United States District Court, E.D. Pennsylvania
DOROTHY E. DANIELS
THE SCHOOL DISTRICT OF PHILADELPHIA, et al
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For DOROTHY E. DANIELS, Plaintiff: OLUGBENGA O. ABIONA, LEAD ATTORNEY, PHILADELPHIA, PA.
For SCHOOL DISTRICT OF PHILADELPHIA, LESLIE MASON, KENNETH CHRISTY, RACHEL MARIANNO, KATHERINE PENDINO, Defendants: YVONNE BARNES MONTGOMERY, LEAD ATTORNEY, VENYCLES AMANDA WITTS, TUCKER LAW GROUP, PHILADELPHIA, PA; JOE H. TUCKER, JR., THE TUCKER LAW GROUP, PHILADELPHIA, PA.
Harvey Bartle III, J.
Plaintiff Dorothy E. Daniels (" Daniels" ) brings this employment discrimination action against the School District of Philadelphia (the " School District" ) and individual defendants Leslie Mason (" Mason" ), Kenneth Christy (" Christy" ), Rachel Marianno (" Marianno" ), and Katherine Pendino (" Pendino" ). Daniels alleges violations of her civil rights under: (1) Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.; (2) 42 U.S.C. § § 1981 and 1983; (3) the Age Discrimination in Employment Act (" ADEA" ), 29 U.S.C. § 621 et seq.; and (4) the Pennsylvania Human Relations Act (" PHRA" ), 43 Pa. Stat. Ann. § 951 et seq. Daniels, a school teacher, asserts not only race and age discrimination by the defendants but also retaliation when she complained about it. She further avers that this conduct violated her constitutional rights to free speech and equal protection. 
Before the court is the defendants' motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure.
Summary judgment is appropriate " 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." Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). " A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ..., admissions, interrogatory answers, or other materials; or ... 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).
A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is granted where there is insufficient record evidence for a reasonable jury to find for the plaintiffs. Id. at 252. " The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. We view the facts and draw all inferences in favor of the non-moving party. Boyle v. Cnty. of Allegheny, 139 F.3d 386, 393 (3d Cir. 1998). When ruling on a motion for summary judgment, we may only rely on admissible evidence. See, e.g., Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 95 (3d Cir. 1999).
The following facts are undisputed or viewed in the light most favorable to Daniels as the nonmoving party. Daniels is an
African-American woman who was born on January 2, 1950. She has a bachelor's degree in business administration, a master's degree in elementary education, and the necessary certification to teach Middle Years English, Reading, Literature, Language Arts, Writing, and Speaking.  The School District hired Daniels on a permanent, full-time basis in August 2008 to teach Middle Years English. She taught at the Bregy Middle School (" Bregy" ) during the 2008-2009 school year. While she had some disputes with her superiors at Bregy, she improved her students' standardized testing scores. Daniels was complimented for this achievement by her peers and supervisors and received satisfactory ratings in her performance reviews that year. She was subjected to a forced transfer from Bregy at the end of the school year in June 2009.
A " forced transfer" means a teacher's transfer away from a school because his or her position has been eliminated as a result of a budget shortfall or another allocation-related reason.  For each school year, School District principals set their individual school's budget, including the number of teaching positions at each grade level and the subject-matter certifications required for those positions. The School District's central office reviews the budgets, approves them, and then uses a series of criteria to assign or transfer teachers to match the principals' needs. When a principal eliminates a position or changes the certification requirements as part of the yearly budget process, he or she does not have the authority to determine which faculty members will be subject to a forced transfer. Once a teacher is " forced transferred," he or she is given the opportunity in a " site selection process" to choose a new school based on the availability of a position that meets the teacher's qualifications, seniority, and other factors.
Following her forced transfer from Bregy, Daniels selected a Middle Years English and Reading position at the Thomas Mifflin School (" Mifflin" ) for the 2009-2010 school year. Leslie Mason, a Caucasian female, was in her first year as Mifflin's principal. Complaints by Daniels of illegal conduct begin with her time at Mifflin.
On Parent's Night, September 9, 2009, Daniels states that Mason explained to the group present that some of the Mifflin teachers were old enough to be " grandparents." Daniels, the oldest teacher in the room, urges that Mason's words constituted ageism and were directed against her. She made her feelings known to Mason at some point, but Mason took no action in response. Months later, in March 2010, a colleague informed Daniels that " [t]hey call you Old School." Daniels points to this as further evidence of age-based discrimination.
Daniels also highlights two race-related circumstances during her time at Mifflin. First, at a teachers' meeting during the 2009-2010 school year, one teacher stated that the racial composition of the Mifflin staff did not reflect that of the student body, which is 90% African-American. The teacher suggested that Mifflin hire more African-American staff to remedy this problem. There is evidence that Mason replied that she was not required to hire minority teachers, although in her deposition Mason vigorously contests the circumstances of the conversation.  It is
not clear whether Daniels was present. Second, Daniels without elaboration refers to a continuing Department of Justice investigation at Mifflin for failure to follow undefined federal mandates regarding racial tension. With respect to this investigation, the U.S. Department of Education appears to be facilitating an " Early Complaint Resolution Agreement" between unnamed parties at Mifflin. There is no evidence that that agreement is related in any way to Daniels and her situation.
