Kupetz v. Pittston Area School Disrtict
OPINION. Signed by Mark R. Hornak on 8/13/18. (Hornak, Mark)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
3: 16-cv-00 110
PITTSTON AREA SCHOOL DISTRICT,
Mark R. Hornak, United States District Judge 1
Plaintiff James Kupetz ("Plaintiff') contends that Pittston Area School District (the
"District") denied him a promotional opportunity on account of his age.
Count I of his
Complaint alleges a violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et
seq. (ADEA), and Count II alleges a violation of the parallel provisions of the Pennsylvania
Human Relations Act, 43 P.S. §§ 951 et seq. (PHRA). (Compl., ECF No. 1.) The District
responds that age was not a basis for any alleged denial of promotional opportunity.
before the Court is the District's Motion for Summary Judgment (ECF No. 23). For the reasons
which follow, the District's motion will be denied.
The District employed Plaintiff as its Technology Coordinator, and from the time he was
hired, Plaintiff alone oversaw virtually all technology for the District. (Kupetz Am. Deel.
l0(a), ECF No. 42; Kupetz Dep. ECF No. 24-3, 30:11-14.) At all times relevant to this case,
Plaintiff, born in 1963, was over forty (40) years old. (Kupetz Dep. 11 :8; Kupetz Am. Deel.
The undersigned was designated and assigned this case by the Honorable D. Brooks Smith, Chief Judge of the
United State Court of Appeals for the Third Circuit. (ECF No. 46.)
6(d).) In 2012, the District conducted a technology evaluation, in which a recommendation was
made to the District to create new positions in the technology arena. (Kupetz Dep. 46:8-11.)
During a December 2012 School Board meeting, the District agreed to create two new positions:
Technology Integrator and Network Engineer. (Def. 's Statement of Material Facts in Supp. of
Mot. for Summ. J. ("Def. 's SMF") 16, ECF No. 24.)
The District posted the "Technology Integrator" position and indicated that it would
receive applications from December 13, 2012, to December 21, 2012. (Def.'s Am. Answers to
Pl.'s Req. for Admis.
ECF 44-1.) Plaintiff did not apply for the Technology Integrator
position because he believed that this position would be reporting to him, as he would be
directing the Technology Department. (Def.'s SMF 116; Kupetz Dep. 50:19-20.) The Network
Engineer position was also posted at that time. The District conducted interviews for both
positions, and Plaintiff was involved in that interview process on behalf of the District. (Def.' s
Kupetz Dep. 64:15-18.) On January 10, 2013, during an interview, Plaintiff heard
Board President Charles Sciandra refer to hiring a Technology Director, to whom the Network
Engineer would report. (Def.'s SMF
17-20; Kupetz Dep. 64:6-18.) Plaintiff did not respond
to that comment. (Kupetz Dep. 66:24-67: 1.)
The School Board convened for a meeting on January 15, 2013, and passed a motion to
amend the "Technology Integrator" position to one entitled "Technology Director." The District
claims this change was in name only, but Plaintiff argues that the change also resulted in a salary
increase for the position, altered duties, and a higher position in the District's organizational
hierarchy, because this position was now the head of the Technology Department. 2 The District
Compare Def.'s Br. in Supp. of Mot. for Summ. J., ECF No. 25, at 8 ("The changing of the job title, and the hiring
of Savokinas, are not adverse employment actions against the Plaintiff."), with Pl. 's Br. in Opp. To Def. 's Mot. for
Summ. J ., ECF No. 44, at 15 ("[N]ot i!!fil the job title was changed, but its duties, reporting function and salary were
also changed .... ").
never posted to fill a position for "Technology Director." (Kupetz Am. Deel. at , 6(c).) The
School Board then, at the same meeting, passed a motion to hire Christy Savokinas for the
position of Technology Director. (Def.'s Am. Answers to Pl.'s Req. for Admis. , 12.) Ms.
Savokinas had applied for the posted Technology Integrator position. (Id.) Ms. Savokinas, born
in 1978, was in her mid-thirties at the time she was hired, and her incoming salary for
Technology Director was listed at $75,000. (Id. at, 16; Linskey Dep., ECF 24-7, 26:3-4; Def.'s
List of Names and Birth Years, ECF No. 24-4.) Prior to her employment with the District, Ms.
