HOWELL v. MILLERSVILLE UNIVERSITY OF PENNSYLVANIA et al
MEMORANDUM/OPINION THAT DEFENDANTS' MOTION TO DISMISS, ECF NO. 9, IS GRANTED IN PART AND DENIED IN PART, WITH LEAVE TO AMEND AS SET FORTH IN THE ACCOMPANYING ORDER. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 7/27/17. 7/27/17 ENTERED AND COPIES E-MAILED. (ky, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
MILLERSVILLE UNIVERSITY OF
PHILLIP TACKA; N. KEITH WILEY;
CHRISTY BANKS; and DIANE UMBLE,
Defendant’s Motion to Dismiss, ECF No. 9 – Granted in Part and Denied in Part
Joseph F. Leeson, Jr.
United States District Judge
July 27, 2017
Allen Howell is an associate professor in the music department at Millersville University
of Pennsylvania, a public university that is part of the Pennsylvania State System of Higher
Education. He joined Millersville in August 2014, after his position as professor of music at
another Pennsylvania university was eliminated. He claims that a number of faculty members at
Millersville were not pleased about the prospect of bringing on an older faculty member from
another institution and that they and the University have harassed him and discriminated against
him because of his age. He also claims that they retaliated against him for critical comments he
has made about the University and for alerting the University to gender-based harassment that
was occurring in one of his classes.
The University and the faculty members have moved to dismiss each of Howell’s claims.
They contend that Howell’s age discrimination claims are barred by sovereign immunity and that
his retaliation claims both fail to plausibly allege a causal link between the protected conduct he
engaged in and the retaliation he claims to have suffered. They are correct about Howell’s
retaliation claims, but sovereign immunity does not bar his age discrimination claims.
According to Howell, the mistreatment he suffered began immediately after he started at
Millersville. He claims that he was hired specifically to be Millersville’s “Director of Choral
Activities” (according to Howell, “his letter of appointment indicated that he was to be given the
position”), but was never given that title or assigned those duties. Am. Compl. ¶¶ 39-40, 45.
Then, in the fall of 2015, approximately a year after he started, he applied for a full professor
position (to restore him to the full professor position he held at his prior university), but he was
informed in July 2016 that his application had been denied—ostensibly because of his
“performance ranking.” Id. ¶¶ 49, 59. He claims that was simply a pretext for age discrimination.
Howell also claims that he was retailiated against for speaking critically about the
University. He forthrightly acknowledges that he “has been highly critical of the governance of
Millersville in general and of the Music Department in particular” in comments he has made,
“primarily in the form of ‘blogs’ or electronically made and disseminated statements.” Id. ¶¶ 6263. He claims that he was retaliated against for making those comments—retaliation that
“includ[ed], but [was] not limited to, the denial of [the] promotion [he sought] and the failure to
acknowledge his appointment as Director of Choral Activities.” Id. ¶ 149.
Finally, Howell claims that during the spring 2017 semester, while teaching a class called
“Love Songs Through the Ages: Sex Positive Themes in Vocal Music,” three male students—the
only male students who enrolled in the class—harassed one or more of the female students in the
class. Id. ¶¶ 36, 64-67. Howell claims that he asked the University to conduct a “Title IX
Investigation” into the harassment, but was retaliated against for bringing the harassment to the
University’s attention. Id. ¶¶ 68, 142. The retaliation he claims to have suffered is the same
retaliation he claims to have suffered for making critical comments about the University—
retaliation that “includ[ed], but [was] not limited to, the denial of [the] promotion [he sought]
and the failure to acknowledge his appointment as Director of Choral Activities.” Id. ¶ 141.
Howell’s complaint contains four claims. Three of them—discrimination under the Age
Discrimination in Employment Act of 1967 (ADEA), hostile work environment under the
ADEA, and retaliation in violation of the First Amendment—he levies against five University
faculty members. The fourth claim—retaliation in violation of Title IX of the Education
Amendments of 1972—he brings against the University. 1 The University and the faculty
members have moved to dismiss all four claims. 2
He also included two claims under the Pennsylvania Human Relations Act, but later voluntarily dismissed
those claims. ECF No. 22.
The undersigned’s policies and procedures permit surreply briefs to be filed only with the permission of the
Court, and only if they do not exceed five pages. Joseph F. Leeson, Jr., Policies and Procedures § II(F)(3),
http://www.paed.uscourts.gov/documents/procedures/leepol.pdf. Howell filed a six-page surreply without
permission. The Court has still considered his brief, but Howell’s counsel are expected to be familiar with these
policies and procedures for the remainder of this case.
Howell’s ADEA claims are not barred by the Eleventh Amendment. 3
The faculty members contend that Howell’s ADEA claims are barred by Pennsylvania’s
Eleventh Amendment immunity, in light of Millersville’s status as part of the Commonwealth.
