Rogers v. East Lycoming School District et al

Filing 21

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Malachy E Mannion on 11/6/2017. (bg)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ALYSSA ROGERS,

:

Plaintiff

:

CIVIL ACTION NO. 4:17-0696

v.

:

(MANNION, D.J.)

EAST LYCOMING SCHOOL
DISTRICT, KEVIN STEELE,
and MICHAEL PAWLIK,

:
:

Defendants

MEMORANDUM
Presently before the court is a motion to dismiss the plaintiff’s complaint,
(Doc. 1), pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by the
defendants, East Lycoming School District (“ELSD”), Kevin Steele, ELSD
Athletic Director, and Michael Pawlik, ELSD Superintendent. (Doc. 9). The
plaintiff, Alyssa Rogers, brings a gender discrimination claim, pursuant to Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, and a 14th Amendment
Equal Protection claim, pursuant to 42 U.S.C. §1983, alleging that defendants
prevented her from applying for an open position as an assistant coach with
the school district based on her gender and the district’s nepotism policy that
was unequally enforced against her due to her gender. For the reasons
discussed herein, the defendants’ motion to dismiss is GRANTED IN ITS
ENTIRETY.

I.

FACTUAL AND PROCEDURAL BACKGROUND1
Plaintiff filed the instant action in which she alleges that the ELSD’s

Athletic Director Steele and Superintendent Pawlik precluded her from
applying for the Assistant Varsity Girls Basketball Coach position, based on
her gender and familial relationship to the district’s Head Basketball Coach,
her father Ed Rogers. In March 2016, Craig Weaver, Sr. resigned as the
assistant coach. Plaintiff alleges that when Ed Rogers told Steele he wanted
plaintiff to be hired for the open paid assistant coach position, Steele stated
that plaintiff could not have the job based on ELSD’s nepotism policy “of not
hiring family members [of] paid staff” which applied to “both the varsity and
junior high level coaching positions.” Steele also told plaintiff that ELSD had
a “policy against hiring family members as paid assistants as it was a conflict
of interest and [she] would have no support in her pursuit of the assistant
coaching position because she was the daughter of the head coach.”
Plaintiff describes the hiring structure at ELSD for prospective assistant
coaches as follows: first, coaching candidates submit applications and
resumes to be reviewed by the head coach and Steele; second, interviews
are conducted with the head coach and Steele; and third, Steele and Pawlik

1

The facts alleged in plaintiff’s complaint, (Doc. 1), must be accepted as
true in considering the defendants’ motion to dismiss. See Dieffenbach v.
Dept. of Revenue, 490 F.App’x 433, 435 (3d Cir. 2012); Evancho v. Evans,
423 F.3d 347, 350 (3d Cir. 2005).
2

make the recommendation for hire to ELSD’s School Board.
Plaintiff states that in light of the discussions with Steele and his lack of
support, she did not apply for the open assistant coach position. Also, based
on the conversations with Steele, Ed Rogers resigned from his head coaching
position. Weaver then applied for the head coaching position.
While Weaver’s application was pending, plaintiff’s mother, Dr. Amy
Rogers, who is a member of the ELSD School Board heard a rumor that
Weaver wanted to have his two sons hired by ELSD as his paid assistant
coaches. Amy Rogers then contacted Steele and asked him whether ELSD’s
policy against hiring family members as paid assistant coaches was still in
effect. (See Doc. 3). Steele told Amy Rogers that “[a]s for bringing family
members into paid positions, nothing has changed and that “[r]umors are
rumors.” (Id.).
Amy Rogers then discussed ELSD’s nepotism policy with Pawlik and he
“acknowledged that he first told a prior coach about the policy when the prior
coach inquired about hiring his daughter as an assistant coach” and that “the
policy was revisited by [ ] Steele during his conversation with Plaintiff.” Plaintiff
alleges that despite these assurances from Steele and Pawlik that ELSD’s
nepotism policy did exist which precluded the hiring of family members as
paid assistants when familial ties to the head coach were present, Weaver’s
two sons were hired by ELSD as paid assistant girls basketball coaches while
Weaver was the head coach.
3

