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Janet E. Davis v. School District of Pittsburgh

March 20, 2012

JANET E. DAVIS PLAINTIFF,
v.
SCHOOL DISTRICT OF PITTSBURGH, BOARD OF EDUCATION OF SCHOOL DISTRICT OF PITTSBURGH, MICHAEL GAVLIK, IN HIS INDIVIDUAL CAPACITY, DEFENDANTS.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION

In this memorandum opinion the court considers the motion for summary judgment (ECF No. 26) filed by defendants the School District of Pittsburgh (the "District"), the Board of Education of the District (the "Board"), and Michael Gavlik ("Gavlik" and together with the District and the Board, "defendants"), against all claims asserted by plaintiff Janet E. Davis ("Davis" or "plaintiff"). The complaint (ECF No. 1) contains the following counts: (1) gender discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq.; (2) retaliation for complaining about gender discrimination in violation of Title VII; (3) age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; (4) sex discrimination, age discrimination and retaliation in violation of the Pennsylvania Human Relations Act ("PHRA"), 43 PA. CONS. STAT. § 951 et seq.; and (5) deprivation of her civil rights and retaliation, pursuant to 42 U.S.C. § 1983, for alleged violations of her rights under the First and Fourteenth Amendments to the United States Constitution.

After considering the record in this matter and the parties' written submissions, in light of the summary judgment standard and for the reasons set forth below, defendant's motion for summary judgment will be GRANTED in part and DENIED in part.

Factual and Procedural Background

Davis was employed by the District from September 1970 through her retirement in June 2008 as a health and physical education teacher. (Combined Concise Statement of Material Facts ("CSF") (ECF No. 44) ¶ 21.) She began teaching at Allderdice High School ("Allderdice") in the 1973-1974 school year. (Id. ¶ 22.) She served as the Instructional Teacher Leader of her department for at least the last three years of her employment at Allderdice. (Id.) She was the first head coach of the Allderdice girls' basketball team, and she testified that she had "built" the program. (Id. ¶ 23.) When she retired from her teaching position at Allderdice, plaintiff forfeited her position as the basketball coach. (Id. ¶ 25.)

On March 28, 2008, while still teaching at Allderdice, Davis submitted an Intent to Return to Coaching Assignment form, which was signed by Allderdice Principal Robert Scherrer ("Scherrer"). (Id. ¶ 28; ECF No. 28-2 at 1.) When Davis submitted the Intent to Return to Coaching Assignment form in March 2008, she had not yet decided whether to retire. (CSF (ECF No. 44) ¶ 29.) Davis was not sure whether she considered the possibility of retirement as early as March 2008. (Id. ¶ 30.)

In mid- to late-April 2008, plaintiff and Scherrer exchanged emails and met regarding plaintiff's concerns about staffing at Allderdice for the next school year, as well as the male/female ratio of physical education teachers. (Id. ¶ 60.) Scherrer agreed with plaintiff's concerns regarding the ratio issue. (Id. ¶ 61.) Prior to Davis raising the physical education teacher gender disparity issue, Scherrer had not reviewed the article in the collective bargaining agreement ("CBA") which dealt with gender ratios, and had not believed that it was an issue at Allderdice. (Id. ¶ 62.) Following retirements and the cutting of two positions, Scherrer did not interview physical education teachers to be placed at Allderdice; a person in the human resources department ("HR") informed him who would be working at Allderdice in the upcoming school year. (Id. ¶ 64.) As a result, a male physical education teacher who taught at Allderdice during the 2007-2008 school year remained as a teacher for the next school year, and no other candidates were interviewed. (Id. ¶¶ 64-65.)

At the Board's May 21, 2008 meeting, it approved plaintiff's coaching assignment, along with more than 350 other coaching assignments. (Id. ¶ 33.)

Plaintiff retired from teaching in June 2008 because, under the new CBA, health care benefit costs to be paid by retirees would increase from 25% of additional costs to 50% and the $800 payment toward Medicare Plus would not be paid to her. (Id. ¶ 27.) On or about June 2, 2008, Davis advised Scherrer and Marlene Harris ("Harris"), an HR representative, that she planned to retire at the end of the school year.*fn1 (Id. ¶¶ 35, 148.) When Davis told Scherrer she intended to retire from teaching, Davis informed him that she would like to continue to coach. (Id. ¶ 150.) Davis testified that Scherrer was happy that Davis could continue to coach. (Id.) Scherrer testified that he did not, at that time, understand the implications of the CBA to Davis's continued employment as a basketball coach at Allderdice. (Trans. Dep. Robert Scherrer ("Scherrer Dep.") (ECF No. 41-4) at 2.)*fn2 When a teacher retired, her coaching position was deemed vacant and was required to be posted, according to Michael Gavlik, the athletic director at the District. (Trans. Dep. Michael Gavlik ("Gavlik Dep.") (ECF No. 41-5) at 4, 6.) The District's policy is that once a teacher retires, his or her coaching position is rescinded. (CSF (ECF No. 44) ¶ 151.) Article 42 of the CBA requires that active and qualified teachers be preferred for a coaching vacancy; paraprofessionals, substitute or retired teachers, and other District employees are viewed as external candidates. (Id. ¶ 86.) There are no specific rules or policies relating to when a coaching vacancy must be posted. (Id. ¶ 82.) According to Gavlik:

