                                                             NOT PRECEDENTIAL


                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 10-4484
                                  _____________

                            KENNETH HUGGINS, SR.,
                                         Appellant
                                     v.

COATESVILLE AREA SCHOOL DISTRICT; MARIA WALKER; RICHARD COMO;
JOHN DOE, Whose identity is unknown individually and in their own official capacity;
                             PEDRO QUINONES,

            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                                (D.C. No. 07-cv-04917)
                   District Judge: Honorable Gene E.K. Pratter
                                 _____________

                            KENNETH HUGGINS, SR.,
                                         Appellant
                                     v.

    COATESVILLE AREA SCHOOL DISTRICT; RICHARD COMO; PEDRO
  QUINONES; JOHN DOE, Whose identity is unknown individually and in their own
                           official capacity,


            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                                (D.C. No. 09-cv-01309)
                   District Judge: Honorable Gene E.K. Pratter
                                  ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                 October 28, 2011

                                         1
                                     ______________

       Before: SLOVITER, GREENAWAY, JR., and ALDISERT, Circuit Judges.

                          (Opinion Filed: November 17, 2011 )

                                     ______________

                                        OPINION
                                     ______________


GREENAWAY, JR., Circuit Judge.

       Kenneth Huggins filed two separate lawsuits in the District Court for the Eastern

District of Pennsylvania against the Coatesville Area School District (“the District”) and

various of its employees1 alleging that he had been the victim of racial discrimination in

the workplace and subject to unlawful termination and retaliation for complaining about

that discrimination. After the District Court‟s rulings on the various motions to dismiss,

three claims remained in each lawsuit: a 42 U.S.C. § 2000e (“Title VII”) claim, a

Pennsylvania Human Rights Act (“PHRA”) claim, and a 42 U.S.C § 1983 claim.

Defendants filed motions for summary judgment on the remaining claims in both actions

(the “First Action” and the “Second Action”).




1
 The first lawsuit named District employees Maria Walker, Richard Como, John Doe
and Pedro Quinones. The second lawsuit named District employees Como, Quinones,
and John Doe.

                                             2
         The District Court issued an order granting both motions and entered judgment in

favor of Defendants. Huggins now appeals this order, 2 claiming that the District Court

(1) erred in granting summary judgment on the Title VII and PHRA claims; and (2) erred

in holding that Huggins had failed to exhaust his administrative remedies as to the claims

in the Second Action.

         Huggins failed to administratively exhaust the claims in the Second Action and no

genuine dispute remains as to the Title VII and PHRA claims in the First Action. We

will affirm.

                                     I. BACKGROUND

         We write primarily for the benefit of the parties and recount only the essential

facts.

         Huggins‟s employment with the Coatesville Area School District (the “District”)

began in 1999. By 2003, he was a custodian at Gordon Middle School (“Gordon”). Dr.

Marie Walker became the principal of Gordon in 2004. Huggins believed Walker to be

“very rude” to him and other employees. (App. 270.) At his deposition, Huggins

testified that Walker once asked him, “Hey Ken, is that your bomb parked out there in my

parking spot[?]”. (Id. at 271.) Huggins believed that term insulted his vehicle and its




2
 Huggins does not appeal the entry of summary judgment on the § 1983 claims. We
need not address them further.

                                               3
condition, although he acknowledged that he did not consider the comment to be racially

discriminatory.

       On two other occasions, according to Huggins, Walker made racially charged

statements to him.3 First, on one occasion, when Walker and Huggins were alone in her

office, Walker told Huggins that she had visited Africa and a number of Caribbean

countries. When Huggins asked her what that meant, she responded, “I know how to deal

with black people. . . . I know how to put a hold on black people. . . . [I] know how to put

black people in check.” (Id. at 273.) Huggins testified that these comments “sealed the

deal,” making him realize that “she was a racist.” (Id. at 274.)

       On another occasion in November 2005, Walker approached Huggins and said,

“[H]ey[,] boy with the trash bag, come here.” (Id. at 305.) When Huggins responded,

“[E]xcuse me,” Walker repeated herself and “laugh[ed] with a smirk on her face.” (Id.)

