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David Hightower v. Easton Area School District

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


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 which he relies for this allegation, merely notes that in a conversation Hightower had with Myers, Myers told him that two members of the Board spread a rumor that Hightower and Monroe were "making out" in a school parking lot. Hightower Aff. ¶ 6. We reject this claim as based on inadmissible hearsay.

Both parties agree that after Hightower spoke to McGinley about taking leave, Shoemaker told him, "Well Dave, I spoke to Sue . . . about your FMLA . . . . You're my boy; it's not a problem. You don't -- well you don't need -- we'll just work you any -- we'll just work out you taking . . . time off when you need the time off." Def.'s Facts ¶ 53 (ellipses in original); Pl.'s Facts ¶ 53. Hightower asserts that this quotation "reveals that Mr. Shoemaker used the racist reference 'boy' to refer to Mr. Hightower." Pl.'s Facts ¶ 53. Shoemaker also complained about Hightower's eye contact and body posture being "defensive,", id. ¶ 74 (citing Hightower Dep. at 148), and asked Hightower to "look away when I talk to you." Hightower Dep. at 148. When Hightower sought the appointment of Hector Bonilla, a minority individual, as Assistant Principal for Paxinosa, Shoemaker stated before the decision-making committee that Bonilla would "receive a courtesy interview because [Hightower] wanted him to be interviewed."*fn14 Pl.'s Facts ¶ 78 (citing Hightower Dep. at 192-93).

Hightower's allegations as to Kish's language are more extensive. We have already noted Hightower's claim that Kish advised him as to what to wear to interviews. Id. ¶ 28 (citing Hightower Dep. at 44), 36. Hightower suggests that "Kish had a history of informing black leaders that he would coach black applicants on what to wear to interviews and how to speak, as if the applicants would not know." Id. (citing Ex. 6 to Pl.'s Facts ("Davis Aff.") and Ex. 17 to Pl.'s Facts ("Fennell Aff.") at P000295). Hightower also avers that Kish "informed him that a black applicant was a drug addict with no basis." Id. ¶ 36 (citing Hightower Dep. at 177). Hightower identifies as further racist conduct Kish's response to his complaints that EASD was resegregating its schools. According to Hightower, Kish "smugly sa[id], "[S]o what? So what are you gonna do about it?'" Id. ¶ 36 (quoting Hightower Dep. at 78). Hightower also notes that, in a meeting with Shoemaker and Kish he was directed to suspend a teacher without pay and when he noted that he lacked such authority, Kish responded, "[W]ell, you're chicken shit because you're not gonna suspend her for one day." Id. ¶ 57 (citing Hightower Dep. at 154-55). In conversations with the head of the local NAACP and the senior pastor of the Great Shiloh Church of Easton, Kish suggested, when asked about hiring African Americans for non-teaching positions, that "we've got enough minority janitors -- we're OK." Id. ¶ 77 (citing Fennell Aff. ¶ 14). During these conversations, Kish also noted that "[i]n the Philadelphia school district, they have many black teachers but the school system is in trouble . . . so hiring black teachers for EASD is not the answer." Davis Aff. (ellipsis in original).

As for racial epithets, Hightower himself never personally heard Kish use such language, Def.'s Facts ¶ 36; Pl.'s Facts ¶ 36, nor does he allege that he heard Coxe use such terms. Hightower notes that Ransom informed him that Kish and Coxe referred to black employees as "niggers," Pl.'s Facts ¶ 37 (citing Hightower Dep. at 39), but since this statement relies on inadmissible hearsay, we cannot consider it.

Hightower does present a wealth of other, direct testimony on this topic, however. Tina Rosado, a security guard at EASD, testified in her deposition that Kish used the terms "nigger," "those people," "spooks," and "monkeys" to refer to minorities.*fn15 Id. ¶ 73 (citing Ex. 27 to Pl.'s Facts ("Rosado Dep.") at 35-36). Kish's secretary, Marie Lynn Smith, testified that Kish used the words "niggers" and "spics" in the workplace. Ex. 18 to Pl.'s Facts ("Smith Dep.") at 31-32. Coxe admitted in a deposition that he may have heard Kish use the word "nigger" in the workplace. Id. ¶ 70 (citing Ex. 24 to Pl.'s Facts ("Coxe Dep. II") at 62-64). And, according to an affidavit by Roger Herstich, a security guard at EASD, he heard Kish say to Coxe, "That's why this nigger will never go anywhere in this school district, not while I'm here" -- apparently in reference to Hightower.*fn16 Id. ¶ 71 (citing Ex. 7 to Pl.'s Facts ("Herstich Aff.") ¶ 4). Herstich also notes that he heard Coxe say "I have to go now, I have to deal with this lazy nigger," shortly before Ransom was to report to Coxe's office for a disciplinary meeting. Id. (citing Herstich Aff. ¶ 5).

Finally, Hightower presents testimony from a variety of deponents attesting that Kish was "racist." Id. ¶ 37. Hightower testified that Riker informed him that Kish was racist, id. (citing Hightower Dep. at 57-58), and that Myers told him that "black employees were expected to respond to Mr. Kish by saying 'yes, Massa, yes, Massa.'" Id. (citing Hightower Aff. ¶ 3). Even if these statements were not based on inadmissible hearsay --which they palpably are -- we would reject them as unsupported subjective opinions. Hightower also presents testimony from Gregory Annoni suggesting that he heard from other people that Kish and Coxe made comments of a racist nature, id. (citing Ex. 29 to Pl.'s Facts ("Annoni Dep.") at 20-21), again, textbook hearsay.

