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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-2127

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DEBORAH PHILLIS,

Appellant

v.

HARRISBURG SCHOOL DISTRICT;

CHERYL BANKUS; EVANGELINE KIMBER

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On Appeal from the United States District Court

For the Middle District of Pennsylvania

(D.C. Civil Action No. 1-07-cv-01728)

District Judge: Honorable Yvette Kane

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Submitted Under Third Circuit LAR 34.1(a)

March 8, 2011

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Before: SCIRICA, AMBRO, and VANASKIE, Circuit Judges

(Opinion filed: June 10, 2011)

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OPINION

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AMBRO, Circuit Judge

Plaintiff-appellant Deborah Phillis sued Defendants Harrisburg School District, 

Cheryl Bankus, and Evangeline Kimber alleging age discrimination, retaliation, and an 
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abridgement of, inter alia, her First Amendment rights. The District Court granted 

summary judgment to the School District, and Phillis appealed. We disagree with her 

arguments, and thus affirm. 

I. Background

Phillis was hired by the Harrisburg School District in 2001 and assigned to the 

District’s high school as a learning support teacher in September 2004. There, her 

supervisors included then-assistant principal Bankus and then-principal Kimber. 

In July 2005, Bankus evaluated Phillis’s performance as unsatisfactory. Phillis 

grieved that evaluation with her union and filed a complaint with the Pennsylvania 

Human Rights Commission (PHRC).

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 The latter charged that Bankus had discriminated 

against Phillis based on her age, and asserted that Bankus had also shown animus toward

older teachers by stating that Phillis’s classroom (which was located in the basement) had 

a “musty but[t] smell.” App. 516. Ultimately, Phillis’s union grievance was successful 

and the evaluation was withdrawn based on the School District’s failure to follow correct 

procedures in issuing it. 

In August 2005, Kimber allegedly stated to a group of teachers, including Phillis,

that “if you are no longer an effective teacher, you should pack up your excess baggage 

and leave,” and commented that an older teacher had retired and was at home taking a 

“long nap.” Then, in October 2005, Bankus again evaluated Phillis’s performance as 

unsatisfactory and placed her on an “Individual Teacher Improvement Plan” (ITIP), with 

 

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Phillis also cross-filed this complaint, as well as several subsequent PHRC complaints, 

with the Equal Employment Opportunity Commission (EEOC). The District Court’s 

opinion details when these complaints were filed, and we do not repeat that history here.
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the stated goal of improving her teaching skills. In January 2006, Bankus informed 

Phillis that she had not improved her performance as required by the ITIP. One month 

later, Bankus observed Phillis’s classroom performance, and deemed it unsatisfactory. In 

April 2006, Phillis received a letter of reprimand from Bankus, which accused Phillis of 

violating both school policy and the requirements of the ITIP by placing class rules on a 

table, rather than posting them on the wall. 

In June 2006, the School District identified two purported discrepancies in 

Phillis’s application for employment with it. First, Phillis indicated on her application 

that the reason for leaving her previous position with the Mechanicsburg, Pennsylvania 

School District was that she had been a temporary employee without a long-term 

contract. However, she did not disclose that her short-term contract was not renewed 

because she received an unsatisfactory teaching evaluation. Second, Phillis also 

indicated that she had never been convicted of a crime, when in fact she pled guilty to 

driving while intoxicated in 1995. 

On June 26, 2006, Phillis applied for disability retirement due to job-related stress. 

One month later, the School District informed Phillis that it intended to bring termination 

proceedings, and that a termination hearing would be held on August 11. In August, the 

School District suspended Phillis indefinitely and without pay, but her request for 

disability retirement was approved in September 2006. 

In June 2007, the parties entered into a partial settlement agreement, in which 

Phillis agreed to release “[the] District, and its board members, directors, officers, agents, 

employees and attorneys, and all other persons or entities who could be said to be jointly 
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or severally liable with it,” from all future claims, subject to the following exception: 

“[N]othing in this Agreement will serve to release the pending actions against the District 

listed below before the Pennsylvania Human Relations Commission, and the Equal 

Employment Opportunity Commission and any subsequent action in State or Federal 

Court arising therefrom, insofar as they seek relief other than reinstatement.” 

 After receiving a collection of “right to sue” letters from the PHRC, Phillis filed 

her complaint in this case, alleging claims under the Age Discrimination in Employment 

Act, 29 U.S.C. § 261 et seq. (“ADEA”); Title VII of the Civil Rights Act of 1964, as 

amended, 42 U.S.C. § 2000e et seq.; and the First and Fourteenth Amendments to the 

United States Constitution.2 

While the case was pending, Kimber died. Phillis did not move to substitute 

Kimber’s estate as a defendant pursuant to Fed. R. Civ. P. 25(a), and the District Court 

granted defendants’ subsequent motion to dismiss Kimber from the case. The Court later 

granted summary judgment in favor of the two remaining defendants. It concluded that, 

under the partial settlement agreement, Phillis unambiguously gave up her rights both to 

sue Bankus at all and to bring a Title VII claim against the School District.

