HENDRICKS v. PITTSBURGH PUBLIC SCHOOLS

Filing 34

MEMORANDUM OPINION indicating that on Plaintiff's racial discrimination claim, the Court denies Defendant's motion for summary judgment. The Court rules in favor of Defendant and against Plaintiff on the hostile work environment and retaliation claims. For the reasons stated more fully within, the Defendant's Motion for Summary Judgment 22 is hereby granted, in part, and denied, in part. Appropriate Orders follow. Signed by Judge Nora Barry Fischer on 9/16/14. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
)
)
)
)
)
)
)
)
)
)
)

PAMELA F. HENDRICKS,
Plaintiff,
v.
PITTSBURGH PUBLIC SCHOOLS,
Pittsburgh Faison Primary Campus,
Defendant.
.

Civil Action No. 13-491
Judge Nora Barry Fischer

MEMORANDUM OPINION
NORA BARRY FISCHER, District Judge.
I. Introduction
This is an employment discrimination action brought by Pamela Hendricks (“Plaintiff”)
against her former employer, Pittsburgh Public Schools (“PPS”), Pittsburgh Faison Primary
Campus (“Defendant”). Plaintiff asserts that Defendant discriminated against her based upon her
race, subjected her to a hostile work environment, and retaliated against her in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (“Title VII”) and the
Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. (“PHRA”). Presently pending before
the Court is the Defendant’s Motion for Summary Judgment pursuant to Federal Rule of Civil
Procedure 56. (Docket No. 22). Upon consideration of the parties’ submissions and for the
reasons set forth below, the Defendant’s Motion will be granted, in part, and denied, in part.
II. Brief Statement of Material Facts1
1

Because the Court writes primarily for the parties, who are familiar with the facts, the Court will not exhaustively
discuss same here. The facts herein are the undisputed material facts, as set forth in the parties’ respective Concise
Statements of Material Facts (“CSMF”) and the Plaintiff’s Reply to Defendant’s CSMF. (Docket Nos. 24, 29, 33).

1

A. Plaintiff’s Employment at PPS
Since 2001, Plaintiff was employed by PPS as a long-term substitute and special
education teacher. (Docket Nos. 24, 33 at ¶¶ 16, 17, 19). During the relevant time period at
Pittsburgh Faison Primary Campus (“Faison”), Plaintiff’s supervisors were Leah-Rae Bivins
(“Bivins”) and Jo Ann Hoover (“Hoover”). (Id. at ¶ 20). For the 2009-2010 school year, Bivins
was the Vice Principal and Yvonna K. Smith (“Smith”) was the Principal. (Id.). The following
year, Bivins became the Principal, and Hoover was the Vice Principal. (Id. at ¶¶ 23–24). Dealyn
Allen (“Allen”), as the special education supervisor, was also Plaintiff’s supervisor. (Id. at ¶28).
From September through December 2009, Plaintiff’s supervisors conducted observations
of her in her classroom. (Id. at ¶ 34). Plaintiff was “written up” for not having materials available
during an unannounced observation, even though her materials were nearby in her file cabinet.
(Id. at ¶ 47). On December 16, 2009, she was placed on an Employee Improvement Plan (“EIP”).
Five months later, Plaintiff received her first unsatisfactory rating. (Id. at ¶ 39). She filed a
grievance in June 2010, and by letter dated February 4, 2011, the grievance was denied. (Id. at ¶¶
43, 44).
After supervision by Bivins, Allen and Hoover during September and October of the
following school year, Hoover and Bivins decided to place Plaintiff on a second EIP. (Id. at ¶¶
50, 60). Following the implementation of the second EIP, Bivins, Hoover, and Allen performed
informal and formal observations of Plaintiff. (Id. at ¶ 53). Bivins recommended that Plaintiff
receive a second unsatisfactory rating to Dr. Jeannine French (“Dr. French”), who relayed the
recommendation to the superintendent, Dr. Linda Lane (“Lane”). (Id. at ¶ 58). According to
Bivins, this recommendation was based on the formal and informal observations and input from
each of the observers. (Id. at ¶ 59). After receiving two unsatisfactory ratings, Plaintiff was
2

terminated on June 21, 2011, by way of being placed on “suspension without pay” and
subsequently not offered another job at PPS. (Docket Nos. 1, 5 at ¶ 30).
In support of her claims, Plaintiff contends that Bivins, as Plaintiff’s supervisor, made
racially discriminatory comments to her, which created a hostile work environment. For
example, she claims that during a walk-through on October 8, 2010, Bivins told Plaintiff that she
needed “core authority” and “to look in the mirror,” and that “some people aren’t made for the
hood.”2 (Docket Nos. 24, 33 at ¶¶ 73, 76). Plaintiff argues that other teachers heard these
statements, however Defendant denies same. (Id. at ¶¶ 106, 108, 113). Plaintiff also avers,
among other things, that Bivins degraded her in front of her peers, said that white teachers were
at a disadvantage teaching in the hood, and believed that black teachers are better equipped than
white teachers to teach black students. (Id. at ¶¶ 88, 99, 103); (Docket No. 29 at 3, 5). Plaintiff
claims that she complained about these comments and the way she was treated, and that Bivins
and Hoover were aware of these complaints prior to her termination. (Id. at ¶¶ 63, 81, 94, 95, 97,
98). Defendant denies knowledge of any of Plaintiff’s complaints. (Id. at ¶ 62). Plaintiff believes
that her second unsatisfactory review was based on Defendant’s discriminatory conduct rather
than her teaching abilities. Likewise, Defendant denies same. (Docket No. 29 at 3). At the time
of Plaintiff’s termination, Bivins and Hoover maintain that they were unaware of Plaintiff’s

