United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
F. SAPORITO, JR. United States Magistrate Judge
a pro se employment discrimination case. The
plaintiff, Antoine Acevedo, has raised racial discrimination
and retaliation claims under Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e
et seq., and a Fourteenth Amendment procedural due
process claim under 42 U.S.C. § 1983, against his former
employer, the Stroudsburg Area School District (the
“School District”). (Doc. 1).
School District has filed a motion for summary judgment.
(Doc. 32). In support, as required by the local civil rules,
the School District has submitted a statement of material
facts, accompanied by a transcript of the plaintiff's
deposition and several documentary exhibits, and a brief in
support. (Doc. 32-1; Doc. 32-2; Doc. 32-3; Doc. 33; Doc. 34).
Acevedo has filed a brief in opposition. (Doc. 36; see
also Doc. 37). Acevedo has not filed a counter-statement
of material facts, nor has he submitted any additional
evidence to rebut the materials submitted by the School
District. The School District has filed a reply brief. (Doc.
defendant's summary judgment motion is ripe for
disposition. For the reasons set forth herein, it is
recommended that the defendant's motion be granted.
Statement of the Case
material facts of this case are undisputed.
is an African-American. He began working for the School
District as a computer technician on or about December 6,
computer technician, Acevedo's job requirements included
an ability to interact with staff and administrators and to
“consistently demonstrate tact, courtesy, reliability,
and maturity while carrying out assigned duties.” (Doc.
32-3, at 4). Acevedo was informed of these requirements on
the date of his hiring.
August 13 and 14, 2014, Acevedo and his co-worker, David
Snook, attended a conference together. After the conference,
Acevedo submitted a mileage reimbursement request, but he
used the wrong form. As a result, the mileage reimbursement
request was returned to him.
September 2, 2014, an administrative assistant, Edwina Drozd,
emailed both Acevedo and Snook to remind them both to submit
a conference expense report. She attached a copy of the
School District's standard conference expense report
form. Snook submitted a completed conference expense report
that same day. Acevedo never submitted a conference expense
report on the correct form.
same day, an incident occurred between Acevedo and Snook,
concerning their conference expense reports. According to a
statement given by Snook to police on September 2, 2014,
Acevedo became “agitated” when he learned that
Snook was submitting an expense report when Acevedo had
already done so. Drozd intervened, attempting to explain that
the request for resubmission on the correct form came from
her. Snook told Acevedo that the revised expense report form
was already completed and would be submitted. Acevedo entered
Snook's cubicle and became “argumentative.”
After Snook told Acevedo to take the issue to Steve
Brodmerkel, an assistant superintendent with the School
District, for clarification, Acevedo became “physically
aggressive” and “pushed against” Snook, who
was seated in his office chair. Snook stood up from his chair
and stepped back. Acevedo reportedly “pressed
against” Snook and yelled and spit in his face. Snook
stepped back again and raised his hand to protect himself, at
which time Acevedo shoved Snook. Drozd and another computer
technician, Mike Glenn, told Acevedo to “calm down and
consider his actions, ” at which time Acevedo left the
and Glenn subsequently gave written statements consistent
with Snook's statement to police. Both portrayed Acevedo
as the aggressor. Glenn explicitly noted that Snook
“did not respond in any physical manner.” Later
that same day, September 2, 2014, Acevedo met with and
provided a written statement of the incident to Stephen
Brodmerkel, Assistant Superintendent for Personnel. According
to Acevedo, the incident began with Snook telling Acevedo his
expense report was “all wrong, ” in what Acevedo
characterized as “a degrading tone of voice.”
Acevedo returned to his cubicle, where Drozd intervened and
spoke to him “in an unprofessional manner” about
the expense report. Later, as Acevedo was walking by
Snook's cubicle on the way out, Acevedo “mentioned
to him in a calm voice that this duplicate paper work is
getting to me.” Acevedo reported that Snook then went
into a “rage like state” and began to scream at
him. Acevedo reported that Snook jumped out of his chair
“aggressively” and stepped toward Acevedo while
reaching for his right hip, where Acevedo believed Snook kept
a knife. Acevedo reported that both he and Snook were
screaming at this point, standing two or three inches apart.
