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Vogel v. Pittsburgh Public School District

United States District Court, W.D. Pennsylvania

August 21, 2014

ROBERT VOGEL, Plaintiff,

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[Copyrighted Material Omitted]

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For ROBERT VOGEL, Plaintiff: Lisa M. Goodman, LEAD ATTORNEY, Jones, Gregg, Creehan & Gerace, LLP, Pittsburgh, PA; David M. Huntley, Jones, Gregg, Creehan & Gerace, Pittsburgh, PA.

For PITTSBURGH PUBLIC SCHOOL DISTRICT, Defendant: Brian P. Gabriel, LEAD ATTORNEY, Campbell Durrant Beatty Palombo & Miller, P.C., Pittsburgh, PA; Lisa M. Goodman, LEAD ATTORNEY, Jones, Gregg, Creehan & Gerace, LLP, Pittsburgh, PA.

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Joy Flowers Conti, Chief United States District Judge.

In this civil action, plaintiff Robert Vogel (" Vogel" or " plaintiff" ), a former employee of the Pittsburgh Public School District (" PPSD" or the " District" ), alleges that he was subjected to unlawful age-related discrimination and retaliation in connection with two adverse ratings which he received relative to the 2010-2011 and 2011-2012 school years. Because of his two consecutive adverse ratings, Vogel was unable to retain his teaching position with the District. He now seeks relief against PPSD under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq (" ADEA" ).[1] Presently pending before the court is PPSD's motion for summary judgment (ECF No. 26), which will be granted for the reasons that follow.

I. Factual Background

Vogel was born in 1954 and was fifty-seven years old as of January 12, 2012, the date he received his second unsatisfactory rating. (DSMF 13, 124.)[2] Between 1990 and 1996, Vogel was employed by PPSD in various capacities as a substitute teacher. (DSMF 14.) Part way through the 1996-1997 school year, Vogel assumed a full-time position teaching 6th grade social studies and science at Rogers Middle School for the Creating and Performing Arts (" Rogers" ) within the District. (DSMF 15.) Vogel continued in that capacity until Rogers closed in June 2009 and merged into the Pittsburgh Creative and Performing Arts High School, resulting in the formation of a new joint school known as " Pittsburgh CAPA 6-12" (" Pittsburgh CAPA" ). (DSMF 15, 40.)

Vogel began teaching at Pittsburgh CAPA at the start of the 2009-2010 school year and remained there until his employment with the District was terminated in January 2012. (DSMF 41, 124.) During Vogel's tenure at Pittsburgh CAPA, Melissa Pearlman (" Pearlman" ) was the school's principal, a position she had held since April 2009. (DSMF 23.) Joan Murphy (" Murphy" ) served as at various times as the intervention coach, acting assistant principal, and " Director of the 6-8 School." (DSMF 38; Murphy Dep. 6:4-7:17, ECF No. 29-10.) Anita Ravi (" Ravi" ) served as the social studies curriculum supervisor and was later replaced in that capacity by Michael Dreger (" Dreger" ). (DSMF 30.) Ronald Jones, Ph.D. (" Jones" ), was the director of Pittsburgh CAPA and had previously served as the principal of Rogers during Vogel's final year there. (DSMF 38.) Patti Camper (" Camper" ) was the PELA[3] Resident at Pittsburgh CAPA for the 2010-2011 school year. (DSMF 39.) As supervisory personnel, Pearlman, Murphy, Ravi, Dreger, Jones, and Camper

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were all state certified to conduct formal observations of teachers and evaluate them. (DSMF 23, 29, 31, 38; Spolar Dep. 29, ECF No. 29-5.)

In his first year at Pittsburgh CAPA, Vogel taught four 6th grade social studies classes and one 6th grade science class, served as the bus transportation coordinator, coached three sports, and was the 6th grade Instructional Teaching Leader (" ITL" ). (DSMF 42.) Vogel did not believe that the school consolidation was a good idea, and his transition to Pittsburgh CAPA was admittedly difficult. (DSMF 43, 44.) Among other things, he perceived " friction" between the teaching staffs from the two schools and felt that the Rogers' teachers " were like the unwanted stepchild" to unwelcoming high school teachers and a principal " forced to accept" them. (DSMF 45, 46.) He believed that neither Pearlman nor the high school staff " were prepared to deal with 300 middle school kids'their building.'" (DSMF 47.)

Despite these difficulties, Pearlman rated Vogel's performance " satisfactory" for the 2009-2010 school year. (DSMF 51.) Prior to the end of that year, Pearlman asked Vogel whether he wanted to teach social studies or science because he was teaching two subjects in addition to serving as transportation coordinator and coaching three sports. (DSMF 52.) Vogel chose to teach social studies and, beginning with the 2010-2011 school year, he taught four 6th grade classes and one 7th grade class. (DSMF 53.) Vogel was in favor of this arrangement because it made his workload more manageable. (DSMF 54.)