2

Plaintiff’s notes refer to an alleged statement that Bivins made about getting back to “Homewood,” however
Plaintiff now maintains that the reference was to the “hood.” (Docket Nos. 24, 33 at ¶ 79). Plaintiff kept notes
during her employment, which she provided to William Hileman (“Hileman”), who then forwarded them via email
to Human Resources Director Susan Dobies-Sinicki (“Sinicki”) on September 20, 2013. (Id. at ¶ 121). Plaintiff kept
a notebook during the 2010-2011 school year, because she knew she wouldn’t remember everything and that she
would get an unsatisfactory from day one. (Id. at ¶¶ 126–127). She took notes within a few hours of what she was
documenting. (Id. at ¶ 129). According to Hendricks, in this notebook, several entries from 2010 are mistakenly
dated 2011 because she went back and added the year to the dates later. (Id. at ¶ 132). Plaintiff lost the notes that she
had given to Hileman because of a computer virus, so she produced four pages of typed notes in an attempt to
recreate the originals. (Id. at ¶¶ 121–125).

3

complaints or her allegations of discrimination. (Id. at ¶¶ 61, 63). Specifically, Bivins avers that
she did not know of any such allegations until November 2013. (Id. at ¶ 62).
Further, Plaintiff claims that Faison targeted teachers who were at the top end of the pay
range, and that she and another special education teacher, Thestes Harper (“Harper”) were
targeted because they were first-time special education teachers. (Id. at ¶¶ 70–71, 142). Harper,
an African-American, likewise received two consecutive unsatisfactory ratings and was placed
on an Employee Improvement Plan (“EIP”) at the same time as Plaintiff.3 (Id. at ¶¶ 36, 142).
Defendant plainly disputes this contention. Defendant maintains that none of the discriminatory
conduct, incidents, and statements alleged by Plaintiff occurred.
B. Plaintiff’s Administrative Filings
Plaintiff denies knowledge of Defendant’s Equal Employment Opportunity policy and
complaint procedure and did not file a complaint with Human Resources at PPS. (Id. at ¶¶ 13,
14). On March 31, 2011, she completed an Equal Employment Opportunity Commission
(“EEOC”) intake questionnaire (“questionnaire”) alleging race as the basis for her claim of
employment discrimination. (Id. at ¶¶ 1–2). On April 21, 2011, following his review of the
questionnaire, her attorney submitted the signed EEOC charge (“the charge”), which alleged
discrimination based on race. (Id. at ¶ 3–5). On October 11, 2011, Plaintiff caused a Notice of
Charge of Discrimination with the EEOC to be filed, which alleged retaliation for filing the
initial charge. (Id. at ¶ 7).
On October 26, 2011, Defendant was advised that the Pennsylvania Human Relations
Commission (“PHRC”) received a copy of the charge and that it waived the opportunity to
investigate the complaint back to the EEOC and would take no further action on the filing.
3

Harper also filed a grievance, which was denied. (Id. at ¶ 141).

4

(Docket No. 5 at ¶ 5). According to the Declaration of Assistant Director of Human Resources
Susan Dobies-Sinicki (“Sinicki”), on August 13, 2013, Defendant first became aware that
Plaintiff had contacted the PFT regarding her allegations of the following: that she had “been
subjected to unwelcome racial harassment by the principal;” that she was “being subjected to
treatment different than [her] black counterparts;” and that “the principal has made racially
discriminatory comments.” (Docket Nos. 24, 33 at ¶ 9); (Docket No. 25-4 at 1). On August 30,
2013, the EEOC issued a Dismissal and Notice of Rights as to the charge. (Docket Nos. 24, 33 at
¶ 15).
III. Procedural History
On April 3, 2013, Plaintiff initiated this action by filing the Complaint alleging a claim
under the PHRA and Title VII of race discrimination, hostile work environment due to race, and
retaliation for voicing complaints. (Docket No. 1 at ¶ 32-33, 36). On April 16, 2014, Defendant
moved for summary judgment, to which Plaintiff responded on May 30, 2014. (Docket Nos. 22,
23, 28). After granting Plaintiff’s Consented Motion to File Amended Concise Statement of
Material Facts on June 6, 2014, Plaintiff filed same on June 20, 2014. (Docket Nos. 32, 33). The
parties did not submit any replies or sur-replies by the Court’s deadlines of July 3, 2014 or July
10, 2014, and neither requested oral argument by July 17, 2014. Hence, this matter is ripe for
disposition.
IV. Standard of Review
“The court shall grant summary judgment 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). Under Rule 56, a district court must enter summary judgment against a party
“who fails to make a showing sufficient to establish the existence of an element essential to that
5

