Rubano v. Farrell Area Sch. Dist.

991 F.Supp.2d 678

Robert P. RUBANO, Plaintiff,

v.FARRELL AREA SCHOOL DISTRICT, Defendant.

Civil Action No. 11–1574.

United States District Court, W.D. Pennsylvania.

Jan. 8, 2014.

Neal A. Sanders, Dirk D. Beuth, Law Offices of Neal Sanders, Butler, PA, for Plaintiff.

Neal R. Devlin, Knox, McLaughlin, Gornall & Sennett, Erie, PA, for Defendant.

OPINION

LENIHAN, United States Magistrate Judge.

Currently before the Court for disposition is Defendant's Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56 and Western District of Pennsylvania Local Rule 56.1 (ECF No. 29). In this employment discrimination case, Plaintiff, Robert P. Rubano, contends that Defendant, Farrell Area School District (the “District”) discriminated against him by regarding him as disabled within the meaning of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (“ADA”), as amended by the ADA Amendments Act of 2008, Pub.L. No. 110–325, 122 Stat. 3553 (“ADAAA”). Rubano contends that because of his perceived disability, the District, through its agents/employees, discriminated against him when it subjected him to a hostile work environment, demoted him, and retaliated against him, in violation of the ADA, ADAAA, and the Pennsylvania Human Relations Act, 43 Pa. Cons.Stat. § 951 et seq. (“PHRA”). As a result, Rubano claims that he suffered a loss of wages from July 1, 2010 to present, loss of pension, insurance and other benefits, suffered personal injury and harm, humiliation, embarrassment, loss of self-esteem, adverse health effects, and loss of time and money in endeavoring to protect himself from the District's unlawful discrimination. Rubano further contends that the District retaliated against him based on his filing charges of discrimination with the EEOC.

This Court has subject matter jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 12111, and has supplement jurisdiction pursuant to 28 U.S.C. § 1367 over the PHRA claims.

For the reasons set forth below, the Court finds that no material issues of fact exist and that the District is entitled to judgment in its favor as a matter of law. Accordingly, the Court will grant the District's motion for summary judgment.

I. MATERIAL FACTS

The material facts are largely undisputed.¹ In 1997, the Farrell Area School District (the “District”) hired Plaintiff, Robert Rubano, as a member of its maintenance department. Initially, Rubano was hired as extra summer help, and thereafter, he was hired as a full-time employee of the maintenance department. As a full-time employee of the maintenance department, Rubano was a member of the American Federal of State, County and Municipal Employees Union.

In 2001, Rubano was promoted to the position of maintenance/custodial foreman. This promotion resulted in Rubano supervising members of the maintenance and custodial departments and receiving a pay increase to between $15 and $16 per hour. While working in the maintenance department, Rubano also obtained certifications with regard to pool chemicals, pesticides and playground maintenance, which allowed him to perform a variety of maintenance functions.

Beginning in 2002, Rubano testified that he began feeling symptoms of depression. Rubano testified that those symptoms persisted,with varying degrees of intensity, between 2002 and 2009. During that time period, his symptoms increased in severity during times of stress, such as the divorce from his second wife. Rubano also testified that in June 2009, his working conditions began affecting his then undiagnosed depression. Rubano did not believe that any member of the District, other than his brother who had previously served as the District's superintendent, was aware of his depression.

Between January of 2009 and May of 2010, Rubano testified that he was subjected to a hostile work environment, albeit not due to a perceived disability. (Rubano Dep. at 80.) The alleged harassment during this period began in January 2009 when he was allegedly slandered by the then-President of the School Board, Marcina Cimoric, at the Board meeting, when she stated that he botched a District renovation project, which was untrue. (Rubano Dep. at 57–58.) ² In June of 2009, Rubano testified that his depression intensified over a project assigned to him by the business manager at the time, Mike Stabile, to remodel the press box at the football field. Rubano had to complete the project alone in a specific amount of time, which required 60 hours of overtime to complete while performing his usual duties as supervisor/foreman of maintenance. (Rubano Dep. at 52.)

In November 2009, the Board of School Directors (the “Board”) decided to create a new Director of Buildings and Grounds position that would supervise all maintenance and janitorial staff. This would be a supervisory position occupied by a non-Union employee. Although made aware of this position's creation, Rubano never applied for it, because Mike Stabile told him that the Board wanted him fired. The Director of Building and Grounds position, as a non-Union position, would not be covered by the collective bargaining agreement that applied to Rubano's current position and, therefore would not include that agreement's protections.

