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David Hightower v. Easton Area School District

September 30, 2011

DAVID HIGHTOWER
v.
EASTON AREA SCHOOL DISTRICT



The opinion of the court was delivered by: Dalzell, J.

MEMORANDUM

Plaintiff David Hightower ("Hightower") sues the Easton Area School District ("EASD" or the "District"), asserting claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. Ann. § 951, et seq.

Hightower works as a principal with EASD, and alleges that the District subjected him to a hostile work environment and discrimination as to promotions and discipline, as well as retaliatory harassment when Hightower complained about discriminatory conduct by the District. EASD has filed a motion for summary judgment, to which Hightower has responded. For the reasons set forth below, we will deny EASD's motion.

I. Factual Background

Under Fed. R. Civ. P. 56(a), "[t]he 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," where "[a] party asserting that there is a genuine dispute as to a material fact must support that assertion with specific citations to the record." Bello v. Romeo, 424 Fed. Appx. 130, 133 (3d Cir. 2011). We will thus begin by reciting the undisputed facts in this matter, and then consider the disputed facts that the parties have supported with specific citations to the record. In so doing, we will keep in mind that "[h]earsay statements that would be inadmissible at trial may not be considered for purposes of summary judgment," Smith v. City of Allentown, 589 F.3d 684, 693 (3d Cir. 2009), and that we should not credit statements in affidavits that "amount[] to (i) legal argument, (ii) subjective views without any factual foundation, or (iii) unsupported assertions made in the absence of personal knowledge." Reynolds v. Dep't of Army, 2011 WL 2938101, at *2 (3d Cir. 2011).

As will be seen, this action involves a long and complicated factual background, as evinced by defendant's and plaintiff's statements of facts and their submissions (accompanied by seven and thirty-eight exhibits, respectively). Our canvass of the record, especially in light of the hostile work environment claim, will necessarily be fact-intensive.

A. The Undisputed Facts

The parties agree on the essential details of Hightower's employment history with the District. Hightower is an African-American man, Pl.'s Compl. ¶ 9; Def.'s Ans. ¶ 9, who began his employment at EASD in 1989 as a physical education teacher. Def.'s Statement of Material Facts ("Def.'s Facts") ¶¶ 1; Pl.'s Statement of Material Facts ("Pl.'s Facts") ¶¶ 1. Hightower became an Assistant Principal with EASD in 1996, and after two and a half years in that position (at Cheston and Palmer Elementary Schools), he advanced to the position of Principal of Paxinosa Elementary School in 1999. Def.'s Facts ¶¶ 2-4; Pl.'s Facts ¶ 2-4. Hightower still holds this latter position. Def.'s Facts ¶ 4; Pl.'s Facts ¶ 4.

In 2002, Hightower applied for a position as the Director of Human Resources at EASD and interviewed for the position with Tom Evans (the former Superintendent of EASD) and Dennis Riker*fn1 ("Riker") (the Director of Human Resources at EASD). Def.'s Facts ¶¶ 10-11; Pl.'s Facts ¶¶ 10-11. EASD also interviewed two other candidates, John Castrovinci and Linda Marcincin, but the District ultimately hired none of these people, instead selecting Joseph Kish, a white man.*fn2 Def.'s Facts ¶¶ 12-14; Pl.'s Facts ¶¶ 12-14, 60. In 2007, Hightower again applied for the Director of Human Resources position, listing Kish as a reference on his application. Def.'s Facts ¶¶ 16-17; Pl.'s Facts ¶¶ 16-17. Hightower interviewed twice for the position with a team of EASD administrators that included Riker, Kish,*fn3 Gregory Shoemaker,*fn4 Guy Greenfield, and a few others.

Def.'s Facts ¶¶ 18-19; Pl.'s Facts ¶¶ 18-19. However, EASD did not hire Hightower as Director of Human Resources, instead selecting LaToya Monroe, an African-American woman. Def.'s Facts ¶¶ 20-21; Pl.'s Facts ¶¶ 20-21.