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 Turning to 

Phillis’s remaining claims, the District Court concluded that the ADEA is the sole 

available remedy for claims of age discrimination and associated retaliation, and

 

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Phillis also made a claim under the Pennsylvania Human Relations Act in her 

Complaint. However, the District Court concluded that Phillis had abandoned that claim, 

and she does not argue otherwise on appeal.

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Phillis does not appeal the District Court’s conclusion regarding her Title VII claim. 
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dismissed Phillis’s constitutional claims on that basis.4 Then, after reviewing the 

summary judgment submissions at length, it held that Phillis did not successfully 

establish a prima facie case of discrimination. Additionally, it granted summary 

judgment to the School District concerning Phillis’s ADEA retaliation claim, concluding

that Phillis failed to rebut the School District’s proffered non-retaliatory explanations for 

its actions. 

Phillis now appeals both the grant of summary judgment and the order dismissing 

Kimber from the case following her death. We have jurisdiction pursuant to 28 U.S.C. 

§ 1291.

II. Analysis

We review the District Court’s grant of summary judgment de novo. Ray v. Twp. 

of Warren, 626 F.3d 170, 173 (3d Cir. 2010).5 We also review de novo the District 

Court’s legal conclusion that Fed. R. Civ. P. 25(a) required Kimber’s dismissal. See 

Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). We address the District Court’s 

conclusions in turn.

A. Phillis’s Claims Against Kimber and Bankus

Phillis argues the District Court “could have and perhaps should have” substituted 

Kimber’s estate into the case sua sponte. This is inconsistent with the plain language of 

Fed. R. Civ. P. 25(a), which states that, absent a motion “made within 90 days after 

 

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She has now disavowed any equal protection claim based on age discrimination. 

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In Phillis’s opening brief, her counsel stated his belief that the “opinions of this 

[C]ourt . . . appear to give [district court opinions] some measure of deference.” 

Appellant Br. at 24-25. We assure Phillis and her counsel that this is not the case.
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service of a statement noting the death, the action by or against the decedent must be 

dismissed.” (Emphasis added.) The mandatory language of this rule does not leave room 

for the District Court to save Phillis from her failure to file a motion for substitution. 

In any event, the Court correctly concluded that the settlement agreement between 

Phillis and the School District released any claims against Bankus, and that conclusion 

would apply equally to Kimber (and Kimber’s estate). “[T]he interpretation of a contract

generally is a question of law” we review de novo. United States v. Hardwick, 544 F.3d 

565, 570 (3d Cir. 2008). Paragraph Three of the settlement agreement specifies that 

Phillis “forever discharges District, and its board members, directors, officers, agents, 

employees and attorneys, and all other persons or entities who could be said to be jointly 

or severally liable with it,” except for “the pending actions against the District listed 

below . . . and any subsequent action in State or Federal Court arising therefrom . . . .” 

App. 612. Notably, the release covers a wide-ranging list of individuals, whereas the 

exception—found in the same paragraph—includes only the District. As the District 

Court held, the only reasonable interpretation of that language is that it releases Phillis’s 

claims against Bankus and Kimber, leaving only her claims against the School District. 

B. Phillis’s Age Discrimination Claim

Phillis argues that the District Court erred by granting summary judgment on her 

ADEA claim, and asserts that she demonstrated the existence of a disputed material fact 

as to each element of her prima facie case. We disagree.

An ADEA plaintiff can make her prima facie case by putting forth direct and/or 

indirect evidence of discrimination. Fasold v. Justice, 409 F.3d 178, 183-84 (3d Cir. 
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2005). Where a plaintiff relies on indirect evidence, we follow the burden-shifting 

framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 

Phillis points to a handful of instances that she contends provide direct or 

circumstantial evidence of discrimination. They are: 1) that Bankus commented that 

Phillis’s basement classroom had a “musty but[t]” smell, and that “musty butt” is “an 

Ebonics term used to refer derogatorily to older people,” Appellant Br. at 29; 2) that 

Kimber made a negative comment about “veteran” teachers; 3) that older teachers were 

given undesirable work assignments and storage areas; and 4) that both Phillis and 

another older teacher successfully grieved “unsatisfactory” evaluations in 2005. Even 

evaluated collectively, we hold that this evidence is insufficient to meet Phillis’s initial 

burden. 

