                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-1-1994

Charlton v. Paramus Board of Education, et al.
Precedential or Non-Precedential:

Docket 93-5498




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                             ___________

                             No. 93-5498
                             ___________


                        ANN MERY CHARLTON,
                                     Appellant

                                  v.

                PARAMUS BOARD OF EDUCATION; HARRY
             GALINSKY; MARIE HAKIM; BEVERLY BARBOUR;
        JOY PERRAUDIN; RICHARD SCHWEIDEL; MYRA LUSTBERG;
           RICHARD ZANELLA; JANICE DIME, Individually,
                                     Appellees

                             ___________

          Appeal from the United States District Court
                 for the District of New Jersey
                (D.C. Civil Action No. 92-01906)

                             ___________

           Submitted Under Third Circuit LAR 34.1(a)
                       December 23, 1993


    PRESENT:   STAPLETON, HUTCHINSON and ROTH, Circuit Judges

                      (Filed    June 1, 1994)

                             ____________

Ms. Ann Mery Charlton
100 Beckwith Place
Rutherford, NJ     07070
          Appellant Pro Se

Mark J. Blunda, Esquire
Lester Aron, Esquire
Cherie L. Maxwell, Esquire
Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross
One Riverfront Plaza
Newark, NJ      07102
           Attorneys for Appellees


                                  1
____________




     2
                             ____________

                       OPINION OF THE COURT
                           ____________


HUTCHINSON, Circuit Judge.



          Pro se appellant, Ann Mery Charlton ("Charlton"),
appeals an order of the United States District Court for the

District of New Jersey granting summary judgment to appellees,

the Paramus Board of Education ("school board") and various

officials within the Paramus School District ("school district").

The district court held that Charlton had not shown any genuine

disputes of material fact on her claims of discrimination,

hostile work environment, and retaliation and so could not

legally recover.   Charlton argues on appeal that the evidence she

pointed to in opposition to the school's motion for summary

judgment did raise a genuine issue of triable fact on her claims

for discrimination.   She also contends that the district court

erred as a matter of law in dismissing her retaliation claim

because she was no longer an employee of the school district at

the time the allegedly retaliatory conduct occurred.   While we

agree with the district court's disposition of her discrimination

and hostile work environment claims, we conclude the district

court erred in holding that Charlton had to be an employee at the

time of the allegedly retaliatory conduct.    Accordingly, we will

reverse the district court's order granting summary judgment on

the retaliation claim and remand for its consideration on the

merits.


                                  3
                                  I.

             Ann Mery Charlton taught in the Paramus School District

for seventeen years, rising to the level of tenured music

supervisor in September of 1988.       Charlton alleges that the

school district ultimately terminated her employment because her

supervisor, the Assistant Superintendent of Schools for the

Paramus School District, Janice Dime ("Dime"), made unwanted

sexual advances that Charlton rebuffed.       Charlton claims Dime

"then conspired with others [lesbian teachers] to embarrass,

discredit and punish Appellant for her rejection of Dime."          Brief

of Appellant at 11 (alteration in original).       This campaign,

Charlton claims, led to the school district's initiating tenure

revocation proceedings against her.       The tenure proceedings

eventually resulted in Charlton losing her job.

             The school board claims it took adverse employment

action against Charlton because she had spread "vicious and false

rumors about the sexual preferences and sexual activities of

Paramus administrators and employees, and falsely implied that

the district's hiring practices were influenced by the sexual

persuasion of the people to be hired or promoted or the sexual

relationship administrators had with these people."       Brief of

Appellees at 10.    Moreover, the school officials claim that

Charlton used malicious and inappropriate language when referring

to Paramus administrators or other teachers on numerous

occasions.    They also contend Charlton "created and implemented a

plan to gather information about [Dime's] personal life in order

to discredit her and prevent her from becoming the next


                                  4
Superintendent."    Id. at 11.   Charlton's activities in this

regard supposedly included the creation of a dossier on Dime

containing Dime's divorce decree, mortgage, and title papers

relating to her car.

