The opinion of the court was delivered by: Conti, District Judge.
On June, 11, 2009, plaintiff Paul Henry ("Henry" or "plaintiff") commenced this lawsuit by filing a complaint against defendant Northern Westmoreland Career & Tech ("NWCT" or "defendant"). (ECF No. 1.) Henry asserts two claims against NWCT relating to his termination from employment in June 2008 in a reduction in force ("RIF") context: (1) employment discrimination based upon age under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"); and (2) employment discrimination based upon sex pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"). Pending before the court is a motion for summary judgment (ECF No. 20) filed by NWCT. NWCT‟s motion requests the court grant summary judgment in its favor with respect to all plaintiff‟s claims.
After considering NWCT‟s motion for summary judgment and the submissions of the parties, including the combined concise statement of material facts ("C.S.") (ECF No. 42), NWCT‟s motion will be granted in its entirety because plaintiff failed to adduce sufficient evidence to show that in reducing its force, the employer retained a sufficiently younger person or someone outside plaintiff‟s class who was similarly situated.
A. Northern Westmoreland Career & Tech
NWCT is a vocational school that draws students from four area school districts: (1) Kiski Area; (2) Burrell; (3) New Kensington-Arnold; and (3) Franklin Regional. (C.S. ¶¶ 9, 20.) NWCT‟s governing body is the Joint Operating Committee ("JOC"), which is comprised of two members from each school district. (Id. ¶ 10.) NWCT, as well as other vocational schools, receives Federal Perkins Loan Program ("Perkins") funds. (Id. ¶ 20.) NWCT‟s budget must be approved by the JOC and each school district‟s board. (Id. ¶ 21.)
Kurt Kiefer ("Kiefer") is the current director of NWCT and has held that position since November 2007. (Id. ¶ 11.) Kiefer was the director of NWCT when plaintiff‟s position was terminated. (Id. ¶ 12.) Kiefer‟s duties and responsibilities include the day-to-day running of the school, working on the budget, curriculum, disciplining students and other administrative tasks. (Id. ¶ 13.)
Coleen Steim ("Steim") is the business manager for NWCT and has held that position since 2003. (Id. ¶ 14.) Kiefer and Steim work on NWCT‟s budget together. (Id. ¶ 15.) Kiefer allocates the budget line items to certain expenditures and Steim reviews those decisions to ensure that they are permitted by specific regulations, including Perkins. (Id.) Steim also makes recommendations to Kiefer with regard to the budget. (Id. ¶ 16.) For example, if Kiefer allotted Perkins funding for advertising, Steim would review that decision to make sure that the allocation did not exceed NWCT‟s expenditures for that particular area. (Id. ¶ 17.) Kiefer testified that he could not recall whether Steim made suggestions to him about ways in which NWCT could save money. (Id. ¶ 18.) In the spring or summer of 2005, Steim recommended to the JOC to eliminate Henry‟s position and outsource the duties he performed in that position. (Pl.‟s App. (ECF No. 40), Ex. B at 3; C.S. ¶ 28.) NWCT disputes that Steim offered input into reaching the conclusion to terminate plaintiff‟s position with respect to the JOC‟s executive session on June 19, 2008, and asserts that "[Kiefer] put [the termination] in front of the eight-member board on [his] own." (C.S. ¶ 19; Def.‟s App. (ECF No. 23), Ex. D ("Kiefer Dep.") at 15-16; Ex. E ("Steim Decl.") ¶¶ 4-6.)
B. Plaintiff's employment and the technology service coordinator position
Henry was initially employed with NWCT as a permanent, part-time teacher‟s aide in electronics for the 2002-2003 school year, with no benefits, at an eleven-dollar-per-hour rate, six hours per day, for a maximum of 181 days per year. (C.S. ¶ 22.) Henry remained in that position until February 2004. (Id. ¶ 23.) In February 2004, plaintiff was asked to perform specific technology duties previously performed by two NWCT employees on a part-time basis. (Id. ¶ 24.) On or about June 22, 2004, the JOC approved the technology service coordinator ("TSC") position and job description, and on August 19, 2004, approved plaintiff‟s employment contract for the position. (Id. ¶¶ 25-26.) Plaintiff was sixty-four-years-old at the time he entered into the employment contract. (Id. ¶ 27.) The duties of the TSC position included handling software and hardware services for computers and printers, such as loading software and correcting hardware problems. (Id. ¶ 34; Def.‟s App., Ex. B ("Henry Dep.") at 26-27.) NWCT renewed plaintiff‟s one-year contract for the TSC position in the 2005-2006, 2006-2007, and 2007-2008 school years. (Id. ¶ 29.) At the time the 2007-2008 school-year contract was up for renewal, plaintiff was sixty-seven-years-old. (Id. ¶ 33.)
NWCT never subjected plaintiff to any disciplinary action during his employment as a TSC. (Henry Dep. at 51-52.) Kiefer did not recall plaintiff having any performance or disciplinary issues during Kiefer‟s time as director of NWCT. (C.S. ¶ 35.) June 19, 2008 was Henry‟s last day of work for the 2007-2008 school year. (Id. ¶ 36.) Kiefer told Henry at a meeting on June 19, 2008, "Your first day back will be August 4th." (Henry Dep. at 104.) Plaintiff contends Kiefer provided explicit details about the upcoming school year, including anticipated work on twenty-five new computers for business classes and the installation of six new software programs. (Pl.‟s App., Ex. A ("Henry Aff.") ¶ 14.)*fn1 Plaintiff talked to Kiefer in July 2008 following the termination and Kiefer admitted he did not know Henry would be terminated until the JOC meeting on the evening of June 19, 2008, and that he had no control over the decision to terminate plaintiff‟s position. (Henry Aff. ¶ 16.)*fn2 Kiefer testified that he met with Henry on Henry‟s last day of work,*fn3 and knew he was going to recommend to the JOC to terminate the TSC position. (C.S. ¶ 37; Kiefer Dep. at 18-19.) Kiefer, however, did not advise Henry of his intention at that meeting. (Id.) Plaintiff disputes that Kiefer intended to recommend termination. Kiefer testified he did not tell plaintiff about the recommendation during their meeting because that was the first time he recommended terminating a position and he did not know how to handle the situation. (C.S. ¶ 39.)
