# BRUGH v. MOUNT ALOYSIUS COLLEGE

> District Court, W.D. Pennsylvania · January 7, 2020

URL: https://www.frixlaw.com/law-library/cases/10415318

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** January 7, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10415318

## How later opinions describe it (automated extraction)

- holding that a termination two days after filing a claim of discrimination was sufficiently close in time to infer a causal connection
- noting that a party opposing summary judgment “must present more than just bare assertions, conclusory allegations or suspicions to show the existence of a genuine issue”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LARRY BRUGH AND SUZANNE ) Case No. 3:17-cv-71
BRUGH, )
Plaintiffs, ) JUDGE KIM R. GIBSON
)
v. )
)
MOUNT ALOYSIUS COLLEGEAND _ )
THOMAS FOLEY, )
)
Defendants. )

MEMORANDUM OPINION
I. Introduction
This case arises from the termination and alleged demotion of Plaintiff Larry Brugh
(“Larry”) and the termination of his wife, Plaintiff Suzanne Brugh (“Suzanne”) (collectively,
the “Brughs”), allegedly in violation of Title VI of the Civil Rights Act of 1964 (“Title VII”)
and the Pennsylvania Human Relations Act (the “PHRA”), from and by Defendant Mount
Aloysius College (the “College”) and the College’s former President, Thomas Foley
(“President Foley”). Presently before the Court is Defendants’ Mount Aloysius College and
Thomas Foley’s (collectively, “MAC”) Motion for Summary Judgment (ECF No. 44). The
Motion is fully briefed (ECF Nos. 45, 46, 47, 56, 57, 58, 59, 60, 62, 63) and ripe for disposition.
For the reasons that follow, this Court GRANTS IN PART and DENIES IN PART MAC’s
Motion.
II. Jurisdiction and Venue
The Court has jurisdiction over Plaintiffs’ Title VII claim as it arises under federal
law. 28 U.S.C. § 1331. The Court has supplemental jurisdiction over Plaintiffs’ PHRA claim

because the claim forms part of the same case or controversy. 28 U.S.C. § 1367. Venue is
proper because a substantial portion of the events giving rise to the claims occurred in the
Western District of Pennsylvania. 28 U.S.C. § 1391.
Ill. Factual Background
The Court derives the following facts from MAC’s Concise Statement of Material
Facts' (ECF No. 46), the Brughs’ Response in Opposition (ECF No. 56), the Brughs’ Concise
Statement of Disputed Material Facts (ECF No. 58), and MAC’s Response (ECF No. 63).
These facts are undisputed unless noted otherwise.
A. The Brughs Begin Working at The College and Larry Witnesses Alleged
Racial Discrimination by The College
In 1985, Larry began working at the College as its Assistant Resident Director Intern.
(ECF No. 46 J 3.) Throughout the rest of the decade, Larry held the titles of Assistant
Director of Career Services and Assistant Dean of Student Services. (Id. J] 7, 11, 12.) By
1997, Larry held the title of Director of Career Services. (Id. J 31.) In 1988, Larry hired
Suzanne (née Bryja) as the College’s Assistant Director of Resident Life. (Id. 17.) Larry
and Suzanne began dating within a few months and married on July 1, 1989. (Id. 17, 21,
23.)

' In response to the Brughs’ Emergency Motion to Strike (ECF No. 49), the Court struck all but 110
of MAC’s factual assertions contained in its Concise Statement of Material Facts (ECF No. 46). (See
ECF No. 53 at 3n.2.) The Court does not consider these stricken facts in deciding the pending Motion
but does recount several facts that it struck from the record in order to provide a complete picture
of the dispute at the heart of this case. All facts the Court relies on in deciding the case are facts still
contained in the record. Additionally, it appears that some of the facts that MAC cites to in its brief
are incorrectly cited, ie, MAC cited the wrong paragraphs. (See, e.g., ECF No. 45 at 6 (citing ECF
No. 46 { 208 while quoting material contained in J 212).) Accordingly, the Court will use those facts
as required to address MAC’s arguments.

