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Howell v. Millersville University of Pennsylvania

United States District Court, E.D. Pennsylvania

October 20, 2017

ALLEN HOWELL, Plaintiff,


          JOSEPH F. LEESON, JR., United States District Judge


         Plaintiff Dr. Allen Howell filed this action against Millersville University of Pennsylvania and several fellow members of the Millersville University Music Department: Dr. Micheál Houlahan, Dr. Phillip Tacka, Dr. N. Keith Wiley, Dr. Christy Banks, and Dean Diane Umble. Plaintiff alleges age discrimination and age-related hostile work environment against the individual Defendants in their official capacities in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634; retaliation under the First Amendment pursuant to 42 U.S.C. § 1983 against the individual Defendants in their individual and official capacities; and aiding and abetting age discrimination and age-related hostile work environment against the individual Defendants in violation of the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. §§ 951-963. Presently pending are Defendants' Motion to Dismiss the Third Amended Complaint in Part as to Millersville University, ECF No. 40, and Defendants' Motion for Summary Judgment, ECF No. 41. For the reasons set forth herein, both motions are granted.


         A. Procedural Background

         Howell filed his Third Amended Compliant on August 22, 2017, alleging that he suffered age discrimination when the Music Department of Millersville denied him a promotion, demoted him from the position of Director of Choral Activities, and subjected him to two internal investigations, and that various members of the Department retaliated against him for exercising his First Amendment rights. ECF No. 39. Defendants filed their Motion to Dismiss the Third Amended Complaint in Part on September 1, 2017, arguing that although Howell included Millersville University of Pennsylvania as a defendant in the caption of his Third Amended Complaint, he brings no claims against the University in any of the five counts of his Third Amended Complaint. ECF No. 40. On the same day, Defendants filed their Motion for Summary Judgment. ECF No. 41. Howell filed a Response to the Motion to Dismiss on September 15, 2017, ECF No. 54, and a Response to the Motion for Summary Judgment on September 22, 2017, ECF No. 57.

         B. Factual Background

         The following facts are either undisputed or viewed in the light most favorable to Howell, the non-moving party.

         From 1996 through the spring of 2014, Dr. Allen Howell taught music education and conducted non-auditioned choirs in the music department of Edinboro University. Defs.' Stat. Facts ¶ 1, ECF No. 41-1; Pl.'s Resp. to Stat. Facts ¶ 1, ECF No. 57. When he learned in late 2013 that Edinboro was retrenching him, Howell applied for the Director of Choral Activities position at Millersville University, a tenure-track position with the rank of Associate Professor. At the time that this position was advertised, Dr. Jeffrey Gemmell, an adjunct professor with a doctoral degree in choral conducting who is the same age as Howell, conducted Millersville's choirs. Howell Dep. 213:6, Pl.'s Ex. B, ECF No. 57-3.

         Under the collective bargaining agreement with Howell's faculty union and the Pennsylvania State System of Higher Education (PASSHE), Howell's application was to be judged as to whether he was “minimally qualified” for the position, which was a very low standard. Defs.' Stat. Facts ¶ 5; Pl.'s Resp. to Stat. Facts ¶ 5; Houlahan Dep. 68:1-15, 95:18-98:21, Pl.'s Ex. H, ECF No. 57-12; Banks Dep. 40:1-12, Pl.'s Ex. D, ECF No. 57-8. The Music Department faculty assessed Howell's application first and the President of the University made the final decision. Defs.' Stat. Facts ¶ 7; Pl.'s Resp. to Stat. Facts ¶ 7; Houlahan Dep. 68:17-24. The Music Department concluded that Howell was not minimally qualified: faculty members expressed concerns about Howell's familiarity with the repertoire of choral music. Additionally, some faculty felt that Howell's degree did not qualify him for the position. The advertised position stated that a doctorate in choral conducting was “preferred, ” but that an applicant, at minimum, should have completed all the requirements for a doctorate in Choral Conducting except the dissertation. Banks Decl. ¶ 7; Banks Dep. 48-51; Defs.' Ex. D17, ECF No. 47-1. Howell has a Doctorate of Musical Arts with a primary concentration in Music Education and a secondary concentration in Choral Conducting. Howell Dep. at 20-21, 193; Pl.'s Ex. 98, p. 2, ECF No. 57-7. Regardless, the President of the University found Howell to be minimally qualified and, against the Department's recommendation, offered him a position as Director of Choral Activities at the rank of Associate Professor with tenure. Defs.' Ex. 83, ECF No. 45-6.