Vogel's Performance Evaluation for the School Year 2010-2011

Pursuant to the District's standard procedure, administrators observed Vogel's classroom in the beginning of the 2010-2011 school year. (DSMF 26, 59.) Jones, the Pittsburgh CAPA director, informally observed Vogel on September 13, 2010. (Murphy Dep. Ex. 1, PPSD-000442, ECF No. 29-11.) During this class session, Jones noted two girls engaged in a private conversation and writing on each other's hands, apparently unnoticed by Vogel, while another student was reading aloud to the class. (Id. at PPSD-000485.) Jones reported that Vogel had devoted too much time on the warm-up portion of the class, and he questioned whether Vogel's set up of group tables was designed to facilitate learning. (Id.)

On September 28, 2010, Jones conducted a formal observation of one of Vogel's social studies classes. The lesson for that day required students to use computers to conduct research on the history of Pittsburgh and then select five photographs from a website which they would then write about. (Id. at PPSD-000455, ECF No. 29-11.) Jones noted that no " Learning Objective" or " Overarching Question" had been posted on the board for students to reference throughout the period. As he circulated throughout the classroom to help students access the website, Jones observed " a great deal of side bar conversations unrelated to the learning activity." (Id.) By the end of his observation, most students had only written about two or three photographs. Jones held a follow-up conference with Vogel and provided him a copy of his report, in which he wrote:

I have a concern relative to the length of the warm-up and why this learning activity consumed so much of the 6th period. Secondly, because students experienced difficulty accessing the web site your students were very noisy, and I am not sure what rituals and routines are in place for this class. Finally, I wonder what preparation occurred prior to your class engaging in this learning activity to

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ensure that students could easily access the web site and the photographs students were to select for the activity.

(Murphy Dep. Ex.1 at PPSD-000455, ECF No. 29-11.) Jones recommended that Vogel " [c]reate ways to engage students in collaborative group work," " [p]lace the learning objective(s) on the board so that students can reference them throughout the class period and so that they know the expectations for the time spent in [the] classroom," and " [e]stablish rituals and routines to create a more orderly method" for student participation and group work. (Id. at PPSD-000456.)

On November 22, 2010, Pearlman and Camper conducted an informal observation of Vogel's sixth period geography class. (Murphy Dep. Ex. 1 at PPSD-000442, PPSD-000487, ECF No. 29-11.) On that date, Vogel was showing his class a video about the Lewis and Clark expedition. Pearlman and Camper did not believe that the film was aligned with the District's geography curriculum, and they met with Vogel two days later to discuss their concerns. (Id.) Camper reported that no overarching question was posted for the lesson and students were unable to explain how the lesson tied in to the culminating project on U.S. cities. (Id. at PPSD-000488.) She noted that only five of twenty-six students spoke during the discussion segment. (Id.) Pearlman wondered what methods Vogel had in place to ascertain whether the objective of the lesson (i.e., learning how the Lewis and Clark expedition opened the western U.S. for expansion and settlement) had been achieved. (Id. at PPSD-000489.)

Camper informally observed Vogel again on November 29, 2010 during his seventh period social studies class. On that date, students were conducting presentations on the city of their choice as part of a culminating unit project. Camper reported that the assignment had been modified from the way that it was written in the curriculum. (Murphy Dep. Ex. 1, PPSD-000442, ECF No. 29-11.) Ravi informally observed these student presentations two days later and reported that the material being presented on power points was factually incorrect. (Id. at PPSD-443, ECF. No. 29-11.)

On December 7, 2010, Camper conducted a formal observation of Vogel's world geography and archaeology class. (Murphy Dep. Ex. 1, PPSD-455, ECF No. 29-11.) The objectives posted on that day required the students to choose three cities and countries in Latin America to research on the internet and then answer specific questions on a graphic organizer concerning the student's chosen mode of transportation, the city's vegetation and climate, the location where the student would stay, and what food he or she would eat. (Id.) Camper noted that the assignment sheet had been adapted from the curriculum and that the objective that had been posted did not indicate a learning outcome. (Id.) When Camper asked students to identify the final destination of the activity on a map, only three of twelve could do so and none had been given directions on how to search for information. (Id.) None of the twelve students Camper spoke with were aware of their grade to date, and none of the six binders Camper checked included completed or evaluated student work. (Id. at PPSD-456, ECF No. 29-11.) Camper noted that all twenty-six students in the class had received the same assignment sheet and graphic organizer, and there was no evidence of differentiation in the lesson among the various students based on their individual capabilities. (Id. at PPSD-455-456.) By the end of the class, only three of the twenty-six students had been able to complete the graphic organizer, and Camper saw no evidence

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of Vogel conducting a formative assessment so as to determine which students had achieved the objective. (Id. at PPSD-456.)

