IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RONALD H. BURNETT : CIVIL ACTION

:

v. :

:

SCHOOL DISTRICT OF :

CHELTENHAM TOWNSHIP : NO. 04-2680

MEMORANDUM AND ORDER

McLaughlin, J. July 19, 2006

The plaintiff teaches chemistry at Cheltenham High

School (“CHS”). He alleges that the defendant school district

discriminated against him on the basis of race, and otherwise

violated his rights, when it imposed intensive supervision upon

him, took away his honors chemistry class, and suspended him for

ten days. The plaintiff has asserted claims under 42 U.S.C. §§

1981, 1983, and 1985, and Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e. The plaintiff has also asserted claims

for breach of contract and intentional infliction of emotional

distress under state law.

The defendant has moved for summary judgment on all

counts. The Court will grant summary judgment on the employment

discrimination and retaliation claims under § 1981 and Title VII

because, even assuming that the plaintiff has stated a prima

facie case of discrimination and/or retaliation, he has not shown

that the defendant’s articulated legitimate, nondiscriminatory

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The plaintiff has also agreed to dismiss his claims for 1

intentional infliction of emotional distress and for punitive

damages. (2/23/06 Hr’g Tr. at 4-6, 51). 

On a motion for summary judgment, a court must view the 2

evidence and draw reasonable inferences therefrom in the light

most favorable to the party opposing summary judgment. See,

e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 

Summary judgment is proper if the pleadings and other evidence on

the record “show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law.” Fed. R. Civ. P. 56(c).

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reasons for its actions are pretextual. The Court will grant

summary judgment on the § 1983 claim because the plaintiff has

not shown that his due process rights were violated. The

plaintiff has conceded the § 1985 claim. (2/23/06 Hr’g Tr. at 4-

6). Whereas the federal claims are the bases of the Court’s 1

subject matter jurisdiction, the Court will decline to exercise

pendent jurisdiction over the plaintiff’s state law claims. 

I. Facts

Viewing the record in the light most favorable to the

plaintiff, the Court finds the following facts regarding his

employment at CHS from 1999 to 2004. 

2

A. 1999-2000 School Year

The plaintiff interviewed for a position at CHS in the

summer of 1999. On July 13, 1999, the Board of School Directors

elected him to the position of “Chemistry Teacher.” For the

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1999-2000 school year, the plaintiff was assigned to teach one

class of honors chemistry, one class of academic chemistry, and

two classes of chemistry in the community. (Eisner Dep. Tr. at

26; Burnett Dep. Tr. I at 63-64 and Ex. B-3 (Teaching Schedules);

7/13/99 Contract). 

During the first semester, CHS Principal Joseph Rodgers

and CHS Science Department Chair Scott Eisner received several

complaints about the plaintiff’s grading practices from parents

of students in the plaintiff’s honors chemistry class. In

addition, a female student alleged that the plaintiff had made

sexual advances toward her; she later recanted her accusation. 

(Rodgers Dep. Tr. at 149; Eisner Dep. Tr. at 62-65; Burnett Dep.

Tr. II Ex. B-13 (12/22/99 Rodgers Letter to Rajca), Ex. B-14

(12/21/99 Rodgers Letter to Rosenbloom), and Ex. B-15 (12/21/99

Rodgers Letter to O’Briens); Burnett Dep. Tr. I at 34-36).

Principal Rodgers met with the plaintiff on December

14, 1999 to discuss the complaints that had been made against

him. Principal Rodgers also expressed concern that the plaintiff

was using sexual innuendo in class. (Rodgers Aff. ¶¶ 8-10 and

Ex. A (Notes of 12/14/99 Meeting)). 

At the end of the first semester, Principal Rodgers

noticed that over 50% of the students in the plaintiff’s academic

chemistry and chemistry in the community classes had received a

“D” or lower for the first term, which was not consistent with

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the grades in other sections of those courses. Principal Rodgers

convened a formal meeting known as a “PD-2 Conference” on March

1, 2000 to address the plaintiff’s mid-term grading and concerns

about the plaintiff’s classroom judgments in general. At the

conclusion of the conference, Principal Rodgers ordered

“intensive supervision” for the plaintiff until May 12. 

Principal Rodgers also told the plaintiff to stop

“all-or-nothing” grading and to teach students at an appropriate

level. (Rodgers Aff. ¶ 11, Ex. C (2/25/00 Rodgers Letter to

Burnett) and Ex. D (3/1/00 PD-2 Conference Report)). 

The plaintiff’s intensive supervision period ended with

another conference on June 15, 2000. Mr. Eisner reported that

the plaintiff had been faithful to the supervision plan. That

same day, Principal Rodgers gave the plaintiff a perfect rating

(80 out of 80) for the 1999-2000 school year. (Rodgers Aff. ¶ 16

and Ex. E (6/15/00 PD-2 Conference Report); Burnett Dep. Tr. I

Ex. B-6 (1999-2000 Rating)).

The plaintiff’s final grades became available after the

June 15 conference. Principal Rodgers discovered that the

plaintiff had given 78% of the students in his academic chemistry

class a “D” or lower on the final exam, and 51% a “D” or lower

for the semester. This grading pattern was much lower than those

in other sections of academic chemistry, as well as those in the

students’ other courses. Principal Rodgers directed the

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plaintiff to reexamine his grading scale for the academic

chemistry final exam, and invited the plaintiff to reconsider any

and all other grades. The plaintiff did not change any grades. 

(Rodgers Aff. ¶ 17, Ex. E (6/15/00 PD-2 Conference Report), and

Ex. F (9/15/00 Rodgers Letter to Burnett)). 

Over the summer, Principal Rodgers met with four

families about the plaintiff’s academic chemistry final exam. 

Principal Rodgers also asked Joe Cifelli, the District’s Director

of Secondary Education and a former CHS science department chair,

to review the exam. Mr. Cifelli advised Principal Rodgers that

the plaintiff’s academic chemistry exam did not significantly

differ from his honors exam and was too long for the time

allotted. (Rodgers Aff. ¶¶ 19-20 and Ex. F (9/15/00 Rodgers

Letter to Burnett)). 