Additionally, plaintiff alleges that before Ed Rogers became head coach,
ELSD had hired a father and son as paid head and assistant coaches with the
girls basketball team.
As such, plaintiff alleges that the real reason she was told by Steele and
Pawlik that a nepotism policy existed in ELSD was “for the sole purpose of
discouraging her to apply for a paid coaching position due to her gender.”
Plaintiff filed a charge of sexual discrimination with the Equal
Employment Opportunity Commission (“EEOC”). On January 26, 2017, she
received a notice of the dismissal of the charge and of her right to sue from
the EEOC. (Doc. 1 at 11). Having exhausted administrative remedies, plaintiff
filed her complaint with this court on April 19, 2017. (Doc. 1). Plaintiff's
complaint contains three counts, (I) Title VII Gender Discrimination against all
defendants, (II) Violation of 42 U.S.C. §1983 (Equal Protection) against all
defendants, and (III) Personal Liability against defendants Steele and Pawlik.
Plaintiff alleges that Steele and Pawlik acted in their official and personal
capacities. She also alleges that Steele and Pawlik acted recklessly and with
a lack of regard for her rights which caused her to suffer monetary losses,
loss of standing and reputation in the community, and humiliation. As relief,
plaintiff seeks monetary damages, punitive damages, equitable relief,
attorney’s fees, and costs.
Defendants were then served with the complaint and on May 5, 2017,
they filed waivers of service. (Doc. 5).
4

On June 23, 2017, defendants filed a motion to dismiss the complaint.
(Doc. 9). After being granted leave to file their brief in support out of time,
defendants filed it on July 19, 2017. (Doc. 15). Plaintiff filed her brief in
opposition to the motion on August 2, 2017. (Doc. 18). Defendants then filed
a reply brief on August 8, 2017. (Doc. 19).
This court has jurisdiction over this action pursuant to 28 U.S.C. §§1331
and 1343. Venue is appropriate in this court since the alleged constitutional
violations occurred in this district and all parties are located here. See 28
U.S.C. §1391.

II.

LEGAL STANDARDS
A.

Motion to Dismiss

The defendants’ motion to dismiss is brought pursuant to the provisions
of Fed.R.Civ.P. 12(b)(6). This rule provides for the dismissal of a complaint,
in whole or in part, if the plaintiff fails to state a claim upon which relief can be
granted. The moving party bears the burden of showing that no claim has
been stated, Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and
dismissal is appropriate only if, accepting all of the facts alleged in the
complaint as true, the plaintiff has failed to plead “enough facts to state a
claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 127 S. Ct. 1955, 1974 (2007) (abrogating “no set of facts” language
found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must
5

be sufficient to “raise a right to relief above the speculative level.” Twombly,
550 U.S. 544, 127 S. Ct. at 1965. This requirement “calls for enough fact[s]
to raise a reasonable expectation that discovery will reveal evidence of”
necessary elements of the plaintiff’s cause of action. Id. Furthermore, in order
to satisfy federal pleading requirements, the plaintiff must “provide the
grounds of his entitlement to relief,” which “requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action
will not do.” Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)
(brackets and quotations marks omitted) (quoting Twombly, 550 U.S. 544,
127 S. Ct. at 1964-65).
In considering a motion to dismiss, the court generally relies on the
complaint, attached exhibits, and matters of public record. See Sands v.
McCormick, 502 F.3d 263 (3d Cir. 2007). The court may also consider
“undisputedly authentic document[s] that a defendant attaches as an exhibit
to a motion to dismiss if the plaintiff’s claims are based on the [attached]
documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d
1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged
in the complaint and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered.” Pryor v. Nat’l
Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir. 2002). However, the
court may not rely on other parts of the record in determining a motion to
dismiss. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,
6

1261 (3d Cir. 1994).
Generally, the court should grant leave to amend a complaint before
dismissing it as merely deficient. See, e.g., Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v.
Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213
F.3d 113, 116-17 (3d Cir. 2000). However, “[d]ismissal without leave to
amend is justified only on the grounds of bad faith, undue delay, prejudice, or
futility.” Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).

B.

Section 1983

The school district and the school officials are state actors for purpose
of §1983. See Kline ex rel. Arndt v. Mansfield, 454 F.Supp.2d 258, 262
(E.D.Pa. 2006).
To state a claim under section 1983, a plaintiff must meet two threshold
requirements: 1) that the alleged misconduct was committed by a person
acting under color of state law; and 2) that as a result, she was deprived of
rights, privileges, or immunities secured by the Constitution or laws of the
United States. West v. Atkins, 487 U.S. 42 (1988); Parratt v. Taylor, 451 U.S.
527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474
U.S. 327, 330-331 (1986). If a defendant fails to act under color of state law
when engaged in the alleged misconduct, a civil rights claim under section
1983 fails as a matter of jurisdiction, Polk Cnty. v. Dodson, 454 U.S. 312, 315
7

