NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 23-2060
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LEROY WILLIAMS,
Appellant
v.
SCHOOL DISTRICT OF PHILADELPHIA
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-22-cv-03313)
District Judge: Honorable Gerald J. Pappert
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Submitted Under Third Circuit L.A.R. 34.1(a)
March 7, 2024
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Before: SHWARTZ, CHUNG, and AMBRO, Circuit Judges.
(Filed: March 13, 2024)
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OPINION *
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*
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
SHWARTZ, Circuit Judge.
Plaintiff Leroy Williams appeals the District Court’s order granting summary
judgment in favor of Defendant School District of Philadelphia on his employment
discrimination claims. For the following reasons, we will affirm.
I
A
Williams, an African-American male, has been employed as a school counselor by
the Defendant since November 1993. During the relevant period, Williams was assigned
to Horace Furness High School. On December 1, 2020, Jennifer Barbo, a white female
and the only other counselor at Furness, complained that Williams made inappropriate
statements to her. Those comments include:
• “You know that if I wasn’t married to my wife I’d be all over your fat ass.”
• “Depressed?! But you’re too fine to be depressed.”
• “[Y]ou’re thick for a white girl.”
• “The boys must love you.”
App. 219.
Consistent with its policy, Defendant assigned Williams to a “reassignment room”
in Defendant’s administration building while it investigated the sexual harassment
allegation. 1 Williams concedes that race and sex did not factor into Defendant’s decision
1
Williams’s initial reassignment, from December 11, 2020, through the end of the
school year in June 2021, was virtual due to the COVID-19 pandemic. For the 2021-
2022 school year, Williams reported in-person to the reassignment room.
2
to reassign him. Williams asserts that the room lacked windows and ventilation, was
unclean, and that he was forced to sit on a hard chair for six-to-seven hours per day. 2
Tracie Gardner, a labor relations officer, investigated Barbo’s complaint. On
December 14, 2020, Gardner interviewed Williams in the presence of his union
representative, but, on the advice of his representative, Williams declined to answer
questions because he was not provided a copy of Barbo’s statement before the interview. 3
Gardner drew negative inferences from Williams’s failure to participate in the interview
and reported that (1) Barbo was credible, (2) Barbo’s allegations were well-founded, and
(3) although Williams’s conduct violated Defendant’s code of ethics, it did not amount to
unlawful discrimination or harassment.
Thereafter, Williams met with Furness’s principal and presented his version of
events. Williams explained that Barbo targeted him because she wanted to push him out
of Furness to protect her more junior position and deflect attention from her own poor
performance issues and mental health challenges. Furness’s principal then concluded, in
part due to Williams’s initial refusal to answer questions, that Williams did make the
statements that Barbo attributed to him. A second-level hearing officer upheld the factual
2
Williams alleges the conditions in the reassignment room led to back pain, boils,
weight gain, depression, anxiety, and mental anguish. He concedes, however, that
employees were permitted to leave the room and walk around, and that on numerous
occasions he was permitted to arrive late or leave early for personal reasons.
3
Before the interview, Williams was given notice of the allegations and a chance
to respond. The fact he was not initially provided with Barbo’s statement before the first
interview, which Williams concedes was not required, does not mean he was deprived of
due process, and he in fact was provided with the statement during later parts of the
process and before any formal discipline was imposed.
3
findings, and, ultimately, (1) Williams received a warning and (2) documents related to
the events and investigation were placed in his file for eighteen months, after which he
could seek their removal. Effective February 23, 2022, Williams returned to Furness. He
was never suspended, lost no salary, 4 and retained his seniority.
B
Williams sued Defendant, asserting that Barbo’s harassment report was the result
of racial and gender-motivated discrimination in violation of Title VII of the Civil Rights
Act of 1964. 5, 6
After discovery, Defendant moved for summary judgment. The District Court
granted the motion, holding that: (1) Williams failed to show a prima facie case of
discrimination because his removal was temporary and no evidence could support an
inference of discrimination, and (2) even if hems could make out his prima facie case,
Defendant had a legitimate, nondiscriminatory reason for the reassignment, namely its
standard practice of reassigning individuals accused of sexual harassment to the
4
Williams contends he lost $5,100 he would have earned as the school’s
badminton coach, for supervising detention, and for providing class coverage. Williams
also contends that he incurred therapy and other medical bills.
5
Williams conceded before the District Court that summary judgment for
Defendant was appropriate on his retaliation claim under Title VII and his claims under
42 U.S.C. § 1981. Dist. Ct. Dkt. 21 (Hr’g Tr. at 2:25-3:19).
6
Williams denies Barbo’s allegations and contends that they were racially
motivated based on her reference to race in one of her allegations. Specifically, Williams
points to Barbo’s allegation that Williams called her “thick for a white girl.” Appellant’s
Br. at 23-24. Williams also contends that Defendant treated Caucasian employees more
favorably, but the only employee he ever identified was Barbo.
4
reassignment room while it investigates the harassment complaint. Williams v. Sch. Dist.
of Phila., Civ. No. 22-3313, 2023 WL 3440254, at *4-5 (E.D. Pa. May 12, 2023).
