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Potoski v. Wilkes University

February 12, 2010


The opinion of the court was delivered by: Judge Vanaskie


Pending in this employment discrimination lawsuit is the Motion for Summary Judgment of Defendant Wilkes University ("Wilkes"). (Dkt. Entry 46.)*fn1 Plaintiffs Joseph Potoski, James Monsuer, Richard Chabala, Joseph Bokar, Joseph Pace, and Patrick O'Donnell were employed by Wilkes in a campus security capacity until they were terminated on July 7, 2003. Claiming their termination was due to their age, Plaintiffs filed a complaint in this Court asserting Wilkes violated the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Stat. Ann. § 951,*fn2 et seq. (Dkt. Entry 1.)*fn3 Wilkes denies Plaintiffs' allegations, contending that Plaintiffs' positions were eliminated as a result of the reorganization of the Security Department into the newly created Public Safety Department. For the reasons that follow, Wilkes' motion will be denied.


In 1947 Wilkes College received its charter as a four-year liberal arts college, and in 1990 it attained its status as a University. (Def.'s Statement of Material Facts ("DSMF"), Dkt. Entry 48, ¶ 1.) Plaintiffs Potoski (age 54),*fn5 Monsuer (age 47),*fn6 Chabala (age 56), Bokar (age 45),*fn7 Pace (age 50), and O'Donnell (age 50) were hired between November 1990 and September 2001 as "Security Persons." (DSMF, ¶¶ 2-7.) Plaintiffs were labeled "Public Safety Officers" at the time of their termination on July 7, 2003. (Pltfs.' Counter Statement of Material Facts ("PSMF"), Dkt. Entry 54, ¶¶ 2-7.)

In 2000, Wilkes engaged the services of The Oxford Group to study various aspect of its operations. The Oxford Group issued on September 1, 2000, a draft "Report and Recommendations Concerning the Analysis of the Contracting/Purchasing, Risk Management and Security Departments of Wilkes University" ("Oxford Group Report"). (DSMF, Ex. "J".) The goal of the Oxford Group Report was to achieve "cost-effective improvements in service in [the above-mentioned] departments . . . [and] examine these areas to determine whether these departments are fulfilling their duties to the University community." (Id. at 1.) Under the recommendations heading, The Oxford Group Report stated that most academic communities employ "the much broader term Campus Safety as opposed to security. This is not merely a change in terminology but rather, an expansion of the role of this department." (Id. at 13.) The report, inter alia, noted the lack of oversight in the daily functioning of the security department and the large gaps in time between the security officers' rounds. The report also observed that it was unclear what the Chief of Security accomplished throughout any given day, and training of security personnel needed to be expanded so that they could be up to date on CPR. (Id. at 13-14.)

In February 2002, Wilkes hired Scott Byers as its Vice president of Finance and Support. (DSMF, ¶ 16.) According to Wilkes, and vigorously disputed by Plaintiffs, Byers was directed to evaluate and reorganize various departments, including the Security Department. (Id.)

In the Spring of 2002, Wilkes commissioned a Campus Services Study. (Id., Ex. "L".)

The Campus Services Study was part of Wilkes' initiative to develop an "exceptional support environment for students, faculty, and staff." (Id., Ex. "L", at Wilkes-0416.) Campus Security was one of twelve campus services surveyed by the faculty, staff, and students. (Id. at Wilkes-0418.) Overall, the respondents' experience with Campus Security was excellent (20.2%), good (40.0%), average (25.9%), fair (8.8%), and poor (5.1%). (Id. at Wilkes-0528.) A number of comments regarding Campus Security, some favorable and others disparaging, were posted as part of the survey. (Id. at Wilkes-0529-Wilkes-0534.)

In October 2002, the Oxford Group conducted another study for Wilkes, titled the "Results of a Survey of Comparably Sized College Security Departments." (Id., Ex. "M".) The purpose of the study was "to learn how other colleges and universities are reacting to the demands on today's campuses in order to help officials at Wilkes University design its new security department." (Id.) This study noted that Wilkes had started implementing some of the recommendations in the September 2000 Oxford Group Report, including searching for a new head of the Security Department. (Id. at Wilkes-5945.) The October 2002 Report also stated that Wilkes was "looking to upgrade the professional level of the department personnel, and possibly create a 'career ladder'" for officers in this field. (Id.) Three institutions, Misericordia, Muhlenberg, and York Colleges, participated in the survey. (Id. at Wilkes-5946.)

