Carr v. Cmty. Coll. of Allegheny Cnty.

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DANIEL M. CARR, Plaintiff, v. COMMUNITY COLLEGE OF ALLEGHENY COUNTY and QUINTON BULLOCK, Defendants.

Civil Action No. 19-1133

United States District Court, W.D. Pennsylvania

February 22, 2022

Cathy Bissoon District Judge

REPORT AND RECOMMENDATION RE: ECF NO. 48

MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE

I. RECOMMENDATION

Plaintiff Daniel M. Carr (“Carr”) brings this case against the Community College of Allegheny County (“CCAC”) and CCAC President Quintin Bullock (“Bullock”) (collectively “Defendants”), arising out of allegations that Defendants unlawfully terminated his employment. Pending before the Court is Defendants' Motion for Summary Judgment. ECF No. 48. For the reasons set forth herein, it is respectfully recommended the Court deny the motion.

II. REPORT

A. FACTUAL BACKGROUND

The factual background is derived from the parties' Joint Statement of Undisputed Facts, ECF No. 47, Defendants' Concise Statement of Material Facts, ECF No. 49, Carr's Response to Defendants' Concise Statement of Material Facts and Additional Concise Statement of Material Facts, ECF No. 65, Defendants' Response to Plaintiff's Additional Concise Statement of Material Facts, ECF No. 69, and the extensive exhibits in the summary judgment record.^[1] The evidence of record is viewed in the light most favorable to Carr as the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

1. Carr's Employment

Carr is a Caucasian male, born in 1953, and at all times relevant to this action was over 40 years old.^[2] ECF No. 47 ¶ 1, ECF No. 58 ¶ 3. CCAC is a publicly funded institution of higher education in Allegheny County, Pennsylvania, and operated pursuant to the Pennsylvania Public School Code. ECF No. 47 ¶ 4. Beginning in September 1983, Carr was employed by CCAC as an internal auditor, and rose to the position of Director of Internal Audit in September 1986. Id. ¶¶ 2-3. Bullock has been the President of CCAC since March 5, 2014. Id. ¶ 5. As the Director of Internal Audit, Carr reported directly to the CCAC President. ECF No. 50-10 at 5.

2. Duties and Responsibilities

Although the parties dispute the full scope of Carr's duties and responsibilities at CCAC, the record reflects that one of his responsibilities was to review faculty travel expense requests to confirm the information provided and to report any discrepancies.^[3] ECF No. 65 ¶ 30; ECF No. 50-13 at 42. In February 2018, Carr declined to advance travel expenses requested by a faculty member based on his interpretation of the collective bargaining agreement between CCAC and the American Federation of Teachers (“AFT”). ECF No. 50-13 at 40-41. The AFT union representative filed a grievance against CCAC “because of consistent problems we have experienced with the Auditor and travel expenditures….” Id. at 43. In resolving the grievance, Bullock wrote a memorandum to Carr, dated March 22, 2018, and reiterated an earlier instruction that if discrepancies in travel expenses are identified, Carr is to forward the relevant documents to the campus dean to review before deciding whether to advance or reimburse an expense.^[4] Bullock also instructed Carr that he was not to communicate directly with any AFT member, and informed him that failure to follow this procedure would be viewed as insubordination and appropriate action would be taken. Id. at 47.

Carr responded to Bullock's letters with separate written complaints to the chair of the CCAC Board of Trustees and to a board member. Id. at 29, 48. Both letters were dated March 29, 2018, and were copied to the members of the Board of Trustees. Id. Carr wrote that Bullock's instructions rendered his position as Internal Auditor “moot” and placed him in the position of facing adverse retribution. Id. Carr raised pending discrimination charges that had been lodged against CCAC and Bullock by two female employees, and stated that he was “named as a potential witness.” Id. Carr viewed Bullock's letter as placing him in an “intimidating position” in violation of “Policy/Rules” of the Equal Employment Opportunity Commission (“EEOC”). Id. Carr requested that Bullock's letter be removed from his personnel file. Id.

The Solicitor of the CCAC Board of Trustees, Attorney Andrew Szefi, responded to Carr by letter dated June 21, 2018, and informed him that at the request of the Board of Trustees, a review of his allegations was conducted by external counsel. The review included an interview to permit Carr to explain his position. Id. at 27. Based on the review, the solicitor informed Carr that the Board of Trustees determined that Bullock's directives to Carr did not violate any CCAC policy or the union contract, and there was no evidence that Bullock was aware of Carr's potential involvement in an EEOC proceeding. The solicitor informed Carr that he was to abide by Bullock's instructions as memorialized in the March 22, 2018 letter, and reiterated that the Internal Auditor role did not include the authority to approve or disapprove travel reimbursements or advances, but only to highlight discrepancies for administrative resolution. Id.

