The opinion of the court was delivered by: will be granted. Lisa Pupo Lenihan United States Magistrate Judge
Plaintiff, David L. Wilson, bring this employment discrimination and civil rights action pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621-34 (ADEA), Title VII of the Civil Rights Act of 1964, 42 U.S.C. " 2000e to 2000e-17 (Title VII), and 42 U.S.C. § 1983 against the Defendant, Northern Westmoreland Career & Technology Center ("NWCTC"). He alleges that, when NWCTC terminated his employment as an automotive technology instructor on January 18, 2008, it discriminated against him on the basis of his age (55), gender (male), race (white), and protected First Amendment speech and union activity, and further that it denied him due process of law.
Currently pending for resolution is a motion for summary judgment, brought on behalf of the Defendant. For the reasons that follow, the motion will be granted.
Plaintiff is a white male with a year of birth of 1952. (Compl. ¶ 4.)*fn1 NWCTC provides vocational training to students in grades 10-12 from four school districts in Westmoreland County and is governed by the Joint Operating Committee of Northern Westmoreland Area Vocational-Technical School ("JOC"), which conducts regular meetings. (NWCTC 1157.) *fn2
NWCTC draws students from four school districts: Kiski Area, Burrell, New Kensington-Arnold and Franklin Regional. The JOC is composed of two members from each school district. (Kiefer Dep. at 7.)*fn3
Kurt Kiefer ("Kiefer") is the current Director of the NWCTC and has been in that position since November 2007. (Kiefer Dep. at 4.) Kiefer was the Director at the time of Plaintiff‟s termination. (Wilson Dep. Ex. E.)*fn4 Kiefer‟s duties and responsibilities include the day-to-day running of the school, working on the budget, curriculum, disciplining of students and other administrative-type duties. (Kiefer Dep. at 4-5.) Coleen Steim ("Steim") is the Business Manager of NWCTC and has been in that position since 2003. (Steim Decl. ¶ 2;*fn5
Kiefer Dep. at 5.) Bruce Paul was the Executive Director of the Westmoreland Intermediate Unit and NWCTC‟s Chief School Administrator prior to 2003 until October 2007. (Steim Decl. ¶ 4.) Paul‟s assistant was Dr. Luanne Matta, who assumed his position of Executive Director upon his retirement. (Leyland Aff. ¶ 13.)*fn6 Marsha Welsh was the Administrative Director of NWCTC from March 2005 through July 2007. (Steim Decl. ¶ 5.)
Plaintiff was originally hired in 1998 to teach automotive technology at NWCTC, became tenured after three years, effective August 2001, and remained as a full-time instructor until his last day of full-time employment with NWCTC, January 18, 2008. (Wilson Dep. at 12-13, 33;*fn7 Wilson Dep. Exs. A, B; Wilson Aff. ¶¶ 18, 73.*fn8 ) He was 45 years old when he was hired by NWCTC and 55 years old when he was terminated. (Wilson Dep. at 41.) Following termination from his full-time instructor position, Plaintiff continued to work at NWCTC on a part-time basis, teaching state safety inspection classes in the evening. (Wilson Dep. at 33-34.) He was not subject to any disciplinary action during his employment with NWCTC. (Compl. ¶ 6.)
Vocational Certificate Requirements
Pursuant to the Pennsylvania School Code, a teacher of vocational training must obtain certain instructional certificates. First, the teacher must obtain a Vocational Instructional I Certificate by having a minimum of two years of wage-earning experience, completing the occupational competency examination, completing 18 credit hours in an approved program and presenting evidence of satisfactory achievement on the assessment of basic skills. 22 Pa. Code § 49.142(a). Then the teacher must complete three years of satisfactory teaching attested to by a chief school administrator, complete 60 credit hours in an approved program, present evidence of satisfactory achievement in assessments of general knowledge and of professional knowledge and practice and complete an approved induction program to obtain a Vocational Instructional II Certificate. 22 Pa. Code § 143. The Pennsylvania Department of Education ("PDE") issues teaching certificates, including Vocational Instructional I and II Certificates. (Wilson Dep. at 27-28; Compl. ¶ 7.) 22 Pa. Code § 141(a).
