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Davis v. Pittsburgh Pub. Sch.

United States District Court, W.D. Pennsylvania

March 13, 2013

EMILY DAVIS, Plaintiff,
v.
PITTSBURGH PUBLIC SCHOOLS, PITTSBURGH FEDERATION OF TEACHERS, Defendants,

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For EMILY DAVIS, Plaintiff: Edward A. Olds, LEAD ATTORNEY, Pittsburgh, PA.

For PITTSBURGH PUBLIC SCHOOLS, Defendant: Brian P. Gabriel, LEAD ATTORNEY, Campbell Durrant Beatty Palombo & Miller, P.C., Pittsburgh, PA.

For PITTSBURGH FEDERATION OF TEACHERS, Defendant: John A. Bacharach, Bacharach and Klein, Pittsburgh, PA; Lisa G. Michel, Bacharach and Michel, Pittsburgh, PA.

OPINION

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Joy Flowers Conti, United States District Judge.

MEMORANDUM OPINION

I. Introduction

Pending before the court is a motion for summary judgment (ECF No. 41) filed by defendant Pittsburgh Public Schools (" PPS" or the " district" ) and a motion for summary judgment (ECF No. 44) filed by defendant Pittsburgh Federation of Teachers (" PFT" or collectively with PPS, " defendants" ). Plaintiff Emily Davis (" Davis" or " plaintiff" ) initiated this action on June 8, 2010 by filing a four-count complaint alleging: (1) race and gender discrimination under Title VII of the Civil Rights Act of 1963, 42 U.S.C. § 2000e et seq. (" Title VII" ) against PPS (count one); (2) age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (the " ADEA" ) against PPS and PFT (count two); (3) race and gender discrimination under 42 U.S.C. § § 1981 and 1983 against PPS and PFT (count three); and (4) age, race, and gender discrimination under the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. § 951 et seq. (" PHRA" ) against PPS and PFT (count four). (ECF No. 1.) On September 2, 2010, PPS filed an answer to the complaint. (ECF No. 9.) On September 3, 2010, PFT filed an answer to the complaint. (ECF No. 10.)

On March 20, 2012, after engaging in discovery, PPS and PFT each filed a motion for summary judgment and a brief in support of that motion (ECF Nos. 41, 44, 45, 46.) PPS and PFT filed a joint concise statement of material facts and appendix thereto on the same day (ECF Nos. 42, 43.) On May 9, 2012, plaintiff filed a brief in opposition to each of defendants' motions for summary judgment. (ECF Nos. 52, 53.) Plaintiff filed a response to defendants' joint concise statement of material facts on the same day. (ECF No. 51.) On June 1, 2012, PFT filed a reply brief to plaintiff's brief in opposition. (ECF No. 58.) On June 4, 2012, PPS filed a response to plaintiff's response to defendants' joint concise statement of material facts. (ECF No. 60.) PPS filed a reply brief to plaintiff's response in opposition on the same day. (ECF No. 61.) On June 5, 2012, the parties filed their combined statement of material facts. (ECF No. 62.)

After an extensive consideration of the parties' submissions and the applicable legal principles, the court concludes that in light of the summary judgment standard of review and based upon the evidence of record, plaintiff cannot prove that a similarly situated employee received more favorable treatment with respect to the elimination of her position as teacher on special assignment or that PPS' reason for her furlough, i.e., compliance with state certification requirements, was pretext for discrimination under state or federal law. The motions for summary judgment filed by PPS and PFT against plaintiff will be GRANTED.

II. Factual Background

The factual background is derived from the undisputed evidence of record and the

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disputed evidence of record viewed in the light most favorable to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ( " The evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." ).