          Charlton challenged the school's decision to terminate

her before a state administrative board.     It ruled against her

and the New Jersey Superior Court affirmed the decision. Charlton

filed this Title VII discrimination action while her petition to

the New Jersey Supreme Court to certify an appeal from the

Superior Court's order was pending.     The school officials filed a

motion for a stay of the federal proceedings while Charlton's

petition for certification was pending.     The district court

granted the stay.

          After the New Jersey Supreme Court's denial of

certification, Charlton recommenced the pursuit of her

discrimination action.   She alleges the administrators in the

Paramus School District then triggered proceedings to revoke her

teaching certificate ("revocation proceeding") in retaliation for

her Title VII suit with the goal of insuring that she would be

unable to teach again in New Jersey.0

          Charlton alleges that the Paramus School Board

initiated the revocation proceeding "in retaliation for filing my

complaint of sexual harassment and sexual discrimination against


0
 As of the date of the district court opinion, the revocation
proceedings had not been resolved. Revocation of her certificate
would make Charlton ineligible for professional employment in any
New Jersey public school. The termination of her tenure only
ended her employment at the Paramus School District.

                                  5
Janice Dime, 'assistant superintendent' of schools and the Board

in Federal Court."   Appellant's Appendix ("App.") at A-29.0    In

support of her position that summary judgment on the retaliation

claim was inappropriate, Charlton proffered a letter indicating

that the school board, through its attorney Lester Aron,

contacted the State Board of Examiners ("state board") on

November 11, 1992, about three weeks after Charlton had

reinstituted her Title VII action, to inquire about the status of

revocation proceedings.   Charlton's employment by the school

district had ended almost two years earlier on December 17, 1990.

Charlton also proffered a statement from her former attorney. She

alleges he told her, in January 1991, that the school district

would not seek revocation of her teaching license if she did not

appeal the Commissioner of Education's decision sustaining the

tenure charges to the state board.

          The district court granted summary judgment in favor of

the school board and its officials on Charlton's discrimination

and retaliation claims.   It held that a number of the defendants

were improperly named because the claims against them were

outside the scope of the Equal Employment Opportunity Commission

("EEOC") charges Charlton had filed or, alternately, that the

authority they had over Charlton was insufficient to meet

Title VII's definition of employer.   App. at 16-17, 19-21.    For

those defendants that remained properly named, the district court

0
 Although Charlton did not include this allegation in her initial
complaint, the district court permitted Charlton to amend her
complaint to add it and the appellees then included the
retaliation charge in their motion for summary judgment.


                                 6
held that Charlton was precluded from relitigating her

qualifications for the position because the state agency's

administrative law judge ("ALJ") had supported the termination,

and thus she could not make out a prima facie Title VII case. Id.

at 24.   In addition, the district court held Charlton could not

relitigate the harassment issue after the state courts had

resolved it against her.   Id.    Finally, the court dismissed

Charlton's hostile work environment claim because her allegations

did not set forth a prima facie case.   Id. at 27.

           The district court dismissed the retaliation claim

arising out of the revocation proceeding "for the simple reason

that the Board was not plaintiff's employer at the time of these

events. Thus, its actions did not constitute an 'unlawful

employment practice' proscribed by Title VII."     Id. at 25-26

(citing Ferguson v. Mobil Oil Corp., 443 F. Supp. 1334 (S.D.N.Y.

1978), aff'd without opinion, 607 F.2d 995 (2d Cir. 1979)).



                                 II.

           We have jurisdiction over the district court's final

order granting summary judgment pursuant to 28 U.S.C.A. § 1291

(West 1993).   Summary judgment is appropriate if the motion,

supported by the proper material, "show[s] that there is no

genuine issue as to any material fact and that the moving party

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

56(c).   "Facts that could alter the outcome are 'material facts,'

see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986),
and disputes are 'genuine' if evidence exists" to support them.


                                 7
Clark v. Modern Group Ltd., 9 F.3d 321, 326 (3d Cir. 1993)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).     The

defendant meets the test where there exists an absence of

evidence to support the plaintiff's case.     Celotex, 477 U.S. at

325.   "'[T]he plaintiff must present affirmative evidence to

defeat a properly supported motion for summary judgment.'"

Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir.

1989) (quoting Liberty Lobby, 477 U.S. at 256-57).



                               III.

                                A.