Savokinas had worked with former Superintendent Michael Garzella. (Kupetz Dep. 81: 11-20.)
Despite interviewing several candidates for the posted Network Engineer job, the School
Board decided to table filling the Network Engineer position. (Def.'s Am. Answers to Pl.'s Req.
for Admis. , 13.) Both candidates had been given an assessment test during their application
process, but the applicants were unable to complete the entire assessment. (Kupetz Dep., 82: 1783:4; Stama Dep., ECF No 24-6, 13:20-14:2.)
In summer 2013, months after Ms. Savokinas was hired, Board President Charles
Sciandra made a comment at a board meeting about "upcoming young administrators." (Def. 's
SMF, 28.) While content of the exact quote is unclear,3 it is clear that the comment was made in
the context of hiring an administrator, Kevin Booth (who was in his mid-forties at the time) for
the position of Principal. (Kupetz Dep. 72:20-24; Def. 's SMF, 29.)
With respect to the Network Engineer position, another candidate was interviewed over
the summer of 2013, Brad Hankey. There is some evidence in the record that Mr. Hankey was
In his deposition, Plaintiff could not repeat the actual comment: "Q. And were you told specifically what Mr.
Sciandra had said that evening? A. An upcoming young administrators [sic] in the District." (Kupetz Dep. 72:2573:4.) It is also undisputed that "[t]he comment was made in reference to the Superintendent leaving and a
succession plan where younger administrators would come up." (Def. 's SMF ~ 61; Pl. 's Am. Resp. to Def. 's SMF ~
younger than the other applicants who had applied earlier, 4 but it is undisputed that Mr. Hankey
was not given a written assessment test. Mr. Hankey was hired for the position. (Kupetz Dep.
Ms. Savokinas' s duties as Technology Director incorporated "some" of Plaintiffs former
duties as Technology Coordinator (Kupetz Am. Deel. ~ 9), but Plaintiff continued in his position
as Technology Coordinator until he voluntarily left the position in the summer of 2013 to assume
a teaching position. (Kupetz Dep. 138:2-18.) By the end of Plaintiffs tenure as Technology
Coordinator, in 2013, he was making the same salary as a teacher, $50,188, but with the ability
to earn additional income in overtime compensation. (Id. at 36:4-17, 38: 10-11.)
Plaintiff alleges that by denying him the opportunity to apply for the Technology Director
position, he suffered damages, as he would have made more money as Technology Director,
which would have also led to higher retirement benefits. (Kupetz Dep. 140:4-141 :14.)
STANDARD FOR REVIEW
Summary judgment may be granted where the moving party shows that there is no
genuine dispute as to any material fact, and that a judgment as a matter of law is warranted. Fed.
R. Civ. P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the Court must enter summary
judgment against a party who fails to make a showing sufficient to establish an element essential
to his or her case, and on which he or she will bear the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In evaluating the evidence, the Court must interpret the facts
Plaintiff testified that Mr. Hankey's age was a "lot less than all the other applicants that we had had for that
position." (Kupetz Dep. 85:4-6.) Marilyn Stama, one of the School Board members, testified that one candidate
"was definitely over 40" but she could not recall whether the other two candidates were over 40. (Stama Dep.
14:20-25.) Robert Linskey, another School Board member, testified that he "would guess" that the other candidates
were under 40, but he was "not sure." (Linskey Dep., ECF No. 24-7, 29:1-5.)
Brad Hankey was born in 1985. (List of Names and Birth Years, ECF No. 24-4.)
in the light most favorable to the nonmoving party, drawing all reasonable inferences in his or
her favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007).
The burden is initially on the moving party to demonstrate that the evidence contained in
the record does not create a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas
Co., 364 F.3d 135, 140 (3d Cir. 2004). A dispute is "genuine" if the evidence is such that a
reasonable trier of fact could render a finding in favor of the nonmoving party. McGreevy v.
Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Where the nonmoving party will bear the burden of
proof at trial, the moving party may meet its burden by showing that the admissible evidence
contained in the record would be insufficient to carry the nonmoving party's burden of proof.
