JOSEPH A. GIANSANTE, Plaintiff,
v.
PITTSBURGH PUBLIC SCHOOLS, Defendant.
Civil Action No. 17-1307
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
June 10, 2019
Magistrate Judge Maureen P. Kelly
Re: ECF No. 31
OPINION AND ORDER OF COURT
KELLY, Magistrate Judge
Plaintiff Joseph A. Giasante ("Giansante" or "Plaintiff") filed this employment discrimination action against Defendant Pittsburgh Public Schools ("the District"), alleging that the District unlawfully terminated him because of his age, in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. C.S. §§ 951, et seq. ECF No. 1.
Pending before the Court is the District's Motion for Summary Judgment, contending that Plaintiff's claims are time-barred or, alternatively, that a factfinder could not reasonably conclude that the District's reasons for termination are not legitimate, or that discrimination was more likely than not the motivation for his termination. ECF No. 31.
In conjunction with the Motion for Summary Judgment, the District has filed a Concise State of Material Facts, ECF Nos. 32 and 62, Appendices containing exhibits to the Motion, ECF
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Nos. 33 and 61, and a Brief in Support of the Motion for Summary Judgment, ECF No. 34.1 Giansante has filed a Brief in Opposition to the Motion, ECF Nos. 35 and 59, a Response to Concise Statement of Material Facts, ECF No. 36, a Counter Statement of Facts in Opposition to the Motion for Summary Judgment, ECF Nos. 44 and 58, and various appendices containing exhibits offered in support of Plaintiff's Counter Statement of Facts, ECF Nos. 38, 39, 40, 41, 42, 43, 45, 46, and 47. The District filed a Response to Plaintiff's Counterstatement of Material Facts, ECF Nos. 52 and 64, a Reply Brief, ECF Nos. 53 and 65, and a Supplemental Appendix, ECF Nos. 54 and 63. Giansante filed his Sur-Reply, ECF Nos. 57 and 60. The parties have jointly filed a Stipulation and Joint Statement of Undisputed Facts, ECF No. 30.
After careful consideration of the evidence of record and the parties' positions, and for the reasons that follow, the Motion for Summary Judgment is denied.2
I. FACTUAL AND PROCEDURAL BACKGROUND
1. Pennsylvania and District Teacher Evaluation Process
Pursuant to Pennsylvania law, "[t]he only valid causes for termination of a [tenured teacher's] contract ... shall be unsatisfactory teaching performance based on two (2) consecutive ratings of the employe's teaching performance that are to include classroom observations, not less than four (4) months apart, in which the employe's teaching performance is rated as unsatisfactory." 24 Pa. Stat. Ann § 11-1122(a). The collective bargaining agreement between the District and the Pittsburgh Federation of Teachers ("the Union") provides that teachers are subject to annual review to determine a year-end performance rating. ECF No. 33-11 at 17; ECF
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No. 33-13 at 122-23. Accordingly, termination of a District teacher for unsatisfactory teaching performance must be based upon two consecutive annual unsatisfactory ratings.
For school years prior to 2013-2014, the Pennsylvania Public School Law required ratings of teacher performance to be conducted in accordance with "an approved rating system which shall give due consideration to personality, preparation, technique, and pupil reaction, in accordance with standards and regulations for such scoring as defined by rating cards to be prepared by the Department of Education ...."3 24 Pa. Stat. Ann. § 11-1123 (1996, March 29, P.L., No. 16, § 4, imd. effective); ECF No. 62 ¶ 36. Certified supervisors or principals must conduct evaluations and rating determinations, and a district superintendent must approve the issuance of an unsatisfactory rating. Id.; ECF No. 62 ¶ 35.
The District's teacher evaluation process includes informal observations at the beginning of each school year to determine whether rituals, routines and procedures are in place. ECF No. 64 ¶ 34. If problems are observed, formal observations are conducted. Id. ¶ 35. Formal observations are at least 40 minutes of class time, and can be announced or unannounced. Once completed, a written post-evaluation conference is scheduled and the observation is included in the teacher's year-end rating. Id. ¶¶ 30, 35. After a formal observation, a school principal determines if an Employee Improvement Plan ("EIP") should be implemented. Id. ¶ 36. An EIP for a tenured teacher will result in a year end rating of "satisfactory," "unsatisfactory," or "below average" at the end of the school year. Id. ¶ 38. A teacher assigned to an EIP will be observed at the commencement of the following school year to determine if continuation of an EIP is
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appropriate. Id. Upon the issuance of two unsatisfactory ratings after completion of an EIP, the District recommends termination. At that point, a teacher has the option of resigning or filing a grievance. As relevant here, upon issuance of a termination recommendation, the teacher is dismissed from his or her teaching position without pay; however, the District continues health benefits until the conclusion of the grievance process, which may include a hearing before the School Board to challenge the recommendation, followed by a final School Board vote for termination. ECF No. 36 ¶¶ 7-12.