General Background

Plaintiff is an African-American female and was sixty-five years old when the events at issue in this case occurred. (ECF No. 1 ¶ ¶ 27, 31.) Plaintiff was employed by PPS from 1988 until she was laid off in August 2008. (Combined Statement of Material Facts (" C.S.F." ) (ECF No. 62) ¶ 7; Deposition of Plaintiff (" Pl.'s Dep." ) (ECF No. 43-2) at 8-9.) Davis has not worked since her furlough from PPS in August 2008 and has not applied for any jobs or positions since her furlough. (Pl.'s Dep. (ECF No. 43-2) at 9-10.) On April 4, 2009, Davis signed an Application for Retirement with the Public School Employees' Retirement Systems, with an effective retirement date of June 30, 2009. (Pl.'s Dep. (ECF No. 43-2) at 10-12; ECF No. 43-3 at 2-11.) PPS is a governmental entity which provides free public education to students in the Pittsburgh area. (C.S.F. (ECF No. 62) ¶ 10; ECF No. 1 ¶ 4.) PFT is a labor organization representing teachers and other professional employees who are subject to the collective bargaining agreement between PPS and PFT, Local 400, American Federation of Teachers, AFL-CIO. (C.S.F. (ECF No. 62) ¶ 11; ECF No. 43-1 at 2-10; ECF No. 1 ¶ 5.)

Between 1988 and June 2008, plaintiff worked primarily as a teacher on special assignment and in other positions connected to the central office of PPS. (C.S.F. (ECF No. 62) ¶ 9; Pl.'s Dep. (ECF No. 43-2) at 19-26; ECF No. 43-3 at 19.) Plaintiff last worked for PPS as a staff specialist with respect to business programs for the Career & Technical Education (" CTE" ) department in the CTE central office. (C.S.F. (ECF No. 62) ¶ 8; Pl.'s Dep. (ECF No. 43-2) at 43-44; Deposition of Marlene Harris, Aug. 9, 2011 (" Harris' Dep. I" ) (ECF No. 43-4) at 31.) That position was eliminated at the end of the 2007-2008 school year. (Id.)

Cherri Banks (" Banks" ), William Cook, Jr. (" W. Cook" ), and Eunice Anderson (" Anderson" ) worked in the CTE central office with plaintiff. (Deposition of Cherri Banks (" Banks' Dep." ) (ECF No. 43-8) at 8.)

Banks served as a staff specialist with respect to family consumer sciences during the same time plaintiff served as a staff specialist for business programs. (Banks' Dep. (ECF No. 43-8) at 9.)

Banks, who was born in 1952, is an African-American female. (Declaration of Susan Dobies-Sinicki (" Dobies-Sinicki's Decl." ) (ECF No. 43-6) ¶ 7.) Banks retired in June 2010. (C.S.F. (ECF No. 62) ¶ 24; Banks' Dep. (ECF No. 43-8) at 4, 6.) The last position she held in the CTE central office was as a curriculum coordinator. (C.S.F. (ECF No. 62) ¶ 26; Banks Dep. (ECF No. 43-8) at 4, 8.) W. Cook served as a staff specialist with respect to trade and industry from July 1, 2001 until he transferred to the CTE supervisor position effective August 28, 2008. (C.S.F. (ECF No. 62) ¶ 30; Dobies-Sinicki's Decl. (ECF No. 43-6) ¶ 9.) W. Cook was born in 1951 and is a white male. (Dobies-Sinicki's Decl. (ECF No. 43-6) ¶ 8.) W. Cook retired on April 4, 2011. (Id.) As staff specialists, plaintiff, Banks, and W. Cook had the same job description. (Pl.'s Dep. (ECF No. 43-2) at 44-45.) Plaintiff, Banks, and W. Cook created their job descriptions in 2006. (Id.)

Anderson served as the director of CTE during the time period at issue in this case until her retirement. (C.S.F. (ECF No.

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62) ¶ 27; Banks' Dep. (ECF No. 43-8) at 4, 8.) Anderson, who was born in 1947, is an African-American female. (Dobies-Sinicki's Decl. (ECF No. 43-6) ¶ 6.)

Dr. Julia Stewart (" Stewart" ), who was born in 1943, is a white female. (Id. at ¶ 4.) Stewart was employed by PPS as the executive director of CTE for approximately two and one-half years, from 2007-2009. (C.S.F. (ECF No. 62) ¶ ¶ 12, 13; Dobies-Sinicki's Decl. (ECF No. 43-6) ¶ 4; Deposition of Julia Stewart (" Stewart's Dep." ) (ECF No. 43-5) at 5; Harris' Dep. I (ECF No. 43-4) at 29.) Davis testified that the longest conversation she had with Stewart was when Stewart first became executive director of CTE and they went to lunch, at which time the subject of age came up and Davis learned that Stewart and she were only a few months apart in age. (Pl.'s Dep. (ECF No. 43-2) at 47-48.) Plaintiff testified that upon learning they were close in age, Stewart asked her if she had plans on retiring soon. (Id. at 47.) Plaintiff testified that she told Stewart she did not have plans on retiring soon because she needed to work a longer period of time. (Id.)