Hightower also applied that year for the position of Director for Support Programming at the District, listing Kish, Shoemaker, and Guy Greenfield as references on his application because they had knowledge of his skills and abilities. Def.'s Facts ¶¶ 23, 25; Pl.'s Facts ¶¶ 23, 25. Hightower interviewed for the position with EASD administrators, including Riker, Shoemaker, Kish, Greenfield, and Angela Donaldson, Def.'s Facts ¶ 24; Pl.'s Facts ¶ 24, but the District did not hire him, instead choosing Susan McGinley, a white woman. Def.'s Facts ¶¶ 26-27; Pl.'s Facts ¶¶ 26-27. Finally, on March 20, 2008, Hightower applied to be Superintendent of Schools for EASD, submitting his application only to the Pennsylvania School Boards Association ("PSBA"). Def.'s Facts ¶ 31; Pl.'s Facts ¶ 31. He was not interviewed for the position, and had no conversations with any PSBA representatives as to why he was not interviewed. Def.'s Facts ¶¶ 32-33; Pl.'s Facts ¶¶ 32-33.

B. The Disputed Evidence

While the parties do not disagree as to the existence of many facts,*fn5 Hightower alleges an array of additional factual details pertaining to his relationship with EASD that are not found in the District's statement of facts. These facts pertain to (1) the decision-making processes governing the above hiring choices; (2) racially discriminatory behavior by EASD administrators; (3) complaints that Hightower registered with EASD administrators about perceived discrimination at the District; and (4) harassment that Hightower experienced at EASD.

1. The District's Hiring Process

As a prefatory matter, with respect to the hiring choices described above, Hightower claims that he was qualified for each central office position for which he applied. Pl.'s Facts ¶ 94 (citing Riker Dep. at 47-48; Ex. 4 to Pl.'s Facts ("McGinley Dep.") at 135). Hightower alleges that Kish got the Director of Human Resources position in 2002 despite not having applied or interviewed for the position.*fn6 Pl.'s Facts ¶ 14 (citing Kish Dep. at 267-68). Hightower also claims that sometime in 2003 or 2004, Riker placed Donaldson, a white woman, in charge of Human Resources at EASD without posting this position or soliciting an application from Hightower, though Donaldson held no degrees related to human resources, had no human resources certifications, and was not a college graduate. Id. (citing Riker Dep. at 16-18). Both parties agree that after Hightower interviewed for the Director of Human Resources position in 2002, Kish met with Hightower and suggested that he take a position as an assistant principal at Easton Area High School as a way of gaining more experience for a central office position, Def.'s Facts ¶ 15; Pl.'s Facts ¶ 15. Hightower adds, without factual support other than the hearsay statements of another principal in the District, that such a move would have been "a demotion from which he would not recover in his efforts to be promoted." Pl.'s Facts ¶ 15 (citing Ex. 1 to Pl.'s Facts ("Hightower Dep.") at 94-95).

