central office prompting him to do so.
Marianno, Vare's principal during the 2010-2011 school year, has
further stated that if Daniels did not know of her assignment,
she should not have been marked AWOL.

Even if what occurred was

an embarrassing administrative error, it is not evidence from
which an inference of discrimination can reasonably be made.
Summary judgment will accordingly be granted to the School
District on Daniels' race discrimination claims under Title VII
and the PHRA and her age discrimination claims under the PHRA and
ADEA with respect to the December 22, 2010 disciplinary memo.
Likewise, we will grant summary judgment to Marianno and Christy
on Daniels' race and age discrimination claims under the PHRA as
they relate to the memo.
Because Daniels does not argue that any conduct during
the 2011-2012 school year at Penrose is an adverse employment
action, summary judgment will also be granted in favor of
-28-

Pendino, the principal of Penrose, as to all of Daniels' race and
age discrimination claims under the PHRA.
In sum, Daniels' race discrimination and age
discrimination claims under Title VII, the PHRA, and the ADEA,
which are counts one, five, and seven of her complaint, survive
summary judgment as to the School District concerning the failure
to notify Daniels of the dual certification requirement at
Mifflin and her 2010 forced transfer from that school.

Counts

two and five, which are Daniels' claims of race discrimination
under § 1981 and race and age discrimination under the PHRA,
survive against Mason based on the same failure of notification.
Finally, counts one, five, and seven also survive as to the
School District for Daniels' 2010 forced transfer from Mifflin
and her replacement by Meiers at Mifflin.

We will otherwise

grant summary judgment against Daniels as to all other claims of
race discrimination under § 1981 and Title VII, race and age
discrimination under the PHRA, and age discrimination under the
ADEA.
VII.
We now focus on Daniels' retaliation claims.

To

establish a prima facie case of retaliation under the McDonnell
Douglas framework, a plaintiff must bring forward evidence:
(1) that she engaged in protected activity,
(2) that the employer took adverse action
against her, and
(3) that a causal link exists between the
protected activity and the employer's adverse
action.

-29-

Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir.
1997).

The first element of a prima facie retaliation case is

satisfied by a showing of "complaints to [the employer], whether
oral or written, formal or informal."

Abramson v. William

Patterson Coll. of N.J., 260 F.3d 265, 288 (3d Cir. 2001).

For

an employee's complaint to be protected, he or she "must hold an
objectively reasonable belief, in good faith, that the activity
they oppose is unlawful under Title VII."

Moore v. City of

Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006) (citing Clark
County v. Breeden, 532 U.S. 268, 271 (2001)).

Our court has

applied this standard to § 1981, PHRA, and ADEA claims as well.
Ventner v. Potter, 694 F. Supp. 2d 412 427 n.12 (E.D. Pa. 2010);
Kerns v. Drexel Univ., Civil Action No. 06-5575, 2008 WL 2876590,
at *18 (E.D. Pa. July 24, 2008); Russ-Tobias v. Pa. Bd. of Prob.
& Parole, Civil Action No. 04-270, 2006 WL 516771, at *23 (E.D.
Pa. Mar. 2, 2006).
As to the second element, "adverse action" in the
retaliation context encompasses a larger class of circumstances
than the narrower "adverse employment action" concept in a
substantive discrimination case.

Thompson v. North American

Stainless, L.P., 131 S. Ct. 863, 867–68 (2011).

In addition to

actions that "affect the terms and conditions of employment,"
Title VII's anti-retaliation provision more broadly proscribes
"any employer action that 'well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.'"
Thompson, 131 S. Ct. at 868 (quoting Burlington N. & Santa Fe Ry.
-30-

Co. v. White, 548 U.S. 53, 68 (2006)).

This is equally true for

retaliatory harassment claims, which are predicated on the
presence of a hostile work environment that is shown to be
retaliation for protected activity.

Moore v. City of

Philadelphia, 461 F.3d 331, 341-42 (3d Cir. 2006).

However,

adverse actions are only those actions "that produce[] an injury
or harm."

Burlington, 548 U.S. at 67.

They are not "petty

slights, minor annoyances, [or] simple lack of good manners."
Id. at 68.
Finally, there must be evidence of a causal link.

When

there is no direct evidence of a causal connection between
protected activity and adverse action, the causation prong can be
met in two main ways.

