holding that “a plaintiff may rely on the temporal proximity between [the protected activity and employer’s adverse action] if ‘unusually suggestive,’” but “[i]n the absence of such a close temporal proximity, [courts] consider the circumstances as a whole, including any intervening antagonism by the employer, inconsistencies in the reasons the employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse action”
How later courts described this case
- holding that “a plaintiff may rely on the temporal proximity between [the protected activity and employer’s adverse action] if ‘unusually suggestive,’” but “[i]n the absence of such a close temporal proximity, [courts] consider the circumstances as a whole, including any intervening antagonism by the employer, inconsistencies in the reasons the employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse action”
- holding that “broad array of evidence” is properly considered in determining whether sufficient causal link exists, and that in addition to temporal proximity this may include “any intervening antagonism by the employer, inconsistencies in the reasons the employer gives for its adverse action, and any other evidence suggesting that the employer had a retaliatory animus when taking the adverse action”
- explaining that, if the employer advances a legitimate non-retaliatory reason for taking the challenged action, “the burden shifts back to the plaintiff to demonstrate that the employer’s proffered explanation was false, and that retaliation was the real reason for the adverse employment action” (internal citations and quotation marks omitted)
- stating that after the plaintiff makes out her prima facie case, “the burden of production of evidence shifts to the employer to present a legitimate, non-retaliatory reason for having taken the adverse 26 V For the foregoing reasons, we will vacate the judgment of the District Court and remand for further proceedings. action”
Written by the judges who cited it.
The opinion
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 14-1503
________________
DOROTHY E. DANIELS,
Appellant
v.
SCHOOL DISTRICT OF PHILADELPHIA;
LESLIE MASON; KENNETH CHRISTY;
RACHEL MARIANNO; KATHERINE PENDINO
________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 2:12-cv-02806)
Honorable Harvey Bartle, III, District Judge
________________
Submitted under Third Circuit LAR 34.1(a)
December 12, 2014
BEFORE: VANASKIE, GREENBERG, and
COWEN, Circuit Judges
(Filed: January 20, 2015)
______________
Olugbenga O. Abiona, Esq.
1433 South 4th Street
1st Floor
Philadelphia, PA 19147
Brian M. Rhodes, Esq.
356 North State Road
Springfield, PA 19064
Attorneys for Appellant
Yvonne B. Montgomery, Esq.
Joe H. Tucker, Jr., Esq.
V. Amanda Witts, Esq.
Tucker Law Group
1617 John F. Kennedy Boulevard
Suite 1700
Philadelphia, PA 19103
Attorneys for Appellee
______________
OPINION OF THE COURT
______________
GREENBERG, Circuit Judge.
I. INTRODUCTION
2
In this discrimination action, plaintiff Dorothy E. Daniels
appeals from an order for summary judgment entered on
November 7, 2013, in favor of her former employer, the School
District of Philadelphia (“SDP”). Daniels alleged in her
complaint that SDP violated the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; 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. Cons. Stat. § 951 et seq., both substantively and by retaliating
against her because she opposed what she believed was SDP’s
discriminatory conduct in violation of the acts. Although Daniels
was completely unsuccessful in the District Court, we address
only her retaliation claim as she does not raise any other issue on
this appeal. We conclude that Daniels did not provide sufficient
evidence in opposition to SDP’s motion for summary judgment to
support a conclusion that SDP acted with a retaliatory animus
with respect to her. Therefore, we will affirm the order for
summary judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
In this opinion, we set forth undisputed facts and recite the
facts in dispute in a light most favorable to Daniels as the
nonmoving party. See McCabe v. Ernst & Young, LLP., 494
F.3d 418, 424 (3d Cir. 2007). Thus, we are not making findings
of fact for any purpose beyond these proceedings.
A. Daniels’s Background
Daniels is an African-American educator born on January
2, 1950. She has a masters degree in elementary education and is
3
certified as a reading specialist. From 2003 to 2008, Daniels
worked as a guest teacher with Kelly Educational Staffing, and
had a good relationship with the principals of the schools to
which she was assigned.
In October 2008, following the end of Daniels’s
relationship with Kelly, SDP employed her as a teacher at Bregy
Elementary School in Philadelphia. Her tenure at Bregy seems to
have been reasonably successful for during that time her students’
standardized test scores improved, and she received compliments
from Bregy’s principal and an SDP school superintendent.
Moreover, Daniels’s principal rated her as satisfactory in all
categories in a year-end evaluation for the 2008-09 school year.
At the end of that school year, however, Daniels was subject to a
forced transfer because her position was eliminated due to
enrollment or budget allocation changes. Accordingly, Daniels
participated in a June 2009 site selection process for the
upcoming school year. She elected to teach middle-year English
at Thomas Mifflin School, and SDP gave her that assignment.
Her troubles with SDP began almost immediately after that
assignment.
B. Thomas Mifflin School
Leslie Mason was Mifflin’s principal when SDP assigned
Daniels to that school. On a parents’ night on or about September
9, 2009, Mason stated that some of the teachers were old enough
to be grandparents. Daniels, who was the oldest teacher in the
room, took offense to the remark and complained to Mason that
she found the statement ageist and offensive. Daniels contends
that, following this incident, Mason became antagonistic toward
her.
4
In accordance with SDP procedures regarding new
teachers at a school, Mason observed Daniels teach several times
during her year at Mifflin. Following these observations, Mason
evaluated Daniels negatively, an assessment that Daniels contends
was unwarranted. For example, Mason gave Daniels a poor
evaluation for not using technology, even though Daniels did not
have a Smart Board in her classroom and did allow her students
to use laptops when she considered their use to be appropriate.