Prior to her employment with PPS, Stewart was employed by the McKeesport Area School District for twenty-seven years, most recently as its director of CTE. (C.S.F. (ECF No. 62) ¶ 14; Stewart's Dep. (ECF No. 43-5) at 5.) In 2007, Stewart was contacted by PPS to assist the CTE department of PPS with respect to the upcoming Pennsylvania Department of Education (" PDE" ) chapter 339 audit (a " 339 audit" ). (C.S.F. (ECF No. 62) ¶ 15; Stewart's Dep. (ECF No. 43-5) at 5-8.)

Chapter 339 contains CTE policies with respect to how a CTE program should operate in high schools and CTE centers in Pennsylvania. (Banks' Dep. (ECF No. 43-8) at 9.) A 339 audit is an audit of a district's CTE department and programs. (Stewart's Dep. (ECF No. 43-5) at 10-11.) A 339 audit concerns certification issues, i.e., whether CTE employees were certified to do the jobs they were doing, and CTE program content, i.e., whether the district's programs were in compliance with PDE standards. (Id. at 29.) When Stewart began working for PPS, she directed her attention toward the CTE department's compliance with chapter 339. (C.S.F. (ECF No. 62) ¶ 47; Stewart's Dep. (ECF No. 43-5) at 8-9.)

The PDE issues Certification Staffing Policies (" CSPGs" ) to determine the validity of teacher certification in academic areas. (Deposition of Karen Turner (" Turner's Dep." ) (ECF No. 43-14) at 7-10.) CSPGs are policy documents issued by the PDE that describe the scope of each certificate, meaning the courses that may be taught by a person holding that particular certification. (Id. at 10.) One CSPG may cover various certifications issued in different years with respect to the same area of coverage. Certifications issued in different years may have different scopes of coverage. (Id. at 16-17.)

The PDE also issues codes for Classification of Instruction Programs (" CIPs" ) that correspond with specific approved programs taught in the schools. (Id. at 7-10.) A CIP code is a document containing information about specific courses offered by a CTE program. (ECF No. 51-3 at 25-37.) The document contains, among other things, the title of the course, a numerical identifier for the course, a description of the course, and the certifications required to teach that course. (Id.)

A certification with respect to CTE is different from certifications in academic fields. (Turner's Dep. (ECF No. 43-14) at 6-7.) A CTE certification is an instructional certificate that may be used in both academic and vocational areas. (Id. at 7.) For example, CTE certificates in family consumer science, co-operative education,

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and marketing and distributive education are instructional certificates that apply in both academic and vocational areas. (Harris' Dep. I (ECF No. 43-4) at 64.) In order to be certified in a vocational program, an individual must have a specific amount of work experience in a specified area of study, must attend a college program, pass certain tests, and pass an occupational competency test by either a committee review or an on-site test. (Turner's Dep. (ECF No. 43-14) at 9; Harris' Dep. I (ECF No. 43-4) at 63-64.) In certain circumstances, if a teacher possesses certain prerequisites, he or she may obtain additional certifications by taking a test. (Deposition of Sylvia Wilson (" Wilson's Dep." ) (ECF No. 43-7) at 35.)

Schools receive specialized federal funding for CTE programming. (Stewart's Dep. (ECF No. 43-5) at 7.) Schools annually receive around five hundred dollars per student enrolled in a CTE program offered at that school. (Id.) The funding for CTE is connected to the teachers and their certifications. (C.S.F. (ECF No. 62) ¶ 51; Stewart's Dep. (ECF No. 43-5) at 25-26; Harris' Dep. I (ECF No. 43-4) at 53-54.) A report is sent from the school district to PDE once a year with respect to each course, including the name and certifications of the teacher of that course and the number of students enrolled in that course. (Stewart's Dep. (ECF No. 43-5) at 25-26.) A teacher cannot teach a course he or she is not certified to teach unless an emergency permit is issued. (C.S.F. (ECF No. 62) ¶ 51; Stewart's Dep. (ECF No. 43-5) at 25-26; Harris' Dep. I (ECF No. 43-4) at 53-54.)

