Jones v. School Dist. Phila.

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

12-10-1999

Jones v. School Dist. Phila.

Precedential or Non-Precedential:

Docket 98-2154

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Filed December 10, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-2154

CHARLES S. JONES,

Appellant

v.

SCHOOL DISTRICT OF PHILADELPHIA

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civ. No. 97-2653)

District Judge: Honorable J. Curtis Joyner

Argued November 4, 1999

BEFORE: BECKER, Chief Judge, and GREENBERG

and CUDAHY,* Circuit Judges

(Filed: December 10, 1999)

Reginald C. Allen (argued)

Rosemarie Rhodes

Harper & Paul

140 W. Maplewood Avenue

Philadelphia, PA 19144

Attorneys for Appellant

_________________________________________________________________

* Honorable Richard D. Cudahy, Senior Judge of the United States Court

of Appeals for the Seventh Circuit, sitting by designation.

Andrew M. Rosen (argued)

School District of Philadelphia

Office of General Counsel

2130 Arch Street, 5th Floor

Philadelphia, PA 19103

Attorney for Appellee

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter is before this court on an appeal from an

order for summary judgment entered in favor of the

employer in this employment discrimination action. The

appellant Charles Jones instituted this case against his

former employer, the School District of Philadelphia,

pursuant to Title VII of the Civil Rights Act of 1964 ("Title

VII"), 42 U.S.C. SS 2000e et seq., the Pennsylvania Human

Relations Act ("PHRA"), Pa. Stat. Ann. tit. 43, SS 951 et seq.,

(West 1991), and 42 U.S.C. S 1981. The school district

employed Jones as a teacher from 1985 to 1995, certified

to teach physics, chemistry, biology and other subjects.

Jones resigned from the school district effective June 30,

1995. According to Jones, he resigned because school

district personnel informed him that he would be

terminated involuntarily unless he did so. Jones, an

African-American, then filed this lawsuit, alleging race

discrimination and retaliation by the school district. We set

forth the background of the matter at some length as the

case is intensely fact driven.

Jones's first assignment in the school district was in the

science department at Northeast High School ("NEHS")

where he taught physical science, chemistry, and physics.

Jones remained at NEHS until March 1993, when the

school district transferred him to George Washington High

School ("GWHS"). In addition to his teaching responsibilities

at NEHS, Jones served as the boys' varsity soccer coach

from 1985 to the time of his transfer. Jones applied for the

2

position of girls' soccer coach in January 1993, but NEHS

chose another teacher for that position.

As early as the first year of Jones's assignment to NEHS,

Principal Francis Hoban began to receive complaints from

Jones's students that he was "hostile" in class. Hoban

testified at his deposition that several students objected to

the way that Jones "talked down" to his students. In

addition, students and parents complained to Hoban that

Jones's grading policy was too strict, leading Hoban to

indicate to Jones that his grading policy was "unrealistic,"

and resulted in disproportionately large numbers of

failures.

Hoban disciplined Jones several times during his

employment at NEHS because of student and parent

complaints and other incidents. At his deposition, Hoban

characterized "formal disciplinary action" against a teacher

as taking essentially one of two forms: (1) a memorandum

directed from school administration to the teacher setting

forth the nature of the teacher's unsatisfactory conduct, or

(2) an "SEH-204," which is an "anecdotal record" and is

viewed as a more severe form of reprimand. A teacher could

receive an SEH-204 reprimand for an unsatisfactory

classroom evaluation or for other conduct that an

administrator considered unacceptable. Jones believes that

for the most part the disciplinary actions taken against him

were improper or unwarranted, and that his comments

often were misunderstood. Moreover, he asserts that Hoban

repeatedly targeted him for harassment because of his race.

The school district's disciplinary actions against Jones

included several memoranda on a variety of issues, at least

two SEH-204s based upon unsatisfactory classroom

evaluations, and several SEH-204s pertaining to other

unsatisfactory conduct. For example, Hoban issued several

memoranda to Jones regarding problems students, parents

and staff encountered in connection with Jones's

responsibilities as the varsity soccer team coach. In

addition, Hoban issued memoranda to Jones concerning

his teaching style and complaints from students and

parents on this point. Jones also received memoranda from

administrators regarding his failure to meet with parents of

students in his class upon request and his failure to attend

3

a parents' conference on November 17, 1992. Finally, Jones

received a memorandum from NEHS Assistant Principal

Lowman in January 1993 regarding an incident between

Jones and NEHS guidance counselor Nick Tancredi in

which Tancredi alleged that Jones became abusive.