Mason also repeatedly commented on the “terrible” appearance
of Daniels’s classroom, despite the circumstance that Daniels was
one of just a few teachers not ordered to clean his or her
classroom after an SDP walk-through inspection.
The relationship between Daniels and Mason was strained
further because Mason often sent another teacher, Christine
Lokey, to provide Daniels teaching support, an assignment that, in
Daniels’s view, interfered with her teaching regimen. Daniels did
not ask for Lokey’s assistance, and Mason did not send Lokey to
any other teacher’s classroom with the same frequency that she
sent her to Daniels’s classroom. The strain was exacerbated
when Daniels learned from a student that Mason had called the
student to her office to ask about Daniels’s pedagogy.
At the end of the 2009-10 school year, Mason reduced the
number of budgeted middle-year teachers for the upcoming year
from three to two, an action that required Daniels to go through
another forced transfer process. Although SDP’s central office,
rather than the local principal, decides which teachers to retain
and which to transfer, Mason told two students that she “had
written [Daniels] out of the budget and that [Daniels] wouldn’t be
returning in September 2010.” App. at 124. Even though SDP
had made the decision to transfer Daniels months earlier, it did
5
not notify Daniels of the decision until September 2, 2010.
Consequently, Daniels was unable to participate in that summer’s
site selection process.
Daniels sent a letter dated September 6, 2010, to SDP’s
human resources and labor directors, complaining about Mason’s
treatment of her. In the letter, Daniels again complained about
Mason’s comment from a year earlier regarding the age of certain
of the school’s teachers. Daniels also complained that another
Mifflin teacher told Daniels, “They call you old school.” Id. at
255. In the letter, Daniels further stated that Mason sent Lokey
to her classroom “[a]lmost daily” and that this was not her
practice with any other teacher. Id. at 254. Daniels raised the
following additional matters in her letter: Mason sent other
individuals to observe her; Mason herself observed Daniels’s
teaching at least three times and gave her negative evaluations
based on her use of technology and classroom appearance; Mason
would not assist Daniels in disciplining her students; Mason called
students to her office to ask them about Daniels’s pedagogy; and
Mason had written Daniels out of Mifflin’s budget without
notification to Daniels notwithstanding Daniels’s repeated request
for information about her status for the upcoming year. Daniels
concluded in her letter that she “experienced ageism, harassment,
and a hostile environment continuously throughout the school
year.” Id. at 255.
The next day, September 7, 2010, Daniels met with Lissa
Johnson, the deputy chief in SDP’s staffing office, to ascertain
her teaching assignment for the upcoming year. Although
Daniels and Johnson did not reach a conclusion during the
meeting determining Daniels’s assignment for the upcoming year,
SDP unilaterally assigned Daniels to teach at E.H. Vare Middle
6
School. However, Daniels did not learn of her assignment to
Vare until September 14, a week after her meeting with Johnson.
Consequently, Daniels did not attend Vare on September 8, 13,
and 14, days on which she would have been at Vare if she had
known of her assignment to that school. On September 13 or 14,
Johnson directed Vare administrators to designate Daniels as on
“unauthorized leave without pay” until she reported. Id. at 213,
215. The record indicates that Johnson learned of Daniels’s
September 6 letter on September 16, when she received an e-mail
from one of its recipients notifying Johnson that Daniels had
complained that Mason had harassed her.
Around October 28, 2010, after Daniels had started
teaching at Vare, she filed a complaint with the Pennsylvania
Human Relations Commission (“PHRC”).1 In the complaint,
Daniels asserted an age discrimination claim based on Mason’s
comment at the parents’ night meeting and Mason’s frequent
monitoring of her through Lokey and others, while younger
teachers at Mifflin were not scrutinized similarly. Daniels also
asserted a race discrimination claim based on her forced transfer
from Mifflin and Mason’s failure to give her timely notice of the
transfer. On December 30, 2010, Daniels amended her PHRC
complaint to include an age discrimination claim based on the
forced transfer.
C. Vare Middle School
Daniels’s troubles continued at Vare, where Rachel
1
The record suggests that Daniels filed the complaint on
November 1, 2010, but the parties and the District Court indicate
that she filed the complaint on October 28, 2010. This minor
difference is immaterial to the outcome of the case.
7
Marianno and Kenneth Christy served as the principal and
assistant principal, respectively. For her first week or two at
Vare, Daniels was not assigned to a classroom; instead, she was
told either to remain in the main office or to go to the teachers’
lounge. Moreover, even after she received a classroom
assignment, it took weeks and repeated requests before she was
provided with keys to her classroom. Furthermore, Daniels was
required to “float” among different classrooms, whereas other
teachers did not need to do so.
According to Daniels, students with extreme disciplinary
problems and academic challenges were “dumped” into her class,
but when Daniels wrote incident reports about her students,
Marianno and Christy would not initiate appropriate disciplinary
action. Indeed, they did not take disciplinary action when a
student stood on Daniels’s desk, kicked papers onto the floor, and
threatened to “kick [Daniels’s] ass,” conduct that led Daniels to
file a police report. Id. at 127. Marianno and Christy likewise
failed to investigate or take disciplinary action when students
wrote threats and profanities on the window of Daniels’s
classroom door. In addition, Marianno refused to discipline one
of Daniels’s students who loudly used profanity when Marianno
observed Daniels’s class. At some point during the year,
Marianno told Daniels, “If you are not comfortable with the
children of this culture perhaps you should leave.” Id. at 126. In
December 2010, Marianno assigned Daniels to teach subjects for
which Daniels did not have a certification.
