REESE v. SOURCE 4 TEACHERS

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENDALL D. REESE : CIVIL ACTION

Plaintiff :

:

v. : NO. 17-4588

:

SOURCE 4 TEACHERS :

Defendant :

NITZA I. QUIÑONES ALEJANDRO, J. SEPTEMBER 29, 2021

MEMORANDUM OPINION

INTRODUCTION

Plaintiff Kendall D. Reese (“Plaintiff”) initially filed a pro se civil action against Defendant

Source 4 Teachers (“Defendant”), purporting to assert a claim under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), based on his contention that Defendant’s

failure to hire him as a substitute teacher was discriminatory. [ECF 3, 5]. Subsequently,

Defendant’s motion to dismiss was granted, without prejudice, under Federal Rule of Civil

Procedure (“Rule”) 12(b)(6), with leave to amend. [ECF 17]. With the assistance of counsel,

Plaintiff filed a second amended complaint (the “operative complaint”) pursuant to “Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988, the First, Fifth, and

Fourteenth Amendments to the United States Constitution, [and] other constitutional provisions

and federal and state statutes,” seeking declaratory and injunctive relief, compensatory damages,

and punitive damages against Defendant for the alleged violations of his rights guaranteed under

the laws of the United States, and for personal and other injuries in violation of laws of the

Commonwealth of Pennsylvania. [ECF 26].

Before this Court are Defendant’s motion for summary judgment filed pursuant to Rule 56,

[ECF 68], Plaintiff’s response in opposition, [ECF 71], and Defendant’s reply, [ECF 72]. The

issues raised in the motion are fully briefed and ripe for disposition. For the reasons set forth

herein, Defendant’s motion is granted, and judgment is entered in favor of Defendant on all of

Plaintiff’s claims.

BACKGROUND

Plaintiff claims that Defendant discriminated against him on the basis of his race.

Specifically, Plaintiff contends that Defendant refused to hire him as a substitute teacher pursuant

to a Pennsylvania statute, 24 Pa. Cons. Stat. § 1-111(e), which he argues has a disparate,

discriminatory impact on African American men. This statute disqualifies individuals with certain

criminal convictions from employment at a public or private school. Defendant moves for

summary judgment on the basis that Plaintiff has failed to present evidence sufficient to meet his

burden.

When evaluating a motion for summary judgment, a court must consider all record

evidence and relevant facts in the light most favorable to the nonmoving party—here, Plaintiff.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Galena v. Leone, 638 F.3d 186,

196 (3d Cir. 2011). The facts relevant to this motion are summarized as follows:1

Plaintiff is an African American male with a master’s degree. Defendant is

a private, for-profit company that provides substitute teacher staffing services to

various educational institutions across the country. On October 26, 2015, Plaintiff

applied for a substitute teacher position with Defendant. The employment

application process included agreeing to a criminal background check. Along with

the application, Plaintiff also completed an Arrest/Conviction Report and

Certification Form, in which he indicated that he had never been arrested or

convicted of a reportable offense.

Defendant conducted a background check of Plaintiff, which included

reports from the Pennsylvania State Police and the Federal Bureau of Investigation.

These reports revealed that Plaintiff had been convicted of felony offenses in 1990

1 These facts are taken from the parties’ briefs, exhibits, and statements of facts. To the extent that

any evidence is disputed, such disputes will be noted and construed in the light most favorable to Plaintiff.

Galena, 638 U.S. at 196.

and 1991 involving robbery and drug crimes committed in 1985 and 1988. For

each of those convictions, he was sentenced to a term of 11½ to 23 months

incarceration.

On November 20, 2015, Defendant sent Plaintiff an email with the subject

line, “Re: Ineligible for Employment,” with the following message:

Our legal department has determined you ineligible for hire based

on previous felony conviction(s) detailed in your FBI Clearance

Letter and or PA State Police Record Check. Unfortunately, we will

not be able to continue with your application. Any felony

conviction(s) results in the immediate disqualification from the

application process.

Defendant did not hire Plaintiff as a substitute teacher.

LEGAL STANDARD

Rule 56 governs summary judgment motion practice. Fed. R. Civ. P. 56. Summary

judgment is appropriate “if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.” Id. A fact is “material” if proof

of its existence or non-existence might affect the outcome of the litigation, and a dispute is

“genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Anderson, 477 U.S. at 248. Under Rule 56, a court must view the evidence in the light

most favorable to the nonmoving party—here, Plaintiff. Galena, 638 F.3d at 196.

