MEMORANDUM
Plaintiff David Hightower (“Hightower”) sues the Easton Area School District (“EASD” or the “District”), asserting claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Stat. Ann. § 951 et seq.
Hightower works as a principal with EASD, and alleges that the District subjected him to a hostile work environment and discrimination as to promotions and discipline, as well as retaliatory harassment when Hightower complained about discriminatory conduct by the District. EASD has filed a motion for summary judgment, to which Hightower has responded. For the reasons set forth below, we will grant EASD’s motion in part.
I. Factual Background
Under Fed.R.Civ.P. 56(a), “[t]he court shall grant summary judgment 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,” where “[a] party asserting that there is a genuine dispute as to a material fact must support that assertion with specific citations to the record.”
Bello v. Romeo,
As will be seen, this action involves a long and complicated factual background, as evinced by defendant’s and plaintiffs statements of facts and their submissions (accompanied by seven and thirty-eight ex-
A. The Undisputed Facts
The parties agree on the essential details of Hightower’s employment history with the District. Hightower is an African-American man, Pl.’s Compl. ¶ 9; Def.’s Ans. ¶ 9, who began his employment at EASD in 1989 as a physical education teacher. Def.’s Statement of Material Facts (“Def.’s Facts”) ¶¶ 1; Pl.’s Statement of Material Facts (“PL’s Facts”) ¶¶ 1. Hightower became an Assistant Principal with EASD in 1996, and after two and a half years in that position (at Cheston and Palmer Elementary Schools), he advanced to the position of Principal of Paxinosa Elementary School in 1999. Def.’s Facts ¶¶ 2-4; PL’s Facts ¶ 2-4. Hightower still holds this latter position. Def.’s Facts ¶ 4; PL’s Facts ¶ 4.
In 2002, Hightower applied for a position as the Director of Human Resources at EASD and interviewed for the position with Tom Evans (the former Superintendent of EASD) and Dennis Riker 1 (“Riker”) (the Director of Human Resources at EASD). Def.’s Facts ¶¶ 10-11; PL’s Facts ¶¶ 10-11. EASD also interviewed two other candidates, John Castrovinci and Linda Marcincin, but the District ultimately hired none of these people, instead selecting Joseph Kish, a white man. 2 Def.’s Facts ¶¶ 12-14; PL’s Facts ¶¶ 12-14, 60. In 2007, Hightower again applied for the Director of Human Resources position, listing Kish as a reference on his application. Def.’s Facts ¶¶ 16-17; PL’s Facts ¶¶ 16-17. Hightower interviewed twice for the position with a team of EASD administrators that included Riker, Kish, 3 Gregory Shoemaker, 4 Guy Greenfield, and a few others. Def.’s Facts ¶¶ 18-19; PL’s Facts ¶¶ 18-19. However, EASD did not hire Hightower as Director of Human Resources, instead selecting LaToya Monroe, an African-American woman. Def.’s Facts ¶¶ 20-21; PL’s Facts ¶¶ 20-21.
Hightower also applied that year for the position of Director for Support Programming at the District, listing Kish, Shoemaker, and Guy Greenfield as references on his application because they had knowledge of his skills and abilities. Def.’s Facts ¶¶ 23, 25; PL’s Facts ¶¶23, 25. Hightower interviewed for the position with EASD administrators, including Rik
B. The Disputed Evidence
While the parties do not disagree as to the existence of many facts, 5 Hightower alleges an array of additional factual details pertaining to his relationship with EASD that are not found in the District’s statement of facts. These facts pertain to (1) the decision-making processes governing the above hiring choices; (2) racially discriminatory behavior by EASD administrators; (3) complaints that Hightower registered with EASD administrators about perceived discrimination at the District; and (4) harassment that Hightower experienced at EASD.
1. The District’s Hiring Process
As a prefatory matter, with respect to the hiring choices described above, High-tower claims that he was qualified for each central office position for which he applied. Pl.’s Facts ¶ 94 (citing Riker Dep. at 47-48; Ex. 4 to PL’s Facts (“McGinley Dep.”) at 135). Hightower alleges that Kish got the Director of Human Resources position in 2002 despite not having applied or interviewed for the position. 6 PL’s Facts ¶ 14 (citing Kish Dep. at 267-68). Hightower also claims that sometime in 2003 or 2004, Riker placed Donaldson, a white woman, in charge of Human Resources at EASD without posting this position or soliciting an application from Hightower, though Donaldson held no degrees related to human resources, had no human resources certifications, and was not a college graduate. Id. (citing Riker Dep. at 16-18). Both parties agree that after Hightower interviewed for the Director of Human Resources position in 2002, Kish met with Hightower and suggested that he take a position as an assistant principal at Easton Area High School as a way of gaining more experience for a central office position, Def.’s Facts ¶ 15; PL’s Facts ¶ 15. Hightower adds, without factual support other than the hearsay statements of another principal in the District, that such a move would have been “a demotion from which he would not recover in his efforts to be promoted.” PL’s Facts ¶ 15 (citing Ex. 1 to PL’s Facts (“Hightower Dep.”) at 94-95).
As for Hightower’s application in 2007 for the position of Director of Human Resources, he adds that though this selection process resulted in the hiring of Monroe, an African-American woman, it was none
Turning to Hightower’s application for the position of Director of Support Programming in 2007, Hightower suggests that McGinley “received the position because of how she looked and ... that she didn’t even apply for the position.”
Id.
¶ 28 (citing Hightower Dep. at 110-111). Because Hightower predicates this assertion on hearsay statements Kish made to him, we will not consider it further, though we note that Hightower’s suggestion omits details included in the testimony
9
on which
Finally, regarding Hightower’s 2008 application for the position of Superintendent of Schools for the District, Hightower explains that both the PSBA and members of the EASD Board participated in the selection process. PL’s Facts ¶ 31 (citing Ex. 21B to PL’s Facts (“Vulcano Memo”)). Moreover, though the District suggests that it ultimately hired McGinley for the position, Def.’s Facts ¶ 34 (citing Ex. 1 to Def.’s Facts (“Def.’s Hightower Dep.”) at 125-26), Hightower disagrees, asserting instead that McGinley was first appointed Acting Superintendent in May of 2008-a position that was not posted, and for which no interviews were conducted. PL’s Facts ¶ 34 (citing McGinley Dep. at 56-61).
