NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 16-1839

____________

SHINIC DAVIS, 

Individually and also on behalf of E.D., 

her minor son as his mother and natural guardian,

 Appellant 

v.

QUAKER VALLEY SCHOOL DISTRICT;

BARBARA MELLETT; 

HEIDI ONDEK; 

JOSEPH CLAPPER; 

ERIK LINDEMANN

____________

On Appeal from the United States District Court 

for the Western District of Pennsylvania

(W.D. Pa. No. 2-13-cv-01329)

Chief Judge: Honorable Joy Flowers Conti

____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 8, 2016

Before: FISHER,

 KRAUSE and GREENBERG, Circuit Judges.

(Filed: June 5, 2017)

 

 Honorable D. Michael Fisher, United States Circuit Judge for the Third Circuit, 

assumed senior status on February 1, 2017.
2

____________

OPINION**

____________

FISHER, Circuit Judge.

Shinic Davis, individually and on behalf her son (“E.D.”), brought a race-based 

discrimination and retaliation suit against the Quaker Valley School District (“QVSD”), 

and its employees, Dr. Joseph Clapper, Dr. Heidi Ondek, Dr. Barabara Mellett, and Erik 

Lindemann. Davis appeals the District Court’s order entering summary judgment in favor 

of the Defendants. For the reasons stated below, we will affirm.

I.

This suit concerns E.D.’s behavioral issues in his second-grade classroom and the 

Defendants’ treatment of those issues. E.D. attended Osborne Elementary School in 

QVSD. At all relevant times, Clapper was QVSD’s superintendent, Ondek was the 

assistant superintendent, Mellet was the principal of Osborne, and Lindemann was E.D’s 

teacher. E.D. was the only African American student in Lindemann’s second-grade class

during the 2011-2012 academic year. 

 

** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 

does not constitute binding precedent.
3

As early as October 2011, Davis expressed concern that Lindemann treated E.D. 

unfairly in relation to his non-minority classmates. She felt that Lindemann blamed E.D. 

for things that he did not do, and punished E.D. for conduct that he did not punish other 

students for. Lindemann claims that while other students occasionally engaged in similar 

conduct, no other student did so with the same frequency or intensity as E.D. He and the 

other Defendants maintain that E.D. experienced emotional and physical outbursts, which 

were highly disruptive to the classroom’s learning environment. Throughout the fall of 

2011, Lindemann suggested ways to address E.D.’s behavioral issues. But Davis was 

unreceptive. In November, Davis rejected Lindemann’s proposal that E.D. join a 

behavior group on the basis that it was unnecessary and likely, as we may now infer, 

because Davis was concerned that E.D. was being targeted based on racial 

discrimination.

The situation escalated as the academic year progressed. Lindemann felt that 

E.D.’s oppositional behavior was intensifying. At the same time, Davis grew increasingly 

vocal regarding her concerns of unfair treatment. On January 30, 2012, Davis told 

Lindemann that she would no longer talk to him about E.D. The next day, Lindemann 

started a reflection journal in which he recorded E.D.’s behavior and his responses to that 

behavior. Soon after, Davis threatened litigation. Assistant Superintendent Ondek and

Principal Mellet investigated Davis’s claims and determined that they were unfounded. 

Still, Davis continued to complain that the Defendants continued to treat E.D. unfairly, 
4

establishing “different standards and practices” for E.D. “in comparison with other 

students,” which led to a “hostile learning environment.”1

Attempting to find a productive way to address E.D.’s behavior and assuage 

Davis’s concerns, the Defendants recruited Floyd Faulkner, an unbiased third party who 

works with child-centered agencies in the community. Faulkner met with Davis, and then 

observed Lindemann’s class on February 23. He concluded that Lindemann was attentive 

to E.D.’s needs and ran the class well. That same day, Lindemann proposed a Responsive 

to Instruction and Intervention (“RTII”) behavioral plan that was uniquely tailored to 

addressing E.D.’s conduct. The RTII plan included methods to “redirect” E.D.’s 

behavior. When redirection was ineffective or E.D.’s conduct was highly disruptive, the 

RTII plan called for removal from the classroom until he calmed down. The Defendants 

presented the RTII plan to Davis on February 28. She refused to participate in the plan 

and informed the Defendants that she filed a formal complaint with the Pennsylvania 

Human Relations Commission (“PHRC”) the day before. 

To facilitate implementation of the RTII plan and minimize disruption to the rest 

of the class, Lindemann requested a co-teacher to help manage his classroom. The coteacher, Nathan Pease, testified that when removal was necessary, he or Lindemann

would attempt to calm E.D. down in the hallway. If unsuccessful, they would send E.D.

 

1 App. 488.
5

to Principal Mellett’s office, or to a “work-away” room until he calmed down. E.D.’s 

oppositional behavior continued to be an issue and he was suspended in May 2012.