Under Rule 56(c), the movant bears the initial burden of informing the court of the basis

for the motion and identifying those portions of the record that the movant “believes demonstrate

the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986). This burden can be met by showing that the nonmoving party has “fail[ed] to make a

showing sufficient to establish the existence of an element essential to that party’s case.” Id. at

322. After the moving party has met its initial burden, summary judgment is appropriate if the

nonmoving party fails to rebut the moving party’s claim by “citing to particular parts of materials

in the record, including depositions, documents, electronically stored information, affidavits or

declarations, stipulations . . . , admissions, interrogatory answers, or other materials” that show a

genuine issue of material fact or by “showing that the materials cited do not establish the absence

or presence of a genuine dispute.” Fed. R. Civ. P 56(c)(1)(A)–(B). The nonmoving party must

“do more than simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving

party may not rely on “bare assertions, conclusory allegations or suspicions,” Fireman’s Ins. Co.

of Newark v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982), nor rest on the allegations in the

pleadings. Celotex, 477 U.S. at 324. Rather, the nonmoving party must “go beyond the pleadings”

and “designate specific facts showing that there is a genuine issue for trial.” Id. (internal quotations

and citations omitted).

DISCUSSION

In this employment action, Plaintiff’s main contention is that Defendant violated Title VII,

the Pennsylvania Human Relations Act (“PHRA”), 42 U.S.C. § 1981, and other federal statutes

when it discriminatorily rejected, on the basis of his race, his application for employment as a

substitute teacher. Plaintiff also asserts claims against Defendant under 42 U.S.C. §§ 1983, 1985,

1986, and 1988. These claims will be addressed separately.

I. Plaintiff’s Race Discrimination Claims

Defendant moves for summary judgment on Plaintiff’s race discrimination claims brought

pursuant to Title VII, the PHRA, and § 1981, arguing that Plaintiff has not presented sufficient

evidence from which a reasonable factfinder could find in his favor. This Court agrees.

Title VII and the PHRA prohibit employers from discriminating against candidates for

employment on the basis of race. 42 U.S.C. § 2000e-2(a)(1);2 43 Pa. Cons. Stat. § 955(a);3 Goosby

v. Johnson & Johnson Med., Inc., 228 F.3d 313, 318 (3d Cir. 2000). A claim under § 19814

generally requires the same elements as an employment discrimination claim under Title VII, but

“is limited to issues of racial discrimination in the making and enforcing of contracts.” Anjelino

v. N.Y. Times Co., 200 F.3d 73, 98 (3d Cir. 1999); see also Anderson v. Wachovia Mortg. Corp.,

621 F.3d 261, 267 (3d Cir. 2010). Claims brought under Title VII, the PHRA, and § 1981 are

generally analyzed under the burden-shifting analysis set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973). Anderson, 621 F.3d at 267–68 (“[T]he burden-shifting

framework introduced by McDonnell Douglas . . . may be used to determine whether an employer

has discriminated against a plaintiff in violation of § 1981.”); Jones v. Sch. Dist. of Phila., 198

F.3d 403, 410 (3d Cir. 1999) (“[D]isparate treatment claims under Title VII, section 1981, and the

PHRA require application of the familiar burden-shifting framework the Supreme Court

articulated in McDonnell Douglas . . . .”); Dellapenna v. Tredyffrin/Easttown Sch. Dist., 449 F.

App’x 209, 212 n.2 (3d Cir. 2011) (“Claims arising under the PHRA are governed by the same

2 Title VII makes it unlawful for an employer “to fail or refuse to hire . . . 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 . . . .” 42 U.S.C. § 2000e-2(a)(1).

3 The PHRA makes it unlawful for an employer to, because of an individual’s race, “refuse to hire

or employ or contract with, or to bar or to discharge from employment such individual . . . or to otherwise

discriminate against such individual . . . with respect to compensation, hire, tenure, terms, conditions or

privileges of employment or contract . . . .” 43 Pa. Cons. Stat. § 955(a).

4 In relevant part, § 1981 provides:

All persons within the jurisdiction of the United States shall have the same

right . . . to make and enforce contracts . . . and to the full and equal benefit

of all laws and proceedings for the security of persons and property as is

enjoyed by white citizens . . . .