Camper met with Vogel on December 8, 2010, to discuss her observations and offer recommendations for better planning, engaging all students, and improving the use of classroom technology. (Murphy Dep. Ex. 1, PPSD-000456, ECF No. 29-11.) Camper recommended that Vogel utilize the curriculum to " begin to include the overarching question for each unit or model, as well as the intended objective for the lesson, intended student work products and assessment for measuring student mastery of the intended objective." (Id.) Camper felt that Vogel should " [p]lan more purposeful groupings" of his students " based on student data" and " include the use of the student notebooks to provide students with scaffolds and reflection tools from the previous lesson." (Id.) She recommended that he " [p]rovide students with modeling and direct instruction on how to effectively utilize technology." (Id.)

Following the foregoing evaluations, Vogel was placed on an Employee Improvement Plan (" EIP" ) effective December 15, 2010. (DSMF 64, 68.) According to PPSD, an EIP is a plan of support given to teachers who are not proficient in their classroom practice and who need guidance in order to become more effective. (DSMF 56.) Vogel's EIP indicated the following areas of practice where improvement was needed:


Evidence[ ] planning which reflects school district goals and adopted curriculum.
Use[ ] student achievement data in planning.
Evidence planning which incorporated elements of effective lesson design.
Select[ ] appropriate instructional materials to meet student needs.

Technique :

Demonstrate[ ] pedagogical and professional understanding and proficiency.
Teach[ ] to an objective.
Utilize[ ] instructional time effectively and monitor[ ] student learning and adjust[ ] teaching to enhance achievement.
Engage[ ] students in learning experiences that make connections between what students are learning and the practical applications of what is taught.
Assess[ ] student progress using the adopted student assessment system and professional practices.

Student Reaction :
[Ensure that] [s]tudents are actively engaged in learning.
[Ensure that] [s]tudents are guided and stimulated toward achievement of high standards.

(Murphy Dep. Ex. 1, PPSD 450, ECF No. 29-11.) Plaintiff's responsibilities under the EIP were articulated as follows:

1. Utilize the 6th and 7th grade Social studies curriculum in planning and preparation for daily lessons.
2. Identify learning objectives and post the daily objective for students in each lesson.
3. Maintain the pace established by the curriculum and a planned daily agenda for each class.
4. Design lessons with an opening activity, time for students to engage in the content and a summary or wrap-up.

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5. Engage students through use of accountable talk moves, turn and talk, pair-share or small groups.
6. Group students using a variety of formative achievement data, [differentiating] instruction for varied level learners so that all students produce quality work aligned with the curriculum.
7. Maintain student notebooks that include evaluated work, notes and student writings.
8. Continue to use technology in lesson design to enhance students [sic] learning.
9. Observe current 6th grade students in other content areas and other 6th /7th grade Social studies classes for use of Accountable Talk and student engagement.
10. Collect formative assessment data to guide instruction.

(Murphy Dep. Ex. 1, PPSD-000451, ECF No. 29-11.)

Those present for Vogel's EIP meeting included Pearlman, Camper, Vogel, a union representative from the Pittsburgh Federation of Teachers (" PFT" ), and Kate Daher (" Daher" ), a high school social studies teacher and Instructional Team Leader (" ITL" ) for the social studies department. (DSMF 32, 68.) Daher did not believe that Vogel needed to be placed on an EIP, and she expressed this view. (Pl.'s Aff. ¶ 9, ECF No. 35-17; Keeney Aff. ¶ 9, ECF No. 35-11.) Vogel also believed the EIP was unjustified, and he refused to sign it. (DSMF 71-72.) He testified that he felt the administration at Pittsburgh CAPA was being " biased and discriminatory" in placing him on an EIP because he " had been a satisfactory teacher for all these years," and the administrators were " coming in and observing [his] class saying that [he was] doing every wrong." (DSMF 72.) Although Vogel " felt it was [his] age, that they were looking to replace [him], and this was their method of doing it" (id.), he does not claim to have expressed his suspicion at that time. During the meeting, Vogel inquired about what the EIP would entail, and he was informed by Pearlman that it would be a " two-year process." (Pearlman Dep. 96:1-6, ECF No. 35-2.)

On January 3, 2011, Pearlman observed Vogel's 7th grade social studies class involving a unit on India. (DSMF 74; Murphy Dep. Ex. 1, PPSD-000457, ECF No. 29-11.) On that day, Vogel had posted an overarching question for the lesson and a warm-up, which required the students to identify five accomplishments of the Maurya and Gupta Empires. (Id.) Pearlman observed that it was unclear how long students had to work on the warm-up and, as a result, the warm-up ran long and students ran out of time to complete a subsequent web-search activity. (Id. at PPSD-000460.) She found that there was " no closure to the lesson so it was unclear as to what next steps would occur for students to finish the chart [they were working on]." (Id.) Pearlman recommended that Vogel consider how he could hold students more accountable to time parameters, as this was the way " to teach students about the importance of staying on task and placing a value on the subject matter at hand." (Id.) She questioned how Vogel was using formative assessments as a means of determining whether students were meeting the lesson's objective. She wrote in her post-observation conference report:

I did not observe you writing anything down or keeping track of what students were saying and when. This became evident when not all students were contributing or being called on. Several students were called on more ...

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