On December 20, 2010, after Daniels had missed school
on December 10 due to illness, Christy sent Daniels a disciplinary
attendance memorandum. The memorandum listed Daniels’s
absences on September 8, 13, and 14 as “unauthorized leave
8
without pay” and warned Daniels that “additional absences or
latenesses will lead to more severe disciplinary action.” Id. at
213.
On February 22, 2011, Daniels filed a second PHRC
complaint, this time concerning her treatment at Vare. In this
complaint, Daniels alleged that Christy’s attendance
memorandum falsely listed her as having taken “unauthorized
leave” for a period during which she had not yet been assigned to
Vare. She also complained that Marianno had assigned her to
teach subjects for which she was not certified, had not provided
her with a permanent classroom or keys to any classroom, and
assigned students with the worst behavioral problems and the
lowest academic scores to her. Daniels claimed that SDP
retaliated against her because she had filed her October 28, 2010
PHRC complaint. The certificate of service of the February 22,
2011 complaint is dated April 12, 2011. Marianno and Christy
each testified at depositions that they had no knowledge of
Daniels’s PHRC complaints during the time that they took the
adverse actions of which Daniels complains.
During the 2010-11 school year while Daniels was
assigned to Vare, Daniels began seeing doctors for anxiety and
depression, conditions that she attributed to her hostile treatment
at school. Starting in March 2011, Daniels began a period of
medical leave from Vare due to her anxiety. While Daniels was
on leave, Marianno telephoned Daniels requesting her students’
grades. After Daniels faxed her the grades, Marianno called
again, screaming at Daniels for the grades’ low quality. After the
2010-11 school year ended, Daniels participated in the site
selection process for the upcoming year, which resulted in her
assignment to teach middle-year literacy at Penrose Elementary
9
School beginning September 2011.
D. Penrose Elementary School
Daniels’s troubles continued at Penrose. On September 6,
2011, the principal at Penrose, Katherine Pendino, called Daniels
into her office and, while reviewing Daniels’s performance
records, asked her, “Do you know what you’re doing?” Id. at
129. On or about September 12, 2011, when referring to Daniels,
Pendino shouted in the hallway within the hearing of students,
staff, and faculty: “[S]he’s no good[.] I want her out of here.”
Id. Similarly, two days later, Pendino stated to Daniels in front of
her students, “[Y]ou don’t know anything.” Id. at 130. Pendino
also attempted to write Daniels up for not indicating her time of
arrival on the sign-in sheet, even though Pendino had told her that
she did not need to do so. Pendino likewise wrote Daniels up for
not submitting lesson plans that Daniels actually had submitted
weeks earlier.
On or about October 25, 2011, Pendino commented to the
school’s behavior therapist that Daniels was “no good. I want to
get rid of her.” Id. During the same month, Pendino instructed
Daniels’s students to write down anything derogatory or negative
that Daniels had said. When parents complained about this
direction to their children, Daniels received another write up.
Then, on or about November 14, 2011, Pendino told Daniels,
“[D]o not return after Christmas break; either retire or resign.”
Id. As had Marianno and Christy, Pendino testified that she did
not know of Daniels’s PHRC complaints when she took actions
that Daniels regarded as adverse. On December 13, 2011,
Daniels supplemented her February 2011 PHRC complaint with a
letter listing grievances against Pendino. Daniels v. Sch. Dist. of
10
Phila., 982 F. Supp. 2d 462, 475 (E.D. Pa. 2013).2
E. Dispute Over Medical Leave
Daniels took another medical leave beginning December
20, 2011. During the leave, Daniels expected to receive wage
continuation benefits, which cover 75 percent of an employee’s
salary after the employee has exhausted other sick leave.
Under SDP’s leave policy, if an employee misses ten
consecutive workdays due to personal illness, notice
automatically is sent to Carol Kenney, SDP’s director of
employee health services. When Kenney’s office receives such a
notice, it schedules an appointment for the employee with an SDP
physician to determine whether the employee has a need for
continued leave. An employee who disagrees with the conclusion
of the SDP physician can request that another physician, not in
SDP’s employ, evaluate her. If the employee makes such a
request, SDP selects that physician from a list of physicians on
which SDP and the teachers’ union previously had agreed.
In keeping with this policy, Kenney’s office scheduled an
appointment for Daniels to see Dr. Aribelle Jones, an SDP
physician, on January 18, 2012. Although Jones is not a
psychiatrist and, according to Daniels, merely spoke with Daniels
without examining her, she concluded that Daniels would be fit to
return to work on February 1, 2012. Daniels did not accept this
2 Although Daniels alludes to this letter in her statement of
disputed facts, the parties did not include the letter in the
appendix, and Daniels does not rely on it in her brief. In any
event, as we explain below, this letter does not affect the outcome
of this case.
11
evaluation and consequently requested that a physician not in
SDP’s employ evaluate her. Accordingly, SDP scheduled an
appointment for her for this purpose with a psychiatrist, Dr.
Burton Weiss, from the Penn Diagnostic Center.
Before Daniels’s appointment with Weiss, Kenney wrote a
letter to him with “background information” about Daniels to the
effect that she had taken sick leave the previous school year and
had “stated that she was not supported by the principal at her last
school.” Id. at 244. Kenney also wrote that Daniels “went out
again on sick leave in December 2011 with the same complaints
of being harassed by her new principal.” Id. at 244. The letter
asked that Weiss specifically opine on whether Daniels should
have returned to work on February 1, 2012.
