United States District Court, E.D. Pennsylvania
OPINION DEFENDANTS' MOTION TO DISMISS THE THIRD
AMENDED COMPLAINT IN PART AGAINST MILLERSVILLE, ECF NO. 40 -
GRANTED, DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, ECF NO.
41 - GRANTED
F. LEESON, JR., United States District Judge
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.
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.
following facts are either undisputed or viewed in the light
most favorable to Howell, the non-moving party.
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.
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.
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. 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.
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.
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.
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.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.
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.
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.
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
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.
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.
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
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.
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.
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.
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.
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.
STANDARD OF REVIEW
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).
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.
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.
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”).
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.
Prima Facie Case:
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)).
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.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.
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. Pl.'s Opp.
Mot. Summ. Judg. at 22. These allegations satisfy the third
element of the prima facie case.
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.
Defendants' Legitimate Reasons for ...