First, "[w]here the temporal proximity

between the protected activity and the adverse action is
unusually suggestive, it is sufficient standing alone to create
an inference of causality and defeat summary judgment."

LeBoon

v. Lancaster Jewish Cmty. Ctr., 503 F.3d 217, 232 (3d Cir. 2007)
(quotation marks omitted).

Second, even where no such proximity

exists, we are instructed to determine "whether 'the proffered
evidence, looked at as a whole, may suffice to raise the
inference.'"

LeBoon, 503 F.3d at 232 (quoting Farrell v.

Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000)).

This

can include an "intervening pattern of antagonism" between the
protected activity and the adverse action that is "so strong that
it [overcomes] the lack of temporal proximity."

See Farrell, 206

F.3d at 281 (citing Woodson v. Scott Paper Co., 109 F.3d 913, 921
-31-

(3d Cir. 1997)).

We are cautioned to consider "a broad array of

evidence" on the causation prong.

Id. at 232-33.

With these principles explained, we now analyze
Daniels' retaliation claims against the School District under
Title VII and the ADEA, against the individual defendants under
§ 1981, and against all defendants under the PHRA in
chronological order by school, ending with her May 2012
termination.

For the reasons provided below, we find that

Daniels' retaliation claims all fail to survive summary judgment.
VIII.
For her age-based retaliation claims as they relate to
the 2009-2010 school year at Mifflin, we find that Daniels fails
to make out a prima facie case.

She complained to Mason,

Mifflin's principal, at some point during or after Parent's Night
in September 2009 that Mason's "grandparents" comment was
unacceptable.

This stands in isolation as the only complaint,

direct or indirect, that Mason is shown in the record to have
received from Daniels.
It would strain the imagination to find that this
complaint was made with an objectively reasonable belief by
Daniels that Mason's comment was unlawful.
at 341.

See Moore, 461 F.3d

Putting aside the deposition testimony in this case that

School District faculty frequently levy this sort of statement to
garner respect for teachers rather than to express impermissible
bias, Mason's words were both indirect and innocuous.

-32-

Daniels'

complaint does not satisfy the first prong of Daniels' prima
facie age-related retaliation case at Mifflin.
Even assuming that it does satisfy that prong and that
Daniels went on to face adverse action at Mifflin, Daniels' prima
facie case of age-related retaliation as to her time at Mifflin
fails on the causation prong as well.

Daniels made only one

complaint to Mason during the 2009-2010 school year, and that
occurred on or shortly after Parent's Night on September 9, 2009.
There is simply nothing in the record to permit us to infer a
link between this complaint, whenever it may have happened, and
Daniels' experience at Mifflin during the 2009-2010 school year.
Daniels took issue at times with Mason's evaluations of her
teaching, but Mason eventually rated Daniels as satisfactory at
the end of the school year.

Even if there are genuine disputes

of material fact as to whether Daniels' 2010 forced transfer from
Mifflin was a product of substantive race or age discrimination,
there are no facts to suggest through temporal proximity or
otherwise that anything Mason did constituted age-related
retaliation.

We will grant summary judgment in favor of the

School District on count eight, which is Daniels' age-related
retaliation claim under the ADEA.

We will further grant summary

judgment in favor of the School District and Mason on count six,
which is Daniels' age-related retaliation claim based on the
PHRA, to the extent those claims arise out of Daniels' time at
Mifflin.

-33-

Daniels' claims of race-related retaliation based on
the 2009-2010 school year at Mifflin fail as well.

As noted

above, Daniels' complaint about Mason's "grandparents" comment
was the only one Daniels made during the 2009-2010 school year.
She lodged no complaint of racism at Mifflin, official or
unofficial, until October 28, 2010, over four months after she
had left the school.

Daniels therefore has not met her burden of

bringing forward any evidence of race-related protected
activities for the purposes of establishing a prima facie
retaliation case against the School District and Mason for her
time at Mifflin.
Accordingly, summary judgment will be granted in favor
of Mason with respect to Daniels' count four in its entirety,
which is Daniels' claim of race-related retaliation under § 1981,
and with respect to count six in its entirety, which is Daniels'
claim of age- and race-related retaliation under the PHRA.
Summary judgment will also be granted in favor of the School
District on counts three, six and eight of Daniels' complaint for
race and age discrimination under Title VII and the ADEA, insofar
as those claims arise from the 2009-2010 school year at Mifflin.
IX.
Daniels also has claims of age-based retaliation
against the School District under the PHRA and ADEA and against
defendants Marianno and Christy under the PHRA as they relate to
the 2010-2011 school year at Vare.