Jones also received a number of SEH-204s during his

employment at NEHS. The first appears to have been sent

in 1991, and concerned several complaints of parents and

teachers regarding his grading policy and allegedly hostile

attitude towards his students. Jones was issued another

SEH-204 in January 1992 as a result of a verbal altercation

between him and Ernest Davis, a school district

supervisory employee. Davis accused Jones of calling him

an "ass" and a "horse's ass" in response to a discussion

between them concerning the safety of Jones's field house

locker room office.

Hoban gave Jones another SEH-204 in December 1992

that documented an unsatisfactory classroom evaluation.

Hoban stated in the record of the observation that Jones

had little interaction with the students and that his tone of

voice was "harsh." Hoban also indicated that he observed

very little instruction, and that Jones's method of lecture

was inappropriate in a lab subject such as physics. Hoban

instructed Jones to engage in the following actions: (1) turn

lesson plans into the department head each week which

detail course objectives and student lab work; (2) get

students involved in the program; (3) turn in cut slips for

students; (4) contact parents of students performing poorly

in class; and (5) contact parents of students on the student

roll but not attending class.

Jones received a second unsatisfactory classroom

evaluation in February 1993, again in the form of an SEH-

204. By the time of this evaluation, Hoban already had

informed Jones of his intention to recommend his transfer

to another school.

The final matter leading to the school district's transfer of

Jones from NEHS appears to have occurred in or about

January 1993. Hoban and Assistant Principal Lowman sent

Jones memoranda directing him to meet with a parent of

one of Jones's students. Apparently, the student was failing

4

Jones's physics class, and his mother wanted to meet with

Jones to discuss the situation. When the mother arrived,

Jones refused to meet with her without union

representation at the meeting. Thereafter, Hoban directed

Jones to meet with the student's mother but he again

refused to do so. According to Jones, on the advice of his

union representative he refused to meet any parent without

union representation. Jones explained that he was fearful

for his safety in view of prior incidents in which a parent

and a student had threatened him.

As a result of Jones's conduct, Hoban issued him an

SEH-204, characterizing his failure to meet with the mother

as insubordinate in the circumstances. Hoban stated that

the mother attempted to contact Jones on several occasions

to schedule a meeting, but that Jones never responded to

her requests or notes. Hoban recommended that Jones be

suspended and administratively transferred from NEHS as

a result of the incident. In March 1993, Frank Guido, the

regional superintendent for the school district, upheld the

transfer recommendation.

In fact, the school district transferred Jones to GWHS in

April 1993 on "special assignment" for the remainder of the

1992-93 school year. During the summer of 1993, the

administrators required Jones to list five alternatives for his

placement for the 1993-94 school year. Jones chose GWHS

in the hope that he could teach physics there.

Sam Karlin, the new science department head for GWHS

for the 1993-94 school year, was responsible for assigning

rosters to teachers in his department. Karlin assigned the

physics roster for the 1993-94 school year to a white

woman. On the first day of school, Jones learned that he

was not assigned the physics roster, and he went to see

Karlin to discuss the issue.

Jones states in his affidavit that he told Karlin that he

should have received the physics roster because the teacher

selected was not certified to teach the class. Jones claims

that Karlin refused to change the assignment of the physics

roster, and ignored what Jones told him. Thereafter, Jones

brought the issue to the attention of Assistant Principal

Alvin Vaughn and Principal Harry Gutelius, but both

indicated that they would "stand by" Karlin's decision.

5

Sometime during the fall of the 1993-94 school year,

Karlin received a telephone call from a parent of one of

Jones's students alleging that Jones threatened to hit his

students with a baseball bat. Specifically, the parent stated

that when a student threw a piece of paper at Jones he

responded in the following manner:

If I find out who threw that paper I'll kick your ass. I'll

hit you in self defense if I have to. If I have to bring in

a baseball bat I will. I had a problem in another school

with a girl there and there was a court case. I have the

district attorney's number and I won't hesitate to use

it.

