United States District Court, W.D. Pennsylvania
Stewart Cercone, United States District Judge.
Mary Nyamekye (“Mary” or “Plaintiff”)
filed a four (4) count Amended Complaint alleging racial
discrimination in violation of the Civil Rights Act of 1866,
as amended, 42 U.S.C. § 1981 (“§
1981”), age discrimination in violation of the Age
Discrimination in Employment Act, 29 U.S.C. § 621 et
seq. (the “ADEA”), national origin
discrimination and retaliation against Defendant Penn Hills
School District (the “District”), based upon the
District's failure to hire her as a fulltime custodian.
The District has filed a motion for summary judgment, Mary
has responded and the motion is now before the Court.
Statement of the Case
was born and raised in Ghana, came to the United States in
1998 and became a United States citizen about three years
thereafter. Mary's husband, Lawrence Nyamekye
(“Lawrence”) is also from Ghana and became a
United States citizen in 1997. Defendant's Concise
Statement of Material Facts (“Def. CSMF”)
¶¶ 4 & 5. Lawrence began work with the District
as a substitute custodian in 2000 and became employed as a
full-time custodian in 2004. Def. CSMF ¶ 10. Mary was
initially hired by Penn Hills in 2007 to work part-time in
the transportation department. Def. CSMF ¶¶ 6 &
7. She was employed for two (2) years before she was laid
off. Def. CSMF ¶ 7.
learned from Lawrence that there was a position as substitute
custodian available in the District, Mary applied for the job
and was hired on November 22, 2011. Def. CSMF ¶¶ 8
& 9. As a substitute custodian, Mary worked in three
different buildings within the District, and she worked from
3:00 p.m. to 11:00 p.m., five (5) days a week, every week.
Def. CSMF ¶¶ 11 & 12. As a substitute employee,
Mary was not a member of the Union, and was not covered by
the Collective Bargaining Agreement (the “CBA”).
Def. CSMF ¶ 14.
1, 2013, the District entered into a Professional Services
Agreement (the “Agreement”) with Facilities
Management Systems, Inc. (“FMS”). Def. CSMF
¶ 15. Under the Agreement, FMS was granted the exclusive
right to manage and operate the District's maintenance
and custodial operation, acting in the capacity of an
independent contractor. Def. CSMF ¶ 16. Richard Oskin
(“Oskin”) and William King (“King”)
were assigned by FMS as Facilities Supervisor and Facilities
Manager for the District. Def. CSMF ¶ 17; King Affidavit
¶¶ 4 & 5.
August, 2014, the District hired five (5) full-time
custodians, Donna Clawson (“Clawson”), Dayle
Summers (“Summers”), Jim Homze
(“Homze”), Sabrina Hutson(“Hutson”) and
Tracy McKee (McKee”), all of whom had previously been
substitute custodians in the District. Def. CSMF ¶¶
18 & 19. The District hired these custodians based on
recommendations from FSM, and all of the newly hired
custodians, except McKee, had worked as substitute custodians
with the District longer than Mary. Def. CSMF ¶¶ 21
& 22. FSM did not recommend Mary allegedly because there
were “complaints” made about her work
performance. Def. CSMF ¶¶ 23 & 24; King Aff.
¶¶ 9 & 10.
and Lawrence met with the District's superintendent, Dr.
Thomas Washington (“Washington”), Director of
Human Resources, Lindsay Pfister (“Pfister”), and
King on August 22, 2014, to discuss why McKee was hired
despite being behind Mary on the seniority list. Plaintiff
Response to Defendant's Concise Statement of Material
Facts (“Pl. Resp. CSMF”) ¶ 24; Def. CSMF
¶ 25. King explained by reading a one sheet email
allegedly from Principal, Eric Kostic (“Kostic”)
in whiche Kostic alleged that Plaintiff left
“paper” on his bathroom floor back in May of
2014, nearly three (3) months earlier. Pl. Resp. CSMF ¶
24; Lawrence Dep. pp. 99-101; Mary Dep. p. 124. Mary was
never informed of the complaint. Pl. Resp. CSMF ¶ 24.
Mary was told that Kostic's complaint was the reason she
was not hired. Id.
October, 2014, as the result of an arbitration decision, the
District hired four additional full-time custodians, Ross
Janikas, Thomas Wheeler, Caitlyn Abbott and Clark Crockett,
none of whom were employed as substitute custodians with the
District. Def. CSMF ¶¶ 30 & 31. The District
made the hires based upon recommendations from FMS. Def. CSMF
¶ 32. Again, FMS failed to recommend Mary for one of the
positions. Def. CSMF ¶ 33.
approached Assistant Superintendent Dr. Nancy Hines
(“Dr. Hines”) about the District's failure to
hire Mary as a full-time custodian. Def. CSMF ¶ 34. Dr.
Hines relayed the inquiry to Washington, Pfister and King and
was informed that Mary was not hired for a full time
custodial position because she was experiencing work
performance issues. Def. CSMF ¶ 35.
February 1, 2015, Dr. Hines became the District's Acting
Superintendent. Def. CSMF ¶ 36. Based on Dr. Hines'
recommendation, the District's Board of Directors
terminated the Agreement with FMS effective June 30, 2015.
Def. CSMF ¶ 37. Around the time she made the
recommendation to the Board, Dr. Hines was again approached
by Lawrence regarding the District's failure to hire Mary
as a full-time custodian. Def. CSMF ¶ 38. Lawrence
claimed that his wife was not informed of her job performance
issues prior to their meeting in August of 2014, and that
Mary was the victim of discrimination because she was not
hired for a full-time position in accordance with seniority.
Def. CSMF ¶ 39.
Hines investigated and contends that she found no evidence of
discrimination. Def. CSMF ¶ 40. Dr. Hines admits,
however, that her investigation uncovered “very limited
information” specific to Mary's performance as a
substitute custodian. Dr. Hines Aff. ¶ 17. Based on such
lack of information, Dr. Hines decided Mary should be given
the opportunity to work in a full-time capacity. Dr. Hines
Aff. ¶ 18.
an opening for a full-time custodian arose because of a
retirement. Def. CSMF ¶ 42. Mary and her husband met
with Dr. Hines on April 28, 2015 to discuss the position, and
Mary accepted the position. Def. CSMF ¶ 47. Mary ...