According to Larry, in 1992, he witnessed the College discriminate against a men’s
basketball coach candidate and objected to this discrimination. (ECF No. 58 {{ 4, 5). The
alleged discrimination apparently took the form of refusing to hire an African American
man as a head men’s basketball coach because his wife was Caucasian. (ECF No. 56 { 186.)
When the College allegedly retaliated against the Brughs for Larry’s objection, the Brughs
filed charges of employment discrimination with the Pennsylvania Human Relations
Commission (“PHRC”) against the College in 1997 and 1998. (Id. J 6; ECF No. 46 {{ 34,
40.) The first complaint charged that the College’s then-President, Sister Mary Ann Dillon,
refused to appoint Larry to the post of Acting Dean of Students in retaliation for being
identified as a witness in a PHRC proceeding against the College.2 (ECF No. 58 J 6; ECF
No. 46 { 35.) The second complaint alleged that the College had given Larry a negative
performance evaluation because of both his identification as a witness in the PHRC
discrimination proceeding and because of his prior PHRC complaint. (Id. 1 41.) The Brughs
and the College settled the charges in 2000. (ECF No. 58 { 7.)
B. Larry Gets Angry at Female Employees Working at the College
The College has records describing several incidents throughout the 1990s of
altercations between Larry and various female employees of the College. (ECF No. 46
302-09.) A report authored by Veil Griffith, the College’s Comptroller, covers her
relationship with Larry between 1989 and January of 1991: in one instance, Larry
apparently became outraged after Griffith asked him about receipts; in another he entered

2 While unclear, the Brughs imply that the PHRC complaint that identified Larry was filed in
connection with the College’s alleged racial discrimination.

her office without permission, became loud and offensive, and refused to leave. (Id. { 302.)
According to the report, on multiple occasions, Larry raised his voice to Griffith’s secretary,
Emily. (Id.)
On August 8, 1997, Joyce Neibauer, the College’s Director of Student Activities,
wrote a letter to Leonard Volk, Acting Dean of Student Affairs, and copied it to President
Dillon (Id. { 303.) The letter documented Ms. Neibauer’s concerns about Larry’s personality
and temperament, stated that Larry told her that she “had better respect his position and
authority,” and noted that Larry was interfering with her ability to work. (Id. 304.) Ms.
Neibauer wrote that Larry had harassed, threatened, and intimidated her, and that she had
obtained a radio so that she could call security if she needed to safely retreat from him. (Id.
{1 305-06.) Ms. Neibauer also expressed her belief that she was not the only employee of
the College who was on the receiving end of Larry’s temper. (Id. J 307.)
In 1996, Larry disputed a performance evaluation that stated that his “unacceptable
behavior” had hindered his effectiveness in his job; Larry sought removal of this portion of
his evaluation. (Id. { 228.) This behavior had occurred when the College asked him to
perform duties that were outside the scope of his routine duties. (Id.) The evaluation also
included a statement that “in the future, [Larry needed to learn] acceptable and professional
ways of dealing with differing opinions from that of the [D]Jean of [S]tudents.” (Id.)
A few days after Larry disputed his review, he brought concerns about his
relationship with his supervisor, Dr. Judy Newton, the Dean of Students, to the College in

a letter to its then-President, Dr. Edward Pierce. (Id. I 8, 46, 224, 230.) Larry complained
of incidents between 1992 and 1996 where Dr. Newton was disrespectful of, and exhibited

unprofessional behavior towards, him and other male employees of the College. (Id. 231.)
These incidents allegedly involved a failure to reprimand public displays of disrespect
towards Larry by Dr. Newton’s secretary and Dr. Newton's diminishment of his
responsibilities. (Id. { 232.) Larry also stated that he had considered filing a grievance
against Dr. Newton but that he had refrained from doing so after the PHRC mentioned him
as a possible witness in a matter in which Newton was involved. (Id. { 230.) Ultimately,
the College found that Larry’s claims against Dr. Newton were unsubstantiated and did
not discipline her. (Id. {YJ 242, 245.) The College also determined that no justification
existed for removing the language that Larry objected to in his performance evaluation. (Id.
{ 245.)
C. The Brughs Move Out of Campus Housing
As part of her compensation, Suzanne received campus housing and Larry lived
with her in campus housing for approximately thirteen years. (Jd. I] 25, 30, 68, 69.) The
Brughs left campus housing after Suzanne accepted the position of the College’s Director
of Student Involvement,’ a job that did not come with campus housing as part of its
compensation. (Id. [J 62, 65.) The Brughs were upset that the College no longer provided
campus housing for them, and Larry went to President Dillon to complain in September of
2001. (Id. 31, 69, 75.) There is a dispute over how upset the Brughs were over the loss
of their campus housing and how strongly Larry complained to President Dillon. (See ECF

3 MAC labels this position as both Director of Student Involvement and Director of Student
Development. (Compare ECF No. 46 J 62, with id. 65.) There is no indication, however, that these
are actually different positions; accordingly, the Court will refer to the position as Director of Student
Involvement.