(1981), and there is no need to determine whether a federal right has been
violated. Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).
“A defendant in a civil rights action must have personal involvement in
the alleged wrongs; liability cannot be predicated solely on the operation of
respondeat superior.” Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir.
1988). See also Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003)(citing
Rode). “Personal involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence.” Rode, 845 F.2d at 1207.
Accord Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-96 (3d Cir. 1997);
Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995).
With respect to actions against public officials acting in a supervisory
capacity, the United States Supreme Court has held that claims must be
differentiated based upon whether the defendant acted in his personal
capacity or in his official capacity. Kentucky v. Graham, 473 U.S. 159, 155-65
(1985). Personal capacity suits “seek to impose personal liability upon a
government official for actions he takes under color of state law.” Id. (citing
Scheuer v. Rhodes, 416 U.S. 232, 237-238 (1974)). Official capacity suits
“generally represent only another way of pleading an action against an entity
for which an officer is an agent.” Id. (quoting Monell v. New York City Dep’t
Soc. Serv., 436 U.S. 658, 690 (1978)). The Supreme Court has also held that
official capacity suits cannot succeed against officials acting in their official
capacity on behalf of the state. Hafer v. Melo, 502 U.S. 21 (1991). “The law
8

is well established on this point, and courts sitting in the Third Circuit have
dismissed defendants sued in their official capacity when the same claims are
made against the municipality.” Strickland v. Mahoning Twp., 647 F.Supp.2d
422 (M.D.Pa. 2009) (citing Whaumbush v. City of Phila., 747 F.Supp.2d 505,
510 n. 2 (E.D.Pa. 2010)).

III.

DISCUSSION
1. Punitive Damages
The court will first address defendants contention that plaintiff’s claim

for punitive damages should be dismissed with prejudice. In her complaint,
(Doc. 1 at 10), plaintiff alleges that she is entitled to punitive damages “to
punish Defendants for their willful, deliberate, malicious and outrageous
conduct and to deter Defendants or other employers from engaging in such
misconduct in the future.” Plaintiff does not specify the defendants against
which she is seeking punitive damages.
With respect to punitive damages for a §1983 violation, this remedy is
only available “when the defendant’s conduct is shown to be motivated by evil
motive or intent, or when it involves reckless or callous indifference to the
federally protected rights of others.” Smith v. Wade, 461 U.S. 30 (1983).
Regarding federal civil rights claims, “reckless indifference” refers to the
defendant’s knowledge of the illegality of his actions, not the egregiousness
of his actions. Alexander v. Riga, 208 F.3d 419, 431 (3d Cir. 2000) (citing
9

Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 536 (1999)).
It is well settled that the Supreme Court has held punitive damages may
not be awarded against municipalities under §1983. See City of Newport v.
Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Punitive damages are not
permissible against ELSD, nor are punitive damages permissible against
Steele and Pawlik in their official capacity. See Yelland v. Abington Heights
School District, 2017 WL 529837 (M.D.Pa. Feb. 9, 2017). As such, plaintiff‘s
claim for punitive damages against ELSD and against Steele and Pawlik in
their official capacity will be DISMISSED WITH PREJUDICE.
Plaintiff has also sued defendants Steele and Pawlik in their individual
capacity. Defendants argue that plaintiff has failed to properly state a claim
for punitive damages against Steele and Pawlik in their individual capacity.
Plaintiff argues that “[defendants’ knowingly callous and willful representations
to Plaintiff in order to derail her pursuit of paid employment with her head
coach father does rise to the level of ‘evil motive [and] reckless’ indifference.”
(Doc. 18 at 6).
As discussed below, the court finds that plaintiff has not sufficiently
alleged that Steele and Pawlik violated her rights with respect to her Title VII
gender discrimination claim in Count I and her equal protection claim under
§1983 in Count II. As such, the court finds that plaintiff has not properly
alleged “reckless indifference” regarding the knowledge of Steele and Pawlik
of the illegality of their actions to seek punitive damages See Alexander v.
10

Riga, 208 F.3d at 430-31. Thus, plaintiff’s claim for punitive damages against
defendants Steele and Pawlik in their individual capacity will be DISMISSED
WITH PREJUDICE.

