United States District Court, M.D. Pennsylvania
[Copyrighted Material Omitted]
For Patricia Young, William Young III, Patricia Young, on behalf of her minor daughter, Plaintiffs: Cynthia L. Pollick, LEAD ATTORNEY, The Employment Law Firm, Pittston, PA.
For Pleasant Valley School District, John J. Gress, Principal, in his individual capacity, Defendants: Craig D. Ginsburg, Michael I. Levin, Levin Legal Group PC, Huntingdon Valley, PA.
For Bruce H. Smith, Jr., Defendant: John E. Freund, III, King Spry Herman Freund & Faul, LLC, Bethlehem, PA.
For Mediator, Mediator: Judith Gardner Price, LEAD ATTORNEY, Dougherty Leventhal & Price, LLP, Moosic, PA.
For Dow Jones Local Media Group, Amicus: Gayle C. Sproul, Levine Sullivan Koch Schartz LLP, Philadelphia, PA.
Matthew W. Brann, United States District Judge.
In a May 2, 2013 Order, the Court gave defendant Bruce Smith (hereinafter, " Smith" ) leave to file a motion for partial summary judgment with respect to plaintiff
M. Young's claim that Smith, a former history teacher, is liable under 42 U.S.C. § 1983 because he created a sexually hostile classroom environment that deprived M. Young, Smith's former pupil, of the equal protection of the laws. (ECF No. 445). The circumstances leading to, and the rationale for, that Order were set forth in a previous Memorandum and are not repeated here. 
Smith filed a motion for partial summary judgment and papers in support on May 6, 2012 (respectively, ECF Nos. 456 & 457); M. Young filed papers in opposition on May 24, 2013 (ECF No. 467); and Smith filed papers in reply on June 17, 2013 (ECF No. 470). On July 2, 2013, the Court issued an Order granting Smith's motion. (ECF No. 480). This Memorandum explains the Court's reasons.
I. Summary Judgment Standard
Summary judgment is appropriate where " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is " material" where it " might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is " genuine" where " the evidence is such that a reasonable jury," giving credence to the evidence favoring the nonmovant and making all reasonable inferences in the nonmovant's favor, " could return a verdict for the nonmoving party."
For movants and nonmovants alike, the assertion " that a fact cannot be or is genuinely disputed must" be supported by " citing to particular parts of materials in the record," or by " showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). " If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion." Fed.R.Civ.P. 56(e)(2).
Thus, where the moving party's motion is properly supported and his evidence, if not controverted, would entitle him to
judgment as a matter of law, the nonmoving party, to avoid summary judgment in his opponent's favor, must answer by setting forth " genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party."
Anderson, 477 U.S. at 250. In the face of the moving party's evidence, the nonmoving party's mere allegations, general denials or vague statements will not create a genuine factual dispute. Bixler v. Cent. Pennsylvania Teamsters Health & Welfare Fund, 12 F.3d 1292, 1302 (3d Cir. 1993). Only citation to specific facts is sufficient to show a need for trial.
Anderson, 477 U.S. at 250.
II. Hostile Environment Standard
This is an unusual case. M. Young alleges that Smith is liable under 42 U.S.C. § 1983  because he created a sexually hostile classroom environment that deprived M. Young of the equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution. There is no serious dispute that Smith's allegedly improper classroom speech occurred while he, a public school teacher, was acting under color of state law, but the parties dispute whether M. Young can prove that Smith deprived her " of any rights, privileges, or immunities secured by the Constitution."
The strange twist in the case involves the law to be applied. Whether Smith created a hostile classroom environment that deprived M. Young of the equal protection of the laws is determined by applying standards developed not for the classroom, but in the employment arena under Title VII of the Civil Rights Act of 1964. (See Mem. & Order, May 18, 2012, ECF No. 333 at 23) (noting that the Honorable James M. Munley held in this case that " Title VII standards should be used in determining whether a sexually hostile educational environment existed in violation of Plaintiff's equal protection rights." ).
See also Hayut v. State Univ. of New York, 352 F.3d 733, 744 (2d Cir. 2003) (" Section 1983 sexual harassment claims that are based on a 'hostile environment' theory. . . are governed by traditional Title VII 'hostile environment' jurisprudence." ). This is noteworthy because courts applying Title VII are to give " careful consideration [to] the social context in which particular behavior occurs and is experienced by its target." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998).
In any case, to survive summary judgment M. Young must set forth enough admissible evidence to permit a reasonable jury to conclude that Smith created " a sexually objectionable environment . . . both objectively and subjectively offensive, one that a reasonable person would find
hostile or abusive, and one that the victim in fact did perceive to be so." Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). See also Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005) (quoting Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2001) (stating the formulation developed by the Third Circuit: " Under Title VII, the evidence must establish that: (1) [plaintiff] suffered intentional discrimination because of [sex]; (2) the discrimination was pervasive and regular; (3) it detrimentally affected [plaintiff]; (4) it would have detrimentally affected a reasonable person of the same protected class in [plaintiff's] position; and (5) there is a basis for vicarious liability." ). Determining whether an environment is " hostile" or " abusive" is a holistic endeavor that requires looking at " all the circumstances . . . includ[ing] 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," among other relevant factors.
