William Houston v. Easton Area School District

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-1632
WILLIAM HOUSTON,
Appellant
v.
EASTON AREA SCHOOL DISTRICT
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 03-cv-03494
(Honorable Henry S. Perkin)
Submitted Pursuant to Third Circuit LAR 34.1(a)
November 2, 2009
Before: SCIRICA, Chief Judge, JORDAN and GREENBERG, Circuit Judges.
(Filed: December 8, 2009)
OPINION OF THE COURT
SCIRICA, Chief Judge.
William Houston retired from his position with the Easton Area School District in
July 1999. Houston brought suit under Title VII of the Civil Rights Act of 1964, as
amended, 42 U.S.C. §§ 2000e to 2000e-17, alleging the School District discriminated

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The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction1
under 28 U.S.C. § 1291.
2
against him based on his race (African American) when he received payment for only
25% of the value of his unused sick days upon his retirement, while four comparable
white employees received payment for 100% of their unused sick days upon their
respective retirements. The District Court granted in part the School District’s motion in
limine, excluding evidence of the retirement packages of three of the four alleged
comparators on the basis that they were not similarly situated to Houston because their
positions were not covered under a Pennsylvania statute commonly known as Act 93, 24
P.S. § 11-1164. Houston challenges the court’s exclusion of comparator evidence from
the trial. Because we find Act 93 status should not have been determinative as to whether
the employees were similarly situated to Houston, we will vacate the judgment of the
District Court.1
I.
At the end of his 34-year career with the School District, Houston was employed
as the Director of Support Services. In this position, Houston was a member of the
superintendent’s cabinet, which was an unofficial term used by the School District to
designate the members of the superintendent’s administrative team. Houston was
appointed to the cabinet by Superintendent Joseph Piazza in 1995 or 1996. Houston
served on Superintendent Piazza’s cabinet contemporaneously with employees Louis

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Piazza, Ciccarelli, Hettel, and Wrazien are Caucasian.2
Houston testified that at the time he submitted his resignation letter, it was his3
understanding he was entitled to receive payment for 25% of his unused sick days. He
had heard, however, that some people had received payment for 100% of their unused
sick days. As a result, Houston asked Hettel, Director of Personnel, on two or three
occasions whether it would be possible for him to receive payment for 100% of his
unused days. Houston testified that Hettel told him he was entitled to only 25%.
3
Ciccarelli, Business Manager; Karl Hettel, Director of Personnel; and Roger Wrazien,
Director of Elementary Education.2
Superintendent Piazza submitted his resignation letter in the spring of 1997, to be
effective at the end of the summer. Piazza’s resignation letter specifically requested that
he be paid for all his unused sick days. The Easton Board of Education approved his
request in April 1997. After Piazza’s retirement, Bernadette Meck replaced him as
Superintendent. Houston, Ciccarelli, Hettel, and Wrazien remained in their positions as
part of Superintendent Meck’s cabinet.
Houston submitted his resignation letter in June 1998, to be effective the following
month. Houston’s letter did not request that he be paid for all his unused sick days.3
Pursuant to School District policy, he was paid 25% of the value of his unused sick days
upon retirement, which amounted to a payment of $32,919.04. Ciccarelli, Hettel, and
Wrazien all retired within a few months of each other in the summer of 1999. Although
the general policy was to pay employees 25% of the value of their unused sick days,

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Ciccarelli was paid the full amount of his sick time soon after his retirement. The4
School District thereafter initiated litigation against Ciccarelli seeking reimbursement for
unused sick-day compensation paid to him in excess of 25% of his time. Easton Area
Sch. Dist. v. Ciccarelli, No. C-0048-cv-2001-009149 (Ct. C.P. Northampton County).
Upon retirement, Hettel and Wrazien both arranged for their sick-day payments to be paid
in equal installments over four years. They received only the first payment of 25%.
Wrazien thereafter initiated litigation against the School District for the remaining
payments. See Wrazien v. Easton Area Sch. Dist., 926 A.2d 585, 586-88, 590 (Pa.
Commw. Ct. 2007) (affirming judgment in favor of Wrazien and finding no error in the
trial court’s decision that the School District was bound by the terms of Wrazien’s
retirement package negotiated by Meck and approved by the School Board). Hettel
decided not to file suit against the School District and has not received his remaining
payments.
4
Superintendent Meck agreed to pay Ciccarelli, Hettel, and Wrazien 100% of their unused
sick days.4
Act 93, 24 P.S. § 11-1164, part of the Pennsylvania Public School Code of 1949,
requires school employers to adopt written compensation plans for certain school
administrators whose positions are not included in a bargaining unit. 24 P.S. § 11-
1164(d). Act 93 explicitly excludes superintendents, business managers, and personnel
directors from covered school administrators. Id. § 11-1164(a). The School District’s
Act 93 Compensation Plan at issue applied to school administrators below the rank of
superintendent and, consistent with the statute, excluded the positions of business
manager and director of personnel. Thus, Piazza (as Superintendent), Ciccarelli (as
Business Manager), and Hettel (as Director of Personnel) were not covered by the Act 93
Plan, while Houston and Wrazien were covered.