At the outset, we note that, despite a voluminous appendix in this case, Phillis 

primarily relies on her own unsworn declaration in order to establish the existence of 

disputes of material fact. Unsworn declarations are permissible at the summary judgment 

stage if they conform to 28 U.S.C. § 1746’s requirement that declarants state that the 

contents of their declarations are true, subject to penalty of perjury. Fed. R. Civ. P. 56(c); 

see also Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 323 (3d Cir. 2005). Phillis’s 

declaration does not comply with this requirement, and thus the District Court was free to 

disregard it. 

Even considering that declaration, Phillis’s evidence of age discrimination falls 

short. First, she provides no citation for her “proffer” that “musty butt” is an “Ebonics 

term used to refer derogatorily to older people,” Appellant Br. at 29, and this is not the 
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sort of “fact” of which we could take judicial notice. Nor does the withdrawn 2005 

evaluation, which rated as unsatisfactory Phillis’s performance in maintaining personal 

hygiene, help Phillis’s case in this regard. 

Second, even drawing all inferences in Phillis’s favor, Kimber’s negative 

statements about “veteran and returning” teachers generally, and about one particular 

teacher (Ms. Withers), do not evidence discrimination. It is not clear from the record 

how old the returning teachers are; presumably many of them were significantly younger 

than 40, and some new teachers (like Phillis herself) were older than 40 when they started 

with the School District. The second statement appears to be directed at Ms. Withers’s 

behavior, and not all teachers or even all older teachers. Likewise, Phillis’s unsworn 

statements that she was assigned undesirable work and storage areas and that “the 

atmosphere was like a workhouse, with some older female teachers pushing carts full of 

materials great distances,” App. 211, are insufficient to defeat summary judgment. These 

statements do not establish that similarly situated younger teachers received better 

treatment, and therefore do not evidence discrimination. Finally, that Phillis and another 

older teacher—among approximately 1,300 School District employees—received 

unsatisfactory evaluations, which they then successfully grieved, does not suggest age 

discrimination absent more information about the total number of unsatisfactory 

evaluations issued and the age of the teachers who received them. Nor does it help 

Phillis’s cause that the evaluations were later withdrawn on procedural grounds. 
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Accordingly, we conclude that the District Court did not err in granting summary 

judgment on Phillis’s discrimination claim.6 

C. Phillis’s Retaliation Claims.

This case involves two species of retaliation claim—one brought under the 

ADEA’s retaliation provision, 29 U.S.C. § 623(d), and one brought under 42 U.S.C. 

§ 1983, alleging a violation of Phillis’s First Amendment rights. 

The District Court concluded that the ADEA’s retaliation provision preempts

Phillis’s First Amendment claims that defendants violated her speech and petition rights 

by retaliating against her for filing PHRC petitions and union grievances. As the Court 

acknowledged, we have not yet decided this issue. And we decline to do so today. 

Instead, we conclude that Phillis’s constitutional claims fail because she has not 

demonstrated a dispute of material fact as to whether the School District may be held 

liable under Monell v. Dep’t of Social Servs., 436 U.S. 658 (1978).7 

In the District Court, Phillis argued that the School District demonstrated a policy 

of retaliation by continuing to rely on the incidents underlying the 2005 unsatisfactory 

evaluation even after that evaluation had been withdrawn. We do not see what this has to 

do with whether the School District had a policy of retaliating against teachers who file 

 

6 We note that Phillis asserts in her brief that her evidence of retaliation also serves as 

indirect evidence of discrimination. For the reasons stated in the following section, we 

conclude as well that Phillis’s indirect evidence of retaliation is also insufficient. 

7 Under Monell and its progeny, the School District is liable under 42 U.S.C. § 1983 only 

if Phillis can show that a District employee “acted pursuant to a formal government 

policy or a standard operating procedure,” that actions were taken by an individual with 

“policy making authority,” or that “an official with authority has ratified the 

unconstitutional actions of a subordinate . . . .” McGreevy v. Stroup, 413 F.3d 359, 367 

(3d Cir. 2005).
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PHRC complaints or union grievances. Additionally, when asked during her deposition

about “facts relating to a policy of retaliation and discrimination,” Phillis stated only that 

she had “seen teachers who were older in what looked to me [to be] systematically 

experiencing constructive discharge,” but could not remember the names of those 

teachers, except for one Ms. Pottiger (as to whom she offered no details). App. 657. 