Jones states in his affidavit that he remembers stating only

that he would defend himself "if necessary," and then

asked, "do I need to bring in a baseball to protect myself."

Karlin reported the call to Assistant Principal Vaughn,

who investigated the matter by interviewing students and

meeting with Jones and his union representative. As a

result of the investigation, Vaughn issued Jones an SEH-

204, and recommended to Gutelius that Jones be

suspended for five days without pay and administratively

transferred from GWHS.

In addition to the episode involving the threat, Vaughn

recommended Jones's transfer based upon his continued

"exercise of poor judgment, and failure to adhere to school

district policies and procedures." In reaching his

conclusion, Vaughn relied upon the information he

gathered during his investigation, various memoranda from

Karlin to Jones, as well as an SEH-204 dated January 6,

1993, from Principal Hoban. Gutelius also recommended

Jones's transfer after considering Vaughn's SEH-204. The

school district approved Jones's transfer to Edison High-

Fareira Skills Center ("Edison") in or about the spring of

1994. Nevertheless, Jones was not transferred immediately

from GWHS after the incident.

Jones was assigned to Edison, which has a reputation of

being a difficult school, for the 1994-95 school year. Jones

states that on the first day of classes, Vice Principal Kinder

conducted a classroom observation of him. Jones's union

representative testified that generally speaking,"from the

6

federation's point of view," a classroom observation on the

first day of school would be unusual and inappropriate

given the fact that the first day of classes is a hectic time

for both teachers and students.

In or around the fall of 1994, Jones made a comment to

his students during class allegedly in response to a

student's conduct in defacing school desks in Jones's

presence. Jones states in his affidavit that he used words

to the effect that the students should not deface the school

because it was built for the Puerto Rican community.

Arturo Velazquez, one of Jones's students, indicated that he

was offended by the remarks. Jones then asked Velazquez

to remain after class so that they could speak, and at the

conclusion of class, Jones escorted Velazquez into a vacant

adjoining room.

The remainder of what occurred during Jones's

encounter with Velazquez is in dispute. Jones claims that

almost immediately Velazquez pushed him against afile

cabinet and grabbed him in a headlock. Jones states that

he attempted to wrestle Velazquez off his neck and torso,

and that in doing so, his hand "could" have touched the

student's face. In contrast, Velazquez told administrators

that Jones punched him on the left eye and jaw, and threw

him on the floor. Velazquez stated that he did not initiate

any physical contact with Jones.

Principal Raul Torres investigated the incident by

interviewing Jones, Velazquez, and other students in the

class at the time of Jones's comments about the Puerto

Rican community. As a result of the investigation, Torres

determined that Jones punched Velazquez without

provocation and made inaccurate and racist comments

which precipitated the event. Torres issued Jones an SEH-

204 which recommended his dismissal based upon the

assault, his prior record of using profanity in addressing

students in the classroom, and his prior use of implied

threats to harm students. Jones, however, resigned from

the school district as of June 30, 1995, and thus the school

district did not directly discharge him.

II. PROCEDURAL HISTORY

After filing administrative complaints with the

Pennsylvania Human Relations Commission and the Equal

7

Employment Opportunity Commission in 1993 and 1994

respectively, Jones received a right to sue letter from the

EEOC dated January 14, 1997. He then filed his complaint

in the district court on April 17, 1997.

In his complaint, Jones alleged the following claims: (1) a

disparate treatment race discrimination claim under Title

VII and the PHRA based upon his administrative transfer

from NEHS to GWHS; (2) a disparate treatment race

discrimination claim under Title VII and the PHRA based

upon the decisions to deny him the physics roster and

transfer him to Edison; (3) a disparate treatment race

discrimination claim under 42 U.S.C. S 1981 based on his

forced resignation; and (4) retaliation claims under Title VII,

the PHRA, and section 1981 based upon each of those

events. His complaint also mentions the fact that he was

denied the position of girls' soccer coach shortly before his

transfer in April 1993 to GWHS. Nevertheless, it appears

from his brief that he does not challenge that decision as

constituting an adverse employment action in and of itself;

instead, he apparently cites this action as evidence that

Hoban treated him differently because of his race.

The school district filed a motion for summary judgment

that the district court granted by memorandum and order.

