United States District Court, W.D. Pennsylvania
JOSEPH A. GIANSANTE, Plaintiff,
PITTSBURGH PUBLIC SCHOOLS, Defendant.
ORDER OF COURT RE: ECF NO. 68
MAUREEN P. KELLY MAGISTRATE JUDGE
before the Court is a "Motion for Certification of
Interlocutory Appeal," ECF No. 68, filed on behalf of
Defendant Pittsburgh Public Schools (the
"District") pursuant to 28 U.S.C. § 1292(b),
seeking to permit the immediate appeal to the United States
Court of Appeals for the Third Circuit of the Order of this
Court dated June 10, 2019, denying Defendant's Motion for
Summary Judgment, ECF No. 66. Because the Order involves a
controlling question of law to which there is substantial
ground for difference of opinion, and an immediate appeal may
materially advance the ultimate termination of the
litigation, the Court will grant Defendant's motion. The
Court notes that Plaintiff Joseph Giansante
("Giansante") does not oppose the motion. ECF No.
filed this employment discrimination action against the
District, alleging that it unlawfully terminated him because
of his age, in violation of the Age Discrimination in
Employment Act ("ADEA"), 29 U.S.C. §§
621, et seq., and the Pennsylvania Human Relations
Act ("PHRA"), 43 Pa. C.S. §§ 951, et
seq. ECF No. 1. Giansante was dismissed without pay in
June 2013 because he had received consecutive unsatisfactory
teacher ratings for the 2011-2012 and 2012-2013 school years.
However, the District did not terminate Giansante's
designation as an active employee and continued his health
benefits pending a School Board hearing process, which
included the presentation of evidence and testimony over the
course of five days. Following the full hearing, the School
Board voted to adopt a resolution terminating Giansante from
employment with the District on November 24, 2015.
19, 2016, Giansante filed a Charge of Discrimination with the
Equal Employment Opportunity Commission ("EEOC"),
alleging age discrimination. On October 11, 2017, Plaintiff
commenced the instant federal action by filing his Complaint
alleging age discrimination. After the close of discovery,
the District filed a Motion for Summary Judgment contending
that Giansante's claims are time-barred because he did
not file an EEOC charge within 300 days of receiving a second
unsatisfactory rating and being removed without pay from his
teaching position. The District further argued that the
reasons for Giansante's termination were legitimate and
the issuance of the second unsatisfactory rating and the
decision to place Giansante on an unpaid leave of absence
after his second unsatisfactory rating in June 2013,
Giansante conceded, and this Court found, that these discrete
acts are time-barred. As such, these acts may not give rise
to independent age discrimination claims. ECF No. 66 at 19.
the School Board vote on November 24, 2015, terminating
Giansante's employment, following the evidentiary hearing
over five days, the Court found that this discrete act may
give rise to an independent age discrimination claim that is
not time- barred. As such, the Court denied the Motion for
Summary Judgment as to timeliness.
In this instance, Plaintiff has alleged a wrongful
discharge claim arising out of the School Board's
November 24, 2015, termination vote. The vote inflicted an
injury separate and apart from the loss of pay in June 2013,
through the cessation of Giansante's health care
benefits. Further, record evidence establishes that a
recommendation to terminate by the Superintendent does not
necessarily result in final termination, because the School
Board's independent vote is a required step to effectuate
termination. ECF No. 52 ¶¶ 386, 399. The
termination vote did not occur until after a multi-day
hearing before the School Board, and thereby required an
independent assessment of the reasons for the
[unsatisfactory] rating. Giansante claims that this
evaluation process has been engaged, first by the District,
and then by the School Board, to reduce labor costs during a
budgetary shortfall. This process resulted in the termination
of employment of a disproportionate number of teachers in
Plaintiffs protected age class who earn substantially more
than younger teachers. ECF No. 60 at 5. In this regard, the
fact that the School Board voted to terminate Giansante after
a five-day hearing and the presentation of evidence by both
Giansante and the District lends credence to the independent
participation of the School Board in Giansante's
Id. at 21.
District requests that this Court certify its June 10, 2019
Order for immediate interlocutory appeal as to the issue of
"whether the cessation of Giansante's health
benefits and the Board vote at the conclusion of the Board
hearing process constitutes a discrete and independently
discriminatory act." ECF No. 69 at 3.
District seeks certification for interlocutory appeal of the
June 10, 2019 Order pursuant to 28 U.S.C. § 1292(b).
Section 1292(b) provides:
When a district judge, in making in a civil action an order
not otherwise appealable under this section, shall be of the
opinion that such order involves a controlling question of
law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the
litigation, he shall so state in writing in such order.
decision to certify for interlocutory appeal rests with the
district court, and the burden to demonstrate that
certification is appropriate lies with the moving party.
Orson v. Miramax Film Corp.. 867 F.Supp. 319, 320
(E.D. Pa. 1994) (citing Delaware Valley Toxics Coalition
v. Kurz- Hastings. Inc.. 813 F.Supp. 1132, 1142 (E.D.
Pa. 1993)). Section 1292(b) ...