Weiss examined Daniels on February 13, 2012, and, two
days later, he wrote a letter to Kenney opining: “Ms. Daniels’s
symptoms of anxiety and depression arise from her dispute with
the Principal and not from a definable psychiatric illness. Her
problem is legal and administrative, not psychiatric.” Id. at 247.
He therefore determined that Daniels should have returned to
work on February 1, 2012, reasoning that psychiatric treatment
would not solve the source of her distress.
On February 21, 2012, Kenney notified Daniels of Weiss’s
conclusion and informed her that if she did not return to work on
February 27, 2012, SDP would institute disciplinary proceedings
against her. In reliance on Weiss’s determination, Kenney also
denied Daniels wage continuation benefits. Daniels, however, did
not return to work as directed. Rather, based on the opinion of
her own physicians, Daniels did not return to work until March
27, 2012. Due to Daniels’s failure to return to work as directed,
Kenney, who testified that she did not know at that time of
12
Daniels’s PHRC complaints, recommended that SDP terminate
her employment. On May 2, 2012, Daniels received notice that
SDP had initiated the proceedings that ultimately led to the
termination of her employment.
F. Present Lawsuit
On May 22, 2012, Daniels filed suit in the District Court
against SDP, Mason, Marianno, Christy, and Pendino, asserting
claims of age discrimination, race discrimination, and retaliation.
Defendants made a partially successful motion for summary
judgment as the Court granted the motion in an order entered
November 7, 2013, with respect to most of Daniels’s claims,
including those of retaliation. See Daniels, 982 F. Supp. 2d at
490. The remainder of the case proceeded to trial, at which the
jury returned a verdict in defendants’ favor. The Court entered a
final judgment on November 22, 2013. Daniels then moved to
alter the judgment and for a new trial, but the Court denied that
motion on January 29, 2014. Daniels appeals but limits her
appeal to challenging the November 7, 2013 order for summary
judgment with respect to her retaliation claims against SDP in
violation of the ADEA, Title VII, and the PHRA.3
III. STATEMENT OF JURISDICTION AND STANDARD
OF REVIEW
The District Court had original federal question
jurisdiction over Daniels’s ADEA and Title VII claims pursuant to
3Daniels does not include the individual defendants as appellees
on this appeal.
13
29 U.S.C. § 626(c)(1) and 42 U.S.C. § 2000e-5(f)(3),
respectively, and 28 U.S.C. §§ 1331 and 1343. It had
supplemental jurisdiction over Daniels’s PHRA claim pursuant to
28 U.S.C. § 1367. We have jurisdiction under 28 U.S.C. § 1291.
We exercise plenary review of the District Court’s order
for summary judgment. Budhun v. Reading Hosp. & Med. Ctr.,
765 F.3d 245, 251 (3d Cir. 2014). To warrant summary
judgment, the movant must show that, viewing the evidence in the
light most favorable to the nonmoving party, “there is no genuine
issue as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Williams
v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 758 (3d Cir.
2004). “The mere existence of a scintilla of evidence in support
of the [nonmovant’s] position will be insufficient; there must be
evidence on which the jury could reasonably find for the
[nonmovant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
252, 106 S.Ct. 2505, 2512 (1986).
IV. DISCUSSION
The ADEA prohibits an employer from discriminating
against an employee with respect to “compensation, terms,
conditions, or privileges of employment, because of such
individual’s age,” 29 U.S.C. § 623(a); Title VII prohibits
discrimination in employment on the basis of an employee’s race,
42 U.S.C. § 2000e-2(a); and the PHRA prohibits discrimination in
employment based on both age and race, 43 Pa. Cons. Stat. §
955(a). All three statutes also make it unlawful for an employer
to retaliate against an employee for either “oppos[ing] any
practice” made unlawful by their respective provisions or for
14
participating “in any manner” in an investigation, proceeding, or
hearing under their respective provisions. 29 U.S.C. § 623(d); 42
U.S.C. § 2000e-3(a); 43 Pa. Cons. Stat. § 955(d).
Daniels asserts retaliation claims under each of these
statutes. We address these claims together as the circumstances
of this case do not require that we make differing analyses. See
Barber v. CSX Distribution Servs., 68 F.3d 694, 698 (3d Cir.
1995) (“Because the prohibition against age discrimination
contained in the ADEA is similar in text, tone, and purpose to the
prohibition against discrimination contained in Title VII, courts
routinely look to law developed under Title VII to guide an
inquiry under the ADEA.”); Burton v. Teleflex Inc., 707 F.3d
417, 432 (3d Cir. 2013) (treating plaintiff’s PHRA claims as
identical to her ADEA and Title VII claims). In particular, we
consider Daniels’s claims in this case, in which there is not direct
evidence of retaliation, using the burden-shifting framework that
the Supreme Court announced in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817 (1973). See, e.g., Moore v.
City of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006) (Title
VII); Fasold v. Justice, 409 F.3d 178, 188 (3d Cir. 2005) (ADEA
and PHRA).