Palpably upset, Huggins went to the adjacent office of Roger Johnson4 to discuss the

incident. Shortly thereafter, Huggins reported the incident to Dr. Major Poteat, the

Assistant Superintendant of the District and Walker‟s supervisor. Huggins also told




3
 In her deposition, Walker disputed that either of these events occurred (App. at 411,
415.) Appellees now argue that even if she had made the comments, as alleged,
Huggins‟s claims would still fail as a matter of law.
4
 Johnson‟s title is absent from the record. Huggins, in his deposition, said only, “He
used to work for the Y. The school district hired him.” (App. at 303.)

                                             4
several Gordon teachers about what had occurred, and they corroborated that he had been

upset.

         Approximately one month later, following allegations from a group of three

fourth-grade students, the District initiated a sexual harassment investigation against

Huggins. The students, who were in the English as a Second Language program, said

that they were afraid of Huggins, who they believed looked at them and at teachers

inappropriately. Walker reported their allegations to the District‟s human resources staff.

On December 22, 2005, Walker, along with human resources staff, met with the children

and their parents. That same day, Huggins was placed on a ten-day unpaid leave. His

employment was subsequently terminated as a result of the investigation.

         After his termination, Huggins filed a grievance under the terms of his collective

bargaining agreement, leading to arbitration. In late March, 2007, the arbitrator

determined that the lead complaining witness‟s testimony was “grossly unreliable,”

uncorroborated, and likely the result of misperception. (Id. at 503.) The arbitrator further

determined that Huggins‟s dismissal had been improper and therefore recommended that

he be reinstated to his former position with no loss of pay or benefits. Huggins was

reinstated on April 5, 2007 and assigned to the District‟s “9-10 Center,” where he was

placed on the 10:00 p.m. to 6:30 a.m. shift. Prior to his termination, he had been assigned

to the 2:30 p.m. to 11:00 p.m. shift at Gordon.




                                               5
       Huggins filed an unfair labor practice charge through his union. The matter was

settled, without arbitration, when Huggins agreed to continue working at the 9-10 Center,

as his position at Gordon had been filled.

       In January 2006, shortly after his termination, Huggins filed a complaint with the

Pennsylvania Human Relations Commission (“PHRC”). The complaint alleged that

Huggins had been discriminated against on the basis of his race. Count I described the

incident in which Walker called him “boy,” while Count II alleged retaliation after

Huggins complained about the comment. Huggins‟s attorney wrote the PHRC several

times subsequent to the arbitrator‟s March 2007 decision to inform the Commission of

that decision. The letters sought an expansion of the PHRC‟s investigation to encompass

Huggins‟s claims that his reinstatement at a different site and on a different shift

constituted retaliation for the favorable decision of the arbitrator. Huggins filed his first

complaint in federal court on November 21, 2007. On December 12, 2007, the PHRC

informed Huggins that his complaint had been administratively closed.

       The first action, No. 07-cv-04917 (E.D. Pa. filed Nov. 21 2007) (hereinafter “the

First Action”), brought seven claims against the District, Dr. Marie Walker, Richard

Como, John Doe, and Pedro Quinones5 (collectively, “the Defendants”). The First

Action alleged that Walker instigated and directed the sexual harassment investigation in


5
 Quinones was the Manager of Custodial Grounds for the District and Huggins‟s
supervisor. Como‟s title is unclear from the record, but he was a member of the District‟s
custodial staff.

                                              6
retaliation for Huggins‟s complaint about her remarks. Huggins also claimed that his

assignment after the favorable arbitration decision was undesirable and that he was

assigned more duties there than white co-workers.

       The District Court dismissed four of the claims in the complaint and allowed three

to remain in the case: a Title VII claim against the District, a Pennsylvania Human

Relations Act (“PHRA”) claim against the District and Walker, and a 42 U.S.C. § 1983

discrimination claim against Walker.

