                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-31-2006

Heller v. Elizabeth Forward
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2046




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                                                              NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                 Nos. 05-2046, 05-2464
                                     ___________

                                POLLY ANN HELLER;
                                DARLA MARRACCINI;
                                  PENNY NATALE

                                            v.

                    ELIZABETH FORWARD SCHOOL DISTRICT,

                                                 Appellant

                                      ___________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania

                                   (D.C. No. 04-145)
                  District Judge: The Honorable Thomas M. Hardiman
                                     ___________

                               ARGUED APRIL 24,2006


          BEFORE: SCIRICA, Chief Judge, and NYGAARD, Circuit Judges,
                         and YOHN,* District Judge.

                                  (Filed May 31, 2006)
                                      ___________




         *Honorable William H. Yohn, Jr., Senior District Judge for the United States
District Court for the Eastern District of Pennsylvania, sitting by designation.
John W. Smart, Esq. (Argued)
Todd P. Prugar, Esq.
Andrews and Price
1500 Ardmore Boulevard, Suite 506
Pittsburgh, PA 15221

             Counsel for Appellant


Colleen R. Johnston, Esq. (Argued)
Rothman Gordon
310 Grant Street, 3 rd Floor
Pittsburgh, PA 15219

Samuel J. Cordes, Esq.
Ogg Cordes Murphy & Ignelzi
245 Fort Pitt Boulevard
Pittsburgh, PA 15222

             Counsel for Appellee

                                     ___________

                              OPINION OF THE COURT
                                   ___________


NYGAARD, Circuit Judge.

             A jury returned a verdict in favor of three teachers who had sued the

Elizabeth Forward School District alleging violations under the Age Discrimination in

Employment Act, The Equal Pay Act, and state claims alleging violations of the

Pennsylvania Human Relations Act. The School District appeals. We will affirm.




                                           I.

                                           2
               The School District’s salary scale and the collective bargaining agreement

between the School District and the teachers’ union, sets different “steps” in salary

depending on a teacher’s experience, education, and teaching certification area. When

the School District hired plaintiffs, they were all over the age of fifty years old and they

were all hired at step 1 of the District’s salary scale. They alleged that after the School

District hired them as teachers, it hired seven other teachers (“comparators”), five of

whom were male and all of whom were younger, with substantially the same

qualifications as Plaintiffs, at higher salary steps.

               After discovery, the School District filed a motion for summary judgment,

which the District Court denied. With respect to the ADEA claim, the District Court

determined that “[a] rational trier of fact could either disbelieve the employer’s articulated

legitimate reasons or believe that an invidious discriminatory reason was more likely than

not a motivating or determinative cause of the employer’s actions.” With respect to the

EPA claim, the District Court concluded that the plaintiffs had adduced enough evidence

from which a reasonable trier of fact could conclude that a prima facie case of

discrimination had been made. Additionally, the District Court concluded that the School

District failed to submit sufficient evidence to demonstrate that the salary differences

were due to some factor other than sex.

               The case went to trial and, after the District Court denied the School

District’s motion for a directed verdict, a jury awarded verdicts in favor of all three



                                                3
teachers. Subsequently, the School District renewed its motion for judgment as a matter

of law, which was denied. With respect to damages, Plaintiffs sought interest back to

when they were hired, liquidated and punitive damages, and equitable relief that gave

them credit for experience outside the School District. The District Court granted these

requests. The School District timely appealed, and all the orders (from summary

judgment through post-trial damages) were consolidated in this appeal.

                                             II.

                                             A.

              The School District concedes that plaintiffs have established a prima facie

case of age discrimination under the ADEA. They believe, however, that they have

adequately vitiated plaintiffs’ prima facie case of age discrimination with a legitimate

non-discriminatory reason for the salary discrepancies, and that the District Court

incorrectly required them, at the summary judgment stage, to conclusively prove this non-

discriminatory reason as opposed to merely proffer it.

              The School District is of course right that claims under the ADEA follow

the burden-shifting sequence set forth in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which does not require conclusive proof of a

non-discriminatory reason to rebut a prima facie case. However, once a defendant has

proffered a non-discriminatory reason, a plaintiff will survive summary judgment if she




                                             4
adduces evidence that would allow a factfinder to disbelieve the proffered non-

discriminatory reason. Here, plaintiffs met this burden.

              It is the School District’s practice that teachers are generally hired at step 1

of the salary scale, regardless of whether they teach elementary school or high school.