2. §1983 Claim against Steele and Pawlik in their official capacity
To the extent plaintiff sues Steele and Pawlik in their official capacity,
these defendants are part of ELSD itself. See Kentucky v. Graham, 473 U.S.
159, 165-166 (1985) (Section 1983 suits against individuals in their official
capacity “represent only another way of pleading an action against an entity
of which an officer is an agent.”) (citation omitted). As such, plaintiff’s claims
against Steele and Pawlik in their official capacity merge with her claims
against ELSD, and are redundant of the claims plaintiff asserts against ELSD.
See Swedron v. Borough, 2008 WL 5051399, *4 (W.D. Pa. Nov. 21, 2008)
(Court held that official capacity claims under §1983 against defendant police
officers should be dismissed since they were redundant of the claims against
defendant Borough) (citing Gregory v. Chehi, 843 F.2d 111, 120 (3d Cir.
1988)); Brice v. City of York, 528 F.Supp.2d 504, 516 n. 19 (M.D. Pa. 2007)
(“claims against state officials in their official capacities merge as a matter of
law with the municipality that employs them.”); Burton v. City of Phila., 121
F.Supp.2d 810 (E.D. Pa. 2000); Donovan v. Pittston Area School Dist., 2015
WL 3771420, *5 (M.D.Pa. June 17, 2015) (Court dismissed with prejudice
plaintiff’s claims against board members of school district in their official
11

capacity as redundant of claims against school district); Hill v. Bor. of
Kutztown, 455 F.3d 225, 233 n. 9 (3d Cir. 2006); Yelland, 2017 WL 529837.
As such, plaintiff’s claim under §1983 against Steele and Pawlik in their
official capacity will be DISMISSED WITH PREJUDICE. Defendants Steele
and Pawlik however can be sued under §1983 in their individual capacity in
addition to defendant ELSD, as discussed below. Donovan v. Pottstown Area
School Dist., 2015 WL 3771420, *16; Kohn v. School Dist. of City of
Harrisburg, 817 F.Supp.2d 487, 510 (M.D.Pa. 2011); Damiano v. Scranton
School District, 135 F.Supp.3d 255, 268-69 (M.D.Pa. 2015).

3. Gender Discrimination Claim Under Title VII
Defendants move to dismiss plaintiff’s gender discrimination claim under
Title VII, Count I. Defendants contend that plaintiff has failed to state a Title
VII claim since they did not have the authority to make the ultimate decision
as to who would be hired for the coach position. Defendants argue that under
the Pennsylvania Public School Code, 24 P.S. §5-511, only the School Board
has the power to control school athletics, develop policies, and hire and fire
coaches. Section 5-511(a) of the School Code provides that:
(a) The board of school directors in every school district shall
prescribe, adopt, and enforce such reasonable rules and
regulations as it may deem proper, regarding (1) the
management, supervision, control, or prohibition of exercises,
athletics, or games of any kind, … and other activities related to
the school program, … and (2) the organization, management,
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supervision, control, financing, or prohibition of organizations,
clubs, societies and groups of the members of any class or
school, and may provide for the suspension, dismissal, or other
reasonable penalty in the case of any appointee, professional or
other employee, or pupil who violates any of such rules or
regulations.
Defendants also state that plaintiff admits she never applied for the
position of assistant coach. Rather, she claims that Pawlik and Steele
hindered her from applying.
Thus, defendants state that “Pawlik and Steele are not School Board
members and therefore do not control school athletics, develop policies, and
hire and/or fire coaches.” (Doc. 15 at 5). No doubt that under Section 5-511(a)
of the School Code the Board has exclusive authority “to prescribe, adopt,
and enforce [ ] reasonable rules and regulations” regarding athletics. Based
on this section, defendants argue that since plaintiff failed to allege that she
applied for the coach position and was rejected and, since they lacked the
final hiring authority of the position which pertained to athletics, they did not
subject her to an adverse employment action and she cannot establish a
prima facie case under Title VII.
Plaintiff states that ELSD, a public school district, prescribed or adopted
rules and/or regulations that vested its agents, namely Pawlik and Steele,
“with the authority to review and/or ‘weed out’ potential coaching applicants
before the applicants were ever brought to the attention of the Board.” (Doc.
18 at 4). Plaintiff alleges that both Pawlik and Steele were high-level
13

managers and decision-makers regarding the terms and conditions of
employment for current and prospective employees, including hiring, firing,
and disciplining. As such, plaintiff states that she has pled that the hiring
structure established by ELSD for prospective assistant coaches began with
Steele and Pawlik as opposed to the School Board, even if the Pennsylvania
Public School Code P.S. §5-511 provides that the power to hire coaches is
ultimately vested with the Board. Additionally, plaintiff alleges that any
prospective coaching candidate had to initially check with the various agents
appointed by ELSD “to manage, supervise and control athletics and other
activities related to the school program.” Plaintiff avers that she was
discouraged from applying for the assistant coaching position at the direction
of agents for ELSD, including Pawlik and Steele, and that was why she did
not apply. She also avers that Pawlik and Steele repeatedly advised her that
she would receive no support during the application process in light of ELSD’s
nepotism policy. Plaintiff alleges that based on the hiring decisions that were
ultimately made by ELSD and endorsed by Pawlik and Steele, the nepotism
policy was simply a guise to hide the true motivation, namely, gender
discrimination, to discourage her application. In fact, plaintiff alleges in her
complaint that after her father resigned as head coach, Weaver was hired to
the head coach position and then Weaver’s two sons were hired as his
assistants despite the fact that ELSD’s nepotism policy was still in effect.
In Howard v. Blalock Elec. Service, Inc., 742 F.Supp.2d 681, 689-90
14