42 U.S.C. § 1981(a).

standards set forth in Title VII for determining summary judgment motions.”). Further, § 1981

claims also require the plaintiff to show that race was the but-for cause of the adverse employment

action taken against the plaintiff by the defendant. Comcast Corp. v. Nat’l Ass’n of African Am.-

Owned Media, — U.S. —, 140 S. Ct. 1009, 1014–15 (2020).

Title VII employment discrimination claims can be brought under the indirect evidence

burden-shifting framework set forth in McDonnell Douglas, 411 U.S. at 802, or the “mixed-

motive” theory introduced in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). See Makky v.

Chertoff, 541 F.3d 205, 213 (3d Cir. 2008). A plaintiff may also claim employment discrimination

on a theory of “disparate impact,” which requires a showing that a facially neutral employment

policy of the defendant disproportionately affected a protected class. See Griggs v. Duke Power

Co., 401 U.S. 424, 431 (1971). Here, it is unclear from the pleadings under which theory Plaintiff

brings his claims against Defendant. Therefore, this Court will address each theory in turn.

Intentional Race Discrimination

Claims of intentional discrimination or disparate treatment are generally analyzed under

the McDonnell Douglas framework. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).

Under this framework, the plaintiff must first establish by a preponderance of the evidence a prima

facie case of employment discrimination by producing evidence to show that the plaintiff: (1)

belongs to a protected class; (2) was qualified for the position; (3) suffered an adverse employment

action; and (4) that, under circumstances that raise an inference of discriminatory action, the

employer continued to seek out individuals with qualifications similar to the plaintiff’s to fill the

position. McDonnell Douglas, 411 U.S. at 802; Walker v. Centocor Ortho Biotech, Inc., 558 F.

App’x 216, 218 (3d Cir. 2014) (citing Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir.

2003)). The “central focus” of the prima facie case “is always whether the employer is treating

‘some people less favorably than others because of their race, color, religion, sex, or national

origin.’” Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352 (3d Cir. 1999) (quoting Int’l Bhd. of

Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977)).

Once the plaintiff establishes a prima facie case of discrimination, the burden shifts to the

defendant to rebut the prima facia showing by “articulat[ing] some legitimate, nondiscriminatory

reason” for its action, i.e., for the adverse employment action. McDonnell Douglas, 411 U.S. at

802. If the defendant satisfies this phase, the burden shifts back to the plaintiff to prove that the

legitimate reason(s) offered by the defendant are merely a pretext for discrimination, and not the

real motivation for the unfavorable job action. Id. at 804–05. To make a showing of pretext, the

plaintiff must provide 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.” Fuentes

v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). To meet this burden, the plaintiff must “present

evidence contradicting the core facts put forth by the employer, as the legitimate reasons for its

decision.” Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005). The plaintiff must

“demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions

in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could

rationally find them unworthy of credence.” Fuentes, 32 F.3d at 765. Fuentes further requires the

plaintiff to present evidence that suggests that the alleged unlawful discrimination was more likely

than not a motivating or determining factor in the defendant’s adverse employment actions. That

is, the plaintiff must do more than show that the defendant’s proffered reasons were wrong or

mistaken; the plaintiff must demonstrate that the defendant acted with discriminatory animus.

Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 283 (3d Cir. 2001). The plaintiff can

meet this burden by pointing to evidence “that the employer has previously discriminated against

[him], that the employer has discriminated against other persons within the plaintiff’s protected

class or within another class, or that the employer has treated more favorably similarly situated

persons not within the protected class.” Simpson v. Kay Jewelers, 142 F.3d 639, 645 (3d Cir.

1998).

Here, Plaintiff has failed to make a prima facie case of race discrimination. The parties do

not dispute that Plaintiff, as an African American male, is a member of a protected class or that he

suffered an adverse employment action when not hired. Plaintiff, however, cannot establish that

he was qualified or eligible for the substitute teacher position for which he applied. That is because

under Pennsylvania law,5 Defendant was statutorily prohibited from hiring any individual who has

been convicted of certain crimes, including a felony offense under the Controlled Substance, Drug,

Device and Cosmetic Act, 35 Pa. Cons. Stat. § 780-101 et seq. Plaintiff cannot and does not

dispute that he was convicted of a drug felony offense, a conviction that disqualifies him from

consideration to be a substitute teacher. As Defendant argues and Plaintiff concedes, he was not

hired because of this drug felony conviction. There is no evidence that race factored into the

decision to reject Plaintiff’s employment application.