However, the School District argued that it hired teachers at different salaries because

“teacher certifications in sciences or special education that many of the younger teachers

possess,” combined with “the relative scarcity of these certifications justified a higher

starting salary.” It is true that the School District may hire a teacher at a step higher than

step 1. For example, it is permissible for the School District to hire a teacher at a higher

salary step where that teacher possesses qualifications for which the School District is

especially in need. Thus, nothing prohibits the School District from hiring a teacher who

possesses a teaching certification in physics at a higher salary step because the School

District lacks a high school physics teacher, as demand may play a role in the School

District’s decision to hire a certain teacher at a higher salary step.

              The District Court, however, determined that plaintiffs had submitted

evidence tending to cast doubt on the School District’s reason for its employment

decisions, chiefly that the younger teachers hired had teaching certifications that were

much rarer, and in greater demand, than those of the plaintiffs. The plaintiffs offered

evidence that school board members were unable to articulate this reason when deposed

and that, at least with respect to one comparator, Ms. Stock, the School District did not



                                               5
follow its own logic. School board member Ronald Skrinjorich testified that the board

members were “basically ignorant to the fact of pay levels” and that he was unaware of

any policy of starting teachers with scarce certifications at higher pay levels. He also

opined that “he did not really know why a teacher would be hired at a pay level higher

than Level 1 and that he would have supported Plaintiffs’ request for a higher pay level

because ‘if you give it to one, you give it to all.’” The District Court also concluded that

there was no evidence whatsoever to support the claim that the certifications of the

younger teachers are more scarce than those of the plaintiffs. In light of this

countervailing evidence, we think it certainly reasonable that a factfinder could disbelieve

the School District’s articulated explanation for the hiring discrepancies and, accordingly,

we will affirm the District Court’s denial of summary judgment as to the ADEA claim.

                                             B.

              The School District next contends that the District Court erroneously

determined that teachers with different teaching certificates could be considered

comparators for purposes of an EPA claim. Because they appeal from a denial of

summary judgment, the School District plies the argument that the District Court erred

when it declined to find, as a matter of law, that teachers with different teaching

certificates cannot be considered comparators. 24 P.S. § 12-1202, states that “No teacher

shall teach, in any public school, any branch which he has not been certified to teach.”

Thus, according to the School District, “[i]f [the plaintiff teachers] could not legally



                                              6
perform the same job as these [comparator] teachers . . . they could not be sufficiently

comparable to these teachers, and, therefore, could not support any discrimination claim

by comparing themselves to these [comparator] teachers.” This argument misses the

mark.

              When making out a prima facie case, a plaintiff need only show that the

jobs being compared are substantially equal, not necessarily that they are identical.

Forsberg v. Pacific Northwest Bell Telephone Co., 840 F.2d 1409, 1414 (9th Cir. 1988). The

EPA defines what constitutes equal work as jobs that require equal skill, effort, and

responsibility. Additionally, when a court assesses the substantial equality between jobs,

it should rely on actual job performance and content rather than job descriptions.

Moreover, because of the heavily fact-driven character of the inquiry, substantial equality

must be determined on a case-by-case basis. Depending on the facts and the evidence

presented, the proper comparator might be another teacher within the same certification

class. A school district may have a particular need, justifying pay differentials, to hire

teachers certified in specific subject areas. Accordingly, in some circumstances, plaintiffs

in one certification class claiming age or sex discrimination may not properly be able to

use a teacher in another certification class as a comparator. Because of this heavy factual

determination, however, the presence of a statute limiting who can teach specific subjects

is not determinative for purposes of assessing whether jobs are similarly situated for an

EPA claim. This is especially the case where, as here, the School District had a policy of



                                              7
starting all new teachers, irrespective of certification, at the same pay rate. At all events,

because of the factual nature of the inquiry, the presence of the proffered statute is not

determinative for purposes of an EPA prima facie claim and the District Court did not err

in denying the motion for summary judgment and concluding that whether the jobs are

similarly situated is a fact issue appropriate for the jury.

                                              C.

       We quickly dispose of the School District’s claim that, as a matter of law, the

District Court erred by determining that a librarian who holds “an instructional certificate

in library sciences may not be considered a teacher,” by noting that the District Court

made no such ruling. By framing the District Court’s decision to allow a jury to reach its

own decision regarding the similarity between plaintiffs and the librarian as a decision

that a librarian could never be considered a comparator, the School District

mischaracterizes the nature of the District Court’s ruling. In fact, the District Court

properly allowed evidence from both sides on the question whether a librarian should be

considered similarly situated to plaintiffs under the EPA, consistent with both the fact-

driven analysis such an inquiry presents and the manner in which other teacher-

comparators were analyzed.

                                              D.

       The School District’s appeal from the denial of its motion for judgment as a matter

of law is also unavailing. Here, as we noted earlier, the plaintiffs established their prima



                                               8
facie case for both their EPA and ADEA claims. Therefore, any claim by the School

District that the plaintiffs had no evidence that any of the comparator teachers were hired

at higher than step 1 because of their gender or age is inapt.