Howell recognized that he could not sue Millersville itself, given that Congress did not
validly abrogate the states’ sovereign immunity to suit under the ADEA. See Kimel v. Fla. Bd. of
Regents, 528 U.S. 62 (2000). So instead, he brought his ADEA claims solely against the five
faculty members in their official capacities—and solely for prospective injunctive relief, not
money damages—relying on the principle that the Eleventh Amendment does not bar suits to
enjoin individual state officials from violating federal law. See Ex parte Young, 209 U.S. 123
In the analogous context of a suit under the Americans with Disabilities Act, the Supreme
Court suggested that Howell’s approach would be proper. In Board of Trustees of University of
Alabama v. Garrett, the Court held that the ADA—like the ADEA—did not validly abrogate the
states’ sovereign immunity to suit, but nonetheless noted that “the ADA still prescribes standards
applicable to the States,” which “can be enforced by . . . private individuals in actions for
injunctive relief under Ex parte Young.” 531 U.S. 356, 374 n.9 (2001). Since Garrett, the Third
Circuit has had the opportunity to squarely confront the question, and twice it has turned away
Eleventh Amendment challenges to claims like Howell’s—first, in a case involving the ADA,
see Koslow v. Pennsylvania, 302 F.3d 161, 178 (3d Cir. 2002) (citing Garrett and holding that
“federal ADA claims for prospective injunctive relief against state officials are authorized by the
Ex parte Young doctrine”), and more recently, in a case involving both the ADA and the ADEA,
see Smith v. Sec’y of Dep’t of Envtl. Prot., 540 F. App’x 80 (3d Cir. 2013) (per curiam) (reversing
the dismissal of ADA and ADEA claims against the head of a Pennsylvania state agency and
directing the district court to consider the plaintiff’s claim for injunctive relief); see also Smith v.
Sec’y of Dep’t of Envtl. Prot., No. 12-2189, 2013 WL 6388555 (E.D. Pa. Dec. 5, 2013) (on
remand, allowing the plaintiff to proceed with his claim for injunctive relief in the form of an
order directing the Secretary to hire him for a position he had been denied). Sovereign immunity,
therefore, is no bar to Howell’s claims.
The faculty members contend that even if Howell’s claims are not barred by the Eleventh
Amendment, they are barred by the ADEA itself because “the ADEA does not provide for
individual liability,” only liability against the “employer.” See Hill v. Borough of Kutztown, 455
F.3d 225, 246 n.29 (3d Cir. 2006). But by suing these faculty members in their official
capacities—rather than their individual capacities—Howell has met that requirement. The term
“employer” under the ADEA includes “any agent” of the employer, see 29 U.S.C. § 630(b), and
“an official sued in his official capacity is an ‘agent’ of the state employer.” Koslow, 302 F.3d at
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
178 (concluding, under an analogous provision of the ADA, that claims for “prospective relief
against state officials acting in their official capacities may proceed under the statute”).
For those reasons, neither sovereign immunity nor the ADEA bars Howell’s claims
against the five faculty members. Some questions do remain about whether injunctions directed
to these particular faculty members would be able to afford Howell all of the relief he seeks, 4
see, e.g., Barrett v. Univ. of N.M. Bd. of Regents, 562 F. App’x 692, 694 (10th Cir. 2014)
(concluding that a former employee of a state university could not obtain reinstatement through
injunctions directed at individual members of the university’s board because, under state law, the
members were “not empowered to act individually, but must act as ‘a body corporate’”), but
those questions go to the scope of the equitable relief that may be appropriate to award if he
succeeds on his claims, not to the viability of those claims.
Howell has failed to state a plausible claim for retaliation under either the First
Amendment or Title IX.
To make out a prima facie claim of retaliation under either the First Amendment or Title
IX, a plaintiff must plead the same three basic elements: (1) protected conduct, (2) retaliatory
action, 5 and (3) “a causal link between the . . . protected conduct and the retaliatory action.”
See Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006) (First Amendment retaliation); Doe
v. Mercy Catholic Med. Ctr., 850 F.3d 545, 564 (3d Cir. 2017) (Title IX retaliation).
Defendants contend that both of Howell’s retaliation claims fail because he has not
pleaded facts sufficient to establish a causal link between the protected activities he engaged in
and the retaliatory conduct he claims to have suffered as a result. They are correct.
