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John Volk v. the School District of Philadelphia

February 19, 2013


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


John Volk brings this action against his former employer, the Philadelphia School District ("District"), alleging age discrimination, retaliation and hostile work environment under the Age Discrimination in Employment Act ("ADEA") and Pennsylvania Human Relations Act ("PHRA"); and, gender discrimination, retaliation and hostile work environment under Title VII of the Civil Rights Act of 1964 ("Title VII") and PHRA. The District has moved for summary judgment on all counts.

We conclude that the District is entitled to summary judgment on Volk's claims of wrongful termination due to gender and age discrimination, and the hostile work environment claims. There are disputed issues of fact related to his retaliation claims that must be determined by the jury. Therefore, summary judgment will be granted in part and denied in part.


John Volk has had an eventful career with the District. He began his career with the District in 1970 as a math teacher at Lincoln High School. He was laid off after the 1970-1971 school year when an issue related to his teaching certification arose. He was rehired in January 1972 to teach math at Shaw Junior High School. Volk quit Shaw before the end of the school year because it was a "terrible place" and "[t]he kids were out of control, [and] the administration was inadequate."*fn1 In September 1979 or 1980, he returned to the District as a math teacher at Edison High School. In 1988, he was reassigned to Franklin Learning Center. In the fall of 1989, after a dispute with the principal, Volk was temporarily reassigned to University City High School as a result of a settlement negotiated by his labor union, the Philadelphia Federation of Teachers ("PFT"). The following year, he was assigned to West Philadelphia High School ("WPHS"), where he taught until the end of the 2003-2004 school year. While at WPHS, Volk received two formal disciplinary notices, known as SEH-204s, due to his inadequate performance as a yearbook sponsor and an unspecified issue regarding a student's grade. According to Volk, he left WPHS because he was "being harassed by the principal" who was "mentally sick" and "a sadist" who "was trying to get rid of any longtime teachers" at WPHS.*fn2

In October 2004, the PFT negotiated Volk's transfer from WPHS to Martin Luther King High School ("MLKHS"), where the events central to this action occurred. He remained there until February 2010, at which time he was administratively reassigned and eventually terminated.

At MLKHS, Volk taught math and held a number of positions, including class sponsor and grant writer positions, which provided either additional pay or reduced classroom time. He also served as the PFT building representative, which afforded him "reasonable time without loss of salary" to investigate complaints or grievances of MLKHS teachers.*fn3

Kristina Diviny began working at MLKHS in 1996 as a biology teacher. In 2001, she was named assistant principal. In December 2007, approximately three years after Volk started teaching at MLKHS, she was appointed principal.

Volk contends that once Diviny became his supervisor, he "felt he was treated disparately and negatively by her because of his gender and age."*fn4 He felt that she awarded positions to less qualified younger female teachers, harassed him, and selectively enforced school guidelines as to him. The District denies any selective enforcement or preferential treatment towards younger female teachers by Diviny. The District proffers a number of reasons for not awarding the positions to Volk and eventually terminating him, which boil down to a contention that Diviny, students and teachers found him abrasive and a divisive figure at MLKHS. One teacher felt Volk was harassing her because she received the pathway community coordinator ("PCC") position he had wanted.*fn5 Diviny testified that she felt abused by Volk. She contended that he monopolized meetings and was running the "John Volk show."*fn6

Diviny offered specific reasons for why she assigned younger teachers to certain non-teaching positions. When Volk applied for a class sponsor position, he expressed a preference for a one-year assignment to the senior class sponsor position. He stated that he "would be happy to be class sponsor for any of the classes, but, at [his] age, [he was not] sure [he] should make a long term commitment."*fn7 In June 2008, Diviny selected Volk as the senior class sponsor for the following school year.

Class sponsors followed their classes through high school. For example, a freshman class sponsor in the 2008-2009 school year would serve as sponsor for the same class each year through senior year. Volk contends that he was entitled to serve as a freshman class sponsor after his sponsored senior class graduated. The District argues that Volk had to apply for a freshman class sponsor position. In other words, it was not a lifetime appointment and Volk was never "removed" as a class sponsor. His sponsor position simply expired. Volk identified other teachers who continued as class sponsors.*fn8 However, those teachers were either ninth or tenth grade sponsors.*fn9 None of them looped from senior class sponsor to freshman class sponsor.

Diviny contends that she selected a younger teacher as a freshman class sponsor because that teacher, being a ninth-grade teacher, was already involved with ninth-graders. She thought the ninth-grade connection was important because the freshman class "was an isolated group at [MLKHS]."*fn10 Indeed, the job description of a freshman class sponsor (for the 2013 year) indicates that preference will be given to ninth-grade academy teachers and "first preference will be given to those not already being compensated for another position, then by seniority."*fn11 Diviny testified that making the position a tenured one would deprive newer teachers the opportunity to serve as class sponsors.*fn12 Diviny also testified that, in her professional opinion, the selected teachers were "better suited" for the positions.*fn13

Diviny described her relationship with Volk as adversarial.*fn14 Volk's colleague, Jennifer Freeman, described it as "cantankerous."*fn15 Diviny contends that Volk continually questioned her actions, qualifications, and ability to do her job. In the fall of 2009, during a discussion of a union matter with Diviny, Volk told her that he felt she was "picking on him because of his age."*fn16 According to Volk, Diviny agreed that "there was something going on" with their professional relationship, but could not identify what it was.*fn17 She did not address the age comment.