No. 46 74-79; ECF No. 56 74-79.) Following Larry’s visit to President Dillon, she
issued a written reprimand to Larry regarding his conduct. (ECF No. 46 { 84.) Larry avers
that he has no recollection of ever receiving the reprimand. (ECF No. 56 { 84.) On October
1, 2001, Larry filed a grievance with the College, alleging that the reprimand was not
warranted, and that the College should remove it from his file. (Id. { 85; ECF No. 46 { 85.)
The parties ultimately resolved the grievance and the College allowed the Brughs to stay in
campus housing while the Brughs built a permanent home and the College kept the
reprimand in Larry’s file until June of 2002. (ECF No. 46 { 88.) In 2008, Suzanne left the
College on good terms, having obtained a job at Pennsylvania Highlands Community
College. (Id. [{ 109-10.)
The Brughs filed no further formal employment grievances against the College until
2012. (See ECF No. 46.)
D. Thomas Foley Becomes President of the College and the Brughs Again Report
Employment Grievances to the College
On August 1, 2010, Thomas Foley became President of the College. (ECF No. 46 1
127-28.) At that time, Larry was serving as Director of Career Services and as Assistant
Dean of Student Affairs; Suzanne was no longer an employee of the College. (Id. 1 140.) In
December of 2011, the Brughs invited Suzanne Campbell, the College’s Senior Vice
President for Administration, to lunch, so that Larry could inform Campbell about his
grievances with the College. (Id. [J 137, 148.) At that lunch, the Brughs informed Campbell
that the College had subjected them to a hostile work environment during the 1990s as a
result of Larry’s objections to discrimination and told Campbell about the harms that that

hostile environment had caused them. (Id. { 150.) Larry also accused his current
supervisor, Dr. Jane Grassadonia, of making disparaging statements about him.’ (Id. 1 151.)
A few months later, Larry contacted Campbell again and reiterated his past
concerns with the College. (Id. I] 153-54.) In April of 2012, Larry filed a formal complaint
with Human Resources against Dr. Grassadonia, including various instances where he felt
that Dr. Grassadonia had slighted or disrespected him, going as far back as 2006. (Id. 11
158, 163.) Larry alleged that Dr. Grassadonia was diminishing his job as “number two” in
Student Affairs. (Id. [ 156.) Larry’s allegations of disrespectful conduct by Dr. Grassadonia
included: (1) redesigning the Student Affairs Department; (2) two occasions where Dr.
Grassadonia gave Larry postings for jobs at other institutions; (3) a change in the process of
conducting interviews; (4) the handling of a student suicide; and (5) the fact that Dr.
Grassadonia changed Larry’s previously weekly meetings with her to a biweekly basis
without consulting him. (Id. { 163.) Following Larry’s filing of the complaint, the College’s
Director of Human Resources, Tonia Gordon, opened an investigation into his allegations.
(Id. { 163, 177.) After several months of investigation and attempted mediation, Gordon
contacted President Foley and stated that the relationship between Larry and Dr.
Grassadonia was fractured and that the mediation process was not working. (Id. 176.) In

response, President Foley convened a committee of several top officials at the College:
Campbell; Tim Fulop, Senior Vice President of Academic Affairs; Sister Helen Marie, Vice
President for Mission Integration; and Gordon. (Id. { 177.) President Foley requested that

4 The Brughs do not elaborate on the timing and content of these allegedly disparaging statements

the committee review Larry’s file and provide him with a recommendation on how to move
forward in resolving the dispute. (Id.) The parties dispute whether President Foley had
previously viewed the materials in Larry’s file before asking the committee to review them.
(Id. | 180; ECF No. 56 180.)
E. The College Rearranges Larry’s Reporting Structure, Then Ultimately
Terminates His Employment
The committee met in July of 2012 and discussed three possible options: (1)
reassigning Larry to another department to alleviate conflicts between him and Dr.
Grassadonia; (2) redesigning Larry’s job description to more accurately reflect his current
responsibilities, though the committee worried that Larry might perceive an alteration to
his title to be disrespectful; and (3) termination. (ECF No. 46 I 187.) The parties dispute
whether the committee settled on a recommendation and made that recommendation to
President Foley. (Id. {J 187-89; ECF No. 56 { 187-89.)
President Foley decided to reassign Larry to work for Fulop in Academic Affairs
and remove Larry’s title as Assistant Dean of Student Affairs. (ECF No. 46 IJ 192-95.)
President Foley met with Larry at the start of August and informed him that he would be
reporting to Fulop and that he was no longer Assistant Dean of Student Affairs, but that he
would remain Director of Career Services and that his salary would not change. (Id. 11
207, 209.) President Foley told Larry that he wanted Larry to focus his energies on students;
Larry appeared to agree. (Id. J 208.) On August 1, 2012, President Foley announced Larry’s
new position to the rest of the College. (Id. { 212.) At some point after Larry began