As for Hightower's application in 2007 for the position of Director of Human Resources, he adds that though this selection process resulted in the hiring of Monroe, an African-American woman, it was nonetheless discriminatory in that at least one white applicant, Castrovinci, was videotaped during his interview while Hightower's interview was not videotaped. Pl.'s Facts ¶ 22 (citing Hightower Dep. at 157-58). Castrovinci is a white man. Id. ¶ 64 (citing Ex. 6 to Pl.'s Facts ("Castrovinci Dep.") at 6). However, Hightower's contention that Castrovinci's interview was taped rests on inadmissible hearsay statements Castrovinci made to Hightower. Id. ¶ 22. Hightower further explains that though the District ultimately hired Monroe as Director of Human Resources in September of 2007, the EASD Board decided not to renew her contract a year later, in May of 2008. Id. ¶¶ 22 (citing Ex. 15 to Pl.'s Facts ("Myers Dep. II") at 7), 65 (citing Ex. 3 to Pl.'s Facts ("Monroe Dep.") at 9-10). Hightower suggests, relying on testimony from Kerry Myers -- a member of the EASD Board, Pl.'s Facts ¶ 60 -- that the Board opted not to renew Monroe's contract because "'she exposed racism in the district.*fn7 And when she exposed racism in the district, the immediate response of certain board members at that time was let's fire the person who did it. The minute they found out it was Joe Kish and Lou Coxe, they were like rabid animals, they turned against her.'" Pl.'s Facts ¶ 22 (quoting Myers Dep. II at 18). Since this statement is a subjective characterization of the motivations of third parties made without any grounding in concrete facts as to which Myers had personal knowledge, we will not consider it. Hightower also explains that after Monroe was released, the District named Castrovinci Interim Director of Human Resources, and later Director of Human Resources, without advertising the positions or giving Hightower the opportunity to interview for them.*fn8 Pl.'s Facts ¶ 22 (citing Castrovinci Dep.at 41). Hightower suggests (again relying on Myers's testimony) that Castrovinci "had no qualifications to be a Director of Human Resources when he was appointed," id. (citing Myers Dep. II at 18), but because Myers offered no factual basis for this broad statement and did not specify what he considered to be an appropriate qualification, we will not consider the statement.
Turning to Hightower's application for the position of Director of Support Programming in 2007, Hightower suggests that McGinley "received the position because of how she looked and . . . that she didn't even apply for the position." Id. ¶ 28 (citing Hightower Dep. at 110-111). Because Hightower predicates this assertion on hearsay statements Kish made to him, we will not consider it further, though we note that Hightower's suggestion omits details included in the testimony*fn9 on which it rests that deflate much of the alleged statement's racial import. Hightower also claims that he had to submit a writing sample in his application, while McGinley was not required to do so. Id. (citing McGinley Dep. at 28-30). Because Hightower offers no citation to any materials demonstrating that he was obliged to submit such a sample,*fn10 we will not consider this allegation in ruling on EASD's motion. Hightower also avers that Kish instructed him on "what appropriate clothing would be to wear to his interview for the Director of Support Programs, as if, Mr. Hightower, a black man, would not know how to dress for an interview." Id. (citing Hightower Dep. at 44).

Finally, regarding Hightower's 2008 application for the position of Superintendent of Schools for the District, Hightower explains that both the PSBA and members of the EASD Board participated in the selection process. Pl.'s Facts ¶ 31 (citing Ex. 21B to Pl.'s Facts ("Vulcano Memo")). Moreover, though the District suggests that it ultimately hired McGinley for the position, Def.'s Facts ¶ 34 (citing Ex. 1 to Def.'s Facts ("Def.'s Hightower Dep.") at 125-26), Hightower disagrees, asserting instead that McGinley was first appointed Acting Superintendent in May of 2008 -- a position that was not posted, and for which no interviews were conducted. Pl.'s Facts ¶ 34 (citing McGinley Dep. at 56-61).

Hightower also contends that McGinley was then appointed Superintendent in August of that year, id. (citing Ex. 21H to Pl.'s Facts ("Board Minutes")), even though she did not submit her application by March 20, 2008, id. (citing McGinley Dep. at 65), when the deadline for applications was that date. Id. (citing Ex. 21A to Pl.'s Facts ("Superintendent Application") at P000469). Though the parties agree that McGinley had central office experience which Hightower did not have, Def.'s Facts ¶ 35; Pl.'s Facts ¶ 35, Hightower also claims, with supposed support from Monroe's testimony, that McGinley became Acting Superintendent by "'divine ordination'" and "'magic.'" Pl.'s Facts ¶ 35 (citing Monroe Dep. at 35)). Hightower further asserts, relying on Myers' testimony, that "the failure to provide Plaintiff with even an interview for the position of Superintendent was not fair." Id. ¶ 32 (citing Ex. 16 to Pl.'s Facts ("Myers Dep.") at 38. Unfortunately, Hightower does not attach to his submission the page of Monroe's deposition from which he quotes. Moreover, his summary of Myers's testimony does not appear to represent it fairly, since the cited pages from Myers's deposition reveal that he merely responded in the affirmative to the question, "Would you agree with me that you did not believe the hiring of Ms. McGinley as the superintendent was fair?" Myers Dep. at 38. In any case, the opinions attributed to Monroe and Myers upon which Hightower relies are unsupported, vague, and entirely subjective; they consequently carry no weight as we rule on EASD's motion for summary judgment.