Hightower lastly notes that he complained to Monroe about Kish's racist behavior, id. (citing Monroe Dep. at 37). While we may consider this statement as revealing of Hightower's actions, it has no probative value regarding the behavior as to which Hightower complained.

3. Hightower's Complaints to EASD

Hightower states that he registered complaints with EASD administrators about much of the conduct alleged above. In particular, he complained about the discriminatory character of:

* the Minority List and Courtesy Interview Memo to Donaldson and Riker in 2007, id. ¶ 5 (citing Hightower Dep. at 26-29); the Board's discriminatory policy as to FMLA leave and Kish's racist behavior to Monroe at some point before May of 2008, id. (citing Monroe Dep. at 32, 37);

* Kish and Coxe's racist behavior to Castrovinci, id. (citing Castrovinci Dep. at 64-66);

* Shoemaker's suggestion that Bonilla receive a "courtesy interview" to McGinley in July of 2008, id. (citing Hightower Dep. at 194; McGinley Dep. at 93-94); and

* EASD's redistricting policy at a principals' meeting which Shoemaker and Kish attended in the spring of 2008, id., suggesting that "this is segregating the school district." Hightower Dep. at 76.

Hightower also complained about a variety of other conduct, though his references to the record do not suggest that he told anyone that this conduct was discriminatory. Specifically, Hightower complained about:

* "harassment"*fn17 by Shoemaker at some point before March of 2007 to Riker, id. (citing Riker Dep. at 19-21);

* Kish's "racist behavior"*fn18 in 2006 to Riker, id. (citing Riker Dep. at 21-24; Hightower Dep. at 57-58);

* Kish's identification of a black job applicant as a drug addict to Hightower,*fn19 id. (citing Hightower Dep. at 177-78);

* "improper treatment"*fn20 regarding the Board's FMLA leave policy to the Board in June of 2008, id. (McGinley Dep. at 101-02; Ex. 25 to Pl.'s Facts ("E-mail to Board"));

* Paxinosa's move to a dilapidated, inner-city building*fn21 to McGinley in October of 2008, id. (citing Ex. 8 to Pl.'s Facts ("E-mail to McGinley"));

* Kish's failure to approve*fn22 requests for the provision of basic building and grounds maintenance to Paxinosa Elementary School to McGinley in May of 2010, id. (citing McGinley Dep. at 121; Ex. 30 to Pl.'s Facts ("Memo to McGinley"));

* Shoemaker's treatment*fn23 of Hightower at a meeting to Castrovinci in July of 2008, id. (citing Ex. 26 to Pl.'s Facts ("Memo to Castrovinci")); and

* acts*fn24 in May of 2010, by individuals Kish supervised, to Castrovinci, id. (citing Ex. 28 to Pl.'s Facts ("Memo II to Castrovinci")).

4. Harassment of Hightower at EASD

Lastly, we consider Hightower's allegations as to the harassment he suffered in retaliation for making the complaints we just canvassed. Hightower first suggests that EASD failed to promote him in retaliation for these complaints, id. We have already listed the ways in which the District allegedly failed to promote Hightower. See supra Parts I.A & I.B.1. Hightower also argues that the District, with a retaliatory motive, required him to provide information to the Board in connection with his FMLA leave request, Pl.'s Facts ¶ 5. We have recounted this series of events, as well. See supra Part I.B.2. Finally, Hightower claims that he was disciplined and humiliated as a result of his complaints about discrimination. Pl.'s Facts ¶ 5. This claim involves some allegations we have already rehearsed, such as that Shoemaker required Hightower to meet with him to discuss articles and that Kish called him "chicken shit." See supra Part I.B.2. It also rests on another allegation: that Shoemaker pulled him out of a meeting*fn25 "in front of all his direct reports" and then administered discipline "loudly in an adjoining room." Pl.'s Facts ¶ 91 (citing Hightower Dep. at 146-47). But the record reveals a different interaction. According to Hightower's testimony, "[Shoemaker] took me out of a meeting at the middle school to take me into an adjoining room within the library to meet with me for about two hours, two and a half hours to talk about the article that he said that I had a meeting with him to read." Hightower Dep. at 146.

II. Analysis

On a motion for summary judgment, "[t]he moving party first must show that no genuine issue of material fact exists," Adderly v. Ferrier, 419 Fed. Appx. 135, 136 (3d Cir. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)), whereupon "[t]he burden then shifts to the non-moving party to set forth specific facts demonstrating a genuine issue for trial." Id. "'A disputed fact is "material" if it would affect the outcome of the suit as determined by the substantive law,'"

J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 2011 WL 2305973, at *6 (3d Cir. 2011) (quoting Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992)), while a factual dispute is genuine "'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. . . . The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be [significantly probative] evidence on which the jury could reasonably find for the plaintiff." Bialko v. Quaker Oats Co., 2011 WL 2550416, at *1, n.4 (3d Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986)) (bracketed material in original). As already noted, we "draw all reasonable inferences in favor of the nonmoving party, and [we] may not make credibility determinations or weigh the evidence." Eisenberry, 421 Fed. Appx. at 241 (quotation marks omitted).