2. Giansante's Employment History with the District through June 2011
The District hired Giansante on August 29, 2005, at the age of 47, to teach math at Westinghouse High School. ECF No. 33-1 at 5; ECF No. 38-8 at 1. He experienced difficulties during his tenure at Westinghouse relative to the teacher observation process. ECF No. 33-2 at 1-9. Principal Shawn McNeil observed Giansante on October 4, 2010, and reported a classroom environment marked by students not attempting school work, talking out of turn or to each other, and a teacher providing answers to math problems without student engagement or participation. Id. at 4-6. While Giansante does not recall being subject to an EIP for the remainder of the school year, his employment records show that McNeil's observation resulted in the development of an EIP setting forth expectations for Giansante, as well as a plan for support and assistance from the Mathematics Curriculum Supervisor, the Principal, and an instructional teacher leader. Id. at 7-9.
Certified observers recorded that Giansante experienced continued difficulty with maintaining an environment conducive to learning. ECF No. 33-2 at 14, 24, 26-28, 33-38. Giansante also received a reprimand for excessive absenteeism of 23 days as of February 21, 2011. ECF No. 33-2 at 41. On February 25, 2011, Giansante requested an unpaid leave of
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absence for the period March 7, 2011, through May 27, 2011. ECF No. 33-14 at 6. The leave request was approved, and a paid extension of leave was granted through June 14, 2011, with an unpaid leave for the remainder of the school year. Id. at 9. Giansante was provided a satisfactory rating for the 2010-2011school year.
3. Giansante's Performance for School Year 2011-2012
At the conclusion of the 2010-2011 school year, Giansante was displaced from his position at Westinghouse. ECF No. 33-7 at 6. Pursuant to District policy, he was eligible for placement in a similar subject matter vacancy and was required to be placed before openings were publicly posted. Id. At the time, Brashear High School ("Brashear") was an underperforming school in the District with 90 percent of students several years behind. ECF No. 64 ¶ 1. In conjunction with a grant, Brashear was designated as a "turnaround school," and a complete re-staffing process was implemented, requiring existing Brashear teachers to reapply for their positions. Id. ¶¶ 1-2.
Half of the 100 teachers at Brashear were re-staffed, and three co-principals were selected as administrators: Angel Washington, John Vater, and Kimberly Safran. ECF No. 33-7 at 6; ECF No. 64 ¶ 8. Washington and Vater conducted all hiring for the 2011-2012 school year; however, in accordance with District policy, and as a result of his displacement from Westinghouse, Giansante was placed at Brashear effective August 16, 2011, without input from either principal. ECF No. 64 ¶¶ 9-10. The Manager of Employee Evaluation incorrectly informed Washington, Vater, and Safran that Giansante received an unsatisfactory rating for the prior school year. ECF No. 33-11 at 5; ECF No. 62 ¶ 46. Giansante believes that his placement under these circumstances led to resentment against him. ECF No. 33-9 at 7.
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In accordance with District practice, Giansante's classroom was observed by a math supervisor on September 16, 2011. ECF No. 33-2 at 81-84. The observer noted poor lesson planning and a failure to teach the curriculum as intended, with Giansante providing correct answers without students demonstrating an understanding of the concept behind a particular problem or answer. Id. Co-principal Washington conducted a formal observation of Giansante's class on September 23, 2011, and identified similar concerns. ECF No. 33-2 at 85-92. The parties dispute the accuracy of Washington's conclusions; in particular, Giansante disputes Washington's statement that students were not engaged in the lesson and that Giansante had ineffectively implemented lesson design simply because students were working independently on packets for a 2-period block of time. ECF No. 64 ¶¶ 56-66. Washington recommended that Giansante be placed on an EIP. ECF No. 38-15 at 2; ECF No. 46-2.
As a result of the EIP, Giansante was formally and informally observed throughout the Fall 2011 by various curriculum supervisors and Brashear principals with no record of discernable improvement in performance. ECF Nos. 38-19, 38-22, 38-23, 38-24, 38-27; ECF No. 38-25 at 2. On December 6, 2011, Washington conducted an informal observation and noted that students were talking during a warm-up exercise, and continued to talk and...
