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Kranch v. Tamaqua Area School District

December 7, 2009


The opinion of the court was delivered by: A. Richard Caputo United States District Judge



Presently before the Court is the Motion for Summary Judgment of Defendant Tamaqua Area School District ("The District"). (Doc. 24.) For the reasons provided below, Defendant's motion will be granted. This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1367.


Plaintiff Blair T. Kranch ("Kranch") worked as a full-time employee at the Tamaqua Area School District from 2002 until 2007. (Makuta Aff. ¶2.) From 2002 to 2006, Kranch worked primarily in the cafeteria, but then assumed the position of groundskeeper. (Kranch Dep. 7:15-8:14, Nov. 13, 2008.) Kranch says that the change in positions was simply because there was an opening (Kranch Dep. 8:18-19); Carol Makuta, who was the assistant superintendent and later the superintendent of the District during Plaintiff's employment, claims that this change occurred to ensure that Kranch would have less interaction with people, due to his conflicts with co-workers and supervisors. (Grievance Hr'g Tr. 67-69, Jan. 9, 2008.)

On August 12, 2004, Kranch received a letter from Michael Melnick, the District's Buildings and Grounds Supervisor, censuring Kranch for failing to "report off" in a timely manner. (Doc. 25, Ex. 5.) That letter also stated that a review of the Plaintiff's record revealed several other similar occurrences and warned that "further unsatisfactory practices can and will result in future disciplinary action." (Id.)

On February 14, 2005, Kranch received a letter from then-Assistant Superintendent Makuta, in which she found that Kranch "interfered with the orderly operation of the cafeteria . . . walked away from [his] work responsibilities without properly reporting to [his] immediate Supervisor, Mrs. [Kristin] Melnick," and failed to amend his time sheet. (Id.) During the subsequent investigation of this incident, Kranch acted in a "defiant, insubordinate, disrespectful and disorderly" manner and "declared continued insubordination regarding [his] Supervisors' recommendations." (Id.) As a result, then-Superintendent Frederick T. Bausch suspended Kranch for one day without pay.

On April 20, 2005, Bausch wrote two (2) letters to Kranch. The first regarded a meeting on April 14, 2005 to discuss Mr. Kranch's failure to "call off" properly again. (Doc. 25, Ex. 5.). The second letter was a written reprimand for a threatening comment that Kranch made to a co-worker. (Id.) On May 4, 2005, Bausch wrote a letter informing Kranch that he would be suspended for three (3) days without pay for failure to "follow established procedures to report your absence from work." (Id.) On June 7, 2005, Bausch again wrote Kranch a letter for failing to submit the proper documentation necessary to take a valid medical leave, and informing Kranch that the days he missed would be charged to his time under the Family & Medical Leave Act because Kranch had already used all of his allocated leave days for the year. (Id.)

On March 24, 2006, Mr. Melnick wrote Kranch a letter reprimanding him for using angry, threatening, and aggressive language toward a co-worker, who Kranch later approached in a threatening manner and reportedly challenged the co-worker to "get it over with now." (Doc. 25, Ex. 5.) Again, on September 12, 2006, Makuta wrote Plaintiff a letter regarding his threatening and hostile behavior. (Id.) She noted that the District had previously addressed Kranch's behavioral problems and offered him resources to help understand the District's policy regarding verbal abuse. (Id.) Kranch was suspended for five (5) days and "advised that further repeat of this behavior may result in [his] termination."

On March 27, 2007, Makuta wrote Mr. Kranch another letter, around which much of this litigation is centered. This letter was a summary of a meeting that took place between Kranch, Makuta, Mr. Melnick, and Bruce Gottstein, the president of the union for custodial workers, on March 15, 2007. (Doc. 25, Ex. 5.) This meeting concerned Mr. Kranch's locking of a loading dock door on five occasions,*fn1 which interfered with the routine of another day shift custodian, a report that he had followed second-shift night custodians after they left work, that second-shift custodians had placed cardboard over the windows because Kranch was reportedly peering in on them while they worked, that he had reportedly stated that some of his co-workers performed fellatio on Mr. Melnick and then pantomimed that act, and other potentially threatening or abusive statements made by Kranch. (Id.) Makuta's letter informed Kranch that he was suspended without pay and that she planned to discuss his continued employment with the School Board on April 10, 2007. (Id.). Mr. Kranch was informed that he had the right to be present at this "Executive session," to legal counsel, to request in writing that the matter be discussed at an open meeting, and that, if he so requested, Mr. Kranch would be entitled to a due process hearing in front of the Board of Directors. (Id.)Mr. Kranch was notified by letter on April 11, 2007, that the School Board had determined that his conduct provided a valid cause for dismissal and was terminated. (Id.)

Also in March of 2007, Mr. Kranch reported to Assistant Superintendent Wayne Brookhart that Mr. Melnick was engaged in a consensual sexual relationship with another employee of the District, Debbie Kamant. (Kranch Dep. 15:3-18:22.) Makuta pursued an investigation of this relationship because she felt that something inappropriate might be taking place, despite the District's lack of a written policy regarding sexual relationships in the workplace. (Makuta Dep. 12:7-17, May 21, 2009.) Makuta was concerned due to Mr. Melnick's position as Ms. Kamant's supervisor. (Makuta Dep. 12:18-12:23.) Ultimately, Makuta determined that the relationship was consensual and did not have conclusive information to make a judgment that the relationship was appropriate. (Makuta Dep. 13:1-13:21.) According to Makuta, the District was already looking into the relationship between Kamant and Melnick when Plaintiff reported it to Brookhart. (Makuta Dep. 26:11-15.)