           We will affirm the district court's decision to dismiss

the discrimination and hostile work environment claims for the

reasons set forth in its opinion.     As the district court

correctly held, Charlton's complaint named improper defendants

under Title VII, exceeded the scope of her EEOC complaint and

failed to make out a prima facie case on her discrimination

claims against the remaining defendants.    We confine further

analysis to Charlton's claim that the school board activated a

procedure to revoke her teaching certificate in retaliation for

her reinstitution of her Title VII suit.0

          Section 703 of Title VII provides:
          It shall be an unlawful employment practice
          for an employer--


0
 After Charlton filed her suit, the district court suspended
consideration pending resolution of the state proceedings.
Charlton requested that the district court reinstate her
complaint on September 25, 1992, and the district court granted
her application on October 15, 1992.

                                8
               (1) to fail or refuse to hire or to
               discharge any individual, or otherwise
               to discriminate against any individual
               with respect to his compensation, terms,
               conditions, or privileges of employment,
               because of such individual's . . . sex
               . . . .



42 U.S.C.A. § 2000e-2(a)(1) (West 1981).    Section 704 of

Title VII further provides:
          It shall be an unlawful employment practice
          for an employer to discriminate against any
          of his employees . . . because he has opposed
          any practice made an unlawful employment
          practice . . . or because he has made a
          charge . . . under this subchapter.



Id. § 2000e-3(a) (West 1981).

          The district court held that the school board's action

could not have violated Title VII because Charlton was no longer

employed by the school district when the school board allegedly

precipitated the revocation proceeding.

          The district court relied on Ferguson v. Mobil Oil

Corp., 443 F. Supp. 1334 (S.D.N.Y. 1978), aff'd without opinion,
607 F.2d 995 (2d Cir. 1979).    In Ferguson, the plaintiff alleged

that he either sought and was denied employment, or was fired

from positions, with three other similar corporations following a

racially motivated termination by the defendant oil company.     He

claimed the other corporations denied his employment applications

or fired him because Mobil, his previous employer, had

"blacklisted" him because of his race.    Id. at 1336.   The

district court rejected Ferguson's claim.    In an alternate



                                 9
holding, the court concluded that an employer's post-employment

"blacklisting" was not prohibited under section 703 of Title VII.

Id. at 1339.
          [S]uch activity [cannot] fit within the terms
          of Section 703(a) or (d) of Title VII. This
          conclusion evolves from the realization that
          although such behavior is obviously
          reprehensible and probably tortious, it is
          clearly not discriminatory. Rather, it would
          appear more closely analogized to the state
          law claims of "slander" and "tortious
          interference with an employment
          relationship[.]"

                  It would also appear that the factual
             positions of the parties after the
             plaintiff's discharge were not such as to
             give rise to a violation of Title VII under
             the expansive interpretations of the courts
             because defendant's conduct in no way could
             constitute an "employment practice", as
             required by the statute.



Id. (citations and footnote omitted) (emphasis added).
             Ferguson is distinguishable and has little persuasive

force in Charlton's case.     There are two reasons.   First, the

United States Court of Appeals for the Second Circuit later
specifically allowed consideration of a Title VII post-employment

blacklisting claim that had not been asserted before the EEOC

because it had a reasonable relation to the EEOC charge.      See

Silver v. Mohasco Corp., 602 F.2d 1083, 1090-91 (2d Cir. 1979),

rev'd on other grounds, 447 U.S. 807 (1980).    Additionally, the

discrimination claim in Ferguson was brought under section 703 of

Title VII.    Ferguson, 443 F. Supp. at 1336, 1339.    Charlton's

claim for retaliatory action is brought under section 704(a).        A



                                  10
section 704(a) claim for retaliation is quite different from a

discrimination claim under section 703.   Retaliation claims can

often arise post-employment when an employee who has been

terminated files an action under Title VII charging

discrimination in discharge only to meet continued harassment

from its employers in retaliation for the filing of the action.

Accordingly, because we are not fully persuaded of the validity

of Ferguson's holding, even in the context of section 703

claims,0 we will independently examine the application of section

704(a) to post-employment retaliatory acts.

          There is a split of federal authority on this issue.

