ALLENTOWN – A federal judge granted a motion for dismissal filed on behalf of Boyertown Area School District, against a lawsuit filed by a teacher who claimed she faced both sex discrimination and retaliation in the course of her work.
On March 2, U.S. District Court for the Eastern District of Pennsylvania Judge Joseph F. Leeson Jr. granted a motion to dismiss filed by the District, in an action brought against it by one of its former educators, Melissa Cherkasky.
Cherkasky filed her litigation against the District in November 2021, in which she asserted claims of sexual harassment, sex discrimination leading to a hostile work environment and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000(e) and the Pennsylvania Human Relations Act.
Cherkasky started working for the District in 2003, according to Leeson.
“In 2018, a male student, M.B., was assigned to Cherkasky’s ninth grade English class. In September of the same year, Cherkasky contacted M.B.’s parents and the school guidance counselor to inform them of M.B.’s low grades, lack of effort in her class, and his ‘disrespectful attitude towards’ Cherkasky. Ultimately, Cherkasky gave M.B. a failing grade, and he had to repeat her class the following school year,” Leeson stated.
“While taking Cherkasky’s class for a second year in row, M.B. left the classroom one day without permission and did not return for the remainder of the lesson. School security officers later found him wandering around the building. As a result, Cherkasky met with M.B.’s parents, the school guidance counselor, and a District assistant principal. At the meeting, Cherkasky reported that M.B. was ‘acting out.’ According to Cherkasky, M.B. ‘repeatedly, openly and with impunity, sneered at, scoffed at and openly disrespected [her] authority.”
Leeson explained that M.B. and later, another student named A.M., referred to her in a profane manner, but faced limited punishment from the District and were not removed from her class, despite her request for that action to be taken.
After being advised to document these incidents in writing, Cherkasky did so and took her concerns to various school administrators, without relief she claimed, and thus took medical leave in March 2020 for the remainder of that school year.
When she returned to work for the next school year the following September, Cherkasky said she received a professional evaluation assigning her downgraded ratings, which she alleged were retaliation for the complaints she had made to administrators – a charge those administrators denied.
Throughout the remainder of the school year, Cherkasky felt that the District “shunned her as an outcast” because of her complaints, leading her to file a formal charge of discrimination with the Equal Employment Opportunity Commission in March 2021.
The District’s Human Resource official eventually gave Cherkasky a letter acknowledging her EEOC charge, which according to Cherkasky, was done to intimidate her, and finally, Cherkasky resigned on June 14, 2021.
The District contended that Cherkasky has not alleged facts sufficient to support her claims as a matter of law and filed a motion to dismiss to that effect on Jan. 28.
“Cherkasky’s claims based on sex discrimination do not make it past the first element as a matter of law because she has not alleged facts sufficient to show that she suffered intentional discrimination because of her sex…in other words, the mere use of offensive epithets, without more, does not constitute sex discrimination as a matter of law,” Leeson said.
“Cherkasky argues that, when viewed alongside her other allegations of harassment, the students’ use of the term ‘bitch’ is further evidence of discrimination based on her sex. However, even when viewed in a light most favorable to Cherkasky, none of her other alleged acts of discrimination have anything to do with sex.”
Leeson further found that Cherkasky’s claims of retaliation did not pass muster.
“Cherkasky gives two examples of alleged adverse employment actions. However, even when the facts are viewed in her favor, neither of her examples contain facts that she was caused an actual injury that would have stopped a reasonable employee from complaining of discrimination,” Leeson said.
“Cherkasky asserts that she was ‘shunned’ and states in conclusory fashion that her exclusion has caused her ‘substantial determinant.’ However, she does not allege any specific facts that the District’s cold behavior towards her was anything more than a simple lack of good manners. For example, the District did not stop her from attending substantive work-related events.”
Leeson summarily dismissed the entire complaint against Cherkasky without prejudice.
“The Court dismisses Cherkasky’s claims of sex discrimination and of a hostile work environment because the students’ use of the word ‘bitch’ on two occasions does not constitute discrimination as a matter of law. Moreover, none of Cherkasky’s other alleged incidences of discrimination have to do with her sex. Since the Court dismisses Cherkasky’s hostile work environment claim, it also dismisses her claim of constructive termination,” Leeson ruled.
“The Court dismisses Cherkasky’s claim of retaliation because a negative performance review, without more, does not constitute retaliation as a matter of law. Moreover, Cherkasky’s conclusory claim that the District treated her poorly after she made her complaints is not supported by factual allegations that give rise to a right of relief above the speculative level. For these reasons, and those given above, the complaint is dismissed without prejudice.”
U.S. District Court for the Eastern District of Pennsylvania case 5:21-cv-05204
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com