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Pope v. Wilkinsburg Borough School District

United States District Court, W.D. Pennsylvania

September 16, 2019

RAMONA POPE, Plaintiff,


          David Stewart Cercone United States District Judge.

         I. Introduction

         In her Amended Complaint, Plaintiff, Ramona Pope (“Pope” or “Plaintiff”), asserts the following claims against Defendants, Wilkinsburg Borough School District (the “District”), Joseph Petrella (“Petrella”), Richard Liberto (“Liberto”), Edward Donovan (“Donovan”), and Klara Brown (“Brown”) (collectively “Defendants”): (1) substantive Due Process under 42 U.S.C. § 1983 (Count I); (2) Civil Conspiracy to violate Constitutional Rights (Count II); (3) Retaliation in violation of the Pennsylvania Whistleblower Law, 43 Pa. Con. Stat. Ann. § 1421 et seq. (Count III); (4) Defamation (Count IV); (5) Intentional Infliction of Emotional Distress (Count V); (6) Breach of Contract (Count VI): (7) Tortious Interference with Contractual Relations (Count VII); (8) Racial Discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 et seq. (“Title VII”) (Count VIII); (9) Retaliation in violation of Title VII (Count IX); (10) Aiding and Abetting Discrimination and Retaliation under the Pennsylvania Human Relations Act, 43 Pa. Cons. Stat. §§ 951 et seq. (the “PHRA”) (Count X); (11) Discrimination and Retaliation under the PHRA (Count XI); and (12) Equal Protection under 42 U.S.C. § 1983 (Count XII). Defendants' Motion to Dismiss was granted with regard to Counts VIII, X and XI.

         Defendants have filed a Motion for Summary Judgment, Pope has responded to the motion and to the Defendants' Concise Statement of Undisputed Material Facts (“Def. CSUMF”), but has failed to file a brief in opposition to the motion for summary judgment.[1]Pope's failure to file a brief in opposition is not sufficient to justify the entry of summary judgment. Fed.R.Civ.P. 56; See also Durant v. Husband, 28 F.3d 12, 17409 (3d Cir. 1994). There must be facts of record to support the claims on the merits. Id. Therefore, this Court must still engage in a legal analysis of the case to determine, based on the facts of record, if summary judgment is warranted. Fed.R.Civ.P. 56(e).

         II. Statement of the Case

         Petrella was the District's Superintendent, responsible for the day-to-day administration, including the enactment and enforcement of the District's policies and practices. Am. Compl. ¶ 10. Donovan served as President of the District's School Board from 2012 through December 2017. Def. CSUMF ¶ 15. Brown was elected to the District's School Board in 2013. Def. CSUMF ¶ 16. In September 2015, Liberto became the Business Manager for the District, responsible for budget and financial operations. Am. Compl. ¶ 12. Peter Camarda (“Camarda”) was hired as the interim Business Manager for the District in May of 2015 and served through November of 2015. Def. CSUMF ¶ 22.

         In June of 2013, Pope, an African-American woman, was hired by the District to work in the Payroll Department as a consultant to perform payroll services from June 12, 2013, through June 28, 2013, as a rate of $200 per day, for a total cost of $2, 480. Def CSUMF ¶¶ 1 & 2[2]. On September 24, 2013, the District approved an extension of the consultant agreement with Pope for Payroll/Human Resources (“HR”) services from September 1, 2013 through October 31, 2013 at the rate of $315 per day. Def. CSUMF ¶ 3. On October 22, 2013, the District approved an agreement with Pope to perform Payroll/HR consulting duties from November 1, 2013 through December 31, 2013 or such dates as determined by the Superintendent in an amount not to exceed $10, 710. Def. CSUMF ¶ 4. In December of 2013, and in January, February and March of 2014, the District approved an agreement with Pope for the performance of Payroll/HR consulting services on a monthly basis for various monthly fees. Def. CSUMF ¶¶ 5-8.