5 In relevant part, 24 Pa. Cons. Stat. § 1-111(e) provides:

No person subject to this act shall be employed or remain employed in a

public or private school, intermediate unit or area career and technical

school where a report of criminal history record information or a form

submitted by an employe under subsection (j) indicates the person has

been convicted of any of the following offenses: . . . (2) An offense

designated as a felony under the act of April 14, 1972 (P.L. 233, No.

64),1 known as “The Controlled Substance, Drug, Device and Cosmetic

Act.”

(internal citation omitted).

Even assuming, arguendo, that Plaintiff was qualified for the position and can establish a

prima facie case, his claim of intentional discrimination still fails based on the evidence presented.

Defendant argues it did not reject Plaintiff’s application for a substitute teacher position because

of his race, but rather because Defendant was statutorily prohibited from hiring him due to his

previous drug felony conviction. See 24 Pa. Cons. Stat. § 1-111(e). Defendant has, thus, met its

burden of articulating a legitimate, non-discriminatory reason for not hiring Plaintiff. McDonnell

Douglas, 411 U.S. at 804. As Defendant has met its burden, Plaintiff must now demonstrate that

Defendant’s proffered reason is pretextual. Id. Plaintiff has failed to do so. Plaintiff offers no

evidence from which a reasonable factfinder could either disbelieve that Defendant rejected

Plaintiff’s application because of the statutory bar, or believe that racial prejudice was “more likely

than not” a motivating factor in Defendant’s decision. See Fuentes, 32 F.3d at 764. The only

evidence Plaintiff provides is an email from Defendant stating that his criminal record made him

“ineligible” for the substitute teacher position. [Pl.’s Br., ECF 71, at p. 5]. Absent additional

evidence, the email does not provide any reason to doubt Defendant’s veracity, nor does it suggest

that race was a motivating factor in the rejection of Plaintiff’s application. To the contrary, it

supports Defendant’s articulated legitimate reason for not hiring him.

As Plaintiff has not demonstrated intentional race discrimination under the McDonnell

Douglas framework, Defendant is entitled to judgment on Plaintiff’s Title VII and PHRA claims

of intentional race discrimination as a matter of law. Plaintiff has also not shown, through email

or any other evidence, that race was the but-for cause of Defendant’s failure to hire him. Since a

reasonable factfinder could not find in Plaintiff’s favor on his § 1981 claim, Defendant is also

entitled to judgment on this § 1981 claim. See Comcast Corp., 140 S. Ct. at 1014–15.

Mixed-Motive Discrimination

As noted, a plaintiff may bring a Title VII claim under the “mixed-motive” theory, “under

which a plaintiff may show that an employment decision was made based on both legitimate and

illegitimate reasons.” Makky, 541 F.3d at 213. Title VII protects against unlawful employment

practices where “race . . . was a motivating factor” in the decision. 42 U.S.C. § 2000e-2(m). The

plaintiff must first show that an illegitimate criterion was a “substantial factor” in the defendant’s

employment decision. Tolan v. Temple Health Sys. Transp. Team, Inc., 557 F. App’x 132, 138

(3d Cir. 2014) (citing Brown v. J. Kaz, Inc., 581 F.3d 175, 182 (3d Cir. 2009)). The plaintiff can

satisfy the “substantial factor” burden with “sufficient evidence for a reasonable jury to conclude,

by a preponderance of the evidence, that race . . . was a motivating factor for any employment

practice.” Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003) (internal quotation marks

omitted).6 When the plaintiff has made a showing that a protected trait was a “substantial factor”

in the defendant’s decision, the burden shifts to the defendant to show it is “more likely than not”

that the defendant would have taken the same action in the absence of the illegitimate motivating

factor. Brown, 581 F.3d at 182.7

Here, Plaintiff offers neither direct nor circumstantial evidence to suggest that his race was

a “motivating” or “substantial” factor in Defendant’s decision not to hire him. Again, the only

6 As noted in Fakete v. Aetna, Inc., 308 F.3d 335, 337 n.2 (3d Cir. 2002), courts have often referred

to “mixed-motive” and “direct evidence” employment discrimination claims interchangeably. However,

as the Third Circuit explained in Makky, the Supreme Court has clarified that a plaintiff may use either

direct or circumstantial evidence to proceed on a mixed-motive Title VII claim. Makky, 541 F.3d at 214

(citing Desert Palace, 539 U.S. at 92).