Hightower also contends that McGinley was then appointed Superintendent in August of that year, id. (citing Ex. 21H to PL’s Facts (“Board Minutes”)), even though she did not submit her application by March 20, 2008, id. (citing McGinley Dep. at 65), when the deadline for applications was that date. Id. (citing Ex. 21A to Pl.’s Facts (“Superintendent Application”) at P000469). Though the parties agree that McGinley had central office experience which Hightower did not have, Def.’s Facts ¶ 35; PL’s Facts ¶ 35, Hightower also claims, with supposed support from Monroe’s testimony, that McGinley became Acting Superintendent by “ ‘divine ordination’ ” and “ ‘magic.’ ” PL’s Facts ¶ 35 (citing Monroe Dep. at 35). Hightower further asserts, relying on Myers’ testimony, that “the failure to provide Plaintiff with even an interview for the position of Superintendent was not fair.” Id. ¶ 32 (citing Ex. 16 to PL’s Facts (“Myers Dep.”) at 38). Unfortunately, Hightower does not attach to his submission the page of Monroe’s deposition from which he quotes. Moreover, his summary of Myers’s testimony does not appear to represent it fairly, since the cited pages from Myers’s deposition reveal that he merely responded in the affirmative to the question, “Would you agree with me that you did not believe the hiring of Ms. McGinley as the superintendent was fair?” Myers Dep. at 38. In any case, the opinions attributed to Monroe and Myers upon which Hightower relies are unsupported, vague, and entirely subjective; they consequently carry no weight as we rule on EASD’s motion for summary judgment.
2. Racially Discriminatory Behavior at EASD
Hightower identifies an array of evidence that allegedly demonstrates racially discriminatory animus by EASD administrators. We may divide this evidence into three categories: (1) evidence of racist policies, (2) evidence of racist language, and (3) awareness of racism by others.
There are certain individuals that are to be given “a courtesy interview.” That file is located in the Human Resource Office and should be looked at first. Minorities are included in this file. We have been trying to hire qualified minorities to fill positions. I have been working closely with the NAACP and they have accompanied me to recruiting job fairs.
Courtesy Interview Memo at 2.
Hightower asserts first that, according to Monroe’s testimony, “the Minority List and the efforts to hire minorities was [sic ] nothing more than a ‘farce.’ ” PL’s Facts ¶¶ 42-43 (quoting Monroe Dep. at 65). In Monroe’s deposition, she elaborated that her judgment that the List was a “farce” was based on “the absence of contact information from that list,” which “show[ed] that the entire listing is a farce. It’s a facade. There was no way to contact anyone to be given a courtesy interview or subsequently hired.” Monroe Dep. at 65. Hightower also relies on Monroe’s testimony to support the claim that “[n]o candidates from the Minority List were hired,” PL’s Facts ¶ 42 (citing Monroe Dep. at 44) — though Monroe’s deposition actually states only that she did not hire any minority teachers during her tenure with EASD. Monroe Dep. at 44. Hightower next states that in the judgment of Riker, the Courtesy Interview Memo was discriminatory. PL’s Facts ¶ 43 (citing Riker Dep. at 56). Because Riker did not explain in his testimony why he believed that circulation of the Memo was “discriminatory,” Riker Dep. at 56, we will disregard this conclusion as an unsupported subjective opinion. Finally, Hightower explains that “[t]he Minority List, itself, highlighted names for people to be granted courtesy interviews, although none of the names have certifications to teach in the Commonwealth of Pennsylvania; meanwhile, the names of applicants who did have certifications to teach in Pennsylvania were not even offered courtesy interviews.” PL’s Facts ¶ 42 (citing Minority List and Kish Dep. at 233-35).
It is true that the List identifies three of the fifty-five candidates listed with the bold, underlined label “INTERVIEW,” that none of these three candidates is listed as possessing Pennsylvania certifications, Minority List at 1-3, and that Kish confirmed in his deposition that three of the candidates on the list who were notated as having such certifications were not marked with the “INTERVIEW” label. Kish Dep. at 234-35. But Hightower has pointed to no materials in the record supporting his contention that the List identified all those who were to be granted courtesy interviews with the “INTERVIEW” label, or that none of those with certifications on the list was given such interviews. Because we do not find these latter contentions to be reasonable inferences to be drawn from the record, we decline to do so and will ignore these claims.
The second policy at EASD that High-tower identifies as racially discriminatory involves what he describes as “resegregation in the school district.” PL’s Facts ¶ 45. Hightower explains that the District
Because Hightower’s assertions as to the composition of EASD and Paxinosa Elementary School are unsupported by references to admissible materials in the record, we cannot accept them. However, Hightower also explains, relying on his own affidavit, that “[t]he only school [in the District] that was moved and not returned was Mr. Hightower’s school, Paxinosa. This resulted in Paxinosa’s being moved from a white upper-middle class area to an inner city location,” Pl.’s Facts ¶ 48 (citing Hightower Aff. ¶ 19). In the affidavit Hightower also characterizes Paxinosa Elementary School as “a predominately [sic] minority elementary school.” Hightower Aff. ¶ 22. Hightower further alleges that “$11 million 11 was spent on renovating Mr. Hightower’s school’s old building; students from affluent, suburban areas were transferred into Mr. Hightower’s old building ... Mr. Hightower was moved to an inner city location with a dilapidated, old building that needed work, which was not done.” Pl.’s Facts ¶ 49 siting Hightower Dep. at 66-78). We would presume that Hightower, as an EASD administrator and Principal of Paxinosa Elementary School, would have personal knowledge of these facts, so we will accept these contentions as supported by the record.
The third racially discriminatory policy that Hightower describes is the District’s policy regarding Family and Medical Leave Act (“FMLA”) leave. Both parties agree that EASD has an FMLA Policy No. 335, which states that
The district will require medical certification to support a claim for leave for an employee’s own serious health condition or to care for a seriously ill child, spouse, or parent____For leave to care for a seriously ill child, spouse or parent, the certification must include an estimate of the amount of time the employee is needed to provide care.