[T]here's no direct instructions in that regards. During the course of a school year if a position is resigned, which is, basically, the typical scenario . . . we try to post it immediately. If requested by a principal to wait and there's a good reason to do so, if it's something where someone's resigned during the season and they're waiting to actually officially remove themselves from the position after the end of that . . . season, then maybe we would wait at that point. (Gavlik Dep. (ECF No. 37-7) at 9.) Gavlik testified that if the District became aware of openings in June (as was the case when Davis retired), what we try to do is we address the fall positions first because they would be the seasons coming up the fastest. So if we have to, we would apply over the summer. Not very successful a lot of times, but if they are a winter position, we may wait till the school year starts so that teachers are back in their buildings, so they might see the postings more readily than they would possibly in the summer. (Id. at 10.) When a coaching vacancy arises during the summer, the District will sometimes post the vacancy after school begins so that more candidates will see and apply for the position. (Id.)

Scherrer testified a retiring teacher could still apply for the newly-vacant coaching position created by effect of her retirement, but that under the CBA current District employees had a right to the coaching position before it would be given to a retired employee. (Scherrer Dep. (ECF No. 41-4) at 2.) Scherrer explained that plaintiff's retirement occurred at the end of his first year with the District and that he had had no occasion to review or consider the seniority and preference provisions of the CBA before that time. (Id. at 11.)

It was within Scherrer's discretion to post Davis's coaching position during the summer months since as a principal he works year round. (Id. ¶ 152.) When Davis informed him about her retirement on June 2, 2008, Scherrer did not immediately request that the Allderdice girl's head basketball coach position be posted because (1) the Board had not yet approved her retirement, (2) basketball is a winter sport, and (3) he had other administrative priorities in the summer relating to the beginning of the school year. (Id. ¶ 44.) Scherrer admitted that there was no rule or regulation that prevented him from posting the vacancy of the Allderdice girl's head basketball coach position prior to the start of the new school year, and the only step he had to take to do so was to contact HR who would then post the position. (Scherrer Dep. (ECF No. 37-4) at 5.) It is the responsibility of the school's principal or the athletic department to inform HR that a coaching position is vacant and needs to be posted. (CSF (ECF No. 44) ¶ 80.) Upon receiving information that a position is vacant, personnel in HR post the vacancy and fill in the details on the job posting. (Id. ¶ 81.) HR was aware of the vacancy as of June 2, 2008, because Davis emailed Harris at Scherrer's suggestion.

On June 16, 2008, Davis prepared a letter specifically addressed to Board members and some managerial employees at the District in connection with her concerns about maintaining a balance of male and female physical education teachers. (Id. ¶ 154; ECF No. 37-4 at 33.) In this letter Davis complained that gender discrimination was occurring within Allderdice and another school and requested that the Board take some action. (Id.) Davis followed up her complaint with emails to the same Board members on July 8, 2008. (Id. ¶ 155.) In one email, Davis writes

I had hoped that your integral involvement with the negotiations committee would afford you an excellent understanding of my concern in this Allderdice matter. The PFT and the personnel office have created a discriminatory situation by staffing 5 male/2 female physical education teachers at Allderdice. . . . Please take a look at this matter so that the PFT and the BOE do not violate our contract. Thank you for your time. (ECF No. 37-9 at 7.)

On June 25, 2008, the Board approved fifty-seven retirements, including plaintiff's retirement. (Id. ¶ 36.) At the Board's September 24, 2008 meeting, it rescinded plaintiff's coaching position as the Allderdice head girls' basketball coach, as well as several other coaching positions. (Id. ¶ 37.) Davis first heard that her position had been rescinded the next day when she obtained the minutes for the September 24, 2008 meeting. (Id. ¶ 38.) Plaintiff made a regular practice of obtaining the minutes of the Board meetings in order to keep herself informed about the business conducted by the Board. (Id. ¶ 31.) After the rescission, plaintiff continued using the gym for conditioning and held a "fall league" on Sundays. (Id. ¶ 40.) Plaintiff testified that no one questioned her use of the gym because she "was viewed as the coach." (Id. ¶ 41; Trans. Dep. Janet E. Davis ("Plaintiff's Dep.") (ECF No. 41-3) at 15.) The girls' basketball season at Allderdice usually begins in mid-November. (CSF (ECF No. 44) ¶ 43.) Davis testified that coaches are involved in many activities outside the dates of the official season, which include intramurals, conditioning, and spring and fall leagues. (Plaintiff's Dep. (ECF No. 41-3) at 3.)