         In the fall of 2014, Howell began teaching the required credits per year, with extra pay for overloads. Houlahan Decl. ¶ 16, ECF No. 43-7. Howell directs the non-auditioned Men's Glee Club, a standard activity for a choral director. Prabhu Dep. 87: 23-24, Pl.'s Ex. M, ECF No. 57-17; Howell Dep. 68:4-8, 69:6-9. However, he does not conduct the Department's two auditioned choirs or the Women's Choir, which Gemmell still conducts. Gemmel Decl. ¶ 2, ECF No. 43-6.[1] Gemmell states that these three groups “perform a more extensive, complex repertoire at a consistently higher level of musicality than the level of the Men's Glee Club, ” which aims at a “fun-based experience more than curriculum-based learning.” Id. In November, Howell met with Defendant Dr. Micheál Houlahan, Chair of the Music Department, concerning critical comments from students and faculty about Howell's performance. Defs.' Stat. Facts ¶ 18; Pl.'s Resp. to Stat. Facts ¶ 18. Howell reiterated his credentials to Chair Houlahan and asked to direct the more advanced choral ensembles in addition to the Men's Glee Club. Id. In December 2014, Howell and Dr. Toney, another retrenchee hired at the same time as Howell, met with Defendant Dean Diane Umble and complained about Chair Houlihan's micromanagement of the Department and course assignments. Defs.' Exs. 142, 142A, ECF Nos. 45-15, 45-16.

         In June 2015, Howell sent an email to the entire Music Department and Dean Umble, stating that he refused to comply with the Department policy requiring students to buy specific lecture notes to defray the cost of live concerts and objected to the requirement that the students attend those concerts. Defs. Exs. 5, 8, ECF No. 44-1; Wiley Dep. 116-119, ECF No. 42-9; Umble Dep. 196-199, ECF No. 42-8. By November 2015, the Dean's office knew of three complaints about Howell's Popular Music Class: one concerning an explicit and violent music video he had shown in class, another complaining about his unstructured teaching style and open syllabus-and changing that style to “appease” Chair Houlahan on the day he observed class- and a third complaint alleging Howell's inappropriate behavior with his significant other while manning a recruitment table at a school event. Defs.' Ex. 94, ECF No. 45-9; Defs.' Exs. D7, D8, D9, ECF No. 46-1. Dean Umble and Howell met to discuss the complaints, and Dean Umble reported the results to Provost Prabhu, who considered Howell's teaching style unorthodox. Defs.' Exs. 94, D9.

         In Fall 2015, Howell applied for promotion to full professor. Defs.' Ex. 144, ECF No. 45-17; Defs.' Ex. D13, ECF No. 47-1. Promotion criteria as listed in the Millersville University Promotion Statement include: (1) outstanding teaching, (2) service to the department and the University, and (3) evidence of scholarly program with sustained accomplishments in peer-reviewed scholarship. Prabhu Decl. ¶ 10, ECF No. 43-9; Defs.' Ex. 65, ECF No. 44-8. The Department's professional development committee reviewed Howell's application; the committee included Defendant Dr. N. Keith Wiley and Defendant Dr. Phillip Tacka. Wiley Dep. 140-141, 160. Because Howell had only been at Millersville for two years, and the prerequisites for promotion ordinarily required five years as an associate professor, the committee considered his application under the “Exceptional” clause, which allowed unusually qualified candidates early promotion if they met the levels of expectation in all three of the promotion criteria and exceeded them in two out of the three. Defs.' Exs. 22, 23, ECF No. 44-2; Millersville University Promotion Statement p. 8, attached to Prabhu Decl. The committee unanimously recommended against promotion, concluding that Howell's documents included student evaluations from only four classes he taught as opposed to the required five, and that although Howell's CV listed various professional activities, only four of them occurred in the previous four years, and he presented no documentation to support them. Id. Chair Houlahan and Dean Umble both agreed with the committee. Defs.' Exs. 23-24, ECF No. 44-2; Umble Dep. 219:10-14, 227:1-228:2. Lastly, the University-wide promotion and tenure committee considered Howell's application independently and unanimously determined not to recommend him for promotion. Defs.' Stat. Facts ¶ 38; Pl.'s Resp. to Stat. Facts ¶ 38; Defs.' Ex. 32, ECF No. 44-3.