Def.’s Facts ¶ 51 (quoting Ex. 3 to Def.’s Facts (“FMLA Leave Policy”) ¶ 3); Pl.’s Facts ¶ 51. Hightower alleges, however, that he was required to provide FMLA information to the EASD Board as well as to the Director of Human Resources, Pl.’s Facts ¶ 50 (citing Hightower Dep. at 131-34), while white employees were not required to provide medical information to the Board. Id. (citing Monroe Dep. at 32-33). Since these claims are based on the testimony of Hightower and Monroe, the former Director of Human Resources, we will accept them as founded on personal knowledge, though we note for completeness that Monroe testified that she never processed FMLA leave for any white principals. Monroe Dep. at 33. Hightower also alleges that Shoemaker attempted to complain to Monroe regarding Hightower’s use of leave. Id. (citing Monroe Dep. at 51). 12
Finally, Hightower alleges that on one occasion, after work hours, Shoemaker by e-mail scheduled one of these meetings for 8:00 a.m. the following morning, though Hightower was attending an administrative conference outside the District on both days, id. ¶ 56 (citing McGinley Dep. at 107-08; Ex. 33 to PL’s Facts (“Shoemaker’s Reprimand”)) — though it bears noting that the e-mail to which Hightower refers actually states, “Please remember that as per our conversation during the meeting we had about your evaluation, we are scheduled to have a discussion ... [at] 8:00 AM tomorrow in my office.” Shoemaker’s Reprimand (including as history the previous e-mail). Hightower missed the meeting because he was attending the conference, id. (citing Hightower Dep. at 146), but he claims that Shoemaker nonetheless provided him with a “written reprimand,” copied to the Superintendent. PL’s Facts ¶ 56 (citing Shoemaker’s Reprimand). Hightower has included this communication in the record, but we observe that it states only, in relevant part, that “I need to point out that you had the opportunity to communicate with me on Thursday at the Workshop that you weren’t going to have the time and to reschedule the date and time of our meeting. As I pointed out to you during the review of your evaluation you need to communicate more effectively.” Shoemaker’s Reprimand.
Fifth, Hightower suggests that the District had a “practice of delivering discipline notices to black employees via armed police officers, while it did not do so with white employees.” PL’s Facts ¶ 76. High-tower relies on testimony by Monroe as to the manner in which she was released from employment — which involved being escorted by two armed guards, Monroe Dep. at 49 — as well as the deposition of Louis Coxe, the white Security Coordinator and Chief of Police for the District from 2003 to the present.
Id.
¶ 66 (citing Ex. 31 to PL’s Facts (“Coxe Dep.”) at 14). Coxe explained that he delivered a disciplinary letter to Cliff Ransom — a black EASD employee and volunteer football coach — during football practice while ac
Hightower also suggests that, unlike other principals, he was not allowed to manage his own staff at Paxinosa Elementary School. When Statum worked at Paxinosa and walked with a walker, High-tower sought to accommodate Statum’s disability by requesting insertion of a buzzer to open doors automatically. Kish and Coxe denied this request. Pl.’s Facts ¶76 (citing Hightower Dep. at 179-81). Moreover, during the 2008 school year, Hightower attempted to move a security officer from an office in his building to another office because the first office was well-located for a particular teacher and group of students. Kish and Coxe overrode this decision. Id. ¶ 85 (citing High-tower Dep. at 185-87). Hightower finally suggests, based on a phone conversation he had with Myers, that the EASD Board was aware that Shoemaker did not permit Hightower to hire his own staff members, while other elementary school principals who were white were permitted to do so. Id. ¶ 86 (citing Hightower Aff. ¶ 6). We will reject this allegation as based on inadmissible hearsay.
We turn now to the discriminatory language that Hightower describes at EASD. According to Hightower, he had a conversation with Riker and Shoemaker in which the latter two administrators suggested that Hightower needed experience with a different population of students to become a viable candidate for a central office position, PL’s Facts ¶82 (citing Hightower Dep. at 173), which Hightower took to mean that he needed to work with a white population. 13 Id. Hightower suggests that he “was informed by Central Office administrators their belief that students at Paxinosa could not learn,” Id. ¶83 (citing Hightower Dep. at 167-68) — though the testimony upon which he relies reveals that he was actually told that “there are also teachers at Paxinosa School who believe that students can’t learn,” Hightower Dep. at 167, a far more equivocal statement that is, in any case, an inadmissible unsupported assessment of third parties’ states of mind. Hightower also claims that EASD Board members falsely accused him of having a sexual relationship with Monroe “because they were both African American.” PL’s Facts ¶ 88 (citing High-tower Aff. ¶ 6). Hightower’s declaration, upon which he relies for this allegation, merely notes that in a conversation High-tower had with Myers, Myers told him that two members of the Board spread a rumor that Hightower and Monroe were “making out” in a school parking lot. Hightower Aff. ¶ 6. We reject this claim as based on inadmissible hearsay.
Both parties agree that after Hightower spoke to McGinley about taking leave, Shoemaker told him, “Well Dave, I spoke to Sue ... about your FMLA .... You’re my boy; it’s not a problem. You don’t—
Hightower’s allegations as to Kish’s language are more extensive. We have already noted Hightower’s claim that Kish advised him as to what to wear to interviews. Id. ¶ 28 (citing Hightower Dep. at 44), 36. Hightower suggests that “Kish had a history of informing black leaders that he would coach black applicants on what to wear to interviews and how to speak, as if the applicants would not know.” Id. (citing Ex. 6 to Pl.’s Facts (“Davis Aff.”) and Ex. 17 to Pl.’s Facts (“Fennell Aff.”) at P000295). Hightower also avers that Kish “informed him that a black applicant was a drug addict with no basis.” Id. ¶ 36 (citing Hightower Dep. at 177). Hightower identifies as further racist conduct Kish’s response to his complaints that EASD was resegregating its schools. According to Hightower, Kish “smugly sa[id], ‘[S]o what? So what are you gonna do about it?’ ” Id. ¶ 36 (quoting Hightower Dep. at 78). Hightower also notes that, in a meeting with Shoemaker and Kish he was directed to suspend a teacher without pay and when he noted that he lacked such authority, Kish responded, “[W]ell, you’re chicken shit because you’re not gonna suspend her for one day.” Id. ¶ 57 (citing Hightower Dep. at 154-55). In conversations with the head of the local NAACP and the senior pastor of the Great Shiloh Church of Easton, Kish suggested, when asked about hiring African Americans for non-teaching positions, that “we’ve got enough minority janitors — we’re OK.” Id. ¶ 77 (citing Fennell Aff. ¶ 14). During these conversations, Kish also noted that “[i]n the Philadelphia school district, they have many black teachers but the school system is in trouble ... so hiring black teachers for EASD is not the answer.” Davis Aff. (ellipsis in original).
As for racial epithets, Hightower himself never personally heard Kish use such language, Def.’s Facts ¶ 36; Pl.’s Facts ¶ 36, nor does he allege that he heard Coxe use such terms. Hightower notes that Ransom informed him that Kish and Coxe referred to black employees as “niggers,” PL’s Facts ¶ 37 (citing Hightower Dep. at 39), but since this statement relies on inadmissible hearsay, we cannot consider it.
Hightower does present a wealth of other, direct testimony on this topic, however. Tina Rosado, a security guard at EASD, testified in her deposition that Kish used the terms “nigger,” “those people,” “spooks,” and “monkeys” to refer to minorities.
