United States District Court, E.D. Pennsylvania
S. Perkin, M.J.
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
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.
Court has jurisdiction over Mrs. Kercher's federal claims
pursuant to 28 U.S.C. § 1331.
STANDARD OF REVIEW.
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).
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.
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).
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).
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.
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.
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,
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.
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
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.
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”) 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.
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.
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.
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.
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. 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.
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.
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.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
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. 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