In September 2002, Wilkes hired Christopher Bailey as the Director of Public Safety. (DSMF, at ¶ 22.) Bailey held the title of Director throughout all pertinent times in 2002 and 2003. (Id., Ex. "N", Bailey Depo. at 8:2-14.) Mr. Bailey reported to Mr. Byers. (Id. at 7:17-18; 10:24-11:3.) Bailey's duties and responsibilities were to "oversee the operations of the Public Safety Department, which included the traditional security operations . . . ." (Id. at 8:15-20.)

According to Mr. Bailey, "some time in the neighborhood of the end of May or beginning of June[] 2003[,]" Mr. Byers decided to terminate all of the security officers on July 7, 2003. (Id. at 17:15-21.) Responding to questioning about his discussions with Byers concerning the terminations, Bailey stated:

Basically, I went over what steps we had already taken to try to move the department, to enhance the department in the eyes of the community, what had already occurred from the time of my hiring until that point, and we reviewed the fact that it didn't seem to be effective. (Id. at 18:24-19:8.) Bailey testified that before and after July 7, 2003, Plaintiffs' titles were "public safety officer[s,]" as "[w]e" were attempting to move away from "the term 'security guard'" . . . .(Id. at 38:19-39:5.)

On July 3, 2007, Plaintiffs were required to attend a meeting for all Public Safety Officers. (PSMF, Ex. "19".) At this meeting, all Public Safety Officers were informed that their positions were being eliminated,*fn8 but that they could apply for the "newly created" position of PSO 1.*fn9 (See Pltfs.' Compl. ¶¶ 66-7; Def's. Answer ¶¶ 66-7.) All officers were provided with a general release which they were instructed to sign. (See, e.g. PSMF, Ex. "9", Chabala Depo. 70:17-71:8.) Also, according to Plaintiffs, they were instructed to return their equipment, and immediately leave the premises of the campus. (Id. at 71:10-15.)

On July 8, 2003, interviews commenced for those who reapplied.*fn10 (DSMF, ¶ 31.) Chris Bailey, Matthew Yencha, Michael Malkemes, and Gerald Rebo interviewed the candidates. (PSMF, ¶ 32.) Wilkes claims, and Bailey testified, that each interview consisted of a set criteria, and the applicants were ranked against each other. (Id. at ¶ 32, Bailey Depo. 141:2-7, 142:10-143:5.) Plaintiffs, on the other hand, argue that former employees were interviewed using a PSO interview data sheet, but the same data sheet was amended for other applicants to include an additional five point "modifier" which permitted the interviewers to add points based upon their overall reaction. (PSMF, ¶ 32.) Bailey testified, however, that only after the initial interview rounds and the rehiring process, around August or September 2003, were the modifications made. (Bailey Depo. 158:2-159:7.)

The following persons, with their ages listed parenthetically, were hired for the position of PSO 1: Scott Howell (18), Donald Bly (21), Brandon Conway (22), Steven Scoble (23), Shawn Partington (24), Leah Senese (27), Paul Walsh (27), Thomas Gernhart (28), Philip Miller (28), Jennifer Klebetz (36), Francis McGrady (36), Daniel Yeager (36), Patrick Coyne (39),*fn11 and Ronald Rebo (55).*fn12 Thus, out of the fifteen terminated security officers, only three (Howell, Coyne, and Ronald Rebo) were rehired. Besides Ronald Rebo, and possibly Patrick Coyne, all of the newly hired PSO 1 officers were under the age of 40.

Plaintiffs' expert, Richard Nardone, in a report dated January 28, 2008, concluded that "age played a significant role in the adverse employment action by Wilkes against [Plaintiffs] and that the June 2003 PSO-1 job description and July 7th reorganization of the department was a pretext for unlawful age discrimination." (PSMF, Ex. "17" ("Nardone Report") at 2.) Nardone asserts that Plaintiffs had been satisfactorily performing their work according to their performance reviews, and "had Wilkes not changed the job description the preceding month, [Plaintiffs] would not have been dismissed." (Id. at 1.) Comparing the job descriptions that were in place before June 2003 with the change in job description effectuated in June, 2003, the report stated that there were no material differences between the two. (Id.) For the differences between the positions, such as "riding a bike for an extended periods of time, ability to run short periods, and good oral and written communication skills, management offered no quantitative measurable performance standards that needed to be met." (Id.)

Regarding the department reorganization, Nardone opines that "reorganization of the department did not take place, at least to the extent that [Plaintiffs] would be impacted." (Id. at 2.) Instead of a department reorganization, the Nardone report declares the July 7, 2003, meeting was to announce a revised job description, sever all security employees, and pronounce the opportunity to reapply for the PSO 1 position. (Id.) Further, the report asserts that the release from liability was not effective, the failure to rehire the three Plaintiffs who applied pointed to "a prima facie case of age discrimination[,]" and the PSO 1 job description and reorganization meeting were "pretext[s] for unlawful age ...

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