One line of cases holds that termination of the employment

relationship does not preclude a claim for retaliation under

Title VII or other statutes prohibiting invidious discrimination.

See, e.g., Passer v. American Chem. Soc'y, 935 F.2d 322, 330-31

(D.C. Cir. 1991) (interpreting parallel provision of Age

Discrimination in Employment Act ("ADEA")); Sherman v. Burke

0
 Even under section 703, many courts have refused to strictly
require an employment relationship if the defendant had the
ability to directly affect a plaintiff's employment
opportunities. See Shehadeh v. Chesapeake & Potomac Tel. Co.,
595 F.2d 711, 721-22 (D.C. Cir. 1978) (section 703 applies when
employer unlawfully interferes with former employee's future
employment opportunities); Sibley Memorial Hosp. v. Wilson, 488
F.2d 1338, 1341 (D.C. Cir. 1973) (the ability of hospital to
affect employment opportunities is enough to subject hospital to
a Title VII claim); accord Zaklama v. Mt. Sinai Medical Ctr., 842
F.2d 291, 293-94 (11th Cir. 1988) (Title VII plaintiff may claim
against person who had ability to affect employment status); Doe
v. St. Joseph's Hosp., 788 F.2d 411, 422-24 (7th Cir. 1986)
(reaching same result as Zaklama noting that statutory language
precludes illegal conduct against "any individual" and not just
"employee"); LeMasters v. Christ Hosp., 777 F. Supp. 1378, 1379-
81 (S.D. Ohio 1991) (collecting cases).


                               11
Contracting, Inc., 891 F.2d 1527, 1531-32 (11th Cir.)

(interpreting Title VII), cert. denied, 498 U.S. 943 (1990);

Bailey v. USX Corp., 850 F.2d 1506, 1509-10 (11th Cir. 1988)

(Title VII); Pantchenko v. C.B. Dolge Co., 581 F.2d 1052, 1054-55

(2d Cir. 1978) (Title VII); Rutherford v. American Bank of

Commerce, 565 F.2d 1162, 1165-66 (10th Cir. 1977) (Title VII);

Dunlop v. Carriage Carpet Co., 548 F.2d 139, 147 (6th Cir. 1977)

(interpreting anti-retaliation provision in Fair Labor Standards

Act); EEOC v. Metzger, 824 F. Supp. 1, 2-3 (D.D.C. 1993)

(Title VII); Cohen v. S.U.P.A. Inc., 814 F. Supp. 251, 260-61

(N.D.N.Y. 1993) (ADEA); Berry v. Stevinson Chevrolet, 804 F.

Supp. 121, 135-36 (D. Colo. 1992) (Title VII); cf. EEOC v. Ohio

Edison Co., 7 F.3d 541, 544-45 (6th Cir. 1993); see also

Christopher v. Stouder Memorial Hosp., 936 F.2d 870, 875-77 (6th

Cir.) (focusing on ability to "affect" employment opportunities

in analyzing Title VII section 704 retaliation claim), cert.

denied, 112 S. Ct. 658 (1991).

          Using a narrow, literal reading of Title VII, other

courts of appeals have held that the anti-retaliation provision

of Title VII becomes inapplicable after the employment

relationship ceases.   See Polsby v. Chase, 970 F.2d 1360, 1365
(4th Cir. 1992), vacated sub nom. Polsby v. Shalala, 113 S. Ct.

1940 (1993); Reed v. Shepard, 939 F.2d 484, 492-93 (7th Cir.

1991).

          In Polsby, the court of appeals expressly relied on a

literal reading of section 704(a) to hold that Title VII does not

protect individuals who are no longer "employees."

                                 12
          The statute specifically indicates that it is
          unlawful for an employer to retaliate against
          an employee or an applicant for employment.
          No mention is made of former employees. Given
          that Congress considered it necessary to add
          "applicant for employment" as a person
          distinct from an "employee" to be protected
          from retaliation, Congress could certainly
          have also included a former employee if it
          had desired.



Polsby, 970 F.2d at 1365; see also Reed, 939 F.2d at 493

(analyzing issue in one paragraph and concluding "it is an

employee's discharge or other employment impairment that

evidences actionable retaliation and not events subsequent to and
unrelated to his employment.") (emphasis in original).     The

appeals in Polsby also noted the practices that Title VII

specifically covers concern the employer-employee relation.