Volk testified that "several years" prior to 2009, MLKHS was "reconstituted" which resulted in about "80% of the faculty" leaving the school.*fn18 The replacements were "brand-new" young teachers.*fn19 In the 2008-2009 school year, of the eighty-five teachers at MLKHS, thirty were male and fifty-five were female.*fn20 The age breakdown was as follows: nine, including Volk, were born in the 1940s, twenty-one were born in the 1950s, eleven were born in the 1960s, sixteen (of which eleven were female) were born in the 1970s, and twenty-eight (of which nineteen were female) were born in the 1980s.

Diviny testified that there were more female teachers applying and coming into teacher positions at MLKHS. In fact, as an empowerment school, MLKHS was "encouraged to select and garner services through Teach for America in particular."*fn21

The teachers from Teach for America were predominantly young college graduates.*fn22

Consequently, a lot of the new applications and new hires at MLKHS were significantly younger than Volk.

In September 2009, during a teachers' meeting, called the common planning time ("CPT"), Diviny observed Volk working on note cards, instead of participating as was expected of teachers.*fn23 She also contends he was late and left early. Based on these observations, Diviny issued Volk an SEH-204 incident report,*fn24 in which she recommended that the report be placed in his personnel file and serve as a warning "that additional unsatisfactory incidents may lead to further administrative action."*fn25

Volk challenged the SEH-204 at a December 14, 2009 disciplinary conference. At the conference, attended by Diviny, the Labor Relations Assistant in the Office of Employee Relations and a PFT union representative, Volk commented that "there is inconsistent treatment and discipline and that [he] is singled out. [He] added that he believed that this is becoming a pattern."*fn26 At Diviny's insistence, the SEH-204 form was placed in his official personnel file together with a hearing summary.

On February 2, 2010, Diviny received a letter from Volk, in which he wrote: As a courtesy to you, cause of my general affection for you and your family, I am offering you a final opportunity reconsider the negative 204 that you are proposing enter my file. I hope you understand that my professional reputation, crafted over thirty years of service to the children of Philadelphia, is of paramount importance to me, and that I must take all necessary actions to protect that legacy, and that I will do so, regardless of the consequences for others. Please take a moment to reflect on whether a moment of vindictive pleasure is worth the possible consequences. I would prefer to bury the hatchet; I hope you will agree to do so.

If I don't receive a positive response from you within a few days, I will be forced to take whatever actions are open to me within the law. Once I start the snowball down the hill, it might not be possible to stop the avalanche. This is a sincere effort to resolve our differences amicably and should in no way be interpreted as a threat, just a statement explaining by situation.*fn27

Diviny testified that she perceived the letter, along with references to her family, "burying the hatchet," "vindictive pleasure," and "avalanche," to be a threat.*fn28 She immediately contacted Adrienne Tolbert-Jackson, the District's Labor Relations Assistant who had attended the December 14, 2009 disciplinary conference. Tolbert-Jackson advised Diviny that she would discuss the letter with her supervisor, Andrew Rosen, Executive Director of Employee Relations. She instructed Diviny to notify Michael Silverman, the Regional Superintendent, about the letter. Silverman testified that during his conversation with Diviny, he had to calm her down because she was very upset and worried about her children.*fn29 In the meantime, Rosen, who is responsible for advising and assisting principals and administrators in disciplinary matters, reviewed the letter and found it threatening.*fn30 He concluded that the letter constituted a terminable offense.*fn31

On February 18, 2010, Volk removed several students from his classroom for using cell phones and disruptive behavior.*fn32 Subsequently, four students submitted complaints about Volk, reporting that he removed students from his classroom and called students "animals," "devil children," and "the dumbest class he ever had."*fn33 The

students accused him of having "a bad attitude, getting smart, creating a difficult, learning environment, changing practices after first marking period and abusing his power."*fn34 On February 22, 2010, Diviny faxed the student complaints to the administrative office.*fn35

On February 22, 2010, Silverman informed Volk that he was being reassigned to the Comprehensive High School Regional Office effective the following day.*fn36 Volk, who was sixty-four years of age at the time, was replaced by Tim Lin, a male teacher ten years younger than Volk.*fn37

Dr. Sherry Gross, Assistant Regional Superintendent, conducted Volk's first-level disciplinary investigation. She investigated both the threatening letter and the charge that he had improperly removed students from his classroom. On March 18, 2010, Gross and Tolbert-Jackson held an investigatory conference with Volk, who was represented by a PFT representative. At the conference, Volk complained of age and gender discrimination. Tolbert-Jackson responded that that was not the purpose of the conference. Nonetheless, Gross documented his complaints. After the first level investigatory conference, Gross recommended that Volk be ...

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