Polly Ann Heller; Darla Marraccini; Penny Natale v. Elizabeth Forward School District

*Honorable William H. Yohn, Jr., Senior District Judge for the United States
District Court for the Eastern District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 05-2046, 05-2464
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POLLY ANN HELLER;
DARLA MARRACCINI;
PENNY NATALE
v.
ELIZABETH FORWARD SCHOOL DISTRICT,
Appellant
___________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 04-145)
District Judge: The Honorable Thomas M. Hardiman
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ARGUED APRIL 24,2006
BEFORE: SCIRICA, Chief Judge, and NYGAARD, Circuit Judges,
and YOHN, District Judge.*
(Filed May 31, 2006)
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John W. Smart, Esq. (Argued)
Todd P. Prugar, Esq.
Andrews and Price
1500 Ardmore Boulevard, Suite 506
Pittsburgh, PA 15221
Counsel for Appellant
Colleen R. Johnston, Esq. (Argued)
Rothman Gordon
310 Grant Street, 3 Floorrd
Pittsburgh, PA 15219
Samuel J. Cordes, Esq.
Ogg Cordes Murphy & Ignelzi
245 Fort Pitt Boulevard
Pittsburgh, PA 15222
Counsel for Appellee
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
A jury returned a verdict in favor of three teachers who had sued the
Elizabeth Forward School District alleging violations under the Age Discrimination in
Employment Act, The Equal Pay Act, and state claims alleging violations of the
Pennsylvania Human Relations Act. The School District appeals. We will affirm.
I.

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The School District’s salary scale and the collective bargaining agreement
between the School District and the teachers’ union, sets different “steps” in salary
depending on a teacher’s experience, education, and teaching certification area. When
the School District hired plaintiffs, they were all over the age of fifty years old and they
were all hired at step 1 of the District’s salary scale. They alleged that after the School
District hired them as teachers, it hired seven other teachers (“comparators”), five of
whom were male and all of whom were younger, with substantially the same
qualifications as Plaintiffs, at higher salary steps.
After discovery, the School District filed a motion for summary judgment,
which the District Court denied. With respect to the ADEA claim, the District Court
determined that “[a] rational trier of fact could either disbelieve the employer’s articulated
legitimate reasons or believe that an invidious discriminatory reason was more likely than
not a motivating or determinative cause of the employer’s actions.” With respect to the
EPA claim, the District Court concluded that the plaintiffs had adduced enough evidence
from which a reasonable trier of fact could conclude that a prima facie case of
discrimination had been made. Additionally, the District Court concluded that the School
District failed to submit sufficient evidence to demonstrate that the salary differences
were due to some factor other than sex.
The case went to trial and, after the District Court denied the School
District’s motion for a directed verdict, a jury awarded verdicts in favor of all three

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teachers. Subsequently, the School District renewed its motion for judgment as a matter
of law, which was denied. With respect to damages, Plaintiffs sought interest back to
when they were hired, liquidated and punitive damages, and equitable relief that gave
them credit for experience outside the School District. The District Court granted these
requests. The School District timely appealed, and all the orders (from summary
judgment through post-trial damages) were consolidated in this appeal.
II.
A.
The School District concedes that plaintiffs have established a prima facie
case of age discrimination under the ADEA. They believe, however, that they have
adequately vitiated plaintiffs’ prima facie case of age discrimination with a legitimate
non-discriminatory reason for the salary discrepancies, and that the District Court
incorrectly required them, at the summary judgment stage, to conclusively prove this non-
discriminatory reason as opposed to merely proffer it.
The School District is of course right that claims under the ADEA follow
the burden-shifting sequence set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which does not require conclusive proof of a
non-discriminatory reason to rebut a prima facie case. However, once a defendant has
proffered a non-discriminatory reason, a plaintiff will survive summary judgment if she

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adduces evidence that would allow a factfinder to disbelieve the proffered non-
discriminatory reason. Here, plaintiffs met this burden.
It is the School District’s practice that teachers are generally hired at step 1
of the salary scale, regardless of whether they teach elementary school or high school.
However, the School District argued that it hired teachers at different salaries because
“teacher certifications in sciences or special education that many of the younger teachers
possess,” combined with “the relative scarcity of these certifications justified a higher
starting salary.” It is true that the School District may hire a teacher at a step higher than
step 1. For example, it is permissible for the School District to hire a teacher at a higher
salary step where that teacher possesses qualifications for which the School District is
especially in need. Thus, nothing prohibits the School District from hiring a teacher who
possesses a teaching certification in physics at a higher salary step because the School
District lacks a high school physics teacher, as demand may play a role in the School
District’s decision to hire a certain teacher at a higher salary step.
The District Court, however, determined that plaintiffs had submitted
evidence tending to cast doubt on the School District’s reason for its employment
decisions, chiefly that the younger teachers hired had teaching certifications that were
much rarer, and in greater demand, than those of the plaintiffs. The plaintiffs offered
evidence that school board members were unable to articulate this reason when deposed
and that, at least with respect to one comparator, Ms. Stock, the School District did not

