Allen Howell v. Millersville University of PA ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-3538
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ALLEN HOWELL
Appellant
v.
MILLERSVILLE UNIVERSITY OF PENNSYLVANIA;
MICHEAL HOULAHAN; PHILLIP TACKA; N. KEITH WILEY;
CHRISTY BANKS; DIANE UMBLE
____________________________________
On Appeal from the District Court
for the Eastern District of Pennsylvania
(E.D. Pa. Civ. No. 5-17-cv-00075)
Honorable Joseph F. Leeson, Jr., U.S. District Judge
____________________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
on September 5, 2018
Before: HARDIMAN, KRAUSE, and BIBAS, Circuit Judges
(Opinion filed: September 6, 2018)
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OPINION *
___________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
KRAUSE, Circuit Judge.
Allen Howell, a fifty-five-year-old tenured professor at Millersville University,
appeals the District Court’s grant of summary judgment in favor of the University and
various faculty members on Howell’s claims of disparate treatment and hostile work
environment, in violation of the Age Discrimination in Employment Act of 1967
(ADEA) and the Pennsylvania Human Relations Act (PHRA), and his claim of retaliation
for speech protected under the First Amendment, in violation of 42 U.S.C. § 1983. We
will affirm.
I. Background
The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367(a), and we
have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s grant of
summary judgment de novo, Fasold v. Justice, 409 F.3d 178, 183 (3d Cir. 2005), and we
will affirm if, viewing the facts in the light most favorable to Howell as the non-moving
party, “there is no genuine dispute as to any material fact” and the Appellees are “entitled
to judgment as a matter of law,” Fed. R. Civ. P. 56(a); Burton v. Teleflex Inc., 707 F.3d
417, 425 (3d Cir. 2013).
A. Howell’s Claim of Disparate Treatment Age Discrimination
We apply the familiar McDonnell Douglas burden-shifting framework to Howell’s
ADEA and PHRA claims. Smith v. City of Allentown, 589 F.3d 684, 691 (3d Cir. 2009);
Fasold, 409 F.3d at 183-84 & n.8. Under that standard, an employee must first proffer a
prima facie case of age discrimination, after which the burden shifts to the employer to
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provide a legitimate, non-discriminatory reason for the adverse employment decision.
Smith, 589 F.3d at 689-90. If the employer does so, the burden of production reverts to
the employee to provide evidence sufficient to convince a reasonable factfinder that the
employer’s rationale was pretextual. Id. at 690. An employee retains the ultimate burden
of showing that his age was a “but-for” cause of his employer’s decision, not merely a
“substantial” or “motivating” factor. Id. at 691-92; see Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167, 171-72, 178, 180 (2009).
Howell predicates his claims of disparate treatment on three adverse employment
actions: an “effective[] . . . demot[ion]” from the position of Director of Choral
Activities, the denial of his application for promotion, and the initial (and then expanded)
“Article 42/43 investigation” into his conduct in 2016. 1 Appellant’s Br. at 40. In a
commendably careful and thorough opinion, the District Court granted summary
judgment to Appellees because it concluded that, even if Howell established a prima facie
case of age discrimination, he put forward insufficient evidence to cast doubt on the
University’s “legitimate, non-discriminatory reason[s],” Fuentes v. Perskie, 32 F.3d 759,
763 (3d Cir. 1994), for those actions. Howell v. Millersville Univ. of Pa., 283 F. Supp. 3d
309, 326-32 (E.D. Pa. 2017).
Those reasons, as the District Court determined, satisfied Appellees’ burden at the
second step of McDonnell Douglas. Howell was not assigned the full responsibilities of
1
Howell also describes a second, ongoing investigation, but does not argue on
appeal that this constitutes an adverse action.
3
Director of Choral Activities, including responsibility for the advanced choirs, because he
lacked a Ph.D. in choral conducting or experience teaching auditioned choirs. He was
not promoted because, even though he had accumulated sufficient years if his tenure at
Edinboro University were counted, he did not meet the University’s requirement of
“[f]ive years at associate professor rank at the university,” App. 775 (emphasis added),
and also did not meet the standard for early promotion, i.e., “unusually high
qualifications” in the areas of teaching, scholarship and service, App. 782. And he was
investigated the first time because of complaints that he failed to provide adequate
feedback, resulting in the loss of a host school.
