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Mahler v. Community College of Beaver County

United States District Court, W.D. Pennsylvania

August 22, 2014


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[Copyrighted Material Omitted]

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For DOUGLAS MAHLER, Plaintiff: Mary Chmura Conn, LEAD ATTORNEY, Washington, PA; Paul A. Tershel, Tershel & Associates, Washington, PA.

For COMMUNITY COLLEGE OF BEAVER COUNTY, Defendant: Amie A. Thompson, LEAD ATTORNEY, Andrews & Price, Pittsburgh, PA; Anthony G. Sanchez, LEAD ATTORNEY, Sanchez Legal Group, LLC, River Park Commons, Pittsburgh, PA.

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Joy Flowers Conti, Chief United States District Judge.

I. Introduction

Douglas L. Mahler (" Plaintiff" or " Mahler" ) sued his former employer, Community College of Beaver County (" Defendant" or " CCBC" ), for discrimination based upon his age in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. (" ADEA" ), and the Pennsylvania Human Relations Act, 43 Pa.Stat. § 951 et seq. (" PHRA" ). Presently pending before the court is CCBC's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 69). Upon consideration of the parties' submissions and for the reasons set forth below, CCBC's motion will be denied.

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II. Factual Background and Procedural History[1]

CCBC is a " comprehensive community college" located in Monaca, Pennsylvania, and at all times relevant to this case, Dr. Joe Forrester (" Forrester" ) was the President of CCBC. (ECF No. 97 ¶ 1). Mahler was employed by CCBC as the Director of Financial Aid (" DFA" ) from approximately 1996 through June 30, 2010. (ECF No. 16 ¶ 7). CCBC's fiscal year ran from July 1 to June 1 of each calendar year, and in projecting its revenue for each fiscal year, CCBC relied on subsidies provided by Beaver County, student revenue from tuition and fees, and state funding from the Commonwealth of Pennsylvania (the " Commonwealth" ). (ECF No. 97 ¶ ¶ 2-3).

CCBC encountered " significant financial challenges" in developing its budget for the 2010-2011 school year. (ECF No. 97 ¶ 6). In 2008-2009, Pennsylvania's General Assembly reduced funding for community colleges by 9.2%, and allocated federal " stimulus" funding to supplant the reductions. Id. ¶ 8.[2] In October 2009, CCBC initiated its financial planning for the 2010-2011 school year in order to qualify for funding from Beaver County, whose fiscal year ran from January to December of each calendar year. Id. ¶ ¶ 2, 4. CCBC assumed that the distribution of revenues from the Commonwealth for the 2010-2011 school year would remain constant, and that funding would remain flat for the third consecutive year. Id. ¶ 9.[3] During this period of flat support, CCBC was experiencing record levels of enrollment. Id. ¶ 11.

Faced with projections of continued flat support from the Commonwealth, record levels of enrollment, and increased operating costs, CCBC predicted a potential deficit of approximately $1,600,000.00 for the 2010-2011 school year. (ECF No. 97 ¶ 12). Forrester was aware that, under federal legislation, stimulus money would no longer be available to CCBC in 2011-1012, and that CCBC needed to anticipate a loss in its funding from the Commonwealth of approximately 9.2 percent once the stimulus money was no longer available. Id. ¶ 13.

In light of this projected financial shortfall, CCBC began to develop strategies in November 2009 to " clos[e] the gap" between its projected revenue and expenditures. (ECF No. 97 ¶ 14). According to CCBC, beginning in November 2009, Forrester " engaged in [ongoing] discussions" with respect to budget development, early retirement, and " organizational restructuring" with Judy Garbinski (" Garbinski" ), CCBC's Vice President of Learning and Student Success and Provost, Vice President of Finance and Operations Steven Danik (" Danik" ), and Vice President of Human Resources Scott Ensworth (" Ensworth" ). Id. ¶ 15. Ensworth testified:

[P]robably during the fall of 2009 . . . [t]here were conversations that were held with administrators, staff union, faculty union, about the flat funding [from the Commonwealth], the deficit, not being able to produce more money,

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and considerations [that] need[ed] to be taken into the process . . . .

( ECF No. 72 at 34, Ensworth Dep. 93-94). These discussions were broad ranging in nature, focusing on a variety of operational areas and addressing wide-ranging topics, rather than a series of separate meetings on each budget area or each proposed budget reduction. (ECF No. 97 ¶ 18). CCBC admits, however, that the " the specifics of each meeting were not documented or chronicled." (ECF No. 74 at 30).