On June 19, 2008, Kiefer recommended, and the JOC unanimously approved the elimination of the TSC position. (Id. ¶ 44.) Plaintiff was sixty-eight-years-old at the time his employment was terminated. (Id. ¶ 45.) On June 20, 2008, plaintiff received notice of the JOC‟s decision in a letter from Kiefer. (Id. ¶ 46.) Kiefer considered eliminating secretarial or custodial staff, but declined to eliminate those positions because the office staff was already undermanned and there was not enough time to hire an outside agency to take over the custodial duties. (Id. ¶¶ 54-56.) Kiefer testified, and plaintiff disputes, that the TSC position was eliminated for solely economic purposes and that plaintiff‟s age did not influence Kiefer‟s decision. (Id. ¶¶ 57-58.) NWCT asserts, and plaintiff denies, that Kiefer advised plaintiff if the school ever received sufficient funds to open the TSC position again, Kiefer would hire plaintiff. (Id. ¶ 59.) The TSC position was never reinstated and no one was hired to fill the duties of that position. (Id. ¶ 60.) After the elimination of the position, NWCT outsourced technology services to various companies, including the IU, CCL Technologies, and Computer Connections. (Id. ¶ 61)*fn4
In late May 2008, Kiefer learned that NWCT‟s Perkins funding would be
reduced approximately $16,000 compared to the previous school year.
(Id. ¶ 47.) Henry‟s salary, unlike teacher salaries, was not paid
directly out of Perkins funds, but Kiefer testified that the cost
savings from cutting the TSC position could be diverted to cover the
Perkins funds‟ shortfall. (Id. ¶ 50; Kiefer Dep. at 8-9.)*fn5
After learning about the decrease in Perkins funding,
Kiefer had less than one month to determine how to remedy the
shortfall. (Id. ¶ 51.)*fn6 Kiefer testified that he
selected plaintiff‟s position for termination in part because
plaintiff did not directly affect the students, unlike a teacher‟s
aide who would provide help to students with special needs. (Kiefer
Dep. at 11-12.)*fn7 For the 2008-2009 school year the
cost savings associated with the termination of the TSC position was
approximately $2,000, which reflects Kiefer‟s assessment of the low
end of the range for savings -- $12,000 -- reduced by the unemployment
benefits -- $10,000 -- paid to Henry. (C.S. ¶ 62; Henry Aff. ¶
For the 2008-2009 school year, NWCT was mandated to hire a math teacher to assist with the Pennsylvania System of School Assessment testing that would result in an increase to NWCT‟s budget. (C.S. ¶ 48.) NWCT additionally hired three instructors to fill open positions vacated by individuals who were terminated for failing to meet state certification requirements. (Id. ¶ 70.)
E. Steim's alleged acts of gender and age discrimination
Tim Redemer ("Redemer") has worked in NWCT‟s maintenance and custodial department for the past seven years. (Id. ¶ 72.) At the time of his deposition, Redemer was aware that his custodian position was not in the budget for the 2010-2011 school year. Redemer testified that, during a conversation with Steim about wages in the fall of 2005, she stated it was her opinion that "your wage is based on if you have a penis or not." (Id. ¶¶ 74, 76; Def.‟s App., Ex. G ("Redemer Dep.") at 6.)*fn9 Redemer opined that, in the context of their conversation, Steim‟s comment related to women not earning equal pay for equal work compared to their male counterparts because of their gender. (Redemer Dep. at 8.) The only people present in the room during the conversation were Redemer and Steim. (C.S. ¶ 75.) Redemer testified he did not believe Steim discriminated against male employees and Steim‟s comment was the only occasion he heard her make a gender-related statement. (Id. ¶¶ 77, 79.) No male employees of NWCT complained to Redemer that Steim discriminated against them because of their gender. (Id. ¶80.)
Henry asserts that on or about September 13, 2007, Steim became hostile toward John Tate, NWCT‟s former acting director, and him and accused them of calling her a liar. (Id. ¶ 81.) Henry alleges that during this incident, Steim said that Henry was getting "older" and "forgetful." (Id. ¶ 82.) Other than that comment, plaintiff could not recall any specifics with respect to other comments Steim made to him related to his age or gender. (Id. ¶ 86.) Henry testified that other employees told him that Steim made comments, but could not provide specifics because the employees were "vague in their references." (Id. ¶ 90.) Henry recalled an occasion either in the latter part of the 2005-2006 school year or the first part of the 2006-2007 school year when Steim yelled across a room: "Mr. Henry, get over here." (Id. ¶ 91.) Henry opined that Steim was speaking to him like a dog and that she used a demanding and sarcastic tone, but did not recall why Steim needed him on that occasion. (Id. ¶¶ 92-93.)
Plaintiff did not have daily contact with Steim. (Id. ¶ 87.) Plaintiff disputes that their interactions were limited to her position as business manager and asserts that Steim, at times, exceeded her authority by acting as Henry‟s immediate supervisor. (Henry Aff. ¶ 11.) Plaintiff asserts Steim exceeded her authority in the following ways: (1) incorrectly performing Henry‟s computer duties, causing him inconvenience when he was required to fix her mistakes; (2) taking Henry‟s work orders and making mistakes with respect to those work orders which Steim requested Henry to fix; and (3) collecting software and ...