         In 2016, Howell was the subject of an “Article 43” investigation, carried out pursuant to Article 43 of the Collective Bargaining Agreement to resolve a complaint against Howell.[2]DeSantis Decl. ¶¶ 2-3, ECF No. 43-3. The complaint alleged that Howell had provided insufficient supervision to two student teachers, one of whom complained that she did not receive any written feedback. DeSantis Dep. 119:9-120:1. The second incident of inadequate supervision resulted in a loss of student music teacher placement at the particular school involved. Defs.' Exs. 33, 35, ECF No. 44-3; DeSantis Decl. ¶ 3; Umble Dep. 267:15-268:12. Howell explained that his practice, in keeping with his educational philosophy, involved group meetings where he gave verbal feedback to the student teachers he supervised. DeSantis Dep. 122-14. No discipline was imposed, and Howell agreed that he would provide proper feedback in the future as required. DeSantis Decl. ¶ 3.

         In March 2016, several members of the Music Department faculty met with Human Resources Director DeSantis and Dean Umble to share their concerns about Howell, the circumstances of his hiring, his issues with student teaching, his interactions with other faculty members, and their concerns about his hostility. Pl.'s Ex. 66, ECF No. 57-6; Umble Dep. 248:17-21.

         At a Department meeting in May 2016, Chair Houlihan made a statement to the effect that the Department had no Director of Choral Activities to assist with recruiting, but Howell responded that he was the Director of Choral Activities. Wiley Dep. 77:9-78:10. A subsequent grievance Howell filed under the Collective Bargaining Agreement lists the date of the meeting as the date he became aware of age discrimination, although no evidence in the record suggests that age was discussed at the meeting. Wiley Dep. 77:9-14, Defs.' Ex. D12, ECF No. 47-1.

         Between spring 2014 and spring 2016, Tacka made several comments about wanting “young and energetic” or “young and charismatic” people in the positions of Director of Choral Activities and Director of Bands for student recruiting purposes. Howell Dep. 122:15-123:23, 124:3-14, 126:12-24, 127:3-7; Tacka Dep. 139:8-140:16, 267:21-268:6; Wiley Dep. 31:1-14. The first time, at a faculty meeting, Banks and Wiley corrected Tacka, stating that the Department should not focus on a candidate's age, but rather the person's qualifications, which could include charisma and energy. Houlahan Dep. 158:16-24, 160; Wiley Dep. 31:1-32:1; Banks Dep. 160:6-14. Chair Houlahan, Wiley, and Tacka testified that Tacka immediately accepted the correction and clarified that he meant to say charismatic, not young. Wiley Dep. 31:16-20; Houlahan Dep. 159:15-23; Tacka Dep. 139:12-140:16. Howell recalls that Tacka said “young” on two other occasions, but that Chair Houlahan corrected him both times. Howell Dep. 124:17-22. Chair Houlahan and Wiley claim they never heard a discussion about the age of candidates; Howell disputes this and states that they admitted to hearing Tacka's comments about the Department wanting a young person. Houlahan Dep. 71:24-72:1; Wiley Dep. 26, 91:23-92:3, 93:15-19; Pl.'s Stat. Facts ¶ 48 (citing Houlahan Dep. 158:16-22; Wiley Dep. 31:1-12).

         The Music Department contends that they no longer use the title “Director of Choral Activities” to avoid confusion with the position of director of the University's honors college, and use the title “coordinator” instead. Defs.' Stat. Facts ¶ 49 (citing Banks Dep. 164:12-165:21, 192:20-24). Howell disputes this and points to the Millersville website which, as of May 2017, listed Gemmel's position as “Interim Director of Choral Activities.” Pl.'s Ex. 40, ECF No. 57-5. Howell also points out that Banks did not recall the use of title “coordinator” in the Department prior to Howell's arrival, and stated that she did not know any other PASSHE school that uses the title “Coordinator of Choral Activities.” Banks Dep. 165:12-14, 192:2-7.