Celotex, 477 U.S. at 322.
Once the moving party satisfies its burden, the burden shifts to the nonmoving party, who
must go beyond his or her pleadings and designate specific facts by the use of affidavits,
depositions, admissions or answers to interrogatories showing that there is a genuine issue of
material fact for trial. Id. at 324. The nonmoving party cannot defeat a well-supported motion
for summary judgment by simply reasserting unsupported factual allegations contained in his or
her pleadings. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989).
Plaintiff asserts that had the Technology Director position been posted, he would have
applied, and his qualifications would have been well suited for the position. (Kupetz Dep.
110:20-25.) Plaintiff argues that two members of the District's School Board did a last minute
switch with respect to the Technology Integrator position to prevent Plaintiff from applying to be
Technology Director, as these two Board members wanted a younger person to lead the
Technology Department. (Id. at 104:23-105: 10.) By denying Plaintiff the opportunity to apply
for the position, the rest of the Board was denied the opportunity to compare what he says were
his superior qualifications to those of Ms. Savokinas. (Id.)
Plaintiff asserts discrimination claims based on his age pursuant to the Age
Discrimination and Employment Act ("ADEA''), and the Pennsylvania Human Relations Act
("PHRA"). Each of these claims is analyzed pursuant to the familiar burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). To prevail, Plaintiff
must first establish a prima facie case of discrimination. Id. at 802. If he does so, the burden of
production shifts to the District to articulate a legitimate, non-discriminatory rationale for the
allegedly discriminatory action. Id. The burden then shifts back to Plaintiff to establish by a
preponderance of the evidence that the District's stated reason is pretextual. Id. at 804; Jones v.
Se. Pa. Transp. Auth., 796 F.3d 323, 326 (3d Cir. 2015).
A. Exhaustion of Administrative Remedies
The District initially argues that Plaintiff cannot maintain his PHRA claim because he
"failed to raise" such a claim before the EEOC. (Def. 's Reply Br., ECF No. 33, at 3.) Plaintiff
timely dual-filed his charge of discrimination with PHRC and EEOC. (Charge of Discrimination,
ECF No. 24-1.) The charge lays out the factual background of the case, and the charge
specifically cites to the ADEA and Title VII. 6 (Id.) The charge does not specifically cite to the
PHRA. (Id.) This lack of citation is not fatal to Plaintiff's claim because a charge with the PHRC
need only "set forth the particulars" of the "unlawful discriminatory practice complained of." 43
Pa. Cons. Stat. § 959. The District does not cite to any legal authority (nor has the Court found
any such authority) to support its argument that describing the alleged discriminatory practice in
a dual-filed charge of discrimination without specifically naming the PHRA results in a failure to
exhaust state law administrative remedies.
Plaintiff never included a Title VII claim in his Complaint. (Comp!., ECF No. 1.)
The Court's review of case law in this Circuit supports the conclusion that the test for
exhaustion focuses on "factual allegations" and not recitation of the name of discrimination
statutes. See, e.g., Zahavi v. PNC Fin. Servs. Grp., No. 07-cv-376, 2007 U.S. Dist. LEXIS
77484, at *25 (W.D. Pa. Oct. 18, 2007) ("[T]he 'crucial element of a charge of discrimination is
the factual statement contained therein' and not 'the attachment of a legal conclusion to the facts
alleged."') (citing Bernstein v. Nat'! Liberty Int'! Corp., 407 F. Supp. 709, 712-13 (E.D. Pa.
1976)); Wetzel v. Liberty Mut. Ins. Co., 511 F.2d 199, 202 (3d Cir. 1975), vacated on other
grounds, 424 U.S. 73 7 (1976) (noting that Title VII could not operate effectively if procedural
technicalities could bar relief). Plaintiff has exhausted his administrative remedies with respect to
his PHRA claim.