party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “An issue is genuine only if there is a sufficient evidentiary
basis on which a reasonable jury could find for the non-moving party, and a factual dispute is
material only if it might affect the outcome of the suit under governing law.” In re G-I Holdings,
Inc., 755 F.3d 195, 201 (3d Cir. 2014) (quoting Kaucher v. Cnty. of Bucks, 455 F.3d 418, 423 (3d
Cir. 2006) and citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
“[A] party seeking summary judgment always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp., 477 U.S. at 323; see also Budhun v. Reading Hosp. and Med. Ctr., — F.3d —, 2014 WL
4211116, at *4 (3d Cir. Aug. 27, 2014). When a non-moving party would have the burden of
proof at trial, the moving party has no burden to negate the opponent’s claim. Id. The moving
party need not produce any evidence showing the absence of a genuine issue of material fact. Id.
at 325. “Instead, . . . the burden on the moving party may be discharged by ‘showing’—that is,
pointing out to the district court—that there is an absence of evidence to support the nonmoving
party’s case.” Id. After the moving party has satisfied this low burden, the nonmoving party must
provide facts showing that there is a genuine issue for trial to avoid summary judgment. Id. at
324. “Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds
of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.” Id.
In considering these evidentiary materials, “courts are required to view the facts and draw
reasonable inferences in the light most favorable to the party opposing the summary judgment
motion.” Scott v. Harris, 550 U.S. 372, 378 (2007) (internal quotation marks and alterations
6

omitted). “Credibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge, whether he is ruling
on a motion for summary judgment or for a directed verdict.” Anderson, 477 U.S. at 255. To
that end, the Third Circuit has noted that “depositions are ‘one of the best forms of evidence for
supporting or opposing a summary-judgment motion,’ and that affidavits, not being subject to
cross-examination, ‘are likely to be scrutinized carefully by the court to evaluate their probative
value.’” In re CitX Corp., Inc., 448 F.3d 672, 679 (3d Cir. 2006) (quoting 10A CHARLES ALAN
WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE § 2722,
at 373, 379 (3d ed. 1998)). Even inconsistencies within a Plaintiff’s deposition may “cast[] doubt
on the plaintiff’s story” and “are matters ultimately useful in determining the plaintiff’s
credibility,” but they “are not proper considerations on a motion for summary judgment.”
Chatman v. City of Johnstown, PA, 131 F. App’x 18, 20 (3d Cir. 2005). “In considering a motion
for summary judgment, a district court may not make credibility determinations or engage in any
weighing of the evidence; instead, the non-moving party’s evidence ‘is to be believed and all
justifiable inferences are to be drawn in his favor.’” Marino v. Indus. Crating Co., 358 F.3d 241,
247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
V. Discussion
Defendant argues that there are no genuine issues of material fact and that it is entitled to
summary judgment as to Plaintiff’s race discrimination, hostile work environment, and
retaliation claims under Title VII and the PHRA. (Docket No. 23). Plaintiff maintains that she
has presented sufficient evidence to defeat Defendant’s Motion. (Docket No. 28). The Court will
address the parties’ arguments, in turn.
Title VII and the PHRA prohibit discrimination on the basis of race. In the absence of
7

direct evidence of discrimination, a claim for discrimination under Title VII is analyzed pursuant
to the familiar burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–04 (1973). Under the McDonnell Douglas burden shifting analysis, to make a
prima facie showing of race discrimination, “a plaintiff must demonstrate that: (1) he or she
belongs to a protected class; (2) he or she was qualified for the position; (3) he or she was subject
to an adverse employment action despite being qualified; and (4) the adverse employment action
occurred under circumstances that give rise to an inference of discrimination.” Coleman v.
Pennsylvania State Police, 561 F. App'x 138, 146 (3d Cir. 2014) (citing McDonnell Dougla., 411
U.S. at 802–03).
The question of whether a plaintiff has established her prima facie case is a question of
law to be determined by the court. Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003).
If the plaintiff successfully establishes a prima facie case, the burden then shifts to the employer
to articulate some legitimate nondiscriminatory reason for the adverse employment action. Id.
(citing McDonnell Douglas, 411 U.S. at 802). Once the employer does so, the burden then shifts
back to the plaintiff to prove by a preponderance of the evidence that the legitimate reasons
proffered by the employer were merely a pretext for discrimination, and not the true motivation
for the adverse employment action. Id. (citing Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 252–53, (1981)); see also Boyd v. Citizens Bank of Pennsylvania, Inc., 2014 WL 2154902,
at *17 (W.D. Pa. May 22, 2014).
A. Race Discrimination Disparate Treatment Claim
The Third Circuit has adopted a modified McDonnell Douglas standard in reverse
discrimination cases. Iadimarco v. Runyon, 190 F.3d 151, 163 (3d Cir. 1999). To establish a
prima face case of reverse discrimination, the plaintiff must present “sufficient evidence to allow
8