At the time Plaintiff was hired, the Vocational Instructional I Certificate was valid for seven years, during which time the applicant had to complete the approved preparation program and obtain a Vocational Instructional II Certificate. However, PDE Regulations published September 25, 1999 (effective with Vocational Instructional I Certificates issued after October 1999) changed the number of service years that a Vocational Instructional I Certificate was valid from seven years to six years. (Wilson Dep. at 37-38; Wilson Dep. Ex. G at NWCTC 1008.) 22 Pa. Code § 142(b). See also ECF No. 29 Ex. F ("Level II Certification Commonly Asked Questions and Answers," Question No. 5)
Plaintiff was aware that he had to convert his Vocational Instructional I Certificate to a Vocational Instructional II Certificate. (Wilson Dep. at 19-20, 26-27, 29; Wilson Dep. Ex. C; Wilson Aff. ¶ 21.) He was also aware that he had a certain amount of time after he obtained his Vocational Instructional I Certificate in 2001 to obtain his Vocational Instructional II Certificate. (Wilson Dep. at 37-38.) However, he states that:
I was hired in 1998. PDE regulations and NWCTC Director, Gary Russell, told me that I had up to ten (10) years to complete the vocational program, a vocational certification I and II and internship.
In 1998 new applicants from industry received up to eleven (11) years to complete the vocational program. New applicants received a one (1) [year] Emergency Certificate, which I did not receive, three (3) years on an Intern Certificate, and seven (7) years on a Vocational I certificate, totaling eleven (11) years.
Russell started me on an intern certificate instead of an emergency certificate. This reduced my time to complete the vocational program to just ten (10) years. (Wilson Aff. ¶¶ 18-20.)
NWCTC states that, on August 17, 1998, Plaintiff signed the General Application for Pennsylvania Certificate, which reflected in box 9 that he was applying for an "intern" certification. (NWCTC 0007.) A Vocational Intern Certificate is issued to an instructor who meets certain requirements but does not have a bachelor‟s degree. 22 Pa. Code § 49.151. This certificate is valid for up to three years from its date of issuance. 22 Pa. Code § 49.152.
By letter dated August 17, 1998, Indiana University of Pennsylvania ("IUP") sent a copy of Plaintiff‟s application to NWCTC, at his request. (NWCTC 0005-0009.) The August 17, 1998 letter reflected that Plaintiff "is a candidate for a teaching position at your school." (NWCTC 0005.)
Plaintiff responds that, although he signed the General Application, box 9 was subsequently completed by someone else. He also states that he has no knowledge of the August 17, 1998 letter being drafted or sent. (Wilson Aff. ¶¶ 30-31.) As noted above, he contends that Gary Russell mistakenly applied for him to receive an "intern" certificate, rather than an emergency certificate, which shortened the time he would have to obtain his Vocational Instructional II Certificate by one year. Plaintiff testified that, had he received the "emergency" certificate he would have received an "extra year" "to get acclimated" to teaching. (Wilson Dep. at 59-60; Wilson Aff. ¶ 20.)
NWCTC states that a JOC meeting was held on August 20, 1998, at which
Plaintiff‟s application was considered. (NWCTC 0221.)*fn9
Plaintiff responds that he was told no meeting was held on
that date because of a lack of a quorum. (Wilson Aff. ¶ 32.) Patrick
Leyland, former member of the JOC, states that Plaintiff was actually
hired at the September 1998 meeting, along with Interim Director Dr.
Gary Russell. (Leyland Aff. ¶¶ 1, 19.) Plaintiff‟s employment
agreement with NWCTC is dated September 17, 1998. (Wilson Dep. Ex. A.)
Plaintiff enrolled at IUP in December of 1998 and would have been permitted to begin taking courses in January 1999. (Wilson Dep. at 39-40.)
Plaintiff Obtains Tenure and His Vocational Instructional I Certificate At a JOC meeting on August 16, 2001, NWCTC approved "the Professional Employee Agreement of Dave Wilson, Auto Mechanics Instructor, who has satisfactorily completed three (3) years of employment and now qualifies as a tenured teacher." (Wilson Dep. Ex. B ¶ 20.) He signed the General Application for Pennsylvania Certificate Form PDE 338G on October 17, 2001, and it was then signed by IUP on December 10, 2001. (NWCTC 1467-1468.) The Vocational Instructional I Certificate was issued to him by PDE on December 1, 2001. (Wilson Dep. at 35, 40-41; Wilson Dep. Ex. D.)