Daniels' tenure at Mifflin was marked by trouble in the classroom. Since Daniels was new there, School District policy required Mason to conduct a number of formal observations of Daniels' teaching throughout the year. In November 2009 and January 2010 observations, Mason found Daniels' performance to be below standard.  At the year-end evaluation, however, Mason rated Daniels as satisfactory overall. In addition to formal observations, Christine Lokey visited Daniels' classroom at Mason's direction on several occasions throughout the year in order to provide Daniels teaching support. Lokey was a " literacy and math lead" at Mifflin in 2009-2010. In this position, she was expected to help Mifflin teachers with curriculum, teaching practices, classroom management, lesson planning, and professional development. Independent of Mason's direction, Lokey, who is an African-American female in her fifties, had also formed a judgment that Daniels was in need of assistance due to the unruly, disobedient behavior in Daniels' class that Lokey observed. For her part, Daniels did not request this support and states that Lokey's presence interfered with her teaching. It is contested whether Lokey's visits constituted " excessive monitoring" and whether Lokey was sent " to any Caucasian teacher's classroom to harass them." 
At the end of the 2009-2010 school year, Daniels was forced transferred away from Mifflin as a result of Mason's budget allocation for the coming fall. In preparing that budget, Mason made the determination that Mifflin would go " dual cert" in the Middle Years classes. Rather than using three teachers to teach the four Middle Years subjects, one of whom held a dual certification, Mifflin would instead rely on two dual-certified teachers to cover the same instructional ground. It is disputed
whether the School District or Mason notified Daniels of the impending dual certification requirement, but it is conceded that she did not obtain a second certification.
Her position at Mifflin was filled by Amanda Meiers. Meiers is a Caucasian woman, born in 1984. She was the Middle Years Science and Social Studies teacher at Mifflin in 2009-2010. While Mason claims that Meiers became triple-certified by obtaining a Middle Years English certification in the months before the coming 2010-2011 school year, Meiers' personnel file does not reflect this fact. Under the collective bargaining agreement (" CBA" ) between the School District and the teachers' union, the Philadelphia Federation of Teachers (" PFT" ), teachers may be asked to teach one subject outside of their area of certification. No party has pointed us to a reason why teachers must be dual certified in order to avoid a forced transfer when they can stray from their subject-matter certifications in this manner.
The circumstances of Daniels' replacement at Mifflin are thus unclear. Daniels sent her first informal complaint to the School District concerning her experience at Mifflin on September 6, 2010. In addition to a series of disagreements that Daniels had with Mason concerning, for instance, Lokey's classroom visits and the handling of student discipline, this complaint took issue with Mason's " grandparents" comment and the revelation for a colleague that " [t]hey call you old school." Daniels explained that these circumstances constituted ageism and harassment. Daniels followed up by filing her first formal Pennsylvania Human Relations Commission (" PHRC" ) complaint on October 28, 2010, in which she formally claimed that the treatment she received at Mifflin was age and race discrimination.
Daniels taught at the Edwin H. Vare Middle School (" Vare" ) during the 2010-2011 school year. It is disputed whether Daniels was given any notice of her forced transfer from Mifflin before September 2010, but it is not contested that Daniels did not fully participate in the 2010 site selection process.  The extent of her participation is unclear. Either the School District unilaterally assigned Daniels to Vare or she selected that school from a severely restricted set of options. Either way, Daniels " was the only teacher in her age group teaching at Vare." Rachel Marianno, an African-American female with twenty years' experience in the School District of Philadelphia, was Vare's principal that year. Marianno's assistant principal for the sixth grade was Kenneth Christy, a Caucasian male.
Daniels did not have a positive experience at Vare. At the outset, she did not report for the first three days of the school year because she claims that she was not aware of her forced transfer. Christy issued Daniels a disciplinary memo on December 22, 2010 for this and other absences. Marianno has conceded that Daniels' absences at the start of the school year should not have been counted if she did not know of her assignment to Vare. In addition, in the first week or two of the school year, Daniels was not assigned a classroom. She did not have keys to her classroom for weeks despite several requests. She was required to " float" between classrooms, while the
teachers in adjacent classrooms did not do so. Furthermore, while at Vare, Daniels was asked to teach Social Studies, for which she was not certified. It is contested whether Daniels in fact taught Social Studies at Vare as requested.
Daniels' students at Vare were, as a general rule, severely undisciplined. She maintains that students with disciplinary problems were funneled into her class. Daniels attempted to bring several instances of student misconduct to her supervisors' attention in October 2010, November 2010, February 2011, and March 2011. They went unaddressed. In one instance, she filed a police report when one student threatened physical violence against her. Marianno and Christy took no action in response.