Under the McDonnell Douglas framework, a plaintiff
asserting a retaliation claim first must establish a prima facie case
by showing “(1) [that she engaged in] protected employee
activity; (2) adverse action by the employer either after or
contemporaneous with the employee’s protected activity; and (3)
a causal connection between the employee’s protected activity
and the employer’s adverse action.” Marra v. Phila. Hous. Auth.,
497 F.3d 286, 300 (3d Cir. 2007) (quoting Fogleman v. Mercy
Hosp. Inc., 283 F.3d 561, 567-68 (3d Cir. 2002)). If the plaintiff
15
makes these showings, the burden of production of evidence
shifts to the employer to present a legitimate, non-retaliatory
reason for having taken the adverse action. Id. If the employer
advances such a reason, the burden shifts back to the plaintiff to
demonstrate that “the employer’s proffered explanation was
false, and that retaliation was the real reason for the adverse
employment action.” Id. (quoting Moore, 461 F.3d at 342).
Although the burden of production of evidence shifts back and
forth, the plaintiff has the ultimate burden of persuasion at all
times. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
143, 120 S.Ct. 2097, 2106 (2000). Using this rubric, we
conclude that Daniels cannot support her claims of retaliation and
the District Court correctly granted summary judgment against
her.
A. Protected Activity
For purposes of the first prong of a prima facie case of
retaliation, protected “opposition” activity includes not only an
employee’s filing of formal charges of discrimination against an
employer but also “informal protests of discriminatory
employment practices, including making complaints to
management.” Curay-Cramer v. Ursuline Acad. of Wilmington,
Del., Inc., 450 F.3d 130, 135 (3d Cir. 2006) (quoting Sumner v.
U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990)); see
Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., 555
U.S. 271, 276, 129 S.Ct. 846, 851 (2009) (“‘When an employee
communicates to her employer a belief that the employer has
engaged in . . . a form of employment discrimination, that
communication’ virtually always ‘constitutes the employee’s
opposition to the activity.’” (alteration in original)). That is, in
determining whether a plaintiff adequately opposed
16
discrimination, “we look to the message . . . conveyed [by a
plaintiff’s conduct] rather than the means of conveyance.”
Moore, 461 F.3d at 343 (quoting Curay-Cramer, 450 F.3d at
135). The complaint must allege that the opposition was to
discrimination based on a protected category, such as age or race.
See Slagle v. Cnty. of Clarion, 435 F.3d 262, 266-67 (3d Cir.
2006); Barber, 68 F.3d at 702. Furthermore, although a plaintiff
in a retaliation case “need not prove the merits of the underlying
discrimination complaint,” she must have “act[ed] under a good
faith, reasonable belief that a violation existed.” Moore, 461 F.3d
at 344 (quoting Aman v. Cort Furniture Rental Corp., 85 F.3d
1074, 1085 (3d Cir. 1996)). This standard requires an
“objectively reasonable belief” that the activity the plaintiff
opposed constituted unlawful discrimination under the relevant
statute. Wilkerson v. New Media Tech. Charter Sch. Inc., 522
F.3d 315, 322 (3d Cir. 2008) (quoting Moore, 461 F.3d at 341).
In Clark County School District v. Breeden, 532 U.S. 268,
270, 121 S.Ct. 1508, 1509 (2001) (per curiam), the Supreme
Court rejected a plaintiff’s retaliation claim as the Court
concluded that no reasonable person could have believed that the
conduct of which she had complained constituted sex
discrimination under Title VII. The plaintiff had complained
about an incident in which, while she was reviewing job
applicants with a male supervisor and another male employee, the
supervisor commented to her that he did not understand a
sexually explicit statement that one of the applicants had made.
At that time, the other male employee responded, “Well, I’ll tell
you later,” and both men chuckled. Id. at 269-70, 121 S.Ct. at
1509. The Court noted that “simple teasing, offhand comments,
and isolated incidents (unless extremely serious) will not amount
to discriminatory changes in the ‘terms and conditions of
17
employment’” so as to violate Title VII, and held that the single
incident described in that case could not remotely satisfy this
standard. Id. at 271, 121 S.Ct. at 1510 (quoting Faragher v. City
of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 2283 (1998)).
Accordingly, the plaintiff’s complaint about this incident did not
qualify as protected activity. See id. at 270, 121 S.Ct. at 1509.
Daniels asserts that she engaged in the following instances
of protected conduct: (1) she complained to Mason about
Mason’s grandparents comment during the parents’ night
meeting; (2) she complained to Mason about excessive
monitoring that other teachers did not experience; (3) she sent the
September 6, 2010 letter to SDP administrators claiming that she
had been subjected to a hostile work environment because of her
age; (4) she filed the October 2010 PHRC complaint and the
December 2010 amendment to that complaint, in which she
claimed age and race discrimination based on the hostile work
environment she experienced at Mifflin and her forced transfer
from that school; and (5) she filed the February 2011 PHRC
complaint claiming that Marianno and Christy had retaliated
against her at Vare for engaging in protected activities.
Our review satisfies us that Daniels cannot show that the
first two of these activities constituted protected conduct, but that
she can make that showing with respect to the last three
activities. First, Daniels’s complaint to Mason about the
grandparents comment is not a protected activity because no
reasonable person could believe that Mason’s statement, by itself,
constituted unlawful age discrimination. Daniels complained that
it was ageist and offensive for Mason to state publicly that some
of the teachers are old enough to be grandparents. However, the
term “grandparents” is not inherently derogatory, and Mason’s
18
isolated “offhand comment” did not name Daniels or any other
teacher or explicitly denigrate the ability of older teachers to
perform their duties. See Breeden, 532 U.S. at 271, 121 S.Ct. at
1510; cf. Kargbo v. Phila. Corp. for Aging, 16 F. Supp. 3d 512,
532 (E.D. Pa. 2014) (“[The supervisor’s] comments about
Plaintiff’s age are more serious than the single off-color remark in
Breeden because they were explicitly directed at Plaintiff and
referred to his ability to do his job.”). Contrary to Daniels’s
contention, her subjective belief that Mason’s statement violated
the ADEA does not suffice for her complaint to qualify as
protected conduct. See Curay-Cramer, 450 F.3d at 137 (“[The
plaintiff’s] subjective state of mind is . . . irrelevant for purposes
of determining whether she engaged in protected conduct.”).