As a result of Cimoric's alleged defamatory statements in January of 2009 and her displeasure with Richard Rubano's handling of an employment matter, Rubano believed that Cimoric wanted him fired in November 2009. Rubano also believed that because of Cimoric's dislike for him, in June of 2009 he was assigned the difficult press box remodeling project by Mike Stabile. This personal issue between Rubano and Cimoric is the only reason Rubano believed any Board member would want to fire him in 2009:

Q. Okay. And so you think that is—when Mike Stabile said the Board wants to fire you, you think it was a result of that, her wanting to come after you because you were—because of your brother.

A. Yes.

Q. Can you think of any other reasons why they wanted to fire you?

A. No.

Rubano Dep. at 59–60 (ECF No. 33–3). In fact, according to Rubano, from January 2009 through

November 2009, he was assigned the difficult press box remodeling project and told not to apply for the Director of Buildings and Grounds position solely because Cimoric did not like him:

Q. Did you feel they were going after you because of the things Mrs. Cimioric (sic) had said?

A. Absolutely.

Q. Do you think there was any other reason they were going after you?

A. No.

Id. at 62. According to Fred Fry, one of Rubano's co-workers in the maintenance department, he in fact advised Rubano not to apply for the Director of Buildings and Grounds position because it would require Rubano to leave the Union and lose the protections provided by Union membership.

In March 2010, Dan Harkless was hired for the newly created position of Director of Buildings and Grounds. Almost immediately after Harkless was hired in March 2010, Rubano submits that his work conditions worsened. (Rubano Dep. at 86–94.) In particular, Rubano testified that beginning in March of 2010, Harkless made derogatory comments about him and the other two full-time maintenance employees, Fry and Myers ( id. at 86–89), and assigned impossible to complete work orders/tasks ( id. at 89–90).

In addition, Rubano alleges that after Harkless started, he immediately began taking away certain jobs that Rubano previously performed while simultaneously increasing the number of work orders that had to be completed. For instance, with regard to his responsibilities for playground inspections, Rubano testified:

Q. Playground inspection, when was that job responsibility—when was your responsibility affected? When was that taken away?

A. I believe that was taken away just for the weekend at the same time.

Q. Okay. So shortly after you returned from medical leave.

A. It was actually before that.

Q. Okay. Sometime between March and May of 2010 that was taken away.

A. I believe it was taken away, again, on the weekends around April.

Q. On the weekends, I'm assuming that would have been overtime work.

A. Correct.

Q. Was that work that you had traditionally done?

A. Yes.

Q. Did anyone else do that work?

A. No. I was the only one certified.

Q. What certification is associated with the playground work?

A. It's just an inspector; playground inspector.

Q. When did you get that certification?

A. Actually, I had that inspection for quite a few years.

Q. Okay. How long had you been the only person who had that certification?

A. Three years I was the only one.

Q. Okay. And you said that was taken away from you, maybe, around April of 2010, the work?

A. Yes.

Q. Who performed the work then after it was taken away from you?

A. I still had to go out and do it after I came back, but just for short time.

Q. But who did it after you?

A. Dan Harkless started to do it.

Q. Was he certified?

A. No.

Rubano Dep. at 66–68.

In late April 2010, Rubano also e-mailed Harkless complaining about the outsourcing of lawn care to a third-party contractor, rather than allowing maintenance employees to perform that work as overtime hours.³ These negative work conditions began prior to when Rubano submitted his FMLA documents. ( Id. at 69.) On April 25, 2010, Rubano filed his first union grievance alleging that Harkless was harassing him.

Sometime between May 18, 2010 and June 1, 2010, Rubano submitted a request for leave under the Family Medical Leave Act (“FMLA”) to the District. (Rubano Dep. at 69.) ⁴ Rubano's FMLA request came approximately three months after Harkless became the Director of Buildings and Grounds, and several weeks after Rubano filed his first union grievance claiming that Harkless was harassing him. His leave was approved by the School Board on June 14, 2010 and began on June 15, 2010. (Ex. L, Def.'s App., ECF No. 33–12 at 1–2; Rubano Dep. at 70.) Rubano returned to work from his FMLA leave on September 27, 2010. (Rubano Dep. at 70.)

Within his FMLA request,...