                                                                                                                           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Precedential or Non-Precedential: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

                               17
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

                               18
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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