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Kercher v. The Reading Muhlenberg Career & Technology Center

United States District Court, E.D. Pennsylvania

September 6, 2017

JEAN KERCHER, Plaintiff,


          Henry S. Perkin, M.J.

         Plaintiff, Jean Kercher (“Mrs. Kercher”), alleges that Defendant, Reading Muhlenberg Career & Technology Center (“RMCTC”), violated her due process rights as well as interfering with her rights pursuant to the Family and Medical Leave Act (“FMLA”), 29 U.S.C. Section 2615, and retaliating against her for exercising her right to FMLA leave.

         This matter is before the Court on the Motion for Summary Judgment filed by Defendant Reading Muhlenberg Career & Technology Center which was filed on June 23, 2017. Having reviewed and considered the contentions of the parties, the Court is prepared to rule on this matter.


         The Court has jurisdiction over Mrs. Kercher's federal claims pursuant to 28 U.S.C. § 1331.


         Pursuant to Rule 56(a), summary judgment is proper where there is no genuine issue of material fact. FED. R. CIV. P. 56(a). In viewing the evidence in the light favorable to the non-moving party, summary judgment will be granted against a party who does not make a sufficient showing to establish “an element essential to that party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

         The moving party carries the initial burden to inform the court of the basis for its summary judgment motion; to produce evidence to establish a prima facie case as to each element; and to identify the absence of no genuine issue of material fact. Id. When the non-moving party cannot establish an essential element and there is “no genuine issue as to any material fact, ” the moving party is entitled to summary judgment as a matter of law. Id. at 322.

         Material facts are those that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Mere factual disputes will not preclude summary judgment when they are irrelevant to the outcome of the suit. Id. An issue is “genuine” if a reasonable trier of fact could return a favorable verdict for the non-moving party. Mengel v. Reading Eagle Co., CIV.A. 11-6151, 2013 WL 1285477 (E.D. Pa. Mar. 29, 2013), appeal dismissed (Oct. 30, 2013)(citing Anderson, 477 U.S. at 248).

         To defeat summary judgment, the non-moving party must go beyond the pleadings and present “specific facts showing that there is a genuine issue for trial.” FED. R. CIV. P. 56(c). Moreover, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir. 1989)(citing Celotex, 477 U.S. at 325). Where the non-moving party will have the burden of proof at trial, the moving party can make a showing that there is an “absence of evidence to support the non-moving party's case.” Jones v. Indiana Area Sch. Dist., 397 F.Supp.2d 628, 642 (W.D. Pa. 2005)(quoting Celotex, 477 U.S. at 325).


         By Rule 16 Scheduling Order dated February 27, 2017, notice was provided to the parties as follows:

Upon any motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, there shall be filed with the motion a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.
The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required in the foregoing paragraph, as to which it is contended that there exists a genuine issue to be tried.
Statements of material facts in support of or in opposition to a motion shall include references to the parts of the record that support the statements.
All material facts set forth in the statement required to be served by the moving party may be taken by the Court as admitted unless controverted by the opposing party.
If at all possible, any deposition transcripts used as exhibits to these filings shall be submitted in an electronic format, able to be copied into WordPerfect.

Dkt. No. 24, n.1. In the second footnote of the Scheduling Order, any party opposing a motion for summary judgment was directed to also comply with the directives noted in footnote 1 of the Scheduling Order. Id., n.2.

         RMCTC filed a motion to dismiss the entirety of Mrs. Kercher's Complaint. By Memorandum and Order dated December 5, 2016, the motion was granted in part as to Counts I and II of the Complaint. In Count I, Mrs. Kercher alleged that RMCTC, her employer at the time, discriminated against her and treated her unfavorably because of her disability. In Count II, she alleged that she was wrongfully terminated. In Count III, Mrs. Kercher alleged that she was discharged from her position for retaliatory reasons. In Count IV, Mrs. Kercher alleged that her discharge is a violation of the Family Medical Leave Act (hereafter “FMLA”). Lastly, in Count V, Mrs. Kercher alleged a violation of her Due Process Rights. Mrs. Kercher was granted time to amend her Complaint as to Counts I and II, but no amendment was filed.