Likewise, with respect to her second alleged category of
protected conduct, Daniels does not point to any evidence in the
record showing that she made complaints to Mason about
excessive monitoring. Moreover, she fails to demonstrate that
she related her complaints to age or race discrimination such that
the complaints could have qualified as protected activity under
the anti-discrimination statutes. See Slagle, 435 F.3d at 268
(holding that plaintiff’s “vague allegations of ‘civil rights’
violations,” without reference to discrimination based on any
protected category, did not constitute protected conduct under
Title VII); Barber, 68 F.3d at 702 (holding that plaintiff’s
“general complaint of unfair treatment d[id] not translate into a
charge of illegal age discrimination” under the ADEA). In
considering what activities constitute protected conduct, we
emphasize that anti-discrimination employment statutes are not
intended to establish general standards for conduct of employers
in dealing with employees. See Curay-Cramer, 450 F.3d at 135;
Slagle, 435 F.3d at 266-67; Barber, 68 F.3d at 702.
19
But even though Daniels cannot successfully predicate a
claim based on her first two categories of what she claims was
protected conduct, she has made a showing sufficient to satisfy
the first prong of her prima facie case based on the other three
categories of such conduct. In her September 6, 2010 letter,
Daniels complained not only of Mason’s “ageis[t]” comment and
her fellow teacher’s reference to her as “old school” but also of
the frequent monitoring of her teaching and classroom
preparation, the lack of assistance in disciplining her students,
Mason’s negative written evaluations, Mason’s questioning of
students about her pedagogy, and the failure of Mason or SDP to
inform her of her teaching status for the upcoming school year
despite her repeated requests for such information. App. at 254-
55. Toward the end of the letter, Daniels summarized her
complaints by stating that she “experienced ageism, harassment,
and a hostile work environment throughout the school year.” Id.
at 255. Daniels reasonably and in good faith could have believed
that such pervasive harassment constituted unlawful age
discrimination, and a factfinder could conclude that the letter
alleged age discrimination in terms sufficient to qualify the
sending of the letter as protected conduct under the ADEA and
the PHRA. Furthermore, Daniels’s formal complaints to the
PHRC containing similar allegations of mistreatment based on
age, race, and prior protected conduct unquestionably qualify as
protected activities. See Woodson v. Scott Paper Co., 109 F.3d
913, 920 (3d Cir. 1997); Jalil v. Avdel Corp., 873 F.2d 701, 708
(3d Cir. 1989). We therefore turn to the second prong of
Daniels’s prima facie case.
B. Adverse Action
For an employer’s action to satisfy the second prong of a
20
prima facie case of retaliation, the plaintiff “must show that a
reasonable employee would have found the challenged action
materially adverse, which in this context means it well might have
dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415 (2006) (internal
quotation marks omitted); accord Moore, 461 F.3d at 341. We
examine the challenged conduct “from the perspective of a
reasonable person in the plaintiff’s position, considering ‘all the
circumstances.’” Burlington N. & Santa Fe Ry. Co., 548 U.S. at
71, 126 S.Ct. at 2417 (quoting Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 81, 118 S.Ct. 998, 1003 (1998)).
“[P]etty slights, minor annoyances, and simple lack of good
manners” generally will not suffice. Id. at 68, 126 S.Ct. at 2415.
However, “[c]ontext matters” such that “an act that would be
immaterial in some situations is material in others.” Id. at 69, 126
S.Ct. at 2415-16 (quoting Washington v. Ill. Dep’t of Revenue,
420 F.3d 658, 661 (7th Cir. 2005) (internal quotation marks
omitted)).
Daniels alleges that SDP engaged in numerous instances of
adverse conduct: (1) her forced transfer from Mifflin in the
summer of 2010 and SDP’s failure to inform her of the transfer in
time for her to participate in that year’s site selection process; (2)
the designation of her absences on September 8, 13, and 14,
2010, as “unauthorized leave without pay,” even though SDP did
not notify her of her assignment to Vare until September 14, and
Christy’s related memorandum of December 20, 2010, warning
Daniels that additional absences or lateness would lead to more
severe disciplinary action; (3) the hostile work environment that
Daniels experienced at Vare and Penrose from September 2010
to December 2011, which caused her mental health injuries; (4)
21
the denial of her wage continuation benefits; and (5) SDP’s
eventual termination of her employment.
We need not consider the first alleged instance of adverse
action as Daniels’s forced transfer without notification preceded
her first protected activity — the September 6, 2010 letter to
SDP administrators — and therefore was not “after or
contemporaneous with” her protected conduct. See Marra, 497
F.3d at 300; Slagle, 435 F.3d at 266. Each of the other instances
of adverse action, however, occurred after Daniels’s first
protected activity, and each could have dissuaded a reasonable
person in her position from charging discrimination.
Consequently, they satisfy the second prong of her prima facie
case. See, e.g., Moore, 461 F.3d at 348 (“pattern of harassment”
sufficed); LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503
F.3d 217, 232 (3d Cir. 2007) (termination of employment clearly
suffices); Abramson v. William Paterson Coll., 260 F.3d 265 (3d
Cir. 2001) (same). Thus, as is often true in retaliation cases, this
case turns on whether the plaintiff, here Daniels, can establish
that there was a causal connection between her protected
activities and SDP’s adverse actions.