7 The Third Circuit has held that a mixed-motive claim also fails where the plaintiff does not meet

the qualification prong of the prima facie test under McDonnell Douglas. See Makky, 541 F.3d at 215 (“[A]

mixed-motive plaintiff has failed to establish a prima facie case of a Title VII employment discrimination

claim if there is unchallenged objective evidence that s/he did not possess the minimal qualifications for

the position plaintiff sought to obtain or retain.”). Plaintiff does not dispute that he was statutorily

disqualified from the substitute teacher position. Thus, Plaintiff cannot prevail on his Title VII claim

premised on a mixed-motive theory.

evidence Plaintiff provides is an email from Defendant explicitly stating that Plaintiff was

“ineligible for hire based on previous felony conviction(s).” [Pl.’s Br., ECF 71, at p. 5]. Without

any other evidence supporting the contention that Defendant was motivated to reject Plaintiff’s

application because of his race, Plaintiff’s argument to that end is “pure speculation.” See Selvato

v. SEPTA, 658 F. App’x 52, 56 (3d Cir. 2016) (affirming grant of summary judgment on mixed-

motive sex discrimination claim where the plaintiff provided “no evidence” that her employers

“weighed gender-related considerations against her in their decision”). Accordingly, Plaintiff

cannot prevail on his employment discrimination claim under a mixed-motive theory.

Disparate Impact

Finally, a plaintiff alleging employment discrimination under Title VII may claim that the

defendant’s action, while neutral on its face, had a disparate impact on a protected class. See Stagi

v. Nat’l R.R. Passenger Corp., 391 F. App’x 133, 136 (3d Cir. 2010). A prima facie case of

disparate impact discrimination requires the plaintiff to show that the defendant employer uses “a

particular employment practice that causes a disparate impact on the basis of race, color, religion,

sex, or national origin.” 42 U.S.C. § 2000e-2(k)(1)(A)(i); see also Ricci v. DeStefano, 557 U.S.

557, 578 (2009) (explaining that § 2000e-2(k)(1)(A)(i) was enacted in 1991 to codify the approach

established by the Supreme Court in Griggs, 401 U.S. 424). The Supreme Court has made clear

that “it is not enough to simply allege that there is a disparate impact on workers, or point to a

generalized policy that leads to such an impact.” Smith v. City of Jackson, 544 U.S. 228, 241

(2005). The plaintiff must provide proof that the policy or practice in question has had a

disproportionate impact on the workforce of the defendant. Equal Emp. Opportunity Comm’n v.

Greyhound Lines, Inc., 635 F.2d 188, 192 (3d Cir. 1980). That is, “there can be no disparate

impact unless there is a disparate impact.” Id.

In his operative complaint, Plaintiff alleges that Defendant “has a custom, policy and

practice of refusing to [hire] African-American men with criminal convictions that has a disparate

impact upon African-American men.” [Am. Compl., ECF 26, at p. 4]. He claims that African

American men with felony convictions are “routinely subjected to unlawful and discriminatory

employment practices by employers such as Defendant.” [Id. at p. 3]. However, Plaintiff provides

no evidence to support his claims beyond the bare allegations contained in his operative complaint.

Furthermore, Plaintiff makes no attempt to explicitly connect Defendant’s alleged “custom, policy

and practice” with the state statute barring the employment of individuals, such as Plaintiff with

certain felony convictions, or to challenge the constitutionality of the statute itself.8 Allegations

of a disproportionate effect alone are insufficient to establish a prima facie case of disparate impact

discrimination. See Smith, 544 U.S. at 241; see also Celotex, 477 U.S. at 324 (requiring a plaintiff

to go beyond the pleadings and present evidence in order to survive a motion for summary

judgment). Under these circumstances, Plaintiff cannot succeed on his race discrimination claim

under a disparate impact theory.9

8 Plaintiff has expressly stated that “this case should be decided without the Court giving any

consideration to the constitutionality” of 24 Pa. Cons. Stat. § 1-111(e)(2). [Pl.’s Resp. in Opp. to Def.’s

Mot. to Dismiss, ECF 32, at p. 5]. Although not appearing as part of his legal arguments, Plaintiff does

contend that Defendant “has wrongly incorporated and applied an ex post facto state law in its hiring

decision of [Plaintiff] because his crimes and convictions occurred prior to the adoption” of § 1-111(e)(2).