Principal Rodgers decided to change the grades in the

plaintiff’s academic chemistry class himself. The District’s

Manual of Policies and Procedures provides that when there is a

valid reason to change a grade but the teacher does not do so,

“it is the responsibility of administration to examine the

circumstances under which the grade was given and to correct or

adjust the situation as required.” The Manual of Policies also

provides that the principal is the final arbiter of grades. 

(Id.; Board Policy No. 213). 

Principal Rodgers informed the plaintiff of his

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decision to change the grades on September 15, 2000. Principal

Rodgers also expressed concern about other issues that students

and their families had brought to his attention over the summer,

including lack of feedback on homework and exams, favoritism

towards certain students, and giving nicknames to some students

which they did not like and found demeaning. Principal Rodgers

took no further action at that time, however. (Rodgers Aff. Ex.

F (9/15/00 Rodgers Letter to Burnett)). 

B. 2000-2001 School Year

The plaintiff taught two sections of honors chemistry

in the 2000-2001 school year. In December 2000 or January 2001,

the plaintiff learned that a student in one of his honors classes

had made allegations of sexual harassment against him. The

plaintiff approached Principal Rodgers about the allegations, and

Principal Rodgers asked him to participate in a formal meeting. 

The plaintiff responded that he would only participate if

Principal Rodgers provided him with a written statement detailing

the allegations beforehand, and if he could have a lawyer

present. Principal Rodgers initially told the plaintiff that he

could bring a lawyer, but subsequently informed him that he could

only have a union representative. (Burnett Dep. Tr. I at 117-119

and Ex. B-3 (Teaching Schedules); Rodgers Aff. Exs. H-J (1/25/01,

1/26/01, and 1/31/01 Letters Between Rodgers and Burnett)).

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Specifically, the student had alleged that the

plaintiff frequently touched her and other students on the arm,

back, and hair. The student claimed that the plaintiff stopped

on the two or three occasions she told him to, but started again

later. The student also alleged that the plaintiff made

inappropriate personal references about himself and students, and

used sexual innuendo, namely references to Austin Powers movies. 

The plaintiff denied the allegations. The plaintiff explained

that he did not have much interaction with this student, and that

if he had touched her, it was only in passing, and was not sexual

in nature. (Burnett Dep. Tr. I at 127-131 and Ex. B-9 (3/26/01

Report Re: Allegation of Sexual Harassment)).

After an investigation, Principal Rodgers concluded

that the plaintiff was not guilty of sexual harassment. Mr.

Rogers determined, however, that the plaintiff may have been

guilty of poor judgment in his behavior and comments around

students. All of the students in the plaintiff’s honors

chemistry class rated the class as being less “appropriate” than

their other classes, and reported feeling uncomfortable or

awkward because of the plaintiff’s behavior. Several students

remarked upon the plaintiff’s use of sexual innuendo from Austin

Powers movies, references to his personal life, and/or comment

that they would have to rip off a female student’s clothes and

throw her into the safety shower if her lab group did not handle

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a chemical properly. One parent told Principal Rodgers that the

plaintiff referred to the girls on his soccer team as “chicks,”

and to girls’ soccer as “chick ball.” (Id.).

In May 2001, Principal Rodgers received a letter from

the parent of another honors chemistry student, complaining about

the plaintiff’s teaching methods and failure to promptly return

graded work. The letter stated that the student was so

frustrated with the plaintiff’s class that she often came home

crying about it. (Rodgers Aff. Ex. K (5/11/01 M.R.N. Letter to

Rodgers); Marcy R.N. Aff.). 

Despite his findings about the plaintiff’s classroom

conduct and the parent complaint, on June 13, 2001, Principal

Rodgers gave the plaintiff a perfect rating (80 out of 80) for

the 2000-2001 school year. (Burnett Dep. Tr. I Ex. B-10 (2000-

2001 Rating)). 

Principal Rodgers received two more letters from

parents at the end of the 2000-2001 school year. The first set

of parents complained about the plaintiff’s policy on making up

missed exams, and alleged that the plaintiff had called his

eighth period students his “little expletives.” The second set

of parents complained about the plaintiff’s grading decisions and

failure to promptly return graded work. (Rodgers Aff. Ex. L

(6/12/01 Father and Mother Letter to Rodgers) and Ex. M (7/8/01

R.J.S. Letter to Rodgers); Randall J.S. Aff.).

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C. 2001-2002 School Year

Enrollment in honors chemistry declined in 2001-2002. 

The plaintiff taught the only section of honors chemistry

offered. (Burnett Dep. Tr. I at 69).

Principal Rodgers received complaints throughout the

year from parents of students in the honors chemistry class. 

Among other things, the complaints alleged that the plaintiff

exhibited sarcasm and arrogance when asked to explain material;

tested on material he had not fully covered; demeaned, belittled,

and physically threatened students; permitted visitors to use

obscenities in his classroom; and occasionally put his hands on

students “in a totally inappropriate manner.” (Rodgers Aff. Ex N

(9/24/01 S.W. and J.S. Letter to Eisner), Ex. O (10/1/01 M.R.C.

Letter to Rodgers), Ex. R (2/27/01 M.R.C. Letter to Rodgers), Ex.

P (Undated D.S. and J.C.S. Letter to Rodgers), Ex. Q (Undated

D.S. Letter to Rodgers), and Ex. T (4/7/02 H.B. and B.B. E-mail

to Eisner); Randall J.S. Aff.; Dean S. Aff.). 

During the winter of 2001-2002, approximately fifteen

of the plaintiff’s honors chemistry students requested a meeting

with Principal Rodgers. They expressed concerns that were

similar to the parents’ complaints. (Rodgers Aff. ¶ 24(h)). 

In March 2002, a student in the plaintiff’s chemistry

in the community class complained to Principal Rodgers about the

plaintiff’s grading practices. In his notes on the meeting,

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Principal Rodgers wrote: “Sense of hopelessness in the class. 