" An Emergency Permit is requested when a public school entity needs to hire an educator, but is unable to locate a fully qualified individual that holds a valid and active teaching certificate in the appropriate subject area." (ECF No. 60-8 at 1; Harris' Dep. I (ECF No. 43-4) at 53-54.) In those circumstances, the school district must apply for an emergency permit from the PDE to permit an employee currently enrolled in a program to acquire the necessary certification to hold that position although he or she has not met the qualifications necessary for certification by the PDE. (Id.) " In the case of a permanent opening (vacant position), the school entity must continue to make every effort to fill the vacancy with a fully qualified and properly certified professional employee" subject to two limited exceptions: (1) " when the position is slated to be collapsed; " or (2) " when the vacancy occurs during the last half of the second semester." (ECF No. 60-8 at 1.) In order to apply for an emergency permit for a vocational instructional area,

[t]he school entity is required to post any vacant or long-term substitute positions for a minimum of 10 days on the school entity's website. If no qualified candidate has been identified, an Emergency Permit application can be submitted.

(ECF No. 60-8 at 6.) An emergency permit is issued for as long as it takes an individual to meet the requirements for certification; provided, he or she is taking classes equal to nine credits a year toward that certification. (Harris' Dep. I (ECF No. 43-4) at 73.)

CTE Staffing Certification Issues - Fall 2007

When Stewart began her job with PPS, her first concern was that members of the district's CTE department staff were not properly certified according to PDE's standards. (Stewart's Dep. (ECF No. 43-5) at 9.) In August 2007, PPS received a memorandum from PDE clarifying the requirements needed for supervising vocational education programs (the " PDE memorandum" ). (ECF No. 51-14 at 14.) The PDE memorandum provided that a vocational

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supervisory certificate or vocational director certificate is required when fifty percent or more of an assignment is related to supervising vocational education programs. (Id.)

In the fall of 2007, Stewart received a letter from PDE advising that it would be conducting a 339 audit of PPS. (C.S.F. (ECF No. 62) ¶ 49; Stewart's Dep. (ECF No. 43-5) at 9.) The 339 audit occurred in October, November, and December 2008. (Stewart's Dep. (ECF No. 43-5) at 28-29.) In response to that notification, Stewart had a list developed of CTE central office staff and CTE teachers and their respective certifications and what the certifications permitted them to do or teach. (C.S.F. (ECF No. 62) ¶ 50; Stewart's Dep. (ECF No. 43-5) at 11.) Stewart determined who was and was not certified with respect to the positions each person held. (C.S.F. (ECF No. 62) ¶ 51; Stewart's Dep. (ECF No. 43-5) at 11, 12, 32.)

Stewart learned that none of the PPS employees working in the CTE central office had a vocational supervisory certificate or vocational director certificate, meaning they were not certified according to PDE standards to hold supervisory positions within the CTE department. (Stewart's Dep. (ECF No. 43-5) at 9; ECF No. 51-14 at 14.) The following bullets identify the certifications that were held.

o Plaintiff had an instructional II certificate in distributive education; an instructional II certificate in cooperative education 7-12; and an educational specialist I certificate in secondary school guidance. (C.S.F. (ECF No. 62) ¶ 10; Pl.'s Dep. (ECF No. 43-2) at 30; ECF No. 51-1 at 17, 42.) Plaintiff obtained her distributive education and cooperative education certifications in 1991, and they are valid for ninety-nine years. Plaintiff obtained her secondary school guidance certificate in 1979, and it was valid for three years. (Pl.'s Dep. (ECF No. 43-2) at 30; ECF No. 43-3 at 20.)
o Anderson had an assistant superintendent letter of eligibility; and certifications in secondary principal; distribution education, and cooperative education. (ECF No. 51-1 at 17.)
o W. Cook had a superintendent letter of eligibility and certifications in secondary principal, general electricity, and social studies. (Id.)
o Banks had superintendent and assistant superintendent letters of eligibility; an instructional II certificate in home economics; and an administrative II certificate in secondary principal. (Id. at 17, 40; Banks' Dep. (ECF No. 43-8) at 7.)