       Recognizing this, the School District additionally argues that “the claim that the

School District provided inconsistent reasons for its decision finds no support in the

record,” thus contesting the jury’s conclusion to the contrary on the EPA and ADEA

claims. We disagree. Their argument is easily refuted by the testimony offered by both

the superintendent and the school board members that was either contradictory or elusive

with respect to the reasons behind the salary discrepancies. For instance, at trial

Superintendent Mueller was unable to explain what the School District had meant when,

in its answer to the PHRC complaint, it proffered three reasons for the hiring

discrepancies: he could not explain what “applicable law” could have required the salary

differences, he did not know who had suggested “experience” as a possible justification,

and he admitted that the reason given for the hiring of Ms. Stock at a higher level was

false. He also testified that the “specialized certification” rationale for the hiring of the

comparator teachers was new and that it did not apply to Ms. Stock even though in the

School District’s answer, he had claimed that it did. He also testified that the School

District had changed its reason for the hiring discrepancies. Furthermore, when pressed

on his claim that the scarcity of applicants necessitated the higher salaries, he was unable

to testify as to how many other teachers had applied for the position or even how many



                                               9
were considered. He also suggested that hiring Ms. Stock at a higher salary step was

motivated by loyalty for her short-term substitute teaching. Additionally, three school

board members testified that they did not know why many of the teachers were hired at

their pay steps.

       We could go on, but in short, viewing the evidence most favorably to the

prevailing party, it is clear that a reasonable factfinder could have found that the School

District’s proffered nondiscriminatory reason was not proved, and that the record is not

critically deficient of that minimum quantum of evidence from which a jury might

reasonably afford relief to plaintiffs. In fact, what emerges most clearly from the trial

transcript is that the School District had no clear policy or procedures that it consistently

followed for hiring its teachers and, accordingly, its ex post attempts to justify the

discrepancies were unpersuasive and not believable. Because the record clearly suggests

that there was no cohesive or consistent answer to the question why the comparator

teachers were hired at significantly higher salaries, a jury could have found that the

School District’s proffered nondiscriminatory reasons were unbelievable, and,

consequently, we will affirm the District Court’s denial of the motion for judgment as a

matter of law.

                                              E.

       The District Court granted plaintiffs’ request to be placed higher up on the pay

scale, in line with their comparators. It is well settled that the District Court has discretion



                                              10
to fashion equitable relief to effectuate the purposes of the Title VII statutory scheme,

specifically, in order to award make-whole damages. Moreover, where, as here, the jury

makes explicit findings that, had the discrimination not occurred, the plaintiffs would

have been at higher salary steps, a District Court may appropriately fashion an award of

damages to support this finding.   Thus, the District Court’s decision here to place the

plaintiffs in the same position as their comparators was not an abuse of discretion.

                                             F.

       The School District finally attempts to manufacture a conflict between two of our

cases concerning the applicability of damages in ADEA cases. They claim that the

District Court erred in awarding liquidated damages under the ADEA both because the

liquidated damages are prohibited under the ADEA and because the School District is a

government entity. The School District’s argument that the District Court’s award was

impermissible is foreclosed by our decision in Potence v. Hazleton Area Sch. Dist., 357

F.3d 366 370 (3d Cir. 2004), where we determined that there is no question that

liquidated damages are acceptable under the ADEA. Potence, 54 F.3d at 372 (“[W]hen a

jury finds that an employer willfully violated the ADEA, the basic damages award may be

doubled under [the] liquidated damages provision.”). Additionally, this remedy is

available against municipalities like the School District. See id. (“[T]he language of the

ADEA itself makes it clear that Congress intended to subject municipalities like the




                                             11
School District to the liquidated damages provision of the ADEA.”). Consequently, the

District Court’s award of liquidated damages, as a legal matter, was proper .

       In an attempt to avoid the effect of this settled law, however, the School District

insists that Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1100 (3d Cir. 1995) conflicts

with the rule that liquidated damages are acceptable under the ADEA. Even a mere

cursory reading of Starceski disabuses this claim. The only question that the Court

addressed in Starceski was whether pre-judgment interest may be awarded along with

liquidated damages. Starceski, 54 F.3d at 1101 (concluding that awards of pre-judgment

interest and liquidated damages are permissible under the ADEA). The question was not

whether liquidated damages are appropriate under the ADEA. In fact, the Court expressly

allowed a grant of liquidated damages under the ADEA. Id. at 1102 (“The ADEA

incorporates the FLSA’s liquidated damages provision.”). Accordingly, the District

Court’s grant of liquidated damages in this case was correct.

                                              IV.

       In summary, and for the reasons set forth above, the judgment of the District Court

will be affirmed.




                                               12