reporting to Fulop, President Foley reviewed the file he had given to the committee, which
contained records of Larry’s past grievances with the College.> (Id. J 214.)
On August 30, 2012, the Brughs’ attorney, James Carroll,’ sent a letter to Daniel
Rullo, Chairperson of the College’s Board of Trustees on behalf of Larry. (Id. J 283.) In the
letter, Attorney Carroll informed the College of his conclusion that Larry’s reassignment
constituted a demotion and that the College had unlawfully retaliated against Larry by
demoting him.’ (Id. { 284.) One week later, on September 6, 2012, Chairperson Rullo
responded to Attorney Carroll’s letter and requested details about Larry’s claims. (Id. J
288.) The next day, President Foley held a mandatory meeting with the staff of the Student
Affairs Department to discuss Larry’s transition. (ECF No. 58 {{ 11, 13.) President Foley
informed staff that Larry had retained an attorney and would argue that the College had
discriminated against him. (Id. J 14.) President Foley also stated that when someone hires

an attorney and claims discrimination, that raises the temperature of the dispute. (Id.)
President Foley stated that Larry’s claim of discrimination was false because the College
had not demoted him and also noted that his would not be the first time that Larry had
sued the College. (Id. {{ 16-17.)
On September 21, 2012, Attorney Carroll sent a second letter to Chairperson Rullo,
this one expressing his “overriding concern” that the College was retaliating against Larry

5 The parties dispute whether President Foley had seen these files prior to reassigning Larry. (ECF
No. 46 180; ECF No. 56 { 180.)
6 Attorney Carroll remains counsel for the Brughs and represents them in this matter.
7 Attorney Carroll’s letter also indicated that gender discrimination was another basis for the
demotion, but the Brughs do not elaborate on these allegations. (ECF No. 46 284.)

as a result of his objections to racial discrimination in 1992.8 (ECF No. 56 J 292; ECF No. 59-
1 at 41-44.) Chairperson Rullo forwarded this letter to President Foley. (ECF No. 46 { 293.)
After President Foley received the letter, he reviewed Larry’s file which described Larry’s
employment history at the College, including the various grievances the Brughs had filed.
(Id. TY 295, 298, 302-09.) At some point following President Foley’s review of Larry’s file,
and the incidents it documented, he determined that the College should terminate Larry’s
employment; the parties dispute when this decision occurred. (Id. | 328; ECF No. 58 { 22;
ECF No. 63 { 22.) President Foley brought this decision to the College’s Board for its
opinion, though the parties dispute whether the Board approved President Foley’s
recommendation to terminate Larry. (ECF No. 46 1] 329-30; ECF No. 56 {J 329-30.) MAC
maintains that the College did not decide to terminate Larry until December of 2012; the
Brughs contend that the College made that decision on September 27, 2012, three days after
Chairperson Rullo received Attorney Carroll’s second letter. (ECF No. 63 J 22; ECF No. 58
q 22.)
On December 10, 2012, President Foley and Chairperson Rullo joined Fulop in a
meeting with Larry, the purpose of which was his termination. (ECF No. 46 338-39.)
Upon informing Larry that the College was terminating his employment, President Foley
offered Larry the option to resign in lieu of termination. (Id. I 340.) The parties dispute
what President Foley said during this meeting, but Larry maintains that President Foley
told him that the College was terminating his employment because of Attorney Carroll’s

8 Attorney Carroll also reiterated Larry’s concerns that the College was discriminating against him
on the basis of gender. (ECF No. 56 292; ECF No. 59-1 at 41-44.)
10

letters to the College on Larry’s behalf. (ECF No. 58 { 26; ECF No. 63 { 26.) Fulop’s
testimony also supports this allegation. (ECF No. 58 { 26.)
Prior to his termination, in his last four performance reviews, Larry received strong
marks in the category of relationships, defined as “ability to get along with others [and]
facilitate communication.” (ECF No. 58 {{ 2-3.) Larry began a new job at Pennsylvania
Highlands Community College in March of 2013. (ECF No. 46 { 344.)
F. Suzanne Operates the Game Clocks at the College’s Basketball Games
Although Suzanne departed the College in 2008, the College continued to utilize her
services by hiring her to operate the game clocks for the College’s basketball games. (ECF
No. 46 I] 117-18.) The College paid game clock operators $25 per-game, and when
necessary, issued the operators a Form 1099 for tax purposes.’? (Id. J 118.) Game clock
operators worked on a per-game basis, and Suzanne signed a separate contract for each

game she worked —she did not agree to operate the clock for every game, she had control

over her schedule as to the games for which she would operate the clock, and she received
no consequences if she was unable to operate the clock for a certain game. (Id. [J 119-22.)
In 2011 and 2012, the College paid Suzanne a total of $800: $425 in 2011 and $375 in 2012,
for operating the game clocks. (Id. JJ 123-24.)
In 2010, President Foley attended a College basketball game, asked Ryan Smith, the
College’s Athletic Director, who was operating the game clocks, and questioned Smith