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An Act 93 fringe benefits chart introduced at trial provided that all covered5
administrators would receive compensation for 25% of their unused sick days at
retirement. Trial evidence, however, indicated that this chart may have been an outdated
version of a worksheet Superintendent Meck used as a guide, not a mandate, to determine
what benefits were provided to employees, and that the chart was not part of the formal
Act 93 Plan. The chart was not submitted to the court as part of the School District’s
motion in limine.
The Order also excluded evidence of alleged “historical inequities” in compensation6
(continued...)
5
The School District’s Act 93 Plan provided that “[f]ringe benefits shall be
determined by the Superintendent of Schools and/or the Board of Education.” According5
to Hettel, the School District had a policy of treating the business manager and the
director of personnel the same as Act 93 employees for purposes of fringe benefits.
According to Superintendent Meck, personnel directors and business managers could be
remunerated the same as Act 93 employees, but they did not have to be treated the same.
She testified that their benefits were left to the discretion of the superintendent, and that
she used her discretion to agree to pay Ciccarelli (not covered by Act 93), Hettel (not
covered by Act 93), and Wrazien (covered by Act 93) 100% of their sick time at
retirement.
In an October 3, 2005 Order, the District Court, per Magistrate Judge Rapoport,
granted in part the School District’s motion in limine. The Order excluded evidence of
the retirement packages of Piazza, Ciccarelli, and Hettel on the basis that these
individuals were not similarly situated to Houston because their positions were excluded
from the Act 93 Plan. In 2008, the case was taken out of suspense and was reassigned to6

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(...continued)6
and an alleged “secret code” used to request payment for sick time in Ciccarelli’s
retirement letter. Houston does not challenge the exclusion of the historical inequities
evidence. He does challenge the exclusion of the secret code language, which is
discussed, infra, at note 8.
6
Magistrate Judge Perkin. Before trial, Houston filed a motion for reconsideration of the
Order on the motion in limine, which Magistrate Judge Perkin denied on October 8, 2005.
A one-day bench trial was held on October 15, 2008. In a February 24, 2009
Memorandum Opinion and Verdict, the court entered judgment for the School District.
II.
Houston argues the District Court’s evidentiary decisions constituted clear error
and we therefore should remand for a new trial. Houston contends evidence of the
retirement packages of the excluded individuals should have been admitted as relevant to
his case. He further contends the evidence demonstrated that Act 93 status was not
relevant to the payment of sick time upon retirement and that the excluded individuals
were similarly situated to him because they served in cabinet positions at the same time,
had comparable years of service, and retired within the same time frame as him. The
School District contends the District Court correctly determined that Wrazien was the
only appropriate comparator because the retirement benefits provided under a specific
plan should not be comparable, for purposes of establishing a discrimination claim, to
those provided to employees not covered by that plan.

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7
We review the District Court’s decision to exclude evidence on a motion in limine
for abuse of discretion. See Bernardsville Bd. of Educ. v. J.H., 42 F.3d 149, 161 (3d Cir.
1994). An abuse of discretion may be found when “the district court’s decision rests
upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper
application of law to fact.” Int’l Union v. Mack Trucks, Inc., 820 F.2d 91, 95 (3d Cir.
1987). We will reverse, however, only if we find the District Court’s error was not
harmless. Donlin v. Philips Lighting N. Am. Corp., 581 F.3d 73, 80 (3d Cir. 2009).
To make a comparison of the plaintiff’s treatment to that of an employee outside
the plaintiff’s protected class for purposes of a Title VII claim, the plaintiff must show
that he and the employee are similarly situated in all relevant respects. See Holifield v.
Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (collecting cases). The Supreme Court has
held that evidence offered in a discrimination case concerning purported comparators
with different supervisors is neither per se admissible nor per se inadmissible. See
Sprint/United Mgmt. Co. v. Mendelsohn, 128 S. Ct. 1140, 1143 (2008). We can glean
from Mendelsohn that whether a factor is relevant for purposes of a similarly situated
analysis must be determined by the context of each case.
In disciplinary cases or in the context of personnel actions, for example, the
relevant factors often include a “showing that the two employees dealt with the same
supervisor, were subject to the same standards, and had engaged in similar conduct
without such differentiating or mitigating circumstances as would distinguish their

