The opinion of the court was delivered by: Judge Vanaskie
Presently before the Court in this employment discrimination action is a Motion for Summary Judgment filed by Defendants Luzerne County Head Start, Inc. ("Head Start"), Lynn Evans Biga, and Marion Sod (collectively "Defendants"). (Dkt. Entry 35.) Plaintiff Mary Holocheck alleges that Defendants terminated her employment with Head Start on account of age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. Ann. §§ 951-963. This Court has jurisdiction over the ADEA claim pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 626(c)(1), and supplemental jurisdiction over the PHRA claim pursuant to 28 U.S.C. § 1367(a). For the reasons that follow, Defendants' summary judgment motion will be granted in part and denied in part.
Ms. Holocheck was hired by Head Start on September 4, 1984, as a teacher's aide, a position she held until 1988, when she became a teacher. (Defs.' Statement of Material Facts ("Defs.' SMF"), Dkt. Entry 35-7, ¶ 2.) Ms. Holocheck was a teacher at the Nanticoke Center of Head Start. As part of her duties, Ms. Holocheck was responsible for maintaining the hygiene of the children she taught, which included changing their diapers when necessary. (Dep. of Mary Holocheck ("Holocheck Dep."), Ex. to Pl.'s Mem. of Law in Opp'n to Defs.' S.J. Mot., Dkt. Entry 37-2, at 83, 95.)*fn1 At the time of her termination in October 2002, Ms. Holocheck was 56 years old. (Compl., Dkt. Entry 1, ¶ 9.)
Head Start is a non-profit corporation organized pursuant to 42 U.S.C. § 9836. "[Head Start is] a comprehensive family and preschool program for children and families who are of low income or have disabilities," and it provides child care and educational services to these children, who generally are three and four year olds. (Dep. of Lynn Evans Biga ("Biga Dep."), Ex. to Pl.'s Mem. of Law in Opp'n to Defs.' S.J. Mot., Dkt. Entry 37-4, at 11, 13.) At all relevant times, Ms. Biga was the Executive Director of Head Start, and Ms. Sod was the Manager of the Nanticoke Center. (Defs.' SMF ¶ 3.)
Ms. Holocheck's day was divided into a morning session and an afternoon session, with different children in each session. Ms. Holocheck had two assistant teachers working with her, one for each session. (Dep. of Susan Petroski ("Petroski Dep."), Ex. to Pl.'s Mem. of Law in Opp'n to Defs.' S.J. Mot., Dkt. Entry 37-3, at 10.) Her assistant teacher for the afternoon session was Susan Petroski. (Id. at 10-11.)
At the end of the afternoon session, Ms. Holocheck and Ms. Petroski would retrieve the children's belongings and gather them in a line to prepare for dismissal. (Holocheck Dep., at 63; Petroski Dep., at 12.) Many of the children were transported to and from school by bus. The school bus driver, Jill Viti, would come into Ms. Holocheck's classroom and, with either Ms. Holocheck or Ms. Petroski, would lead the children out to the bus where they were safely buckled into their seats, attendance was taken, and the bus would depart. (Holocheck Dep., at 63-64; Petroski Dep., at 12-14.) Ms. Viti was employed by Churnetski Transportation, a business that provides transportation services to Head Start. (Aff. of Jill Viti ("Viti Aff."), Ex. C to Defs. S.J. Mot., Dkt. Entry 35-3, ¶¶ 2-3; Holocheck Dep., at 66.)
The alleged misconduct that was the basis of Ms. Holocheck's termination occurred on October 3, 2002. At the conclusion of the afternoon session, Ms. Holocheck and Ms. Petroski were preparing the children for their departure. Ms. Viti entered Ms. Holocheck's classroom, and she was approached by Ms. Holocheck, who stated: "Austin sh-- his pants. He came in like that and that's the way he's going home." (Viti Aff. ¶ 4.) Austin was a student in Ms. Holocheck's afternoon class. (Petroski Dep., at 16.) Ms. Viti said nothing at the time, but instead led the children out to the school bus as she normally would, and departed. (Id.)
Ms. Holocheck denies that she made this statement to Ms. Viti, (Holocheck Dep., at 64-65), and there is no evidence that Austin actually departed Head Start with soiled pants. Furthermore, Ms. Petroski was present in the classroom when Ms. Viti arrived, and she neither overheard this alleged statement by Ms. Holocheck nor noticed anything unusual about Austin prior to his departure. (Petroski Dep., 15-17.)
The next day, October 4, 2002, Ms. Viti reported Ms. Holocheck's statement to Sharon Hess, (Viti Aff. ¶ 5.), who informed Ms. Biga and Ms. Sod. (Holocheck Dep., at 59.) According to Ms. Holocheck and Ms. Viti, Ms. Holocheck called Ms. Viti around 1:30 p.m. on October 4. (Id. at 75, 77; Viti Aff. ¶ 6.) Ms. Holocheck had just learned of the allegations against her and wanted to find out what Ms. Viti knew. (Holocheck Dep., at 75.) Ms. Viti stated that she "replied that I had not said anything out of fear that [Ms. Holocheck] would retaliate against me in some fashion." (Viti Aff. ¶ 6.)