15
Id.
¶ 73 (citing Ex. 27 to PL’s Facts (“Rosado Dep.”) at 35-36). Kish’s
Finally, Hightower presents testimony from a variety of deponents attesting that Kish was “racist.” Id. ¶ 37. Hightower testified that Riker informed him that Kish was racist, id. (citing Hightower Dep. at 57-58), and that Myers told him that “black employees were expected to respond to Mr. Kish by saying ‘yes, Massa, yes, Massa.’” Id. (citing Hightower Aff. ¶ 3). Even if these statements were not based on inadmissible hearsay — which they palpably are — we would reject them as unsupported subjective opinions. High-tower also presents testimony from Gregory Annoni suggesting that he heard from other people that Kish and Coxe made comments of a racist nature, id. (citing Ex. 29 to PL’s Facts (“Annoni Dep.”) at 20-21), again, textbook hearsay.
Hightower lastly notes that he complained to Monroe about Kish’s racist behavior, id. (citing Monroe Dep. at 37). While we may consider this statement as revealing of Hightower’s actions, it has no probative value regarding the behavior as to which Hightower complained.
3. Hightower’s Complaints to EASD
Hightower states that he registered complaints with EASD administrators about much of the conduct alleged above. In particular, he complained about the discriminatory character of:
• the Minority List and Courtesy Interview Memo to Donaldson and Riker in 2007, id. ¶ 5 (citing Hightower Dep. at 26-29); the Board’s discriminatory policy as to FMLA leave and Kish’s racist behavior to Monroe at some point before May of 2008, id. (citing Monroe Dep. at 32, 37);
• Kish and Coxe’s racist behavior to Castrovinei, id. (citing Castrovinci Dep. at 64-66);
• Shoemaker’s suggestion that Bonilla receive a “courtesy interview” to McGinley in July of 2008, id. (citing Hightower Dep. at 194; McGinley Dep. at 93-94); and
• EASD’s redistrieting policy at a principals’ meeting which Shoemaker and Kish attended in the spring of 2008, id., suggesting that “this is segregating the school district.” Hightower Dep. at 76.
Hightower also complained about a variety of other conduct, though his references to the record do not suggest that he told anyone that this conduct was discriminatory. Specifically, Hightower complained about:
• “harassment” 17 by Shoemaker atsome point before March of 2007 to Riker, id. (citing Riker Dep. at 19-21);
• Kish’s “racist behavior” 18 in 2006 to Riker, id. (citing Riker Dep. at 21-24; Hightower Dep. at 57-58);
• Kish’s identification of a black job applicant as a drug addict to High-tower, 19 id. (citing Hightower Dep. at 177-78);
• “improper treatment” 20 regarding the Board’s FMLA leave policy to the Board in June of 2008, id. (McGinley Dep. at 101-02; Ex. 25 to Pl.’s Facts (“E-mail to Board”));
• Paxinosa’s move to a dilapidated, inner-city building 21 to McGinley in October of 2008, id. (citing Ex. 8 to PL’s Facts (“E-mail to McGinley”));
• Kish’s failure to approve 22 requests for the provision of basic building and grounds maintenance to Paxinosa Elementary School to McGinley in May of 2010, id. (citing McGinley Dep. at 121; Ex. 30 to PL’s Facts (“Memo to McGinley”));
• Shoemaker’s treatment 23 of High-tower at a meeting to Castrovinci in July of 2008, id. (citing Ex. 26 to PL’s Facts (“Memo to Castrovinci”)); and
• acts 24 in May of 2010, by individuals Kish supervised, to Castrovinci, id. (citing Ex. 28 to PL’s Facts (“Memo II to Castrovinci”)).
4. Harassment of Hightower at EASD
Lastly, we consider Hightower’s allegations as to the harassment he suffered in retaliation for making the complaints we just canvassed. Hightower first suggests
II. Analysis
On a motion for summary judgment, “[t]he moving party first must show that no genuine issue of material fact exists,”
Adderly v. Ferrier,
A. Hightower’s Hostile Work Environment Claim
In his complaint, Hightower alleges that he was subjected to a hostile work environment. This was the consequence of (1) the District’s circulation of the Minority List and Courtesy Interview Memo; (2) racist statements by EASD administrators; (3) the move of Paxinosa Elementary School to an ill-equipped building in an urban setting and general re-segregation at EASD; (4) the District’s failure to consider Hightower for the positions of Director of Human Resources, Director of Support
Both the PHRA
26
and Title VII make it “an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). Courts have interpreted this section to provide for both hostile work environment claims and discrimination claims, with the Supreme Court “recognizing] that Title VIPs protection is not limited to ‘economic’ or ‘tangible’ discrimination, such as the denial or loss of a job or promotion. It is violated as well by a “work environment abusive to employees because of their race, gender, religion, or national origin.’ ”
West v. Phila. Elec. Co.,
As our Court of Appeals has explained, “to establish a prima facie hostile work environment claim under Title VII or the PHRA, a plaintiff must show that (1) the employee suffered intentional discrimination because of his race, (2) the discrimination was pervasive and regular, (3) the discrimination detrimentally affected the plaintiff, (4) the discrimination would detrimentally affect a reasonable person of the same race in that position, and (5) the existence of respondeat superi- or liability.”
Woodard v. PHB Die Casting,
Based on these standards, we will reject the first, sixth, seventh, and ninth bases upon which Hightower predicates his hostile environment claim as insufficient to “create an abusive work environment.”
Id.
Though we are mindful that we must consider the totality of the circumstances in analyzing a hostile work environment claim, we cannot conceive of any reasonable jury finding that these alleged actions contributed to such an environment. Thus, although EASD’s circulation of the Minority List and Courtesy Interview Memo may have upset Hightower, he has not alleged that they affected his work environment in any way. Similarly, Shoemaker’s requirement that High-tower discuss articles with him do not appear to have involved “intimidation, ridicule, [or] insult,”
id.;
Hightower does not suggest that these meetings were anything but civil. As for the discipline and alleged humiliation that Hightower suffered, these appeared to consist of (1) a courteously worded written request from Shoemaker that Hightower try to communicate future scheduling conflicts, (2) an occasion on which Shoemaker pulled Hightower out of a meeting to discuss an article in the library for a couple of hours, and (3) a meeting in which Kish called him “chicken shit.” Of these, the third is the most serious, but even it appears to involve only a “mere offensive utterance.”
Caver,
We are thus left with the second, fifth, and eighth bases for liability that Hightower identifies. We begin with the second basis — alleged racist statements EASD administrators made. Of these statements, we have already rejected several as founded on inadmissible hearsay.