As a threshold matter, the parties dispute which standard of causation applies to Howell’s
Title IX claim. The University believes that to prevail, Howell must show that the protected
conduct he engaged in was the “but for” cause of the adverse actions he suffered, while Howell
believes he need only show that his protected conduct was a motivating factor. At this stage of
the proceedings, there is no need to reach that question because Howell need only plead
sufficient allegations to establish some “causal link” between the two to make out a prima facie
claim. Title IX retaliation claims are “generally govern[ed]” by the same analytical framework as
Title VII retaliation claims, and under that framework, the but-for causation requirement—if it
indeed applies in the Title IX context—would not come into play until the defendant has rebutted
For his ADEA claims, Howell seeks “all equitable remedies and injunctive relief permitted by law,
including, but not limited to, immediate promotion to the rank of full Professor, an immediate increase in salary, the
cessation of any retaliatory actions against him, and recognition by the Defendants that he has been hired—and
serves in—the capacity of Director of Choral Activities.” Am. Compl. ¶¶ 94, 108.
In the First Amendment context, the retaliatory action must be of a kind that is “sufficient to deter a person
of ordinary firmness from exercising his constitutional rights.” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir.
2006). In the Title IX context, the retaliatory conduct must amount to an “adverse action.” Mercy Catholic, 850 F.3d
at 564. Title IX retaliation claims are “generally govern[ed]” by the same framework that governs Title VII
retaliation claims, id., so, as with Title VII claims, the retaliatory action must be more than “trivial” to qualify as an
adverse action—it must be material enough to “dissuade a reasonable [person] from making or supporting a charge
of discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
the plaintiff’s prima facie claim by articulating a legitimate reason for its actions. Mercy
Catholic, 850 F.3d at 564. Only then does the burden shift back to the plaintiff to show that those
actions would not have occurred but for the plaintiff’s protected conduct. Id.; see Young v. City of
Phila. Police Dep’t, 651 F. App’x 90, 95-97 (3d Cir. 2016) (concluding, in the context of Title
VII, that a district court erred in requiring a plaintiff to establish but-for causation to make out a
prima facie claim of retaliation because “the causation standards for establishing a prima facie
retaliation case and proving pretext are not identical,” and a plaintiff need only satisfy the “less
onerous” burden of establishing some causal link between the protected conduct and the
challenged action to make out a prima facie claim). 6
As for whether Howell’s allegations have established that requisite causal link, Howell
claims that the same two acts—“the denial of [his] promotion and the failure to acknowledge his
appointment as Director of Choral Activities”—were done in retaliation for two different
instances of protected conduct: speaking critically about the University (his First Amendment
retaliation claim), and reporting gender-based harassment in one of his classes (his Title IX
retaliation claim). At this stage of the proceedings, there is no inherent tension in claiming that
the same two acts were done in retaliation for two separate things (even if one or both of these
claims require but-for causation), see Fed. R. Civ. P. 8(d) (permitting pleading in the alternative),
but Howell’s allegations fail to raise a plausible inference that either of those acts were causally
linked to either instance of protected conduct.
Taking Howell’s Title IX claim first, the problem with this claim is that the retaliation he
claims to have suffered—the failure to grant him the title and duties of Director of Choral
Activities he claims he was promised when he was hired, and the denial of his request for a
promotion—had already happened well before he asked the University to conduct a “Title IX
Investigation” into the harassment occurring in his class. According to Howell, the harassment
occurred at some time during the spring 2017 semester, which was at least six months after the
University had notified him that his promotion had been denied, and approximately two and a
half years after he started at Millersville without the title or duties of Director of Choral
Activities that he claims he had been promised in his letter of appointment. The linear nature of
While that settles the matter at this stage of the case, the Supreme Court does seem to have suggested that
the “but for” causation standard is the ultimate evidentiary standard that must be met to prevail on a Title IX
retaliation claim after the burden shifts back to the plaintiff to discredit any legitimate reasons the defendant is able
to articulate for its conduct. At the time that the Court first recognized the existence of a cause of action for
retaliation under Title IX, the Court pointed out that to succeed on the claim, the plaintiff would need to show that
he was “retaliated against . . . because he complained of sex discrimination,” Jackson v. Birmingham Bd. of Educ.,
544 U.S. 167, 184 (2005) (emphasis the Court’s), and the Court has recognized in the past that “the ordinary
meaning of the word ‘because’ . . . ‘require[s] proof that the desire to retaliate was [a] but-for cause of the
challenged . . . action.” Burrage v. United States, 134 S. Ct. 881, 889 (2014) (quoting Univ. of Tx. Sw. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2528 (2013)). Putting Jackson and Burrage together, it would seem that a showing of butfor causation is needed to ultimately prevail on a Title IX retaliation claim. See Baldwin v. New York, No. 15-3910,
2017 WL 1951971, at *2 (2d Cir. May 10, 2017) (per curiam) (concluding, after citing Jackson and Burrage, that a
Title IX retaliation plaintiff must show that “[t]he desire to retaliate . . . [was] a ‘but-for cause’”).