See Jones v. School Dist. of Philadelphia, 19 F. Supp.2d 414

(E.D. Pa. 1998). Jones filed a motion for reconsideration,

which the district court denied by order entered November

10, 1998. Jones then filed this timely appeal. While the

notice of appeal recites that it is from the order of

November 10, 1998, effectively the appeal is from the

summary judgment as well and we are deciding the case on

that basis. See Williams v. Guzzardi, 875 F.2d 46, 49 (3d

Cir. 1989).

III. DISCUSSION

On this appeal, we review the district court's grant of

summary judgment de novo. See Nelson v. Upsala College,

51 F.3d 383, 385 (3d Cir. 1995). Summary judgment is

proper where the pleadings, depositions, answers to

interrogatories, admissions, and affidavits show there is no

genuine issue of material fact and that the moving party is

8

entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c). In deciding the motion, we view the record in the

light most favorable to Jones and resolve all reasonable

inferences in his favor. See Deane v. Pocono Med. Ctr., 142

F.3d 138, 142 n.3 (3d Cir. 1998) (en banc). We do not

distinguish between the claims under federal and

Pennsylvania law in our disposition of the case as we agree

with Jones's contention that the standards are the same for

purposes of determining the summary judgment motion.

See Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996).

While Jones's brief is complex, we discern that his

primary contentions on appeal are: (1) the district court

erroneously concluded that his only claim was a claim of

constructive discharge, thereby misapplying the elements of

a prima facie case under Title VII and the PHRA; (2) the

district court erred in resolving factual issues in the school

district's favor in violation of the standard applied at

summary judgment proceedings; (3) the district court

improperly discounted Jones's direct evidence of Hoban's

discriminatory animus, as well as evidence that showed

that he systematically mistreated Jones during his

employment at NEHS; (4) the district court ignored the

inference of discrimination which arises from Jones's

evidence that similarly situated white teachers were treated

more favorably than Jones; (5) the district court

erroneously applied the test for determining whether Jones

was constructively discharged; (6) the district court

improperly dismissed Jones's retaliation claim because it

found that the relevant decisionmakers had no knowledge

of his prior EEO activity and determined that there was

insufficient evidence of retaliatory motive to survive a

motion for summary judgment. Jones asks us to reverse

the district court's disposition of the matter and remand

the case for trial.

A. Disparate treatment claims under Title VII, section 1981,

and the PHRA

The parties do not dispute that Jones's disparate

treatment race discrimination claims under Title VII,

section 1981, and the PHRA require application of the

familiar burden-shifting framework the Supreme Court

articulated in McDonnell Douglas Corp. v. Green , 411 U.S.

9

792, 802, 93 S.Ct. 1817, 1824 (1973). While Jones's brief

refers to what he considers to be "direct evidence" of

Hoban's discriminatory intent, it does not appear that he is

attempting to proceed under a mixed motive theory and, in

any event, such an analysis would not be appropriate in

this case. Briefly summarized, the McDonnell Douglas

analysis proceeds in three stages. First, the plaintiff must

establish a prima facie case of discrimination. If the

plaintiff succeeds in establishing a prima facie case, the

burden shifts to the defendant "to articulate some

legitimate, nondiscriminatory reason for the employee's

rejection." Id. Finally, should the defendant carry this

burden, the plaintiff then must have an opportunity to

prove by a preponderance of the evidence that the

legitimate reasons offered by the defendant were not its

true reasons, but were a pretext for discrimination. See

Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248,

252-53, 101 S.Ct. 1089, 1093 (1981) (citations omitted).

While the burden of production may shift, "[t]he ultimate

burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at

all times with the plaintiff." Id. Our experience is that most

cases turn on the third stage, i.e., can the plaintiff establish

pretext.

The parties raise several issues pertaining to the proper

analysis of Jones's prima facie case of discrimination, as

well as the sufficiency of his evidence of pretext. The

district court dismissed Jones's disparate treatment claims

on two separate bases: (1) he failed to satisfy the third

element of his prima facie case; and (2) there was

insufficient evidence calling into question the legitimacy of

the school district's proffered reasons for its adverse

employment decisions.

