The opinion of the court was delivered by: Savage, J.
In her meandering "shotgun complaint,"*fn1 Sandy Homel makes claims based on a multitude of legal theories against her former employer, Centennial School District ("CSD"). She alleges First Amendment retaliation under § 1983; sex discrimination under § 1983, Title VII, and the Pennsylvania Human Relations Act (PHRA); retaliation for filing sex discrimination complaints under Title VII and the PHRA; and age discrimination under the ADEA and the PHRA. Each of her counts incorporates by reference all the allegations of its predecessors, leaving to us the onerous task of matching each of her several years worth of factual allegations with a cause of action.
CSD has moved for summary judgment on all counts. For the purpose of considering CSD's motion for summary judgment, we consider Homel's arguments in her response to the motion as best we can identify them.
We hold that CSD is entitled to summary judgment on Homel's First Amendment and ADEA claims. Homel has, however, established that there are triable issues of fact related to her sex discrimination and Title VII/PHRA retaliation claims. Therefore, we shall grant in part and deny in part the summary judgment motion.
The last several years have been tumultuous ones for Centennial School District's administration. The district has had four superintendents in four years, and its school board has been divided by political factions and personal quarrels. Sandy Homel found herself at the center of much of this imbroglio.
The school district is divided into three geographic regions: Warminster, Warminster/Ivyland (collectively, the "Warminster regions"), and Southampton. Three of the school board's nine members are elected from each of these three regions. As a result, six of the board members are elected from the Warminster regions and three from Southampton.
The divide between the Warminster and Southampton board members is more than a matter of geography. According to the testimony of several school board members and district administrators, the board members have formed factions that often split along regional lines. On a number of issues, the board is divided roughly between the six members of the Warminster majority and the three members of the Southampton minority. One such issue is Sandy Homel.
Homel began her career with CSD in 1997 when she was hired as director of secondary education. She has held a number of administrative positions during her tenure. In 2006, CSD promoted Assistant Superintendent Michael Masko to become superintendent in July 2007. Prior to Masko officially assuming the superintendency, Homel interviewed with him for the position of assistant superintendent. To Homel's surprise, Masko offered her a different position--assistant to thesuperintendent. No one at CSD had held this position before, and it carried a lower salary than assistant superintendent. Unlike assistant superintendent, the position of assistant to the superintendent is not created by the Pennsylvania School Code. According to Homel, no woman had served as assistant superintendent at CSD.*fn2 Despite her misgivings, Homel accepted the assistant to the superintendent position.*fn3
Seven months later, CSD offered to promote Homel to assistant superintendent. CSD first gave Homel a copy of Masko's old assistant superintendent contract to review because hers was not ready. When Homel received her own contract, she was surprised to find a "termination without cause" provision that was not in Masko's contract. According to Homel, CSD denied her any opportunity to negotiate the contract or to have it reviewed by an attorney, and informed her that the school board would not ratify her contract without the "termination without cause" provision.*fn4 Homel accepted the promotion to assistant superintendent.
In February and March of 2008--shortly into Homel's tenure as assistant superintendent--school board member Mark Miller, a member of the Southampton minority, approached Homel on at least two occasions and asked her about the purchase of a large kiln for the high school's art department. The kiln purchase allegedly had been made at Masko's direction while he served as assistant superintendent. Miller was apparently concerned that Masko had purchased the kiln without the school board's approval and without following the mandatory bidding procedures for making such purchases. Miller also thought it suspicious that Masko's wife was a teacher in the art department when the kiln was purchased.
Homel agreed with Miller that the purchase appeared suspicious, and eventually provided Miller with a paper record of the transaction. Homel did not bring this information to the full school board, but only worked through Miller. Miller and fellow board member Cynthia Mueller--also a member of the Southampton minority--apparently took the lead on investigating the kiln purchase. Masko resigned as superintendent in June 2008, allegedly at the behest of the school board.
Homel claims that the board members in the Warminster majority disapproved of her actions during Miller's investigation and wanted to damage her career at CSD. She claims that some board members blamed her for Masko's resignation because they believed she was disloyal in revealing his potential wrongdoing. She also claims that members of the Warminster majority were angry for her working through two members of the Southampton minority, rather than bringing the issue to the full board. In her view, the Warminster majority believed that she was aligned with Miller and Mueller to undermine its power.