27
We may discard others as so neutral in import that they could not reasonably be taken as
Even with these eliminations, we are still left with a trove of allegedly racist language, to wit: Shoemaker’s request that Hightower “look away when I talk to you,” Hightower Dep. at 148; Kish’s claim to Hightower that a black applicant was a drug addict; Kish’s statement to local leaders that EASD had “enough minority janitors”, Pl.s’ Facts ¶ 77, and “hiring black teachers for EASD is not the answer,” Davis Aff., and rampant use of slurs such as “nigger,” “spook,” “monkey,” and “spic” by Kish and Coxe — including Kish’s alleged statement that “this nigger will never go anywhere in this school district, not while I’m here” in reference to High-tower.
28
Pl.’s Facts ¶¶ 71-73. We may combine these allegations with the fifth and eighth bases for hostile environment liability that Hightower identifies — the requirement that Hightower report confidential medical information to the Board, and the Board’s alleged practice of delivering disciplinary notices to black employees by armed guard — as the only admissible allegations that survive an initial screening for conditions that could not possibly contribute to a “severe” and “pervasive” alteration of Hightower’s working environment.
Perry,
However, our Court of Appeals has noted that a plaintiff “cannot meet the first element of the hostile work environment claim under Title VII ...
solely
by pointing to comments that were directed at other individuals,”
Caver,
We run into a problem when attempting to characterize the remarks Kish allegedly made, using racial epithets
about
Hightower. Hightower suggests that “[c]aselaw does not require a plaintiff to have actually heard a discriminatory comment about him from the maker in order for it to be part of a hostile work environment,” PL’s Br. in Opp. to Def.’s Mot. for Summ. J. (“PL’s Br.”) at 5, and quotes
Williams v. Pennsylvania State Police,
Hightower might argue that comments
about
him are
directed
at him, but such an interpretation fails to comport with the common definition of directed
29
and its sense that the thing directed was purposefully pointed at the recipient. We note further that our Court of Appeals has explained, in discussing hostile work environment claims, that “[a]ll that is required is a showing that race is a substantial factor in the harassment, and that if the plaintiff had been white she would not have been
treated
in the same manner.”
Aman v. Cort Furniture Rental Corp.,
The actions and comments that Hightower alleges
were
directed at him, and hence constituted mistreatment of him, consist of: Shoemaker’s request that Hightower look away during a conversation, Kish’s claim to Hightower that an African-American job applicant was a drug addict, and the Board’s requirement that Hightower on one occasion provide medical information to it before he took FMLA leave. Even if we rely on Kish’s and Coxe’s alleged use of racial epithets, and the claimed use of armed guards to deliver disciplinary notices to black employees to conclude that these actions and comments were racially motivated,
30
we would not agree that a reasonable jury could find that this treatment altered Hightower’s conditions of employment. We do not deny that this treatment,
in combination
with circumstances not present here,
might
support a hostile work environment claim. But by themselves two comments with possibly racist overtones and a one-time requirement that Hightower provide medical information to the Board cannot “create an abusive working environment.”
Perry,
B. Hightower’s Discrimination Claim
Hightower’s complaint states that he was discriminated against based on his race in three ways: (1) he was not promoted to the positions of Director of Human Resources in 2002 and 2007, Director of Support Programs in 2007, and Superintendent in 2008, though he applied for these positions, Pl.’s Compl. ¶ ¶ 16, 18-20;
We will first dispose of the statute of limitations issue. 42 U.S.C. § 2000e-5(e)(1) provides that
[I]n a case of an unlawful employment practice with respect to which the person aggrieved has initially instituted proceedings with a State or local agency with authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, such charge shall be filed by or on behalf of the person aggrieved within three hundred days after the alleged unlawful employment practice occurred.
Hightower alleges in his complaint, without contradiction from EASD, that he filed a complaint with the Pennsylvania Human Relations Commission on September 5, 2008. Pl.’s Compl. ¶ 5; Def.’s Ans. ¶ 5. Both parties also agree that he applied for the position of EASD Superintendent on March 20, 2008 and did not get this position. Def.’s Facts ¶¶ 30, 32. Since this latter incident occurred within the filing period, we must determine whether it is so related to the 2002 or 2003-04 incidents as to bring those first incidents within the statute of limitations.
Our Court of Appeals has explained that
[A] plaintiff may pursue a Title VII claim for discriminatory conduct that began prior to the filing period if he can demonstrate that the act is part of an ongoing practice or pattern of discrimination of the defendant.... To establish that a claim falls within the continuing violations theory, the plaintiff must do two things. First, he must demonstrate that at least one act occurred within the filing period.... Next, the plaintiff must establish that the harassment is more than the occurrence of isolated or sporadic acts of intentional discrimination.
West,
We have already observed that Title VII and the PHRA bar an employer from “economic” or “tangible” discrimination against an individual,
West,
A plaintiff asserting a Title VII discrimination claim may do so either under the burden-shifting framework of
McDonnell Douglas Corp. v. Green,
the initial burden under the statute of establishing a prima facie case of racial discrimination. This may be done by showing (i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications. 33 ... The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.
the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the employee’s rejection. The employer satisfies its burden of production by introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision. The employer need not prove that the tendered reason actually motivated its behavior, as throughout this burden-shifting paradigm the ultimate burden of proving intentional discrimination always rests with the plaintiff.
the plaintiff generally must submit evidence which: 1) casts sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication; or 2) allows the factfinder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action. •
Id. at 762.
In contrast, in
Price Waterhouse,
[I]n order to justify shifting the burden on the issue of causation to the defendant, a disparate treatment plaintiff must show by direct evidence that an illegitimate criterion was a substantial factor in the decision.... [Wjhere a plaintiff has made this type of strong showing of illicit motivation, the factfinder is entitled to presume that the employer’s discriminatory animus made a difference to the outcome, absent proof to the contrary from the employer. Where a disparate treatment plaintiff has made such a showing, the burden then rests with the employer to convince the trier of fact that it is more likely than not that the decision would have
Id.
at 276,
EASD argues that Hightower “has not presented any direct evidence of discrimination,” Def.’s Br. at 19, and thus tries to explain why Hightower’s discrimination claims fail under
McDonnell Douglas. Id.
at 19-21. But Hightower
has
presented direct evidence of discriminatory animus, in the form of an alleged statement by Kish to Coxe about Hightower: “That’s why this nigger will never go anywhere in this school district, not while I’m here.” Herstich Aff. ¶ 4. It would be diffi
With support in the record, Hightower has also alleged that Kish participated in the hiring process for the positions of Director of Human Resources and Director of Support Programming in 2007. Pl.’s Facts ¶¶ 18, 24. Hightower also states that the Board participated in selecting the EASD Superintendent in 2008, and that Kish generally intimidated members of the Board,
id.