A. Hightower's Hostile Work Environment Claim

In his complaint, Hightower alleges that he was subjected to a hostile work environment. This was the consequence of (1) the District's circulation of the Minority List and Courtesy Interview Memo; (2) racist statements by EASD administrators; (3) the move of Paxinosa Elementary School to an ill-equipped building in an urban setting and general re-segregation at EASD; (4) the District's failure to consider Hightower for the positions of Director of Human Resources, Director of Support Programs, and Superintendent; (5) EASD's requirement that Hightower report his confidential medical information to members of the Board; (6) Shoemaker's requirement that Hightower read articles and meet with Shoemaker individually; and (7) public discipline and humiliation of Hightower by EASD administrators. Pl.'s Compl. ¶ 13. We will presume, based on Hightower's statement of facts, that he also predicates his hostile work environment claim on (8) the District's alleged practice of delivering disciplinary notices to black employees by armed guard, and (9) its refusal to allow Hightower to manage his own staff at his school. Pl.'s Facts ¶ 76, 85-86. The District responds that "Plaintiff cannot show that he was intentionally discriminated against based on his race; that the discrimination was pervasive and regular (let alone 'severe or pervasive' under Clark County Sch. Dist.) and; that the alleged discrimination would detrimentally affect a reasonable person of the same race." Def.'s Br. in Support of Mot. for Summ. J. ("Def.'s Br.") at 9.

Both the PHRA*fn26 and Title VII make it "an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his 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). Courts have interpreted this section to provide for both hostile work environment claims and discrimination claims, with the Supreme Court "recogniz[ing] that Title VII's protection is not limited to 'economic' or 'tangible' discrimination, such as the denial or loss of a job or promotion. It is violated as well by a 'work environment abusive to employees because of their race, gender, religion, or national origin.'" West v. Phila. Elec. Co., 45 F.3d 744, 753 (3d Cir. 1995) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993)). The Supreme Court has further observed that "[a] tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Since the move of Paxinosa Elementary School to an older, inner-city building and the District's failure to promote Hightower would each constitute such an action, we will consider Hightower's arguments as to the move and the failure to promote -- that is, the third and fourth bases he raises above -- in the next section, when we deal with his discrimination claims.

As our Court of Appeals has explained, "to establish a prima facie hostile work environment claim under Title VII or the PHRA, a plaintiff must show that (1) the employee suffered intentional discrimination because of his race, (2) the discrimination was pervasive and regular, (3) the discrimination detrimentally affected the plaintiff, (4) the discrimination would detrimentally affect a reasonable person of the same race in that position, and (5) the existence of respondeat superior liability." Woodard v. PHB Die Casting, 255 Fed. Appx. 608, 609 (3d Cir. 2007) (brackets and internal quotation marks omitted). Importantly, "'offhanded comments, and isolated incidents (unless extremely serious)' are not sufficient to sustain a hostile work environment claim. Rather, the 'conduct must be extreme to amount to a change in the terms and conditions of employment.'" Caver v. Trenton, 420 F.3d 243, 262 (3d Cir. 2005) (internal citations omitted) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). Moreover, "[i]n determining whether the conduct at issue is sufficiently extreme, we consider the 'totality of the circumstances.' . . . The types of circumstances we consider 'may include the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'"

Id. at 262-63 (quoting Harris, 510 U.S. at 23). Fundamentally, "[t]o prove his hostile work environment claim, [a plaintiff] must show, inter alia, that his workplace was 'permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment.'" Perry v. Harvey, 332 Fed. Appx. 728, 730-31 (3d Cir. 2009) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002).

Based on these standards, we will reject the first, sixth, seventh, and ninth bases upon which Hightower predicates his hostile environment claim as insufficient to "create an abusive work environment." Id. Though we are mindful that we must consider the totality of the circumstances in analyzing a hostile work environment claim, we cannot conceive of any reasonable jury finding that these alleged actions contributed to such an environment. Thus, although EASD's circulation of the Minority List and Courtesy Interview Memo may have upset Hightower, he has not alleged that they affected his work environment in any way. Similarly, Shoemaker's requirement that Hightower discuss articles with him do not appear to have involved "intimidation, ridicule, [or] insult," id.; Hightower does not suggest that these meetings were anything but civil. As for the discipline and alleged humiliation that Hightower suffered, these appeared to consist of (1) a courteously worded written request from Shoemaker that Hightower try to communicate future scheduling conflicts, (2) an occasion on which Shoemaker pulled Hightower out of a meeting to discuss an article in the library for a couple of hours, and (3) a meeting in which Kish called him "chicken shit." Of these, the third is the most serious, but even it appears to involve only a "mere offensive utterance." Caver, 420 F.3d at 263. Finally, with respect to his ninth point, Hightower only suggests that he was not allowed to install a buzzer for a security guard who had trouble walking or to move a security officer from one office in his building to another. This limitation of Hightower's capacity to manage his staff was not so "'extreme [as] to amount to a change in the terms and conditions of employment.'" Id. at 262.