Everyone expects to do poorly.” (Rodgers Aff. ¶ 24(j) and Ex. S

(Notes of 3/2/02 Meeting)). 

Mr. Eisner and Principal Rodgers did not share these

complaints with the plaintiff as they received them. On April

22, Principal Rodgers informed the plaintiff that, as a result of

the “growing distress” expressed by the plaintiff’s honors

chemistry students and some of their parents, the plaintiff would

have to attend a PD-2 conference on April 24, and receive

intensive supervision again. Principal Rodgers and Mr. Eisner

began observing the plaintiff’s class on a daily basis on April

22. (Rodgers Aff. Ex. V (4/22/02 Rodgers Letter to Burnett)).

The plaintiff initially refused to attend the

conference unless Principal Rodgers outlined the complaints

against him and permitted him to bring a lawyer. On May 1,

Principal Rodgers provided the plaintiff with a list of five

areas of concern: 1) students visiting and disrupting his eighth

period class; 2) failure to provide feedback on graded work; 3)

all-or-nothing grading; 4) excessive use of the overhead

projector; and 5) “class climate issues,” including reports from

students that they felt demeaned or degraded in the plaintiff’s

class. Principal Rodgers maintained that it was within the

District’s discretion to prohibit the plaintiff from having an

attorney at the conference. (Rodgers Aff. Exs. V-Y, AA (4/22/02,

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4/23/02, 4/25/02, 5/1/02, and 6/13/02 Letters Between Rodgers and

Burnett)). 

The PD-2 conference eventually took place on May 7,

2002. The plaintiff defended his classroom practices and stated

that he had been blind-sided because no one had told him about

the complaints as they came in. At the end of the conference,

the administrators instituted a plan that included daily

supervision of the plaintiff’s eighth period honors chemistry

class and weekly written feedback for the plaintiff on the five

areas of concern. Although Mr. Eisner and Principal Rodgers had

started visiting the plaintiff’s class on a daily basis in the

last week of April, only the visits that took place after the

PD-2 conference were to be considered “formal supervisory

material.” (Rodgers Aff. Ex. Z (5/13/02 Report of PD-2

Conference) and Ex. AA (6/13/02 Rodgers Letter to Burnett);

5/22/02 Burnett Letter to Rodgers). 

At a follow-up PD-2 Conference, Principal Rodgers

acknowledged that the plaintiff had cooperated with the overall

process. Principal Rodgers concluded that visitors to the eighth

period class were not distracting, as had been reported, and that

there was a “spirit of accommodation” and a “friendly atmosphere”

in the class. Principal Rodgers observed, however, that the

plaintiff still returned work without review or commentary,

utilized all-or-nothing grading, and had students copy notes from

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Mr. McGinley became Superintendent in the summer of 3

2003. (McGinley Aff. ¶ 2).

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the overhead for substantial amounts of time. The plaintiff

continued to defend his classroom practices. (Rodgers Aff. Ex.

BB (6/17/02 Report of PD-2 Conference); Burnett Dep. Tr. II Exs.

B-19 to B-21 (Feedback Reports)). 

On June 17, 2002, Principal Rodgers gave the plaintiff

a 70 out of 80 rating for the 2001-2002 school year. This was a

“satisfactory” rating, but the plaintiff disagreed with the

deduction of the 10 points. The plaintiff was not given an

opportunity to discuss the rating. He therefore refused to sign

it. (Burnett Dep. Tr. I at 63-64).

That same day, Principal Rodgers gave the plaintiff his

assignments for the 2002-2003 school year. The assignment

included one section of honors chemistry. The assignment form

also stated: “there is a somewhat tentative quality to the

specific content of each assignment. While I believe firmly that

the pattern of assignments being distributed today are sound, a

few may require adjustment as new teachers are hired or other

personnel changes take place.” (Burnett Dep. Tr. II Ex. B-27

(6/17/02 Rodgers Memo to Burnett)). 

Sometime during the summer of 2002, Christopher

McGinley, then-Substitute Superintendent for the District,

decided to reassign the plaintiff away from honors chemistry.3

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The plaintiff saw a newspaper advertisement seeking an honors

chemistry teacher for CHS in July, but was not formally notified

of the reassignment until August. The Collective Bargaining

Agreement governing the District and the teachers’ union states

that the administration should notify a teacher within five

working days after it is aware of a need to change the teacher’s

schedule. (McGinley Aff. ¶¶ 8-9; Burnett Dep. Tr. II at 64;

1997-2002 Collective Bargaining Agreement).

D. 2002-2003 School Year

The plaintiff did not teach any honors chemistry

classes in 2002-2003. Instead, he taught chemistry in the

community, physical science, and a course entitled “Science,

Technology & Society.” The plaintiff’s intensive supervision

period continued for twelve weeks into the fall of 2002. 

(Burnett Dep. Tr. I Ex. B-3 (Teaching Schedules); Rodgers Aff.

Ex. DD (7/9/02 Rodgers Letter to Burnett)). 

The plaintiff filed a charge of discrimination with the

Pennsylvania Human Relations Commission (“PHRC”) and the EEOC on

February 6, 2003, alleging that the District had discriminated

against him on the basis of race and national origin in taking

away his honors chemistry assignment and in imposing intensive

supervision. The plaintiff served the charge on the District on

April 9, 2003. (2/6/03 PHRC Charge). 

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The District did not record any complaints and did not

take any additional disciplinary actions against the plaintiff in

the 2002-2003 school year. At the end of the year, Principal

Rodgers gave the plaintiff an 80 out of 80 rating. (Burnett Dep.

Tr. II at 67).

In May, Mr. Eisner asked all the science teachers to

indicate their teaching preferences for the following year. The

plaintiff responded that he only wanted to teach chemistry. The

plaintiff did not receive any chemistry classes, however. 

(Eisner Statement to PHRC). 

That summer, the plaintiff filed another charge with

the PHRC and the EEOC, alleging that the District had retaliated

against him for filing the first charge by not assigning him any

chemistry courses for the 2003-2004 school year and by assigning

another teacher to the classroom he had used for the past four

years. The plaintiff served the District with the second charge

on September 25, 2003. (7/16/03 PHRC Charge). 