¶¶ 31, 60 — though he presents no evidence that Kish directly participated in this selection process. It is generally true that “stray remarks by nondecisionmakers or by decisionmakers unrelated to the decision process are rarely given great weight” in analyzing discrimination claims,
Brewer v. Quaker State Oil Ref. Corp.,
Turning back to the 2007 selections, under
Price Waterhouse,
With respect to its hire of Monroe in 2007, the District has demonstrated that there is no genuine issue of material fact as to whether Hightower would have been hired in the absence of input from Kish. Even though Hightower has presented evidence of discriminatory animus against African-Americans on Kish’s part, the fact that EASD ultimately hired Monroe, an African-American woman, as Director of Human Resources shows that racial animus cannot have played a determinative role in that process. The District fails to carry its burden with respect to the selection of McGinley in 2007, however. High-tower’s evidence suggesting that he was qualified for central office positions, Pl.’s Facts ¶ 94, and McGinley’s status as a non-African-American individual, Def.’s Facts ¶ 27, means that there is genuine dispute in the record as to whether Hightower would have been hired as Director of Support Programming had Kish not participated in the decisionmaking process.
We conclude our analysis of Hightower’s discrimination claims by considering his allegations that (1) Paxinosa Elementary School moved to a different building; (2)
For the purposes of EASD’s motion, we may dispense with examining the sufficiency of Hightower’s
prima facie
case and immediately observe that under the second step of the analysis the District has “articulatefd] some legitimate, nondiscriminatory reason,”
Fuentes,
As for the District’s choice of Castrovinci as Director of Human Resources, the evidence Hightower presents shows that it was McGinley, in her capacity as Acting Superintendent, who chose Castrovinci for the position. Castrovinci Dep. at 40. Since Hightower has offered no direct evidence of discriminatory animus on McGinley’s part, we again proceed under McDonnell Douglas.
Though
McDonnell Douglas
explicitly states that a plaintiff must show that he applied for a position to establish a
prima facie
case,
Lastly, we consider the District’s choice of McGinley as Superintendent in 2008. We proceed, as noted, under
McDonnell Douglas.
Once again we may skip directly to the second step of the requisite analysis. The District asserts that when it hired McGinley as Superintendent in 2008, she had central office experience that High-tower did not have.
Id.
¶ 35. Hightower
We will therefore grant EASD’s motion for summary judgment on Count II of Hightower’s complaint, but only insofar as it states a claim for discrimination based on: (1) the District’s failure to promote him to the position of Director of Human Resources in 2002, 2003-04, 2007, and 2008; (2) Shoemaker’s imposition of reading assignments and discipline upon him; (3) the Board’s alleged requirement that Hightower submit medical information to it; (4) the District’s decision to move Paxinosa Elementary School to a different building; and (5) EASD’s selection of McGinley as Superintendent in 2008.
C. Hightower’s Retaliation Claim
Hightower states, in his complaint, that, as a consequence of complaints he made about allegedly discriminatory conduct at EASD, PL’s Compl. ¶¶ 25-28, he was publicly disciplined and humiliated, id. ¶ 30 and the District did not consider him for promotions. Id. ¶ 31. Defendant responds that “the allegedly discriminatory denial of promotion that Plaintiff complains of took place significantly prior to any comments made by Plaintiff,” Def.’s Br. at 15, and that Hightower has failed to show that (1) he engaged in any protected activity under Title VII, (2) he suffered a materially adverse employment action, or (3) there is a causal link between his allegedly protected activity and any allegedly adverse action. Id. 15-17.
Title VII makes it unlawful “for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). As our Court of Appeals has explained,
To establish a prima, facie case of retaliation, an employee must show that: (1) he or she engaged in a protected employee activity; (2) the employer took an adverse employment action after or contemporaneous with the protected activity; and (3) a causal link exists between the protected activity and the adverse action. If the employee establishes his prima facie case, the familiar McDonnell Douglas approach applies in which the burden shifts to the employer to advance a legitimate, non-retaliatory reason for its conduct and, if it does so, the plaintiff must be able to convince the factfinder both that the employer’s proffered explanation was false, and that retaliation was the real reason for the adverse employment action.
Perry,
[a]n informal complaint may qualify as protected activity if it protests what an employee believes in good faith to be a discriminatory practice. In other words, a retaliation plaintiff must show that he was acting under a good faith, reasonable belief that a violation existed when he voiced a grievance. To determine if retaliation plaintiffs sufficiently opposed discrimination, we look to the message being conveyed rather than the means of conveyance. Although informal complaints may suffice, the employee’s opposition to unlawful discrimination must not be equivocal or vague.
We have already recounted the history of complaints upon which Hightower predicates his retaliation claim.
See swpra
Part I.B.3. As we noted in that discussion, many of Hightower’s complaints did not involve any suggestion by him that the complained-of conduct was discriminatory. Because an “employee’s opposition to unlawful discrimination must not be equivocal or vague,”
Perry,
We are thus left with the District’s repeated failure to promote Hightower as the set of adverse actions that could have constituted retaliation under Title VII. We also have five occasions on which Hightower allegedly protested that events at the District were discriminatory: his complaints about (1) the Minority List and Courtesy Interview Memo to Donaldson and Riker in 2007; (2) the Board’s discriminatory FMLA leave policy to Monroe at some point before May of 2008; (3) Kish and Coxe’s racist behavior to Castrovinci at an unspecified time; (4) Shoemaker’s suggestion that Bonilla receive a “courtesy interview” to McGinley in July of 2008; and (5) EASD’s redistricting policy at a meeting in the spring of 2008 which Shoemaker and Kish attended.
Shifting our focus to causation, Hightower has identified no link between his complaints to Monroe and Castrovinci and any adverse action. His failure to specify more precisely when these complaints were lodged prevents us from inferring causation based on temporal proximity. As for antagonism, Hightower has alleged that Monroe filed her own complaints about discriminatory behavior with the District, Pl.’s Facts ¶ 68, making it most unlikely that she would have sought to retaliate against Hightower for voicing his own complaints to her. Both Castrovinci and Hightower testified that they are personal friends.