2. Racially Discriminatory Behavior at EASD

Hightower identifies an array of evidence that allegedly demonstrates racially discriminatory animus by EASD administrators. We may divide this evidence into three categories: (1) evidence of racist policies, (2) evidence of racist language, and (3) awareness of racism by others.

Hightower asserts that six policies at EASD reflected racially discriminatory motivations. First, although Hightower agrees that Riker, the then-Superintendent of EASD, organized a meeting with the National Association for the Advancement of Colored People ("NAACP") and Shiloh Baptist Church to encourage minority candidates who were interested in working for the EASD, Def.'s Facts ¶ 42; Pl.'s Facts ¶ 42, he alleges that the District circulated a "Minority List" and a "Courtesy Interview Memo" to principals and administrators. Pl.'s Facts ¶ 42 (citing Ex. 11 ("Minority List") and Ex. 12 ("Courtesy Interview Memo") to Pl.'s Facts). The Memo states, in relevant part, that

There are certain individuals that are to be given "a courtesy interview." That file is located in the Human Resource Office and should be looked at first. Minorities are included in this file. We have been trying to hire qualified minorities to fill positions. I have been working closely with the NAACP and they have accompanied me to recruiting job fairs.

Courtesy Interview Memo at 2.

Hightower asserts first that, according to Monroe's testimony, "the Minority List and the efforts to hire minorities was [sic] nothing more than a 'farce.'" Pl.'s Facts ¶¶ 42-43 (quoting Monroe Dep. at 65). In Monroe's deposition, she elaborated that her judgment that the List was a "farce" was based on "the absence of contact information from that list," which "show[ed] that the entire listing is a farce. It's a facade. There was no way to contact anyone to be given a courtesy interview or subsequently hired." Monroe Dep. at 65. Hightower also relies on Monroe's testimony to support the claim that "[n]o candidates from the Minority List were hired," Pl.'s Facts ¶ 42 (citing Monroe Dep. at 44) -- though Monroe's deposition actually states only that she did not hire any minority teachers during her tenure with EASD. Monroe Dep. at 44. Hightower next states that in the judgment of Riker, the Courtesy Interview Memo was discriminatory. Pl.'s Facts ¶ 43 (citing Riker Dep. at 56). Because Riker did not explain in his testimony why he believed that circulation of the Memo was "discriminatory," Riker Dep. at 56, we will disregard this conclusion as an unsupported subjective opinion. Finally, Hightower explains that "[t]he Minority List, itself, highlighted names for people to be granted courtesy interviews, although none of the names have certifications to teach in the Commonwealth of Pennsylvania; meanwhile, the names of applicants who did have certifications to teach in Pennsylvania were not even offered courtesy interviews." Pl.'s Facts ¶ 42 (citing Minority List and Kish Dep. at 233-35).

It is true that the List identifies three of the fifty-five candidates listed with the bold, underlined label "INTERVIEW," that none of these three candidates is listed as possessing Pennsylvania certifications, Minority List at 1-3, and that Kish confirmed in his deposition that three of the candidates on the list who were notated as having such certifications were not marked with the "INTERVIEW" label. Kish Dep. at 234-35. But Hightower has pointed to no materials in the record supporting his contention that the List identified all those who were to be granted courtesy interviews with the "INTERVIEW" label, or that none of those with certifications on the list was given such interviews. Because we do not find these latter contentions to be reasonable inferences to be drawn from the record, we decline to do so and will ignore these claims.