(W.D.Pa. 2010), the court explained:
Title VII’s anti-discrimination provision provides that it is an
“unlawful employment practice” for an employer “to discriminate
against any individual with respect to his [or her] compensation,
terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin ....” 42
U.S.C. §§2000e–2(a)(1). In Meritor Savings Bank, FSB v. Vinson,
477 U.S. 57, 63–69, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), the
United States Supreme Court recognized that an employer
discriminates against an employee because of his or her sex
when it engages in sex-based harassment that is sufficiently
“severe or pervasive” to alter the “terms, conditions, or privileges”
of his or her employment.
Section 2000e-2(m) of Title VII (42 U.S.C.) provides, in pertinent part,
that “an unlawful employment practice is established when the complaining
party demonstrates that race, color, religion, sex, or national origin was a
motivating factor for any employment practice, even though other factors also
motivated the practice.” Title VII “prohibits employers from discriminating
against individuals on the basis of their race, color, religion, sex, or national
origin.” Burton v. Teleflex, Inc., 707 F.3d 417, 426 n. 7 (3d Cir. 2013) (citing
42 U.S.C. §20002-2(a)(2)).
In Jones v. SEPTA, 796 F.3d 323, 327 (3d Cir. 2015), the Third Circuit
stated:
To state a prima facie case of gender discrimination [under Title
VII], [plaintiff] [is] required to show that (1) she is a member of a
protected class; (2) she was qualified for her position; (3) [she
suffered] an adverse employment action; and (4) the
circumstances of the [adverse employment action] give rise to an
inference of discrimination.

15

See also Page v. Trustees of Univ. of Pennsylvania, 222 Fed. Appx. 144, 145
(3d Cir. 2007); Jones v. Sch. Dist. of Philadelphia, 198 F.3d 403, 410 (3d
Cir.1999).
The Court in Burlington v. News Corp., 759 F.Supp. 2d at 592-593
(E.D.Pa. 2010), stated:
Although showing that similarly situated coworkers were treated
more favorably than the plaintiff is one method of satisfying the
final element of a prima facie case of discrimination, it is not the
only one. The Third Circuit has explained that although some
circuits have required plaintiffs to make such a showing in
discrimination cases, “that is not the current law in this or the
majority of the circuits.” Sarullo, 352 F.3d at 798 n. 7 (citations
omitted). Indeed, the Third Circuit has counseled in Sarullo and
elsewhere that the prima facie case is intended to be a flexible
standard. See id. at 797–98 (“[T]he prima facie test remains
flexible and must be tailored to fit the specific context in which it
is applied.” (citing Geraci v. Moody–Tottrup, Int'l, Inc., 82 F.3d
578, 581 (3d Cir. 1996))); see also Wishkin v. Potter, 476 F.3d
180, 185 (3d Cir. 2007) (the prima facie test must be “tailored to
fit the specific context in which it is applied” (quoting Sarullo, 352
F.3d at 797–98) (internal quotation marks omitted)); Weldon v.
Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990) (“The framework set
forth in McDonnell Douglas, which begins with proof of a prima
facie case, was ‘never intended to be rigid, mechanized, or
ritualistic.’ ” (quoting Furnco Constr. Corp. v. Waters, 438 U.S.
567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978))). The Third
Circuit has stated that to establish a prima facie case, it is
sufficient for a plaintiff to adduce evidence that “establishes a
causal nexus between the harm suffered and the plaintiff’s
membership in a protected class, from which a juror could infer,
in light of common experience, that the defendant acted with
discriminatory intent.” Anderson v. Wachovia Mortg. Corp., 621
F.3d 261, 275 (3d Cir. 2010) (discussing prima facie case in
§1981 context); Sarullo, 352 F.3d at 798 (plaintiff “must establish
some causal nexus between his membership in a protected class”
16

