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John Reish v. Pennsylvania State University

March 8, 2012

JOHN REISH,
PLAINTIFF
v.
PENNSYLVANIA STATE UNIVERSITY, ET AL., DEFENDANTS



The opinion of the court was delivered by: (Magistrate Judge Carlson)

(Judge Jones)

REPORT AND RECOMMENDATION

I. Statement of Facts and of the Case

This is an employment discrimination action brought by John Reish against the Pennsylvania State University and two individual defendants, Susan Rutan and Greg Andersen. (Doc. 1) In his complaint Reish alleges that the defendants engaged in acts of age discrimination against him in violation of the Age Discrimination in Employment Act, 29 U.S.C. §621, and the Pennsylvania Human Relations Act, 43 Pa.C.S. §951. (Id.) With respect to these allegations the undisputed facts*fn1 are as follows:

A. The Plaintiff's Background and Employment History

The plaintiff, John Reish, was born in 1956, (Doc. 1), began working for Penn State in 1974, and was continuously employed by Penn State for more than 30 years. (Id.) In 2002, Mr. Reish accepted a position as a Supervisor of Area Services, a division within the Office of Physical Plant. He held this position until August 2006. (Id.) Mr. Reish's supervisor in Penn State's Area Services department was Greg Andersen, who has been employed as Manager of Area Services since 2000. (Doc. 71-1 pp. 1-2)

The Area Services department provides for small-scale, day-to-day routine maintenance and repair to Penn State's buildings and facilities. (Id.) As of 2006, the Penn State University Park campus was divided into five discrete areas, each of which was served by its own Area Services department staff. As a Supervisor of Area Services, Mr. Reish was responsible for the routine maintenance and upkeep of the buildings and grounds within a geographical region of the University Park campus designated as Area 5. (Doc. 71-1 p. 2)

B. Reish's Working Relationship With Area Services Manager Andersen

The matters at issue in this case largely arise out of Reish's working relationship with his immediate supervisor, Greg Andersen. Therefore, it is appropriate to briefly consider the background of that working relationship. The plaintiff, John Reish, and defendant, Greg Andersen, worked together for approximately four years before Reish was transferred from the Area Services department. During his tenure in this department, between 2002 and 2006, Reish received a series of annual written performance evaluations from Andersen. (Doc. 71-1 p. 4). From Andersen's perspective these evaluations generally identified Mr. Reish as a satisfactory, but not outstanding, employee. Thus, in 2002 and 2003, Mr. Andersen rated Mr. Reish as a "4" on a one to five scale. In 2004, 2005 and 2006, Mr. Andersen rated Mr. Reish as a "3." (Id.)

While he rated Reish as an acceptable employee, Andersen continually counseled Reish to improve his job performance in several areas. Thus, in 2004, while Andersen assessed Reish's 2003-2004 performance as a "3" on his annual evaluation, he also documented areas for improvement for Reish including budget management, work order expenses and communications skills. (Doc. 71-1 p. 4, Andersen Aff., ¶ 9; Doc. 71-19 p. 23, Rutan Aff., ¶95). Similarly, Reish's 2005 evaluation rated his performance as a "3" but once again documented concerns about work order management, budget management and communications skills. (Id.) In addition, Penn State officials documented other workplace counseling sessions with Reish. Thus,Reish was given a memo dated March 25,2005, outlining performance concerns discussed with him on February 28, 2005 and March 9, 2005. (Doc. 71-19 pp. 22-23, Rutan Aff., ¶94; Doc. 71-1 p. 4, Andersen Aff. ¶11) On March 15,2006, defendant Andersen met with Reish and discussed at length concerns about communication issues, excessive tool purchases, excessive inventory, exceeding work order limits and other concerns. (Doc. 71-1 p. 4, Andersen Aff., ¶12)

From Reish's perspective, prior to 2006 the only complaint which he articulates in this lawsuit regarding his supervisor, Andersen, involved an episode in March of 2005, in which Reish contends that Andersen suggested that a custodial employee supervised by Reish, William Sotter, was too old for his job and that it was time for Sotter to move on to another job. (Doc. 1, ¶23) Reish alleges that his refusal to discharge Sotter coupled with his decision to report Andersen's alleged remark to Sotter, in turn, led to acts of discrimination and retaliation against him some 18 months later. (Id., ¶¶25-27.)