E. 2003-2004 School Year

In 2003-2004, the plaintiff taught only physical

science and “Science, Technology & Society.” (Eisner Statement

to PHRC). 

At some point in the fall, the plaintiff received what

he perceived to be a threatening e-mail from the parents of one

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of his students, “N.T.” When N.T. arrived for class, the

plaintiff told her to go to the school office. The staff there

did not understand why the plaintiff had sent her to the office,

and sent her back to class. When she returned, the plaintiff

sent her back to the office. (Burnett Dep. Tr. II at 69-79).

In late October or November 2003, N.T.’s parents met

with Superintendent McGinley and Assistant Superintendent Dr.

Susan Beerman. The parents alleged that the plaintiff had blown

kisses at their daughter, played with her head band, and massaged

her shoulders. The parents also expressed concern about the

plaintiff’s conduct towards other students. Dr. Beerman also

received complaints from other parents. Superintendant McGinley

asked Dr. Beerman to investigate the parents’ allegations. 

(Beerman Dep. Tr. at 21-24). 

Dr. Beerman privately interviewed the four students

whose parents had filed complaints, plus seven students that the

alleged victims identified as witnesses. One student stated that

the plaintiff had once blown her a kiss, once placed both hands

on her shoulders and massaged her, and twice played with a

headband on her head. A second student stated that the plaintiff

had blown her a kiss five or six times, and had rubbed her back. 

Another student complained that the plaintiff had thrown away her

prescription glasses after she had forgotten them in class. 

Other students confirmed these reports. All the students

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reported that the plaintiff insulted students when they asked

questions. (Beerman Dep. Tr. at 35-36; Beerman Aff. ¶¶ 4-5 and

Ex. B (Beerman Interview Notes)). 

Dr. Beerman shared her findings with the plaintiff on

January 12, 2004. The plaintiff denied all of the charges and

challenged Dr. Beerman to go into his class and interview any of

his students. Dr. Beerman subsequently interviewed eight

additional students, randomly selected from two of the

plaintiff’s classes. These students verified the information Dr.

Beerman had received from the alleged victims and witnesses. Dr.

Beerman also discovered another potential victim. Dr. Beerman

then spoke with Uma Jayaraman, the new Science Department Chair. 

Ms. Jayaraman informed Dr. Beerman that she had witnessed the

plaintiff doing things in class that the plaintiff had denied

ever doing. (Beerman Aff. ¶¶ 6-7; Beerman Dep. Tr. at 35-37). 

On February 2, Dr. Beerman observed one of the

plaintiff’s classes. She heard the plaintiff use the word

“hell,” even though he had claimed that he never did. She also

observed the plaintiff respond to a student’s question abruptly

and with an inappropriate look. She also observed that some of

the students were flirting with the plaintiff, but did not

include this on her observation form or discuss it with the

plaintiff. (Beerman Aff. ¶ 10 and Ex. D (2/2/04 Formal

Observation Form); Beerman Dep. Tr. at 53-61).

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The plaintiff also filed a grievance with his union in 4

connection with the suspension.

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Dr. Beerman’s final conclusions were that the plaintiff

had used inappropriate language in class, gestured to and touched

students inappropriately, demonstrated poor judgment in throwing

away a student’s glasses, interfered with N.T.’s right to an

education when he dismissed her from class without justification,

and not responded truthfully when interviewed as part of the

investigation. Dr. Beerman shared her conclusions with the

plaintiff at a formal meeting on February 5, 2004. (Beerman Aff.

Ex. C. (2/5/04 Investigation Report)). 

Based on Dr. Beerman’s findings and recommendation,

Superintendent McGinley suspended the plaintiff for ten days,

nine without pay. When the plaintiff returned to work, he was

placed on intensive supervision again. (Id.; Burnett Dep. Tr. II

at 121). 

Sometime after February, the plaintiff supplemented his

retaliation charge with an allegation that the defendant had

further retaliated against him by suspending him. The plaintiff 4

filed the instant complaint on June 18, 2004. As of February 23,

2006, the date of the oral argument on the defendant’s motion for

summary judgment, the plaintiff was still employed by the

District, and had resumed teaching honors chemistry classes. 

(2/23/06 Hr’g Tr. at 8). 

Case 2:04-cv-02680-MAM Document 33 Filed 07/19/06 Page 17 of 38
To the extent that the plaintiff’s claim is based on 5

his nation of origin, the defendant is entitled to summary

judgment. Section 1981 prohibits discrimination based on race,

defined broadly as “ancestry or ethnic characteristics,” but does

not prohibit discrimination based on a person’s nation of origin. 

Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987).

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II. Analysis

The plaintiff’s remaining federal law claims are: 

1) employment discrimination, under § 1981; 2) retaliation, under

§ 1981 and/or Title VII; and 3) deprivation of due process, under

§ 1983. The Court will grant summary judgment in favor of the

defendant on the discrimination and retaliation claims because

the plaintiff has not shown that the defendant’s articulated

legitimate, non-discriminatory reasons for its actions – the

history of complaints and concerns about the plaintiff’s teaching

methods and behavior – are pretextual. The Court will also grant

summary judgment in favor of the defendant on the § 1983 claim

because the plaintiff has not shown a deprivation of due process.

A. Count I – Race Discrimination

Count I of the complaint alleges that the defendant

violated § 1981 by discriminating against the plaintiff on the

basis of his race and national origin (Native American). The 5

burden-shifting framework set forth in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973) applies to this claim. Patterson v.

McLean Credit Union, 491 U.S. 164, 186 (1989), superceded on

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The plaintiff has not put forth any direct evidence of 6

race discrimination or otherwise set forth a “mixed motive”

theory of discrimination, which would require the Court to

analyze the case under Price Waterhouse v. Hopkins, 490 U.S. 228

(1989) or the standards established by Congress in the Civil

Rights Act of 1991. See Glanzman v. Metro. Mgmt. Corp., 391 F.3d

506, 512 and n. 3 (3d Cir. 2004).