a reasonable fact finder to conclude (given the totality of the circumstances) that the defendant
treated plaintiff less favorably than others because of [his] race, color, religion, sex, or national
origin.” Id. (internal quotations and citations omitted). In applying the modified McDonnellDouglas burden shifting framework here, the Court finds that Plaintiff clearly has presented
more than enough evidence to move this case from “one of mere speculation to one in which a
reasonable factfinder could find for her on her claims.” LaCava v. Pittsburgh Public Schools,
2014 WL 3748201, at *3 (W.D.Pa. Jul. 29, 2014). Despite Defendant’s contention to the
contrary, in viewing the facts in the light most favorable to Plaintiff, this Court finds that
Plaintiff has “point[ed] 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.” Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006) (quoting
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
1. Prima Facie Case
With respect to her prima facie case, Plaintiff’s burden is easily met by the evidence she
has presented through her own deposition testimony and sworn affidavit, which the Court must
construe in the light most favorable to the Plaintiff. In re CitX Corp., Inc., 448 F.3d at 679
(quoting WRIGHT, MILLER & KANE, at 373, 379); (Docket Nos. 30-2, 30-3). In this regard:
(1) she is Caucasian and was treated less favorably than African Americans, because she claims
that she (2) she was qualified for the position that she formerly held at Faison; (3) she was
suspended without pay and not offered another job; and (4) African American teachers were not
subject to the same treatment that she was. (Id.). Indeed, the evidence in the record demonstrates
that, as a Caucasian teacher, she was subjected to conduct and statements that were solely based
9

on her race.4 Plaintiff also has established an inference of discrimination because: she has
introduced evidence that she repeatedly was subjected to racially offensive comments and
conduct by her direct supervisor, Bivins; she complained about same to another supervisor,
Hoover; she was subject to two unsatisfactory ratings and EIPs; she was terminated without pay;
and she was not subsequently offered another job.
2. Legitimate Nondiscriminatory Reason
Second, Defendant has met its burden to provide a legitimate, nondiscriminatory reason
for the decision to eliminate Plaintiff’s position. The evidence before the Court is sufficient to
demonstrate that Plaintiff was terminated as a result of her two unsatisfactory ratings, and the
same is clearly a legitimate, nondiscriminatory reason for such action. See, e.g., Vogel v.
Pittsburgh Public Sch. Dist., 2014 WL 4187151, at *26 (W.D. Pa. Aug. 21, 2014) (finding the
plaintiff’s unsatisfactory rating to be a result of poor performance in holding the defendant met
its burden to articulate a legitimate, nondiscriminatory reason for the adverse employment
action). Accordingly, the burden shifts back to Plaintiff to demonstrate that this reason was
merely a pretext for discrimination. See Burton v. Teleflex Inc., 707 F.3d 417, 425-26 (3d Cir.
2013).
3. Pretext
Third, the facts presented by Plaintiff are sufficient to establish pretext. See id. The facts
of record demonstrate that Bivins, her direct supervisor, recommended that Plaintiff receive the
second unsatisfactory rating to Dr. French, who relayed the recommendation to the
superintendent, Dr. Lane. (Docket Nos. 24, 33 at ¶ 58). Viewing the evidence most favorable to
4

The record reflects that Bivens said, among other things, that blacks keep a tight rein on their children and that
“some people aren’t made for the ‘hood.’” (See Docket Nos. 24, 33 at ¶¶ 87, 96).

10

Plaintiff, see Watson v. Abington Township, 478 F.3d 144, 147 (3d. Cir. 2007), there is no
evidence in the record from which the Court could conclude as a matter of law that Plaintiff’s
direct supervisor was not involved in the decision to give Plaintiff both unsatisfactory ratings and
to ultimately terminate her. Indeed, it is more than reasonable to infer from the facts of record
that Bivins, as the direct supervisor of Plaintiff and a member of the group that conducted
observations of Plaintiff’s classroom for two consecutive school years, must have been directly
involved in grading Plaintiff’s skills. See, e.g., L.T. Associates, LLC v. Sussex Cnty. Council,
2013 WL 3998462, at *4 (D. Del. Aug. 5, 2013) (citing United States v. Diebold, Inc., 369 U.S.
654, 655 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985)). Further, it is undisputed
that, based on these observations, Plaintiff was placed on the EIPs and given the unsatisfactory
ratings. Plaintiff also has presented evidence that she and African-American employees who
engaged in the same or similar conduct were not subject to the same discipline. Further, Plaintiff
has presented sufficient evidence, when viewed in the light most favorable to her, to demonstrate
that her job performance was given two “unsatisfactory” ratings based on her race as opposed to
her job performance. As such, Plaintiff’s evidence that she was treated discriminatorily by Bivins
suffices to raise an inference that Defendant’s employment action was motivated by
discriminatory reasons. See Fuentes, 32 F.3d at 761-64 (“the plaintiff must point to some
evidence, direct or circumstantial, from which a fact finder 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.”).
4. Conclusion