Against this backdrop, Howell was then required to “submit evidence which (1)
casts doubt upon the legitimate reason[s] proffered by the employer such that a fact-
finder could reasonably conclude that the reason[s] w[ere] a fabrication; or (2) would
allow the fact-finder to infer that discrimination was more likely than not a motivating or
determinative cause of the employee’s termination.” Doe v. C.A.R.S. Prot. Plus, Inc.,
527 F.3d 358, 370 (3d Cir. 2008). He failed to do so. As the District Court meticulously
reviewed each piece of evidence proffered by Howell and explained in detail why that
evidence was insufficient to meet this standard, see Howell, 283 F. Supp. 3d at 326-32,
we need not repeat that exercise here. We will, however, address some of the contentions
put forward by Howell that illustrate their common deficiencies.
Concerning his “demotion,” for example, Howell asserts that a doctorate in choral
conducting was merely preferred and not required, but the posting explicitly identified
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“ABD – Doctorate program leading to Doctorate in Choral Conducting” as a “Required”
qualification, 2 App. 1532, and it is undisputed that the instructor who retained
responsibility for the advanced choirs not only had that qualification, but also is Howell’s
age, see Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1113 (3d Cir. 1997) (en banc)
(considering the age of a plaintiff’s replacement in evaluating pretext). Similarly, while
Howell points to three alleged statements by Appellee Tacka expressing his preference
for “young” directors of choral activities and bands, it is undisputed that other faculty
members, including the Department Chair, Appellee Houlahan, immediately corrected
Tacka on each of those occasions, and there is no evidence, in any event, that Tacka was
involved in the University’s decision not to assign Howell the advanced choral groups,
see Fuentes, 32 F.3d at 766-67.
As for the denial of his promotion, Howell contends that the University
improperly refused to count his years at Edinboro University towards the requisite five
years of service required for promotion in the normal course and thus improperly
reviewed his application under the heightened standard for “early promotion.”
Appellant’s Br. at 36. As the District Court aptly observed, however, Howell “offer[ed]
no evidence other than his own opinion” that it was discriminatory not to count his years
of service elsewhere, Howell, 283 F. Supp. 3d at 327-28, and the record reflects that the
University consistently applied that approach to faculty from elsewhere. See Fuentes, 32
2
“ABD,” short for “all but dissertation,” means that a candidate has completed all
required coursework and needs only to finish a dissertation.
5
F.3d at 765. Moreover, while Howell baldly asserts that he met the rigorous criteria for
early promotion, the record reflects that he did not submit the required student
evaluations from five courses, he failed to document many of his qualifications, and he
completed no peer-reviewed scholarship or performances at the University. 3
Howell also failed to present evidence of pretext concerning the investigation in
2016. The fact that the collective bargaining agreement encourages the informal
resolution of a concern “[w]hen appropriate,” App. 1605, does not support a reasonable
inference that, absent Howell’s age, the University would not have commenced the
investigation given the nature of the complaints it received. For example, the fact that
this investigation did not result in a finding of wrongdoing or formal imposition of
discipline does not cast doubt on the University’s legitimate, non-discriminatory reasons
for undertaking it: the “reputational damage and loss of much-needed host schools for
student teachers.” Howell, 283 F. Supp. 3d at 330. In short, because no reasonable
factfinder could find pretext on this record, the District Court properly granted summary
judgment on Howell’s disparate treatment claim.
3
Nor do the “irregularities” that he identifies in the review of his application
“cast[] doubt upon the legitimate reason proffered by the [University]” or suggest “that
discrimination was more likely than not a motivating or determinative cause” of the
denial of his promotion. Doe, 527 F.3d at 370. Instead, as the District Court noted,
Howell’s “evidence” on this point “present[ed] variations on the same theme: that
[Appellees] made the wrong decision” in not promoting him. Howell, 283 F. Supp. 3d at
327. But it is simply not sufficient for a plaintiff to show that the Appellees’ reason for
the adverse action was “wrong”; he must show “that it was so plainly wrong that it cannot
have been the . . . real reason.” Keller, 130 F.3d at 1109.