and the adverse employment decision to establish a prima facie
case of discrimination in Title VII case).
Also, “the burden to establish a prima facie case is not an onerous one.”
Young v. St. James Management, LLC, 749 F.Supp. 2d 281, 288 (E.D. Pa.
2010). The elements are dependent on the facts of the specific case. Id.
(citation omitted). The plaintiff’s burden of proof is a preponderance of the
evidence standard. Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d
1061 (3d Cir. 1996).
In Count I, plaintiff alleges that “Defendants[] Steele and Pawlik
engaged in the deceptive tactic of citing a nepotism policy purportedly
embraced by [ELSD] to discourage and ultimately preclude [her] from
applying for the paid position of assistant girls basketball coach.” (Doc. 1 at
7). Plaintiff avers that “but for her gender, she would have been hired to serve
in the position of a paid assistant girls basketball coach at [ELSD].” (Id. at 8).
She also alleges that males who were related to the subsequent head coach,
Weaver, and who applied for assistant coach positions, were hired by ELSD
despite the nepotism policy. Further, plaintiff has alleged that before the
tenure of her father, Ed Rogers, as head girls basketball coach, ELSD
employed fathers and sons in the various capacities as head and assistant
girls basketball coaches. However, plaintiff admits in her complaint, (Doc. 1
at ¶ 25), that “[she] did not apply for the position of paid assistant basketball
17

coach.”
The court is constrained to find that plaintiff has not plausibly stated a
prima facie case regarding her Title VII sex discrimination claim against ELSD
because she did not actually apply for the assistant coach position. Thus, she
has failed to allege a causal nexus between her gender and an adverse
employment action based on discriminatory intent by ELSD. In order to state
a cognizable gender discrimination claim under Title VII , plaintiff must show
that she suffered an adverse employment action. The Third Circuit has
defined “an adverse employment action” with respect to a Title VII claim as
“an action by an employer that is serious and tangible enough to alter an
employee’s compensation, terms, conditions, or privileges of employment.”
Storey v. Burns Intern. Security Services, 390 F.3d 760, 764 (3d Cir. 2004).
Thus, “[a]n adverse employment action may be a discharge or a failure to
hire, or any action that alters an employee’s compensation, terms, conditions,
or privileges of employment.” Robinson v. City of Pittsburgh, 120 F.3d 1286,
1300 (3d Cir. 1997). There is simply no failure to hire in this case since
plaintiff chose not to apply for the assistant coach position and chose not to
go through with the hiring process. See Hughes v. Xerox Corp., 37 F.Supp.3d
629, 642-43 (W.D.N.Y. 2014) (“[W]hile a plaintiff who has applied for a
position and been rejected has typically suffered an adverse employment

18

action, ‘[m]erely expressing an interest in a position is insufficient to support
a failure to promote claim [under Title VII].” (citations omitted).
In Taylor v. City of New York, 207 F.Supp. 3d 293, 303 (S.D.N.Y. 2016),
the court held that “to make a prima facie showing of failure to promote or hire
under Title VII [ ], a plaintiff must establish that: ‘(1) she is a member of a
protected class; (2) she applied and was qualified for a job for which the
employer was seeking applicants; (3) she was rejected for the position; and
(4) the position remained open and the employer continued to seek applicants
having the plaintiff's qualifications.’” (emphasis added) (citing Aulicino v. New
York City Dep’t of Homeless Servs., 580 F.3d 73, 80 (2d Cir. 2009)).
Unfortunately, plaintiff Rogers cannot establish that she was rejected for the
assistant coach position since she did not apply for it.
Moreover, in Carroll v. Lackawanna County, 2015 WL 5512703, *5
(M.D.Pa. Sept. 16, 2015), the court stated that “[g]ender discrimination claims
brought under Title VII, the PHRA, and the Equal Protection Clause are
governed by the McDonnell Douglas burden-shifting framework.” (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973);
Stewart v. Rutgers, 120 F.3d 426, 432 (3d Cir.1997) (applying the McDonnell
Douglas framework to analyze discrimination claims under the Equal
Protection Clause)). The court in Carroll, id., stated that “[u]nder the

19

McDonnell Douglas framework, a plaintiff must first establish a prima facie
case of employment gender discrimination [by showing that]: (1) she is within
a protected class, (2) she was qualified for the position, (3) she suffered an
adverse employment action, and (4) the position remained open and was
ultimately filled by someone outside the protected class, or a similarly situated
individual outside the plaintiff's protected class was treated more favorably.”
(citations omitted). Also, “[t]he determination of whether a prima facie case
has been made [regarding gender discrimination claims brought under Title
VII and the Equal Protection Clause] is a legal one for the court to decide.” Id.
(citing Pivirotto v. Innovative Sys., 191 F.3d 344, 347 n. 1 (3d Cir. 1999)).
Thus, similar to a failure to promote or hire claim in which “a plaintiff
must allege that she applied for a specific position or positions and was
rejected therefrom”, Hughes 37 F.Supp.3d at 643 (emphasis added), the court
finds, insofar as plaintiff Rogers asserts a failure to hire claim under Title VII,
that she must allege she applied for the coach position in order to rise to the
level of a plausible adverse employment action. Otherwise, any prospective
job applicant who simply thought about applying for a position but did not
actually apply for it based on a belief that they would be discriminated against
if they did apply, would be able to assert a claim under Title VII. In short, since
plaintiff Rogers did not apply for the coaching position, she cannot establish