During that academic year, D.I., a Caucasian classmate, also experienced 

behavioral issues. With the support of D.I.’s mother, Lindemann referred D.I. to a RTII 

plan. Lindemann kept notes of D.I.’s misconduct before referring D.I. to his RTII plan, 

but did not keep those notes after importing them into the RTII computer tracking 

program. Over time, the program created a graph reflecting D.I.’s progress, but the graph 

does not reflect the nature of D.I.’s conduct. Although not based on personal knowledge, 

Davis claims that D.I. and E.D. engaged in similar conduct in Lindemann’s classroom. 

On September 11, 2013, Davis, individually and on behalf of E.D., brought a racebased discrimination and retaliation lawsuit against the Defendants. In granting the 

Defendants’ motion for summary judgment, the District Court concluded that Davis did 

not establish a prima facie case of discrimination or retaliation. In the alternative, the

court also concluded that Davis failed to raise a triable issue of fact from which a 

reasonable factfinder could find that the Defendants’ non-discriminatory reasons for their 

actions were pretext for discrimination. Because we affirm the District Court’s grant of 

summary judgment on the basis that Davis failed to establish a prima facie case, we do 

not reach pretext.
6

II.

The District Court had subject-matter jurisdiction under 28 U.S.C. §§ 1331 and 

1343(a)(3). We have jurisdiction under 28 U.S.C. § 1291. Our review of the District 

Court’s grant of summary judgment is plenary.2In conducting this review, we apply the 

same standard as the District Court. We view the “underlying facts and all reasonable 

inferences therefrom in the light most favorable” to Davis, and will affirm if a reasonable 

factfinder could find only for the Defendants.

3 We review the District Court’s denial of 

spoliation inference for abuse of discretion.4

III.

A.

We first address Davis’s racial discrimination claims asserted on behalf of E.D.

5

To meet her prima facie burden with respect to these claims, Davis must produce 

evidence giving rise to an inference of unlawful discrimination.

6

 

2 Blunt v. Lower Merion School Dist., 767 F.3d 247, 265 (3d Cir. 2014). 

3

Id.

4 See Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012). 

5 On behalf of E.D., Davis brings racial discrimination claims under 42 U.S.C. § 

1981 (“Section 1981”), and 42 U.S.C. § 1983 (“Section 1983”), and as against QVSD 

only, a claim under Title VI of the Civil Rights Act of 1964 (“Title VI”). Insofar as Davis 

argues that the District Court erred in dismissing her individual claim, that argument is 

waived because she “did not include any argument with respect to [it] or otherwise 

explain how the District Court erred.” Free Speech Coal., Inc. v. Att’y Gen. of United 

States, 677 F.3d 519, 545 (3d Cir. 2012).
7

Lacking direct evidence supporting her claims, Davis attempts to satisfy her prima 

facie burden solely through the use of comparator evidence. To be a valid comparator, the 

individual must be “alike in all relevant aspects.”7 Davis argues that despite engaging in 

similar conduct and being put on his own RTII plan, D.I., a non-minority student, was 

treated more favorably than E.D. We agree with the District Court that D.I. is not a valid 

comparator. First, the record is devoid of evidence showing that D.I.’s misconduct was as 

frequent or intense as E.D.’s. Second, given the unique nature of each RTII plan, the 

mere existence of a plan is insufficient to show that D.I.’s misconduct was sufficiently 

similar to E.D.’s misconduct. And finally, the evidence related to D.I.’s conduct on the 

school bus does not provide a basis from which a reasonable factfinder could evaluate his 

conduct in the classroom, and Davis’s allegations not based on personal knowledge 

cannot withstand summary judgment.8

To prove that D.I. was a valid comparator, Davis sought a favorable inference 

based on spoliation of evidence, which the District Court denied. She argues that 

Lindemann’s pre-RTII plan notes would show that D.I. and E.D. engaged in sufficiently 

 

6 See Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 562 (3d Cir. 2002) 

(“Title VI and § 1981 provide a private cause of action for intentional discrimination 

only.”); see also Andrews v. City of Phila., 895 F.2d 1469, 1478 (3d Cir. 1990) (“To 

bring a successful claim under 42 U.S.C. § 1983 for a denial of equal protection, 

plaintiffs must prove the existence of purposeful discrimination.” (citation omitted)). 

7 Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008) (internal quotation 

marks omitted). 

8 See Olympic Junior, Inc. v. Davis Crystal, Inc., 463 F.2d 1141, 1146 (3d Cir. 

1972). 
8

similar conduct. To establish spoliation, Davis must show that the notes were in the 

Defendants’ control, related to the claims in the case, actually suppressed or withheld, 

that there was a reasonably foreseeable duty to preserve the notes, and that the actor 

withheld or suppressed the evidence in bad faith.9 Short of imputing to Lindemann a 

sophisticated knowledge of trial strategy, it was not reasonably foreseeable that 

Lindemann had a duty to preserve his notes about D.I. pending litigation related to E.D. 