       Subsequently, Huggins filed a second action, No. 09-cv-01309 (E.D. Pa. filed

Mar. 26, 2009) (hereinafter, “the Second Action”) naming the District, Richard Como,

Pedro Quinones, and John Doe. This complaint claimed that retaliation had continued

after the filing of the First Action. Specifically, it averred that Huggins was told he could

not be transferred back to Gordon unless he dropped the First Action. The District Court

granted, in part, and denied, in part, a motion to dismiss the Second Action, leaving three

claims similar to those remaining in the first action: a Title VII claim against the District,

a PHRA claim against the District, and a 42 U.S.C. § 1983 claim against Richard Como

and Pedro Quinones.

       The District Court entered summary judgment in favor of Appellees on all the

remaining claims in both actions. Huggins filed a timely appeal.

                 II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had subject matter jurisdiction over the federal claims in this

case pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 2000e. It had jurisdiction over the

                                              7
state law claims pursuant to 28 U.S.C. § 1367. This Court has jurisdiction over the

appeal pursuant to 28 U.S.C. § 1291.

       We review the District Court‟s order granting summary judgment de novo. Azur v.

Chase Bank, USA, Nat’l Ass’n, 601 F.3d 212, 216 (3d Cir. 2010). “To that end, we are

required to apply the same test the district court should have utilized initially.”

Chambers ex rel. Chambers v. Sch. Dist. of Phila. Bd. of Educ., 587 F.3d 176, 181 (3d

Cir. 2009) (internal quotation marks omitted).

       Summary judgment is appropriate “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 entitled to judgment as a matter of law.” Azur, 601 F.3d at

216 (quoting Nicini v. Morra, 212 F.3d 798, 805-06 (3d Cir. 2000) (en banc) (citing Fed.

R. Civ. P. 56(c)).6 “Once the moving party points to evidence demonstrating no issue of

material fact exists, the non-moving party has the duty to set forth specific facts showing

that a genuine issue of material fact exists and that a reasonable factfinder could rule in

its favor.” Id. (quoting Ridgewood Bd. of Educ. V. N.E. ex rel. M.E., 172 F.3d 238, 252

(3d Cir. 1999)). In determining whether summary judgment is warranted “[t]he evidence



6
  Fed. R. Civ. P. 56 was revised in 2010. The standard previously set forth in subsection
(c) is now codified as subsection (a). The language of this subsection is unchanged,
except for “one word — genuine „issue‟ bec[ame] genuine „dispute.‟” Fed. R. Civ. P. 56
advisory committee‟s note, 2010 amend.



                                              8
of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his

favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chambers, 587 F.3d

at 181.

                                      III. ANALYSIS

   A. Exhaustion of Administrative Remedies

          Before filing an employment discrimination claim under Title VII, an employee

alleging an unlawful employment practice must timely file a discrimination charge with

the Equal Employment Opportunity Commission (“EEOC”) within 180 days of the

occurrence of the practice. 28 U.S.C. § 2000e-5(b), (e)(1), (f)(1). Similarly, before filing

a PHRA claim in court, an employee must file a complaint with the PHRC. Burgh v.

Borough Council of Montrose, 251 F.3d 465, 471 (3d Cir. 2001). Where an individual

has filed with the PHRC, or any other state or local agency with a function parallel to that

of the EEOC, the time for filing with the EEOC is extended: the aggrieved individual

may file until 300 days after the occurrence of discrimination or thirty days after the

PHRC‟s proceedings have been terminated, whichever is earlier. 42 U.S.C. § 2000e-

5(e)(1). A complainant may not bring a Title VII claim without receiving a right-to-sue

letter from the EEOC, indicating that he has exhausted his administrative remedies; he

may not bring PHRA claims for one year after filing with the PHRC. 43 Pa. Cons. Stat. §

962(c)(1); Burgh, 251 F.3d at 470, 471.

          The District Court granted summary judgment to Appellees on the Title VII and

PHRA claims in the Second Action because Huggins had failed to exhaust his

                                              9
administrative remedies regarding those claims. Huggins argues that this ruling was

erroneous because correspondence from the PHRC revealed that it would have been futile

for him to file a complaint with them. We disagree.