C. Job Performance Issues Relations to Reish-- 2005 and 2006

Beginning in 2005, and continuing through the Fall of 2006, Reish's supervisors conducted several meetings with Reish relating to job performance issues in Reish's role as a supervisor in the Area Services department. These job performance issues fell into three broad categories.

First, because the Area Services department only provided for small-scale, day to day routine maintenance and repair to Penn State's buildings and facilities Area Services tasks typically were limited to what were referred to as "Service calls," tasks that involved 16 hours or less in labor, cost $3,000.00 or less in material expenses, and required three or fewer different types of trades, such as plumbing, electrical, or carpentry. Under Penn State's policy, projects which exceeded the scope of "service calls", were to be assigned to other maintenance staff rather than Area Services.

During his tenure as a supervisor in Area Services, Reish had persistent difficulties complying with this Penn State policy. Indeed, by July 2006, of 20 supervisors under Andersen's direction, Reish was the most consistent violator of the service call limits policy. (Doc. ¶53) Reish's performance problems in this area were significant. Reish had four times as many excessive service calls as the next highest supervisor; (id.), and personally accounted for 32% of all service call hour violations despite the fact that there were a total of 19 other supervisors in Service Areas. (Id.)

As a result, Reish was responsible for 54% of all excessive material cost work orders. (Id.).

A second area of concern related to purchases made by Reish while serving as a Supervisor in Area Services. Mr. Andersen and other managers instructed Area Supervisors not to buy shop parts or inventory using customer work orders. (Doc. 71-1 p. 14, Andersen Aff., ¶¶51-52) Furthermore, Area Supervisors like Reish were not supposed to make purchases of items on work orders that were unrelated to the scope of their work. (Doc. 71-1 pp. 7-8, 14, Andersen Aff., ¶¶ 26, 51) Finally, Area Supervisors were forbidden from using building maintenance funds for Capital expenditures. (Doc. 71-1 pp. 7-8, Andersen Aff., ¶¶25-26) Despite this guidance, Reish persisted in purchasing shop parts on work orders, purchased unrelated items on work orders and used building maintenance funds to make capital expenditures. (Doc. 71-1 p. 14, Andersen Aff.,¶¶51-54; Doc. 71-43 p. 11, Reish Dep. I, pp. 127-8)

Finally, Penn State officials encountered instances in which they concluded that Reish had undermined University operational initiatives, and been less than candid with his University supervisors. These issues arose in the context of Reish's service as a member of a process action team (PAT Team) whose goal was to create storeroom operations in Area Services maintenance shops where all materials would be fully inventoried, and effectively regulated, controlled and managed to increase efficiency and to get a handle on costs. (Doc. 71-1 p. 9, Andersen Aff., ¶28) The PAT team met from August 2004 through the time of Reish's discipline in July 2006, undertaking a project that was known as the Area Stores Initiative. (Id.)

As part of this initiative, the plan was to reduce, consolidate and organize the vast inventory of parts and materials that existed throughout Area Services. Once done, the reduced quantity of items would be cataloged in a manner that would track inventory in and out of a newly-created storeroom. The purpose of this effort was to consolidate and organize parts and materials within the confines of the Area 5 shop. (Id.) In early 2006, Andersen observed much of the previous inventory to be gone and no longer present in the Area 5 shop. Reish assured Andersen that these items had been sent to Penn State's Salvage & Surplus department, which was a method agreed upon for reducing his inventory. (Id.) However, Reish could not document all of the inventory items that he claimed had been sent to Salvage. (Id.)

