Gairloch v. Pennsylvania State University

84 F. Supp. 3d 407, 2015 U.S. Dist. LEXIS 1393, 126 Fair Empl. Prac. Cas. (BNA) 58, 2015 WL 106581
CourtDistrict Court, M.D. Pennsylvania
DecidedJanuary 7, 2015
DocketCiv. No. 4:13-CV-00900
StatusPublished
Cited by6 cases

This text of 84 F. Supp. 3d 407 (Gairloch v. Pennsylvania State University) is published on Counsel Stack Legal Research, covering District Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gairloch v. Pennsylvania State University, 84 F. Supp. 3d 407, 2015 U.S. Dist. LEXIS 1393, 126 Fair Empl. Prac. Cas. (BNA) 58, 2015 WL 106581 (M.D. Pa. 2015).

Opinion

MEMORANDUM

MATTHEW W. BRANN, District Judge.

Plaintiff William Gairloch (“Plaintiff” or “Gairloch”) alleges that he was retaliated against for complaining about unlawful age discrimination to The Pennsylvania State University’s Affirmative Action Office (AAO) and filing a series of charges with the Pennsylvania Human Relations Commission (PHRC) and the Equal Employment Opportunity Commission (EEOC). This Court has jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 621 et seq., and has jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.

Defendant The Pennsylvania State University (“Defendant” or “Penn State”) filed a Motion for Summary Judgment (ECF No. 22). The Parties briefed the issues and they are now ripe for resolution. Because Gairloch failed to establish a prima facie case of retaliation for his complaints of unlawful age discrimination, Penn State’s Motion for Summary Judgment is granted and the case is dismissed.

I. BACKGROUND

Generally, Gairloch alleges that he was retaliated against for complaining about unlawful age discrimination to Penn ' State’s Affirmative Action Office (AAO), and filing a series of charges with the Pennsylvania Human Relations Commission (PHRC) and the Equal Employment Opportunity Commission (EEOC). The specific complaints of retaliation include allegations that Penn State gave Gairloch a poor performance evaluation, subjected him to a Performance Improvement Plan (PIP), terminated his telecommuting privileges, and ultimately terminated his employment in March 2012. More detailed facts for the purposes of summary judgment are as follows.

Gairloch testified that he began to work as a data engineer under Kurt Jeschke, his manager, in approximately 2008. Gairloch submits .that he worked for Jeschke to the best of his ability, but from the outset he did not believe that Jeschke was a good manager because he was a poor communicator. Pl.’s SOF, ¶ 6. Jeschke asserts that he initially became concerned about Gair-[410]*410loch’s poor job performance in February 2009, because he noticed that Gairloch had only completed about one-third of the “work orders” of his peers for calendar year 2008. Def.’s SOF, ¶ 7. Gairloch counters this assertion by demonstrating that Jeschke authored favorable job evaluations vfor his performance in 2008 and 2009. See Pl.’s SOF, Ex. 3.

During Gairloch’s tenure under Jeschke, the group Jeschke oversaw had four Level 3 System Design Specialists (or Systems Engineers) of which Gairloch was one. These Level 3 engineers “would get the more complicated designs, mostly because [they] were there the longest, [and they] had the most knowledge.” Def.’s SOF, ■ ¶ 10. Of the four Level 3 engineers, three of them, including Gairloch, are approximately the same age, as they were born within eleven months of one another. Id. ¶11.

In 2009 and 2010, Jeschke began to grow concerned that Gairloch was often not available or could not be located in the office, and that he heavily utilized his allowed telecommuting time. Def.’s SOF, ¶ 13-14. Gairloch would apparently telecommute about 25% of his working time. Id. ¶ 17. Jeschke asserts that no other employees in the group that he managed telecommuted to that extent. Id. ¶ 18. Telecommuting was allowed and available for employees of the Information Technology Department, of which Gairloch was a part. Jeschke asserts, however, that only a few of his employees ever telecommuted," that it was done on an emergency as-needed basis, and that it generally did not exceed 5% of an employee’s working time. Id. ¶ 18. Jeschke sought to curtail Gair-loch’s telecommuting because he alleged concern over Gairloch’s availability and performance, and because it was out of line with his expectations for other employees under his supervision. Id. ¶ 19. Jeschke began taking notes on when Gairloch was not in the office, when he would leave for an early lunch or return late, and also documented Gairloch’s telecommuting time. Id. ¶ 13.

Jeschke was additionally concerned with Gairloch’s completed work order total for 2009, which was about a third of one of his peers. Id. ¶¶ 15-16. The reliability of this metric for discerning productivity is disputed by the Parties, however, because some work orders take much longer to complete than others.' Pl.’s Br. Opp’n 13, Oct. 8, 2014, EOF No. 29 [hereinafter Pl.’s Br. Opp’n].

On September 9, 2010, Gairloch submitted a written complaint to Emily Enselmi, the Interim Director of Network Planning & Integration, complaining generally about Jeschke’s “unprofessional” conduct and monitoring of Gairloch. Def.’s SOF, ¶ 20. The written complaint did not include any allegations of unlawful discriminatory conduct. On September 30, 2010, Jeschke, Enselmi, and Penn State Human Resource employee Susan Morse, met with Gairloch concerning his complaint letter. The Parties dispute whether they discussed Jesch-ke’s concerns about Gairloch’s telecommuting at that meeting. See id. ¶ 22; PL’s SOF, ¶ 22. Gairloch did testify that “around Christmas of that year [2010], in the December time frame, [Jeschke] told me he intended- to give me a really poor review so that he would take away my telecommuting.” Def.’s SOF, ¶-23. Jesch-ke remained concerned about Gairloch’s productivity, as he completed sixty-four (64) total work orders in 2010, while his three colleagues completed one hundred five (105),. one hundred fifty-four (154), and fifty-seven (57) each. Id. ¶ 26.

Around January 19, 2011, Penn State and Gairloch entered into an agreement attempting to resolve the telecommuting dispute. Gairloch would be permitted to telecommute up to twenty percent (20%) of his time for a trial period, as long as he [411]*411was available and met a number of other conditions identified in the agreement. Id. ¶ 24. Under Penn State policy, “[t]he telecommuter’s manager has the authority to terminate the telecommutting arrangement at any time.” Id. ¶ 25.

On April 4, 2011, Gairloch submitted another written complaint regarding Jeschke in a letter directed to Steve Upde-grove, Senior Director of Telecommunications & Networking Services. Gairloch generally complained of “ongoing unprofessional, disrespectful, harassing and retaliatory treatment of me.” Id. ¶ 29. Gairloch did not allege that he was harassed on the basis of his status in a protected class, that he was retaliated against for engaging in protected activity, nor any unlawful discrimination. Id.

In the letter, Gairloch noted that “last week [Jeschke] informed me that he was going to give me a less favorable review this year ... he has already informed me of the baseless lower performance rating he has for me ... [and that he intended to give Gairloch] a poor rating/review on my SRDP [Staff Review and Development Plan] this year.” Id. ¶ 30. The letter further stated that Jeschke “is not at all receptive to anything that deviates from his attempt at forcing me out of telecommuting altogether.” Id. ¶ 31.

On April 7, 2011, Gairloch contacted Penn State’s Affirmative Action Office (AAO) associate director Carmen Borges, and met with her the following day.

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84 F. Supp. 3d 407, 2015 U.S. Dist. LEXIS 1393, 126 Fair Empl. Prac. Cas. (BNA) 58, 2015 WL 106581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gairloch-v-pennsylvania-state-university-pamd-2015.