United States District Court, M.D. Pennsylvania
E. SCHWAB CHIEF UNITED STATES MAGISTRATE JUDGE
plaintiff Joseph Patrick Guerriero claims that his employer
retaliated against him because of his prior grievances and
prior lawsuits. Three claims of retaliation remain. Currently
pending is the defendants' motion for summary judgment.
Because Guerriero has not presented evidence to support his
claims, we will grant the defendants summary judgment as to
the two claims as to which they moved for summary judgment.
But we will not grant the defendants summary judgment as to
the third remaining claim, which the defendants fail to even
mention in their motion for summary judgment. We will,
however, order Guerriero to show cause, if there is any, why
the Court should not enter summary judgment in favor of the
defendants as to that claim.
Background and Procedural History.
began this action by filing a complaint naming as defendants
Lock Haven University of Pennsylvania and the Pennsylvania
State System of Higher Education. Judge Brann granted the
defendants' motion to dismiss the complaint, but he
granted Guerriero leave to file an amended complaint. On May
24, 2017, Guerriero filed an amended complaint naming the
same two defendants. He claims that the defendants retaliated
against him because of his prior grievances and lawsuits in
violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e et
seq., and the Pennsylvania Human Relations Act
(“PHRA”), 43 Pa. Stat. Ann.§ 951 et
claims that the defendants retaliated against him in numerous
ways. In connection with the defendants' motion to
dismiss the amended complaint, Judge Brann concluded that
Guerriero failed to administratively exhaust his claims as to
most of the ways he contends the defendants retaliated
[M]ost of Guerriero's allegations must be dismissed as
not having been administratively exhausted. Specifically,
¶ 15-16 being treated dismissively in 2011; ¶ 17-20
unfounded allegations against him in 2011; ¶21-22 not
being offered “the chance to interview” for
Athletic Director in 2012; ¶24-26 not being
“spoken to” about the position of Summer Camps
Director in 2013; ¶27-29 being denied voluntary work in
athletics in 2013; ¶30-33 being told by the Vice
President of University Relations in January 2014 that he
could not work in athletics.
Doc. 28 at 8-9 (footnote containing a citation to
the amended complaint omitted). Judge Brann concluded that
Guerriero may use those allegations “as evidence of a
‘pattern' of antagonism, ” but because
“he did not administratively exhaust [those]
allegations, ” they “in and of themselves cannot
be the basis for liability against Defendants.”
Id. at 9.
Brann then turned to whether Guerriero's amended
complaint stated claims as to the incidents of retaliation
that were administratively exhausted, and in the process, he
summarized the three incidents of retaliation that Guerriero
had administratively exhausted:
Plaintiff alleges that a Dean, Steve Neun, “despite
specifically referring to Plaintiff's resume as
“impressive” and indicative of a
“renaissance man Plaintiff further alleges that
“In the ”, advised Plaintiff that, after speaking
with others in the administration, there was no way that
Plaintiff would resume working in Athletics.”
Plaintiff further alleges that “In the Spring of 2015,
Defendants' Clearfield branch campus celebrated their
25th Anniversary. Despite being the founding Director and CEO
of the Clearfield branch campus and remaining in such
capacity for seven years, Plaintiff was not invited to the
Finally, Plaintiff alleges that “Plaintiff submitted
his application for Defendants' opening Athletic Director
position. Prior to submitting his application, Plaintiff
spoke to Women's Head Soccer Coach and a member of the
search committee for the Athletic Director's position,
Rob Eaton. While communicating to Plaintiff that, going
forward, he could not speak to any prospective applicants,
Mr. Eaton did inform Plaintiff that, based on his resume and
previous experience, he thought Plaintiff would be a
“leading candidate.” On July 4, 2015, Plaintiff
received an email from Defendants stating that Plaintiff was
no longer being considered for the position of Athletic
Id. at 9-10 (footnotes containing citations to the
amended complaint omitted). Concluding that “Guerriero
cannot establish [a] causal connection through timing
alone” but that “the exhausted factual
allegations, coupled with a potential pattern from the
non-exhausted claims, could lead a trier of fact to infer
causation, ” Judge Brann concluded that Guerriero
“stated a plausible claim for retaliation.”