In fact, Reish had not salvaged these excess items as he had claimed in conversations with his supervisor. Instead, Reish had instructed employees to move large amounts of inventory to remote storage locations in Area 5, contrary to the objective of the Area Stores Initiative. (Id.) When confronted on June 19, 2006, regarding this conduct, Reish admitted he had relocated most of the inventory to remote locations within Area 5, incurring hundreds of hours of labor charges to move inventory in an unauthorized manner and to unauthorized locations. (Id.)

Reish's job performance issues in these fields had been the topics of an ongoing dialogue between Reish and his supervisors for several years. Thus, in 2004, while Andersen rated Reish's performance as a "3" he also documented areas for improvement for Reish, including budget management, work order expenses and communications skills. (Doc. 71-1 p. 4, Andersen Aff., ¶ 9; Doc. 71-19 p. 23, Rutan Aff., ¶ 95) Similarly, Reish's 2005 evlauation rated his perfoamnce as a "3" but once again documented concerns about work order management, budget management and communications skills. (Id.) Andersen echoed these concerns in other workplace counseling session with Reish in the year preceding then July 2006 disciplinary action, including a memo dated March 25,2005 outlining performance concerns discussed on February 28, 2005 and March 9, 2005, (Doc. 71-19 pp. 22-23, Rutan Aff., ¶94; Doc. 71-1 p. 4, Andersen Aff. ¶11), and a March 15, 2006, meeting concerning about communication issues, excessive tool purchases, excessive inventory, exceeding work order limits and other concerns. (Doc. 71-1 p. 4, Andersen Aff., ¶12)

For his part, Reish seems to acknowledge a number of these job performance issues. Thus, Reish has admitted that he used building maintenance funds to buy a food science water softener, a capital expenditure, and acknowledged that building maintenance funds are not supposed to be used for capital expenditures. (Doc. 71-43 p. 12, Reish Dep. I, p. 130) Reish also acknowledged that he made purchases on work orders that would be inappropriate under Penn State policies. (Doc. 71-43 p. 12, Reish Dep. I, p. 132)

D. Disciplinary Proceedings Against Reish: July - September, 2006

In June of 2006, Reish's supervisors discovered that Reish had not been candid with them regarding his compliance with University policies. Following this discovery, in the summer of 2006 Penn State officials instituted disciplinary proceedings against Reish. This process began on June 19, 2006, when defendants Andersen, Susan Rutan and others met and determined that HR-78 disciplinary proceedings would be initiated relating to Mr. Reish. (Doc. 71-19 pp. 6-7, Rutan Aff., ¶¶ 17-19; Doc. 71-1 p. 22, Andersen Aff., ¶¶76-78

For his part, Reish has attempted to allege that these disciplinary proceedings coincided with the submission of age discrimination claims by another Penn State employee, William Sotter. However, Reish presents a strained and implausible chronology in support of this claim. According to Reish, 18 months earlier in March of 2005, Andersen suggested that Sotter, a custodial employee supervised by Reish, was too old for his job and that it was time for Sotter to move on to another job. (Doc. 1, ¶23) Reish contends that he reported this statement to Sotter, and suggests that the discipline initiated against him was, therefore, pretextual and retaliatory for his reporting these statements by Anderson to Sotter, something that Reish states Penn State officials learned on or about June 29, 2006. (Id., ¶¶25-27; Doc. 90-2, p.1) The difficulty with this claim lies in the details of this chronology. Under Reish's proffered chronology, the allegedly retaliatory disciplinary action, which began on June 19, 2006, actually pre-dates the event which Reish alleges triggered this retaliation, the late June 2006 disclosure of Sotter's complaints to Penn State officials.

On July 19, 2006, disciplinary proceedings against Reish were conducted during a meeting between Reish, Andersen, Rutan and another Penn State official, Ken Korbich. (Doc. 71-19 p. 8, Rutan Aff., ¶24) During this session, Andersen and Rutan both questioned Reish at length regarding a number of concerns relating to Reish's performance. (Id.) Following this meeting, Reish was placed on administrative leave without pay pending the HR-78 proceedings beginning July 20, 2006. (Doc. 71-19 p. 8, Rutan Aff., ¶ 25) He remained on disciplinary suspension without pay from ...


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