B. Plaintiff's Prima Facie Case
Plaintiff contends that he suffered age discrimination in violation of the ADEA and
PHRA when the District denied him the opportunity to apply for the new Technology Director
position and then hired a less qualified, younger candidate. 7 To establish a prima facie case of
age discrimination under the ADEA, Plaintiff must show that: (1) he is forty years of age or
older; (2) the District took an adverse employment action against him; (3) Plaintiff was qualified
for the position in question; and (4) he was ultimately replaced by another employee who was
sufficiently younger to support an inference of discriminatory animus. Burton v. Teleflex Inc.,
707 F.3d 417,425 (3d Cir. 2013). Only the second and fourth elements are in dispute here.
The District first argues that Plaintiff cannot establish that the District took an adverse
employment action against him with respect to denial of a promotional opportunity because he
Claims of age discrimination under the ADEA and PHRA are analyzed in an identical fashion. Connors v.
Chrysler Fin. Corp., 160 F.3d 971, 972 (3d Cir. 1998). To the extent the pleadings and papers in opposition to
Defendant's Motion for Summary Judgment allege claims for retaliation (under state or federal anti-retaliation law),
such claims were withdrawn by Plaintiff at oral argument.
never applied for the position of Technology Director. See Jones v. Gema/to, Inc., No. 11-6902,
2013 U.S. Dist. LEXIS 41069, at *32 n.4 (E.D. Pa. Mar. 25, 2013) (plaintiff who did not apply
for a position cannot establish prima facie claim of racial discrimination). However, "when the
failure to promote arises out of an informal, secretive selection process," a plaintiff need not
prove that he "technically applied" for the position if there is an inference of intentional
discriminating treatment. Cole v. Del. Tech. & Cmty. Coll., 459 F. Supp. 2d 296, 305 (D. Del.
2006) (quoting EEOC v. Metal Serv. Co., 892 F.2d 341, 350 (3d Cir. 1990)). It is undisputed that
the District never posted an opening for Technology Director. The record reveals that the District
in essence created it "on the fly" in the middle of a Board meeting, such that no one (other than
perhaps Ms. Savokinas) could apply. The District then hired an individual, fifteen years
Plaintiffs junior, who applied for a position-Technology Integrator-that Plaintiff would have
had no reason to apply for, as he understood that position to be one that would report to him.
"Accordingly, there is a sufficient evidentiary foundation from which [Plaintiff] may argue for
an inference of discrimination, even though he did not apply for the position." Id.
The District next argues that there is insufficient evidence to support an inference of
discriminatory animus. In other words, the District asserts that "Plaintiff has failed to produce
any evidence that age was a factor in the change of the job title [or the] hiring of Christy
Savokinas." (Def. 's Br. in Supp., ECF No. 25, at 10.) However, Plaintiff "does not need to
produce compelling evidence or conclusive proof that [the District's] adverse employment
decision resulted from age discrimination." Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d
Cir. 1995) (citing Chipollini v. Spencer Gifts, 814 F.2d 893, 900 (3d Cir. 1987), and Maxfield v.
Sinclair Int 'l, 766 F.2d 788, 792 (3d Cir. 1985)). A sufficient age difference between Plaintiff
and the person who was given the promotion from which a fact-finder could reasonably conclude
that the employment decision was made on the basis of age is sufficient to meet the fourth
element of an ADEA prima facie case. Id. The fifteen (15) year age difference here is sufficient.
Id. at 730 (stating that "well over ten years" age difference "is clearly sufficient to satisfy the
fourth prong"). Plaintiff establishes a prima facie case for age discrimination.
C. The District's Alleged Reasons for Denial of Promotional Opportunity
"Generally, the true focus of age discrimination cases occurs when the defendant
articulates legitimate business reasons and the plaintiff submits evidence of pretext." Healy v.
NY Life Ins. Co., 860 F.2d 1209, 1214 n.1 (3d Cir. 1988). The employer's "burden is 'relatively
light,' and the employer need only 'introduce evidence which, taken as true, would permit the
conclusion that there was a nondiscriminatory reason for the unfavorable employment
decision."' Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir. 2006) (quoting Fuentes v.
Perskie, 32 F.3d 759, 763 (3d Cir. 1994)). Here, the District presents three different reasons for
Plaintiff being denied the promotional opportunity. First, the School Board made the decision to
"clarify the title" from Technology Integrator to Technology Director in order to "have someone
in charge of technology." (Def.'s Br. in Supp., ECF 25, at 14.) Evidence in the record does
support the District's contention that the events central to this case were part of a total re-vamp
of the District's technology program, and the structure of the department required, in essence,
Second, the District argues that "Attorney Joseph Saporito, solicitor for the District, made
the decision to change the title after speaking with [Pennsylvania School Board Association]."