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8
conduct or the employer’s treatment of them.” Radue v. Kimberly-Clark Corp., 219 F.3d
612, 617-18 (7th Cir. 2000) (citation omitted); see also Johnson v. Kroger Co., 319 F.3d
858, 867 (6th Cir. 2003) (“In the context of personnel actions, the relevant factors for
determining whether employees are similarly situated often include the employees’
supervisors, the standards that the employees had to meet, and the employees’ conduct.”
(citation omitted)). In a failure to transfer or promote case, the relevant factors may
include some of the above, in addition to evidence that the employees “possessed
analogous attributes, experience, education, and qualifications relevant to the positions
sought.” Radue, 219 F.3d at 618. In a severance or retirement benefits case, the relevant
factors may include the positions held, policies or plans in effect, the decisionmakers, and
the timing of the separations/retirements. See McGuinness v. Lincoln Hall, 263 F.3d 49,
54-55 (2d Cir. 2001) (plaintiff established she was similarly situated to a colleague who
received more money in severance where the two employees “held positions of roughly
equivalent rank (both in the Executive Cabinet), . . . were fired at roughly the same time,
[and] the decisions with respect to the severance were both made at the highest levels of
the company”). Additional factors may include whether the employees “retired under
normal conditions, early, or pursuant to a settlement or other special circumstances.”
Sellars v. City of Gary, 453 F.3d 848, 851 n.1 (7th Cir. 2006). The plaintiff is not
required to show that he is identical to the comparator in each relevant factor, “but he
must show substantial similarity.” Radue, 219 F.3d at 618 (citation omitted).

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9
The District Court considered only Act 93 status in its determination of whether
Piazza, Ciccarelli, Hettel, and Wrazien were similarly situated to Houston. The court,
however, did not consider the evidence showing that Act 93 status was not determinative
as to the amount of sick time paid to School District employees upon retirement.
Depending on the facts and evidence presented, Act 93 status or coverage may or may not
be relevant—but in this case it is not dispositive. Because of the heavily fact-driven
character of the inquiry, the mere presence of a particular compensation statute or plan
implementing that statute is not determinative of whether employees are similarly situated
for a discrimination claim. This is especially the case where, as here, (1) the Act 93 Plan
provided that fringe benefits were to be determined by the superintendent and/or the
Board of Education and did not specify the percentage of unused sick days that would be
paid upon retirement; (2) the School District had a general policy of paying all employees,
regardless of Act 93 status, 25% of their unused sick days at retirement; and (3)
Superintendent Meck retained the discretion to pay both Act 93 and non-Act 93
employees more than 25% of their unused sick days.
We find that under the facts of this case, Act 93 status should not have been the
dispositive factor for purposes of determining whether Houston was similarly situated to
other School District administrators. Evidence of the retirement packages of Piazza,
Ciccarelli, and Hettel should not have been excluded based on the fact that their positions
were not covered by the School District’s Act 93 Plan. Because the District Court relied

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We note that Houston appears to concede that Piazza, as Superintendent, is not an7
appropriate comparator. In his Reply Brief, Houston contends he is similarly situated to
all the cabinet members (Ciccarelli, Hettel, and Wrazien) because all the cabinet members
were subject to the same standards in employment and they were all responsible for
advising the superintendent. Piazza was not a cabinet member—as Superintendent, he
supervised the cabinet members.
10
solely on Act 93 status, it abused its discretion in excluding evidence of the retirement
packages of these individuals.
Furthermore, we cannot say this error was harmless. The similarly situated
analysis is for the District Court to determine in the first instance. See Mendelsohn, 128
S. Ct. at 1146 (“[Q]uestions of relevance and prejudice are for the District Court to
determine in the first instance.” (citing U.S. v. Abel, 469 U.S. 45, 54 (1984))). But it
appears that at least Ciccarelli and Hettel may be similarly situated to Houston. Houston,7
Ciccarelli, and Hettel were all long-term employees of the School District, held positions
of roughly equivalent rank (in the superintendent’s cabinet) during the same time period,
and retired within a year of each other. Moreover, decisions regarding the fringe benefits
each cabinet member received upon retirement were all made by Superintendent Meck. If
Houston had been able to present evidence that Ciccarelli received and Hettel was
promised 100% of his sick time upon retirement, the burden of production likely would
have shifted to the School District to present a legitimate, nondiscriminatory reason for
why each employee received more favorable treatment than Houston. See Fuentes v.
Perskie, 32 F.3d 759, 763 (3d Cir. 1994). Houston, in turn, would have had the

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The District Court also excluded evidence of alleged “secret code” language used in8
Ciccarelli’s retirement letter because evidence of his retirement was excluded as not
comparable to Houston. If the court determines on remand that Ciccarelli is an
appropriate comparator, his retirement letter should be admissible in accordance with the
court’s ruling that similar language in Wrazien’s retirement letter was admissible.
11
opportunity to show that the School District’s stated reasons were a pretext for
discrimination. Id. Evidence of additional similarly situated employees outside of
Houston’s protected class—each of whom received or was promised 100% of his sick pay
upon retirement—likely would have changed the entire complexion of the trial.
Accordingly, we will vacate the judgment in favor of the School District and
remand for a new trial. On remand, the District Court should engage in a factual analysis
of the relevant factors to determine whether any of the excluded comparators is similarly
situated to Houston.8
III.
In summary, and for the reasons set forth above, we will vacate the judgment of
the District Court and remand for further proceedings consistent with this opinion.

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