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other grounds (McDonnell Douglas framework applies to disparate

treatment claims under § 1981); Jones v. Sch. Dist. of Phila.,

198 F.3d 403, 410 (3d Cir. 1999) (same). 

6

Under the McDonnell Douglas framework, the plaintiff

must first establish a prima facie case of discrimination. If

the plaintiff can establish a prima facie case, then the burden

shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for the challenged employment action. 

If the defendant can do so, then the burden shifts back to the

plaintiff to show that the defendant’s articulated reason is

actually a pretext for discrimination. Id. at 410.

A plaintiff can establish a prima facie case of race

discrimination by showing that: 1) he is a member of a protected

class; 2) he is qualified for the position; and that 3) he

suffered some form of adverse employment action with regard to

that position; 4) under circumstances that give rise to an

inference of unlawful discrimination. Id. at 410-411.

The defendant challenges the plaintiff’s ability to

show that he suffered an adverse employment action. An adverse

employment action is one that is “serious and tangible enough to

Case 2:04-cv-02680-MAM Document 33 Filed 07/19/06 Page 19 of 38
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alter an employee’s compensation, terms, conditions, or

privileges of employment.” Storey v. Burns Int’l Sec. Servs.,

390 F.3d 760, 764 (3d Cir. 2004) (internal citation omitted).

The plaintiff alleges that the defendant discriminated

against him by subjecting him to unfairly harsh supervision,

evaluation, and discipline from 1999 to 2004, and by taking away

his honors chemistry class in 2002-2003. 

To the extent that the plaintiff’s claim is based upon

Principal Rodgers’ investigation into the sexual harassment

allegation in 2000-2001, the plaintiff’s “70 out of 80"

evaluation for 2001-2002, or the defendant’s alleged failure to

discipline students who insulted the plaintiff as harshly as

those who insulted other teachers, the Court finds that the

plaintiff is not able to state a prima facie case of

discrimination. None of these actions altered the terms or

conditions of the plaintiff’s employment.

To the extent that the plaintiff’s claim is based upon

the intensive supervision periods in 2000 and 2002, the

reassignment from honors chemistry in 2002-2003, and the ten-day

suspension in 2004, the Court will assume, without deciding, that

these actions constituted adverse employment actions. 

Assuming that the plaintiff has established a prima

facie case of race discrimination, the defendant has put forth

legitimate, nondiscriminatory reasons for each of the challenged

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The defendant’s proffered reasons are discussed below. 7

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actions.7

Once an employer puts forth some nondiscriminatory

explanation for its actions, the burden shifts back to the

plaintiff to show that the employer’s explanation is a pretext

for discrimination. To defeat summary judgment, the plaintiff

must “point to some evidence, direct or circumstantial, from

which a factfinder could reasonably either (1) disbelieve the

employer’s articulated legitimate reasons; or (2) believe that an

invidious discriminatory reason was more likely than not a

motivating or determinative cause of the employer’s action.” 

Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). The

plaintiff can accomplish the first by demonstrating that the

employer’s reasons are “weak, implausible, contradictory, or

incoherent.” Or, the plaintiff can accomplish the second by

showing that the employer treated similarly situated persons not

of the protected class more favorably. Id. at 765. See also

Kautz v. Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005)

(reaffirming the Fuentes standard, which “places a difficult

burden on the plaintiff”). 

Here, the defendant is entitled to summary judgment

because the plaintiff has not pointed to any evidence showing

that the defendant’s articulated legitimate, nondiscriminatory

reasons for (1) imposing intensive supervision in 2000 and 2002,

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(2) reassigning the plaintiff from honors chemistry in 2002-2003,

or (3) imposing a ten-day suspension in 2004, are pretext for

discrimination.

1. 2000 and 2002 Intensive Supervision Periods

The defendant claims that Principal Rodgers imposed

intensive supervision on the plaintiff in 2000 and 2002 because

of complaints and concerns about the plaintiff’s grading

practices and classroom strategies. (Def.’s Mot. for Summ. J.

Br. at 35). 

a. Plaintiff’s Grading Practices

The plaintiff argues that the concerns about his allor-nothing grading practices are pretextual, because another

teacher who employed similar grading practices was not

disciplined, and because the District did not have a set policy

about grading. 

The record does not support the plaintiff’s argument

that there was a similarly situated teacher who was treated

differently. At most, the record shows that one other teacher

“leaned more toward all-or-nothing” grading, as opposed to

“liberal” grading, in that he was “more rigorous in his

expectations for the students.” This teacher did in fact award

partial credit. (Eisner Dep. Tr. at 83). Moreover, there is no

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evidence that this teacher gave grades as low as the plaintiff

did, or that there were complaints or concerns about his other

classroom practices. Therefore, the plaintiff and this teacher

were not “similarly situated.”

The fact that the District did not have a set grading

policy does not render Principal Rodgers’ concerns about the

defendant’s grading practices pretextual. The record shows that

Principal Rodgers was concerned about the plaintiff’s extremely

low grades because the District did not have a set grading

policy. In the July 15, 2000 PD-2 Conference Report, Principal

Rodgers remarked that “[i]n the absence of fixed local or

national standards . . . grading is a matter of credibility and

trust . . . . When one teacher’s grades are so substantially

different from the norm, there is real impact on the community’s

trust of all of our professional decisions.”). (Rodgers Aff. Ex.

E (6/15/00 PD-2 Conference Report)). 

Likewise, the fact that the District did not have a set

policy about returning student work, providing feedback, and use

of overhead projectors does not render its concerns about the

plaintiff’s practices in these areas pretextual. The plaintiff

has not pointed to any evidence showing why it would be “weak,

implausible, contradictory, or incoherent” for school officials

to think that certain practices are not conducive to learning, to

want teachers to correct these practices, or to discipline

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teachers who do not correct them. Nor has the plaintiff pointed

to any evidence that similarly situated non-Native American

teachers were treated differently. The record shows that

although other teachers used overhead projectors, they did not

have students copy notes without comment like the plaintiff did. 