The second policy at EASD that Hightower identifies as racially discriminatory involves what he describes as "resegregation in the school district." Pl.'s Facts ¶ 45. Hightower explains that the District moved "his elementary school from the suburbs to the inner city," id., noting that in 2008, EASD was 38.94% minority and 61.06% white, id. (citing Ex. 43 to Pl.'s Facts ("Newspaper Article") at 2), while in 2010, Paxinosa Elementary School was 64.43% minority and 35.56% white. Id. (citing Ex. 44 to Pl.'s Facts ("Enrollment Summary")). Our Court of Appeals has explained that "[o]rdinarily, when offered to prove the truth of the matters stated therein, newspaper articles are held inadmissible as hearsay." May v. Cooperman, 780 F.2d 240, 262 n.10 (3d Cir. 1985). Moreover, Hightower has presented no evidence attesting to the authenticity or accuracy of the "Enrollment Summary" upon which he relies to establish the racial composition of Paxinosa Elementary School.

Because Hightower's assertions as to the composition of EASD and Paxinosa Elementary School are unsupported by references to admissible materials in the record, we cannot accept them. However, Hightower also explains, relying on his own affidavit, that "[t]he only school [in the District] that was moved and not returned was Mr. Hightower's school, Paxinosa. This resulted in Paxinosa's being moved from a white upper-middle class area to an inner city location," Pl.'s Facts ¶ 48 (citing Hightower Aff. ¶ 19). In the affidavit Hightower also characterizes Paxinosa Elementary School as "a predominately [sic] minority elementary school." Hightower Aff. ¶ 22. Hightower further alleges that "$11 million*fn11 was spent on renovating Mr. Hightower's school's old building; students from affluent, suburban areas were transferred into Mr. Hightower's old building . . . Mr. Hightower was moved to an inner city location with a dilapidated, old building that needed work, which was not done." Pl.'s Facts ¶ 49 (citing Hightower Dep. at 66-78). We would presume that Hightower, as an EASD administrator and Principal of Paxinosa Elementary School, would have personal knowledge of these facts, so we will accept these contentions as supported by the record.

The third racially discriminatory policy that Hightower describes is the District's policy regarding Family and Medical Leave Act ("FMLA") leave. Both parties agree that EASD has an FMLA Policy No. 335, which states that

The district will require medical certification to support a claim for leave for an employee's own serious health condition or to care for a seriously ill child, spouse, or parent. . . . For leave to care for a seriously ill child, spouse or parent, the certification must include an estimate of the amount of time the employee is needed to provide care.

Def.'s Facts ¶ 51 (quoting Ex. 3 to Def.'s Facts ("FMLA Leave Policy") ¶ 3); Pl.'s Facts ¶ 51. Hightower alleges, however, that he was required to provide FMLA information to the EASD Board as well as to the Director of Human Resources, Pl.'s Facts ¶ 50 (citing Hightower Dep. at 131-34), while white employees were not required to provide medical information to the Board. Id. (citing Monroe Dep. at 32-33). Since these claims are based on the testimony of Hightower and Monroe, the former Director of Human Resources, we will accept them as founded on personal knowledge, though we note for completeness that Monroe testified that she never processed FMLA leave for any white principals. Monroe Dep. at 33. Hightower also alleges that Shoemaker attempted to complain to Monroe regarding Hightower's use of leave. Id. (citing Monroe Dep. at 51).*fn12

The fourth allegedly racially discriminatory policy involves Shoemaker's assignment of readings to EASD principals. The parties agree that two or three times a year all elementary school principals were obliged to read articles on education. Def.'s Facts ¶¶ 54-55; Pl.'s Facts ¶¶ 54-55. Hightower explains, however, that Shoemaker required him to read these articles and then meet individually with Shoemaker to discuss them. Pl.'s Facts ¶ 56 (citing Hightower Dep. at 143-44). Hightower further notes -- relying on Shoemaker's own deposition -- that he was not on a written performance improvement plan, and that Shoemaker did not require any white principal who was not on such a plan to meet with him individually to discuss the articles. Id. (citing Ex. 10 to Pl.'s Facts ("Shoemaker Dep.") at 65-66).

