1994 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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1 

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 
2 

____________ 
3 

____________ 

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. 
4 

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 
5 

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 

 

0As 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. 
6 

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 

 

0Although 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. 
7 

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. 
8 

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-- 

 

0After 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. 
9 

(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 
10 

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 
11 

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 

 

0Even 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). 
12 

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." 
13 

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 
14 

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 

 

0The 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. 
15 

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 onthe-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. 
16 

 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. 

 

0We 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. 

0See 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). 
17 

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 
18 

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 

 

0A 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. 
19 

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 
20 

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 
21 

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 

 

0Evidence concerning her former attorney's statement could help 

her case if it were presented in admissible form. As it stands, 

it is hearsay. 
22 

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.