[Am. Compl., ECF 26, ¶ 16]; [Pl.’s Br., ECF 71, at p. 4]. However, Pennsylvania courts have rejected

similar argument with respect to the specific statutory provision at issue here. See Johnson v. Allegheny

Intermediate Unit, 59 A.3d 10, 20 (Pa. Commw. Ct. 2012) (reversing trial court’s decision holding that § 1-

111(e)(2) violated the Ex Post Facto Clause of the Pennsylvania Constitution).

9 Notably, the United States District Court for the Southern District of Ohio has looked favorably

upon a claim similar to Plaintiff’s, premised on the argument that terminating employees who had been

convicted of certain crimes constituted race discrimination under a disparate impact theory. Waldon v.

Cincinnati Pub. Sch., 941 F. Supp. 2d 884 (S.D. Ohio 2013). In that case, a state statute prohibited the

defendant from employing individuals with certain criminal convictions. Id. at 886. In denying the

defendant’s motion to dismiss, the Waldon court explained that the defendant’s policy did not, as a matter

of law, constitute a “business necessity,” especially given the remoteness in time of the plaintiffs’ prior

convictions (multiple decades) and the plaintiff’s “demonstrated decades of good performance.” Id. at 889–

II. Plaintiff’s 42 U.S.C. §§ 1983, 1985, and 1986 Claims

Plaintiff also asserts claims against Defendant under 42 U.S.C. §§ 1983, 1985, and 1986

related to Defendant’s failure to hire him.10 Defendant moves for summary judgment on the basis

that Plaintiff has failed to present sufficient evidence supporting these claims. This Court agrees.

§ 1983 – Deprivation of Civil Rights

Plaintiff alleges claims of race discrimination and failure to train/supervise under 42 U.S.C.

§ 1983. Section 1983 provides a remedy for the deprivation of rights protected by the United

States Constitution or federal law. Kopec v. Tate, 361 F.3d 772, 775–76 (3d Cir. 2004).11 As a

threshold matter, for a claim under § 1983 against a private entity to be viable, the plaintiff must

show that the defendant acted under color of state law in depriving the plaintiff of civil rights.

West v. Atkins, 487 U.S. 42, 48 (1988). This determination of state action depends on whether

there is “such a ‘close nexus between the State and the challenged action’ that seemingly private

behavior ‘may be fairly treated as that of the State itself.’” Brentwood Acad. v. Tenn. Secondary

Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (quoting Jackson v. Metro. Edison Co., 419 U.S.

345, 351 (1974)); see also Moore v. Solanco Sch. Dist., 471 F. Supp. 3d 640, 657–58 (E.D. Pa.

90. The court later granted the defendant’s motion for summary judgment, however, because the plaintiffs

had offered evidence of a disparate impact on the defendant’s workforce, rather than on the workforce

statewide. 89 F. Supp. 3d 944, 949 (S.D. Ohio 2015). Here, it bears repeating that Plaintiff has presented

no evidence of any disparate impact.

10 At Counts I–III, Plaintiff also purports to seek an award of attorney’s fees pursuant to 42 U.S.C.

§ 1988. This statute provides that “the prevailing party” in an action under, inter alia, §§ 1981, 1983, 1985,

and 1986 may be entitled to reasonable attorney’s fees. 42 U.S.C. § 1988(b). Here, because Plaintiff is not

a “prevailing party,” he is not entitled to attorney’s fees.

11 Although Plaintiff mentions the First, Fifth, and Fourteenth Amendments in the jurisdictional

statement of his operative complaint, [Am. Compl, ECF 26, ¶ 1], he does not articulate in either his

complaint or his opposition brief on which of these particular constitutional amendments he bases his

§ 1983 claims. Nor does Plaintiff point to any evidence to substantiate any violation of any of these

amendments. Regardless, Plaintiff has not met the threshold issue of demonstrating that Defendant acted

under color of state law. As such, this Court will not address these additional failings.

2020). The United States Court of Appeals for the Third Circuit (the “Third Circuit”) formulated

three tests to determine whether a private defendant may be treated as a state actor for § 1983

purposes; to wit: “(1) whether the private entity has exercised powers that are traditionally the

exclusive prerogative of the state; (2) whether the private party has acted with the help of or in

concert with state officials; and (3) whether the state has so far insinuated itself into a position of

interdependence with the acting party that it must be recognized as a joint participant in the

challenged activity.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (internal quotation marks

and alteration omitted).