11

In consideration of the material facts in the light most favorable to Plaintiff, the Court
finds that Plaintiff has sufficiently supported both her prima facie case of race discrimination and
her claim that the Defendant’s reason for terminating her decision was pretextual. See Burton,
707 F.3d at 425 (citation omitted). A jury reasonably could find that she has established all of the
elements of her race discrimination claim, and as such, summary judgment is inappropriate.
B. Hostile Work Environment Claim
Defendant claims that Plaintiff has failed to meet her burden to establish the elements of
a claim for hostile work environment. (Docket No. 23 at 10). Plaintiff contends that Defendant’s
objectively adverse racial comments and conduct are sufficient to support her hostile work
environment claim. (Docket No. 28 at 5).
Title VII and PHRA5 both provide that it is unlawful for an employer to discriminate
against an individual with respect to conditions of employment because of her race. 42 U.S.C. §
2000e-2(a); 43 P.S. § 955(a). A hostile work environment is established as a basis for harassment
claims charging discrimination against a protected class. See National R.R. Passenger Co. v.
Morgan, 536 U.S. 101, 115 (2002); Faragher v. Boca Raton, 524 U.S. 775, 786–87 (1998);
Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2001). In order to establish a hostile work

5

The PHRA provides that “[i]t shall be an unlawful discriminatory practice ... [f]or any employer because of the ...
race ... of any individual ... to refuse to hire or employ or contract with, or to bar or to discharge from employment
such individual, or to otherwise discriminate against such individual ... with respect to compensation, hire, tenure,
terms, conditions or privileges of employment or contract.” 43 P.S. § 955(a). “The Pennsylvania courts have held
that hostile work environment claims are cognizable under the PHRA.” Hubbell v. World Kitchen, LLC, 688
F.Supp.2d 401, 419 (W.D.Pa. 2010) (citing Phila. Hous. Auth. v. Am. Fed'n of State, County & Mun. Employees,
956 A.2d 477, 484 (Pa.Commw.Ct. 2008); Raya & Haig Hair Salon v. Pa. Human Relations Comm'n, 915 A.2d
728, 732-733 (Pa.Commw.Ct. 2007); Infinity Broad. Corp. v. Pa. Human Relations Comm’n, 893 A.2d 151, 157-59
(Pa.Commw.Ct. 2006)). Moreover, “[t]he proper analysis under Title VII and the Pennsylvania Human Relations
Act is identical, as Pennsylvania courts have construed the protections of the two acts interchangeably.” Huston, 568
F.3d at 104 n. 2 (3d Cir. 2009) (quoting Weston v. Pennsylvania, 251 F.3d 420, 426 n. 3 (3d Cir.2001) (citations
omitted)); see also Dreshman v. Henry Clay Villa, 733 F. Supp. 2d 597, 611 (W.D. Pa. 2010).

12

environment action under Title VII, a plaintiff must show that: (1) she suffered intentional
discrimination because of her race; (2) the discrimination was pervasive and regular; (3) it
detrimentally affected her; (4) it would have detrimentally affected a reasonable person of the
same protected class in her position; and (5) there is a basis for vicarious liability. McClendon v.
Dougherty, 2011 WL 677481, at *7 (W.D. Pa. Feb. 15, 2011) (citing Andreoli v. Gates, 482 F.3d
641, 643 (3d. Cir. 2007)). In order to be actionable, the harassment must be so severe or
pervasive that it alters the conditions of the victim’s employment and creates an abusive
environment.” Id. at 425-26 (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S 57, 67 (1986)).
Defendant maintains that Plaintiff has failed to adduce sufficient evidence to establish the first,
second or third elements of her hostile work environment claim. The Court will now address
each of these arguments.
1. Intentional Discrimination Based on Race
Defendant contends that Plaintiff has failed to provide any evidence of intentional
discrimination based on race, other than the October 2010 incident, during which Bivins
allegedly made racially insensitive remarks. (Docket No. 23 at 14). Plaintiff rebuts that she was:
written up for the location of her lesson plan; treated inferiorly in front of a Watson Institute
employee; told that, as a white teacher, she had no opportunity for success at a school largely
comprised of black students; treated adversely by Bivins; threatened with her job for
complaining of racial discrimination; and on a non-existent improvement plan. (Docket No. 28 at
5).
In order to establish the first element, Plaintiff need not “demonstrate direct evidence of
her harasser’s motivation for discrimination against her” nor “direct proof that her harasser’s
intent was to create a discriminatory environment.” Abramson v. William Paterson Coll. of New
13

Jersey, 260 F.3d 265, 278 (3d Cir. 2001). Further, discrimination is often difficult to discern
from a factual record and “intent to discriminate can be inferred” from more subtle actions. Id.
(citations omitted).
As indicated above in the discussion of her race discrimination claim, Plaintiff has
produced evidence to raise an inference as to whether or not her placement on two EIPs and
receipt of two unsatisfactory ratings were as a result of her job performance or of Defendant’s
intentional discrimination based on race. Therefore, viewing the record in the light most
favorable to her, Plaintiff has, at a minimum, presented sufficient evidence from which a
reasonable jury could infer race-based discrimination in accord with the first element.
2. Severe and Pervasive Discrimination
Defendants argue that Plaintiff had limited contact with her alleged harasser, Bivins, and
she does not identify incidents that could be construed as a pattern of harassment. (Docket No.
23 at 11-13). Plaintiff contends that Bivins openly treated her with hostility. (Docket No. 28 at
5).
In determining whether a work environment is sufficiently hostile, the Court must
consider the totality of the circumstances, including: “the frequency of the discriminatory
conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it reasonably interferes with an employee’s work performance.” Harris
v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993).
In this Court’s estimation, Plaintiff has not presented sufficient evidence from which a
jury could find that the alleged harassment occurred with enough frequency to deem it severe
and pervasive. Outside of the alleged inferior treatment in front of a Watson Institute employee
and the October 2010 incident, during which Bivins allegedly made comments relative to “the
14