We are thus left with the second, fifth, and eighth bases for liability that Hightower identifies. We begin with the second basis -- alleged racist statements EASD administrators made. Of these statements, we have already rejected several as founded on inadmissible hearsay.*fn27 We may discard others as so neutral in import that they could not reasonably be taken as "intimidation, ridicule [or] insult," Perry, 332 Fed. Appx. at 730-31: namely, Riker and Shoemaker's recommendation that Hightower needed experience with a different population of students; Shoemaker's suggestion that Bonilla receive a courtesy interview to satisfy Hightower; Kish's advice as to what Hightower should wear to an interview; and Kish's allegedly smug challenge, "So what are you gonna do about it?," Pl.'s Facts ¶ 36, when Hightower complained of re-segregation at EASD. We also reject Shoemaker's allegedly racist use of the word "boy" in reference to Hightower. As our Court of Appeals has explained, even if we accept Hightower's "requested inference that 'boy' was a racially motivated epithet, it does not rise above an offhanded comment or sporadic abusive language." Perry, 332 Fed. Appx. at 732 (internal quotation marks, citations and ellipses omitted).

Even with these eliminations, we are still left with a trove of allegedly racist language, to wit: Shoemaker's request that Hightower "look away when I talk to you," Hightower Dep. at 148; Kish's claim to Hightower that a black applicant was a drug addict; Kish's statement to local leaders that EASD had "enough minority janitors", Pl.s' Facts ¶ 77, and "hiring black teachers for EASD is not the answer," Davis Aff., and rampant use of slurs such as "nigger," "spook," "monkey," and "spic" by Kish and Coxe -- including Kish's alleged statement that "this nigger will never go anywhere in this school district, not while I'm here" in reference to Hightower.*fn28 Pl.'s Facts ¶¶ 71-73. We may combine these allegations with the fifth and eighth bases for hostile environment liability that Hightower identifies -- the requirement that Hightower report confidential medical information to the Board, and the Board's alleged practice of delivering disciplinary notices to black employees by armed guard -- as the only admissible allegations that survive an initial screening for conditions that could not possibly contribute to a "severe" and "pervasive" alteration of Hightower's working environment. Perry, 332 Fed. Appx. at 730-31.

However, our Court of Appeals has noted that a plaintiff "cannot meet the first element of the hostile work environment claim under Title VII . . . solely by pointing to comments that were directed at other individuals," Caver, 420 F.3d at 263 (emphasis in original), although racist comments directed to others "may be considered in determining whether facially neutral conduct on the part of [a defendant] was actually based on [a plaintiff's] race." Id. at 264. This admonition must similarly apply to intimidating or harassing actions taken against other individuals, since such actions would otherwise give rise to viable hostile environment claims by any co-worker of those individuals who learned of these actions. We thus must consider whether the remaining allegations as to comments and actions aimed directly at Hightower -- when considered in light of other evidence of racially hostile comments and actions -- state a claim for Title VII harassment.

We run into a problem when attempting to characterize the remarks Kish allegedly made, using racial epithets about Hightower. Hightower suggests that "[c]aselaw does not require a plaintiff to have actually heard a discriminatory comment about him from the maker in order for it to be part of a hostile work environment," Pl.'s Br. in Opp. to Def.'s Mot. for Summ. J. ("Pl.'s Br.") at 5, and quotes Williams v. Pennsylvania State Police, 481 F. Supp. 2d 424, 429 (W.D. Pa. 2007) (internal quotation marks and brackets omitted), for its proposition that "racial epithets need not be hurled at the plaintiff in order to contribute to a working environment that is racially hostile." But Williams goes on to explain that "Title VII affords employees the right to work in an environment free from discriminatory intimidation, ridicule and insult, without limiting this concept to intimidation or ridicule explicitly racial in nature." Id. (internal quotation marks and ellipsis omitted). Williams thus stands only for the proposition that harassment need not be explicitly racial for it to be actionable under Title VII; it does not hold that this harassment need not be directed at the plaintiff.

Hightower might argue that comments about him are directed at him, but such an interpretation fails to comport with the common definition of directed*fn29 and its sense that the thing directed was purposefully pointed at the recipient. We note further that our Court of Appeals has explained, in discussing hostile work environment claims, that "[a]ll that is required is a showing that race is a substantial factor in the harassment, and that if the plaintiff had been white she would not have been treated in the same manner." Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1083 (3d Cir. 1996) (emphasis added). This language seems to us dispositive of the question: a comment exchanged between two individuals in confidence cannot be considered to be "treatment" of a third individual. Kish's alleged comment to Coxe about Hightower, then, cannot by itself support a hostile environment claim.

The actions and comments that Hightower alleges were directed at him, and hence constituted mistreatment of him, consist of: Shoemaker's request that Hightower look away during a conversation, Kish's claim to Hightower that an African-American job applicant was a drug addict, and the Board's requirement that Hightower on one occasion provide medical information to it before he took FMLA leave. Even if we rely on Kish's and Coxe's alleged use of racial epithets, and the claimed use of armed guards to deliver disciplinary notices to black employees to conclude that these actions and comments were racially motivated,*fn30 we would not agree that a reasonable jury could find that this treatment altered Hightower's conditions of employment.

We do not deny that this treatment, in combination with circumstances not present here, might support a hostile work environment claim. But by themselves two comments with possibly racist overtones and a one-time requirement that Hightower provide medical information to the Board cannot "create an abusive working environment." Perry, 332 Fed. Appx. at 731. We will thus grant summary judgment on Count I of Hightower's complaint.