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). " [A] showing of some minimal level of harassment is necessary before a case is submissible to a jury [and a] court . . . may decide this issue of submissibility on summary judgment." Jackson v. Flint Ink N. Am. Corp., 382 F.3d 869, 869 (8th Cir. 2004). See also Vera v. McHugh, 622 F.3d 17, 27 (1st Cir. 2010) (citations and internal quotation marks omitted) (explaining that " [i]t is the jury's job to weigh [the relevant] factors and decide whether the harassment was of a kind or to a degree that a reasonable person would have felt that it affected the conditions of her employment. The court's role in evaluating such claims [on summary judgment] is to polic[e] . . . the outer bounds." )
Because hostile environment claims risk turning Title VII into a " general civility code," in a number of opinions the Supreme Court has reminded lower courts of the limitations that govern such claims. First, " [c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment - an environment that a reasonable person would find hostile or abusive - is beyond Title VII's purview." Harris, 510 U.S. at 23.
Second, sexually hostile environment claims are actionable only because Title VII prohibits discrimination in the " terms" or " conditions" of employment, and " conduct must be extreme to amount to a change in the terms and conditions of employment."
Faragher, 524 U.S. at 788.
Third, " Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at 'discriminat[ion]. . . because of . . . sex.'" Oncale, 523 U.S. at 80 (alteration in original) (quoting Title VII). Thus our Supreme Court has " never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations." Id. However, the inference of discrimination because of sex can be based on evidence of " explicit or implicit proposals of sexual activity" because it is reasonable to assume the proposer would not have made the same solicitation if the recipient was a man instead of a woman or a woman instead of a man. Id. It would also be reasonable to infer discrimination because of sex when the " victim is harassed in such sex-specific and derogatory terms [so] as to make it clear that the harasser is motivated by general hostility to the presence of [the
victim's sex] in the workplace." Id.  These are just examples, but " [w]hatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted 'discrimina[tion] ... because of ... sex.'" Oncale, 523 U.S. at 81.
III. Factual Background
a) The Evidence at the Conclusion of the First Trial
The claims of M. Young and her co-plaintiff parents, Patricia Young and William Young, were tried before a jury nearly two years ago. On August 26, 2011, the jury returned a verdict for the Young plaintiffs on two of their claims, one alleging that teacher Bruce Smith was liable under 42 U.S.C. § 1983 because he created a sexually hostile classroom environment that deprived M. Young of equal protection of the laws, and another alleging that defendant Pleasant Valley School District (hereinafter " Pleasant Valley" ) violated the First Amendment rights of M. Young and her parents when it retaliated against the Youngs for reporting Smith's wrongdoing. On May 18, 2012, the Honorable Yvette Kane (who presided over the trial) issued a Memorandum & Order in which she vacated judgment and ordered a new trial. (ECF No. 333) (hereinafter " Ct. Mem. & Order in re New Trial" ).
Although Chief Judge Kane determined that the resulting verdict was defective, the evidence adduced at the first trial remains part of the record to be considered on summary judgment. Fed.R.Civ.P. 56(c)(1)(A) & (c)(3). Viewing the evidence in the light most favorable to M. Young -- as the Court must, see Sheridan v. NGK Metals Corp., 609 F.3d 239, 250 n.12 (3d Cir. 2010) ( the Court considering a summary judgment motion must " draw all inferences in a light most favorable to the nonmoving party" ) -- the trial transcript and previously filed papers on record reveal the facts as follows.
In 2007, Smith taught a Twentieth Century History course at Pleasant Valley High School. (Def.'s Facts, May 24, 2013, ECF No. 456-1 ¶ 1) (hereinafter, " Def.'s
Facts" ). He taught in an unorthodox manner -- without a textbook, in reverse chronological order, and making departures from the prescribed curriculum -- using a combination of lecture, powerpoint, and video and audio clips. (Pl.'s Facts, May 24, 2013, ECF No. 466 ¶ 5 (hereinafter, " Pl.'s Facts 2013" ); M. Young Trial Test. at 174; M. Young Dep. at 32). He had shown some of the allegedly offensive images at issue in this litigation (images, at least, of the Manson family and Ed Gein murder victims) to his classes for five consecutive years when M. Young joined his course. (Pl.'s Facts 2013 ¶ 10; Pl.'s Facts, June 3, 2009, ECF No. 96 ¶ ¶ 4-5). Smith was a popular teacher, and M. Young (a Pleasant Valley student) and her peers looked forward to joining his class, having learned " how great a teacher [Smith] was" from one of Smith's colleagues, (M. Young Trial Test. at 209; M. Young Dep. at 19), although today M. Young believes that " Smith was only popular because he talked about sex" (Pl.'s Facts 2013 ¶ 1).
When she was age sixteen, M. Young was assigned to Smith's course for the second semester of her junior year, which began at the end of January or beginning of February 2007. (M. Young Trial Test. at 172-74; M. Young Dep. at ...