After receiving the PDE memorandum and letter from PDE, Stewart informed the human resources department about the various individuals on the list who were in positions they were not certified to hold. (C.S.F. (ECF No. 62) ¶ 52; Stewart's Dep. (ECF No. 43-5) at 11, 12, 32.) Stewart worked with Marlene Harris (" Harris" ), the manager of recruiting and staffing for PPS, and Frank Chester (" Chester" ), the chief of human resources for PPS, to resolve the issues raised by the certification discrepancies. (Stewart's Dep. (ECF No. 43-5) at 12; Harris' Dep. I (ECF No. 43-4) at 32.)

Harris, who was born in 1957, is an African-American female. (Dobies-Sinicki's Decl. (ECF No. 43-6) ¶ 5.) She was responsible for the hiring of all the professional staff for PPS, placing the staff into open vacancies as part of the transfer process, new hiring, hiring individuals into open positions, resignations, and furloughs. (Harris' Dep. I (ECF No. 43-4) at 17.) It

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was Harris' job to understand PDE certification requirements. (Id. at 21.)

Chester sent plaintiff, Banks, W. Cook, and Anderson each a letter dated October 19, 2007 (the " letter" ) advising them that the PDE memorandum " clarif[ied] the requirements needed for supervising vocational education programs." (ECF No. 51-1 at 14; Banks' Dep. (ECF No. 43-8) at 15-16; ECF No. 43-5 at 49.) The letter provided:

A vocational supervisory certificate or vocational director certificate is mandated when 50% or more of an assignment is related to supervising vocational education programs. To this end, it will be necessary for you to secure the Vocational Supervisory or Vocational Director certificate in order to remain in your present position.

(Pl.'s Dep. (ECF No. 43-2) at 55-57; ECF No. 43-3 at 23, 24-25; ECF No. 43-5 at 48, 49; ECF No. 51-1 at 14.) The letter also advised its recipients to contact Don Gamble (" D. Gamble" ), Director of Vocational Education at Indiana University of Pennsylvania (" IUP" ),[1] " to review [their] credentials and discuss the requirements necessary to obtain this additional certification," and to contact Harris by November 1, 2007 with information concerning the recipients' plans with respect to obtaining the certification. (Pl.'s Dep. (ECF No. 43-2) at 187-88; ECF No. 43-3 at 23; Harris' Dep. I (ECF No. 43-4) at 68-70.) The PDE memorandum was attached to the letter and provided that chapter 339.41(5) " clearly mandates the requirement of a Vocational Supervisory or Vocational Director Certificate if 50% or more of an educator's assignment is related to supervising vocation education programs." (ECF No. 43-3 at 24-25.)

Plaintiff, Banks, and W. Cook each supervised different programs as staff specialists in the CTE department. Plaintiff supervised business programs; Banks supervised family consumer sciences; and W. Cook supervised trade and industry. (Banks' Dep. (ECF No. 43-8) at 8-9.) Banks spent 60% of her time supervising CTE teachers and staff. (Id. at 14-15.) Plaintiff's job responsibilities included monitoring teachers in the classroom, curriculum writing, textbook adoption, handling budgets, ordering supplies and materials, visiting teachers in schools, helping to write reform plans, and developing programs and student partnerships with universities and businesses. (Pl.'s Dep. (ECF No. 43-2) at 43-44.) Plaintiff asserts that in her role as a staff specialist, she spent less than 50% of her time acting in a supervisory capacity. (Id. at 56-57.)

Stewart testified that plaintiff was a supervisor requiring either the vocational supervisory or vocational director certification, offering the following explanation:

Well, when you spend a certain percentage of time doing supervisory jobs, going out into the schools, overseeing the teachers, helping the teachers if they needed help with special projects, making sure that what they did and what they taught was in line with what the state expected, if you were doing that kind of work, then you were considered to be a supervisor. And she was doing that kind of work most of the time if not all the time.

(Stewart's Dep. (ECF No. 43-5) at 21-22.) Harris testified that plaintiff was a supervisor requiring additional certification, explaining that plaintiff supervised business

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education teachers and performed the following supervisory duties:

consulting with the teachers, conferring with the teachers, giving teachers pointers in terms of their job responsibilities. That was the role the supervisor served, as well as evaluate.

(Harris' Dep. I (ECF No. 43-4) at 50.)