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B. Howell’s Hostile Work Environment Claim
For largely the same reasons, we perceive no error in the District Court’s entry of
summary judgment on Howell’s claim that he was subjected to a hostile work
environment. Assuming, without deciding, that the ADEA permits hostile work
environment claims, cf. Dediol v. Best Chevrolet, Inc., 655 F.3d 435, 440 (5th Cir. 2011),
Howell needed to raise a triable issue that the University was “permeated with
discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive
to alter the conditions of [his] employment and create an abusive working environment.”
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002) (internal quotation
marks omitted). Instead, as the District Court accurately summarized, Howell did “not
produce[] evidence other than a handful of isolated statements by [Appellees] and the
conjecture of Drs. Toney and Darmiento that any adverse treatment they suffered was
because of their age,” and “every single one of the[] [other] acts” he identified as
evidence of discrimination “is neutral with respect to his age.” Howell, 283 F. Supp. 3d
at 332-33. That was insufficient to establish a hostile work environment based on
discriminatory animus, and Appellees were therefore entitled to judgment as a matter of
law. See Caver v. City of Trenton, 420 F.3d 243, 262-63 (3d Cir. 2005).
C. Howell’s First Amendment Retaliation Claim
Howell also failed to raise a genuine issue of fact on his claim that he was
retaliated against for speech protected under the First Amendment. To prevail on this
claim, Howell was required to show that (1) he engaged in constitutionally protected
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speech, and (2) that speech “was a substantial or motivating factor” for the University’s
adverse action. Munroe v. Cent. Bucks Sch. Dist., 805 F.3d 454, 466 (3d Cir. 2015).
Even then, the Appellees would be entitled to summary judgment if they established the
same adverse action would have been taken anyway. Id.Again, Howell did not meet his prima facie burden. Because a teacher has no
constitutional right to “choos[e] [his] own . . . classroom management techniques in
contravention of school policy or dictates,” Edwards v. Cal. Univ. of Pa., 156 F.3d 488,
491 (3d Cir. 1998) (citation omitted), Howell’s berating of a student in class and on a
class Facebook page (functionally, a “digital extension of the classroom,” Howell, 283 F.
Supp. 3d at 339) was not protected speech. Similarly, his emails, which were sent
internally and expressed “ordinary workplace grievances” about Department
management, do not involve matters of public concern. See Borough of Duryea v.
Guarnieri, 564 U.S. 379, 392 (2011); Miller v. Clinton County, 544 F.3d 542, 550 (3d
Cir. 2008).
Finally, even if we assume that Howell’s union grievance and Tumblr post, both
of which essentially rehash the same complaints, touched on matters of public concern,
see Munroe, 805 F.3d at 470, Howell did not show that this speech spurred the University
to take any adverse action, see Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259,
267-68 (3d Cir. 2007). Howell filed the union grievance after he was effectively
demoted, denied a promotion, and subjected to the first investigation, and about a year
before the second investigation. Likewise, the only allegedly adverse action that
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occurred after Howell’s April 2017 Tumblr post was Dean Umble’s request that he
undergo an interim evaluation because of his deficient scholarship. But there is no
evidence that Dean Umble even knew about Howell’s Tumblr post, much less that it
influenced her decision.
III. Conclusion
For the foregoing reasons, we will affirm the judgment of the District Court. 4
4
Howell also argues that the allegations of his complaint should be deemed
admitted and considered sufficient to overcome summary judgment because the
Appellees failed to file an answer to his complaint. But Howell waited until in limine
motions after the close of summary judgment briefing to raise any argument concerning
the Appellees’ failure to file an answer, and, even then, he requested different relief. This
argument was therefore waived. See Garza v. Citigroup Inc., 881 F.3d 277, 284 (3d Cir.
2018).
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