‘hood’” in front of Plaintiff’s colleagues, Plaintiff was unable to set forth any other specific
allegations in support of her contention that she was subjected to a hostile work environment.
Plaintiff’s argument in opposition to Defendant’s motion for summary judgment on this claim
does not point to specific evidence in the record or case law, but rather points to a few, discrete
events or incidents of potentially hostile or discriminatory conduct. Based on the Court’s review
of the record, those comments were made at a frequency that was sporadic, at most, and certainly
could not be considered regular or pervasive.
After viewing these facts in the light most favorable to Plaintiff, and considering the
totality of the circumstances, including the limited number of isolated incidents that allegedly
occurred throughout Plaintiff’s ten years of employment at PPS, the Court finds that the claimed
harassment was not sufficiently severe or pervasive so as to create a hostile working
environment. While the content of the statements were sometimes offensive, “[t]he mere
utterance of an epithet, joke, or inappropriate taunt that may cause offense,” Weston, 251 F.3d at
428, or “‘simple teasing,’ offhand comments, and isolated incidents (unless extremely serious),”
Faragher, 524 U.S. at 788 (quoting Oncale v. Sundower Offshore Services, Inc., 523 U.S. 75, 81
(1998)), are not sufficiently severe or pervasive to be actionable. See King v. City of Phila., 66
F.App’x 300, 305 (3d Cir. 2003) (finding that sporadic incidents where employee was subject to
a racial epithet, physical pushing, and threats to sabotage his work record were not sufficient to
support a finding of hostile work environment); Sherrod v. Phila. Gas Works, 57 F.App’x 68, 7577 (3d Cir. 2003) (alleged incidents, including managers making comments referring to African
Americans that “. . . it must be their culture,” and “I'm going to sit at their desks with a whip,”
were not sufficiently severe and pervasive to establish hostile work environment); Gharzouzi v.

15

Nw. Human Servs. of Pa., 225 F. Supp. 2d 514, 536 (E.D. Pa. 2002) (finding six alleged
incidents over a three month period insufficient as a basis for his hostile environment claim”).
It is the opinion of this Court that a reasonable jury could not find that the harassment
alleged was so severe and pervasive that Plaintiff was subject to a hostile working environment.
Of course, the Court does not condone the alleged conduct, but Title VII is not a general civility
code and only severe and pervasive harassment is actionable. See Oncale, 523 U.S. at 81. In sum,
considering the totality of the circumstances, and viewing the facts in the light most favorable to
her, Plaintiff has not met her burden to present sufficient evidence from which a reasonable jury
could infer that the alleged harassing conduct was so severe and pervasive as to constitute a
hostile work environment.
3. Effect of Harassment on Objectively Reasonable Person
Defendant asserts that, as there is no evidence approaching “severe” or “pervasive”
harassment here, a reasonable person would not have been detrimentally affected by the
challenged conduct. (Docket No. 23 at 13-14); see also Dreshman, 733 F.Supp.2d at 615-16
(employee had not presented sufficient evidence that an objectively reasonable person would be
detrimentally affected by the alleged conduct). (Docket No. 33). The Court agrees with this
assessment.
As the Supreme Court has recognized, “[c]onduct that is not severe or pervasive enough
to create an objectively hostile or abusive work environment-an environment that a reasonable
person would find hostile or abusive-is beyond Title VII’s purview.” Oncale, 523 U.S. at 8
(citing Harris, 510 U.S., at 21 (citing Meritor, 477 U.S., at 67)). The objectively reasonable
requirement is “crucial” and ensures that “ordinary socializing in the workplace,” “teasing” and
“intersexual flirtation” is not mistaken as discrimination that affects the terms and conditions of
16

one’s employment. Id. at 81-2. Finally, the “objective severity of harassment should be judged
from the perspective of a reasonable person in the plaintiff’s position.” Id.
4. Conclusion
Viewing the facts in a light most favorable to Plaintiff, and given the Court’s finding that
the evidence of racial harassment presented is not sufficiently severe or pervasive so as to violate
Title VII (or the PHRA), in this Court’s estimation, a reasonable jury could not conclude that the
alleged harassment would alter the terms and conditions of the employment of a reasonable
person. For the foregoing reasons, Defendants’ motion for summary judgment as to Plaintiff’s
hostile work environment claim based on alleged racial harassment is granted.
C. Retaliation Claim
1. McDonnell Douglas Framework and Exhaustion Argument
Defendant contends that Plaintiff’s retaliation claim should be dismissed for failure to
exhaust administrative remedies and that the scope of Plaintiff’s retaliation claim should be
limited to that which is based on the protected activity of filing with the EEOC (Docket No. 23 at
16-17). Alternatively, Defendant contends that Plaintiff cannot establish a prima facie case of
retaliation, as she presents insufficient evidence to justify an inference of retaliation, there is
insufficient evidence to demonstrate pretext, and there is a missing causal link between the filing
of the charge and the completion of the evaluation and ratings process. (Id. at 18). In response,
Plaintiff argues that the EEOC complaint is sufficient, because she alleged race discrimination
and the Defendant received notice of same in April 2011. (Docket No. 28 at 8). Further, Plaintiff
avers that she complained to Hoover about Bivins’ comments.6 (Id. at 7). Plaintiff argues that
Hoover failed to act on her complaint, which should be construed as additional evidence of
6