         Also in May 2016, Chair Houlahan wrote to Dean Umble to document Chair Houlahan's attempts to mentor Howell, observing that “[i]t appears that Dr. Howell feels that the department has ‘an ax to grind, '” noting that Howell had not attended informational sessions about the University's expectations for faculty supervisors of student teachers, such that “[i]t is unclear as to how Dr. Howell has the knowledge to supervise student teachers without attending these meetings.” Defs.' Ex. 72, ECF No. 45-2. Chair Houlahan also stated that based upon past performances, the Department of Music did not believe Howell possessed the skills to be Director of Choral Activities, and documenting complaints from students about Howell's inadequate academic advising. Id.

         In February 2017, the University initiated another Article 42/43 investigation of unprofessional conduct by Howell. Pl.'s Ex. 57, ECF No. 57-6; DeSantis Dep. 180, ECF No. 42-2; Prabhu Dep. 103. The allegations against Howell included an unprofessional response to a student question, poor classroom management during a class discussion, unprofessional social media posting about a student, and communicating information with his Popular Music class that had no relation to the subject matter. The University provided Howell with evidence of the allegations in a letter dated April 5, 2017. Pl's. Ex. 57. The evidence included an email that a student in Howell's Popular Music class sent to Chair Houlahan on February 15, 2017, expressing a concern about how Howell had treated another student during the previous class session. The email stated:

I'm currently taking Pop Music with Dr. Howell, and so far every class we have had he hasn't taught much, if anything about pop music…thus far he has taught everything, but pop music. Subjects have included Satanism and religion, politics (particularly his own political views), anarchy, Trump, the university being a racket, and fighting the establishment. While I understand that these are all fascinating subjects to him, the fact is that he isn't teaching the designated subject. His reply to me was to more or less blow me off and say that that is how he teaches and feels that it is more important.

Id. The email then described how in the previous session, when another student had expressed similar confusion as to how a political video Howell showed related to pop music, Howell responded in a condescending manner and berated the student for questioning his teaching method. Id. The email stated that “Howell attempted to make the kid feel stupid and basically had the class laughing at him, ” and described such behavior as “absolutely unprofessional and unacceptable for a university professor.” Id. The evidence also included a Facebook post dated the same day as the in-class incident that Howell made on a Facebook page entitled “Howell's Students Ask Each Other Questions.” Howell had created the page as an online forum for the Popular Music class, and stated:

Is it not ironic when students want to narrow the focus/scope of their education? It seems to me, when I hear students protest that their educational experiences are too broad (e.g., Why don't we just focus on pop music? Why do we have to focus on the larger issues?), it puts them right where the owners of society want them to be. The rulers do not want citizens capable of critical thinking or citizens who understand the larger issues behind the mundane affairs that we are “supposed” be [sic] thinking about. Musicians, however, consistently address larger issues. If we want to understand their music, we too must address the underlying issues. If students want a fluffy class, they need a different teacher and that is certainly their right. They do not have the right, however (no matter how much they paid for their education) to attempt diminish [sic] the academic freedom (i.e., 1stAmendment rights) of their teachers.

Pl.'s Ex. 57 pp. 5-6, ECF No. 57-6; Pl.'s Stat. Facts. ¶ 53. The investigation expanded in April to include a victimization complaint by the second student. Defs.' Stat. Facts ¶ 53. This investigation has not yet concluded. Defs.' Stat. Facts ¶ 53; Pl.'s Stat. Facts. ¶ 53.

         On April 27, 2017, Howell posted an entry on his Tumblr blog, “Musings, ” entitled, “On Power in the MU Music Department. Defs.' Ex. 62, ECF No. 44-7. The post states that he writes “to share my perspective for the purpose of making a positive contribution to the future success of the department.” Id. Howell then discusses issues he perceives with Chair Houlahan and Tacka's leadership of the Department, accusing them of heavy-handed micromanagement of the faculty designed to maintain control of the Department. Id. Howell contends that Chair Houlahan has tried to keep the ratio of tenured faculty to adjunct faculty low, because younger adjuncts have less political clout and thus pose less of a threat to Houlihan and Tacka's control. Id.

         Significantly, the record contains no evidence that any of the Defendants saw the post: Dean Umble did not see it until her deposition on July 20, 2017. Umble Dep. 205:15-16. Drs. Wiley and Banks testified that they did not see it. Wiley Dep. 122:7-123:1; Banks Dep. 221:10-15, 223:21-22. Banks also noted that she was unaware of any criticism of Howell because of his social media postings. Banks Dep. 222:6-7. Howell presents no evidence that Defendants did see the Tumblr post, but disputes any assertion that they did not know of his criticisms, because he had expressed them publically during faculty meetings, in-person conversations, and on Facebook. Pl.'s Stat. of Facts ¶ 56.