Here, Plaintiff has neither established that the Defendant meets the threshold tests outlined

by the Kach court nor offered any evidence to show that Defendant, a private company, acted

under color of state law when it denied Plaintiff’s employment application. Nonetheless, Plaintiff

argues Defendant was a state actor because it “entered [into] a contract with School District of

Philadelphia to provide substitute teachers.” [Pl.’s Br., ECF 70, at p. 10]. To support this

argument, Plaintiff cites to an article ostensibly reporting that Defendant “was woefully inept in

hiring substitute teachers and was eventually fired for inadequate performance.” Id. The webpage

is not attached to Plaintiff’s brief and is no longer accessible via the URL Plaintiff provides.

Notwithstanding, taking Plaintiff’s allegation regarding the existence of Defendant’s contract with

the School District as true, this fact alone does not support a finding that Defendant was a state

actor under any of the three tests outlined by the Third Circuit.

Specifically, the question under the first test—the “public function” test—is whether the

private entity performed a function that has been “traditionally the exclusive prerogative of the

state.” Mark v. Borough of Harboro, 856 F. Supp. 966, 970–71 (E.D. Pa. 1994) (quoting Rendell-

Baker v. Kohn, 457 U.S. 830, 841 (1982). The Supreme Court has repeatedly declined to deem

private entities state actors when they simply performed a public service. See Polk Cnty. v.

Dodson, 454 U.S. 312, 324 (1981) (public defender employed and funded by the state was not a

state actor); Jackson., 419 U.S. at 353 (electric company providing statutorily mandated public

service was not a state actor). Importantly, in the education context, courts have rejected “public

function” arguments where the defendant contracted with the state to provide an educational

benefit. See Rendell-Baker, 457 U.S. at 840–41 (private school contracting with state for funding

to educate special needs students was not a state actor); Black by Black v. Ind. Area Sch. Dist., 985

F.2d 707, 710 (3d Cir. 1992) (contractor providing school bus program to state was not a state

actor). Applying these precedents here, the fact that Defendant may have contracted with the

School District to provide substitute teachers does not itself demonstrate that it “exercised powers

that are traditionally the exclusive prerogative of the state.” Kach, 589 F.3d at 646.

Under the second, “close nexus,” test, a private entity may be considered a state actor where

its activity and that of the state are connected such that the action of the private entity “may be

fairly treated as that of the State itself.” Jackson, 419 U.S. at 351. The state must exert “overt,

significant assistance” for the private action to be considered state action. Tulp v. Educ. Comm’n

for Foreign Med. Graduates, 376 F. Supp. 3d 531, 540 (E.D. Pa. 2019) (citing McKeesport Hosp.

v. Accreditation Council for Graduate Med. Educ., 24 F.3d 519, 524 (3d Cir. 1994)). Here, there

is no evidence suggesting the School District exerted any control or influence over Defendant, or

vice versa. The possible existence of a contract between Defendant and the School District is

insufficient to establish a “close nexus” for § 1983 purposes.

The third test for state action—the “symbiotic relationship” test—concerns whether the

private entity and the state are “inextricably linked together.” Mark, 856 F. Supp. at 975 (citing

Burton v. Wilmington Parking Authority, 365 U.S. 715(1961)). Under this test, “neither extensive

financial assistance nor routine state regulation constitute[s] state action.” Id.; see also Jackson,

419 U.S. at 358–89 (finding a private utility company that was heavily regulated by the state and

enjoyed “at least a partial monopoly” in providing services was not a state actor). In Mark, the

district court found that a private entity that conferred a benefit upon the state was not a state actor,

because the state had “no obligation or responsibility regarding the operation” of the private

company. Id. at 976. Similarly, here, Defendant assisted the School District in providing substitute

teachers. Plaintiff has provided no evidence suggesting the School District had any “obligation or

responsibility” regarding Defendant’s operation. Thus, Defendant cannot be considered a state

actor under the symbiotic relationship test.