Anyone who has paid more than $600 in one year for services rendered to someone who is not their
employee must file a Form 1099 with the IRS. See About Form 1099-MISC, Miscellaneous Income, IRS,
https://www.irs.gov/forms-pubs/about-form-1099-misc (last visited Dec. 18, 2019). This form is
often given to independent contractors.
11

about why the College was not using its own employees to operate the clocks. (ECF No. 46
TT 352-53; ECF No. 58 {¥ 352-53.) The parties dispute whether President Foley then
instructed Smith to replace the non-employee clock operators with College employees.
(ECF No. 46 {{ 352; ECF No. 566 J 352.) MAC contends that President Foley directed Smith
to replace the clock operators in 2010 and that Smith replied that he had no one with whom
he could replace the operators; the Brughs maintain that President Foley directed the
replacement of the clock operators in retaliation after Larry’s termination. (ECF No. 46 □□
352-53; ECF No. 58 {J 352-53.) At some point during the 2012-13 basketball season, the
College replaced Suzanne with a College employee, and Smith informed her that it was not
his decision to replace her; neither the Brughs nor the College specified a date on which
Suzanne’s dismissal occurred. (ECF No. 46 { 361; ECF No. 566 ¥ 361.) The College did not
terminate Steve Shuniak, the second clock operator,'® at the same time; the College
maintains that it retained him until Shuniak could train another operator." (ECF No. 46 J
363.)
IV. Procedural Background
The Brughs filed the Complaint on April 28, 2017 (ECF No. 1). After the case
proceeded through discovery, MAC filed for summary judgment on July 1, 2019 (ECF No.
44.) In response to MAC’s 68-page, 381-paragraph, Concise Statement of Material Facts
(ECF No. 46), on July 11, 2019, the Brughs filed an Emergency Motion to Strike (ECF No.
49), requesting that this Court strike MAC’s Motion for Summary Judgment and Concise

10 Shuniak worked the game clocks on the same basis Suzanne did. (ECF No. 46 {| 357.)
" The parties do not state when Shuniak stopped operating the game clocks.
12

Statement of Material Facts. (ECF No. 49.) This Court granted the Motion in part, striking
the statements contained in MAC’s Concise Statement of Material Facts that MAC did not
cite to in its brief in support of its Motion for Summary Judgment. (ECF No. 53.) The
Brughs then responded to MAC’s Motion for Summary Judgment on September 20, 2019,
(ECF No. 57) to which MAC filed a Reply on October 18, 2019. (ECF No. 62.) The Brughs’
Complaint includes two counts: (1) retaliation for Larry’s opposition to racial
discrimination in hiring and Attorney Carroll's letters to the college in 2012, including both
Larry’s termination and alleged demotion and Suzanne’s termination, in violation of Title
VII; and (2) those same acts of retaliation in violation of the PHRA. (ECF No. 1 {J 47-58.)
V. Legal Standard
This Court will grant summary judgment only “if the movant shows there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a); Melrose, Inc. v. Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010)
(quoting Ruehl v. Viacom, Inc., 500 F.3d 375, 380 n.6 (3d Cir. 2007)); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). There is a genuine issue of fact whenever “the evidence is
such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also McGreevy v. Stroup, 413 F.3d 359, 363 (3d
Cir. 2005). Material facts are those that affect the outcome of the trial under governing
law. Anderson, 477 U.S. at 248. The Court’s role is “not to weigh the evidence or to
determine the truth of the matter, but only to determine if the evidence of record is such
that a reasonable jury could return a verdict for the nonmoving party.” Am. Eagle Outfitters
v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009). In deciding a summary judgment
13