1. Prima facie case analysis

Citing our decisions in Sheridan v. E.I. DuPont de

Nemours and Co., 100 F.3d 1061 (3d Cir. 1996) (en banc),

and Waldron v. S.L. Industries, Inc., 56 F.3d 491 (3d Cir.

1995), the district court stated that a prima facie case is

established when a plaintiff shows the following: (1) "that

he is a member of a protected class"; (2) that he"is

qualified for the position"; (3) that he "was either not hired

10

or fired from that position"; (4) "under circumstances that

give rise to an inference of unlawful discrimination such as

might occur when the position is filled by a person not of

the protected class." Jones, 19 F. Supp.2d at 418

(emphasis added). The district court stated that elements

one, two and four arguably were satisfied, but that element

three was not because the record reflected that Jones

resigned and thus was not fired. Id. at 418-19. From that

conclusion, the district court stated that it was required to

"determine whether or not [Jones's] resignation amounted

to a constructive discharge," and proceeded to an analysis

of that point, holding that it did not. Id. at 419-20 (internal

quotation marks omitted).

The court then went on to hold that "even assuming

arguendo, that [Jones] has made out a prima facie case, he

has produced no evidence to rebut or show that the

reasons articulated by the School District for his

termination are a pretext for discrimination." Id. at 420.

Consequently, the court determined that on this ground as

well as Jones's failure to make a prima facie case, the

school district was entitled to summary judgment.

Jones asserts that the district court's analysis

oversimplified the matter, as the court did not recognize

that his complaint asserted claims against the school

district based on adverse employment decisions during his

employment rather than merely on his termination. Jones

contends that these claims are distinct from his claim of

constructive discharge in 1995.

We agree with Jones's position on this point, as the

complaint clearly delineated the factual basis for his Title

VII and PHRA claims, and a review of that pleading

confirms that he did not predicate his claims solely on the

alleged constructive discharge. Indeed, Jones pleaded the

constructive discharge claim only under 42 U.S.C.S 1981.

In fact, Jones's complaint challenged not only the

purported constructive discharge, but also the transfers

and the denial of the assignment to him of the physics

roster at GWHS.

The district court's error seems to have stemmed from its

borrowing of language from cases which recited the

11

necessary elements of a prima facie case where the

challenged employment decision is a termination. See

Sheridan, 100 F.3d at 1066 n.5 (noting elements which are

required to establish a prima facie case of "discriminatory

discharge"); Waldron, 56 F.3d at 494 (same). Rather than

considering the possibility that the constructive discharge

claim was but one of Jones's claims arising out of his

employment relationship with the school district, the court

turned its attention to the constructive discharge analysis

because Jones admittedly had not been terminated directly

so as to satisfy the third element of a prima facie case as

articulated in Sheridan and Waldron. Compare Sheridan,

100 F.3d at 1063, 1072-75 (count I of plaintiff 's complaint

alleged a failure to promote claim under Title VII and count

III alleged a claim of constructive discharge; court

considered sufficiency of evidence presented on each claim

separately).

We often have remarked that the elements of a prima

facie case depend on the facts of the particular case. See,

e.g., Pivirotto v. Innovative Sys. Inc., 191 F.3d 344, 352 (3d

Cir. 1999); Torre v. Casio, Inc., 42 F.3d 825, 830 (3d Cir.

1994). Thus, a prima facie case cannot be established on a

one-size-fits-all basis. In fact, the relevant question with

respect to Jones's Title VII and PHRA claims is whether he

suffered some form of "adverse employment action"

sufficient to evoke the protection of Title VII and the PHRA.

See Connors v. Chrysler Fin. Corp., 160 F.3d 971, 974 (3d

Cir. 1998) (stating that third element of prima facie case in

disparate treatment ADEA case is that plaintiff suffered an

adverse employment action); Deane, 142 F.3d at 142 (same

under ADA); Simpson v. Kay Jewelers, 142 F.3d 639, 644

n.5 (3d Cir. 1998) (same under ADEA); Lawrence v. National

Westminster Bank, 98 F.3d 61, 66 (3d Cir. 1996) (same).

Obviously, something less than a discharge could be an

adverse employment action.

