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Guy Pollice v. Carnegie Museums of Pittsburgh

September 11, 2006


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


Presently before the Court is the MOTION FOR SUMMARY JUDGMENT, with brief in support, filed by Defendant Carnegie Museums of Pittsburgh (Document Nos. 20 and 21), the BRIEF IN OPPOSITION TO MOTION FOR SUMMARY JUDGMENT filed by Plaintiff, Guy Pollice (Document No. 38), the REPLY BRIEF filed by Defendant (Document No. 57) and the SUR-REPLY filed by Plaintiff (Document No. 61).

The issues have been fully briefed and the matter is ripe for disposition. After a thorough review of the motion, the brief in support, brief in opposition, reply brief in support, sur-reply brief in opposition, the record, and applicable case law, the Motion will be granted in part and denied in part.


Plaintiff Guy Pollice ("Plaintiff") brought this lawsuit on August 30, 2004, by the filing of a Complaint against Defendant Carnegie Museums of Pittsburgh ("Defendant" or "The Carnegie") in the Court of Common Pleas of Allegheny County in which he alleges that his former employer, The Carnegie, (i) wrongfully terminated his employment and engaged in other retaliatory acts in violation of Title 42, United States Code, Section 1981 ("Section 1981); and (ii) unlawfully discriminated against him based on his "disability" in violation of the Americans with Disabilities Act ("ADA"). Additionally, Plaintiff alleges violations of Pennsylvania state law which include discrimination under the Pennsylvania Human Relations Act ("PHRA"), breach of contract, and negligent and fraudulent misrepresentation.

On September 16, 2004, Defendant timely removed the matter to this Court. Defendant has filed the instant motion for summary judgment in which it contends that Plaintiff is unable to establish a prima facie case of retaliation and/or discrimination under either Section 1981 or the ADA. In the alternative, Defendant contends that assuming arguendo that Plaintiff could state a prima facie case under Section 1981, summary judgment should still be granted in its favor because there is no evidence that Defendant's articulated legitimate, non-retaliatory reason for Plaintiff's discharge (i.e., inadequate performance) was false and/or that Plaintiff's "protected activity" was the real reason for his termination.

Furthermore, Defendant contends that it is entitled to summary judgment on Plaintiff's state law claims of breach of contract, and negligent and fraudulent misrepresentation.


As the law requires, all disputed facts and inferences are resolved most favorable to the Plaintiff. Furthermore, the Court merely provides an abridged summary of facts for the purpose of this Opinion.

Plaintiff was employed by The Carnegie as Assistant Director of General Services from June 30, 2001, until his termination on September 17, 2002. At the time that Plaintiff was hired by The Carnegie, he had been a long-term employee of the Housing Authority of the City of Pittsburgh ("HACP"), having worked there approximately eighteen and a half (18-1/2 ) years as of April, 2001. At HACP, Plaintiff held the position of Director of Maintenance, which was a "senior level management" position in which Plaintiff had overall responsibility for maintenance throughout the HACP.

Prior to his employment with The Carnegie, Plaintiff and Terrence O'Horo ("O'Horo"), Vice President and Treasurer of The Carnegie, met for lunch on several occasions to discuss Plaintiff's potential employment in the General Services Department of The Carnegie. O'Horo indicated that The Carnegie was considering Plaintiff for the position of Director of General Services.

During their second meeting, O'Horo informed Plaintiff that he had hired an in-house candidate, Larry Armstrong ("Armstrong"), as the Director of General Services and asked Plaintiff if he would be interested in the position of Assistant Director. Plaintiff "thought about it for a minute" and then asked why he had not been considered for the Director's position. O'Horo informed Plaintiff that the Director would handle special projects and that Plaintiff "would handle everything else," which included supervision of the day-to-day operations of the building trades, the security department, and the custodial department. In response, Plaintiff informed O'Horo that he would consider such a position only if he was assured that if he was hired he would be given broad authorities and prerogatives to improve the Department of General Services, similar to the authority and discretion that he had in his current position of Director of Maintenance with the HACP. Plaintiff also informed O'Horo that he would not leave his secure position at the HACP, unless the position with The Carnegie was equally secure and "long term." O'Horo assured Plaintiff that the Assistant Director's position was "long term" and that if Plaintiff accepted the position, he could be assured that it was "secure."

Plaintiff had a third meeting with O'Horo, which Armstrong also attended. At this meeting, O'Horo offered the position of Assistant Director to Plaintiff, which Plaintiff eventually accepted.

Plaintiff's first day of work at The Carnegie was July 5, 2001. In July 2001, a meeting with Armstrong, Plaintiff, and the supervisors of the building trades (a group which Plaintiff supervised) was scheduled. However, on the day of the scheduled meeting, Armstrong began the meeting earlier than scheduled and without Plaintiff being present.

Two weeks into his employment with The Carnegie, Plaintiff had a luncheon meeting with Eileen Meddis ("Meddis"), Director of Corporate Resources. At that meeting, Plaintiff told Meddis that he did not think that Armstrong was a "good communicator."

On July 25, 2001, Plaintiff prepared and supplied to Armstrong a "custodial schedule recommendation," which included his "staff recommendations for three custodial shifts." According to Plaintiff, the move to a night cleaning shift was to occur within six months of his date of hire.

On September 24, 2001, Armstrong and Plaintiff met to discuss the coordination of tasks with one another. Armstrong did not criticize Plaintiff's work performance during this meeting; rather, the meeting was a general discussion about work that was being performed within the General Services Department.

On September 26, 2001, Plaintiff had an appointment with Saul Silver, M.D., his treating physician. Plaintiff was diagnosed with aortic stenosis, for which Dr. Silver recommended that Plaintiff undergo heart surgery. After the medical appointment, Plaintiff informed Armstrong that he would need to have heart surgery sometime in November, 2001.

On November 9, 2001, prior to commencing his medical leave, Plaintiff met with Armstrong and told him that African-American employees within the Custodial Department were being discriminated against on the basis of their race and/or that such employees had made credible complaints to him about such discrimination. (Complaint, at ¶ 8.) Upon hearing this, Armstrong became visibly angry and was red in the face.

Following surgery, Plaintiff was off work for three months, from late-November 2001 through February 4, 2002. At the time of his surgery, Plaintiff had exhausted his paid time off, including both vacation and sick leave, and was ineligible for FMLA leave. However, Armstrong and O'Horo agreed to advance vacation and holiday days to Plaintiff for each month that he was off so that he would be considered to "have worked" a day in each month, thereby remaining eligible for employer-paid health care benefits.

Plaintiff returned to work on February 4, 2002, without any restrictions. Upon his return, Plaintiff contends that "without any prior warning, notice or written documentation, he was stripped of his duties as the Assistant Director of General Services and reduced to serving as a supervisor in the Custodial Department." In that position, Plaintiff did not have any authority, discretion, or prerogatives such as had been promised him by O'Horo.

In early February 2002, Armstrong met with Plaintiff and provided him with a list of assignments he expected Plaintiff to complete. During this meeting, Armstrong also expressed concern that a "number of people" had questioned Plaintiff's trustworthiness. When Plaintiff asked Armstrong to identify any of the persons who had questioned ...

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