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follow its own logic. School board member Ronald Skrinjorich testified that the board
members were “basically ignorant to the fact of pay levels” and that he was unaware of
any policy of starting teachers with scarce certifications at higher pay levels. He also
opined that “he did not really know why a teacher would be hired at a pay level higher
than Level 1 and that he would have supported Plaintiffs’ request for a higher pay level
because ‘if you give it to one, you give it to all.’” The District Court also concluded that
there was no evidence whatsoever to support the claim that the certifications of the
younger teachers are more scarce than those of the plaintiffs. In light of this
countervailing evidence, we think it certainly reasonable that a factfinder could disbelieve
the School District’s articulated explanation for the hiring discrepancies and, accordingly,
we will affirm the District Court’s denial of summary judgment as to the ADEA claim.
B.
The School District next contends that the District Court erroneously
determined that teachers with different teaching certificates could be considered
comparators for purposes of an EPA claim. Because they appeal from a denial of
summary judgment, the School District plies the argument that the District Court erred
when it declined to find, as a matter of law, that teachers with different teaching
certificates cannot be considered comparators. 24 P.S. § 12-1202, states that “No teacher
shall teach, in any public school, any branch which he has not been certified to teach.”
Thus, according to the School District, “[i]f [the plaintiff teachers] could not legally

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perform the same job as these [comparator] teachers . . . they could not be sufficiently
comparable to these teachers, and, therefore, could not support any discrimination claim
by comparing themselves to these [comparator] teachers.” This argument misses the
mark.
When making out a prima facie case, a plaintiff need only show that the
jobs being compared are substantially equal, not necessarily that they are identical.
Forsberg v. Pacific Northwest Bell Telephone Co., 840 F.2d 1409, 1414 (9 Cir. 1988). Theth
EPA defines what constitutes equal work as jobs that require equal skill, effort, and
responsibility. Additionally, when a court assesses the substantial equality between jobs,
it should rely on actual job performance and content rather than job descriptions.
Moreover, because of the heavily fact-driven character of the inquiry, substantial equality
must be determined on a case-by-case basis. Depending on the facts and the evidence
presented, the proper comparator might be another teacher within the same certification
class. A school district may have a particular need, justifying pay differentials, to hire
teachers certified in specific subject areas. Accordingly, in some circumstances, plaintiffs
in one certification class claiming age or sex discrimination may not properly be able to
use a teacher in another certification class as a comparator. Because of this heavy factual
determination, however, the presence of a statute limiting who can teach specific subjects
is not determinative for purposes of assessing whether jobs are similarly situated for an
EPA claim. This is especially the case where, as here, the School District had a policy of

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starting all new teachers, irrespective of certification, at the same pay rate. At all events,
because of the factual nature of the inquiry, the presence of the proffered statute is not
determinative for purposes of an EPA prima facie claim and the District Court did not err
in denying the motion for summary judgment and concluding that whether the jobs are
similarly situated is a fact issue appropriate for the jury.
C.
We quickly dispose of the School District’s claim that, as a matter of law, the
District Court erred by determining that a librarian who holds “an instructional certificate
in library sciences may not be considered a teacher,” by noting that the District Court
made no such ruling. By framing the District Court’s decision to allow a jury to reach its
own decision regarding the similarity between plaintiffs and the librarian as a decision
that a librarian could never be considered a comparator, the School District
mischaracterizes the nature of the District Court’s ruling. In fact, the District Court
properly allowed evidence from both sides on the question whether a librarian should be
considered similarly situated to plaintiffs under the EPA, consistent with both the fact-
driven analysis such an inquiry presents and the manner in which other teacher-
comparators were analyzed.
D.
The School District’s appeal from the denial of its motion for judgment as a matter
of law is also unavailing. Here, as we noted earlier, the plaintiffs established their prima