         The Department assigned Howell to teach several large sections of general education classes, teaching over 400 students in the Fall 2016 semester and over 500 students in the Spring 2017 semester. Howell Decl. ¶ 22. Although the Defendants argue that faculty often have to teach general education classes with which they have little experience, Howell contends that no faculty member in the Department was assigned to teach over 500 students per semester like him, and describes his schedule as “punitive.” Houlahan Decl. ¶ 14-16, 21, 22, 24-25, ECF No. 43-7; Howell Decl. ¶ 22, 23.

         In May 2017, Dean Umble evaluated Howell as part of the standard procedure mandating evaluation of retrenchees every three years and decided to schedule an interim evaluation of Howell because she perceived a lack of recent sustained scholarship, professional activity, and service to the Department and University. Umble Decl. ¶ 1-2. Although Dean Umble states that interim evaluations lead to improvements and provide valuable feedback for faculty seeking promotion, Howell contends that they are often the first step in removing a tenured faculty member and impose a burden upon the faculty member under review. Umble Decl. ¶ 2, Howell Decl. ¶ 24.


         Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990). A disputed fact is “material” if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law, and a dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 257 (1986). The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         Once such a showing has been made, the non-moving party must go beyond the pleadings with affidavits, depositions, answers to interrogatories or the like in order to demonstrate specific material facts which give rise to a genuine issue. Fed.R.Civ.P. 56; Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (stating that the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts”). The party opposing the motion must produce evidence to show the existence of every element essential to its case, which it bears the burden of proving at trial, because “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323; see also Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992). “Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true.” Big Apple BMW, Inc. v. BMW of N. Am. Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993).

         IV. ANALYSIS

         A. ADEA

         Howell brings age discrimination claims against Dean Umble, Chair Houlahan, and three other members of the Millersville University music faculty: Drs. Tacka, Banks, and Wiley. Howell contends that since the Department hired him in 2014, Defendants have denied his promotion application, effectively demoted him from his position of Director of Choral Activities, stripped him of his responsibilities to supervise student teachers, and subjected him to heightened scrutiny, including two formal University investigations. Howell links these events to alleged ageist statements made by Chair Houlahan, Tacka, and Banks and a broader “pattern of ageism” in the Department, which allegedly encompasses mistreatment of other older faculty. For the reasons that follow, Howell cannot prevail on his claim as a matter of law, and Defendants' motion for summary judgment is granted with respect to the ADEA claim.

         The Age Discrimination in Employment Act (ADEA) prohibits employers from “discharg[ing] any individual or otherwise discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a)(1). To succeed on an ADEA claim, a plaintiff must establish, by a preponderance of the evidence, that age was the “but-for” cause of the adverse employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009). Age discrimination claims in which the plaintiff relies on circumstantial evidence proceed according to the three-part burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1108 (3d Cir.1997) (reaffirming the application of a “slightly modified version of [McDonnell Douglas] in ADEA cases”).

         Under this three-part burden-shifting framework, the plaintiff must first produce evidence sufficient to convince a reasonable factfinder as to all of the elements of a prima facie case of discrimination. Kautz v. Met-Pro Corp., 412 F.3d 463, 465 (3d Cir. 2005). If a plaintiff establishes a prima facie case, “the burden of production (but not the burden of persuasion) shifts to the defendant, who must then offer evidence that is sufficient, if believed, to support a finding that the defendant had a legitimate, nondiscriminatory reason for the adverse employment decision.” Id. (internal citations and quotations omitted). An employer need not prove, however, that the proffered reasons actually motivated the employment decision. Id. If a defendant satisfies this burden, a plaintiff may then survive summary judgment by submitting evidence from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. Id.

         1. Prima Facie Case:

         To establish a prima facie case of age discrimination, a plaintiff must demonstrate that (1) he is over forty, (2) is qualified for the position in question, (3) suffered from an adverse employment decision, and (4) this replacement was sufficiently younger to permit a reasonable inference of age discrimination. Potence v. Hazleton Area Sch. Dist., 357 F.3d 366, 370 (3d Cir. 2004) (citing Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001)).