That answer was insufficient to create a dispute of fact as to whether the School District 

had a policy or custom of retaliating against teachers, and was hopelessly vague even as 

to whether it had a policy of age discrimination.8 

Finally, because Phillis has not shown the existence of a dispute of fact as to her 

ADEA retaliation claim, that claim also fails. To establish an ADEA retaliation claim, a 

plaintiff must first demonstrate a prima facie case, Fasold, 409 F.3d at 188, which the 

District Court concluded Phillis had done. This triggered the School District’s burden to 

state a “legitimate non-discriminatory reason for the adverse employment action,” at 

which time “the burden of production returns to [Phillis] to demonstrate that the 

employer’s proffered rationale was a pretext . . . .” Smith v. City of Allentown, 589 F.3d 

684, 690 (3d Cir. 2009). Because the School District does not appear to contest the 

 

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Finally, though Phillis did not make this argument, we note that Monell liability could 

be established if the relevant actors—generally Kimber and Bankus—had “final, 

unreviewable discretion to make a decision or take action.” McGreevy, 413 F.3d at 369. 

Pennsylvania law makes clear, however, that the relevant unreviewable discretion is 

vested in either the school board or the superintendant. 24 Pa. Cons. Stat. §§ 11-1123 

(“no unsatisfactory rating shall be valid unless approved by the district superintendent”) 

& 11-1127 (referring to due process procedures to which tenured teachers are entitled 

before they may be dismissed by the “board of school directors”). Thus, this avenue of 

establishing School District liability for Kimber’s and Bankus’s alleged constitutional 

violations is also unavailable to Phillis.
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District Court’s conclusion that Phillis established her prima facie case, we proceed

directly to analyze the District’s articulated reasons for taking the relevant adverse 

employment actions—placing Phillis on an ITIP in October 2005, and recommending her 

termination in August 2006—and whether Phillis has succeeded in showing a disputed 

material fact as to whether those reasons were pretextual. 

Regarding the ITIP, Bankus testified that the Plan was imposed primarily based on 

the complaints about Phillis that arose the previous school year, as well as a handful of 

incidents that occurred in September or early October 2005. Phillis posits that the

previous year’s incidents were no longer fair game because they had been included in the 

procedurally unsound unsatisfactory evaluation, yet she points to nothing that supports 

that position. Further, while Phillis states in her unsworn declaration that at least one of 

the relevant incidents did not occur,9she does not deny others. Thus, we see no basis to 

disturb the District Court’s conclusion that Phillis failed to show a genuine issue of 

material fact whether the School District’s stated reasons for placing her on the ITIP were 

pretextual. 

Likewise, the School District has satisfied its burden by giving two general 

reasons for terminating Phillis: that she failed to follow her supervisors’ instructions 

(including those contained in her ITIPs), and the two discrepancies in Phillis’s job 

application. Starting with the School District’s second reason, we agree that Phillis has 

shown that there is at least a dispute of fact whether it had actual or constructive 

 

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Specifically, Phillis denies that she told students that she had sent pictures of herself, 

wearing a bikini, to another teacher. 
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knowledge of her DUI conviction much earlier than 2006. As Phillis points out, she had 

submitted to the School District forms containing information about her conviction 

during a licensing proceeding that took place in 2002, and a reasonable factfinder could 

infer that School District administrators had reviewed those forms. 

However, we are not similarly convinced that, because Phillis’s explanation 

regarding her departure from Mechanicsburg, Pennsylvania School District was 

technically correct, it could not have been a basis for her dismissal. At minimum, 

Phillis’s statement was misleading—we note that during litigation subsequent to Phillis’s 

departure from the Mechanicsburg School District, a Pennsylvania Court stated that she 

“received an unsatisfactory rating and was dismissed.” Phillis v. Bd. of Sch. Dirs. of 

Mechanicsburg Area Sch. Dist., 617 A.2d 830, 832 (Pa. Commw. Ct. 1992) (emphasis 

added). 

As to the District’s reliance on Phillis’s failure to follow supervisory instructions, 

she asserts broadly that the various infractions that the School District claims she 

committed during the course of her employment were “resoundingly debunk[ed]” by her 

declaration. But we have already discussed why that declaration is insufficient to defeat 

summary judgment. Beyond her general statement, Phillis specifically challenges only 

the School District’s decision to issue her a formal letter of reprimand for failing to post 

classroom rules in the manner required by school policy and her ITIP. In Phillis’s brief 

in our Court, she labels as “utterly absurd” the contention that she violated this rule by 

“posting” her class rules horizontally, on a desk, instead of adhering them to a wall or 

chalkboard. Appellant Br. at 35. However, we deem Phillis’s “horizontal posting” 
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argument insufficient to allow a reasonable fact finder to conclude that the School 

District was acting pretextually. 

Accordingly, we see no reason to overturn the District Court’s grant of summary 

judgment on Phillis’s retaliation claim. 

III. Conclusion

For the foregoing reasons, we affirm the decision of the District Court.