Here again, Daniels has not

met the first prong of her prima facie case.
-34-

In her September 6,

2010 letter addressed to a School District superintendent,
Daniels complained of Mason's alleged ageism from which she
suffered while at Mifflin, that is, Mason's "grandparents"
comment and a statement from a colleague that "[t]hey call you
Old School."

Daniels supplied a litany of other exceptions to

Mason's conduct in the September 6 letter, none of which was
race- or age-related.

On October 28, 2010 Daniels also initiated

a formal PHRC process concerning Mason's same conduct, adding a
conclusion that Mason's actions also amounted to race
discrimination.

She finally submitted a PHRC complaint on

February 22, 2011, in which she complained of the conduct of
Marianno, the principal at Vare, and the conduct of Christy, the
assistant principal at Vare, as continuations at Vare of the
proscribed conduct she faced at Mifflin.

Specifically, she

asserted that the December 2010 disciplinary memo for absences
that Christy issued, Marianno's request that Daniels teach
classes outside her area of certification, Daniels' lack of a
permanent room assignment or classroom keys, and her assignment
to teach "students with the worse [sic] behavior and the lowest
academic scores" all constituted unlawful retaliation under the
PHRA.
As we have previously explained, the isolated and
benign age-related comments made during the 2009-2010 school year
at Mifflin cannot objectively serve as the basis for a complaint
of age-based retaliation.

Thus, Daniels' September 6 and

October 28 complaints are not protected activity.
-35-

Daniels'

February 2, 2011 or February 22, 2011 complaints cannot be said
to have been made in the "objectively reasonable belief, in good
faith, that the activity ... [she] oppose[s] is unlawful."
Moore, 461 F.3d at 341.
No party has pointed us to an age-related incident
during the 2010-2011 school year at Vare, and there is no
evidence to suggest that either Marianno or Christy was aware of
Daniels' woes at Mifflin.

Daniels may have been one of the

oldest teachers at Vare, or even the oldest, but this, by itself,
does not make reasonable a belief that her superiors' conduct was
unlawful under any relevant statute.

"A general complaint of

unfair treatment does not translate into a charge of illegal age
discrimination."
(3d Cir. 1995).

Barber v. CSX Distrib. Servs., 68 F.3d 694, 702
We find that Daniels did not make any of the

complaints during her time at Vare in the good faith, objective
belief that the treatment of which she complained was illegal.
These complaints are therefore not "protected activity"
sufficient to meet the first prong of the McDonnell Douglas test.
Even assuming that Daniels has met the "protected
activity" prong and that she faced adverse action at Vare,
Daniels fails to meet the third prong of the McDonnell Douglas
test by bringing forward evidence of a causal link between her
protected activity and any adverse actions at Vare.

We note that

her October 2010 PHRC complaint happened contemporaneously with
the first of her student disciplinary referrals and that her
February 22, 2011 PHRC complaint was followed by an
-36-

unsatisfactory evaluation just a handful of days later.

The gap

in time between the protected activity and adverse actions on
these facts is very short.

However, we must remember that we are

to consider temporal proximity dispositive of the causation prong
only when it is unusually suggestive.

LeBoon, 503 F.3d at 232.

We cannot so find in this case.
The October 28, 2010 PHRC complaint took issue with
Mason's conduct at Mifflin in the previous school year only.
This complaint not only does not concern Vare, but Daniels has
also failed to point to any evidence to suggest that Marianno or
Christy had any knowledge that the complaint had been lodged.11
"It is only intuitive that for protected conduct to be a
substantial or motiving factor in a decision, the decisionmakers
must be aware of the protected conduct."

Ambrose v. Twp. of

Robinson, Pa., 303 F.3d 488, 493 (3d Cir. 2002).

And while it is

true that Daniels filed a PHRC complaint against Marianno and
Christy in February 2011, that complaint cannot be said to have
precipitated any adverse action for two reasons.