3. June 2018 Performance Appraisal

In the week following issuance of the June 21, 2018 letter, Carr received his annual performance evaluation. Id. at 2-5. In the “President's Direct Report Evaluation” for the period July 1, 2017 through June 30, 2018, Carr received an “Overall Rating of Skill Set” of “Needs Improvement.” Id. In the categories of “Communication Skills”, “Leadership”, and “Team Work”, he was rated as “needs improvement” in all 17 applicable skill categories. Id. On June 27, 2018, Carr signed the performance appraisal and wrote that the “overall grading of the review was unwarranted” and that he disagreed with this rating. Id. at 5. Bullock also signed the performance appraisal. Id.

4. First EEOC Charge

On July 9, 2018, Carr filed a Charge of Discrimination with the EEOC and cross-filed with the Pennsylvania Human Relations Commission (“PHRC”). Id. at 24-26. Carr asserted that Bullock's directives in March 2018 and his June 2018 performance appraisal were discriminatory based on his race and age, and otherwise constituted retaliation “for having been identified as a potential witness … in other EEOC matters.” Id. at 24-25. On July 30, 2018, the EEOC issued a “Notice of Charge of Discrimination” to CCAC in connection with Carr's charge. Anthony DiTommaso, CCAC's General Counsel, learned of the charge in early August 2018. ECF No. 47 ¶ 6; ECF No. 69 ¶¶ 273, 274.

5. CCAC's Investigation of Violation of Computer Use Policy by Carr

The parties dispute the timing and purpose of an investigation of Carr's computer usage that followed receipt of the EEOC Notice of Charge.

In early August 2018, DiTommaso retained Precise, Inc. to create a forensic image of Carr's computer. Defendants assert that this action was part of a routine hold to preserve evidence for anticipated litigation. ECF No. 65 ¶¶ 90 - 92; ECF No. 50-13 at 146.

Defendants state that shortly after receiving the EEOC charge, DiTommaso also received a report that Carr had been observed viewing pornographic websites on his work computer. ECF No. 69 ¶ 276. The report came from Elizabeth Johnston, CCAC's Executive Director of Public Relations and Marketing. Id. ECF No. 69 ¶ 277; ECF No. 47 ¶ 9. Johnston apparently received the initial report some months earlier from Carr's co-worker Giovanni Garofalo. Garofalo had an office across from Carr with a direct line of sight to Carr's computer screen.^[5] ECF No. 47 ¶ 10, ECF No. 69 ¶¶ 94-96, 281. Garofalo did not define the timing of the views, but stated they were persistent.

Defendants state that based on the report from Johnston, DiTommaso requested that the forensic analyst search Carr's hard drive for pornography as well as words or references relevant to his pending EEOC complaint. ECF No. 65 ¶ 92, 111-112. As to pornography, the forensic analyst provided a report that the search found “some of the suspected activity” spanning “a period from 4/2011 up through as recently as Monday afternoon. Most (if not all from what I have seen) of these entries were pulled from ‘Private/Incognito' browsing sessions using Internet Explorer.” ECF No. 65 ¶ 113. The forensic analyst provided a spreadsheet listing “hundreds of pornographic website visits.” Id. ¶ 114. DiTommaso shared the report with Bullock and Kimberly Manigault, CCAC's Vice President of Human Resources. Id. ¶ 135.

Manigault interviewed Carr on September 10, 2018, and questioned him regarding evidence of his accessing pornography. Carr admitted that he accessed pornographic materials on his CCAC computer in the 2011 to 2014 period, but denied any recent activity. ECF No. 50-13 at 286, 293-96, 300; and see, ECF No. 50-10 at 14 (conceding that except for dates in 2018, the spreadsheet reflected pornographic websites he visited on his work computer during the period 2011-2014).^[6] Manigault's notes reflect that Carr asserted that he was accessing sites to ensure they “didn't contain information of students or employees of the college.” ECF No. 50-13 at 286. Carr stated that a former board member raised internet pornography concerns and that personnel in the athletic department in the period 2011-2012 also reported current concerns to him. Carr stated that he checked for images of CCAC out of concern for students, and that he sent a list of sites to the IT department to block. Id. Carr also claimed that Jeanne Shader, a former Human Resources Director, asked him to investigate an employee at the Boyce campus who was found to have pornographic material on his computer. Id. at 287, 302. Carr conceded that no one from the Office of the President ever asked him to investigate pornography. At the end of this...