Polsby, 970 F.2d at 1365 ("The definition [of unlawful employment

practice] comprises discrimination with respect to certain

aspects of employment.   Title VII does not redress discriminatory

practices, however unsavory, which occur after the employment

relationship has ended.") (footnote omitted).   The court of
appeals in Polsby concluded that the remedies afforded a

successful Title VII plaintiff indicate Congress did not intend

them to apply to post-employment acts.
          [The] equitable remedies [of Title VII] are
          particularly suited to making a complainant
          whole without penalizing the employer. In
          successful Title VII actions, an applicant
          for employment will probably be hired for the
          job which was discriminatorily denied.
          Likewise, an employee will probably be
          promoted or reinstated to the job which was
          discriminatorily denied. However, it is much
          more difficult to fashion equitable relief


                                13
           for a former employee who was the victim of
           post-employment retaliation. While relief
           must be in the form of making the former
           employee whole as if the retaliatory act had
           not occurred, the equitable means to
           accomplish this goal are lacking. Such
           relief would entail calculating future
           damages and is far too speculative.



Id. at 1366 (footnote and citation omitted).0

          The courts that have held Title VII or other similar

statutes do reach post-employment acts have interpreted the term

"employee" broadly to "'include[] a former employee as long as

the alleged discrimination is related to or arises out of the

employment relationship.'"    Passer, 935 F.2d at 330 (quoting EEOC
v. Cosmair, Inc., 821 F.2d 1085, 1088 (5th Cir. 1987)).    The

rationale for this construction is that "a strict and narrow

interpretation of the word 'employee' to exclude former employees

would undercut the obvious remedial purposes of Title VII."

Bailey, 850 F.2d at 1509.    "To read the statute otherwise would

be to deny protection to any person who has suffered discharge or

termination due to unlawful discrimination."    Passer, 935 F.2d at

331.   The courts that have extended anti-retaliation protection


0
 The Supreme court vacated the court of appeals' decision in
Polsby "in light of the position asserted by the Acting Solicitor
General in his brief for the United States filed March 5, 1993."
Polsby, 113 S. Ct. at 1940. The government argued that the issue
of whether former employees are protected was not argued in the
court of appeals. It stated: "[B]ecause the decision of the
court of appeals constitutes an alternative ground for decision
unnecessary to the result and does not rest on an adversary
presentation of the question, there is no reason for this Court
to consider the question at this time." Brief for Respondents at
9, Polsby v. Shalala, 113 S. Ct. 1940 (1993) (No. 92-966). Thus,
the persuasive force of Polsby is of dubious value.


                                 14
have done so where the retaliation results in discharge from a

later job, a refusal to hire the plaintiff, or other professional

or occupational harm.     See, e.g., Passer, 935 F.2d at 331 (former

employer deprives ex-employee of "rare and prestigious"

professional laurel in retaliation for filing discrimination

claim);    Sherman, 891 F.2d at 1532 (former employer persuades new

employer to fire ex-employee); Rutherford, 565 F.2d at 1164-65

(former employer hinders ex-employee's search for work).     We

agree with this rationale and conclude that Congress did not

intend Title VII's protection against retaliation to end with

termination of employment when it is the termination itself that

gives rise to the protected act of filing a Title VII action.

           Under the district court's holding here, an employer

could threaten and take retaliatory action against a wrongfully

discharged employee without fear of federal anti-discrimination

laws.   Title VII prohibits retaliation "to protect the employee

who utilizes the tools provided by Congress to protect his

rights."   Vasconcelos v. Meese, 907 F.2d 111, 113 (9th Cir. 1990)

(citation omitted).     The need for protection against retaliation

does not disappear when the employment relationship ends. Indeed,

post-employment blacklisting is sometimes more damaging than on-

the-job discrimination because an employee subject to

discrimination on the job will often continue to receive a

paycheck while a former employee subject to retaliation may be

prevented from obtaining any work in the trade or occupation

previously pursued.     Such would be the case with Charlton if her

teaching certificate is revoked.