         RMCTC filed a concise statement of facts in support of its motion for summary judgment on June 23, 2017. Dkt. No. 26-8. Plaintiff's Response was filed on July 27, 2017 but in the Response to the Motion, no concise statement of facts in opposition to RMCTC's concise statement of facts was filed. Dkt. No. 29. Instead, in the Brief in Response to the Motion, counsel included a recitation of facts without citations to the record. Pl.'s Br., pp. 1-4. Accordingly, the factual assertions set forth by RMCTC in its Statement of Material Facts are deemed admitted. See Fed. R. Civ. P. 56(e)(if a party fails to address another party's assertion of fact as required by Rule 56(c), the court may consider the fact undisputed for purposes of the motion); See also Binder v. PPL Servs. Corp., No. CIV.A. 06-2977, 2009 WL 3738569 (E.D. Pa. Nov. 5, 2009); Higgins v. Hosp. Cent. Servs., No. CIV.A. 04-74, 2004 WL (E.D. Pa. Dec. 9, 2004)(Gardner, J.); Kelvin Cryosystems, Inc. V. Lightnin, No. CIV.A. 03-881, 2004 WL 2601121 (E.D. Pa. Nov. 15, 2004)(Gardner, J.).

         Our requirement for a concise statement and a responsive concise statement is consistent with Rule 56 of the Federal Rules of Civil Procedure. In addition Rule 83(b) of the Federal Rules of Civil Procedure provides that:

A judge may regulate practice in any manner consistent with federal law, rules adopted under 28 U.S.C. §§ 2072 and 2075, and local rules of the district. No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or local district rules unless the alleged violator has been furnished in the particular case with actual notice of the requirement.

         Thus, even if our requirement for a separate concise statement is not consistent with Rule 56, we gave Mrs. Kercher actual notice of our requirement, and she did not comply. Binder, 2009 WL 3738569, at *2 (citing Kelvin Cryosystems, Inc.).

         IV. FACTS.

         Based upon the record papers, exhibits, depositions, and RMCTC's statement of material facts, the pertinent facts are as follows:

Mrs. Kercher was employed by the RMCTC, a vocational/technical school, as the acting Business Office Supervisor for 14 years. Kercher Dep., pp. 87, 124; Pl. Dep., Ex. 1. As the Business Office Supervisor, Mrs. Kercher was responsible for developing, recommending, and administering approved programs for receipt, custody, and disbursement of funds, and debt services; developing and implementing accounting, internal auditing and budgetary control procedures for the school. Pl. Dep., Ex. 1. Mrs. Kercher was also responsible for working with administrative personnel with respect to fiscal matters, purchasing, personnel, maintenance, data processing services, and negotiations. Id. Mrs. Kercher's Position Description lists the essential functions of the Business Office Supervisor position, which includes performing tasks as assigned by the Administrative Director. Id.

         At all relevant times, Gerald Witmer (hereafter “Mr. Witmer”) was the Administrative Director, Plaintiff's direct supervisor. Kercher Dep., pp. 32-33. Because Mr. Witmer believed that Plaintiff showed the Teamsters who worked in Plaintiff's office an email from Mr. Witmer that he viewed as confidential, on March 21, 2011, Plaintiff received a written reprimand. Id. at 41; Kercher Dep., Ex. 3. Via correspondence dated August 9, 2012, Mrs. Kercher was informed that she was being placed on a three-day unpaid leave of absence as a consequence of Mrs. Kercher disparaging Michael Zalegowski (“Mr. Zalegowski”)[1] to the School Board Treasurer based on a union grievance and expressing vindictiveness toward Mr. Zalegowski. Kercher Dep., Ex. 4. Neither Zalegowski nor Keller held a grudge against Plaintiff. Kercher Dep., p. 47.

         On August 15, 2012, Mrs. Kercher, via her attorney, submitted a complaint of harassment against Mr. Witmer. Kercher Dep., Exs. 5, 7. After a complete investigation, Mrs. Kercher's allegations were determined to be unfounded. Kercher Dep., Exs. 5, 7.