motion, this Court “must view the facts in the light most favorable to the nonmoving party
and draw all inferences in that party’s favor.’” Farrell v. Planters Lifesavers Co., 206 F.3d 271,
278 (3d Cir. 2000) (quoting Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994)).
The moving party bears the initial responsibility of stating the basis for its motion
and identifying those portions of the record that demonstrate the absence of a genuine issue
of material fact. Celotex, 477 U.S. at 323. If the moving party meets this burden, the party
opposing summary judgment “may not rest upon the mere allegations or denials” of the
pleading, but “must set forth specific facts showing that there is a genuine issue for
trial.” Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 n.11 (1986)). “For an issue to be genuine,
the nonmovant needs to supply more than a scintilla of evidence in support of its
position— there must be sufficient evidence (not mere allegations) for a reasonable jury to
find for the nonmovant.” Coolspring Stone Supply v. Am. States Life Ins. Co., 10 F.3d 144, 148
(3d Cir. 1993); see also Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005) (noting
that a party opposing summary judgment “must present more than just bare assertions,
conclusory allegations or suspicions to show the existence of a genuine issue”).
VI. Discussion
A. Title VII and PHRA Framework
This Court applies the same analysis to claims of retaliation under both Title VII and
the PHRA. Connelly v. Lane Constr. Corp., 809 F.3d 780, 791 n.9 (3d Cir. 2016); Gomez v.
Allegheny Health Servs., Inc., 71 F.3d 1079, 1083-84 (3d Cir. 1995); Berezansky v. CNB Bank,
No. 3:17-cv-105, 2019 WL 4750326, at *5 (W.D. Pa. Sept. 30, 2019) (Gibson, J.). Accordingly,

14

if MAC is entitled to summary judgment on the Brughs’ Title VII claim, it is likewise entitled
to summary judgment on their PHRA claim.”
Title VII provides employees with protection from retaliatory actions taken by
employers based on their reports of, or opposition to, unlawful employment practices or
their support of charges of unlawful employment practices. 42 U.S.C. § 2000e-3(a).
Specifically, §2000e-3 provides that:

It shall be an unlawful employment practice for an employer to discriminate
against any of his employees . .. because he has opposed any practice made
an unlawful employment practice by this subchapter, or because he has
made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.
Id. In essence, Title VII bars employers from retaliating against workplace whistleblowers.
A plaintiff can defeat a defendant’s summary judgment motion in a Title VII case in
one of two ways: (1) showing direct evidence of retaliation (a “mixed-motives” case); (2)
showing indirect evidence of retaliation (a “pretext” case). Starceski v. Westinghouse
Electric Corp., 54 F.3d 1089, 1095 n.4 (3d Cir. 1995). The Brughs argue that they have
produced both direct and indirect evidence of retaliation. (ECF No. 57 at 10-12.) The Court
addresses each argument in turn, beginning with direct evidence.
B. The Court Denies MAC’s Motion Because Larry Brugh Has Shown Direct
Evidence of Retaliation with Respect to His Termination
1. The Parties’ Arguments
MAC argues that the Brughs cannot produce sufficient direct evidence of retaliatory
animus to defeat summary judgment. (ECF No. 62 at 5-6.) MAC asserts that the Brughs

For the sake of convenience, the Court will refer only to the Brughs’ Title VII claim in its analysis.
15

have misrepresented Fulop’s testimony about the termination meeting in an effort to defeat
MAC's summary judgment motion. (ECF No. 62 at 5.) MAC maintains that Fulop’s
testimony shows no evidence of retaliatory intent on President Foley’s part, and actually
shows that the only reason Foley terminated Larry was because Larry disparaged the
College. (Id.) MAC also argues that, although Fulop stated in his deposition that he had
recorded President Foley’s retaliatory animus in his notes of the termination meeting, those
notes do not contain any such record. (Id. at 5-6.) MAC also maintains that Larry’s own
declaration stating that President Foley had expressed a retaliatory motive is self-serving
and that this Court cannot rely on it. (ECF No. 63 at 1.)
The Brughs respond that there is sufficient direct evidence of retaliatory motive to
preclude summary judgment. (ECF No. 57 at 10.) The Brughs argue that at Larry’s
termination meeting, President Foley expressed that one of the reasons for Larry’s
termination was the letters that Attorney Carroll sent to the College on his behalf. (Id.) The
Brughs also assert that Fulop’s deposition testimony corroborates Larry’s recollection. (Id.)
2. The Brughs Have Presented Sufficient Direct Evidence of Retaliation for
a Reasonable Factfinder to Conclude That the College Inappropriately
Retaliated Against Larry by Firing Him
In a mixed-motives case, the plaintiff must produce direct evidence of discrimination
or retaliation. Jd. This direct evidence must permit the factfinder to find that the allegedly
retaliatory actor negatively relied upon an inappropriate criterion in making the retaliatory
decision. See Connors v. Chrysler Fin. Corp., 160 F.3d 971, 976 (3d Cir. 1998). If the
plaintiff produces the required direct evidence, the employer must then show that it would
have made the same decision even without the unlawful bias. Starceski, 54 F.3d at 1095 n.4.