B. Hightower's Discrimination Claim

Hightower's complaint states that he was discriminated against based on his race in three ways: (1) he was not promoted to the positions of Director of Human Resources in 2002 and 2007, Director of Support Programs in 2007, and Superintendent in 2008, though he applied for these positions, Pl.'s Compl. ¶ 16, 18-20;

(2) Shoemaker subjected him to discipline by requiring him to read articles and report on them, id. ¶ 17; and (3) he was required to provide medical information to the EASD Board in order to apply for FMLA leave. Id. ¶ 23. As we noted in the previous section, we will consider his allegations that EASD moved his school to an older, inner-city building as made in support of his discrimination claim as well. We will also consider in this section Hightower's claims that the District selected Donaldson as Director of Human Resources in 2003 or 2004, without advertising the position, Pl.'s Facts ¶ 14, and later placed Castrovinci in this position without advertising it. Id. ¶ 22. Defendant responds that Hightower's claims as to his earlier applications are beyond the statute of limitations, Def.'s Br. at 7, and that he has neither presented direct evidence of discrimination nor set forth evidence impugning EASD's reasons for not hiring him for certain positions. Def.'s Br. at 19-20.

We will first dispose of the statute of limitations issue. 42 U.S.C. § 2000e-5(e)(1) provides that [I]n a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred.

Hightower alleges in his complaint, without contradiction from EASD, that he filed a complaint with the Pennsylvania Human Relations Commission on September 5, 2008. Pl.'s Compl. ¶ 5;

Def.'s Ans. ¶ 5. Both parties also agree that he applied for the position of EASD Superintendent on March 20, 2008 and did not get this position. Def.'s Facts ¶¶ 30, 32. Since this latter incident occurred within the filing period, we must determine whether it is so related to the 2002 or 2003-04 incidents as to bring those first incidents within the statute of limitations.

Our Court of Appeals has explained that

[A] plaintiff may pursue a Title VII claim for discriminatory conduct that began prior to the filing period if he can demonstrate that the act is part of an ongoing practice or pattern of discrimination of the defendant. . . . To establish that a claim falls within the continuing violations theory, the plaintiff must do two things. First, he must demonstrate that at least one act occurred within the filing period. . . . Next, the plaintiff must establish that the harassment is more than the occurrence of isolated or sporadic acts of intentional discrimination.

West, 45 F.3d at 754-55 (internal quotation marks and citations omitted). In this case, we have little difficulty in concluding that the alleged 2002 and 2003-04 violations of Title VII do not fall within the continuing violations theory. Aside from these two incidents, all of the allegedly discriminatory actions that Hightower describes took place in or after 2007.*fn31 This three- to-four-year gap renders the earlier incidents temporally "isolated," id., and hence barred by the limitations period.

We have already observed that Title VII and the PHRA bar an employer from "economic" or "tangible" discrimination against an individual, West, 45 F.3d at 753, "because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). According to the Supreme Court, moreover, a "tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits." Burlington Indus., Inc., 524 U.S. at 761. We can thus immediately reject Hightower's discrimination claim based on Shoemaker's requirement that Hightower read articles and report to him and Shoemaker's alleged consequent discipline, as well as Hightower's claim based on the Board's alleged demand that he submit confidential medical information to it before taking FMLA leave.*fn32 Shoemaker's reading requirement clearly does not rise to the level of a tangible employment action, and while the Board's alleged FMLA information requirement might have affected the process whereby Hightower secured leave, it did not "change" his entitlement.

A plaintiff asserting a Title VII discrimination claim may do so either under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or the two-step framework of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Under McDonnell Douglas, a Title VII plaintiff must first carry the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing

(i) that he belongs to a racial minority;

(ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.*fn33 . . . The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection. 411 U.S. at 802. Our Court of Appeals has emphasized that only the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee's rejection. The employer satisfies its burden of production by introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision. The employer need not prove that the tendered reason actually motivated its behavior, as throughout this burden-shifting paradigm the ultimate burden of proving intentional discrimination always rests with the plaintiff.

Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (emphasis in original) (internal quotation marks and citations omitted). To survive a motion for summary judgment once the defendant has carried its burden of production, the plaintiff generally must submit evidence which: 1) casts sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication; or 2) allows the factfinder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.

Id. at 762.

In contrast, in Price Waterhouse, 490 U.S. at 271 (O'Connor, J., concurring),*fn34 the Supreme Court held an employer is not entitled to face only a burden of production, with its "presumption of good faith[,] where there is direct evidence that it has placed substantial reliance on factors whose consideration is forbidden by Title VII." As the Court elaborated,

[I]n order to justify shifting the burden on the issue of causation to the defendant, a disparate treatment plaintiff must show by direct evidence that an illegitimate criterion was a substantial factor in the decision. . . . [W]here a plaintiff has made this type of strong showing of illicit motivation, the factfinder is entitled to presume that the employer's discriminatory animus made a difference to the outcome, absent proof to the contrary from the employer. Where a disparate treatment plaintiff has made such a showing, the burden then rests with the employer to convince the trier of fact that it is more likely than not that the decision would have been the same absent consideration of the illegi sole cause for the decision; rather it must demonstrate that with the illegitimate factor removed from the calculus, sufficient business reasons would have induced it to take the same employment action.timate factor. The employer need not isolate the

Id. at 276. Our Court of Appeals has noted that once a plaintiff presents "direct evidence" of discrimination, "the burden of persuasion on the issue of causation shifts" to the employer. Fakete, 308 F.3d at 338 (emphasis added), and has observed that "[o]ne form of evidence sufficient to shift the burden of persuasion under Price Waterhouse is statements of a person involved in the decisionmaking process that reflect a discriminatory or retaliatory animus of the type complained of in the suit, even if the statements are not made at the same time as the adverse employment decision." Id. at 339 (internal quotation marks omitted); see also Carroll v. Tompkins Rubber Co., 1993 WL 195472, at *5 (E.D. Pa. 1993) ("In the Title VII context, a plaintiff typically presents [direct] evidence in the form of racially derogatory statements his supervisors have made.").