(Eisner Dep. Tr. at 138).

b. Plaintiff’s Classroom Climate

The plaintiff also argues that the defendant’s concerns

about his classroom climate and behavior are pretextual, because

Principal Rodgers did not observe any problems during the

intensive supervision periods, and because the defendant treated

a non-Native American teacher with classroom control problems

differently.

The fact that Principal Rodgers did not observe any

problems after he began to observe the class does not invalidate

the concerns that led him to impose the intensive supervision. 

In Fuentes, the United States Court of Appeals for the Third

Circuit explained that a plaintiff cannot show pretext simply by

arguing that the complaints and criticisms against him were

false; the plaintiff must show that the defendant did not

actually rely on the complaints and criticisms in making its

employment decision. 32 F.3d at 766-767. Here, the plaintiff

has not pointed to any evidence showing that Principal Rodgers

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did not actually rely on the complaints he had received in

deciding to impose intensive supervision.

The plaintiff also claims that Principal Rodgers

treated him more harshly than he treated a similarly situated

non-Native American teacher. The Court is not certain that this

teacher, who was accused of not controlling her classroom, and

the plaintiff, who was accused of behaving inappropriately

towards students, were “similarly situated.” Even if the Court

assumes that they were, the plaintiff has not shown that the

defendant treated them differently. 

The record shows that the administration received

complaints about the other teacher’s ability to control her

classroom beginning in September 2003. The administration tried

to “help her as much off-the-record as possible,” and did not

place her on intensive supervision until spring 2004. The

District placed her on intensive supervision again in the fall. 

(Beerman Dep. Tr. at 77-78, 82-84). 

The administration initially tried to help the

plaintiff informally as well. Principal Rodgers first received

complaints about the plaintiff in December 1999. He met with the

plaintiff informally on December 14, and did not place the

plaintiff on intensive supervision until March 2000. After that

period ended in June 2000, Principal Rodgers did not place the

plaintiff on intensive supervision again until spring 2002.

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c. Defendant’s Failure to Follow its Policies

Finally, the plaintiff argues that the defendant’s

articulated reasons for imposing intensive supervision upon him

in 2002 are pretextual because the defendant violated its own

policies by failing to promptly inform him of the complaints

against him. The plaintiff cites Hillegass v. Borough of Emmaus,

Civ. Act. No. 01-5853, 2003 U.S. Dist. LEXIS 10771 (E.D. Pa. June

25, 2003) for the proposition that an employer’s failure to abide

by its own policies is evidence of pretext. 

The plaintiff reads Hillegass too broadly. At most,

Hillegass stands for the principle that a defendant’s failure to

abide by a policy “which it had abided by in the past” may be

evidence of pretext. Id. at *20 (emphasis added). In fact, the

case upon which Hillegass relies, Poff v. Prudential Ins. Co. of

Am., 911 F.Supp. 856 (E.D. Pa. Jan. 4, 1996), held that a

defendant’s violation of policy “does not, standing alone, serve

to cast doubt on the proffered reason for discharge.” Id. at 861

(emphasis added). The court in Poff explained that a violation

of policy only “assists a plaintiff’s case if such violation, in

conjunction with other evidence (such as evidence showing that

the policy was disparately applied), tends to show that the

proffered reason is not credible.” Id. 

Here, the District’s Manual of Policies and Procedures 

provides that, “[w]here possible, complaints should be made

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The plaintiff has submitted a “Preliminary Case Review 8

and Expert Report” prepared by Edward F. Dragan, Ed.D. Dr.

Dragan’s Report refers to affidavits from two of the plaintiff’s

fellow teachers. According to Dr. Dragan’s Report, the

affidavits state that the plaintiff was denied access and

information regarding alleged complaints from parents when all

non-Native American teachers were routinely given such

information. (Pl.’s Opp. Br. Ex. C (Dragan Report) at 21)). The

plaintiff has not provided the purported affidavits, however. 

Dr. Dragan’s Report is not evidence of the information

purportedly contained in the affidavits. 

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directly to the individual involved.” Specifically, “[a]

classroom complaint should first be directed to the teacher.” 

When complaints are made to members of the Board or the

Superintendent, the complaints “shall be referred to the building

principal,” who in turn “shall notify the appropriate staff

person.” (Board Policy No. 906). The Manual of Policies does

not specify how soon a principal must notify a staff member after

a complaint has been made against him. 

Even if the Court assumes that the District’s stated

policy calls for administrators to promptly inform staff members

of any complaints against them, the plaintiff has not pointed to

any evidence on the record that Principal Rodgers or Mr. Eisner

disparately applied that policy. As the plaintiff acknowledges, 8

the record shows that Principal Rodgers and Mr. Eisner were not

even aware that the District had a policy for handling complaints

about teachers. (See Pl.’s Opp. Br. at 9, citing Rodgers Dep.

Tr. at 118 and Eisner Dep. Tr. at 94). 

Case 2:04-cv-02680-MAM Document 33 Filed 07/19/06 Page 27 of 38
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2. Loss of Honors Chemistry 

The defendant asserts that Superintendent McGinley

decided to reassign the plaintiff away from honors chemistry in

2002-2003 because the District had received many complaints about

him. (Def.’s Mot. for Summ. J. Br. at 35). 

The plaintiff argues that the defendant has wavered in

its explanations for the reassignment, thus revealing that the

explanations are pretext for discrimination. According to the

plaintiff, the defendant previously explained that it reassigned

the plaintiff to better coordinate teachers’ schedules.

The plaintiff’s argument is not supported by the

record. The defendant’s employees have consistently stated that

Superintendent McGinley reassigned the plaintiff because of

complaints and concerns about his teaching practices in honors

chemistry, and that the decision was facilitated by the

resignation of another teacher. (McGinley Aff. ¶¶ 9-10; Rodgers

Dep. Tr. at 169 (“Mr. McGinley certainly couched his desire to

change Mr. Burnett’s assignment in terms of the community concern

and community perception of Mr. Burnett’s performance. There was

one other issue that wasn’t driving it but at least somewhat

affected the decision, and that was that we did have a

resignation during the summer that affected science staffing.”)).