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that ELSD refused to hire her based on discrimination due to her gender.
As such, plaintiff failed to sufficiently link any adverse employment
action to her alleged gender discrimination. Therefore, she has failed to allege
facts to show that ELSD discriminated against her because she is a member
of a protected class.
Plaintiff also alleges Steele and Pawlik, as individual employees of
ELSD, unlawfully discriminated against her based on her gender. However,
in Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173, 183-184 (3d Cir.
1997), the Third Circuit held that Congress did not intend to hold individual
employees liable under Title VII. See also Solomon v. Caritas, 2016 WL
4493193, *4 (E.D.Pa. Aug. 26, 2016) (“It is well settled that individual
employees cannot be held liable under either Title VII or the ADEA.”) (citing
Lee v. Univ. of Penn., 321 F.3d 403, 408 n.3 (3d Cir. 2003); Sheridan, 100
F.3d at 1078 (“Congress did not intend to hold individual employees liable
under Title VII.”); Ugorji v. New Jersey Envtl. Infrastructure Tr., 529 Fed.Appx.
145, 150 n.2 (3d Cir. 2013)).
Therefore, plaintiff’s gender discrimination claim under Title VII, Count
I, against ELSD will be DISMISSED WITH PREJUDICE. Plaintiff’s gender
discrimination claim under Title VII, Count I, against Steele and Pawlik will
also be DISMISSED WITH PREJUDICE.

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4. Equal Protection Claim Under 14th Amendment
Defendants move to dismiss plaintiff’s 14th Amendment equal protection
claim under §1983, Count II. Specifically, plaintiff alleges that similarly
situated persons were treated differently by all three defendants. Plaintiff
alleges that defendants discriminated against her “by discouraging her
application for the position of paid assistant coach by citing [ELSD’s] nepotism
policy” and “[b]y comparison, [ELSD] chose not to apply its nepotism policy
to discourage the application of similarly situated male applicants.” (Doc. 1 at
11). Thus, plaintiff claims that all three defendants violated her 14th
Amendment rights.
Plaintiff’s equal protection claim is brought against the three defendants
under §1983. As mentioned, the school district and school officials are state
actors for purpose of §1983. See Kline, 454 F.Supp.2d at 262. Equal
protection claims typically concern governmental classifications that “affect
some groups differently than others.” Engquist v. Oregon Dept. Of Ag., 553
U.S. 591, 601 (2008) (citing McGowan v. Maryland, 366 U.S. 420, 425
(1961)).
It is well-settled that a litigant, in order to establish a viable equal
protection claim, must show an intentional or purposeful discrimination.
Snowden v. Hughes, 321 U.S. 1, 8 (1944); Wilson v. Schillinger, 761 F.2d

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921, 929 (3d Cir. 1985), cert. denied, 475 U.S. 1096 (1986); E & T Realty v.
Strickland, 830 F.2d 1107, 1113-14 (11th Cir. 1987), cert. denied, 485 U.S.
961 (1988); see also Bierley v. Grolumond, 174 Fed.Appx. 673, 676 (3d Cir.
2006) (“To bring a successful equal protection claim under §1983, a plaintiff
must prove the existence of purposeful discrimination, and demonstrate that
he was treated differently from individuals similarly situated.”). This “state of
mind” requirement applies equally to claims involving (1) discrimination on the
basis of race, religion, gender, alienage or national origin, (2) the violation of
fundamental rights and (3) classifications based on social or economic
factors. See, e.g., Britton v. City of Erie, 933 F. Supp. 1261, 1266 (W.D. Pa.
1995), aff’d, 100 F.3d 946 (3d Cir. 1996); Adams v. McAllister, 798 F. Supp.
242, 245 (M.D. Pa.), aff’d, 972 F.2d 1330 (3d Cir. 1992).
Additionally, plaintiff’s equal protection claim under §1983 against
defendant ELSD is based on Monell v. Department of Social Servs., 436 U.S.
658, 691, 98 S.Ct. 2018 (1978). A municipality, including a school district, is
a “person” for purposes of §1983. See Bd. of the County Comm’rs of Bryan
County, Oklahoma v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382 (1997) (citing
Monell, supra)); Damiano v. Scranton School District, 135 F.Supp.3d 255,
266-67 (M.D.Pa. 2015); McGreevy v. Stroup, 413 F.3d 359, 367-69 (3d Cir.
2005) (school district is subject to liability in a §1983 action under Monell).