First, the

negative performance evaluations and failures to handle student
misconduct that Daniels asserts are adverse actions she faced at
Vare both pre- and post-dated Daniels' protected activity,
undercutting any inference of causation.

Second, here again,

11. Rather, the Vare supervisors were only shown to have had
knowledge of Daniels' February 2, 2011 email sent directly to
Marianno. That email, which complained of "harassment" but did
not make any mention of race or age, cannot be considered
protected activity.
-37-

there is no evidence that Marianno or Christy knew at that time
that the PHRC complaints existed.12

There is simply nothing in

the record that any of the adverse actions Daniels faced during
the 2010-2011 school year at Vare were causally related to her
protected activity.
Accordingly, summary judgment will be granted in favor
of the School District on counts six and eight, which are
Daniels' age retaliation claims under the PHRA and ADEA
respectively, as they relate to the 2010-2011 school year at
Vare.

We will also grant summary judgment on count six in favor

of Marianno and Christy as it relates to age retaliation at Vare.
The same analysis applies to Daniels' race-related
retaliation claims under § 1981, Title VII, and the PHRA for the
2010-2011 school year at Vare.

On the first, the protected

activity prong, only Daniels' October 28, 2010 and February 22,
2011 formal PHRC complaints mention race, and the February 22
complaint only does so in the form of a conclusory accusation.
Indeed, the only race-related fact in either of these complaints
is that Mifflin is under federal investigation for not hiring
minority teachers, an investigation irrelevant to Daniels' case.
These complaints do not satisfy the first prong of a prima facie
case of race-related discrimination under Title VII and the PHRA

12. While there is an answer in the record from the School
District's assistant general counsel to Daniels' October 28, 2010
PHRC complaint concerning the 2009-2010 school year Mifflin, we
have not been provided evidence of an answer to Daniels' other
PHRC complaints.
-38-

because they were not made with an objectively reasonable belief
that the conduct complained of was unlawful.
The rest of the analysis set forth above on Daniels'
age-related retaliation claims at Vare applies with equal force
to her race-related retaliation claims.

Even assuming that

Daniels has shown protected activity and adverse action, there is
nothing shown in the record from which a reasonable inference can
be made to support a causal link between the two.

We will

therefore grant summary judgment on count three, which is
Daniels' race-based retaliation claim under Title VII, in favor
of the School District insofar as it is based on the 2010-2011
school year at Vare.

In addition, to the extent count six, which

is Daniels' retaliation claim brought under the PHRA, concerns
race retaliation at Vare, we will grant summary judgment on it in
favor of the School District, Marianno, and Christy.

Finally, we

will grant summary judgment in favor of Marianno and Christy on
count four in its entirety, which is Daniels' claim of race
retaliation under § 1981.
X.
We turn to the 2011-2012 year at Penrose.

Because the

operative facts are identical, we will consider Daniels' age- and
race-related retaliation claims from this time period together.
On December 13, 2011, Daniels supplemented her previous,
February 22, 2011 PHRC complaint to include complaints of
continued ageism and racism at Penrose by Pendino, the principal
at that school.

Since that complaint alleges that Daniels was
-39-

moved to the sixth grade from the Middle Years and replaced by a
younger, Caucasian teacher at Penrose, we find that this
complaint meets the first prong of her prima facie claims of ageand race-related retaliation at Penrose.

Moore, 461 F.3d at 341.

Daniels has met the second prong of her prima facie
case because she has put forth evidence that she faced adverse
actions in the receipt of near-weekly disciplinary memoranda
beginning September 14, 2011 and continuing through December 15,
2011.

This discipline ultimately culminated in a recommendation

from Pendino that Daniels be terminated.

Daniels has thus

satisfied the first two prongs of the prima facie case of ageand race-related retaliation case from her time at Penrose.
The third prong requires evidence of causation.
Pendino's discipline of Daniels started in mid-September 2011 and
became more severe through the fall rather than being
precipitated by Daniels' PHRC complaint as supplemented on
December 13, 2011.

Daniels submitted her PHRC supplement between

the December 7, 2011 conference that led to Pendino's termination
recommendation and the December 15 recommendation itself.

This

temporal proximity could perhaps be considered unusually
suggestive if it is viewed in isolation.
232.