(Def. 's Br. in Supp., ECF No. 25, at 14.) The District's evidentiary support for this position is the
following language in the minute entry for the January 15, 2013, School Board meeting:
See Kupetz. Dep. 17:8-13, 27:4-28:2, 39:3-40:21. See also Stama Dep. 10:6-18.
"Atty. Saporito stated that he made the decision to change the title - this was
supposed to be a director's position and he contacted PSBA -and a motion was
being made to amend the title nothing has changed but just a clarification of the
actual title. Job duties are the same and nothing is changing. PSBA suggested that
this was the correct way to amend this."
(ECF No. 24-9, at 1.)
Third, there is evidence in the record that supports the District's claim that Savokinas was
hired because she had a strong relationship with the Superintendent, Mike Garzella. 9 Even
Plaintiff acknowledged that Ms. Savokinas's history with the Superintendent "had something to
do with her" getting a position with the District (although Plaintiff disputes that their history
played a factor in her jump from Technology Integrator to Technology Director). (Kupetz Dep.
The District states that these reasons-clarification of organizational structure, a directive
from PSBA via its own lawyer, and what is in essence insider politics in the nature of a prior
working relationship between Savokinas and Garzella-each show that the decision to place
Savokinas as the head of technology, without offering Plaintiff an opportunity to apply for the
position, was based on legitimate, non-discriminatory motives. None of these reasons facially
have anything to do with anyone's age. The Court thus concludes that the District has met its
light burden at this stage.
D. Plaintiff's Showing of Pretext
Because the District's stated reasons are facially legitimate and nondiscriminatory (at
least as to the ADEA and the PHRA), the burden shifts back to Plaintiff to show that a factfinder
could conclude, by a preponderance of the evidence, that the stated reasons are pretext for age
discrimination. Deville v. Givaudan Fragrances Corp., 419 F. App'x 201,207 (3d Cir. 2011)
(Stama Dep., ECF No. 24-6, 28: 17-21.) ("Dr. Garzella had a very strong relationship with Christy Savokinas from
a previous position, and I think he worked with the majority board members to bring her in at the salary she came in
at and with that title. That's again my opinion.")
(citing Smith v. City of Allentown, 589 F.3d 684, 690 (3d Cir. 2009), and Duffy v. Paper Magic
Grp., 265 F.3d 163 (3d Cir. 2001)). Plaintiff can accomplish this by one of two ways:
To show that an employer's legitimate, non-discriminatory reason for an
employment action was pretext for discrimination, 'the plaintiff must point to
some evidence, direct or circumstantial, from which a factfinder could reasonably
either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe
that an invidious discriminatory reason was more likely than not a motivating or
determinative cause of the employer's action.'
Smith v. Medpointe Healthcare, Inc., 338 F. App'x 230, 235 (3d Cir. 2009) (emphasis added 10)
(quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)). Plaintiff presents arguments under
1. Plaintiff's "Disbelieve the Proffered Reasons" Argument
Under the first Fuentes prong, Plaintiff must "present evidence contradicting the core
facts put forward by the employer as the legitimate reason for its decision." Tomasso v. Boeing
Co., 445 F.3d 702, 706-07 (3d Cir. 2006) (quoting Kautz v. Met-Pro Corp., 412 F.3d 463, 467
(3d Cir. 2005). "To discredit the employer's articulated reason, the plaintiff need not produce
evidence that necessarily leads to the conclusion that the employer acted for discriminatory
reasons .... " Simpson v. Kay Jewelers, 142 F.3d 639, 644 (3d Cir. 1998). In order to discredit
the District's proffered reasons, Plaintiff cannot simply show that the District was wrong or
mistaken in denying him the promotional opportunity, "since the factual dispute at issue is
whether discriminatory animus motivated the employer, not whether the employer is wise,
shrewd, prudent, or competent." Fuentes, 32 F.3d at 765. Instead, Plaintiff must show "such
There was some debate at oral argument and in the papers on whether Plaintiff bears the burden to show the
District's proffered reasons were pretext for an age-discriminating motive, but Fuentes makes clear that Plaintiff can
survive summary judgment by discrediting the employer's reasons. As our Court of Appeals clarified in Fasolf v.
