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Gairloch v. Pennsylvania State Univ.

United States District Court, M.D. Pennsylvania

January 7, 2015


For William Gairloch, Plaintiff: Amy R. Boring, Michael Zicolello, LEAD ATTORNEYS, SCHEMERY & ZICOLELLO, Williamsport, PA.

For Pennsylvania State University, Defendant: Chena L. Glenn-Hart, John A. Snyder, Philip K Miles, III, McQuade Blasko Law Offices, State College, PA.

For Mediator, Mediator: C. Edward S. Mitchell, LEAD ATTORNEY, Mitchell Gallagher, Williamsport, PA.


Matthew W. Brann, United States District Judge.

Plaintiff William Gairloch (" Plaintiff" or " Gairloch" ) alleges that he was retaliated against for complaining about unlawful age discrimination to The Pennsylvania State University's Affirmative Action Office (AAO) and filing a series of charges with the Pennsylvania Human Relations Commission (PHRC) and the Equal Employment Opportunity Commission (EEOC). This Court has jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 621 et seq., and has jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.

Defendant The Pennsylvania State University (" Defendant" or " Penn State" ) filed a Motion for Summary Judgment (ECF No. 22). The Parties briefed the issues and they are now ripe for resolution. Because Gairloch failed to establish a prima facie case of retaliation for his complaints of unlawful age discrimination, Penn State's Motion for Summary Judgment is granted and the case is dismissed.


Generally, Gairloch alleges that he was retaliated against for complaining about unlawful age discrimination to Penn State's Affirmative Action Office (AAO), and filing a series of charges with the Pennsylvania Human Relations Commission (PHRC) and the Equal Employment Opportunity Commission (EEOC). The specific complaints of retaliation include allegations that Penn State gave Gairloch a poor performance evaluation, subjected him to a Performance Improvement Plan (PIP), terminated his telecommuting privileges, and ultimately terminated his employment in March 2012. More detailed facts for the purposes of summary judgment are as follows.

Gairloch testified that he began to work as a data engineer under Kurt Jeschke, his manager, in approximately 2008. Gairloch submits that he worked for Jeschke to the best of his ability, but from the outset he did not believe that Jeschke was a good manager because he was a poor communicator. Pl.'s SOF, ¶ 6. Jeschke asserts that he initially became concerned about Gairloch's poor job performance in February 2009, because he noticed that Gairloch had only completed about one-third of the " work orders" of his peers for calendar year 2008. Def.'s SOF, ¶ 7. Gairloch counters this assertion by demonstrating that Jeschke authored favorable job evaluations for his performance in 2008 and 2009. See Pl.'s SOF, Ex. 3.

During Gairloch's tenure under Jeschke, the group Jeschke oversaw had four Level 3 System Design Specialists (or Systems Engineers) of which Gairloch was one. These Level 3 engineers " would get the more complicated designs, mostly because [they] were there the longest, [and they] had the most knowledge." Def.'s SOF, ¶ 10. Of the four Level 3 engineers, three of them, including Gairloch, are approximately the same age, as they were born within eleven months of one another. Id. ¶ 11.

In 2009 and 2010, Jeschke began to grow concerned that Gairloch was often not available or could not be located in the office, and that he heavily utilized his allowed telecommuting time. Def.'s SOF, ¶ 13-14. Gairloch would apparently telecommute about 25% of his working time. Id. ¶ 17. Jeschke asserts that no other employees in the group that he managed telecommuted to that extent. Id. ¶ 18. Telecommuting was allowed and available for employees of the Information Technology Department, of which Gairloch was a part. Jeschke asserts, however, that only a few of his employees ever telecommuted, that it was done on an emergency as-needed basis, and that it generally did not exceed 5% of an employee's working time. Id. ¶ 18. Jeschke sought to curtail Gairloch's telecommuting because he alleged concern over Gairloch's availability and performance, and because it was out of line with his expectations for other employees under his supervision. Id. ¶ 19. Jeschke began taking notes on when Gairloch was not in the office, when he would leave for an early lunch or return late, and also documented Gairloch's telecommuting time. Id. ¶ 13.

Jeschke was additionally concerned with Gairloch's completed work order total for 2009, which was about a third of one of his peers. Id. ¶ ¶ 15-16. The reliability of this metric for discerning productivity is disputed by the Parties, however, because some work orders take much longer to complete than others. Pl.'s Br. Opp'n 13, Oct. 8, 2014, ECF No. 29 [hereinafter Pl.'s Br. Opp'n].