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facie case for both their EPA and ADEA claims. Therefore, any claim by the School
District that the plaintiffs had no evidence that any of the comparator teachers were hired
at higher than step 1 because of their gender or age is inapt.
Recognizing this, the School District additionally argues that “the claim that the
School District provided inconsistent reasons for its decision finds no support in the
record,” thus contesting the jury’s conclusion to the contrary on the EPA and ADEA
claims. We disagree. Their argument is easily refuted by the testimony offered by both
the superintendent and the school board members that was either contradictory or elusive
with respect to the reasons behind the salary discrepancies. For instance, at trial
Superintendent Mueller was unable to explain what the School District had meant when,
in its answer to the PHRC complaint, it proffered three reasons for the hiring
discrepancies: he could not explain what “applicable law” could have required the salary
differences, he did not know who had suggested “experience” as a possible justification,
and he admitted that the reason given for the hiring of Ms. Stock at a higher level was
false. He also testified that the “specialized certification” rationale for the hiring of the
comparator teachers was new and that it did not apply to Ms. Stock even though in the
School District’s answer, he had claimed that it did. He also testified that the School
District had changed its reason for the hiring discrepancies. Furthermore, when pressed
on his claim that the scarcity of applicants necessitated the higher salaries, he was unable
to testify as to how many other teachers had applied for the position or even how many

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were considered. He also suggested that hiring Ms. Stock at a higher salary step was
motivated by loyalty for her short-term substitute teaching. Additionally, three school
board members testified that they did not know why many of the teachers were hired at
their pay steps.
We could go on, but in short, viewing the evidence most favorably to the
prevailing party, it is clear that a reasonable factfinder could have found that the School
District’s proffered nondiscriminatory reason was not proved, and that the record is not
critically deficient of that minimum quantum of evidence from which a jury might
reasonably afford relief to plaintiffs. In fact, what emerges most clearly from the trial
transcript is that the School District had no clear policy or procedures that it consistently
followed for hiring its teachers and, accordingly, its ex post attempts to justify the
discrepancies were unpersuasive and not believable. Because the record clearly suggests
that there was no cohesive or consistent answer to the question why the comparator
teachers were hired at significantly higher salaries, a jury could have found that the
School District’s proffered nondiscriminatory reasons were unbelievable, and,
consequently, we will affirm the District Court’s denial of the motion for judgment as a
matter of law.
E.
The District Court granted plaintiffs’ request to be placed higher up on the pay
scale, in line with their comparators. It is well settled that the District Court has discretion

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to fashion equitable relief to effectuate the purposes of the Title VII statutory scheme,
specifically, in order to award make-whole damages. Moreover, where, as here, the jury
makes explicit findings that, had the discrimination not occurred, the plaintiffs would
have been at higher salary steps, a District Court may appropriately fashion an award of
damages to support this finding. Thus, the District Court’s decision here to place the
plaintiffs in the same position as their comparators was not an abuse of discretion.
F.
The School District finally attempts to manufacture a conflict between two of our
cases concerning the applicability of damages in ADEA cases. They claim that the
District Court erred in awarding liquidated damages under the ADEA both because the
liquidated damages are prohibited under the ADEA and because the School District is a
government entity. The School District’s argument that the District Court’s award was
impermissible is foreclosed by our decision in Potence v. Hazleton Area Sch. Dist., 357
F.3d 366 370 (3d Cir. 2004), where we determined that there is no question that
liquidated damages are acceptable under the ADEA. Potence, 54 F.3d at 372 (“[W]hen a
jury finds that an employer willfully violated the ADEA, the basic damages award may be
doubled under [the] liquidated damages provision.”). Additionally, this remedy is
available against municipalities like the School District. See id. (“[T]he language of the
ADEA itself makes it clear that Congress intended to subject municipalities like the

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School District to the liquidated damages provision of the ADEA.”). Consequently, the
District Court’s award of liquidated damages, as a legal matter, was proper .
In an attempt to avoid the effect of this settled law, however, the School District
insists that Starceski v. Westinghouse Elec. Corp., 54 F.3d 1089, 1100 (3d Cir. 1995) conflicts
with the rule that liquidated damages are acceptable under the ADEA. Even a mere
cursory reading of Starceski disabuses this claim. The only question that the Court
addressed in Starceski was whether pre-judgment interest may be awarded along with
liquidated damages. Starceski, 54 F.3d at 1101 (concluding that awards of pre-judgment
interest and liquidated damages are permissible under the ADEA). The question was not
whether liquidated damages are appropriate under the ADEA. In fact, the Court expressly
allowed a grant of liquidated damages under the ADEA. Id. at 1102 (“The ADEA
incorporates the FLSA’s liquidated damages provision.”). Accordingly, the District
Court’s grant of liquidated damages in this case was correct.
IV.
In summary, and for the reasons set forth above, the judgment of the District Court
will be affirmed.

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