Williams appeals.
II 7
Title VII makes it unlawful for an employer “to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race . . . [or] sex . . . .” 42 U.S.C. § 2000e-
2(a)(1).
To defeat a motion for summary judgment, a plaintiff must show a prima facie
case of discrimination, which requires that he demonstrate: “(1) []he was a member of a
protected class; (2) []he was qualified for the position; (3) []he suffered an adverse
employment action; and (4) . . . the adverse employment action ‘occurred under
circumstances that could give rise to an inference of intentional discrimination.’” Burton
v. Teleflex Inc., 707 F.3d 417, 426 (3d Cir. 2013) (citations omitted). 8 Even assuming
7
The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction
under 28 U.S.C § 1291. Our review “of a grant of summary judgment is plenary[.]”
Watson v. Eastman Kodak Co., 235 F.3d 851, 854 (3d Cir. 2000). Summary judgment is
appropriate where “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
8
We analyze discrimination claims involving indirect evidence, like the one here,
using the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). Burton, 707 F.3d at 425-26. If a plaintiff makes a prima facie case,
then the burden shifts to the defendant to offer a legitimate non-discriminatory reason for
the adverse employment action, and, if offered, the plaintiff must then produce evidence
allowing the reasonable inference that the proffered reason is a mere pretext for
discrimination. Id. at 426 (citations omitted). We need not address these latter steps
because Williams fails to establish a prima facie case.
5
Williams satisfies the first three elements, he has not adduced evidence from which a
reasonable jury could draw an inference of discrimination.
Williams argues an inference of discrimination can be drawn under the
“subordinate bias” or “cat’s paw” 9 theory. Under agency principles, an employer should
not be shielded from “discriminatory acts and recommendations of [its employees] that
were designed and intended to produce the adverse action.” Staub v. Proctor Hosp., 562
U.S. 411, 420 (2011). Therefore, an agent’s discriminatory animus can be a “motivating
factor in the employer’s action” sufficient to prove intentional discrimination. Id. at 421;
see also McKenna v. City of Phila., 649 F.3d 171, 178-79 (3d Cir. 2011) (applying cat’s
paw theory in a Title VII case). A plaintiff asserting that an employer is liable under the
cat’s paw theory must prove: (1) a non-decisionmaker “intended to cause . . . an adverse
employment decision” based on that person’s discriminatory animus, Staub, 562 U.S. at
421; (2) the non-decisionmaker communicated with the decisionmaker, Crosbie v.
Highmark Inc., 47 F.4th 140, 146 (3d Cir. 2022); and (3) the non-decisionmaker’s actions
proximately caused the adverse employment action, McKenna, 649 F.3d at 178-79.
Even assuming that the record would allow a reasonable jury to conclude that
Barbo’s report was false and intended to cause an adverse employment decision against
Williams, the record does not provide a basis from which a reasonable jury could infer
that Barbo had discriminatory animus. In his brief, Williams principally relies on
Barbo’s allegation that he said she was “thick for a white girl” as the basis for his
9
This theory is named after one of Aesop’s fables. McKenna v. City of Phila.,
649 F.3d 171, 177 n.6 (3d Cir. 2011) (citations omitted).
6
assertion that racial animus motivated her report. 10 Appellant’s Br. 23-24. Barbo’s
relaying of this comment, however, does not show that she filed the sexual harassment
report based on racial or sexual animus toward Williams and thus does not provide a
basis upon which a reasonable jury could conclude that she filed the report based on
Williams gender or race. 11
Because the record does not show that Barbo’s report was “based on [racial or
gender] discriminatory animus,” Staub, 562 U.S. at 421, and because Williams does not
contend that Defendant’s decision to place him in the reassignment room, investigate the
harassment complaint, or impose sanctions was motivated by discriminatory animus, the
District Court correctly concluded that Defendant was entitled to summary judgment. 12
III
For the foregoing reasons, we will affirm.
10
Williams also asks the Court to blindly assume there were other racially or
gender-motivated comments because Barbo’s complaint discusses unspecified
“comments” and “remarks” in the plural. These “bald assertion[s]” about unspecified
comments, however, are insufficient to support a cat’s paw theory. See Crosbie, 47 F.4th
at 146 (“[A] bald assertion is not enough.”).
11
Williams’s argument about this statement is also undermined by his own
statements during discovery that he believed Barbo made the purportedly false report so
that she could take his job and to distract from her own performance issues, and thus not
based on racial or gender animus.
12
Williams also argues that this decision to reassign him violated his right to
notice, an explanation of the evidence, and opportunity to be heard under Cleveland Bd.
of Educ. v. Loudermill, 470 U.S. 532, 546-48 (1985). Loudermill, however, applies to
terminations. See Gilbert v. Homar, 520 U.S. 924, 932 (1997) (suggesting that
Loudermill does not apply where the employee faces “only a temporary suspension
without pay” (emphasis omitted)). Here, Williams was not terminated.
7