On September 9, 2010, Gairloch submitted a written complaint to Emily Enselmi, the Interim Director of Network Planning & Integration, complaining generally about Jeschke's " unprofessional" conduct and monitoring of Gairloch. Def.'s SOF, ¶ 20. The written complaint did not include any allegations of unlawful discriminatory conduct. On September 30, 2010, Jeschke, Enselmi, and Penn State Human Resource employee Susan Morse, met with Gairloch concerning his complaint letter. The Parties dispute whether they discussed Jeschke's concerns about Gairloch's telecommuting at that meeting. See id. ¶ 22; Pl.'s SOF, ¶ 22. Gairloch did testify that " around Christmas of that year [2010], in the December time frame, [Jeschke] told me he intended to give me a really poor review so that he would take away my telecommuting." Def.'s SOF, ¶ 23. Jeschke remained concerned about Gairloch's productivity, as he completed sixty-four (64) total work orders in 2010, while his three colleagues completed one hundred five (105), one hundred fifty-four (154), and fifty-seven (57) each. Id. ¶ 26.

Around January 19, 2011, Penn State and Gairloch entered into an agreement attempting to resolve the telecommuting dispute. Gairloch would be permitted to telecommute up to twenty percent (20%) of his time for a trial period, as long as he was available and met a number of other conditions identified in the agreement. Id. ¶ 24. Under Penn State policy, " [t]he telecommuter's manager has the authority to terminate the telecommuting arrangement at any time." Id. ¶ 25.

On April 4, 2011, Gairloch submitted another written complaint regarding Jeschke in a letter directed to Steve Updegrove, Senior Director of Telecommunications & Networking Services. Gairloch generally complained of " ongoing unprofessional, disrespectful, harassing and retaliatory treatment of me." Id. ¶ 29. Gairloch did not allege that he was harassed on the basis of his status in a protected class, that he was retaliated against for engaging in protected activity, nor any unlawful discrimination. Id.

In the letter, Gairloch noted that " last week [Jeschke] informed me that he was going to give me a less favorable review this year . . . he has already informed me of the baseless lower performance rating he has for me . . . [and that he intended to give Gairloch] a poor rating/review on my SRDP [Staff Review and Development Plan] this year." Id. ¶ 30. The letter further stated that Jeschke " is not at all receptive to anything that deviates from his attempt at forcing me out of telecommuting altogether." Id. ¶ 31.

On April 7, 2011, Gairloch contacted Penn State's Affirmative Action Office (AAO) associate director Carmen Borges, and met with her the following day. Borges generally addresses compliance with nondiscrimination laws and complaints of discrimination, and has served as associate director for about twentysix (26) years. Borges testified that, although she generally handles complaints of unlawful discrimination, she also often handles issues involving employee conflict that do not involve unlawful discrimination.[1] Gairloch testified that he initiated the meeting because: " [I] didn't know what was going on with [Jeschke] . . . he was acting really weird and I wanted it to stop, and I wanted somebody there at Penn State to finally look into the 'it' issues." Id. ¶ 36.

At the meeting, Borges specifically asked Gairloch if Jeschke had done anything " related to some kind of legal definition of affirmative action." Id. ¶ 37. The only thing Gairloch could recall is that " in a one-on-one meeting back in 2010, in the summer sometime," Jeschke had informed Gairloch that he " made a lot more money [about $17,000] than the next oldest person within their group." Pl.'s SOF, ¶ 38. Borges denies that Gairloch ever conveyed this statement to her, and Jeschke denies ever making the statement.[2] Gairloch did not know who the next-oldest employee was at that time, did not know that person's salary, and did not know whether Jeschke knew his age at the time. Rich Santillo is less than one year younger than Gairloch, and Timothy Bastian is several days older than Gairloch. Def.'s SOF, ¶ 40.

Gairloch does not indicate that he believed he was making a complaint of unlawful discrimination to Borges at the time. See Def.'s App., Ex. 23-1, at 90: 1-25; 91: 1-10; 93:6-9, 17-20. Other than the alleged statement regarding the next oldest employee, Gairloch is not aware of Jeschke making any ageist remarks.

In late April 2011, Gairloch received a poor performance evaluation from Penn State. The performance evaluation (Staff Review and Development Plan or SRDP) is initially created by the employee under review before being submitted to the employee's supervisor for completion, and includes the employee's specific accomplishments, progress during the preceding year, professional development activities, and contributions to Penn State. Def.'s SOF, ¶ 45. Gairloch met with Susan Morse, Mark Katsouros, and Jeschke to go over his SRDP on April 19, 2011. At some point during 2011, Mark Katsouros, Jeschke's direct supervisor, took over as Gairloch's direct supervisor.