While this fact is disputed by Defendant, the Court must consider the facts in the light most favorable to Plaintiff.

17

retaliation. (Id.) Plaintiff contends, “I am also not provided the same ability to succeed as a
classroom teacher as I am not able to use the same disciplinary tactics that a black teacher uses
for fear of being labeled a racist and that Defendants (sic) attitude in this situation was
complacent” and that “black co-workers are not treated as I have been.” (Docket No. 23 at 16).
Separate provisions of Title VII and the PHRA specifically prohibit employers from
retaliating against employees who complain about race-based discrimination. See 42 U.S.C. §
2000e-3(a); 43 P.S. § 955(d). The McDonnell Douglas burden shifting framework is applied to
analyze Plaintiff's retaliation claims under Title VII and the PHRA. See McDonnell Douglas, 411
U.S. at 802–03; Moore v. City of Phila., 461 F.3d 331, 342 (3d Cir. 2006) (applying framework
to a retaliation claim). To establish a prima facie case of retaliation under Title VII and the
PHRA, Plaintiff must prove that: (1) she engaged in protected activity; (2) the employer took a
materially adverse action against her; and, (3) there was a causal connection between the
protected activity and the employer's action. LeBoon v. Lancaster Jewish Comm. Cent. Ass'n,
503 F.3d 217, 231–32 (3d Cir. 2007) (citing Moore, 461 F.3d at 341–42); see Hubbell, 688
F.Supp.2d at 435–37 (discussing the relevant Third Circuit and Pennsylvania precedent and
holding that PHRA retaliation claims are analyzed akin to Title VII retaliation claims); see also
Dreshman v. Henry Clay Villa, 733 F. Supp.2d 597, 617-18 (W.D.Pa. 2010).
Further, under Title VII and the PHRA, claimants are required to exhaust their
administrative remedies before proceeding in federal district court. Williams v. Runyon, 130 F.3d
568, 573 (3d Cir. 1997). To that end, a Title VII or PHRA plaintiff must first file a
discrimination charge with the EEOC, which may issue a “right to sue” letter if it does not
resolve the matter within 180 days. 42 U.S.C. § 2000e–5(e)(1), (f)(1); see, e.g., Burgh v.
Borough Council of Borough of Montrose, 251 F.3d 465, 469 (3d Cir. 2001); Woodson v. Scott
18

Paper Co., 109 F.3d 913, 925 (3d Cir. 1997); Clay v. Advanced Computer Applications, Inc., 559
A.2d 917, 921 (Pa. 1989). The scope of a plaintiff’s federal claim is determined by the “scope of
the EEOC investigation which can reasonably be expected to grow out of the charge of
discrimination.” Tourtellotte v. Eli Lilly & Co., 2013 WL 1628603, at *4 (E.D. Pa. Apr. 16,
2013) (quoting Hicks v. ABT Assoc., Inc., 572 F.2d 960, 966 (3d Cir. 1978)).
Once the Court has found that Plaintiff exhausted her administrative remedies, the Court
must inquire “whether the acts alleged in the subsequent Title VII suit are fairly within the scope
of the prior EEOC complaint, or the investigation arising therefrom.” Antol v. Perry, 82 F.3d
1291, 1295 (3d Cir. 1996) (quoting Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984) (per
curiam)). Moreover:
In determining the scope of the investigation, the court must examine: 1)
whether the disputed claim would have been discovered by the EEOC in the
course of a reasonable investigation; and 2) whether the claim “which would
have been uncovered [was] reasonably within the scope of the charge filed with
the EEOC.

Davis v. Kraft Foods North America, 2006 WL 237512, at *6 (E.D.Pa. Jan. 31, 2006) (quoting
Hicks, 572 F.2d at 967). The Third Circuit defines the parameters of a district court action by the
scope of the EEOC investigation “which can reasonably be expected to grow out of the charge of
discrimination, including new acts which occurred during the pendency of proceedings before
the Commission.” Robinson v. Dalton, 107 F.3d 1018, 1025–26 (3d Cir. 1997) (quoting
Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398–99 (3d Cir. 1976)). In Waiters, the
Plaintiff filed a formal complaint with the EEOC alleging continuing discrimination in retaliation
for having made an earlier informal complaint. 729 F.2d at 235.
Unlike the instant Plaintiff’s, Waiters’ formal complaint charged “retaliation.” Waiters,
729 F.2d at 237. Moreover, the Court notes that Plaintiff filed her racial discrimination charge
19