We have held that employment decisions such as

transfers and demotions may suffice to establish the third

element of a plaintiff 's prima facie case. See, e.g., Torre, 42

F.3d at 831 n.7 (recognizing that a job transfer, even

without loss of pay or benefits, may, in some

circumstances, constitute an adverse job action); see also

12

McGrenaghan v. St. Denis Sch., 979 F. Supp. 323, 326

(E.D. Pa. 1997) (same). Here, Jones challenges both

administrative transfers and the denial of the physics

roster. As a result of the first transfer, he lost his

opportunity to teach physics, which clearly was the subject

he sought most to teach. After Jones chose to remain at

GWHS because of the possibility that he would be awarded

the physics roster, he learned that he was passed over for

that position. Instead, the administration assigned Jones to

teach what he regarded as less desirable science classes.

Moreover, the transfer from GWHS to Edison landed

Jones in a placement which had a reputation of being a

"difficult school." Viewing the facts in the light most

favorable to Jones, they suffice to demonstrate that Jones

was subjected to sufficient adverse employment actions

such that his Title VII and PHRA claims should have

survived the initial stage of the McDonnell Douglas analysis.

See Torre, 42 F.3d at 831 n.7 (plaintiff 's transfer to "dead-

end" job was sufficient to support plaintiff 's prima facie

case); see also DiIenno v. Goodwill Indus., 162 F.3d 235,

236 (3d Cir. 1998) (holding in context of retaliation claim

that transfer could constitute adverse employment action

as viewed from plaintiff 's perspective).

Finally, we conclude that the district court erred in

granting summary judgment to the school district on

Jones's constructive discharge claim under section 1981 on

its theory that he failed to establish a prima facie case. In

Goss v. Exxon Office Systems Co., 747 F.2d 885 (3d Cir.

1984), we recognized that an involuntary transfer to a less

desirable position could support a claim of constructive

discharge, especially where the surrounding circumstances

indicate a pattern of discriminatory treatment. Id. at 888-

89. Thus, we affirmed the trial court's findings that the

plaintiff had been constructively discharged where she

presented evidence that she was involuntarily transferred

after her supervisor questioned her ability to combine a

career with motherhood. At the prima facie case stage of

the analysis, we merely determine whether a plaintiff has

presented sufficient evidence so that we should consider a

defendant's proffered reasons for its decision and, if the

defendant has presented reasons, the plaintiff 's evidence of

13

pretext. Viewed under that lens and in the light most

favorable to Jones, he should have withstood summary

judgment on that aspect of his constructive discharge

claim, because his involuntary transfer to two schools and

the second school's failure to assign him the physics roster

despite his qualifications, was sufficient to establish a

prima facie case under section 1981.

2. Pretext analysis

We turn now to the second and third steps of the

McDonnell Douglas tripartite framework. The second stage

requires the defendant to articulate a legitimate

nondiscriminatory reason for the adverse employment

action at issue. Keller v. Orix Credit Alliance, Inc., 130 F.3d

1101, 1108 (3d Cir. 1997) (en banc). Jones does not appear

to contest that the school district satisfied its burden of

production in this regard and plainly it did.

Once the defendant has satisfied its burden of production

at the second stage of the McDonnell Douglas tripartite

framework, a court's analysis turns to the third andfinal

aspect of the inquiry which, as we have indicated, is

usually the determinative stage of the case. At this point,

the court focuses on whether there is sufficient evidence

from which a jury could conclude that the purported

reasons for defendant's adverse employment actions were in

actuality a pretext for intentional race discrimination. At

trial, the plaintiff must convince the finder of fact "both that

the reason was false, and that discrimination was the real

reason." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515,

113 S.Ct. 2742, 2752 (1993) (emphasis in original). The

factfinder's rejection of the employer's proffered reason

allows, but does not compel, judgment for the plaintiff.

Sheridan, 100 F.3d at 1066-67.

On numerous occasions, we have explained the plaintiff 's

burden at summary judgment on this aspect of the

McDonnell Douglas tripartite framework. Specifically, in

Fuentes v. Perskie, 32 F.3d 759 (3d Cir. 1994), and later in

Sheridan, we stated that a plaintiff may defeat a motion for

summary judgment (or judgment as a matter of law) by

pointing "to some evidence, direct or circumstantial, from

which a factfinder would reasonably either: (1) disbelieve

14

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, 32 F.3d at 764; Sheridan, 100

F.3d at 1067.