Id. at 10- 11. Thus, he granted in part and denied
in part the defendants' motion to dismiss the amended
Judge Brann's decision on the motion to dismiss the
amended complaint, three retaliation claims remain: (1) the
claim based on Dean Neun advising Guerriero that there was no
way that Guerriero would resume working in Athletics; (2) the
claim based on Guerriero not being invited to the
25thAnniversary of the Clearfield branch campus;
and (3) the claim based on Guerriero not being interviewed
for or hired as the Athletic Director in 2015.
the defendants filed an answer to the amended complaint, the
parties consented to proceed before a magistrate judge
pursuant to 28 U.S.C. § 636(c), and the case was
referred to the undersigned for all further proceedings. We
gave the parties time to conduct discovery. After the
discovery period ended, the defendants filed a motion for
summary judgment, which the parties have fully briefed.
Summary Judgment Standards.
defendants move for summary judgment under Rule 56(a) of the
Federal Rules of Civil Procedure, which provides that
“[t]he court shall grant summary judgment if the movant
shows that 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). “Through summary
adjudication the court may dispose of those claims that do
not present a ‘genuine dispute as to any material
fact' and for which a jury trial would be an empty and
unnecessary formality.” Goudy-Bachman v. U.S. Dept.
of Health & Human Services, 811 F.Supp.2d 1086, 1091
(M.D. Pa. 2011) (quoting Fed.R.Civ.P. 56(a)).
moving party bears the initial responsibility of informing
the court of the basis for its motion and identifying those
portions of the record that demonstrate the absence of a
genuine dispute of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). With respect to an
issue on which the nonmoving party bears the burden of proof,
the moving party may discharge that burden by
“‘showing'-that is, pointing out to the
district court-that there is an absence of evidence to
support the nonmoving party's case.” Id.
the moving party has met its burden, the nonmoving party may
not rest upon the mere allegations or denials of its
pleading; rather, the nonmoving party must show a genuine
dispute by “citing to particular parts of materials in
the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials”
or “showing that the materials cited do not establish
the absence . . . of a genuine dispute.” Fed.R.Civ.P.
56(c). If the nonmoving party “fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, and on which that party will bear
the burden at trial, ” summary judgment is appropriate.
Celotex, 477 U.S. at 322. Summary judgment is also
appropriate if the nonmoving party provides merely colorable,
conclusory, or speculative evidence. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). There must be
more than a scintilla of evidence supporting the nonmoving
party and more than some metaphysical doubt as to the
material facts. Id. at 252. “Where the record
taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no ‘genuine
issue for trial.'” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
substantive law identifies which facts are material, and
“[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”
Anderson, 477 U.S. at 248. A dispute about a
material fact is genuine only if there is a sufficient
evidentiary basis that would allow a reasonable fact finder
to return a verdict for the non- moving party. Id.
at 248-49. When “faced with a summary judgment motion,
the court must view the facts ‘in the light most
favorable to the nonmoving party.'” N.A.A.C.P.
v. N. Hudson Reg'l Fire & Rescue, 665 F.3d 464,
475 (3d Cir. 2011) (quoting Scott v. Harris, 550
U.S. 372, 380 (2007)).
summary judgment stage, the judge's function is not to
weigh the evidence or to determine the truth of the matter;
rather it is to determine whether there is a genuine issue
for trial. Anderson, 477 U.S. at 249. The proper
inquiry of the court “is the threshold inquiry of
determining whether there is the need for a trial-whether, in
other words, there are any genuine factual issues that
properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either
party.” Id. at 250.
judgment is warranted, after adequate time for discovery,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case and on which that party will bear the burden
of proof at trial. Celotex, 477 U.S. at 322.
“Under such circumstances, ‘there can be no
genuine issue as to any material fact, since a complete
failure of proof concerning an essential element of the
nonmoving party's case necessarily renders all other
facts immaterial.'” Anderson v. Consol. Rail
Corp., 297 F.3d 242, 247 (3d Cir. 2002) (quoting
Celotex, 477 U.S. at 323). “[S]ummary judgment
is essentially ‘put up or shut up' time for the
non-moving party: the non-moving party must rebut the motion
with facts in the record and cannot rest solely on assertions
made in the pleadings, legal memoranda, or oral
argument.” Berckeley Inv. Group, Ltd. v.