         On April 22, 2014, the District approved an agreement with Pope for the performance of Payroll/HR consulting services from May 1, 2014, through June 30, 2014, for an amount not to exceed $5, 035.00 per month. Def. CSUMF ¶ 9. In August of 2014, the District approved an agreement with Pope for the performance of consulting services for the period of September 1, 2014, through December 31, 2014, at a rate of $300 per day, not to exceed $6, 700 per month. Def. CSUMF ¶ 10. In December of, 2014, and in May of 2015 the District approved an agreement with Pope for the performance Finance and Operations/HR consulting services for the periods of January 1, 2015, through June 30, 2015, and from July 1, 2015, through December 31, 2015, at a rate of $300 per day not to exceed $6700 per month. Def. CSUMF ¶¶ 11 & 12. Finally, on August 25, 2015, the District approved the hiring of Pope to the position of Affirmative Action Officer and Title IX Compliance Coordinator effective immediately through December 1, 2015. Def. CSUMF ¶ 13.

         During the summer of 2015, Pope observed Camarda and Lori Seaman using Phillip Martell's login and password to finish the direct deposit and approval of the taxes. Def. CSUMF ¶ 23. Pope reported the use of the passwords to Petrella in July 2015. Def. CSUMF ¶ 25.

         During the interviews for the Business Manager in 2015, the School Board was aware of, and Liberto discussed, allegations made against him by the Penn Hills School District (“PHSD”) with regard to his employment with PHSD. Def. CSUMF ¶ 26. On August 25, 2015, the District approved a two (2) year contract with Liberto as the Director of Finance and Operations with an official start date of September 9, 2015. Def. CSUMF ¶ 29. That same day Liberto forwarded to Pope paystubs provided directly by PHSD showing his sick days. Def. CSUMF ¶ 30. On August 28, 2015, Liberto submitted a conditional letter of resignation to PHSD's attorney, effective September 3, 2015, in order to accept employment with the District. Def. CSUMF ¶ 33.

         After Liberto was hired, Petrella informed Pope that she was to report to Liberto. Def. CSUMF ¶ 34. Pope admits that, around the time of Liberto's hire, she started her own investigations into Petrella's moving expenses and into both Liberto's sick leave transfer and resignation from PHSD. Def. CSUMF ¶ 35. Soon after, Petrella directed Pope not to attend any more personnel debriefs or and to contact the School Board directly without his authorization. Def. CSUMF ¶ 36.

         On October 12, 2015, Liberto, as representative of the District, entered into an agreement with Maher Duessel for the accounting firm to conduct an investigation and create a report comparing the billing and payments to Pope for her consulting services to the agreed upon per diem and monthly rates and the operational school calendar. Def. CSUMF ¶ 38. Liberto contends that at that time, he was not aware that Pope was investigating the transfer of his sick days from PHSD, the circumstances surrounding his ongoing hearings with PHSD, or Petrella's moving expenses. Def. CSUMF ¶ 40. On October 13, 2015, Pope was informed by the District that her services would no longer be needed and that she was under investigation for theft. Def. CSUMF ¶ 39.

         III. Legal Standard for Summary Judgment

         Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment shall be granted when there are no genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of law. To support denial of summary judgment, an issue of fact in dispute must be both genuine and material, i.e., one upon which a reasonable fact finder could base a verdict for the non-moving party and one which is essential to establishing the claim. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Id. The court's consideration of the facts must be in the light most favorable to the party opposing summary judgment and all reasonable inferences from the facts must be drawn in favor of that party as well. Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177, 180 (3d Cir. 1999), Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).

         When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In the language of the Rule, the nonmoving party must come forward with “specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P 56(e). Further, the nonmoving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The non-moving party must respond by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial. Simpson v. Kay Jewelers, Div. Of Sterling, Inc., 142 F.3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994).

         IV. Discussion

         A. 42 U.S.C. ยง 1983-Violation of ...

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