In his deposition, Mr. Kranch testified that he filed two Workers' Compensation claims for injuries to his rotator cuff incurred during two heavy snowstorms in the early part of 2007. (Kranch Dep. 24:13-26:9.) These claims ultimately settled for a sixty thousand dollar ($60,000) lump sum. (Kranch Dep. 26:16-27:7.) It is unclear precisely when Mr. Kranch filed these claims from the record, but he testified that it was approximately one or two weeks before he was terminated. (Kranch Dep. 25:22-26-1.) Makuta states that, as of the suspension on March 27, 2007, Kranch had not submitted the information to make an official report of a work injury as memorialized in a letter dated April 2, 2007. (Makuta Aff. ¶ 5; Doc. 25, Ex. 5.) Plaintiff also testified that it was, in fact, Ms. Makuta who told him to keep the loading dock door shut. (Kranch Dep. 35:17-22.) Mr. Kranch also denies miming the act of fellatio, but admits to saying that his co-workers "kissed asses." (Kranch Dep. 36:24-37:6.)

At the grievance hearing following his termination, Kranch testified that he had not improperly followed the second-shift custodians, but was instead invited by his on-and-off girlfriend, Jeanie Azbell, to follow her home; Azbell was working as a second-shift custodian on the night in question. (Grievance H'rg Tr. 94, 109.) He also stated that he was not peering in the window at the second-shift custodians because there would have been no need to, as he had a key to the building. (Grievance H'rg Tr. 105.) According to Judy Coleman, another second-shift custodian, the cardboard had been put up because Azbell requested it after Kranch had beaten Azbell. (Grievance H'rg. Tr. 52-53.)

Mr. Kranch was born on December 5, 1945; he was sixty-one (61) years old at the time of his termination. Plaintiff was replaced by Bruce Gottstein. (Makuta Dep. 7:1-4). Gottstein was born in October, 1952; he assumed the groundskeeper position previously held by Mr. Kranch on April 17, 2007, when Mr. Gottstein was fifty-four (54) years old. (See Makuta Aff. ¶ 3.) Mr. Gottstein was transferred to a different location on December 7, 2008. (Makuta Aff. ¶ 3.) On April 20, 2009, Ray Kunkel was appointed by the School Board to replace the position held by Gottstein and previously Kranch; at the time he was appointed, Mr. Kunkel was forty-four (44) years old. (Makuta Aff. ¶ 4.) In her deposition, Makuta testified that, at that time, she was not sure of Gottstein's age and that Mr. Gottstein appeared older than Mr. Kranch to her. (Makuta Dep. 7:8-9:9.)

A Grievance Arbitration Hearing was held on January 9, 2008. (Doc. 25, Ex. 2.) Mr. Kranch was represented by a union attorney during these proceedings, was given the opportunity to cross-examine witnesses, introduce documentary evidence, and present testimony. The relevant contractual provision in the Arbitration was the "just cause provision" which stated that no employee can be "reduced in rank or compensation or deprived of any advantage without just cause." (Doc. 25, Ex. 8). Arbitrator Skonier found that Plaintiff's "conduct went far beyond the bounds of workplace vulgarity. The fact that the [Plaintiff] has such a poor disciplinary record and had been afforded opportunities to correct his behavior, yet did not do so, left the District with little recourse. Based on a review of all the credible evidence of record, the District demonstrated just cause for its actions." (Doc. 25, Ex. 8.) As a result, Kranch's termination was upheld.

Plaintiff filed his Complaint in the Court of Common Pleas of Schuykill County; Defendant filed a notice of removal. (Doc. 1.) An Amended Complaint was filed on February 15, 2008. (Doc. 7.) This Complaint alleged violations of the Age Discrimination in Employment Act of 1967 (ADEA) based on a disparate treatment theory (Count I), violations of the ADEA based on disparate impact (Count II), unlawful retaliation by the District based on Plaintiff's filing of a Workers' Compensation claim (Count III), violations of the Pennsylvania Whistleblower's Act (Count IV), violations of the Pennsylvania Human Relations Act (PHRA) (Count V), and violations of 42 U.S.C. § 1983 based on procedural due process and equal protection (Count VI).*fn2 Defendant filed a motion for Summary Judgment on July 15, 2009. (Doc. 24.) This motion has been fully briefed and is now ripe for disposition.


Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Id. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id.

Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the Court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256-57.

The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.


1. ADEA: Disparate Treatment

The ADEA provides: "It shall be unlawful for an employer . . . to discharge an individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age . . . ." 29 U.S.C. § 623(a). ADEA plaintiffs may establish a cause of action by demonstrating disparate treatment. Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 300 (3d Cir. 2004). Moreover, in such instances, proof of discriminatory intent is a crucial component. Id. at 300 (citing Hazen, 507 U.S. at 610)). ADEA plaintiffs with only indirect evidence of discriminatory intent claiming disparate treatment must proceed under the McDonnell Douglas burden-shifting framework. Id. In the instant matter, Plaintiff offers ...

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