Justice, a plaintiff need not prove "pretext plus"-discrediting the proffered reason and showing discrimination was
the real reason. 409 F.3d 178, 186-87 (3d Cir. 2005). Instead, "the factfinder's disbelief of the employer's
explanation plus proof of the elements of the prima facie case may be enough for the factfinder to infer the ultimate
fact of discrimination." Id. (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 146-47 (2000)). No
affirmative or direct evidence of discrimination is required under the first Fuentes prong for a Plaintiff to get to a
jury. Id.; McGrath v. Lumbermens Merch. Corp., 851 F. Supp. 2d 855, 865 n.13 (E.D. Pa.2012).
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in the [District's]
articulated reasons for denying Plaintiff the opportunity to apply for the position such "that a
reasonable factfinder could rationally find them unworthy of credence, and hence infer that the
employer did not act for [the asserted] non-discriminatory reasons." Id. at 765 (alteration in
original) (footnote omitted).
Plaintiff seeks to debunk the first articulated reason, clarification in organizational
structure, with evidence that the position changed so significantly that it went beyond mere
"clarification," and even if the School Board sought to simply re-structure the Technology
Department, that reason does not explain the abruptness of that action, the effect of which denied
Plaintiff and others the opportunity to apply for the revised position.
Plaintiff has put forth evidence that the position changed considerably from what was
originally posted in terms of title, compensation, duties, and reporting to the extent that it appears
to undermine the Defendant's argument that the changes were simply to clarify who was in
charge. 11 Even if the changes alone are insufficient to contradict the clarification reason, the
District's explanation also fails to explain why Plaintiff (and anybody else) was denied the
opportunity to apply for the revised position. "[H]aving one person in charge of technology" is
indeed a legitimate, non-discriminatory reason for changing a job description to the extent it
alters reporting duties and title, especially where the District is creating a new department, but
that is not the conduct that Plaintiff protests. Plaintiff argues that the District went about
selecting its "one person" in charge of technology in a manner that prevented Plaintiff from
putting forth his candidacy when the Board knew that Plaintiff was interested in being the head
of the Technology Department. The "clarification" reason gives no explanation whatsoever for
(See Pl.'s Am. Resp. to Def.'s SMF, ECF No. 43, ~ 10.)
why such "clarification" had to happen without re-opening the position, and such an articulated
reason fails to explain the pace at which the Board acted to fill the "revised" position. 12 In fact,
the Board tabled the other new technology position-technology integrator-for months
following the January meeting. (Jan. 15, 2013, Meeting Minutes, ECF No. 24-9.) Thus, Plaintiff
has advanced record evidence from which a jury could conclude that the District's "clarification"
reason fails as an explanation for the denial of a promotional opportunity. Plaintiff has carried its
burden to show the "clarification" reason could be found to be pretextual. But in order to survive
the District's Motion for Summary Judgment, Plaintiff must also likewise counter the second and
third reasons advanced. Fuentes, 32 F.3d at 762.
Plaintiff seeks to discredit the second articulated reason, the Solicitor's reference to the
PSBA, with the same logic: it may explain an alteration in the position, but it fails to explain why
the Board changed the position at the last minute on the floor of the School Board meeting in a
manner that deprived Plaintiff the opportunity to apply for the position. This reason is also thus
incomplete to explain the denial of a promotional opportunity. But more than that, Plaintiff has
put forth sufficient evidence in the record to challenge the reason that only a title change was
made pursuant to the PSBA's guidance. As a preliminary matter, the District makes no real effort
to explain why the stated PSBA guidance led to a title change. Furthermore, the minute notes
from the January 15, 2013, School Board meeting themselves demonstrate the change was more
than to the title, as the Board members discussed confusion over what the salary would be and
what the reporting duties would be. (ECF No. 24-9.) As Board Member Linskey pointed out in
To the extent the District argues that the Technology Integrator position as always intended to be the position that
would run the Technology Department, Plaintiff successfully shows sufficient incoherencies and inconsistencies to
overcome that reason. First, Plaintiff was told by Superintendent Mike Garzella that the two new positions would
report to him. (Kupetz Dep. 59: 17-21.) Second, although the Superintendent testified that he intended for all three
technology positions to report direct to him, he also testified that the position advertised was not the one that
ultimately came to fruition. (Garzella Dep., ECF No. 24-5, 27: 16-17.) Third, two members of the Board stated that
the altered position was not the position advertised. (Jan. 15, 2013, Meeting Minutes, ECF No. 24-9.)