EASD argues that Hightower "has not presented any direct evidence of discrimination," Def.'s Br. at 19, and thus tries to explain why Hightower's discrimination claims fail under McDonnell Douglas. Id. at 19-21. But Hightower has presented direct evidence of discriminatory animus, in the form of an alleged statement by Kish to Coxe about Hightower: "That's why this nigger will never go anywhere in this school district, not while I'm here." Herstich Aff. ¶ 4. It would be difficult to imagine more damning direct evidence of discriminatory motivation.

With support in the record, Hightower has also alleged that Kish participated in the hiring process for the positions of Director of Human Resources and Director of Support Programming in 2007. Pl.'s Facts ¶¶ 18, 24. Hightower also states that the Board participated in selecting the EASD Superintendent in 2008, and that Kish generally intimidated members of the Board, id. ¶¶ 31, 60 -- though he presents no evidence that Kish directly participated in this selection process. It is generally true that "stray remarks by non-decisionmakers or by decisionmakers unrelated to the decision process are rarely given great weight" in analyzing discrimination claims, Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 333 (3d Cir. 1995), though the Supreme Court has inferred under certain circumstances that a dominant officer at an organization likely participated in all employment decisions. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 152 (2000) (concluding that officer was actual decisionmaker based on marriage to formal decisionmaker, practice of berating other company directors, and testimony that all employees feared the officer and that the officer exercised "absolute power"). Even drawing the appropriate inferences in Hightower's favor, we cannot conclude that the mere fact that Kish intimidated EASD Board members means that he influenced all their hiring decisions. In the absence of direct evidence of discriminatory animus by those who participated in the decision-making process, we will analyze the 2008 selection of McGinley as the Superintendent under McDonnell Douglas, not Price Waterhouse.*fn35

Turning back to the 2007 selections, under Price Waterhouse, 490 U.S. at 276, the burden of persuasion thus shifts to the District to "demonstrate that with the illegitimate factor removed from the calculus, sufficient business reasons would have induced it to take the same employment action." The District attempts to carry its burden with respect to the 2007 positions for which Hightower applied by explaining that: (1) Monroe, an African-American woman, was hired as Director of Human Resources in 2007, Def.'s Facts ¶ 21; and (2) "[t]here is no information that McGinley was hired for a racially discriminatory reason" as Director of Support Programming in 2007. Id. ¶ 29.

With respect to its hire of Monroe in 2007, the District has demonstrated that there is no genuine issue of material fact as to whether Hightower would have been hired in the absence of input from Kish. Even though Hightower has presented evidence of discriminatory animus against African-Americans on Kish's part, the fact that EASD ultimately hired Monroe, an African-American woman, as Director of Human Resources shows that racial animus cannot have played a determinative role in that process. The District fails to carry its burden with respect to the selection of McGinley in 2007, however. Hightower's evidence suggesting that he was qualified for central office positions, Pl.'s Facts ¶ 94, and McGinley's status as a non-African-American individual, Def.'s Facts ¶ 27, means that there is genuine dispute in the record as to whether Hightower would have been hired as Director of Support Programming had Kish not participated in the decisionmaking process.

We conclude our analysis of Hightower's discrimination claims by considering his allegations that (1) Paxinosa Elementary School moved to a different building; (2) Castrovinci was selected as Director of Human Resources in 2008 without the position being advertised; and (3) the process whereby McGinley was chosen as Superintendent in 2008 was discriminatory. Because Hightower presents little evidence as to the process leading to the decision to move Paxinosa, we cannot conclude that Kish participated in this process,*fn36 and hence cannot employ the Price Waterhouse framework. Instead, we must proceed under McDonnell Douglas.

For the purposes of EASD's motion, we may dispense with examining the sufficiency of Hightower's prima facie case and immediately observe that under the second step of the analysis the District has "articulate[d] some legitimate, nondiscriminatory reason," Fuentes, 32 F.3d at 763 (internal quotation marks omitted), for moving the school: "[T]he reason the District undertook a re-organization of the schools was to relieve overcrowding, save School District money and implement a 'neighborhood schools' concept." Def.'s Facts ¶ 49. ThoughHightower claims that "the School District did not save any money from the redistricting as it still ran the same number of school buses," Pl.'s Facts ¶ 49, he points to no record evidence -- much less dollars and cents calculations -- in support of this contention. Hightower has thus failed to identify a genuine issue of material fact as to whether the District's reasons for moving Paxinosa were pretextual.

As for the District's choice of Castrovinci as Director of Human Resources, the evidence Hightower presents shows that it was McGinley, in her capacity as Acting Superintendent, who chose Castrovinci for the position. Castrovinci Dep. at 40. Since Hightower has offered no direct evidence of discriminatory animus on McGinley's part, we again proceed under McDonnell Douglas.