16

Essentially, if the plaintiff produces sufficient direct proof, the employer retains only an
affirmative defense on the issue of causation. Jd.
If a reasonable factfinder could conclude that the College decided to fire Larry in
retaliation for engaging in protected conduct, such as sending the College a letter
complaining of other retaliation,’’ the Court must deny summary judgment. See Connors,
160 F.3d at 976. Here, there is sufficient direct evidence for a factfinder to conclude that
retaliatory animus motivated President Foley’s decision to terminate Larry.
Fulop’s testimony, upon which the parties place primary reliance, states that
President Foley did terminate Larry, at least partially, as a result of Attorney Carroll's
letters:
Question: Do you recall President Foley saying that, in addition, I want to
fire Larry because he had a lawyer send a letter to the [C]ollege, threatening
a lawsuit?
Answer: I don’t recall ever hearing that until the actual meeting.
Question: But you did hear that during the actual meeting?
Answer: Yes. It’s in my notes.
(ECF 47-6 at 9:16-23.) Title VII protects employees from retaliation when they oppose or
make charges about an employer’s unlawful employment practices. See 42 U.S.C. § 2000e-
3(a). Attorney Carroll's letters to the College stated that he had concluded that the College
had retaliatorily demoted Larry in violation of Title VII and the PHRA, a charge of unlawful
employment practices, (See ECF No. 58-1 at 38-44.) Termination for having an attorney
make a charge on an employee’s behalf is a violation of Title VII. See 42 U.S.C. § 2000e-3(a).

'3 MAC does not dispute that Attorney Carroll's letters to the College constitute protected conduct.
(ECf No. 45 at 12-13.)
17

Fulop’s testimony would permit a reasonable factfinder to conclude that the College
terminated Larry in violation of Title VII, and accordingly the Court denies MAC’s Motion
to the extent that it seeks summary judgment on Larry’s claims of retaliation with respect
to his termination. MAC is entitled to show that it would have terminated Larry in the
absence of any retaliatory intent, but it has made no such showing here. See Starceski, 54
F.3d at 1095 n.4. Further, a reasonable jury could choose to believe Fulop’s testimony,
rather than any evidence that MAC would introduce in an attempt to prove its affirmative
defense. In addition, Larry’s own recollection, that President Foley had stated that the
College was terminating him because of Attorney Carroll’s letters, if testified to and believed
at trial, could permit a reasonable jury to find that President Foley had fired Larry in
retaliation. (See ECF No. 58-1] at 5.) MAC argues that Larry’s declaration is self-serving
and that this Court cannot rely on it in ruling on its summary judgment Motion, implicitly
invoking the “sham affidavit” doctrine. (See, e.g., ECF No. 63 at 2 (“[The Brughs] rely upon
a self-serving declaration of Plaintiff Larry Brugh whose credibility is in question because
he made false statements in a previous declaration submitted in this matter.”).) This
argument is unavailing.
The “sham affidavit” doctrine holds that a party may not create a genuine dispute of
material fact and defeat summary judgment simply by filing an affidavit of record disputing
the affiant’s own sworn testimony unless the affiant provides a plausible reason for the
contradiction. Baer v. Chase, 392 F.3d 609, 623-24 (3d Cir. 2004). Here, MAC has not
directed the Court to any portion of Larry’s deposition testimony where he states that
President Foley did not express a retaliatory motive for his termination, or that contradicts
his declaration. As there is no contradiction, Larry’s affidavit is also sufficient to create a

18

dispute of material fact and preclude summary judgment on this issue. As for MAC’s
objections as to Larry’s credibility, that is an argument as to the weight of the evidence, an
issue not resolved on summary judgment.
Larry claims that his reassignment to Fulop and the removal of his Assistant Dean
title also constituted retaliation. However, Larry has produced no direct evidence of
retaliation in connection with his reassignment, so the Court will proceed to consider the
indirect evidence he has produced.
C. The Court Grants MAC’s Motion in Part Because Larry Has Shown Indirect
Evidence of Retaliation in Connection with His Termination but Not in
Connection with His Reassignment
Although the Court denies MAC’s Motion to the extent it seeks summary judgment
on Larry’s retaliation claim in connection with his termination, because Larry has presented
sufficient direct evidence of retaliation to defeat summary judgment, the Court will also
address his claim in the context of pretext and McDonnell Douglas burden shifting."
The McDonnell Douglas burden shifting framework governs pretext cases under
Title VII. Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006); see McDonnell
Douglas Corp v. Green, 411 U.S. 792 (1973). To defeat summary judgment, a plaintiff must
first make out a prima facie case of retaliation. Moore, 461 F.3d at 342. This prima facie
case has three elements that a plaintiff must show: (1) the plaintiff engaged in a protected
activity; (2) the employer subjected him to an adverse employment action after or during the
protected activity; and (3) there is a causal link between the protected activity and the adverse
action. /d. at 340-41. If the plaintiff successfully establishes a prima facie case, the burden