The plaintiff also argues that the defendant’s

explanation for the reassignment was pretextual, because the

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defendant violated the collective bargaining agreement

requirement that teachers be notified within five days of a

change in assignment. The plaintiff has not put forth any

evidence showing that the defendant disparately applied this

policy, however.

3. Ten-Day Suspension in 2004

Finally, the defendant explains that Superintendent

McGinley suspended the plaintiff in 2004 after Dr. Beerman

concluded that he had engaged in inappropriate conduct. (Def.’s

Mot. for Summ. J. Br. at 52). The plaintiff argues that Dr.

Beerman should have been suspicious of the students’ allegations

after she witnessed students flirting with the plaintiff, and not

vice-a-versa. 

The plaintiff’s argument is inapposite. “To discredit

the employer’s proffered reason . . . the plaintiff cannot simply

show that the employer’s decision was wrong or mistaken, since

the factual dispute at issue is whether discriminatory animus

motivated the employer, not whether the employer is wise, shrewd,

prudent, or competent.” Fuentes, 32 F.3d at 765. Instead, the

plaintiff must show that the defendant did not take the

employment action for the reason that it said it did. 

The plaintiff has not pointed to any evidence showing

that the defendant’s stated reasons for suspending him were

Case 2:04-cv-02680-MAM Document 33 Filed 07/19/06 Page 29 of 38
The plaintiff does not specify whether he is suing for 9

retaliation under § 1981 and/or Title VII. The elements of a

prima facie case are the same under the two statutes. See

Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001). 

-30-

implausible or inconsistent. Nor has the plaintiff provided any

evidence that the District did not similarly discipline nonNative American teachers whom it believed to have engaged in such

conduct. Because the plaintiff has not raised a genuine issue of

material fact regarding the defendant’s articulated legitimate,

nondiscriminatory reasons for its actions, the defendant is

entitled to summary judgment on Count I. 

B. Count V – Retaliation

Count V of the complaint alleges that the defendant

retaliated against the plaintiff for filing charges with the PHRC

and EEOC. The McDonnell Douglas burden-shifting framework also 9

applies to the plaintiff’s retaliation claim. See Shellenberger

v. Summit Bancorp, 318 F.3d 183, 187 (3d Cir. 2003); Krouse v.

Am. Sterilizer Co., 126 F.3d 494, 500-501 (3d Cir. 1997).

 A plaintiff can make a prima facie case of retaliation

by showing that: 1) he engaged in a protected activity; 2) he

suffered a materially adverse action (i.e., one that “well might

have dissuaded a reasonable worker from making or supporting a

charge of discrimination”); and 3) that there was a causal

connection between the protected activity and the adverse action. 

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See Burlington N. & Santa Fe Ry. v. White, 2006 U.S. LEXIS 4895

at *26-27, 548 U.S. (2006) (internal quotation omitted);

Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001).

The plaintiff alleges that the defendant did not give

him any chemistry classes in 2003-2004 and suspended him in 2004

in retaliation for his filing charges of discrimination. Even if

the Court assumes that these actions would have “dissuaded a

reasonable worker from making or supporting a charge of

discrimination,” and that the plaintiff has established a prima

facie case of retaliation, the plaintiff has not refuted the

defendant’s articulated legitimate, non-discriminatory reasons

for its actions.

The defendant proffers that Principal Rodgers and Mr.

Eisner decided not to assign the plaintiff to any honors or

academic chemistry classes in 2003-2004 because of the

plaintiff’s history of problems in both of those classes. They

decided not to assign the plaintiff to a chemistry in the

community class because enrollment in that course had dropped

from three sections to two, and because there was another teacher

who had more experience teaching the course, and taught the

course as it was designed. (Def.’s Mot. for Summ. J. Br. at 35). 

The plaintiff has not put forth any evidence or

argument showing why the defendant’s proffered reasons for the

2003-2004 assignment are pretextual. Nor, as explained above,

Case 2:04-cv-02680-MAM Document 33 Filed 07/19/06 Page 31 of 38
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has the plaintiff pointed to any evidence showing that the

defendant’s stated reasons for the 2004 sexual harassment

investigation and suspension are implausible or inconsistent. 

The defendant is therefore entitled to summary judgment on the

plaintiff’s retaliation claim.

C. Count II – The § 1983 Claim

Count II of the complaint alleges that several of the

defendant’s employees took certain actions between 1999 and 2004

that violated the plaintiff’s right to due process under the

Fifth and Fourteenth Amendments of the Constitution.

A municipal entity, such as the defendant District, may

not be held liable under § 1983 solely on the basis of respondeat

superior. See, e.g., Monell v. Dep’t of Social Servs., 436 U.S.

658, 691 (1978). A municipal entity may be held liable, however,

for a decision by one of its officers, where that officer

possessed final decision-making authority with respect to the

action that allegedly caused the deprivation of rights. Pembaur

v. City of Cincinnati, 475 U.S. 469, 481 (1986). See also

McGreevy v. Stroup, 413 F.3d 359, 367-368 (3d Cir. 2005) (school

district may be held liable for superintendent’s employee ratings

decisions, where superintendent had final decision-making

authority over the ratings). 

The plaintiff has not pointed to any evidence on the

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record that Mr. Eisner or Principal Rodgers possessed final

decision-making authority with respect to their challenged

actions. Thus, the defendant cannot be held liable under § 1983

for their decisions regarding the 2000 and 2002 intensive

supervision periods, or the 2001 sexual harassment investigation. 

There is a genuine issue of material fact as to whether

Superintendent McGinley had final decision-making authority to

reassign the plaintiff from honors chemistry in 2002-2003, to

order Dr. Beerman to conduct the sexual harassment investigation

in 2004, and to suspend the plaintiff for ten days (nine without

pay) as a result of that investigation. (See McGinley Aff. ¶¶ 7-

10; Beerman Aff. Ex. C (2/5/04 Investigation Report)). Even if

the Court assumes that Superintendent McGinley did have final

decision-making authority, however, the plaintiff has not stated

a substantive or procedural due process violation in connection

with any of these actions.