IUP records indicate that Plaintiff took 6 credits toward his Vocational Instructional II Certificate in Fall 2003, 3 credits in Spring 2004, 3 credits in Fall 2004, and 3 credits in Fall 2005. The last semester that Plaintiff took any required courses at IUP was Fall 2005. (Wilson Dep. Ex. F at NWCTC 1453.) At his deposition, Plaintiff admitted that he did not take any courses towards his Vocational Instructional II Certificate in 2006 or 2007. (Wilson Dep. at 73-74.) However, in his affidavit, Plaintiff states that he completed the Pennsylvania Auto-Emissions Repair Training Program and Enhanced Emissions Inspector Certification Training Program in 2006 and that he passed the Praxis II exam in 2007. (Wilson Aff. ¶¶ 11, 17.)
In March 2007, PDE audited NWCTC. (Wilson Dep. at 30-31; NWCTC 1476-1493.) PDE‟s Final Report indicates that Plaintiff‟s Vocational Instructional I Certificate would lapse in December 2007. (Wilson Dep. at 30-31; NWCTC 1479.) As discussed in further detail below, the Final Report also noted that John Sterosky (white male with year of birth 1955) and Shawn Grisson (black male with year of birth 1969) had Vocational Instructional I Certificates that were about to lapse, one in June 2007 and the other in July 2007. (NWCTC 1478-1479.) Neither Sterosky nor Grisson obtained a Vocational Instructional II Certificate within the statutory period, and both were terminated by NWCTC. (Wilson Dep. at 20, 22.)
During the audit, it was also discovered that Robert Visk (Dean of Students) was performing a job that he was not certified to perform. (Wilson Dep. at 31-32; NWCTC 1486-1487; NWCTC 1494-1495; Kiefer Dep. at 33-34.) Because Visk was not certified, NWCTC was penalized $6,455.76. (Wilson Dep. at 31-32; NWCTC 1496-1498.)
Requests for Emergency Certificate
NWCTC states that it issued Plaintiff three letters (dated July 15, 2006, March 20, 2007 and June 13, 2007) advising him that his Vocational Instructional I Certificate would expire in January 2008. (Wilson Dep. at 18-19, 28-29; Compl. ¶ 10; Wilson Dep. Ex. C.) Plaintiff responds that he received only the June 13, 2007 letter, which indicated that his certificate would expire in December 2008. (Wilson Aff. ¶ 28.) NWCTC states that this was a typographical error. (ECF No. 28 at 4 ¶ 26 n.6.)
Plaintiff stated at his deposition that he did not recall specifically receiving the July 15, 2006 and March 20, 2007 letters but he was "not denying that [time] was running out. I knew months ahead of time it was running out." (Wilson Dep. at 29; see also Wilson Aff. ¶ 27.)
Plaintiff approached NWCTC Administrative Director Marsha Welsh in June 2007 to request her assistance in obtaining an emergency certificate, but she declined to assist him, stating that she would be leaving her position in the near future. (Wilson Dep. at 19-21, 76; Wilson Aff. ¶ 34.) He testified that the reason he did not enroll in any classes at IUP after his June 2007 meeting with Welsh was financial as he "had two kids in college." (Wilson Dep. at 76-77.) Plaintiff stated that he told former Executive Director Bruce Paul that, in exchange for allowing him time to complete his credits to obtain his Vocational Instructional II Certificate, he would reimburse NWCTC for any monies "lost" through an audit. (Compl. ¶ 9; Wilson Dep. at31-32.) He acknowledges that NWCTC would reimburse and had reimbursed him for tuition after the course was successfully passed. (Wilson Dep. at 69-71; NWCTC 1028.) He testified that another reason why he did not take any courses in 2006 or 2007 was because of a health condition which caused him "to miss some work." (Wilson Dep. at 80.)