Conversations regarding the utilization of an early retirement incentive plan began in November 2009. (ECF N. 97 ¶ 19). Ensworth testified:

[K]nowing that there was a large gap of available funds and budget, [Forrester] started the discussions with myself and [Danik] on an early retirement option, to see if there [were] individuals that would be interested in considering [an] early retirement option. ... [I]nformation [regarding the early retirement option] was initially presented to [CCBC's Board of Trustees (the " Board" )] in January [2010]. At that time[,] [the Board] did not think that there was enough information, they didn't think there [were] enough parameters, enough things in place to protect [CCBC] from that type of an [early retirement] option.

( ECF No. 72 at 34, Ensworth Dep. 94-95). CCBC's Board of Trustees (the " Board" ) was concerned with respect to the " exposure" CCBC would have with early retirements, because CCBC had a number of employees with over twenty years of service who were in their forties at the time. Id. at 19. According to Ensworth, the Board was concerned that if CCBC did not regulate or establish parameters with respect to the early retirement option proposal, too many employees might take advantage of it, thereby exposing CCBC to understaffing issues. Id. at 19. The Board made it mandatory that CCBC only accept the first twenty employees who opted to participate in the still-developing early retirement proposal. Id.

In January 2010, CCBC requested that each cost center manager (the individuals with the responsibility for development and management of the budgets of various operational cost centers) review his or her existing budget to project savings to help address the projected budget short fall and identify the need for increased funding to support new programs or new initiatives. (ECF No. 97 ¶ ¶ 22-23). These managers returned requests for funding totaling approximately $1,930,061.00, which further widened the gap between projected revenue and expenditures. Id. ¶ 24. In reviewing the overall budget in February 2010, Forrester testified that in order to maintain the status quo with respect to the 2010-2011 school year, CCBC needed to find 1.5 million dollars in savings. (ECF No. 73 at 13, Forrester 54).

On March 15, 2010, the Board adopted a resolution approving CCBC's utilization of the early retirement incentive plans that had been developed by administration over the past several months. (ECF No. 97 ¶ 25). Generally, only those employees' whose combined age and service totaled seventy years were eligible, with the result being that any employee forty-five years old or younger was not eligible. (ECF No. 97 ¶ 166).

On March 16, 2010, Forrester issued a memorandum to the cost center managers, explaining that funding requests had exceeded projected revenue, and directed each manager to reduce their budget requests by ten percent:

I would like to tell you we have completed the budget review process and that we have a balanced budget accommodating everyone's request [for funding].

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Unfortunately, that is not the case, and now, the hard work begins.
At this point, the cumulative budget request from all areas of the college exceeds projected revenue by over $2.14 million dollars. This overage does not reflect accommodation for any new initiatives, funding for new staff nor funding for new programs. Those requests would require an additional $1.9 million in funding.
We must find the ways for us to close the $2.14 million gap and find money to address some of the new initiatives being proposed. ... I am requesting that you carefully review your budget request for next year and propose budget reductions representing at least 10% of the amount you have proposed. Again, the 10% reduction is to occur before we begin making any commitment to new initiatives.
[T]his is not an idle request for which you can come back and say " It's impossible, I can't do it." As a budget manager, . . . [i]t will be necessary for you to rethink the way you are currently doing business, and you will need to examine opportunities for restructuring that will reduce costs and hopefully improve productivity in your area of responsibility.

( ECF No. 75 at 19).

In April 2010, CCBC offered participation in the early retirement incentive program to all full-time employees who had " combined years of service and age totaling 70 or higher." (ECF No. 75 at 30). Plaintiff was among the eligible employees initially offered participation in the program, but he elected not to participate because he had " no intentions of retiring" at that time. (ECF No. 97 ¶ 32, ECF No. 74 at 16, Mahler Dep.). By the end of April 2010, thirteen CCBC employees opted to participate in the early retirement incentive program, but this number was insufficient to address fully the projected funding gap. (ECF No. 97 ¶ ¶ 34, 36). CCBC found it necessary to implement additional strategies to achieve a balanced budget. Id. ¶ 36.

According to CCBC, one such " additional strategy" was to restructure and eliminate positions. (ECF No. 97 ¶ 37). Ensworth testified that, in order to save money, " there w[ere] discussion[s] of reorganization of administrative positions," among which included the DFA position. (ECF No. 72 at 34, Ensworth Dep. 96). On May 10, 2010, Ensworth briefed the Board's Human Resources Committee with respect to an organizational " restructuring plan," pursuant to which CCBC proposed the elimination of several employment positions (the " Restructuring Plan" ). (ECF No. 97 ¶ 38). Under the heading " Organizational Changes," the committee's minutes reflect:

[Ensworth] provided a briefing to the Committee regarding organizational changes that will be recommended in conjunction with recommendations on approval of the 2010-2011 budget. As part of this conversation, he identified the individuals who had retired by accepting the early retirement option previously approved by the [Board]. [Ensworth] identified which positions would be filled, those held vacant on a temporary basis, and those positions which would be permanently vacated. [Ensworth] also indicated that modifications would be made in other remaining positions and that the recommendations for approval of the budget would include the elimination of selected positions within [CCBC]. This item will be discussed in further detail with the Board at its regular meeting in May.