with the assistance of counsel. (Docket Nos. 24, 33 at ¶¶ 3–4); See Tourtellotte, 2013 WL
1628603 at *5 n.1 (“The Court’s conclusion that Plaintiff has failed to exhaust her administrative
remedies as to her claim for disability discrimination is further supported by the fact that Plaintiff
filed her discrimination charge with the assistance of counsel.”). Plaintiff alleges that she was
retaliated against for “voicing complaints.” (Docket No. 1 at ¶ 33). As Defendant points out, this
allegation was neither advanced before the EEOC, nor was it within the scope of the EEOC
investigation. (Docket No. 23 at 14–15). Specifically, Plaintiff did not notify the EEOC of her
complaints to Hoover, which constitute the alleged protected activity, in neither the EEOC
charge nor the questionnaire. (Docket No. 23 at 16); (Docket Nos. 30-3, 30-4). Plaintiff did
reference the alleged comments made by Bivins in her EEOC questionnaire, however, as
Defendant notes, it is not privy to that document. See, e.g., Barzanty v. Verizon PA, Inc., 361
F.App'x 411, 415 (3d Cir. 2010). The Barzanty court further explained:
Moreover, the Intake Questionnaire is not shared with the employer during the
pendency of the EEOC investigation. On the other hand, an EEOC Charge Form
serves to define the scope of the Commission's investigation and to notify the
defendant of the charges against it. See 42 U.S.C. § 2000e–5(b) (requiring the
Commission to serve notice of the charge on the employer against whom it is
made within ten days, and to conduct an investigation); Occidental Life Ins. Co.
of Cal. v. EEOC, 432 U.S. 355, 359–60, (1977) (stating the same). A plaintiff
cannot be allowed to transfer the allegations mentioned only in the questionnaire
to the charge itself. Not only would this be circumventing the role of the
Commission, but it would be prejudicial to the employer. See, e.g., Park v.
Howard Univ., 71 F.3d 904, 909 (D.C.Cir. 1995) (“To treat Intake
Questionnaires willy-nilly as charges would be to dispense with the requirement
of notification of the prospective defendant . . . ” (quoting Early v. Bankers Life
and Cas. Co., 959 F.2d 75, 80 (7th Cir.1992))); Binder v. PPL Servs. Corp.,
2009 WL 3738569, at *6 (E.D.Pa. Nov. 5, 2009); Rajoppe v. GMAC Corp.
Holding Corp., 2007 WL 846671, at *7 (E.D.Pa. Mar. 19, 2007); Johnson v.
Chase Home Fin., 309 F.Supp.2d 667, 672 (E.D.Pa. 2004).

361 F.App’x at 415.
The charge also does not contain any reference to retaliation for voicing a complaint
about the comments. (Docket No. 23 at 17); (Docket No. 30-3). In sum, other than referring to
20

her initiation and filing of the EEOC charge, Plaintiff does not mention any protected activity
sufficient to put the Defendant on notice of a retaliation claim prior to her termination. (Id.).
Defendant was not put on notice of the underlying allegation that Bivins made racial comments,
the alleged complaint to Hoover about the same, or Plaintiff’s complaint to the PTF. In light of
same, Plaintiff did not exhaust her administrative remedies relative to her retaliation claim.
Alternatively, relative to the first requirement on the merits, Plaintiff did not allege that
she was engaged in any other type of protected activity other than filing her previous claim.
(Docket No. 23 at 16). There is no evidence in the record to suggest that Bivins, Hoover, or other
administrators were aware of the charge at the time of her second unsatisfactory rating.
Defendant admits that the charge was mailed to PPS’ administrative offices in May 2011,
however neither Bivins nor Hoover received same. (Docket No. 23 at 18). In any event, as
Defendant points out, no inference of retaliation can be drawn, even if the administrators knew
of the charge, because both EIPs and the first unsatisfactory rating occurred before the filing of
the first charge. (Id.). The Court can reasonably draw the inference that the decision to give
Plaintiff a second EIP had occurred prior to the filing of her charge, as Plaintiff was placed on
two EIPs and was given one unsatisfactory rating in two years. See Clark County Sch. Dist. v.
Breeden, 532 U.S. 268, 272 (2001); Windfelder v. May Dep’t Stores Co., 93 F.App’x 351, 355
(3d Cir. 2004) (citing Clark) (“Employers are not obliged to suspend all previously planned or
contemplated actions upon receiving a Title VII complaint or learning that a suit has been
filed.”).
2. Conclusion

21

In consideration of the above analysis, summary judgment must be entered in favor of
Defendant on Plaintiff’s retaliation claim as the evidence, taken as a whole, does not suggest
retaliation against her stemming from her EEOC filing.
VI. Conclusion
On Plaintiff’s racial discrimination claim, the Court denies Defendant’s motion for
summary judgment. The Court rules in favor of Defendant and against Plaintiff on the hostile
work environment and retaliation claims. Based upon the foregoing, the Defendant’s Motion for
Summary Judgment (Docket No. 22) is hereby GRANTED, in part, and DENIED, in part.
Appropriate Orders follow.
s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Date: September 16, 2014
cc/ecf: All counsel of record

22