And even if it was, Davis has not established bad faith. Other than her general assertions 

that Lindemann harbored resentment towards her and E.D., and that he was concerned 

about the possibility of litigation, there is no actual evidence that the alleged spoliation 

was intentional and driven by a “desire to suppress the truth.”10 Thus the District Court 

did not abuse its discretion in denying Davis’s request for a spoliation inference. 

Because the comparator evidence is insufficient to establish a prima facie claim, 

the record does not give rise to an inference of unlawful discrimination. Accordingly, we 

will affirm the District Court’s summary judgment of Davis’s discrimination claims. 

B.

We now turn to Davis’s individual unlawful retaliation claims.

11 To meet her 

prima facie burden with respect to these claims, Davis must produce evidence “sufficient 

 

9 Bull, 665 F.3d at 73, 79. 

10 Id. at 79 (citation omitted). 

11 Individually, Davis brings unlawful retaliation claims under Section 1981 and 

Section 1983. Individually and on behalf of E.D., Davis brings unlawful retaliation 

claims under Title VI and the PHRA.
9

to raise the inference that her engagement in a protected activity was the likely reason”

for the adverse action.12 She “may rely on ‘a broad array of evidence’ to demonstrate the 

causal link between [the] protected activity and the adverse action taken.”13 Davis argues 

that the temporal period, beginning in January 2012 when she escalated her complaints, 

and spanning until February 1, when Lindemann began keeping detailed notes of E.D.’s 

conduct in the reflection journal, and on March 1, when Lindemann began removing E.D. 

from the classroom, establishes the requisite causal link. We disagree.14

The record as a whole does not give rise to the requisite inference of causation. 

“The element of causation, which necessarily involves an inquiry into the motives of [the

defendant], is highly context-specific.”15 Lindemann kept notes of E.D.’s conduct before 

January 2012. He began keeping more detailed notes on February 1, the day after Davis 

made clear that she would no longer speak to him about E.D. Not only was Lindemann’s 

detailed note keeping consistent with his need to communicate with Davis about her son 

 

12 Carvalho-Grevious v. Delaware State Univ., 851 F.3d 249, 253 (3d Cir. 2017). 

Although Carvalho-Grevious is a Title VII and Section 1981 case, we have treated 

similarly equal protection claims brought under Section 1983, Stewart v. Rutgers, the 

State Univ., 120 F.3d 426, 432 (3d Cir. 1997), Title VI claims, Pryor, 288 F.3d at 569, 

and PHRA claims, Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d Cir. 1997). See 

e.g., Estate of Olivia ex rel. McHugh v. New Jersey, 604 F.3d 788, 798 (3d Cir. 2010); 

Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007); Peters v. 

Jenney, 327 F.3d 307, 320 (4th Cir. 2003).

13 Marra v. Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007).

14 See Williams v. Phila. Hous. Auth. Police Dep’t, 380 F.3d 751, 759-60 (3d Cir. 

2004) (holding that on its own, an intervening temporal period of two months cannot 

raise an inference of causation).

15 Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173, 178 (3d Cir. 1997).
10

through a third party, but also, it began before Davis took affirmative steps towards

litigation, and before she filed a PHRC complaint.

The causal link is also lacking with respect to E.D.’s removal. The RTII plan was 

specifically tailored to E.D.’s escalating behavioral issues and included removal as a lastresort when E.D.’s oppositional behavior escalated in response to redirection, or when 

E.D. engaged in disruptive attention seeking behavior. After the plan was instituted, the 

Defendants removed E.D. to the hallway infrequently and for limited periods of time. 

They first removed E.D. to the work-away room more than two months after Davis

escalated her complaints. Although the RTII plan was proposed after Davis threatened 

litigation, there is no evidence linking Davis’s threats to the Defendants’ treatment of 

E.D, and on its own, communicating concerns about ongoing antagonism is not probative 

of retaliatory animus.16

In the absence of direct or comparator evidence, a reasonable factfinder could not

conclude that the challenged scrutiny or discipline was in any way related to Davis’s 

protected activities. Accordingly, we will affirm the District Court’s order entering

summary judgment of Davis’s retaliation claims.

 

16 See e.g. Fasold v. Justice, 409 F.3d 178, 190 (3d Cir. 2005) (concluding that the 

temporal period coupled with the defendant’s concession that the plaintiff’s protected 

activity “‘irritated’ him and caused him to view [the plaintiff] as suspect,” supported an 

inference that the defendant denied the plaintiff’s grievance in retaliation for his protected 

activity). 
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IV.

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