Colkitt, 455 F.3d 195, 201 (3d Cir. 2006).
Rule 56.1 requires a party moving for summary judgment to
file “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.” M.D. Pa. L.R. 56.1. The Rule, in turn, requires
the non-moving party to file “a separate, short and
concise statement of the material facts, responding to the
numbered paragraphs set forth in the statement required [by
the moving party], as to which it is contended that there
exists a genuine issue to be tried.” Id. The
“[s]tatements 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, ” and
“[a]ll material facts set forth in the statement
required to be served by the moving party will be deemed
admitted unless controverted by the statement required to be
served by the opposing party.” Id.
the defendants filed a statement of material facts in support
of their motion for summary judgment. Guerriero has not,
however, filed a response to the defendants' statement of
material facts. Thus, in accordance with Local Rule 56.1, we
deem Guerriero to have admitted the following facts set forth
by the defendants.
Guerriero's Background and Employment with Lock Haven
graduated with a B.S. degree from Lock Haven University and a
M.A. degree from California University of Pennsylvania in
1988. Doc. 53 (Statement of Material and Undisputed
Facts Filed by Defendants in Support of their Motion for
Summary Judgment) at ¶ 3. He began employment with Lock
Haven University in 1988, and he remains employed by Lock
Haven University. Id. at ¶ ¶ 4-5. Based
upon Guerriero's employment contract, he is employed for
nine months during the school year, and he may seek
additional income by applying for various summer jobs with
the University. Id. at ¶¶ 6-7. Since 2010,
he has been a tenured Assistant Professor, and his benefits
have been provided in accordance with a collective bargaining
agreement. Id. at ¶ 8-9. He receives two
personal days for each nine-month contract, but he receives
no personal days or vacation time during the summer contracts
with the University. Id. at ¶¶ 10-11.
nine-month contract from September 2010 until May of 2011,
Guerriero received a pay raise. Id. at ¶ 23.
From September 25, 2010, until October 10, 2010, his pay was
$73, 712, but beginning on October 11, 2010, his pay went up
to $76, 661. Id. During this nine-month contract,
Guerriero's job responsibilities were with the Haven
Achievers Program. Id. at ¶ 24. During the
summer of 2011, Guerriero was employed by the University in
the Summer Telecom Retention Program, and his salary was $5,
059.29. Id. at ¶¶ 25-26.
nine-month contract from September 2011, until May 2012,
Guerriero's salary was $76, 661.00, and his job
responsibilities were still with the Haven Achievers Program.
Id. at ¶¶ 27-28. For the summer of 2012,
his employment was with the Summer Telecom Retention Program,
and his salary was $5, 059.29. Id. at ¶¶
nine-month contract from September 2012, until May of 2013,
Guerriero's salary increased to $77, 427.00, and his job
responsibilities remained with the Haven Achievers Program.
Id. at ¶¶ 31-32. Guerriero was not
employed with the University during the summer of 2013.
Id. at ¶ 33. Although Guerriero had applied to
be the Director of Summer Camps for the Lock Haven
Foundation, he was not selected, and he did not apply for any
other summer positions. Id. at ¶¶ 34-35.
nine-month contract from September 2013, until May 2014,
Guerriero's salary increased to $78, 202.00, and his job
responsibilities were with the Haven Achievers
Program-General Student Population, Haven Achievers Program,
and Professional Development. Id. at ¶¶
36-37. For the summer of 2014, Guerriero was the Academic
Improvement Plan (AIP) Coordinator, and his salary was $1,
792.12. Id. at ¶¶ 38-39.
nine-month contract from September 2014 until May 2015,
Guerriero's salary increased to $79, 766.00, and he was
the AIP Coordinator and his job responsibilities included
classroom instruction. Id. at ¶¶ 40-41.
For the summer of 2015, Guerriero was the ...