The board appointed Homel acting superintendent in July 2008. Homel claims that, during her tenure in February 2009, school board member Jane Lynch approached her with a quid pro quo arrangement. According to Homel, Lynch asked her for help in getting her grandchild into kindergarten, even though the grandchild was too young to make the cutoff age. Homel testified that Lynch, knowing that Homel hoped to become full-time superintendent, offered to help her get the school board votes she needed in exchange for the favor.*fn5 Homel claims that she rejected the offer and informed the school board president Thomas Reinboth, but that Reinboth failed to take any action.
Homel interviewed for the full-time superintendent position in early 2009. Shortly thereafter, she was informed that the school board had decided to hire another candidate. Three board members voted for and six board members voted against her application to move beyond the initial interview stage. Miller and Mueller of Southampton were two of the board members who voted for Homel.*fn6 The school board then unanimously selected Thomas Turnbaugh, who had served as superintendent of another district, to become CSD's superintendent. Homel continued to serve as acting superintendent throughout the 2008-2009 school year and until August 2009, when Turnbaugh officially took over.
The parties disagree on why Homel was not selected for superintendent in 2009. According to CSD, the board members preferred Turnbaugh in part because he, unlike Homel, had a doctorate and had prior experience as a superintendent in another district. Homel argues that Turnbaugh's doctorate is pretext because at least two previous superintendents did not have one. Instead, she argues that the school board's decision was politically motivated. She says that she could not garner the five votes she needed because of the fallout from the kiln purchase incident and her refusal to accept Lynch's quid pro quo. She believes that a majority of the board had turned against her.
The district denies that either the kiln purchase controversy or her allegations against Lynch had anything to do with the board's decision not to promote her. It does not dispute that Homel became entangled in board politics. CSD claims that the board members who voted against her believed that she had become a divisive figure in the district's administration. They felt that she had aligned herself with the Southampton minority--particularly Miller and Mueller--to the detriment of the full board. They believed that she regularly met with and provided information to Miller and Mueller without sharing it with the other board members.
The tumult within CSD's administration continued under Turnbaugh. The district's business manager, human resources manager, special education supervisor, and facilities engineering and services director left during his tenure. Two female administrators filed internal complaints against him. One of those administrators was Donna Dunar, who claimed that Turnbaugh had sexually harassed her. During the pendency of this action, Dunar filed a federal suit against CSD, Turnbaugh, and board member Andrew Pollock for sex discrimination, sexual harassment, and retaliation. Dunar has filed an affidavit in support of Homel in this case.
Homel claims that Turnbaugh regularly embarrassed her, berated her, undermined her authority, excluded her, and devalued her work. On January 7, 2010, Turnbaugh reminded her that, under her contract, she could be terminated without cause. The next day, Turnbaugh informed her that she was being removed from her position and placed on leave with pay. The following Monday, Turnbaugh handed her a letter stating that she was being placed on administrative leave under the "no cause termination" provision of her contract.
Homel quickly filed an internal "hostile environment" complaint against Turnbaugh. She claims that, in keeping with its practice of not taking women's discrimination complaints seriously, CSD failed to meaningfully investigate her complaint. Homel filed a charge with the U.S. Equal Employment Opportunity Commission (EEOC) on April 13, 2010, claiming that CSD had discriminated against her based on her age and sex by failing to hire her as superintendent, removing her without cause, undermining her authority, and generally abusing and humiliating her. She claims that CSD made no serious attempt to resolve this or any of her future EEOC charges.
The school board never formally ratified Turnbaugh's decision to put Homel on administrative leave. However, the board did discuss that decision. Six of the board members agreed with it. The three dissenters were Miller, Mueller, and Katherine Driban, all of whom are from Southampton.*fn7 The board members who opposed Homel claim to have done so for the same reason they did not select her to be superintendent in 2009--they felt that she had become a divisive figure in the school administration and continued to share information with Miller and Mueller to the detriment of the full board.