We recently characterized this final aspect of the

McDonnell Douglas analysis as comprised of two alternatives

as articulated by Fuentes and Sheridan . See Keller, 130

F.3d at 1108. In Keller, we explained that to satisfy the first

prong of the Fuentes/Sheridan standard,

the plaintiff cannot simply show that the employer's

decision was wrong or mistaken, since the factual

dispute at issue is whether discriminatory animus

motivated the employer, not whether the employer is

wise, shrewd, prudent or competent. Rather, the

nonmoving plaintiff must demonstrate such

weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer's

proffered legitimate reasons for its actions that a

reasonable factfinder could rationally find them

unworthy of credence.

Id. at 1108-09. Then we indicated that a plaintiff may

satisfy this standard by demonstrating, through admissible

evidence, that the employer's articulated reason was not

merely wrong, but that it was "so plainly wrong that it

cannot have been the employer's real reason." Id. at 1109.

Under the Fuentes/Sheridan inquiry, the plaintiff also

may survive summary judgment by pointing to evidence in

the record which "allows the fact finder to infer that

discrimination was more likely than not a motivating or

determinative cause of the adverse employment action."

Fuentes, 32 F.3d at 764. In Simpson, we provided the

following explanation of this prong: "For example, the

plaintiff may show that the employer has previously

discriminated against [the plaintiff], that the employer has

previously discriminated against other persons within the

plaintiff 's protected class, or that the employer has treated

more favorably similarly situated persons not within the

protected class." Simpson, 142 F.3d at 645 (citing Fuentes,

32 F.3d at 765).

15

The district court in its determination that even if Jones

had established a prima facie case of discrimination in his

termination, stated that he "produced no evidence aside

from his own testimony that the actions directed against

him by the school district were racially motivated." Jones,

19 F. Supp.2d at 420. Jones challenges that ruling, arguing

that the court erred in dismissing his disparate treatment

claims by ignoring circumstantial evidence favorable to this

claim and failing to recognize that he raised many factual

issues that would allow a jury to find that the school

district's proffered reasons for transferring plaintiff twice

and denying him the physics roster were unworthy of

credence.

Jones's brief focuses principally upon his employment at

NEHS and his transfer from that school. Nevertheless, he

also addresses the other adverse employment actions he

has suffered, claiming that each constitutes a violation of

Title VII and the PHRA. Consequently, we have made a

complete study of the record of this case to determine

whether there is sufficient evidence from which a jury could

conclude that the school district's purported reasons for its

adverse employment actions were a pretext for

discrimination. While we do not set forth all of the evidence

and explain our analysis of it, we have concluded that there

is insufficient evidence to support the claim of pretext. In

this regard, we point out that Jones makes numerous

allegations in his affidavit which he predicates on nothing

more than his beliefs without having actual knowledge of

them. In fact, a careful analysis of the record demonstrates

that many of his allegations simply are not supported.

Moreover, Jones minimizes the baseball bat matter as

merely "a minor classroom incident." Br. at 3. We think it

clear that a school district hardly can tolerate comments

from a teacher even to disruptive students that he will use

a baseball bat on them.

Overall, the circumstances of this case which we already

have described in detail reflect a situation in which the

employer should have been able to take adverse

employment actions against the employee without fear of

being embroiled in an expensive law suit. While Jones may

quarrel with the school district's conclusions regarding

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particular controversies, the bona fides of its

determinations simply cannot be doubted. Thus, though we

view Jones's claims as broader than the district court

recognized, we are in complete agreement with its

conclusion that he presented no evidence from which a jury

could conclude that the school district's articulated reasons

for its adverse employment actions were a pretext for

discrimination. See Jones, 19 F. Supp.2d at 420.

Consequently, we will affirm the summary judgment

against Jones on his disparate treatment race

discrimination claims under Title VII and the PHRA.

As we have indicated, in addition to bringing Title VII and

PHRA race discrimination claims, Jones has brought a

claim under 42 U.S.C. S 1981 premised upon his eventual

decision to resign from his employment with the school

district. In particular, his complaint states that his

"involuntary resignation" was the result of the

discriminatory and retaliatory treatment he experienced at

Edison, including being threatened with removal for

allegedly striking a student while another employee in a

similar incident was not disciplined in any manner. Jones

alleges that the ultimatum amounted to a constructive

discharge, and further that the evidence shows that the

proffered reasons for the ultimatum are unworthy of

credence.