See LeBoon, 503 F.3d at

However, there is no support in the record that Pendino had

any knowledge of this PHRC filing.
can be no retaliation.

Without such knowledge there

Ambrose, 303 F.3d at 493.

Accordingly,

Daniels has not met her burden of meeting the third prong of her
prima facie case of retaliation at Penrose.
-40-

Even assuming, however, that Daniels has met her prima
facie burden, the School District and Pendino have brought
forward evidence of legitimate, non-discriminatory reasons for
their actions.

Each disciplinary action that Pendino issued in

the fall of 2011 was accompanied by reasons for why it was
issued.

As at Mifflin and Vare, Daniels faced discipline at

Penrose for, among other things, failing to submit lesson plans
and failing to control her students in and out of the
classroom.13

These are legitimate, non-discriminatory reasons to

discipline a teacher.
Daniels has not pointed to any evidence to rebut these
reasons.

Indeed, she is silent on this point.

Our own review of

the record reveals that Daniels had disagreements with Pendino as
to some of the factual predicates for the discipline she
administered, but even so, "a wrong decision by an employer does
not amount to a discriminatory decision."

Pridgen v. Green

Valley SNF LLC, 756 F. Supp. 2d 614, 621 (D. Del. 2010) (emphasis
added) (citing Fuentes, 32 F.3d at 765).

As our Court of Appeals

has explained, it is insufficient for Daniels to "simply show
that the employer's decision was wrong or mistaken, since the
factual dispute at issue is whether discriminatory animus
motivated the employer, not whether the employer is wise, shrewd,
prudent, or competent."

Fuentes, 32 F.3d at 765.

13. Unlike at Vare, there is little to no evidence to suggest
that Pendino left Daniels to fend for herself against unruly
students.
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Furthermore, at the time of the discipline in the fall
of 2011, Daniels failed on several occasions to attend
investigatory conferences.

She was entitled to assistance from

the PFT at these meetings.

Instead, Daniels allowed the

disciplinary process to move forward without her input.

Under

these facts a factfinder could not reasonably reject the School
District's and Pendino's proffered reasons for their actions, and
there are no facts beyond Daniels' December 2011 complaint itself
that could otherwise lead to an inference of race- or age-based
antagonism at Penrose.
We will grant summary judgment in favor of Pendino on
count four, which is Daniels' race retaliation claim under
§ 1981, and count six, which is made up of Daniels' age- and
race-related retaliation claims under the PHRA, in their
entirety.

We will further grant summary judgment in favor of the

School District with respect to Daniels' age- and race-related
retaliation claims under Title VII in count three, the PHRA in
count six, and the ADEA in count eight, insofar as they are based
on the 2011-2012 school year at Penrose.
XI.
We still have before us the issue of Daniels' May 2012
termination.

We will again consider Daniels' age-related

retaliation claims together with her race-related retaliation
claims.

We note initially that Daniels' claims based on the

termination can only be considered as against the School
District.

While Pendino, the principal at Penrose, recommended
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termination in December 2011, none of the individual defendants
in this case had the power to terminate Daniels' employment.
Therefore, none of the individual defendants may be liable for
Daniels' termination.
With that established, we find that Daniels has met her
burden of moving forward on the first two prongs of her prima
facie case.

She engaged in protected activity as late as

December 13, 2011 in the form of a supplemented PHRC complaint
complaining of ageism and racism, and the initiation of
termination proceedings in May 2012 is a quintessentially adverse
action.
We have some doubts that Daniels has brought forward
evidence of a causal connection between her protected activities
and her termination.

There is a large, five-month gap between

her last complaint and the initiation of termination proceedings.
There was a disagreement through early 2012 concerning Daniels'
reasons for taking sick leave, but asserting a right to sick
leave is not of itself protected activity under any statute
involved in this action.

While there are no direct facts that

Daniels' PHRC complaint led in any way to her termination, we may
also look to an "intervening pattern of antagonism" to infer a
causal link when there is no unusually suggestive temporal
proximity, see Farrell v. Planters Lifesavers Co., 206 F.3d 271,
281 (3d Cir. 2000).

Furthermore, a factfinder could make a

reasonable inference that Kenney, the School District
administrator who made the ultimate recommendation that Daniels
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be terminated, had knowledge of Daniels' PHRC complaints.

