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Edward Epstein v. Pittsburgh School District and Sandra Wesolowski

September 19, 2011


The opinion of the court was delivered by: Maureen P. Kelly U.S. Magistrate Judge


KELLY, Magistrate Judge

Plaintiff, Edward Epstein ("Epstein"), a former physics teacher at Perry Traditional Academy ("Perry"), has brought this civil action against Defendants Pittsburgh School District ("the School District") and Sandra Wesolowski ("Wesolowski"), an Assistant Principal at Perry, alleging that while employed with the School District he was discriminated against because of his age, race, religion and national origin which resulted in his being constructively discharged in April of 2009. Presently before the Court is Defendants' Partial Motion to Dismiss Amended Complaint. For the following reasons, the motion will be granted.


According to the complaint, Epstein began teaching for the School District in 1999. In August of 2004, he was transferred from Westinghouse High School to Perry. [ECF No. 14-1 ¶¶ 5-6]. Epstein alleges that prior to the 2008-2009 school year, a position administering the Center for Advanced Studies ("CAS") physics classes became vacant and was awarded to a much younger, less senior teacher who had only worked at Perry for one year teaching math. [Id. at ¶¶ 9-11]. Epstein contends not only that he was the most suited for the position but that filling the position with a "rookie teacher" ran afoul of both the school's long established practice of rewarding the more senior teachers with greater rights regarding course selection and schedules, and the Professionalism and Education Partnership Staff Selection Process which requires the Staff Selection Team to interview the top 25% of the most senior applicants and allows it to select the most senior applicant without going through the interview process. [Id. at ¶¶ 12-18]. Epstein believes that Wesolowski and Jackie Blakey ("Blakey"), the Principal at Perry, made the decision to award the CAS position to a younger, less qualified teacher and that the decision reflects the animosity they held toward him as well as the age animus and antiSemitic prejudices of Wesolowski. [Id. at ¶¶ 8, 15, 19-21].

Epstein further alleges that "[a]t one point during this school year," he presented an essay to Wesolowski that he needed her to sign-off on so that he could attend a course at Carnegie Mellon University. [Id. at ¶ 22]. Apparently because Epstein had to translate the essay from one language to another, Wesolowski remarked that the essay "didn't sound right" and sent him to another teacher for assistance before she would sign it. According to Epstein, Wesolowski's statement reflects her ethnic and religious prejudices and that she had stereotyped him as someone "who lacked professional command of English." Id.

On March 4, 2009, the administrators at Perry apparently learned that they were facing budget cuts for the next school year which could lead to the reduction of staff. Epstein claims that, in an effort to circumvent basing layoffs solely on seniority, the Perry administrators decided to evaluate certain teachers and give them unsatisfactory ratings. [Id. at ¶¶ 23-25, 27]. According to Epstein, the oldest and most senior teachers were targeted, including himself. [Id. at ¶ 26]. Thus, on the same day that they learned of the budget cuts, Wesolowski and another Vice Principal entered Epstein's classroom to observe him and asked students whether Epstein "did anything with them." [Id. at ¶¶ 27-28]. Epstein contends that Wesolowski not only violated Article 59 of the Collective Bargaining Agreement for Teachers and Other Professional Employees ("CBA") by entering his class absent an emergency but that the intrusion undermined his authority and was calculated to justify an unsatisfactory rating. [Id. at ¶¶ 28-30]. Epstein alleges that at the end of the class he was informed that Wesolowski would also be observing him a second time later that day which was unprecedented and designed to substantiate an unsatisfactory rating as well. [Id. at ¶¶ 31-33]. In fact, Epstein claims that in the interim he approached his Instructional Teacher Leader, Mr. Bynum, and was told that Defendants had already planned to observe two of his classes and then place him on an Improvement Plan which, according to Epstein, usually precipitates an unsatisfactory evaluation and termination. [Id. at ¶¶ 34-36].

Epstein contends that in addition to targeting older teachers for evaluations, Defendants have exhibited prejudice against other Jewish teachers in the past and that the scheduling of a second observation on March 4, 2009, caused him to be overcome with anxiety. As a result, Epstein had an asthma attack and had to leave school for the remainder of the day. [Id. at ¶¶ 15, 26, 37-39]. On March 10, 2009, Epstein's physician placed him on medical leave through April 17, 2009, for severe anxiety and depression. Epstein contends that the treatment he received by Defendants "caused him to suffer mental and emotional distress and illness" and that, in essence, he was constructively discharged. [Id. at ¶ 40].

Consequently, prior to the end of his medical leave, Epstein submitted a retirement request to the School Board fearing that if he returned to work, he would be subjected to an intolerable hostile work environment and eventually terminated. [Id. at ¶ 41]. Epstein nevertheless returned from medical leave as scheduled on April 17, 2009, to finish out the school year. [Id. at ¶ 41]. Epstein complains that, despite the fact that he was cleared to return to work by both his doctor and the School Board and that he was capable of teaching on his own, Defendants retained the substitute teacher that had been employed in his absence. [Id. at ¶ 42]. Epstein alleges that retaining the substitute was not only unprecedented under the circumstances but was a violation of the CBA and designed to monitor his activities. [Id. at ¶¶ 43-47].

Epstein allows that after he retired he was replaced by another "older" teacher and that he now works as a substitute teacher for the School District. [Id. at ¶¶ 48, 50].

Epstein filed a complaint in the Court of Common Pleas of Allegheny County, Pennsylvania, on August 23, 2010. On December 1, 2010, Defendants removed the case to this Court pursuant to 28 U.S.C. § 1441. [ECF No. 1]. Epstein amended the complaint on January 5, 2011 [ECF No. 8], and Defendants filed a Partial Motion to Dismiss Amended Complaint [ECF No. 9] on January 19, 2011. On July 25, 2011, Epstein filed a Motion for Leave to File Second Amended Complaint [ECF No. 14-1], in order to attach the Notice of Right to Sue letter that he received from the Equal Employment Opportunity Commission ("EEOC") after the Amended Complaint had been filed. In all other respects, the Second Amendment Complaint was identical to the Amended Complaint, bringing claims against the School District for age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 624, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. C.S.A. § 955, et seq. (Count I); claims against the School District and Wesolowski pursuant to 42 U.S.C. § 1983 for religious creed and national origin discrimination in violation of the First and Fourteenth Amendments (Count II); claims against the School District for religious discrimination under Title VII and the PHRA (Count III); and a claim for race discrimination against Wesolowski under 42 U.S.C. § 1981 (Count IV). Accordingly, the Court entered a text order on July 26, 2011, granting Epstein's motion for leave to file the Second Amended Complaint and advising the parties that because Defendants' Partial Motion to Dismiss Amended Complaint had not been mooted by the amendment, it would be decided in due course.

Defendants' Partial Motion to Dismiss Amended Complaint [ECF No. 9], as applied to the Second Amended Complaint ("the Complaint"), is now ripe for review.


In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court held that a complaint is properly dismissed under Fed. R. Civ. P. 12(b)(6) where it does not allege Aenough facts to state a claim to relief that is plausible on its face.@ Id. at 570. In assessing the sufficiency of the complaint, the Court must accept as true all allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept inferences drawn by the plaintiff if they are unsupported by the facts as set forth in the complaint. See California Public Employees= Retirement System v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004), citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations; rather, A[f]actual allegations must be enough to raise a right to relief above the speculative level.@ Bell Atlantic Corp. v. Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, Alabels, conclusions, and a ...

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