C. Causal Connection
“We consider ‘a broad array of evidence’ in determining
whether a sufficient causal link exists [for a plaintiff] to survive a
motion for summary judgment.” LeBoon, 503 F.3d at 232
(quoting Farrell v. Planters Lifesavers Co., 206 F.3d 271, 284 (3d
Cir. 2000)). To demonstrate a link between protected activity and
an employer’s adverse action, a plaintiff may rely on the temporal
proximity between the two if “unusually suggestive.” Id.; Marra,
497 F.3d at 302. In the absence of such a close temporal
proximity, we consider the circumstances as a whole, including
22
any intervening antagonism by the employer, inconsistencies in the
reasons the employer gives for its adverse action, and any other
evidence suggesting that the employer had a retaliatory animus
when taking the adverse action. See LeBoon, 503 F.3d at 232-
33; Marra, 497 F.3d at 302; Farrell, 206 F.3d at 280-81. The
plaintiff, however, cannot establish that there was a causal
connection without some evidence that the individuals responsible
for the adverse action knew of the plaintiff’s protected conduct at
the time they acted. See Andreoli v. Gates, 482 F.3d 641, 650
(3d Cir. 2007); Moore, 461 F.3d at 351; cf. Ambrose v. Twp. of
Robinson, 303 F.3d 488, 493 (3d Cir. 2002) (“It is only intuitive
that for protected conduct to be a substantial or motiving factor in
a decision, the decisionmakers must be aware of the protected
conduct.”).
Daniels did not proffer sufficient evidence of causation to
survive SDP’s motion for summary judgment. As to the adverse
action with respect to Daniels’s classification for September 8,
13, and 14, 2010, Johnson, then deputy chief in SDP’s staffing
office, on September 13 or 14 directed that Daniels be designated
as having taken “unauthorized leave without pay.” App. at 215.
These absences then triggered Christy’s December 20, 2010
attendance memorandum following Daniels’s absence ten days
earlier. The record, however, does not contain any evidence that
Johnson learned of Daniels’s September 6, 2010 letter until
September 16, 2010, when she received an e-mail referencing
that complaint (but not mentioning its claim of age
discrimination).4 Id. at 216. Likewise, Christy testified at his
4
Johnson’s response to that e-mail does note that on September
13, 2010, Daniels “made allegations against Leslie Mason” during
a telephone call with Johnson. App. at 215. However, the record
23
deposition that he had no knowledge of Daniels’s complaints.
Daniels offers nothing to rebut this evidence that the decision
makers respectively responsible for her designation as having
taken “unauthorized leave without pay” and the subsequent
warning lacked knowledge of her protected conduct. She
therefore cannot establish that there was a causal connection
between her protected activities and such adverse action. See
Sarullo v. U.S. Postal Serv., 352 F.3d 789, 801 (3d Cir. 2003)
(per curiam); Ambrose, 303 F.3d at 493.
Daniels similarly cannot establish that there was a causal
connection between her protected activities and the hostile work
environment that she allegedly experienced from September 2010
to December 2011. The persons responsible for this alleged
harassment, Marianno and Christy at Vare and Pendino at
Penrose, all testified that they lacked knowledge of Daniels’s
protected conduct. As the basis for establishing such knowledge,
Daniels points to the unexplained hostility of these individuals
toward her immediately upon her arrival at each of the schools.
We recognize that when there is a brief period of time between an
adverse actor’s learning of a plaintiff’s protected conduct and a
subsequent adverse action, it may be reasonable to infer that there
was a causal link between the two events. But the temporal
proximity of adverse action to protected conduct does not
establish that the adverse actor had knowledge of the protected
conduct before acting. See Moore, 461 F.3d at 351-52; Ambrose,
303 F.3d at 493.
Furthermore, Daniels cannot justifiably rely on mere
does not contain any evidence regarding the content of those
allegations, and Daniels does not cite this conversation as an
instance of protected activity.
24
speculation that these adverse actors learned of her complaints
from other employees in the school district. See Sarullo, 352
F.3d at 799 (rejecting plaintiff’s speculation that adverse actor
learned of plaintiff’s race through office “grapevine,” where their
offices were located miles apart). A factfinder potentially could
infer that Marianno and Christy knew of Daniels’s February 2011
PHRC complaint because it contained specific allegations against
them, but Daniels contends that Marianno and Christy began their
harassment of her months earlier, at the start of the school year in
September 2010. She therefore cannot link such hostile treatment
to their knowledge of this complaint. See LeBoon, 503 F.3d at
233-34 (no causation where plaintiff’s tense relationship with her
supervisor began prior to her protected activity); cf. Breeden, 532
U.S. at 272, 121 S.Ct. at 1511 (no causal link between plaintiff’s
lawsuit and her subsequent transfer where employer “concededly
was contemplating the transfer before it learned of the suit”).
Daniels fares only slightly better with respect to the last
two alleged instances of adverse action. Kenney, SDP’s director
of employee health services, was responsible both for denying
Daniels’s wage continuation benefits and for subsequently
recommending her termination. Although Kenney testified that
she did not know of Daniels’s PHRC complaints, Daniels has
presented evidence to rebut this testimony. For example, in her
letter to Weiss, Kenney noted that Daniels had complained of
harassment by her principals, suggesting that Kenney knew of
Daniels’s conflicts with SDP, including her retaliation claims.
