United States District Court, W.D. Pennsylvania
Stewart Cercone United States District Judge.
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
“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.
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.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.
Statement of the Case
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.
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. 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
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.
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.
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.
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.
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.
Legal Standard for Summary Judgment
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).
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).
42 U.S.C. § 1983-Violation of ...