See
Castrovinci Dep. at 64 (“Dave and I are professional colleagues and we are personal friends.”); Hightower
Turning to the Minority List complaint to Donaldson and Riker, Hightower provides few particulars as to when he made this complaint. In his testimony, he notes that he talked to Castrovinci about the Minority List shortly after he became aware of it, likely in January of 2007, id. at 26-27 — and in the same general discussion he notes that he talked to Donaldson and Riker about the list as well. Id. at 26, 28. Even if we infer that Hightower made his complaint to these latter two people in January of 2007, we know nothing of when he applied for the positions of Director of Human Resources and Director of Support Programming, other than that he applied sometime in 2007. Pl.’s Facts ¶¶ 16, 23 (citing Hightower Dep. at 96-100). We can thus infer no causation from temporal proximity between his complaints and his failure to win these positions. Nor does Hightower allege that antagonism existed between him and either Donaldson Riker Dep. at 56. Hightower’s complaint to Riker and Donaldson cannot support a retaliation claim.
As for Hightower’s complaint about Shoemaker’s “courtesy interview” comment to McGinley in July of 2008, High-tower alleges only one adverse action that followed this event, i.e., the District’s decision to hire McGinley and not him as Superintendent in August of 2008. It is true that only one month elapsed between these events, and that Hightower suggested in his deposition (albeit without concrete factual support) that McGinley conveyed his complaint to Shoemaker. Hightower Dep. at 144. Even if we inferred that Shoemaker in turn passed this complaint on to the Board before it chose McGinley — an inference that would amount to rank speculation — the causal connection between this complaint and the Board’s decision not to hire Hightower would still be ephemeral. As Hightower concedes, after soliciting ‘ applications for Superintendent the Board selected McGinley as Acting Superintendent in April or May of 2008, later elevating her to Superintendent. No reasonable factfinder could conclude, on this record, that it was Hightower’s complaint about Shoemaker that led the Board to promote McGinley from Acting Superintendent to Superintendent instead of choosing Hightower for the position.
We are therefore left only with High-tower’s complaint at a meeting in the spring of 2008 that EASD’s redistricting policy constituted re-segregation. High-tower alleges, with factual support, that Shoemaker and Kish attended this meeting, and our discussion thus far should make clear that the record supports the existence of antagonism between Hightower and Kish, and possibly between High-tower and Shoemaker. Hightower’s complaint was voiced shortly before the Board selected McGinley as Acting Superintendent over Hightower, and we may (generously) infer that either Shoemaker or Kish conveyed this complaint to the Board. On a plaintiff-friendly reading of the facts, we could conclude that Hightower has succeeded in making out a prima facie case of retaliation, though only with respect to his redistricting complaint and the Board’s decision not to hire him as Acting Superintendent.
But as we have already explained, the District proffers a legitimate, non-discriminatory reason for its selection of McGinley over Hightower: she had central
D. Hightower’s Claim for Punitive Damages
Hightower seeks punitive damages against EASD for each of his claims under Title VII and the PHRA, Pl.’s Compl. at 5, 6, 8, to which EASD responds that “public school districts are considered municipal entities within the rule that punitive damages are not recoverable against municipalities or municipal subdivisions under federal law.” Def.’s Br. at 21-22. As Judge Poliak has explained, “when the employer is a municipality, punitive damages are not available under Title VII.”
Udujih v. City of Phila.,
Notes
. In 2002, Riker was Director of Human Resources at EASD. Def.’s Facts ¶ 11; Pl.’s Facts ¶ 11. Plaintiff further explains that from 2003-04 through March of 2007, Riker was District Superintendent. Pl.’s Facts ¶ 62 (citing Riker Dep. at 11). Riker is a white man. Id. (citing Riker Dep. at 5).
. Hightower notes that Kish was Acting Superintendent from May of 2007 to May of 2008, PL's Facts ¶ 60 (citing Ex. 13 to PL's Facts ("Kish Dep.’’) at 33), and served as Assistant to the Superintendent under Riker and Susan McGinley. Id. (citing Kish Dep. at 28-40). The record also reflects that Kish was Acting Superintendent in 2005. Bush Dep. at 32. Hightower contends, relying on Riker’s deposition, that Kish was perceived as intimidating at the District, PL's Facts ¶ 60 (citing Ex. 2 to PL’s Facts ("Riker Dep.”) at 26), and presents testimony by Myers that BCish intimidated everyone at the Board except Myers. Id. (citing Ex. 16 to Pl.’s Facts ("Myers Dep. I”) at 25). We will accept both these assessments as within the personal knowledge of the deponents, and regard them as admissible.
. While EASD does not list Kish as one of the persons who interviewed Hightower, High-tower states that BCish participated in interviews for the position, if not in Hightower’s interview specifically. Pl.'s Facts ¶ 18 (citing Ex. 14 to Pl.’s Facts ("Monroe Dep. II”) at 13).
. According to Hightower, Shoemaker is a white man who was Director of Elementary Education from 2005 until 2009. Pl.’s Facts ¶ 61 (citing Shoemaker Dep. at 15, 28).
. To be sure, EASD challenges
some
of High-tower's supported factual assertions. As we note below, however, at the summary judgment stage we " 'draw all reasonable inferences in favor of the nonmoving party, and [we] may not make credibility determinations or weigh the evidence.’ ”
Eisenberry v. Shaw Bros.,
. Hightower claims that Kish did not know basic human resources statutes and could not identify whether basic fact patterns violated EASD discrimination policies, PL’s Facts ¶ 92 (citing Kish Dep. 139-47), but, in the testimony to which Hightower cites, Kish fluently answered a variety of hypotheticals pertaining to discrimination.
. Monroe wrote two letters to the President of the EASD Board describing racist conduct at the District. Pl.’s Facts ¶ 68 (citing Monroe Dep. at 10-24; Ex. 22 to Pl.’s Facts (“Monroe Memo I”); Ex. 23 to PL’s Facts ("Monroe Memo II”)). Hightower claims that Monroe was replaced by Kish, "a known racist,” Pl.’s Facts ¶ 80, but the evidence he presents suggests that Castrovinci actually replaced her. Myers Dep. II at 18. Hightower also presents evidence that no genuine investigation was ever conducted of Monroe’s allegations. Myers Dep. at 30.
. While Hightower also claims, with citations to Castrovinci’s deposition, that "there w[ere] no ... interviews” when Castrovinci was named Interim Director, Pl.’s Facts ¶ 22 (citing Castrovinci Dep. at 39-43), Castrovinci actually testified only that "I’m not aware if they interviewed other people.” Castrovinci Dep. at 41.
.In Hightower's deposition, he explained that "[Kish] said, 'Well, then she came in, she came in looking — looking like a librarian, a bookkeeper, hair pulled back in a bun, looking very studious.' And when he made that statement to me, that told me, okay, there's no way in the world I — my hair's the same length as it is now, that I was going to be able to pull my hair back in a bun and then look— look as she did during the interview.” High-tower Dep. at 111.