Ms. Biga described Ms. Holocheck's alleged misconduct -- knowingly placing a child on a school bus with soiled diapers -- as a "Class I" offense. (Biga Dep., at 108.) Pursuant to the Head Start employee manual, employee misconduct is classified into three grades -- "Class I," "Class II," and "Class III" -- and a Class I offense is the most serious. (Id. at 108-09.)
The employee manual enumerates examples of employee misconduct for each of the three categories of offenses, but the list is not exhaustive because Head Start has discretion to discipline employees for misconduct not appearing on the list. (Id. at 107-08.) The particular discipline to be meted out for a Class I offense ranges from suspension to termination, and an investigation of the alleged offense is necessary to determine an appropriate punishment. (Id. at 109-10.) Ms. Biga is the person ultimately responsible for deciding the appropriate punishment for a Class I offense. (Id. at 110.)
There is little evidence revealing what, if anything, constituted Ms. Biga's investigation. The record does indicate that Ms. Petroski was never questioned about the events of October 3, including whether she heard Ms. Holocheck utter the alleged statement to Ms. Viti. (Petroski Dep., at 15-16.) Ms. Petroski also testified that Austin's grandmother did not report a problem with Austin to her. (Id. at 17.) Furthermore, there is nothing in the record to suggest that Ms. Biga attempted to confirm Ms. Viti's accusation by contacting Austin's grandparents to ask whether he in fact returned home with soiled pants. Nevertheless, Ms. Biga determined that Ms. Holocheck's alleged misconduct was a Class I offense. (Biga Dep., at 108.) As for the appropriate punishment, Ms. Biga consulted with Ms. Sod. (Id. at 110-11.) She testified, however, that she did not come to a final decision until October 10, 2002, when she met with Ms. Holocheck. (Id. at 96.)
Ms. Holocheck was terminated on October 10, 2002, after a meeting with Ms. Biga and Ms. Sod. (Defs.' SMF ¶ 14; Biga Dep., at 93.) She was given the opportunity to resign, but refused. (Biga Dep., at 93.) The basis for the termination was "[n]eglect of the children." (Id. at 96.) Ms. Biga felt that sending a child home with soiled pants was neglectful. (Id.) Ms. Holocheck's termination was formally approved at a meeting of the Head Start Board of Directors on October 17, 2002. At the meeting, Ms. Biga identified the basis for termination as "willful neglect of children," although she could not explain what caused her to modify the phrase from "neglect" to "willful neglect." (Id. at 121.)
Ms. Holocheck was replaced by a younger worker, Denise Reimshaw. (Holocheck Dep., at 69.)*fn2 Ms. Reimshaw was eventually replaced by Joann Stuchur. (Id. at 69-71.) Ms. Holocheck testified that Ms. Stuchur is 22 or 23 years old. (Id. at 72.) However, she has no personal knowledge of Ms. Stuchur's age, but instead based her testimony from what she was told by parents who had children in Ms. Stuchur's class. (Id.)
Irrespective of Ms. Biga's reasons for the termination, Ms. Holocheck believes that she was terminated because of her age. In addition to being replaced by a younger worker, Ms. Holocheck refers to a statement of Ms. Biga, either during the October 10, 2002, meeting, or in a subsequent letter memorializing the termination. (Id. at 43-44.) Ms. Biga stated that, "I ha[d] been in the Nanticoke Center and with Head Start for a long, long time, from when the Nanticoke Center had first opened, and I was one of the older people." (Id. at 43.) Under the circumstances, Ms. Holocheck interpreted this comment as relating to her age, rather than her experience. (Id. at 43-44.)
Ms. Holocheck identified other comments spoken by Ms. Biga and Ms. Sod. She could not recall exactly when the comments were made and, in many instances, could not provide the context for a specific remark. She was certain that the comments occurred within the two-year period prior to her termination. (Id. at 24.) Many of the comments are facially neutral and do not concern age. Some of the remarks, however, do refer to age. For example, upon returning from summer vacation at the start of the school year, Ms. Biga said, "Nice to see an old timer return." (Id.) On another occasion, Ms. Biga noted Ms. Holocheck's new hair color and suggested it was an attempt to conceal her age. (Id. at 26.) Ms. Biga also commented, "[G]ee, time is just ticking away for you." (Id. at 109.) Ms. Sod made similar remarks. (See, e.g., id. at 28 ("Are you having a senior moment[?]"); id. at 109 ("[O]ld age is setting in.").)
Ms. Holocheck acknowledged that she was not offended by some of the comments by Ms. Biga and Ms. Sod, nor did she utilize the procedures in the employee handbook to complain about the comments. (Id. at 27, 33, 94-95.) She explained that she "loved" her job and was dedicated to working with the children. (Id. at 27.) On the other hand, Ms. Holocheck's "feelings [were] hurt" when Ms. Sod asked if she had a problem using the stairs, although this comment appears to be age-neutral. (Id. at 29.) She also testified that she never heard Ms. Sod make similar comments to other employees. (Id. at 110.)