On May 11, 2010, while Homel remained on forced leave, CSD promoted two younger employees, one of whom was male, to cover some of Homel's previous responsibilities. Homel filed a second EEOC charge on June 15, 2010, alleging that those promotions were evidence that her removal was the product of age and sex bias in violation of the ADEA and Title VII. She also alleged in that charge that CSD forced her to work multiple jobs while only paying her for one.
In August, the school board voted to formally terminate Homel's employment at the end of her contract.*fn8 Again, the vote was six to three, with the three board members from Southampton in the minority. The six members who voted for termination claim that they considered this a procedural step formalizing Homel's removal.
Turnbaugh resigned as superintendent in December 2010.*fn9
Homel--who was still on leave--again applied for the
position. Once again the count was six to three with the three members
from Southampton supporting her application. Ultimately, the board
selected Jennifer Cressman, who is 22 years younger than
Homel filed two additional EEOC charges while she remained on forced leave. On January 11, 2011, she filed a charge alleging that CSD had discriminated against her based on age and sex by terminating her. She also alleged that her termination was in retaliation for her previous EEOC charges. On May 11, 2011, she filed another charge, alleging that CSD's decision to hire Cressman constituted age and sex discrimination and was done in retaliation for her three previous EEOC charges.
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Judgment will be entered against a party who fails to sufficiently establish any element essential to that party's case and who bears the ultimate burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In examining the motion, we must draw all reasonable inferences in the non-movant's favor. InterVest, Inc. v. Bloomberg, L.P., 340 F.3d 144, 159-60 (3d Cir. 2003).
The initial burden of demonstrating there are no genuine issues of material fact falls on the moving party. Fed. R. Civ. P. 56(a). Once the moving party has met its burden, the nonmoving party must counter with "'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation omitted). The non-movant must show more than the "mere existence of a scintilla of evidence" for elements on which she bears the burden of production. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Bare assertions, conclusory allegations or suspicions are not sufficient to defeat summary judgment. Fireman's Ins. Co. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Thus, "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 587 (citation omitted).
First Amendment Retaliation
Homel argues that the school board retaliated against her for engaging in constitutionally protected speech. She claims that the board denied her a promotion to superintendent and later removed her from her position as assistant superintendent because she reported to Miller alone, not to the entire board, that Masko's kiln purchase was unusual.*fn10 Homel argues that her discussion of the purchase with Miller led several board members to believe that Homel had aligned herself with Miller and Mueller against the other members. She also argues that some board members felt that she had betrayed Miller by reporting the purchase.
To succeed on her First Amendment retaliation claim, Homel must demonstrate that her speech is protected by the First Amendment and was a substantial factor in CSD taking its retaliatory action. Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009) (citing Hill v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006) ("Kutztown")); see also Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005). Whether Homel's speech is protected is a question of law. Gorum, 561 F.3d at 184. Whether it was a substantial factor in CSD's actions against her is a question of fact. Id. If Homel meets her burden as to both elements, the burden shifts to the district to demonstrate that it would have taken the same action had the speech not occurred. Id. (citing Green v. Phila. Hous. Auth., 105 F.3d 882, 885 (3d Cir. 1997)).
As a threshold matter, we must decide whether Homel's statements to Miller were protected speech. Public employees speaking on matters related to their employment are not afforded the same protection under the First Amendment as are private citizens. See Garcetti v. Ceballos, 547 U.S. 410, 418-19 (2006); see also Rutan v. Republican Party of Ill., 497 U.S. 62, 95 (1990) (Scalia, J., dissenting) (listing cases). When a public employer disciplines an employee for making certain statements, it presumably does so not as a government regulator of private conduct but rather as an employer trying to run its business. Garcetti, 547 U.S. at 418-19. Still, a government employee remains a citizen, and may speak out as a citizen about matters of public concern. Id. at 419. The government employer may only impose those speech restrictions that are necessary for it to operate efficiently and effectively. Id. (citing Connick v. Myers, 461 U.S. 138, 147 (1983)).
The First Amendment protects a public employee's statements when: (1) the employee speaks as a citizen and not in her capacity as an employee; (2) her statement involves a matter of public concern; and (3) the government employer is not justified in treating her differently from a member of the general public for making ...