Scherrer testified that there are "no official responsibilities" for a basketball coach outside of the official season, but that "in many cases, coaches do conditioning and things throughout the year." (Scherrer Dep. (ECF No. 41-3) at 3.) He had been aware plaintiff had been performing some functions of the girls' basketball coach into September and October 2008. (Id. at 4.) In early September 2008, Scherrer signed and approved several applications filed by Davis for use of the Allderdice gym for conditioning. (Id.; Scherrer Dep. Ex. 3 (ECF No. 37-4) at 21-25). Scherrer approved Davis's use of the gym for "conditioning," "basketball conditioning," "games (exhibition)," and "pre-season conditioning" on at least twenty-eight dates from September 2008 through January 2009. (Scherrer Dep. Ex. 3 (ECF No. 37-4) at 21-25.)

Gavlik testified that while Davis was conducting these training sessions, an anonymous complaint was received from a parent who asked why a retired basketball coach was running official basketball practices. (Id. ¶ 104.) Gavlik emailed Scherrer on September 5, 2008, as a result of the complaint, noting that the position needed to be posted. (Id.)

Gavlik directed someone at HR to post the Allderdice girls' basketball head coach position after learning that Davis had retired and was still holding practices in September 2008. (Id. ¶ 106; Gavlik Dep. (ECF No. 41-5) at 4.) The "Girls Head Basketball Coach -- Allderdice" posting was dated September 9, 2008, with a closing date of September 15, 2008. (CSF (ECF No. 44) ¶ 107.) Either Scherrer or the athletic director at Allderdice contacted Davis and informed her that Gavlik directed HR personnel to post her coaching position and that Scherrer wanted to make her aware of the posting so that she could apply for the position. (Id. ¶ 163.) Plaintiff interviewed on October 10, 2008. Both David Walchesky ("Walchesky") and another individual interviewed on October 14, 2008. (Id. ¶ 108.) Walchesky had been a teacher with the district since August 1981, and had been assigned to Allderdice as a teacher since the 2007-2008 school year. (Id. ¶ 109.) Walchesky had twenty-five years of coaching experience with the District in multiple sports and as assistant and head coach in girls' basketball and softball. (Id. ¶ 110.)

Gavlik emailed Scherrer on October 20, 2008, regarding telephone calls he received from unhappy parents who indicated that Scherrer had told them that he could not select Davis as the head coach even though she was the most qualified. (Id. ¶ 111.) In response to Gavlik's October 20, 2008 email, Scherrer called Gavlik and advised him that he was aware that although he felt plaintiff was the most qualified, she could not be rehired as the coach because of the CBA. (Id. ¶ 112.) On the form submitted to HR, Scherrer and Allderdice's athletic director, who had conducted the interviews together, indicated that Davis was their first choice to fill the coaching vacancy, but indicated that she was no longer a District employee. (ECF No. 28-9 at 24.) Although Scherrer and Cornell selected Davis for the coaching position at Allderdice, HR did not accept the recommendation to hire plaintiff over Walchesky. (Id. ¶ 173.) Walchesky received an email dated October 21, 2008 from Kim Sterling ("Sterling"), who worked in HR and was responsible for posting coaching vacancies; in the email, Sterling offered him the coaching position, which he accepted. (Id. ¶ 114.)

Davis never spoke with Scherrer about the timing of the posting for her coaching position after her retirement from teaching. (Id. ¶ 91.) She did not believe that it was wrong that her coaching position was posted as vacant, but that it was wrong that she was treated differently than others in a similar situation. (Id. ¶ 92.)

Other teachers in the District who retired around the same time as Davis attempted to retain their coaching positions. According to the testimony of Sherry Hazuda ("Hazuda"), who became a member of the Board in 2008 (id. ¶ 16), Ronald Wabby ("Wabby") wanted to remain as the football coach at Brashear High School (which is in the District), but was not permitted to do so because he had retired. (Id. ¶ 89.) In fact, Wabby retired from his coaching position. Wabby wrote a letter to Gavlik on December 17, 2007, informing Gavlik of his retirement from coaching:

As of 1/8/08, I will not return as the head football coach at Brashear. I am not retiring for health reasons or because I am burned out, I am retiring from football because I am retiring from teaching. The Pittsburgh Board of Education and the Pittsburgh Federation of Teachers feel that once you retire from teaching that you are no longer a union member and can not keep your coaching position, unless no one else in the school district wants the position. If the program is like Brashear's, people are just waiting to take the job, because of the success of the program. If the Board ...


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