In Cherkasky v. Boyertown Area School District, No. 5:21-cv-5204, 2022 WL 1965899 (E.D.Pa. June 6, 2022), the court, inter alia, dismissed plaintiff’s sex-based discrimination claims under Title VII of the Civil Rights Act of 1964 and the Pennsylvania Human Relations Act.
From the decision:
The first and most crucial element to Cherkasky’s discrimination claim is that she must have suffered discrimination because of her sex. The Court dismissed the Original Complaint because it did not allege that her students behavior was based on her sex. After stripping the Amended Complaint of its conclusory statements, it simply repeats the same allegations Cherkasky made in her Original Complaint. As a result, the Amended Complaint suffers from the same defects as the Original Complaint when it comes to Cherkasky’s claim that her students discriminated against her based on her sex.
Accepting Cherkasky’s allegations as true, the acts of her three troublesome male students can be summarized as follows: (1) MB left class without permission twice; (2) MB wrote “fucking bitch” on the back of an assignment; (3) AM put a sign on her classroom door that read “Mrs. Cherkasky is bitch-made”; (4) CM told her that she was “a horrible teacher” and left class without permission; and (5) MB “sneered” and “scoffed” at her on various occasions.
Most of the students’ behavior has nothing to do with Cherkasky’s sex. Cherkasky does not make any factual allegations to support that the students left her classroom without permission because of her sex. Nor does she point to any facts that might suggest that MB sneered at her because of her sex. CM told her that she was a horrible teacher; he did not say that he thought she was a horrible teacher because of her sex. The only thing linking these relatively few instances of misbehavior to Cherkasky’s sex is her own subjective belief.
However, subjective belief alone is insufficient to maintain an unlawful discrimination claim. See Dinnerstein v. Burlington Cty. Coll., 764 F. App’x 214, 217 (3d Cir. 2019).Without additional supporting factual allegations, the Court can only assume that the misbehavior was directed at Cherkasky based on her sex, but the Court is not required to assume facts in her favor in order to save her claims from dismissal.
While the court acknowledged the use of the term “bitch” was inappropriate, here it did not, on its own, constitute sex discrimination. Neither case cited by plaintiff warranted an opposite conclusion.