In sum, the fact that Defendant contracted with the School District to provide substitute

teachers does not itself establish Defendant was a state actor. Because Plaintiff has failed to show

that Defendant acted under color of state law when it did not hire Plaintiff, Defendant is entitled

to summary judgment on Plaintiff’s § 1983 claims.12

§ 1985 – Conspiracy to Interfere with Civil Rights

Plaintiff also claims Defendant is liable under 42 U.S.C. §§ 1985 and 1986.13 These

sections provide a remedy for a conspiracy to deprive a person of civil rights and neglect to prevent

12 At Count IV, Plaintiff asserts a claim seeking injunctive and declaratory relief based on the same

allegations underlying his claims for race discrimination (Counts I and II) and for failure to train/supervise

(Count III). This claim (Count IV) is dismissed for the reasons outlined in this Opinion. In addition,

Plaintiff asserts separate counts for judgment, damages, and punitive damages (Count V) and for a jury trial

(Count VI). Such “claims” are not cognizable as independent claims, but rather constitute forms of relief.

As pled, these counts are dismissed.

13 In relevant part, § 1985 provides:

If two or more persons in any State or Territory conspire . . . for the

purpose of depriving, either directly or indirectly, any person or class of

persons of the equal protection of the laws, . . . in any case of conspiracy

set forth in this section, if one or more persons engaged therein do, or cause

to be done, any act in furtherance of the object of such conspiracy,

a conspiracy, including “conspiracies predicated on ‘racial, or perhaps otherwise class-based,

invidiously discriminatory animus.’” Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238,

253 (3d Cir. 1999) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). Section 1985

protects against conspiracies to interfere with “constitutionally protected rights, privileges and

immunities” by both private and state actors. Brown v. Phillip Morris Inc., 250 F.3d 789, 805 (3d

Cir. 2001).

To prevail on a conspiracy claim under § 1985 claim, the plaintiff must show the following:

“(1) a conspiracy; (2) motivated by a racial or class based discriminatory animus designed to

deprive, directly or indirectly, any person or class of persons . . . of the equal protection of the

laws; (3) an act in furtherance of the conspiracy; and (4) an injury to person or property or the

deprivation of any right or privilege of a citizen of the United States.” Ridgewood Bd. of

Educ., 172 F.3d at 253–54 (quoting Lake v. Arnold, 112 F.3d 682, 685 (3d Cir. 1997)) (alteration

omitted); see also Griffin, 403 U.S. at 102. The plaintiff must present evidence demonstrating the

existence of a conspiracy, its broad purposes, and the defendant’s role in carrying out those

purposes, or by submitting evidence from which an agreement to conspire may be inferred. Barnes

v. Commonwealth of Pa. Dep’t of Corr., 706 F. Supp. 2d 593, 611–12 (M.D. Pa. 2010).

whereby another is injured . . . , the party so injured or deprived may have

an action . . . against any one or more of the conspirators.

42 U.S.C. § 1985(3).

In relevant part, § 1986 provides:

Every person who, having knowledge that any of the wrongs conspired to

be done, and mentioned in section 1985 of this title, are about to be

committed, and having power to prevent or aid in preventing the

commission of the same, neglects or refuses so to do, if such wrongful act

be committed, shall be liable to the party injured . . . .

42 U.S.C. § 1986.

Again, Plaintiff does not present any evidence to support his claim that Defendant

conspired to discriminate against him. See Barnes, 706 F. Supp. 2d at 611. While Plaintiff

contends that Defendant entered into a contract with the School District of Philadelphia, the

website he cites for that proposition is, as noted, inaccessible. Even assuming Plaintiff is correct

about Defendant’s business with the School District, that fact does not suggest that there existed a

conspiracy to discriminate against Plaintiff. As Plaintiff has not produced sufficient evidence to

support his allegations, Defendant is entitled to judgment on Plaintiff’s §§ 1985 and 1986 claims.14

CONCLUSION

For the reasons stated, this Court finds that Plaintiff has not met his summary judgment

burden under Rule 56 and has failed to “cite to particular parts of materials in the record” that

would create genuine disputes as to material facts regarding essential elements of his claims.

Therefore, Defendant’s motion for summary judgment is granted, and judgment on all claims is

entered in favor of Defendant. An Order consistent with this Memorandum Opinion follows.

NITZA I. QUIÑONES ALEJANDRO, J.

14 See Rogin v. Bensalem Twp., 616 F.2d 680, 696 (3d Cir. 1980) (“[T]ransgressions of § 1986 by

definition depend on a preexisting violation of § 1985 . . .”); see also Clark v. Clabaugh, 20 F.3d 1290,

1295 (3d Cir. 1994); Burnett v. Springfield Twp., 2014 WL 3109963, at *10 (E.D. Pa. July 8, 2014).