Kenney

described Daniels' dissatisfaction with her principals in her
letter to Dr. Weiss, and Dr. Weiss' opinion upon which Kenney
based her termination recommendation specifically made mention of
Daniels' pending legal actions against the School District.

We

will therefore find that Daniels has put forward evidence
sufficient to meet her prima facie burden.
The burden therefore shifts to the School District to
put forward legitimate, non-discriminatory reasons for Daniels'
termination.

The School District has established that it

commenced termination proceedings against Daniels because she
failed to return to work when ordered.

Daniels was entitled

under the CBA to demand a binding third-party evaluation of her
medical condition.

She did so.

Daniels should return to work.

That physician found that
Regardless of what Daniels' own

treating physician might have believed about Daniels' condition,
this is a legitimate, non-discriminatory reason for the School
District's actions.
The burden therefore shifts once again back to Daniels
to rebut the School District's stated reasons.
do so.

She has failed to

It is undisputed that Dr. Weiss' opinion was binding

under the CBA, and his word on the issue of Daniels' ability to
work was therefore final.

Daniels contends that Dr. Weiss was

somehow improperly biased, but there is no reasonable inference
that can be made from the record to support this position.

Even

if Kenney had knowledge of Daniels' complaints, her letter to Dr.
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Weiss on behalf of the School District followed nearly three
months after Daniels' last complaint.

The letter and Dr. Weiss'

opinion that followed contain no language from which a factfinder
could reasonably infer an impermissible influence, and it is
undisputed that the PFT took none of the actions within its power
to remove Dr. Weiss from the pool of third-party physicians.
For the reasons explained above, Daniels has presented
no evidence that could lead a reasonable factfinder either to
disbelieve that this medical opinion, paired with Daniels'
subsequent failure to return to work, were the reasons for her
termination or to believe that an invidious discriminatory reason
played a part in the decision.

Fuentes, 32 F.3d at 764.

Summary

judgment will therefore be granted on Daniels' age- and racerelated retaliation claims, counts three, six, and eight in her
complaint, in favor of the School District for Daniels' May 2012
termination.
XII.
We conclude our analysis with a brief note concerning
hostile work environment.

The defendants argue in support of

their motion for summary judgment that Daniels has failed to meet
her burden of putting forward evidence of a prima facie
substantive hostile work environment case.

While Daniels

references "hostile work environment" tangentially in her
response, she makes no specific effort to defend a stand-alone
hostile work environment claim from summary judgment.

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We agree

with defendants that she has failed to come forward with evidence
of an illegal hostile work environment.
Summary judgment on Daniels' substantive claim for
hostile work environment will be granted in favor of all
defendants to the extent such a claim exists.
her complaint makes no mention of such a claim.

We also note that
Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007).
XIII.
In sum, we will grant summary judgment as follows.

We

will grant summary judgment in favor of all defendants on count
nine of Daniels' complaint, which constitutes her claims under
§ 1983, the First Amendment, and the Fourteenth Amendment.

We

will additionally grant summary judgment in favor of the School
District on Daniels' race discrimination and retaliation claims
under § 1981 in their entirety, counts two and four.

We will

further grant summary judgment in favor of the School District on
counts three and eight in their entirety, which are Daniels'
claims of race-based retaliation under Title VII and age-based
retaliation under the ADEA.

Summary judgment will be granted in

favor of defendants Marianno, Christy, and Pendino on count five
in its entirety, which is Daniels' race and age discrimination
claim under the PHRA.

We will grant summary judgment in favor of

the individual defendants on count four in its entirety, which
constitutes Daniels' race retaliation claim under § 1981.

As to

count six, which is Daniels' age- and race-related retaliation
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claim brought under the PHRA against all defendants, we will
grant summary judgment in favor of all defendants on the entire
claim.

To the extent they exist, summary judgment will be

granted in favor of all defendants on any claims of hostile work
environment.
We will deny summary judgment with respect to counts
one and seven against the School District, which are Daniels'
claims of race discrimination under Title VII and age
discrimination under the ADEA, for Daniels' 2010 forced transfer
from Mifflin to Vare, her replacement by Meiers, and her
inability to fully participate in the 2010 site selection
process.

We will further deny summary judgment on counts two and

five against Mason and the School District concerning Daniels'
inability to participate in the 2010 site selection only.

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