The school district's proffered legitimate

nondiscriminatory reason for giving Jones the ultimatum of

resigning or facing termination was primarily that Jones

was involved in a physical altercation with one of his

students in which he struck and injured the student

without provocation. Edison principal Raul Torres stated

that he also recommended Jones's discharge based upon

his "prior record of using profanity in addressing students

in the classroom as well has having made implied threats

to use physical harm to students at GWHS."

The school district first maintains that the district court

properly dismissed the section 1981 claim because the

Supreme Court in Jett v. Dallas Independent School District,

491 U.S. 701, 735, 109 S.Ct. 2702, 2723 (1989), held that

the exclusive federal damages remedy against a state actor

for violation of that section is under 42 U.S.C.S 1983. The

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school district contends that because Jones brought his

constructive discharge claim under the wrong statute, the

district court properly dismissed his claim. This argument

implicates an issue regarding the amendment of section

1981 by the Civil Rights Act of 1991, Pub. L. No. 102-166,

S 101(c), 105 Stat. 1071, 1072 (1991), i.e., did the 1991 act

overturn the Jett ruling that the exclusive federal damages

remedy against a state actor for a section 1981 violation is

under section 1983. See Federation of African Am.

Contractors v. City of Oakland, 96 F.3d 1204 (9th Cir.

1996); see also Hopp v. City of Pittsburgh, 194 F.3d 434,

1999 WL 825457, at *4 (3d Cir. Oct. 14, 1999); see,

however, Dennis v. County of Fairfax, 55 F.3d 151, 156 n.1

(4th Cir. 1995).

The school district next argues that assuming arguendo

that we would overlook Jones's failure to present the

section 1981 claim under section 1983, dismissal was

appropriate nonetheless because the standards governing

Jones's Title VII and PHRA claims control his constructive

discharge claim, and there is insufficient evidence

demonstrating that its proffered reasons for demanding his

resignation were a pretext for illegal race discrimination.

Finally, the school district claims that to the extent that

Jones predicates his section 1981 claim upon a theory of

racial harassment, his proofs fail to satisfy thefive-part test

set for in our opinion in Andrews v. City of Philadelphia,

895 F.2d 1469, 1482 (3d Cir. 1990).

We find it unnecessary to consider the Jett issue as we

are satisfied that a review of the evidence proffered in

connection with Jones's section 1981 claim demonstrates

that it is insufficient to establish by a preponderance of the

evidence that the decision to request plaintiff 's resignation

was motivated by racial bias. Therefore, we will affirm the

district court's order for summary judgment on this claim

as well.

B. The retaliation claims under Title VII, section 1981, and

the PHRA

Finally, we address Jones's retaliation claims. The district

court granted the school district summary judgment on

these retaliation claims, finding that there "was absolutely

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no evidence on the record before us that the [school

district's] actions against [Jones] were in retaliation for his

filing of EEO complaints." Jones, 19 F. Supp.2d at 421. The

district court also concluded that with respect to Jones's

allegations of retaliation by Principal Hoban, "the record

reflects that [Jones] made no EEO filings until after Hoban

recommended, and the school district upheld, his

recommendation for Jones's administrative transfer." Id.

(emphasis added). Finally, the district court found that

Jones "produce[d] no evidence which could in any way be

construed as showing any knowledge on the part of either

Principal Gutelius or Principal Torres of [Jones's] previous

EEO filings." Id. On this appeal, Jones apparently is

attempting to expand his claims by arguing that the

retaliation was in part for his opposing racial

discrimination. The school district contends that this

expansion is improper.

After a careful review, we are satisfied that the district

court reached the correct result on the retaliation claims.

While it is true that the school district took a series of

adverse employment actions against Jones, it is clear that

it took the actions in response to Jones's ongoing

unacceptable conduct rather than because he filed

complaints under Title VII or the PHRA or opposed racial

discrimination. Consequently, we will affirm on this point

without further discussion.

IV. CONCLUSION

For the foregoing reasons, the order for summary

judgment entered October 9, 1998, and the order denying

reconsideration entered November 10, 1998, will be

affirmed.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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