. In McGinley’s deposition, her interlocutor appears to present her with a writing sample that Hightower prepared and to contend that Hightower was required to submit this sample along with his application. McGinley Dep. at 28-29. Needless to say, such indirect suggestions by a party’s counsel, uncorroborated by anyone with personal knowledge of the matter in question, do not put a fact in play for summary judgment consideration.
. Hightower in fact appears to misstate the amount spent on renovations, since his deposition identifies this amount as $17 million. Hightower Dep. at 68.
. We will also record here that, according to
. In connection with this incident, Hightower notes that he was informed that Riker wanted him to take a position as Principal of Tracy Elementary School, but that this offer was withdrawn without explanation, and that no white principal was offered a school and then had the offer rescinded. Pl.'s Facts ¶ 82 (citing Hightower Dep. at 173-76). Since Hightower offers no factual basis for this latter statement, we will disregard it.
. Notwithstanding this comment, which Hightower described as “racially biased,” Hightower Dep. at 194, Bonilla was ultimately hired as Assistant Principal. Id.
. Hightower also claims that according to Rosado, Kish would speak about handling "minority kids” roughly. PL's Facts ¶ 73 (citing Rosado Dep. at 21-22). Rosado’s testimony actually states that she "heard Joe brag
. Though Herstich does not specify the grounds from which he deduced that this comment referred to Hightower, we will infer that context clues permitted such a deduction.
. Riker’s testimony actually reveals that Hightower "indicated that Mr. Shoemaker’s goals were very aggressive and at times may
. Riker’s testimony actually reflects that Hightower only "commented]” about Kish's "aggressive” leadership style. Riker Dep. at 24. Hightower's own testimony merely records that Riker himself suggested Kish was a racist to Hightower, and does not include Hightower’s response. Hightower Dep. at 57-58.
. Hightower's testimony suggests he did not complain to Kish about his comment or identify it as discriminatory, but instead only asked "Joe, how do you know he's a drug addict? How do you know he’s on drugs?” Hightower Dep. at 177.
. Though Hightower suggests that he complained to the EASD Board in an e-mail, the e-mail itself reveals that he only described the medical conditions necessitating FMLA leave while noting that he "did not feel comfortable” placing this "sensitive information” in correspondence. E-mail to Board.
. Hightower’s e-mail shows that he expressed discontent with the fact that “no members involved in this process ever stated that we were permanently being relocated” over the course of "numerous meetings.” Email to McGinley.
. The record demonstrates only that High-tower "complain[ed] about items not being present in the bottom level of the building as listed on Exhibit 42,” McGinley Dep. at 121, and that he requested that McGinley "review the enclosed information regarding 'Building Renovations and Furniture Needs’ within Paxinosa Elementary School.” Memo to McGinley.
. In Hightower’s memo, he primarily complained that at a meeting Shoemaker made comments “regarding my attendance [that] directed the focus of the meeting toward me and my professionalism with teachers and the meeting turned into a personal intervention session about David Hightower,” and that "the comments made by Mr. Shoemaker in that forum were demeaning to me as a professional.” Memo to Castrovinci.
. In Hightower's memo, he complained about a memorandum regarding community relations that he found to be "unnecessary and demeaning”; a dispute over Hightower’s authority to rescind attendance notification letters; and a dispute over his authority to set dress codes. Memo II to Castrovinci.
. Hightower relies on McGinley’s deposition for the proposition that "this action was totally inappropriate,” Pl.'s Facts ¶ 91, but McGinley’s testimony as to this point was based on a hypothetical question, and in any case merely expressed her subjective and inadmissible opinion. McGinley Dep. at 132.
. As our Court of Appeals has noted, ”[t]he proper analysis under Title VII and the Pennsylvania Human Relations Act is identical, as Pennsylvania courts have construed the protections of the two acts interchangeably.”
Weston v. Pennsylvania,
. To review, these statements included: the assertion that some teachers at Paxinosa School believed that students can’t learn; false accusations by EASD Board members of a sexual relationship between Hightower and Monroe; and the suggestion by Ransom to Hightower that Kish and Coxe used the term "niggers.”
. We recall that the parties agree that High-tower never heard Kish use a racial epithet, Def.’s Facts ¶ 36; Pl.'s Facts ¶ 36. It also bears noting that Hightower presents no evidence suggesting he ever heard Coxe use such an epithet.
. "Aimed, addressed, guided, etc.” IV Oxford English Dictionary 704 (2d ed.1989).
. Such a deduction would be problematic, since Hightower does not identify who allegedly ordered that Monroe should be escorted from her office by armed guards after she was released from her position. Discriminatory actions and comments by Kish and Coxe do not establish discriminatory motivation by Shoemaker or the EASD Board.
. In addition to the failures to promote in 2007 and 2008, Hightower claims that the District moved Paxinosa Elementary School in 2008, Hightower Dep. at 66, and that Shoemaker began requiring him to report on articles at individual meetings at some point after May of 2008. Hightower Dep. at 143-44 (noting that Shoemaker instituted one-on-one meetings with Hightower after he complained to "superintendent McGinley” about Shoemaker's conduct); Pl.'s Facts ¶ 34 (stating that McGinley became Acting Superintendent in May of 2008).
. We have already considered both of these alleged actions as possible predicates for a hostile work environment claim under Title VII and the PHRA.
. Our Court of Appeals has cautioned that "courts need not, and should not, stubbornly analyze all Title VII factual scenarios through the
McDonnell Douglas
formula. Instead, courts must be sensitive to the myriad of ways such an inference can be created. Simply stated, a Title VII plaintiff has established a prima facie case when sufficient evidence is offered such that the court can infer that if the employer’s actions remain unexplained, it is more likely than not that such actions were based on impermissible reasons.”
E.E.O.C. v. Metal Serv. Co.,
. Our Court of Appeals has "recognized that Justice O’Connor's opinion concurring in the judgment represents the holding of the fragmented Court in
Price Waterhouse.” Fakete v. Aetna,
. We will resume this analysis at the end of this section.
. Hightower does allege that Kish and Shoemaker attended a principals’ meeting on redistricting in the spring of 2008, Hightower Dep. at 76, and in a portion of Kish's deposition (to which Hightower failed to point us), Kish notes that he "was on the [redistricting] committee, but it wasn't my responsibility” to create a final plan. Kish Dep. at 179. Without any further information about Kish’s part in the redistricting process, we cannot conclude on this record that he played a role in the decision to move Paxinosa Elementary School.