Daniels sent an informal complaint via email to Marianno, the principal, on February 2, 2011 in which she stated that the conduct of Marianno and Christy constituted harassment. In the email, Daniels noted her disagreement with Marianno on issues like inputting grades, access to classrooms, and being asked to do more than other teachers. She accused Marianno of changing her teaching assignment in order to justify a formal observation. However, Daniels did not mention any race- or age-related problems. Two days later, Marianno first formally observed Daniels' performance at Vare as unsatisfactory. Two more unsatisfactory observations followed, one of which was conducted by Christy, the assistant principal. All three observations reflected poor classroom management, tardiness, and a lack of preparation on Daniels' part. In her deposition, Marianno stated that " [Daniels'] instruction was extremely lacking, if not the worst I've seen in my 20 years with the district."
Shortly after the first formal observation, Daniels filed a second PHRC complaint on February 22, 2011, which alleged that the conduct of Marianno and Christy at Vare constituted retaliation that was related to the race and age discrimination at Mifflin of which Daniels had complained in her earlier October 2010 PHRC complaint. Daniels then went on sick leave starting March 12, 2011 due to anxiety and depression. She returned on April 18. During her absence, Marianno shouted at Daniels over the telephone concerning her students' grades. Ultimately, Daniels was rated as unsatisfactory for the 2010-2011 school year and was suspended by the School District for three days without pay. Daniels was again forced transferred when Vare became a charter school at the end of the 2010-2011 school year and all School District faculty and personnel were reassigned.
Daniels subsequently participated in the 2011 site selection process and chose to teach at the Penrose School (" Penrose" ) during the 2011-2012 school year as the Middle Years Literacy teacher. Katherine Pendino was the Penrose principal, a position she had held since 1998.  Beginning in mid-September and continuing through the fall of 2011, Pendino found Daniels' teaching to be below standard. The two women were at loggerheads throughout Daniels' abbreviated tenure at Penrose.
For example, on September 14, 2011, Pendino observed that Daniels' lesson plan was not effective, that she did not communicate expectations to students, and that her lessons were ineffectively delivered. As at Vare, Daniels referred Penrose students to Pendino for disciplinary problems, and Pendino in turn held Daniels responsible for the students' misbehavior. Daniels purportedly engaged in two " unsatisfactory
incidents" when she sent a student to the faculty lounge and when she failed to prepare literacy plans in accordance with school policy. Following these incidents, Pendino issued Daniels a disciplinary memo and had a conference with Daniels and her union representative. Indeed, Pendino issued disciplinary memos to Daniels on a near-weekly basis from mid-September to mid-December 2011, a frequency which Daniels described as harassment that " border[ed on] terrorism--water boarding."
Daniels vigorously disputes the assessments made in these memos. According to Daniels, Pendino held her accountable for tardiness after assuring her that she need not note her arrival time on a sign-in sheet. Daniels further states that she had timely submitted lesson plans and that Pendino made a number of comments disparaging Daniels' teaching in front of students. Pendino remarked that Daniels was " no good" and " want[ed] to get rid of her." Daniels was moved from Middle Years English to sixth grade English and Mathematics in October 2011, and her replacement was a " younger, Caucasian teacher." In a memo, Pendino wrote that a " Ms. Foy" would be teaching Middle Years English from then on as part of a larger rearrangement of teaching assignments, but there is no further evidence on Foy or this reassignment.
Daniels complained to school officials about Pendino. She wrote a December 7, 2011 letter to a School District administrator in which she detailed several instances of Pendino's conduct with which she took issue. She supplemented her February 2010 PHRC complaint against Marianno and Christy with a December 13, 2011 letter listing grievances against Pendino, among them complaints of ageism and racism. Finally, she filed a confidential Educator Misconduct Complaint with the Pennsylvania Department of Education on December 17, 2011. In that complaint, she asserted that Pendino had recruited students to write surreptitiously what Daniels said to them. 
Importantly, however, at no point did Daniels complain directly to Pendino. Indeed, when presented the opportunity to defend herself from further discipline with the assistance of a union representative, Daniels failed to appear at scheduled conferences with Pendino on at least three occasions. In her brief, Daniels wonders what could explain " Pendino's sudden animosity towards [her]" so early in the school year, ultimately concluding that Pendino " ha[d] been enlisted by [School District] administrators to subject [Daniels] to retaliatory harassment and hostile work environment." Nonetheless, other than this conjecture, there are no facts presented to suggest Pendino had any knowledge of Daniels' complaints against any defendant. On or about December 15, 2011, citing repeated performance deficiencies, Pendino made a formal recommendation that Daniels be terminated.
That same month, Daniels requested " Family Medical Leave Absence" (" FMLA" ) until March 21, 2012 to address the anxiety and depression that she continued to suffer as a result of her work difficulties. The School District, in denying the FMLA request, explained that Daniels had not worked the requisite number of hours in order to be eligible. Daniels does not contest this finding. A School District-employed physician, who was not a psychiatrist or psychologist, examined Daniels in January 2012 and found
her fit to return to work. Thereafter, Daniels requested a third-party physician's evaluation through her union, the PFT. This physician's ...