Plaintiff further testified that he did not obtain the 27 credits in either 2006 or 2007 because he was not familiar with the online classes and "was awful busy." (Wilson Dep. at 78.) He testified that, in addition to his Union meetings and teaching night school, Welsh had expected him to serve on the strategic planning committee. (Wilson Dep. at 78-79). The strategic planning committee met "once every couple weeks" and included "homework we had to follow up and see what we could find out about different things ...." (Wilson Dep. at 79.) Plaintiff also testified that he was asked to run for county commissioner in May 2007, but he "didn‟t spend a whole lot of time until the very end" and that "volunteers did most of it." (Wilson Dep. at 81-82.)
Plaintiff wrote a letter dated October 14, 2007 to Bruce Paul and the JOC requesting an emergency certificate, but received no response. (Wilson Dep. at 150-52; Wilson Dep. Ex. CC at NWCTC 0988-0989; Wilson Aff. ¶ 36.) He also wrote an email on December 23, 2007 to Executive Director Luanne Matta requesting her assistance in obtaining an emergency certificate, but she did not respond. (Wilson Dep. at 152-53; Wilson Dep. Ex. CC at NWCTC 0990; Wilson Aff. ¶ 37.)
NWCTC notes that, according to the IUP transcript, Plaintiff had attained 30 credits out of the required 60 credits needed for his Vocational Instructional II Certificate. (Wilson Dep. at 64-65, 83; Wilson Dep. Ex. F at NWCTC 1453; Wilson Dep. Ex. G at NWCTC 1008.) Plaintiff believes that an additional three credits should be reflected on the IUP transcript. (Wilson Dep. 65-66.) He attempted to have 60 credits from his associate degree transferred to IUP. (Wilson Dep. at 153-54; Wilson Dep. Ex. CC at NWCTC 0991.) IUP told him that it was not going to accept the credits. (Wilson Dep. at 155.)
In his affidavit, Plaintiff states that this transcript was incorrect and that PDE has since verified for IUP that his Associate Degree in Specialized Technology is worth 60 credits, being from an approved and accredited state institution. (Wilson Aff. ¶¶ 14-15.)*fn10
As of September 2007, Plaintiff required an additional 27 credits for his Vocational Instructional II Certificate. (Wilson Aff. ¶ 12.) He testified that, had he been given an additional year, until December 2008, obtaining the needed 27 credits was "doable." (Wilson Dep. 77-78.)
By letter dated December 21, 2007, NWCTC provided to PDE a "Documentation Worksheet for Determining Certificate Validity" and requested the date of certification expiration for Plaintiff‟s Vocational Instructional I Certificate. (Wilson Dep. at 36; Wilson Dep. Ex. E.) Plaintiff signed the Worksheet "under protest" because he had initially received an "intern" certificate rather than an "emergency permit." (Wilson Dep. at 59-60; Wilson Aff. ¶ 20.)
By letter dated January 16, 2008 (corrected January 24, 2008), PDE advised that Plaintiff‟s Vocational Instructional I Certificate would expire as of January 16, 2008. (Wilson Dep. at 35, 40-41; Wilson Dep. Ex. D.)
Plaintiff‟s Certificate Expires
On January 18, 2008, Plaintiff met with Kiefer and was informed that, due to the lapse of his teaching certification, his last day of employment with NWCTC would be January 18, 2008. (Wilson Dep. at 99; Wilson Dep. Ex. H.)
Plaintiff testified that he completed 18 or 19 credits in the Summer of 2008 which have been transmitted to IUP. (Wilson Dep. at 84-85.) Those 18 or 19 credits were taken at Butler Community College and Westmoreland County Community College, which he believes will be accepted by IUP. (Wilson Dep. at 11-12, 85-86.) NWCTC states that, according to PDE, "community college credits ... are not accepted towards Level II certification." (ECF No. 29 Ex. F, Question No. 15.)*fn11 Plaintiff responds that IUP has corrected his transcript and now recognizes his community college credits. (Wilson Aff. ¶¶ 14-15.)
Plaintiff filed for unemployment compensation benefits on January 20, 2008. His application was denied by the UC Service Center and on appeal to a referee on May 2, 2008 (Wilson Dep. at 106; Wilson Dep. Ex. P.) In his appeal of the referee‟s denial of unemployment compensation benefits, Plaintiff stated: "The sole reason I am not currently teaching at NWCTC is due to my union activity and NWCTC failure [sic] of ...