         In April 2014, Plaintiff requested and was granted intermittent leave under Family Medical Leave Act (“FMLA”) to address her extreme fatigue. Kercher Dep. at 27-28; Ex. 17. Plaintiff only requested FMLA leave once. Kercher Dep. at 66. While Plaintiff was out on FMLA leave, she would sleep twenty to twenty-two hours per day. Id. at 22. During Plaintiff's FMLA leave, a fiscal clerk, Holly Keller, helped to manage Plaintiff's responsibilities. Keller Dep., p. 75.

         Even though Plaintiff was tasked with taking measures to avoid audit exceptions, she did not do so, resulting in three audit exceptions during the 2012-2013 fiscal year and three audit exceptions during the 2013-2014 school year. Hearing N.T. 140; Hearing Exs. 29, 30-A, 28, 30. Plaintiff failed to provide department heads with monthly account balances in a timely fashion, notwithstanding the fact that the deadlines were established by Plaintiff herself. Hearing N.T. 165-70; Hearing Exs. 11, 12, 13, 18. Per Plaintiff's own deadline, Plaintiff failed to provide the Administrative Director with timely bank reconciliation statements nor did Plaintiff reconcile a single journal entry or banking statement for the 2014 fiscal year. Hearing N.T. 171; Hearing Ex. 18. Plaintiff failed to maintain a proper balance in the Public School Employees Retirement System (“PSERS”) account. Hearing N.T. 177-178. Plaintiff did not comply with IRS and Pennsylvania Department of Revenue requirements for maintaining a tax exempt status. Hearing N.T. 183. Plaintiff did not maintain existing loans and grants for the RMCTC. Hearing N.T. 186. Plaintiff did not perform many of her job responsibilities in a responsible, timely, or effective manner. See generally Hearing N.T., Kercher Dep., Ex. 1.

         Even after establishing her own deadlines, Plaintiff did not provide staff with timely financial reports in accordance with her job description. Hearing N.T. 30-36; Hearing Exs. 9-15; Kercher Dep., Ex. 1.[2] In contradiction with the directives that she was issued via memorandums dated April 1, 2014 and August 28, 2014, Plaintiff did not initiate a cross training protocol in the RMCTC business office. Hearing N.T. 71-72; Hearing Exs. 8, 22; Keller Dep. NT 75-76. Plaintiff left work early. Hearing N.T. 31.

         For the second consecutive year, on June 17, 2014, Plaintiff received an unsatisfactory Administrative Performance Appraisal from the Administration. Kercher Dep. at 63-66; Kercher Dep. Exs. 8, 9; Hearing N.T. 100-105; Hearing Exs. 8, 22. At the time of the June 2014 evaluation, Mrs. Kercher averaged an absentee rate at or around twenty-five percent, due to her husband's health issues, not her own health or FMLA leave. Kercher Dep. at 67, 68.

         Although Mrs. Kercher was directed to provide the Assistant Director with a reconciliation of car show profits by July 22, 2014 and September 11, 2014, she did not do so.[3]Hearing N.T. 151-57; Hearing Ex. 25. Mrs. Kercher did not provide the School Board with financial reports for the months of September, October, and November 2014. Hearing N.T. 30-35. Mrs. Kercher did not file a small claims action against an adult student who failed to pay his tuition bill, even though she was directed to do so. Hearing N.T. 162-65; Hearing Exs 26-A, 27.

         On November 10, 2014, Mr. Witmer provided Mrs. Kercher with a letter notifying her that she was suspended with pay while the RMCTC Administration investigated her performance as the RMCTC Business Office Supervisor. Kercher Dep., Ex. 10. In a letter dated November 10, 2014, the Administration notified Mrs. Kercher of the charges against her, based on a list of fourteen separate acts, and that a Loudermill hearing was scheduled to take place on November 19, 2014.[4] At the November 19, 2014 Loudermill hearing, the Administration was represented by Attorney John M. Stott and Mrs. Kercher was represented by Attorney Stanley Brassington, who is Mrs. Kercher's counsel in the instant action. Kercher Dep., Ex. 4 ¶7. Mrs. Kercher was given the opportunity to respond to the fourteen allegations against her. Id., Ex. 4 ¶8. After the conclusion of the Loudermill Hearing, Mrs. Kercher was notified by letter that the Administration would recommend her termination to the School Board and that she was suspended ...

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