In addition to the comments of Ms. Biga and Ms. Sod, Ms. Holocheck recalled an incident where another teacher, who may or may not have been under the age of forty at the time, (compare id. at 45, with id. at 46), was treated differently in connection with disciplinary action. (See id. at 45-46.) Linda Gittens was a teacher at the Nanticoke Center, where Ms. Holocheck taught. (Id. at 45.) Ms. Gittens had taken her class out for a walk but, unbeknownst to her, had left a child behind unattended on the second floor of the building. (Id. at 45-46.) The child ventured downstairs to Ms. Holocheck's classroom, where the child remained until Ms. Gittens returned with her class. (Id. at 46.) Ms. Holocheck was concerned that the child could have fallen out a window or wandered out the front door of the school building and into the path of oncoming traffic. (Id.) Leaving a child unattended is an enumerated Class I offense. (Biga Dep., at 109.) Ms. Gittens was suspended for one day without pay. (Holocheck Dep., at 46.)
Subsequent to her termination, Ms. Holocheck made no effort (i.e., reading classified ads or making inquiries) to secure substitute employment, either within or outside her field. (Id. at 10-12; Defs.' SMF ¶ 16.) She explained that it would be difficult to obtain another teaching position because of her termination at Head Start. (Holocheck Dep., at 10.) She testified that she would need a reference before any employer would hire her, and she assumed that Head Start would provide a negative reference to a prospective employer. (Id. at 10-11, 85.)
Ms. Holocheck, however, never actually applied for any position, and therefore has no knowledge of what a potential employer would require, if anything, in terms of references. (Id. at 10-11.) Furthermore, Ms. Holocheck could not recall ever being informed by someone associated with Head Start that it would provide a negative reference in response to an inquiry from a prospective employer. (Id. at 11.) She also stated that she is not interested in employment outside of teaching because she wants to remain in this particular field, rather than engage in a line of work for which she does not have training or experience. (Id. at 12.) Additionally, she did not apply for employment outside her field because she assumed those prospective employers would require a reference. (Id. at 85.) Once again, she never tested the accuracy of her assumption. (Id.) She indicated that she still wants to teach children. (Id. at 108-09.)
Although Ms. Holocheck did not proactively seek substitute employment, she worked for two to three months over the summer of 2003 for Haystacks. (Id. at 9-10, 15.) It appears from the record that Haystacks is a restaurant. (See id. at 16.) The hours worked each week varied because she was "on call." (Id. at 10.) She testified that she never sought this position; she did not learn of an opening after a search of the classified ads nor did she go to the business itself and inquire about an opening. (Id. at 15-16.) Instead, someone, maybe a friend, mentioned to her in a conversation that the friend would be going on vacation and needed to find a replacement. (Id. at 16.) The record is clear that the job did not involve teaching or working with children, and Ms. Holocheck was not looking for other employment during her brief tenure at Haystacks.
In response to Ms. Holocheck's fear about a negative employment reference, Ms. Biga stated that Head Start has a "neutral reference policy." (Aff. of Lynn Evans Biga in Supp. of Defs.' S.J. Mot. ("Biga Aff."), Dkt. Entry 35, ¶ 7.) According to Ms. Biga, this means that Head Start "provide[s] dates of employment and title and nothing more absent the prior employee's authorization." (Id.) Defendants also submitted a computer printout that purports to list all of the "child care centers in Luzerne County" that employ individuals possessing the same credentials as Ms. Holocheck. (Id. ¶ 2.; Ex. A to Defs.' S.J. Mot., Dkt. Entry 35.) The printout, however, does not inform the reader as to its source; its timeliness; the terms, conditions, compensation, and benefits of each position; or whether any of the positions are actually open.
Ms. Holocheck filed a three-count Complaint with this Court on September 20, 2004. (Dkt. Entry 1.) Count One alleged that Defendants, including Ms. Biga and Ms. Sod, violated the ADEA when they terminated Ms. Holocheck's employment due to her age. Count Two asserted a related claim under the PHRA arising from the same conduct. Count Three was brought under 42 U.S.C. § 1983 and alleged that Ms. Holocheck's termination violated her constitutional rights as well rights extended to her by federal regulations. Defendants filed a motion to dismiss, which the Court granted to the extent of Ms. Holocheck's ADEA claim against Ms. Biga and Ms. Sod and her § 1983 claim, but denied the motion in all other respects. (See Memorandum and Order of August 30, 2005, Dkt. Entry 32.) Defendants have yet to file an Answer to the Complaint.
On October 3, 2005, Defendants filed their summary judgment motion. (Dkt. Entry 35.) The motion has been fully briefed by the parties, (Dkt. Entries 35-5, 35-6, ...