The plaintiff cannot state a claim for a substantive

due process violation, because tenured public employment is not a

fundamental property interest entitled to substantive due process

protection. Nicholas v. Pa. State Univ., 227 F.3d 133, 142 (3d

Cir. 2000).

To state a claim for a procedural due process

violation, a plaintiff must allege the deprivation of a protected

property or liberty interest. See, e.g., Bd. of Regents of State

Case 2:04-cv-02680-MAM Document 33 Filed 07/19/06 Page 33 of 38
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Colleges v. Roth, 408 U.S. 564, 569-570 (1972).

The plaintiff cannot state a procedural due process

claim in connection with the reassignment from honors chemistry,

because the reassignment did not implicate a protected property

or liberty interest. The plaintiff does not dispute that his

salary and benefits remained the same after the reassignment. 

Where a public employee’s salary and benefits remain the same, a

change in his work assignment does not deprive him of a protected

property interest. Ferraro v. City of Long Branch, 23 F.3d 803,

806 (3d Cir. 1994) (city employee who was reassigned from

managerial to manual work failed to state a claim under § 1983). 

Furthermore, absent a deprivation of present or future

employment, a stigma to a public employee’s reputation alone does

not implicate a protected liberty interest. Edwards v. Ca. Univ.

of Pa., 156 F.3d 488, 492 (3d Cir. 1998) (tenured professor at a

public university who was suspended with pay failed to state a

due process claim).

With respect to the 2004 sexual harassment

investigation and suspension, the Court will assume, without

deciding, that the plaintiff had a protected property interest in

not being suspended for nine days without pay. See Gilbert v.

Homar, 520 U.S. 924, 929 (1997) (assuming, without deciding, that

police officer had protected property interest in not being

suspended indefinitely without pay). 

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The question then becomes, what process is

constitutionally due. To answer that question, the Court must

balance three factors: “First, the private interest that will be

affected by the official action; second, the risk of an erroneous

deprivation of such interest through the procedures used, and the

probable value, if any, of additional or substitute procedural

safeguards; and finally, the Government’s interest.” Id. at 931-

932, quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

The plaintiff police officer in Gilbert was suspended

without pay for an indefinite period of time after being arrested

and charged with possession of, and possession with intent to

deliver, marijuana. The Supreme Court found that as long as the

officer received a sufficiently prompt post-suspension hearing,

his private interest in the uninterrupted receipt of his paycheck

was relatively insubstantial. The Court found that, on the other

hand, the state had a great interest in immediately suspending

employees in positions of great public trust and visibility who

were charged with felonies. Finally, the Court held that the

state did not have a constitutional obligation to provide the

plaintiff with a pre-suspension hearing where the arrest itself

provided reasonable grounds to support the suspension. Id. at

932-933.

Here, the Court finds that the plaintiff’s interest in

the uninterrupted receipt of his paycheck for nine days was at

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least counterbalanced by the defendant’s interest in disciplining

a teacher who, upon investigation, had behaved inappropriately,

and who did not respond truthfully to the investigation. The

Court further finds that the defendant afforded the plaintiff

sufficient pre-suspension process. Dr. Beerman presented her

initial findings to the plaintiff, gave him an opportunity to

respond, conducted additional interviews and classroom

observation at the plaintiff’s request, and presented her

findings to the plaintiff again.

Moreover, the plaintiff has conceded that the

suspension is the subject of an arbitration hearing through his

union. The plaintiff has not challenged the adequacy of the

defendant’s post-suspension procedures.

Finally, the plaintiff argues that the suspension

violated his liberty interests because it seemed to confirm

rumors that he was a “child molester.” To make out a due process

claim based on reputational harm, a plaintiff must first show

that a state actor published information that was substantially

and materially false. Ersek v. Township of Springfield, 102 F.3d

79, 83-84 (3d Cir. 1996). In Ersek, the United States Court of

Appeals for the Third Circuit held that the plaintiff failed to

show a deprivation of his liberty interests because his municipal

employer’s allegedly stigmatizing statement – that he was the

subject of a criminal investigation – was true. Id. at 85.

Case 2:04-cv-02680-MAM Document 33 Filed 07/19/06 Page 36 of 38
See note 1, above, regarding the plaintiff’s Count III 10

– Intentional Infliction of Emotional Distress.

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In this case, there is no evidence on the record that

the defendant made any statements about the plaintiff that were

substantially and materially false. In his deposition, the

plaintiff conceded that he was not aware that any administrators

or teachers had referred to him as a “child molester.” (Burnett

Dep. Tr. II at 104-105). At most, the plaintiff has alleged that

Dr. Beerman disclosed the fact of her investigation to Ms.

Jayaraman. Under Ersek, that disclosure cannot be the basis of a

due process claim, because it was not false.

 

D. Count IV – Breach of Contract

Whereas the Court is granting summary judgment in favor

of the defendant on the plaintiff’s federal employment

discrimination, retaliation, and § 1983 claims, the Court will

decline to exercise pendant jurisdiction over the plaintiff’s

state law breach of contract claim.10

An appropriate Order follows.

Case 2:04-cv-02680-MAM Document 33 Filed 07/19/06 Page 37 of 38
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RONALD H. BURNETT : CIVIL ACTION

:

v. :

:

SCHOOL DISTRICT OF :

CHELTENHAM TOWNSHIP : NO. 04-2680

 ORDER

AND NOW, this 19th day of July, 2006, upon

consideration of the defendant’s motion for summary judgment

(Doc. No. 20), the plaintiff’s opposition, and the defendant’s

reply thereto, and after oral argument on February 23, 2006, it

is HEREBY ORDERED that the defendant’s motion is GRANTED for the

reasons stated in a memorandum of today’s date. Judgment is

hereby entered in favor of the defendant, and against the

plaintiff.

This case is closed. 

BY THE COURT:

/s/ Mary A. McLaughlin 

MARY A. McLAUGHLIN, J.

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