time prevents either of those actions from being connected in any way to his later report about
the harassment occurring in his class. 7
Howell’s First Amendment claim does not have the same immediate chronological
problem, but that is only because his complaint omits any mention of when he made the critical
comments about the University. While it is therefore possible that the denial of his promotion, or
the failure to recognize him as the Director of Choral Activities, may have been linked to those
comments, Howell still has not “raised [his] right to relief above the speculative level.” Twombly,
550 U.S. at 555. The facts that Howell has pleaded—that he made comments critical of the
University, and that he was denied a title and duties he had been promised and a promotion he
had sought—are certainly consistent with retaliation, but to survive a motion to dismiss, a
plaintiff must do more than plead facts consistent with liability—the plaintiff must plead facts
sufficient to make the claim plausible. Iqbal, 556 U.S. at 678 (“Where a complaint pleads facts
that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of “entitlement to relief.”’” (quoting Twombly, 550 U.S. at 557)).
Without any mention of whether he made the critical comments prior to either act of alleged
retaliation, or any allegation that would give rise to an inference that any of the five faculty
members he has sued even knew about those comments, 8 see Ambrose v. Twp. of Robinson, 303
F.3d 488, 493 (3d Cir. 2002) (pointing out that “[i]n order to retaliate against an employee for his
speech, an employer must be aware of that speech”), Howell has not “nudged [his] claim across
the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
While both of Howell’s retaliation claims fail as currently pleaded, it cannot be said for
sure that he could not cure these deficiencies with an amendment. With respect to his First
Amendment claim, it may be the case that he made some or all of his critical comments before
he suffered the adverse actions that he claims were done in retaliation for them, so Howell could
amend his complaint to specify when he made those comments relative to those adverse actions. 9
To be sure, Howell includes an allegation in his complaint that the retaliation he suffered included not only
the failure to grant him the titles and duties of Director of Choral Activities when he started at Millersville and the
failure to award him the promotion he requested, but also the “continuing” failure to do these things. Am. Compl.
¶ 141. In other words, Howell is suggesting that it can be inferred that the University may have changed its mind,
sua sponte, and given him the promotion it had denied him six months prior, as well as the role of Director of Choral
Activities that it had been withholding for the past two and a half years, had his report about the harassment
occurring in his class not motivated the University to stay the course. In the face of a motion to dismiss, Howell is
entitled to have inferences drawn in his favor, but only plausible ones. Iqbal, 556 U.S. at 682.
The only reference Howell makes to these comments is in two adjacent paragraphs in his complaint, which
allege that “Howell has been highly critical of the governance of Millersville in general and of the Music
Department in particular; some of [which] directly implicated [one of the faculty member defendants] and his allies
within the departmental leadership,” Am. Compl. ¶ 62, and that these “aforementioned comments have been
primarily in the form of ‘blogs’ or electronically made and disseminated statements,” id. ¶ 63.
While that would at least make it possible that one or both of those actions were done in retaliation for his
critical comments, Howell should note that merely alleging that he engaged in protected activity and that he later
suffered an adverse employment action is likely not enough, standing alone, to permit an inference of a causal link
between the two. There generally must also be allegations of either “an unusually suggestive temporal proximity
between the protected activity and the allegedly retaliatory action” or “a pattern of antagonism coupled with timing
to establish a causal link.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). Otherwise,
He may also be able to plead sufficient allegations to give rise to an inference that one or more of
the faculty members were aware of his comments at the time they allegedly engaged in those acts
With respect to his Title IX retaliation claim, Howell has a more difficult problem, since
no amendment could change the fact that the two instances of retaliation he claims to have
suffered took place before he engaged in any Title IX protected activity. But he did suggest in his
complaint that those two instances of retaliation were not exhaustive, 10 so perhaps he may have
suffered other “adverse actions” 11 that bear a causal link to his protected activity. The Court
cannot say for sure, so he will be afforded an opportunity to amend his complaint.
Neither sovereign immunity nor the ADEA itself bars Howell’s ADEA claims against the
faculty members in their official capacities for prospective injunctive relief, so their motion to
dismiss those claims is denied. But neither of Howell’s retaliation claims states a plausible claim
for relief, so they are dismissed with leave to amend as set forth in the accompanying order.
BY THE COURT:
/s/ Joseph F. Leeson, Jr.___________
JOSEPH F. LEESON, JR.
United States District Judge
the claim would rest on nothing more than the fallacy of post hoc ergo propter hoc—the notion that the adverse
action can be attributed to the protected activity simply because one followed the other.
See Am. Compl. ¶ 141 (alleging that the retaliation he suffered “include[ed], but [was] not limited to,”
those two actions).
See supra note 5.
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