                                  15
          Under the district court's holding, fear of

unremediable reprisal would chill Title VII claims for

discriminatory discharges.   We think Congress hardly intended to

permit employers to retaliate with impunity against a former

employee after an assertion of Title VII rights.     A strict and

narrow reading of the term "employee" does just that.0

          Accordingly, we join the majority of courts that have

considered this issue and hold that an ex-employee may file a

retaliation action against a previous employer for retaliatory

conduct occurring after the end of the employment relationship

when the retaliatory act is in reprisal for a protected act

within the meaning of section 704 and arises out of or is related

to the employment relationship.0     Charlton alleged the school

district acted to revive state proceedings for revocation of her

teaching certificate in retaliation for her own decision to

continue pursuing a Title VII action challenging her termination

as discriminatory.   Therefore, we hold the district court

incorrectly held that Charlton could not prevail on her

retaliation claim because she was no longer an employee when the

school board contacted the state board about the long dormant

proceedings for revocation of Charlton's teaching certificate.
0
 We note that the United States Supreme Court has looked
favorably upon interpretations of remedial statutes that are
consistent with the "purpose and objective" of the prohibitions
present in the statute. See NLRB v. Scrivener, 405 U.S. 117, 122
(1972); see also Ohio Edison, 7 F.3d. at 545.
0
 See generally Patricia A. Moore, Parting is Such Sweet Sorrow:
The Application of Title VII to Post-Employment Retaliation, 62
Fordham L. Rev. 205, 219-23 (1993) (suggesting similar two-step
analysis to determine whether allegation of post-employment
retaliation is actionable under section 704).


                                16
                                B.

           Although we reject the district court's rationale for

granting summary judgment to the school district and its

officials on Charlton's retaliation claim, that order should

still be affirmed if Charlton has not produced evidence in

support of her allegations that raise a genuine issue of triable

fact.   See EEOC v. Westinghouse Elec. Corp., 930 F.2d 329, 331

(3d Cir. 1991).   On the record now before us, we think the school

district has yet to demonstrate the absence of any issue of

material fact whose resolution in Charlton's favor could sustain

her retaliation claim.

           In order to succeed on a claim of discriminatory

retaliation, a plaintiff must demonstrate that:   "(1) [she]

engaged in conduct protected by Title VII; (2) the employer took

adverse action against [her]; and (3) a causal link exists

between [her] protected conduct and the employer's adverse

action."   Weiss v. Parker Hannifan Corp., 747 F. Supp. 1118, 1128

(D.N.J. 1990); see also Robinson v. SEPTA, 982 F.2d 892, 895 n.1

(3d Cir. 1993); Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir.
1989), cert. denied, 493 U.S. 1023 (1990).   Charlton clearly

meets the first element because the filing of a Title VII action

is protected conduct.

           On the second and third elements, a court first

inquires whether the school board exercised any influence over

the revocation proceeding and, if it did, whether Charlton can

produce evidence sufficient to show the school board made a

                                17
retaliatory use of that influence to the detriment of Charlton's

employment opportunities.    Under New Jersey law, the state board

has authority to determine the competency of state teachers and

certify their qualifications.      See N.J. Stat. Ann. § 18A:6-38

(West 1989).    The state board also has the power to revoke

certifications.    Id.   Under the New Jersey Administrative Code,

the state board may revoke the teaching certificate of a holder

who, inter alia, has demonstrated "conduct unbecoming a teacher."

N.J. Admin. Code tit. 6, § 11-3.4 (1993).      All decisions of the

Commissioner of Education resulting in a teacher's loss of tenure

are forwarded to the state board for review for possible

revocation or suspension of the teaching certificate.      Id. § 11-

3.6(a)(1).     Once the state board receives the record, the board

reviews it to determine whether an order to show cause should

issue.   The state board has authority to issue an order to show

cause where it has reason to believe that grounds exist for

revocation or suspension.    Id.    If the teacher contests the order

to show cause, the state board must refer the matter to the

Office of Administrative Law for a hearing.      Id.

