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Guerriero v. Lock Haven University of Pennsylvania

United States District Court, M.D. Pennsylvania

July 29, 2019

JOSEPH PATRICK GUERRIERO, Plaintiff
v.
LOCK HAVEN UNIVERSITY OF PENNSYLVANIA, et al., Defendants

          MEMORANDUM OPINION

          SUSAN E. SCHWAB CHIEF UNITED STATES MAGISTRATE JUDGE

         I. Introduction.

         The 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.

         II. Background and Procedural History.

         Guerriero 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 seq.

         Guerriero 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 against him:

[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.

         Judge 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 25th Anniversary.”
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 Director.”

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 complaint.

         Following 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.

         After 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.

         III. Summary Judgment Standards.

         The 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)).

         The 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. at 325.

         Once 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).

         The 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)).

         At the 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.

         Summary 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).

         IV. Material Facts.

         Local 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.

         Here, 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.[1]

         A. Guerriero's Background and Employment with Lock Haven University.

         Guerriero 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.

         For the 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.

         For the 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 ¶¶ 29-30.

         For the 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.

         For the 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.

         For the 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 ΒΆΒΆ 40-41. For the summer of 2015, Guerriero was the ...


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