While working as a staff specialist, plaintiff never contested the assertion by PPS that she lacked a vocational supervisor or vocational director certification to do her job according to PDE standards. (Pl.'s Dep. (ECF No. 43-2) at 57.) On June 6, 2008, almost eight months after receiving the letter and PDE memorandum, plaintiff sent an email to Chester, Harris, and Stewart, among others, writing: " I acknowledge that I do not possess the required certification." (ECF No. 60-1 at 28.) On August 17, 2008, plaintiff completed an Internet Initial Claims form with the Department of Labor & Industry, Bureau of Unemployment Compensation benefits and Allowances, in which she wrote: " I worked as a Teacher on Special Assignment in a supervisory capacity (192 days) for over 10 years." (ECF No. 60-1 at 13.)

Prior to September 19, 2007, plaintiff, along with Banks, Anderson, and W. Cook, met with D. Gamble to learn what the certification requirements were under chapter 339 and what steps were necessary to achieve those certifications. (Stewart's Dep. (ECF No. 43-5) at 13; Pl.'s Dep. (ECF No. 43-2) at 51-52, 179-80; Banks' Dep. (ECF No. 43-8) at 29, 32.) It was Stewart's position that plaintiff, Banks, Anderson, and W. Cook could not " continue to work in the position[s] they were unless they became certified and made some effort to do it." (Stewart's Dep. (ECF No. 43-5) at 44-45.) Anderson was enrolled at IUP to obtain the required certifications, but retired before she became certified. (Pl. 61; Stewart 19-20.) W. Cook obtained his certification, but retired as well. (Pl.'s Dep. (ECF No. 43-2) at 62; Deposition of Yvette Cook (" Y. Cook's Dep." ) (ECF No. 43-10) at 41.) Banks decided not to obtain the supervisory certification. (Banks' Dep. (ECF No. 43-8) at 16.)

Plaintiff testified that she had every intention of enrolling in the program at IUP to obtain the necessary certification, but Harris, Stewart, or D. Gamble never explained that process to her. (Pl.'s Dep. (ECF No. 43-2) at 53; Pl.'s Aff. (ECF No. 51-1) ¶ 8.) Plaintiff testified that Harris contacted her with respect to whether she had enrolled in classes to obtain the supervisory certification, and that she told Harris that she had not yet registered, but was " looking at the website." (Pl.'s Dep. (ECF No. 43-2) at 54.) Plaintiff testified that no one explained to her that she only had to enroll in classes for nine credits per year and could obtain an emergency permit to maintain her staff specialist position. (Pl.'s Dep. (ECF No. 43-2) at 53.)

Plaintiff asserts that she eventually decided not to pursue the certification because she would not have the time as a full-time student to complete the required coursework. (Affidavit of Plaintiff (" Pl.'s Aff." ) (ECF No. 51-1) ¶ ¶ 8, 9.) Plaintiff learned about the option of obtaining an emergency permit while taking classes for nine credits per year to maintain her position from Harris' notes. (Pl.'s Dep. (ECF No. 43-2) at 53-54.) In those notes, Harris referred to a telephone call with Banks in which she informed Banks that obtaining an emergency permit was an option. (Id.) Harris' notes provided in pertinent part:

Cherri asked if anyone, other than the Superintendent, has a waiver of certification. I told her that he was the only one that was issued a waiver by the state since he was a non-traditional superintendent.

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I told her that we issue emergency [permits] for individuals to enable them to complete their certification requirements and that is what she would be getting once she is enrolled in a program. The requirement is to complete 9 credits a year until the certification is complete.

(ECF No. 51-1 at 15.) Harris testified that the option to obtain an emergency certification did not apply to Davis because she did not have a supervisory or administrative certification, either of which are prerequisites for the vocational director or vocational supervisory certificate. (Harris' Dep. I (ECF No. 43-4) at 62.)