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However, a municipality cannot be held liable under §1983 based on
respondeat superior. Id. A municipality is not liable under §1983 only for
employing someone who violates a person’s civil rights. On the contrary, a
municipality that does not directly violate a person’s civil rights is liable only
where it has established a policy or custom that led to the constitutional
violation. Id. The plaintiff bears the burden of identifying the policy or custom.
Id. This rule ensures that a municipality will only be liable where it is the
“moving force” behind the plaintiff's injury. Id. Plaintiff bases her equal
protection claim under §1983 against defendant ELSD on its nepotism policy
which she alleges was unequally enforced against her due to her gender but
not enforced against similarly situated males.
Plaintiff is raising her equal protection claim under the traditional theory
which protects a plaintiff from intentional discriminatory treatment based on
membership in a protected class, such as gender or race. See Oliveira v.
Twp. of Irvington, 41 Fed.Appx. 555, 559 (3d Cir. 2005). Further, “[c]ourts
within the Third Circuit apply the same analysis to gender discrimination
claims under Title VII as gender discrimination claims under the PHRA and
equal protection claims brought under section 1983.” Carroll, 2015 WL
5512703 *4 (citations omitted). Thus, plaintiff must establish prima facie case
of employment discrimination under the McDonnell Douglas framework

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specified above. Id. at *5.
The court finds that plaintiff has not established a prima face case of
gender discrimination under the Equal Protection Clause since, as discussed
above, she fails to state that she suffered an adverse employment action as
required. See id.. As mentioned, plaintiff did not actually apply for the
assistant coach position, and unfortunately the court, is compelled to find that
this is fatal to her equal protection claim since she simply cannot establish all
of the necessary elements of an employment discrimination claim under Title
VII and the Equal Protection Clause based on her gender. As such, plaintiff’s
equal protection claim cannot proceed against any of the defendants.
Thus, plaintiff’s equal protection claim, Count II, against ELSD, and
Steele and Pawlik, in their personal capacity, will be DISMISSED WITH
PREJUDICE.

5. Qualified and PSTCA Immunity
Defendants argue that plaintiff's complaint fails to state a claim of
violation of clearly established constitutional or statutory law. Thus, they
contend that Pawlik and Steele are entitled to qualified immunity as to Count
III in which plaintiff seeks to hold them personally liable.
Since the court has found that plaintiff has failed to state a cognizable

25

equal protection claim under §1983 against Pawlik and Steele, it need not
address whether these two individual defendants are entitled to qualified
immunity. Thus, defendants’ motion to dismiss, based on qualified immunity,
is deemed MOOT.
Similarly, defendants argue that Pawlik and Steele are entitled to
immunity from plaintiff’s claims pursuant to the Political Subdivision Tort
Claims Act, (“PSTCA”), 42 Pa.C.S.A. §§ 8541, et seq. (Doc. 15 at 8). In light
of the foregoing, the motion to dismiss based upon the PSTCA is also
deemed MOOT2.

IV.

CONCLUSION
Despite the court’s concerns about the serious allegations here, the

plaintiff’s failure to actually take steps to apply for the position leaves the court

2

The court notes, however, that the PSTCA appears inapplicable in this
case since it applies to state law tort claims and plaintiff did not raise any such
claims in her complaint. See K.A. ex rel. J.A. v. Abington Heights School Dist.,
(M.D.Pa. 2014) 28 F.Supp.3d 356, 375-77 (court found that school officials
were immune from liability with respect to plaintiff’s state law tort claim of
IIED); Goss-Kozic v. Ross Twp., 2016 WL 4502445 (M.D.Pa. Aug. 29, 2016)
(this court found that the PSTCA statute bars state law claims for wrongful
death and survivorship against Township and its officials); Kobrick v. Stevens,
2014 WL 4914186 (M.D.Pa. Sept. 30, 2014) (this court held that the general
grant of immunity under the PSTCA shields the School District and its officials
acting within the scope of their employment from liability for the plaintiff’s state
law tort claims).
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with little alternative but to GRANT IN ITS ENTIRETY the defendants’ motion
to dismiss, (Doc. 9), plaintiff’s complaint, (Doc. 1), as detailed above. An
appropriate order shall follow.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Date: November 6, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2017 MEMORANDA\17-0696-01.wpd

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