his deposition, one Board member [Sciandra] stated the changes was to put someone in charge of
technology, yet the Solicitor was telling the Board at the same time that the reason for the change
was based on communications with PSBA and the change would be in title only. (Linskey Dep.
14:15-21.) These two articulated reasons-given at the same time during the same meetingcollide with one another. The record shows sufficient evidence from which a reasonable
factfinder could disbelieve the "PSBA reason" articulated by the District.
With respect to the third articulated reason, the District relies on Board member Stama's
statement in her deposition that Dr. Garzella "worked with the majority board members to bring
[Savokinas] in at ... that [new] title." (Stama Dep. 28:17-21.) But this is counterweighed
against Superintendent Garzella's own testimony in the record that he did not want the
Technology Integrator position changed to Technology Director, and he thought it was "wrong"
of the Board to do so. (Garzella Dep. 33:5-33:23, 35:17-18, 36:20-37:24.) Garzella also testified
that he never discussed changing the title with the Board prior to the January 15, 2013, meeting.
(Garzella Dep. 26:7-10.) In light of this testimony, a reasonable factfinder could certainly find
the District's reason related to "insider connections" with Superintendent Garzella unworthy of
credence. Plaintiff has shown sufficient evidence in the record from which a factfinder could
reasonably disbelieve all of the District's reasons for the denial of the promotional opportunity.
2. Plaintiff's "Invidious Discriminatory Animus" Argument
Because Plaintiff has successful shown that each articulated reason by the District could
reasonably be disbelieved, the Plaintiff meets his burden under the first pretext prong, and the
Court need not analyze Plaintiffs arguments under the second pretext prong. 13
13 The chief argument advanced by the Plaintiff relates to a comment made by Sciandra related to hiring a Principal.
It would appear to the Court that the rather ambiguous statement made by a Board member months later in regard to
a building principal's position and an overall administrative succession plan is entitled to little or no evidentiary
consideration as to these events.
3. Plaintiff's meets his burden to show pretext
Considering the record in a light most favorable to Plaintiff, Plaintiff has produced
sufficient evidence to show that the District's stated reasons for denying Plaintiff the
promotional opportunity were pretextual. While the Court notes that the depositions in the
record-with the exception of Plaintiff's-are sparse on the issue of discriminatory motive on
the basis of age, the depositions also fail to present a cohesive (or in many ways, coherent)
reason as to why the events unfolded as they did, with nearly every person deposed offering a
different reason or no reason at all for the hiring of Savokinas as Technology Director in the
manner she was. 14 It will thus be left to the factfinder to decide what happened and why, and
whether unlawful age discrimination was a "but for" reason for the actions taken. Consequently,
denial of summary judgment is proper.
For the foregoing reasons, the District's Motion for Summary Judgment is denied. An
appropriate order will issue.
Mark R. Hornak
United States District Judge
Dated: August 13, 2018
cc: All Counsel of Record
Just by way of example, School Board Member Linskey testified that "there were members of the Board who just
did not like Mr. Kupetz. They just wanted to get Mr. Kupetz. They wanted to embarrass Mr. Kupetz." (Linskey Dep.
22: 14-18.) School Board Member Starna testified that the change in position was because "the majority wanted to
bring [Christy Savokinas] in," and "Dr. Garzella had a very strong relationship with [Savokinas]." (Starna
Dep.28:8-21.) Superintendent Garzella testified that "my opinion is they didn't like [Kupetz] because of his
relationship with Bob Linskey." (Garzella Dep. 29:1-3.)
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