( ECF No. 75 at 21). While the minutes do not expressly reflect the prospective elimination of specific employment positions

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within CCBC, one of the " positions to be eliminated" pursuant to the Restructuring Plan " include[ed] the [elimination of the DFA] position." (ECF No. 97 ¶ 39; ECF No. 73 at 32, Ensworth Dep. 187-88).

On May 17, 2010, the Board approved the 2010-2011 budget. (ECF No. 75 at 26). The Board approved the reopening of the " time window" for the early retirement incentive program for an additional week " in conjunction with the personnel reorganization of the College." Id. Pursuant to the Restructuring Plan, CCBC " eliminated," inter alia, eight full-time positions,[4] including the DFA and Bursar positions. (ECF No. 92 at 15). On May 18, 2010, Forrester and Ensworth hand delivered a letter to Mahler, apprising him that the DFA position had been eliminated and that CCBC did not intend to renew his employment contract for the 2010-2011 school year.[5] (ECF No. 97 ¶ 50). The letter provided, in pertinent part:

As you know, development of the budget for 2010-2011 has been challenging for [CCBC], and there have been many long hours of discussion on how we can best serve the needs and interest of our students. In finalizing the budget, we have settled on a reorganization plan that we will begin implementing with the start of the new fiscal year on July 1[,] [2010].
With regrets, I must inform you that the position of Director of Financial Aid will be eliminated under the reorganizational plan and that you will not be offered an employment contract with the College for 2010-2011. The decision to move in this direction has not been an easy decision to make, and I want you to know that elimination of the [DFA] position is not a reflection of your performance as the Director. In the future, should you have interest in other positions that become available, your application would certainly be considered.

( ECF No. 81 at 26). Plaintiff was sixty-four years old at the time the restructuring. (ECF No. 97 ¶ 127).

CCBC extended the application deadline for the early retirement program for one additional week, and informed Mahler about the extension in the letter, stating:

Earlier, [CCBC] offered an early retirement program for its employees. While you did not take advantage of the program initially, I want you to be aware that the early retirement window will be reopened for one week beginning on June 7[,] [2010]. At that time, you would be eligible to submit your request for early retirement through the Office of Human Resources Development.

( ECF No. 74 at 32; ECF No. 81 at 26). The elimination of the DFA position became effective on July 1, 2010. (ECF No. 97 ¶ 48).

According to CCBC, at the time the Bursar and DFA positions were eliminated, CCBC " created" a " new administrative position" entitled " Director of Student Financial Services" (" DSFS" ). (ECF No. 97 ¶ 48).[6] Forrester testified that the use of technology was considered key in providing

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financial services to students, since CCBC was " trying to do more with less." (ECF No. 97 ¶ 94). CCBC utilized Jenzabar software, which contained several modules, such as payroll, human resources and financial aid. (ECF No. 97 ¶ 52). The financial aid module enabled users to manage and disburse financial aid. Id. ¶ 53. CCBC had invested approximately $2,377,697.00 in Jenzabar software, and the maintenance and training for it. Id. ¶ 54. In addition to Jenzabar, CCBC invested approximately $175,571.00 in Powerfaids software, a financial aid management system developed and maintained by the College Board. Id. ¶ ¶ 55-57. According to Forrester, " conversations centered on the need to increase the utilization of technology for the student financial aid program." Id. ¶ 96. Accordingly, the DSFS was charged with " [c]reat[ing] a technology based, integrated array of services for effective management of student financial accounts." Id. ¶ 95.

CCBS's faculty collective bargaining agreement generally required administrative positions to be posted. (ECF No. 97 ¶ 102). Under certain circumstances, however, CCBC could create a " special term" position, whereby the posting requirement was bypassed and the position filled by the CCBC president. Id. ¶ 104. Usually, a position could only be designated special term for one year and had to be posted after that period. Id. ¶ 105. Utilizing the special term option, Forrester appointed Davidson, the former Bursar, as the DSFS. Id. ¶ 51. CCBC contends that Forrester utilized the special term option because there was a sense of urgency about being ready to process financial aid with the start of the new school year looming. Id. ¶ 106.

In selecting Davidson as the DSFS, Forrester noted that Davidson had worked with technologies, had prior experience as a director of financial aid, and had prior experience as the Bursar. (ECF No. 73 at 19, Forrester Dep. 115). Forrester testified that he felt she was the person who " brought the skill sets to the table that would be able to advance the agenda of increasing the utilization of technology." (ECF No. 97 ¶ ¶ 107-08). Forrester explained:

Ms. Davidson in her role was demonstrating the use of technologies, demonstrating willingness to work with technologies, and we felt that she was in a better position to increase the ...

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