Nevertheless, Daniels fails to establish a causal link
between her protected activities and these adverse actions. She
has not shown an “unusually suggestive” temporal proximity as
ten months passed between the service of the February 2011
25
PHRC complaint on SDP on April 12, 2011, and the denial of her
wage continuation benefits in February 2012. See LeBoon, 503
F.3d at 233 (“Although there is no bright line rule as to what
constitutes unduly suggestive temporal proximity, a gap of three
months between the protected activity and the adverse action,
without more, cannot create an inference of causation and defeat
summary judgment.”); Andreoli, 482 F.3d at 650 (holding five-
month time period between complaint and first adverse action
insufficient by itself to support inference of causation).
Moreover, Daniels cannot rely on the intervening antagonism she
allegedly faced because, as discussed above, she cannot show
that there was a causal relationship between her protected
conduct and this antagonism.
When we take into account Daniels’s December 13, 2011
supplement to her February PHRC complaint, we perhaps could
conclude that Daniels made a prima facie showing of causation
between her protected activities and the adverse action given that
only three months passed between the filing of the supplement
and the denial of her wage continuation benefits. After all,
Daniels’s medical leave began soon after she submitted this
supplement, and it took that long for SDP to go through the
formal process of obtaining examinations of Daniels by Jones and
Weiss. See Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173,
178 (3d Cir. 1997) (“When there may be valid reasons why the
adverse employment action was not taken immediately, the
absence of immediacy between the cause and effect does not
disprove causation.”). Yet even assuming Daniels can make such
a prima facie showing, SDP has proffered legitimate reasons for
these adverse actions, which Daniels has failed to rebut. See
Estate of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788,
799-800 (3d Cir. 2010).
26
According to SDP, it denied the wage continuation
benefits based on Weiss’s determination that Daniels was fit to
return to work, and then terminated her employment because she
failed to return in a timely way. To avoid summary judgment
once the employer has articulated legitimate reasons for its
adverse actions, “the plaintiff must point to some evidence, direct
or circumstantial, from which a factfinder could reasonably either
(1) disbelieve the employer’s articulated legitimate reasons; or (2)
believe that an invidious [retaliatory] reason was more likely than
not a . . . determinative cause of the employer’s action.” Fuentes
v. Perksie, 32 F.3d 759, 764 (3d Cir. 1994). The plaintiff “cannot
simply show that the employer’s decision was wrong or
mistaken” but rather “must demonstrate such ‘weaknesses,
implausibilities, inconsistencies, incoherences, or contradictions in
the employer’s proffered legitimate reason for its action that a
reasonable factfinder could rationally find them unworthy of
credence, and hence infer that the employer did not act for [the
asserted] nondiscriminatory reasons.’” Ross v. Gilhuly, 755 F.3d
185, 194 n.13 (3d Cir. 2014) (alteration in original) (quoting
Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 331 (3d Cir.
1995)).
Daniels challenges SDP’s reliance on Weiss’s
determination that she could return to work, pointing to evidence
that her own physicians did not consider her fit to return and
disputing the basis of Weiss’s conclusion to the contrary.
Daniels’s argument mirrors an argument that we rejected in Estate
of Oliva, 604 F.3d at 801. There, the plaintiff challenged as
retaliatory the defendant’s determination that he could return to
full duty status, a conclusion that was contrary to his own
physicians’ recommendations. See id. The defendant responded
that he reasonably had relied on a determination of fitness for
27
duty made by an independent medical center. See id. We agreed
that the defendant legitimately could rely on that independent
medical evaluation, notwithstanding its inconsistency with the
plaintiff’s own physicians’ opinion, and therefore we affirmed an
order for summary judgment in the defendant’s favor. See id.
SDP likewise reasonably relied on Weiss’s opinion particularly
because he was an independent physician not within its employ. It
does not matter that this opinion differed from that of Daniels’s
physicians. Nor does it matter whether, as Daniels argues, this
opinion was mistaken. See Ross, 755 F.3d at 194 & n.13;
Fuentes, 32 F.3d at 766-67.
Daniels also asserts that Weiss was biased in favor of
SDP. However, nothing in the record, including Kenney’s letter
to Weiss, suggests that SDP improperly influenced him when he
stated his opinion, and Daniels cannot rest on mere speculation of
bias. See Fuentes, 32 F.3d at 766 (declaring that plaintiff’s
allegation of bias “amount[ed] to little more than the
schoolground retort, ‘Not so,’” and “d[id] not create a material
issue of fact”). Indeed, the teachers’ union could have sought to
have Weiss removed from the pool of independent physicians if it
considered him biased in SDP’s favor, but the record does not
contain any evidence that it took such action. Moreover, Daniels
does not contend in her brief that she personally or through
counsel objected to Weiss evaluating her. Although SDP may
have harassed Daniels, she has not linked any of the harassment
to the sort of retaliatory animus necessary to obtain relief under
the anti-discrimination statutes on which she relies. See Moore,
461 F.3d at 342 (“Many may suffer . . . harassment at work, but if
the reason for that harassment is one that is not proscribed by
Title VII, [the ADEA, or the PHRA,] it follows that [those
statutes] provide[] no relief.” (first alteration in original) (quoting
28
Jensen v. Potter, 435 F.3d 444, 449 (3d Cir.2006).
V. CONCLUSION
For the foregoing reasons, we will affirm the District
Court’s grant of summary judgment in favor of SDP entered on
November 8, 2013.
29