Finally, Hightower alleges that on one occasion, after work hours, Shoemaker by e-mail scheduled one of these meetings for 8:00 a.m. the following morning, though Hightower was attending an administrative conference outside the District on both days, id. ¶ 56 (citing McGinley Dep. at 107-08; Ex. 33 to Pl.'s Facts ("Shoemaker's Reprimand")) -- though it bears noting that the e-mail to which Hightower refers actually states, "Please remember that as per our conversation during the meeting we had about your evaluation, we are scheduled to have a discussion . . . [at] 8:00 AM tomorrow in my office." Shoemaker's Reprimand (including as history the previous e-mail). Hightower missed the meeting because he was attending the conference, id. (citing Hightower Dep. at 146), but he claims that Shoemaker nonetheless provided him with a "written reprimand," copied to the Superintendent. Pl.'s Facts ¶ 56 (citing Shoemaker's Reprimand). Hightower has included this communication in the record, but we observe that it states only, in relevant part, that "I need to point out that you had the opportunity to communicate with me on Thursday at the Workshop that you weren't going to have the time and to reschedule the date and time of our meeting. As I pointed out to you during the review of your evaluation you need to communicate more effectively." Shoemaker's Reprimand.

Fifth, Hightower suggests that the District had a "practice of delivering discipline notices to black employees via armed police officers, while it did not do so with white employees." Pl.'s Facts ¶ 76. Hightower relies on testimony by Monroe as to the manner in which she was released from employment -- which involved being escorted by two armed guards, Monroe Dep. at 49 -- as well as the deposition of Louis Coxe, the white Security Coordinator and Chief of Police for the District from 2003 to the present. Id. ¶ 66 (citing Ex. 31 to Pl.'s Facts ("Coxe Dep.") at 14). Coxe explained that he delivered a disciplinary letter to Cliff Ransom -- a black EASD employee and volunteer football coach -- during football practice while accompanied by two police officers, Coxe Dep. at 64-66, and conceded that he had never "deliver[ed] a discipline letter to any white employee with another police officer with [him] and two municipal police officers standing in the vicinity based on [his] request." Id. at 67. Hightower also notes that Coxe instructed Art Statum, a black security guard, "to stand behind a piece of tape in a lunchroom," Pl.'s Facts ¶ 76 -- an allegation that Coxe corroborated in his deposition, and to which he added that he had never "directed any other security officer or policeman to stand behind a piece of tape in a school." Coxe Dep. at 51.

Hightower also suggests that, unlike other principals, he was not allowed to manage his own staff at Paxinosa Elementary School. When Statum worked at Paxinosa and walked with a walker, Hightower sought to accommodate Statum's disability by requesting insertion of a buzzer to open doors automatically. Kish and Coxe denied this request. Pl.'s Facts ¶ 76 (citing Hightower Dep. at 179-81). Moreover, during the 2008 school year, Hightower attempted to move a security officer from an office in his building to another office because the first office was well-located for a particular teacher and group of students. Kish and Coxe overrode this decision. Id. ¶ 85 (citing Hightower Dep. at 185-87). Hightower finally suggests, based on a phone conversation he had with Myers, that the EASD Board was aware that Shoemaker did not permit Hightower to hire his own staff members, while other elementary school principals who were white were permitted to do so. Id. ¶ 86 (citing Hightower Aff. ¶ 6). We will reject this allegation as based on inadmissible hearsay.

We turn now to the discriminatory language that Hightower describes at EASD. According to Hightower, he had a conversation with Riker and Shoemaker in which the latter two administrators suggested that Hightower needed experience with a different population of students to become a viable candidate for a central office position, Pl.'s Facts ¶ 82 (citing Hightower Dep. at 173), which Hightower took to mean that he needed to work with a white population.*fn13 Id. Hightower suggests that he "was informed by Central Office administrators their belief that students at Paxinosa could not learn," Id. ¶ 83 (citing Hightower Dep. at 167-68) -- though the testimony upon which he relies reveals that he was actually told that "there are also teachers at Paxinosa School who believe that students can't learn," Hightower Dep. at 167, a far more equivocal statement that is, in any case, an inadmissible unsupported assessment of third parties' states of mind. Hightower also claims that EASD Board members falsely accused him of having a sexual relationship with Monroe "because they were both African American." Pl.'s Facts ¶ 88 (citing Hightower Aff. ¶ 6). Hightower's declaration, upon ...


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