On September 11, 2007, plaintiff emailed Anderson and copied Banks on the email writing: " As discussed at the meeting with Don Gamble, please send us the website for IUP's certification program." (ECF No. 43-3 at 22.) On September 19, 2007, plaintiff emailed D. Gamble inquiring about IUP's website and information with respect to what she needed to do to obtain her certification. (Id. at 27.) D. Gamble responded to plaintiff's email later that same day with a link to IUP's website, writing " [l]ook this over and give me a call." (Id.) Plaintiff did not again communicate with D. Gamble until she emailed him on April 1, 2008, informing him that she had been off work on sick leave from December 2007 through April 1, 2008. (Id. at 26.) Plaintiff wrote: " I am going to look at the website again to see what I need to do to get certified. I think the next class starts in September is that correct?" (Id.) D. Gamble responded to plaintiff's email on the same day informing her that registration for the fall semester began on March 31, 2008, and fall classes would begin on August 25, 2008. (ECF No. 43-3 at 26.) D. Gamble requested that plaintiff look over the information about applying to IUP's graduate school. (Id.) D. Gamble forwarded plaintiff's September 19, 2007 email, his response to that email, plaintiff's April 1, 2008 email, and his response to that email to Harris on June 9, 2008. (Id.)

Plaintiff received the October 19, 2007 letter from Chester instructing her to contact Harris about her plans with respect to obtaining the certification, but she never contacted Harris with respect to whether she intended to seek the required certifications. (Pl.'s Dep. (ECF No. 43-2) at 188.) Plaintiff never communicated to Stewart that she was interested in pursuing the certifications at issue in the upcoming 339 audit. (Stewart's Dep. (ECF No. 43-5) at 49.) Stewart testified that during a meeting in her office with plaintiff, plaintiff was " very noncommittal" with respect to whether she was going to obtain the supervisory certification. (Id. at 19.) Plaintiff never enrolled in courses to obtain her supervisory certificate. (Pl.'s Dep. (ECF No. 43-2) at 30.)

As referenced above, plaintiff was on medical leave from mid-November 2007 through April 2008. (Pl.'s Aff. (ECF No. 51-1) ¶ 6; ECF No. 43-3 at 26.) In January 2008, Yvette Cook (" Y. Cook" ), a CTE teacher at Carrick High School (" Carrick" ), ceased working as a teacher at Carrick and began working in the CTE department to assist Stewart in preparing for the upcoming 339 audit. (Y. Cook's Dep. (ECF No. 43-10) at 7-8.) Y. Cook testified that she was asked to work in the CTE department because she " was the only one in the school district certified as a supervisor of vocational education." (Id. at 7.) Y. Cook had the following certifications: instructional II in distributive education; instructional II in cooperative education 7-12; instructional II in secretarial 7-12; instructional II in typewriting; supervisory I in vocational education; and administrative I in secondary principal. (ECF No. 51-1 at 43.) In her position at the CTE central office, Y. Cook worked with the business education teachers to

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make sure that all essential documentation relating to each business program was in order for the audit. (C.S.F. (ECF No. 62) ¶ 38; Y. Cook's Dep. (ECF No. 43-10) at 9.)

Plaintiff returned to work in the CTE central office in April 2008. (ECF No. 43-3 at 26.) On June 5, 2008, plaintiff received an email from Chester and Mona Dine (" Dine" ), director of recruiting and staffing for PPS, with respect to her position in the CTE department. (ECF No. 43-3 at 28.) The email provided:

As you are aware, a PA Career and Technical Education Supervisor is required to have a valid Career and Technical Education Supervisor Certificate. You do not possess this Certificate. As such, you are not qualified to continue in your role in CTE and will be reassigned back into the classroom according to your qualifications. Your current position ends on June 13, 2008 in accordance with your 10 month contract.
If you have any questions, please do not hesitate to contact me.

(Id.) Davis testified that she was not surprised by this email because it was a follow-up to the letter she previously received from Chester with respect to the certification issues. (Pl.'s Dep. (ECF No. 43-2) at 71-72.)

On June 6, 2008, plaintiff emailed Dine. Plaintiff, in pertinent part, wrote:

I realize that I do not possess the required certification. However, are [sic] aware, that the state will allow a non-certified person to remain in a position as long as they become certified within three years of notification?

(ECF No. 43-3 at 31.) On June 9, 2008, Dine responded to plaintiff's email, writing:

I am not aware of the State requirement of becoming certified within three years of notification. If you have any information on this, please provide [sic] to me. Please let me know if you have any questions or would like to discuss further.

(Id.) Plaintiff's last day as a staff specialist in the CTE central office was June 13, 2008. (Pl.'s Dep. (ECF No. 43-2) at 71; ECF No. 43-3 at 28.)