The SRDP rated Gairloch's performance as " partially meets expectations," the second-lowest rating on a scale of five, but did include some positive comments noting good feedback from customers. Def.'s App., Ex. 23-6, at 172-84. The SRDP also noted Jeschke's criticisms of Gairloch's late arrivals, extended lunch breaks, and absences. It included specific recommendations to help Gairloch improve his performance. The SRDP read that " unless we [Penn State] see immediate improvement in his job knowledge, productivity, time management skills and judgment we will pursue other options, such as formal performance improvement process . . . ." Id. Gairloch submitted a written rebuttal to his SRDP that states: " it has been previously documented that [Jeschke] told me in December he intended to orchestrate my fall in performance and use it as a reason for terminating my telecommuting arrangement." Id., at 185.

In the weeks following this meeting, Jeschke and Gairloch's relationship deteriorated, and they had several brusque interactions. The events were documented in part in a letter to Gairloch, summarizing a discussion that Katsouros and Morse had with Jeschke on May 16, 2011. In the discussion, Jeschke asserted that Gairloch was attempting to intimidate him, glared at him, gave him cold stares, walked directly at him when they passed in the hall so that Jeschke would have to move out of the way, slammed doors, and generally disrupted the workplace. Def.'s SOF, ¶ 55. Gairloch admits he was not cordial with Jeschke, but stated that he believed Jeschke was fabricating these incidents in an effort to retaliate against him. Pl.'s SOF, ¶ 55. The letter concluded with a warning that, if Gairloch's behavior did not stop, he would face formal disciplinary action " up to and including dismissal" under Penn State's applicable policies. Def.'s SOF, ¶ 58.

On June 9, 2011, Gairloch filed complaints with the PHRC and the EEOC that generally alleged retaliation for Gairloch's AAO visit in the form of his poor performance evaluation, revocation of his telecommuting privileges, and the reprimand in the May 16 letter, among other things. Gairloch wrote an email to several Penn State employees, including Jeschke, Katsouros, and Morse, as a courtesy to inform them that he had submitted complaints to the PHRC and the EEOC. Id. ¶ 60.

Throughout most of 2011, Jeschke and Katsouros held bi-weekly meetings with Gairloch to review his assignments and monitor his progress. Id. ¶ 62. Gairloch and Penn State continued to disagree over Gairloch's performance and behavior. On December 7, 2011, Jeschke, Katsourous and Morse met with Gairloch to formally place him on a Performance Improvement Plan (PIP), and to address his ongoing performance deficiencies. Id. ¶ 73. Pursuant to Penn State policy, the PIP identified performance deficiencies and the expected performance standards, and fixed March 6, 2012 as a date by which a failure to correct his performance deficiencies would " result in further disciplinary action, up to and including [his] dismissal." Id. ¶ ¶ 68, 75. The memorandum cites Gairloch's failure to complete tasks by established deadlines, unwillingness to adopt new methods and progress, letting others do work for him, creating insufficient bi-weekly status reports, and maintaining an unprofessional demeanor, among other issues.

On December 20, 2011, Gairloch filed his second complaint with the PHRC and cross-filed with the EEOC. Def.'s SOF, ¶ 81. Penn State received notice of the charge from the PHRC on January 9, 2012. Id. ¶ 82.

Consistent with the PIP, Jeschke, Katsouros, and Morse held bi-weekly meetings with Gairloch throughout the early months of 2012 to again address his performance and improvement under the plan. Penn State reports that he continued to exhibit the problematic performance and behavior. Gairloch responds with an allegation that Penn State fabricated the issues in an attempt to obscure its retaliation against Gairloch because of his age related complaints to the PHRC and EEOC. Penn State asserts that Gairloch's poor performance continued throughout January and February 2012, despite numerous meetings in which Giarloch was told to improve or face termination. A Memo of Conversation from the bi-weekly meeting on February 29, 2012, warned Gairloch that he was not taking his PIP seriously, that his job was at stake, and that he had until March 14, 2012 to correct his deficiencies.[3]

On March 14, 2012, Jeschke, Katsouros, and Morse met with Gairloch for the final time to formally terminate his employment. In addition to documentation provided throughout the PIP on Gairloch's alleged performance deficiencies, Katsouros provided Gairloch with a termination letter dated March 19, 2012, that summarized his alleged shortcomings.

Gairloch filed his third PHRC complaint on March 22, 2012, and cross-filed it with the EEOC. This complaint raised only one charge of retaliation for Gairloch's termination from Penn State, which received formal notice of the charge on May 23, 2012. ...

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