           After the tenure proceedings were concluded adversely

to Charlton, the Paramus School Board had no official role in any

proceedings for revocation of Charlton's teaching certification.0

By regulation, the decision whether to proceed with suspension or


0
 A tenure revocation proceeding is an adversarial action in which
the school board litigates against the teacher. The revocation
of a teaching certificate, however, is not adversarial and is
merely an administrative proceeding involving the individual
teacher.

                                   18
revocation rests within the discretion of the state board.     Had

the state regulatory agencies proceeded with a timely suspension

or revocation proceeding, it would have appeared that the state

board merely acted pursuant to its regulatory mandate.    The facts

as set forth in Charlton's opposition to summary judgment,

however, raise another possible inference.   The Commissioner of

Education affirmed Charlton's loss of tenure on December 12,

1990.   Pursuant to regulations, the commissioner should have

promptly forwarded the results of the tenure proceeding to the

state board for its review and consideration of revocation or

suspension.   If it thought that Charlton had committed acts

worthy of the loss of a teaching certificate, it is not

unreasonable to infer on the present record that the state board

would have acted and issued an order to show cause at that time.

No such action occurred.   Not until two years later, after

Charlton had reinstituted her Title VII action, did the state

board finally conclude that an order to show cause should issue.

Of course, that delay, standing alone, would be insufficient to

imply the Paramus School Board had any hand in reviving the

revocation procedure.   Charlton has, however, proffered evidence

in support of her opposition to summary judgment that would

support an inference that the state board acted in response to

the local school board's inquiry about the status of the

revocation proceedings, an inquiry that came long after the local

board had reason to do so.

           The Paramus School Board filed tenure charges on

July 20, 1989.   The Commissioner of Education upheld the tenure


                                19
charges as warranting dismissal on December 12, 1990.      When the

New Jersey Supreme Court finally denied certification, thereby

affirming the result of her tenure proceeding, on September 9,

1992, there was no possibility that Charlton could reobtain her

job in the school district.   Nevertheless, on November 11, 1992,

only three weeks after Charlton had reinstituted her Title VII

action, the school board inquired as to the status of the

revocation proceedings.   This is at least curious because the

local school board no longer had any apparent reason for its

interest in the outcome of this proceeding and, under New Jersey

law, had no responsibility or interest in expediting, reviving or

insuring the state board's pursuit of revocation.   Charlton was

no longer an employee of the Paramus School District and had no

prospects of further employment with it.   Construing the facts in

a light most favorable to Charlton as we must, we believe a

reasonable jury could conclude that the school board's belated

inquiry, if left unexplained, supports an inference that the

local school board sought to bring the revocation proceedings

back to life and to monitor them in retaliation for Charlton's

Title VII suit.   While the school board had no official

responsibility for the revocation proceeding, this record permits

an inference that it had a retaliatory motive for its newly

revived interest in Charlton's case.

          The local school board's lack of direct authority or

responsibility for the certification decision does not seem to us

to eliminate a potential Title VII violation.   If an employer who

does not actually make the subsequent employment decisions is


                                20
liable under Title VII if he "blacklists" a former employee for

that employee's exercise of Title VII rights, a school board can

also be liable if it has a retaliatory motive for an attempt to

jump start or influence state administrative proceedings to

revoke Charlton's professional certification.   The absence of

local regulatory authority over the revocation decision is not

dispositive.

          Charlton's burden upon remand, however, is heavy.     She

must not only demonstrate but for the intervention of the school

board that the revocation proceeding would not have gone forward

but also that the school board intervened in retaliation for her

Title VII suit.0



                              IV.

          Accordingly, we conclude that Charlton is not barred

from pursuing a Title VII claim merely because she was not an

employee at the time her former employer potentially acted to

interfere with her prospects of future employment.   Evidence

supports Charlton's claim that the school board sought to

interfere with Charlton's future employment opportunities and if

this interference was prompted by Charlton's Title VII action,

she has stated an actionable claim.

          We will affirm the district court's order granting

summary judgment on the discrimination and hostile work


0
 Evidence concerning her former attorney's statement could help
her case if it were presented in admissible form. As it stands,
it is hearsay.


                               21
environment claims.   We will, however, reverse and remand to the

district court for it to consider the sole issue of Charlton's

claim that the Paramus School Board sought to have her teaching

certificate revoked in retaliation for her filing of a Title VII

suit.




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