Curriculum Coordinator Position - Banks

As a teacher on special assignment, plaintiff had a ten-month contract with PPS, meaning she worked during the academic year, which amounted to 192 days per year. (ECF No. 43-3 at 15, 28.) As an ATCD Staff Specialist, Banks was paid on the Support Administrators Salary Plan. (ECF No. 60-5 at 6.) Banks worked throughout the summer months. (Banks' Dep. (ECF No. 43-8) at 24.)

Banks continued to work in the CTE central office from June 2008 through October 2008. (Banks' Dep. (ECF No. 43-8) at 19-20.) It was Stewart's intention as early as April 17, 2008 to " [r]etain Dr. Cherri [sic] Banks until the end of summer to assist with Chapter 339 revisions at which time she may move on to another designated position in the district." (ECF No. 51-1 at 22, 28.) During the summer months, Banks did not have much involvement with teachers because they were off for the summer. (Banks' Dep. (ECF No. 43-8) at 24.) In explaining why she retained Banks instead of Davis, Stewart testified that Banks and Davis

were two different people with two different sets of skills and certifications. Dr. Banks not only had her doctorate, which Ms. Davis did not, Dr. Banks also had her superintendent's papers which gave her knowledge that Ms. Davis did not. She had worked as a principal that Ms. Davis didn't have that knowledge base and also as a deputy superintendent or assistant superintendent. So she had a lot of knowledge in a lot of different areas that Ms. Davis did not

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possess, and she had been in career and technical education, you know, for a while and she had become quite knowledgeable about that. And I just felt that she had a great knowledge base and that she'd be able to be of help to me, and that Ms. Davis didn't have the same qualifications.

(Stewart's Dep. (ECF No. 43-5) at 33-34.) At first, Stewart did not intend to have Banks employed in the CTE central office after the summer of 2008. (Id. at 41.) Stewart testified:

I found that over the summer [Banks] was a great help to me in preparation for the audit and I knew the audit was coming up in the fall, and I asked Dr. Lane and Mr. Camarda in charge of budgeting if we could find some money and talk to Dr. Lane about the possibility of her continuing to work. We needed the help badly.

(Id.) Stewart testified that she tried to

find a way to have [Banks] continue to help [her] and to find a job that she could do in a job description that would fit what [Stewart] needed done and what the Pittsburgh Public School District had in their resources of jobs that would be equal to the amount of money she was currently earning, because they didn't want to give her a promotion.

(Id. at 42.) If Banks was going to stay in the CTE central office after August 2008, a job needed to be created for her. (Id. at 43.) Stewart worked with Chester and Linda Lane, Deputy Superintendent of Instruction, Assessment and Accountability, with respect to Banks remaining employed in the CTE central office. (Stewart's Dep. (ECF No. 43-5) 43-44; Dobies-Sinicki's Decl. (ECF No. 43-6) ¶ 12.)

On October 27, 2008 and through October 31, 2008, PPS posted a position for CTE curriculum coordinator. (ECF No. 51-4 at 19-21.) Plaintiff knew that the coordinator position had been posted, but did not apply for the job. (Pl.'s Dep. (ECF No. 43-2) at 63-65.) The listing for the position indicated the position paid a support administrator's salary. (ECF No. 51-4 at 19.) Banks recalled having one conversation with Chester about needing a job and one conversation with Stewart with respect to whether Banks wanted to continue to work in the CTE central office prior to applying for the curriculum coordinator job. (Banks' Dep. (ECF No. 43-8) at 17-18, 21.) Banks never received a telephone call from the superintendent's office with respect to the coordinator job before she applied for the position. (Id. at 21.) Banks applied and was interviewed and hired for the coordinator position. (Id. at 18-19.)

Plaintiff testified that Banks' position as coordinator of CTE was " the same job description that the three of us did when we were responsible for each different department." (Pl.'s Dep. (ECF No. 43-2) at 60-61.) Banks provided the following testimony with respect to how the staff specialist position compared with the curriculum coordinator position:

I had no more supervisory responsibilities. It shifted totally to curriculum development, program development around career and technical education standards. And it also shifted to working across, instead of just more high school, it worked across all three levels, elementary, middle and high school, specifically around the implementation and integration of these career education work standards that the governor expected to be taught across school districts, and a lot of work around curriculum development and professional development.

(Banks' Dep. (ECF No. 43-8) ...


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