       Huggins filed his initial complaint with the PHRC on January 27, 2006,

immediately after his initial suspension. That complaint contained two counts: first, a

discrimination count, describing the incident in which Walker called Huggins “boy;” and

second, a retaliation count, alleging that Huggins was suspended as a result of his

complaint about the incident. In the spring of 2007, after Huggins had been reinstated at

the 9-10 Center, Huggins‟s attorney sent the PHRC several letters informing it of the

arbitrator‟s decision and of the continuing retaliation against Huggins. In August 2007,

the attorney sent an affidavit from Huggins detailing the alleged continued retaliation and

explicitly requested that an additional complaint be filed based on that affidavit.

However, on December 12, 2007, after Huggins had filed the First Action, the PHRC

informed counsel that the entire matter had been administratively closed.

       Counsel contacted the PHRC again in March 2009, referencing the case number

from the earlier PHRC complaint and alleging continued unlawful action that had

occurred in September 2008. The PHRC responded with a letter indicating that the

earlier case had been closed in 2007 after a complaint containing the same allegations

was filed in federal court. The PHRC‟s letter also informed counsel that, while the

statute of limitations for filing with the PHRC for the September 2008 events had

elapsed, Huggins could still file with the EEOC regarding these incidents.

                                             10
         Under these facts, Huggins‟ futility argument fails. Far from indicating that no

administrative remedy was available to Huggins, the PHRC actually directed him to a

specific administrative avenue—the EEOC—through which his claim could proceed.

Accordingly, the District Court was correct to grant summary judgment on the Title VII

and PHRA claims in the Second Action.

       B. Title VII and PHRA Claims

         The First Action brought claims under Title VII and the PHRA based on (a) the

racially hostile work environment that Appellees had allegedly created; and (b) the

retaliation which Appellees had allegedly subjected Huggins to when he complained.

The District Court granted summary judgment in favor of Appellees on these claims,

noting that the PHRA is interpreted in accord with analogous federal statutes such as

Title VII. See Weston v. Pennsylvania, 251 F.3d 420, 426 n.3 (3d Cir. 2001) (“The

proper analysis under Title VII and the Pennsylvania Human Relations Act is identical. . .

.”).

         In order to make out a hostile work environment claim, an employee must

demonstrate that he experiences harassment so “severe and pervasive” that it altered the

conditions of his employment and created “an abusive working environment.” Faragher

v. City of Boca Raton, 524 U.S. 775, 786 (1998) (quoting Meritor Savings Bank, FSB v.

Vinson, 477 U.S. 57, 67 (1986)). “Offhand comments[] and isolated incidents (unless

extremely serious) will not amount to discriminatory changes in the terms and conditions

of employment.” Id. at 788 (internal quotation marks omitted).

                                              11
       Huggins alleges only three comments he considered to be racially discriminatory,

and he acknowledged at his deposition that one, although offensive to him, was not racial

in nature. “Hostile environment harassment claims must demonstrate a continuous period

of harassment, and two comments do not create an atmosphere” of harassment.

Drinkwater v. Union Carbide Corp., 904 F.2d 853, 863 (3d Cir. 1990). The District

Court was correct to find that Huggins‟s hostile work environment claim must fail.

       In order to establish a prima facie retaliation case under Title VII, a plaintiff must

show that: “„(1) she engaged in activity protected by Title VII; (2) the employer took an

adverse employment action against her; and (3) there was a causal connection between

her participation in the protected activity and the adverse employment action.‟” Moore v.

City of Phila., 461 F.3d 331, 340-41 (3d Cir. 2006) (quoting Nelson v. Upsala Coll., 51

F.3d 383, 386 (3d Cir. 1995)). The District Court correctly noted that, since the sexual

harassment investigation that led to Huggins‟s suspension and termination was initiated

in response to complaints from students, however ill-founded, that investigation cannot

be causally related to Huggins‟s complaint about Walker‟s comment. The District‟s

failure to strictly comply with its own procedures around sexual harassment allegations

does not, despite Huggins‟s protestations, ameliorate the import of this fact. The District

Court‟s entry of summary judgment on this issue was therefore correct.

                                   IV. CONCLUSION

       For the reasons set forth above, we will affirm the judgment of the District Court.



                                             12