Acevedo claimed that Snook then leaned his shoulder in toward
Acevedo's chest, in response to which Acevedo raised his
hand up to protect himself. Acevedo stated that he did not
make initial contact, but instead merely responded to
Snook's “aggressive movements with the chair, knife
and leaning on [Acevedo's] chest.” Brodmerkel
advised Acevedo that he was suspended without pay, after
notifying Acevedo of the charges against him and allowing him
an opportunity to respond.
September 17, 2014, the School District Board of Directors
(the “Board”) formally charged Acevedo with
conduct warranting discharge, pursuant to 24 P.S. §
5-514 of the School Code. In particular, the Board found that
“Acevedo's argumentative behavior and his spitting
at David Snook, which constitutes an assault, is unacceptable
employee behavior sanctionable with discharge.” The
Board further found that Acevedo had lied and changed his
story regarding the incident. Taken together, the Board found
this conduct to constitute intemperance, violation of the
state school laws, and improper conduct, all of which
warranted discharge. Acevedo was provided with a formal
“Notice of Termination, ” suspending him without
pay until a hearing before the Board could be scheduled, if
Acevedo so requested.
September 25, 2014, Acevedo wrote to the Board to request a
hearing. On June 4, 2015, after at least one continuance of
the matter, a hearing on Acevedo's termination was held
before the Board. Acevedo appeared for the hearing,
distributed a letter of resignation,  and abandoned the hearing
without providing any testimony. The resignation was
unqualified; it was not conditioned upon his obtaining
payment for unused vacation or personal days.
the hearing, the Board issued its opinion and adjudication on
June 23, 2015, sustaining the suspension and terminating
Acevedo for the same reasons given in the Notice of
Termination. As a matter of school policy, because Acevedo
was terminated, he was not entitled to accrued but unused
School District has promulgated a harassment policy directing
employees to report incidents of harassment or discrimination
to Human Resources. In his complaint, Acevedo has alleged
several incidents in support of his hostile work environment
claim, but, as he acknowledged at his deposition, he never
reported any of these incidents to Human
Rule 56 of the Federal Rules of Civil Procedure, summary
judgment should be granted only if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
fact is “material” only if it might affect the
outcome of the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute of material
fact is “genuine” only if the evidence “is
such that a reasonable jury could return a verdict for the
non-moving party.” Anderson, 477 U.S. at 248.
In deciding a summary judgment motion, all inferences
“should be drawn in the light most favorable to the
non-moving party, and where the non-moving party's
evidence contradicts the movant's, then the
non-movant's must be taken as true.” Pastore v.
Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).
party seeking summary judgment “bears the initial
responsibility of informing the district court of the basis
for its motion, ” and demonstrating the absence of a
genuine dispute of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). If the movant makes
such a showing, the non-movant must set forth specific facts,
supported by the record, demonstrating that “the
evidence presents a sufficient disagreement to require
submission to the jury.” Anderson, 477 U.S. at
evaluating a motion for summary judgment, the Court must
first determine if the moving party has made a prima
facie showing that it is entitled to summary judgment.
See Fed. R. Civ. P. 56(a); Celotex, 477
U.S. at 331. Only once that prima facie showing has
been made does the burden shift to the nonmoving party to
demonstrate the existence of a genuine dispute of material
fact. See Fed. R. Civ. P. 56(a); Celotex,
477 U.S. at 331.
parties may cite to “particular parts of materials in
the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for the purposes of the motion only),
admissions, interrogatory answers or other materials.”
Fed.R.Civ.P. 56(c)(1)(A). “An affidavit or declaration
used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent
to testify on the matters stated.” Fed.R.Civ.P.
56(c)(4). “Although evidence may be considered in a
form which is inadmissible at trial, the
content of the evidence must be capable of admission
at trial.” Bender v. Norfolk S. Corp., 994
F.Supp.2d 593, ...