Though McDonnell Douglas explicitly states that a plaintiff must show that he applied for a position to establish a prima facie case, 411 U.S. at 802, we recall our Court of Appeals's more generous standard that a plaintiff has established "a prima facie case when sufficient evidence is offered such that the court can infer that if the employer's actions remain unexplained, it is more likely than not that such actions were based on impermissible reasons." Metal Serv. Co., 892 F.2d at 348 (3d Cir. 1990). We simply cannot conclude that Hightower has presented such evidence. We have already rejected his efforts to portray Castrovinci as wholly unqualified. See Pl.'s Facts ¶ 22. In the absence of some evidence as to Castrovinci's qualifications or McGinley's motivations, it is not "more likely than not" that Castrovinci's selection was based on impermissible reasons. Because Hightower has not established a prima facie case, his discrimination claim based on Castrovinci's appointment must fail.

Lastly, we consider the District's choice of McGinley as Superintendent in 2008. We proceed, as noted, under McDonnell Douglas. Once again we may skip directly to the second step of the requisite analysis. The District asserts that when it hired McGinley as Superintendent in 2008, she had central office experience that Hightower did not have. Id. ¶ 35. Hightower concedes this point. Pl.'s Facts ¶ 35. Because the District has thus advanced a legitimate reason for its hiring decision, and Hightower has identified no genuine issue of material fact as to whether this reason was pretextual, his discrimination claim regarding the Superintendent selection process in 2008 cannot withstand summary judgment.

We will therefore grant EASD's motion for summary judgment on Count II of Hightower's complaint, but only insofar as it states a claim for discrimination based on: (1) the District's failure to promote him to the position of Director of Human Resources in 2002, 2003-04, 2007, and 2008; (2) Shoemaker's imposition of reading assignments and discipline upon him; (3) the Board's alleged requirement that Hightower submit medical information to it; (4) the District's decision to move Paxinosa Elementary School to a different building; and (5) EASD's selection of McGinley as Superintendent in 2008.

C. Hightower's Retaliation Claim

Hightower states, in his complaint, that, as a consequence of complaints he made about allegedly discriminatory conduct at EASD, Pl.'s Compl. ¶¶ 25-28, he was publicly disciplined and humiliated, id. ¶ 30 and the District did not consider him for promotions. Id. ¶ 31. Defendant responds that "the allegedly discriminatory denial of promotion that Plaintiff complains of took place significantly prior to any comments made by Plaintiff," Def.'s Br. at 15, and that Hightower has failed to show that (1) he engaged in any protected activity under Title VII, (2) he suffered a materially adverse employment action, or (3) there is a causal link between his allegedly protected activity and any allegedly adverse action. Id. 15-17.

Title VII makes it unlawful "for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a). As our Court of Appeals has explained,

To establish a prima facie case of retaliation, an employee must show that: (1) he or she engaged in a protected employee activity; (2) the employer took an adverse employment action after or contemporaneous with the protected activity; and (3) a causal link exists between the protected activity and the adverse action. If the employee establishes his prima facie case, the familiar McDonnell Douglas approach applies in which the burden shifts to the employer to advance a legitimate, non-retaliatory reason for its conduct and, if it does so, the plaintiff must be able to convince the factfinder both that the employer's proffered explanation was false, and that retaliation was the real reason for the adverse employment action.

Perry, 332 Fed. Appx. at 732 (internal quotation marks and citations omitted). Our Court of Appeals has elaborated on each of the three elements of the prima facie case. With respect to protected activity, it has noted that a]n informal complaint may qualify as protected activity if it protests what an employee believes in good faith to be a discriminatory practice. In other words, a retaliation plaintiff must show that he was acting under a good faith, reasonable belief that a violation existed when he voiced a grievance. To determine if retaliation plaintiffs sufficiently opposed discrimination, we look to the message being conveyed rather than the means of conveyance. Although informal complaints may suffice, the employee's opposition to unlawful discrimination must not be equivocal or vague.

Id. at 732-33 (internal quotations marks, citations, and brackets omitted). With respect to adverse action, a plaintiff "must show that a reasonable employee would have found the alleged retaliatory actions 'materially adverse' in that they 'well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Moore v. City of Phila., 461 F.3d 331, 341 (3d Cir. 2006) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405, 2415 (2006)). In this regard, our Court of Appeals has "specifically found oral reprimands not sufficiently adverse to qualify under the statute." Weston, 251 F.3d at 430. Finally, respecting causation, "case law has focused on two main factors in finding the causal link necessary for retaliation: timing and evidence of ongoing antagonism." Abramson v. William Paterson College, 260 F.3d 265, 288 (3d Cir. 2001). But as the Supreme Court has explained, "cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close." Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001).

We have already recounted the history of complaints upon which Hightower predicates his retaliation claim. See supra Part I.B.3. As we noted in that discussion, many of Hightower's complaints did not involve any suggestion by him that the complained-of conduct was discriminatory. Because an "employee's opposition to unlawful discrimination must not be equivocal or vague," Perry, 332 Fed. Appx. at 733, these complaints constitute barren ground in which to sow a retaliation claim. As for the adverse action to which Hightower was exposed, we will eliminate the assignments and discipline he allegedly received at Shoemaker's hands because no reasonable jury could find that a few reading assignments and meetings, and a single gently worded admonition about communication, "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Moore, 461 F.3d at 341 (internal quotations marks omitted).