         Howell is over forty and therefore satisfies the first element. The parties dispute whether Howell can establish the second element, that he was qualified for the position in question. When Howell first applied, the Department found him unqualified for the position of Director of Choral Activities, but the University President overruled this determination and deemed Howell “minimally qualified.” With respect to the full professorship Howell applied for, the Department found him unqualified under the exceptions clause of the promotion standards, but Howell disputes that the exceptions clause applies and contends he is qualified for the promotion.[3]However, case law requires that a court consider a plaintiff's “objective job qualifications, ” and should leave “the question of whether an employee possesses a subjective quality, such as leadership or management skill ... to the later stage of the McDonnell Douglas analysis.” DiFrancesco v. A-G Adm'rs, Inc., No. CIV.A. 13-4284, 2014 WL 4379114, at *7 (E.D. Pa. Sept. 4, 2014), aff'd, 625 F. App'x 95 (3d Cir. 2015). “When a defendant's argument regarding a plaintiff's qualifications is intertwined with its assertion of a legitimate reason for the employment action, courts should be careful not to collapse the entire McDonnell Douglas analysis in [the] first step.” Id. (citing Cellucci v. RBS Citizens, N.A., 987 F.Supp.2d 578, 590 (E.D. Pa. 2013); Dorsey v. Pittsburgh Assocs., 90 F. App'x 636, 639 (3d Cir. 2004)) (internal quotations omitted). Therefore, because the University found Howell minimally qualified for his position, the Court finds that Howell can establish the second element of the prima facie case.

         Howell can establish the third element, namely, that he suffered an adverse employment action. To satisfy the third element of the prima facie case, an employee must allege an adverse employment action sufficiently severe to have altered the employee's “compensation, terms, conditions, or privileges of employment, or to have deprived or tended to deprive him of employment opportunities or otherwise adversely affected his status as an employee.” Mayk v. Reading Eagle Co., No. CIV.A. 08-4866, 2010 WL 1141266, at *5 (E.D. Pa. Mar. 24, 2010) (citing Robinson v. City of Pittsburgh, 120 F.3d 1286, 1296-1297 (3d Cir. 1997), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)); see also Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir.2001) (explaining that an “adverse employment action” is “an action by an employer that is serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges of employment”). The plaintiff does not have to show economic or tangible discrimination, but at the same time, not every “insult, slight, or unpleasantness” gives rise to a valid claim. Id. “Reassignment with significantly different responsibilities, ” “failure to promote, ” “a less distinguished title, ” “a material loss of benefits, ” and “significantly diminished material responsibilities” can all satisfy the adverse event element. Id. (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)) (holding that an employment action is not materially adverse if it merely bruises the ego, results in a demotion without change of pay, benefits, duties, or prestige, or leads to a merely inconvenient reassignment). Howell contends that he suffered three adverse employment actions: (1) Defendants rejected his promotion application; (2) Defendants demoted him from Director of Choral Activities, leaving him with “significantly diminished material responsibilities, ” see id.; and (3) Defendants subjected him to an Article 42/43 investigation that led to the removal of his student teacher supervising responsibilities.[4] Pl.'s Opp. Mot. Summ. Judg. at 22. These allegations satisfy the third element of the prima facie case.

         With respect to the fourth element, Howell was not replaced by someone younger: the University did not promote someone else instead of him, and Gremmell, who holds the position interim Director of Choral Activities with the duties Howell argues belong to him, is the same age as Howell. Where the plaintiff is not directly replaced, the fourth element is satisfied if the plaintiff can provide facts which “if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015) (citing Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999)). Or, put differently, a “showing that the circumstances of the adverse employment action give rise to an inference of age discrimination” can satisfy the fourth element of the prima facie case. Mayk v. Reading Eagle Co., No. CIV.A. 08-4866, 2010 WL 1141266, at *5 (E.D. Pa. Mar. 24, 2010). Howell can make this initial showing: he has produced evidence that although the University hired him as the Director of Choral Activities, he does not have all the responsibilities of the position. Chair Houlahan's statement that the Department did not have a Director of Choral Activities for recruitment purposes, combined with Tacka's past statements about the desirability of a young Director for recruitment purposes, permits at least a preliminary inference of age discrimination. Accordingly, Howell has established a prima facie case under the ADEA.

         2. Defendants' Legitimate Reasons for ...

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