We are thus left with the District's repeated failure to promote Hightower as the set of adverse actions that could have constituted retaliation under Title VII. We also have five occasions on which Hightower allegedly protested that events at the District were discriminatory: his complaints about (1) the Minority List and Courtesy Interview Memo to Donaldson and Riker in 2007; (2) the Board's discriminatory FMLA leave policy to Monroe at some point before May of 2008; (3) Kish and Coxe's racist behavior to Castrovinci at an unspecified time; (4) Shoemaker's suggestion that Bonilla receive a "courtesy interview" to McGinley in July of 2008; and (5) EASD's redistricting policy at a meeting in the spring of 2008 which Shoemaker and Kish attended.

Shifting our focus to causation, Hightower has identified no link between his complaints to Monroe and Castrovinci and any adverse action. His failure to specify more precisely when these complaints were lodged prevents us from inferring causation based on temporal proximity. As for antagonism, Hightower has alleged that Monroe filed her own complaints about discriminatory behavior with the District, Pl.'s Facts ¶ 68, making it most unlikely that she would have sought to retaliate against Hightower for voicing his own complaints to her. Both Castrovinci and Hightower testified that they are personal friends. See Castrovinci Dep. at 64 ("Dave and I are professional colleagues and we are personal friends.");

Hightower Dep. at 27 ("I considered him to be a friend."). Since Hightower has not alleged that either Monroe or Castrovinci conveyed his complaints to anyone with whom he did have an antagonistic relationship, we must reject his complaints as to these two individuals as predicates for unlawful retaliation.

Turning to the Minority List complaint to Donaldson and Riker, Hightower provides few particulars as to when he made this complaint. In his testimony, he notes that he talked to Castrovinci about the Minority List shortly after he became aware of it, likely in January of 2007, id. at 26-27 -- and in the same general discussion he notes that he talked to Donaldson and Riker about the list as well. Id. at 26, 28. Even if we infer that Hightower made his complaint to these latter two people in January of 2007, we know nothing of when he applied for the positions of Director of Human Resources and Director of Support Programming, other than that he applied sometime in 2007. Pl.'s Facts ¶¶ 16, 23 (citing Hightower Dep. at 96-100). We can thus infer no causation from temporal proximity between his complaints and his failure to win these positions. Nor does Hightower allege that antagonism existed between him and either Donaldson or Riker. In fact, Riker himself testified that he felt the Minority List and Courtesy Interview Memo were discriminatory.

Riker Dep. at 56. Hightower's complaint to Riker and Donaldson cannot support a retaliation claim.

As for Hightower's complaint about Shoemaker's "courtesy interview" comment to McGinley in July of 2008, Hightower alleges only one adverse action that followed this event, i.e., the District's decision to hire McGinley and not him as Superintendent in August of 2008. It is true that only one month elapsed between these events, and that Hightower suggested in his deposition (albeit without concrete factual support) that McGinley conveyed his complaint to Shoemaker. Hightower Dep. at 144. Even if we inferred that Shoemaker in turn passed this complaint on to the Board before it chose McGinley -- an inference that would amount to rank speculation -- the causal connection between this complaint and the Board's decision not to hire Hightower would still be ephemeral. As Hightower concedes, after soliciting applications for Superintendent the Board selected McGinley as Acting Superintendent in April or May of 2008, later elevating her to Superintendent. No reasonable factfinder could conclude, on this record, that it was Hightower's complaint about Shoemaker that led the Board to promote McGinley from Acting Superintendent to Superintendent instead of choosing Hightower for the position.

We are therefore left only with Hightower's complaint at a meeting in the spring of 2008 that EASD's redistricting policy constituted re-segregation. Hightower alleges, with factual support, that Shoemaker and Kish attended this meeting, and our discussion thus far should make clear that the record supports the existence of antagonism between Hightower and Kish, and possibly between Hightower and Shoemaker. Hightower's complaint was voiced shortly before the Board selected McGinley as Acting Superintendent over Hightower, and we may (generously) infer that either Shoemaker or Kish conveyed this complaint to the Board. On a plaintiff-friendly reading of the facts, we could conclude that Hightower has succeeded in making out a prima facie case of retaliation, though only with respect to his redistricting complaint and the Board's decision not to hire him as Acting Superintendent.

But as we have already explained, the District proffers a legitimate, non-discriminatory reason for its selection of McGinley over Hightower: she had central office experience that he lacked. Def.'s Facts ¶ 36. Indeed, Hightower concedes this point, Pl.'s Fact ¶ 36, though he also attempts to rely on unsupported subjective opinions suggesting that McGinley's hiring was unfair. We have already rejected these opinions, and Hightower comes forth with no other evidence challenging the District's proffered reason. As a result, this last basis for a retaliation claim fails to clear the summary judgment hurdle. We will grant summary judgment on Count III of Hightower's complaint.

D. Hightower's Claim for Punitive Damages

Hightower seeks punitive damages against EASD for each of his claims under Title VII and the PHRA, Pl.'s Compl. at 5, 6, 8, to which EASD responds that "public school districts are considered municipal entities within the rule that punitive damages are not recoverable against municipalities or municipal subdivisions under federal law." Def.'s Br. at 21-22. As Judge Pollak has explained, "when the employer is a municipality, punitive damages are not available under Title VII." Udujih v. City of Phila., 513 F. Supp. 2d 350, 358 (E.D. Pa. 2007) (Pollak, J.). Similarly, "punitive damages are not available under the PHRA." Gagliardo v. Connaught Labs., Inc., 311 F.3d 565, 570, n.3 (3d Cir. 2002). We will therefore grant summary judgment and deny Hightower's prayer for punitive damages.

BY THE COURT: Stewart Dalzell


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