4 Additionally, as the Brughs produced no direct evidence of retaliation concerning Larry’s
reassignment, the Court must consider the indirect evidence of retaliation with respect to that claim.
19

then shifts to the employer to articulate a legitimate, non-retaliatory reason for the adverse
employment action. /d. at 342. Finally, once an employer has articulated non-retaliatory
reason, the employee reshoulders the burden and must produce sufficient evidence for a
factfinder to determine that the proffered reason is pretextual and that the true grounds for
the adverse employment action were retaliatory. /d.
1. The Parties’ Arguments
MAC concedes that the Brughs have established the first element of a prima facie
case, engaging in protected conduct. (ECF No. 45 at 12-13.) However, MAC denies that
the College either subjected Larry to an adverse employment action or that there was any
causal link between any adverse employment action and his engaging in protected conduct,
and that, therefore, the Brughs cannot to establish a prima facie case. (Id.) MAC advances
several reasons why this is so: (1) Larry’s reassignment was not a materially adverse action
(Id. at 14-17); (2) the Brughs have failed to show evidence of a causal connection between
protected activity and Larry’s reassignment (Id. at 17-19); (3) the Brughs have failed to show

a causal connection between Larry’s termination and any protected activity’ (Id. at 19-25);
and (4) MAC had legitimate, non-retaliatory reasons for both reassigning and terminating
Larry. (ECF No. 62 at 1.)
2. Larry Has Failed to Show That His Reassignment Was a Materially
Adverse Action
The antiretaliation provisions of Title VII bar employers from retaliating against
employees, but they do not bar all acts of retaliation; Title VII bars only retaliation that

15 In so arguing, MAC concedes that Larry’s termination was an adverse action. (Id. at 19.)
20

produces injury or harm. Burlington N. & Santa Fe. Ry. Co. v. White, 548 U.S. 53, 67 (2006).
This requires the employee to show that a reasonable employee would have found the
action materially adverse, meaning that it could dissuade a reasonable employee from
opposing an unlawful employment practice. Id. at 68. This creates a separation between
significant and trivial harms, and trivial harms, such as “petty slights or minor annoyances”
do not give rise to a Title VII claim. Id.; see Moore, 461 F.3d at 346.
Generally, lateral transfers, changes of title, and changes of reporting relationships
do not give rise to a Title VII claim. Langley v. Merck & Co., Inc., 186 F. App’x 258, 260 (3d.
Cir. 2006) (unpublished). However, if the reassignment is less desirable, even if the
employee loses neither rank nor salary, the employee may have a Title VII claim. Zelinski

v. Pa. St. Police, 108 F. App’x 700, 705-06 (3d Cir. 2004) (unpublished).
MAC argues that reassigning Larry was not a demotion and therefore not an
adverse action under Title VII. (ECF No. 46 at 14.) MAC then contends that even if Larry’s
reassignment constitutes a demotion, it was not a materially adverse action required to
trigger Title VII’s protection because reassignment to an equivalent position is not
materially adverse. (Id. at 14-16.)
The Brughs do not address MAC’s argument that Larry’s reassignment was not
actually a demotion, apparently assuming that his change in title and duties constitutes a
demotion and a materially adverse action for Title VII purposes. (See ECF No. 57 at 13-17
(addressing disputed material facts regarding Larry’s reassignment).)
The Brughs have failed to produce evidence from which a reasonable jury could
conclude that Larry’s reassignment constituted a materially adverse action or that it was

21

adverse in any way. At the reassignment meeting, President Foley highlighted the
importance of Larry’s new focus on career services and, after the meeting, President Foley
emphasized the importance of Larry’s new position to the rest of the College. The Brughs
have not shown, other than in conclusory statements, that the College demoted Larry or
took an adverse action against him. (See, e.g., ECF No. 58 { 8 (“Thomas Foley met with
Larry Brugh to inform him that he was being demoted”).)
In Burlington Northern, the railroad reassigned the employee from operating a
forklift to manual labor like clearing railway tracks of brush. Burlington N., 548 U.S. at 57-
58. The Supreme Court held that the plaintiff's evidence that the forklift operator position
was more prestigious and considered a better job, along with the fact that the manual labor
duties were considered to be “more arduous” was sufficient to permit a reasonable jury to
infer that the reassignment was materially adverse. Here, the Brughs have produced no
such evidence. Although the College removed Larry’s title of Assistant Dean, the Brughs
have not shown that his remaining position, Director of Career Services, was considered

any less prestigious than his position as Assistant Dean, nor that it required work that was

more arduous, nor that it was viewed as a lesser job.
The Brughs have not shown that Larry’s reassignment rises above the level of
“trivial” harms, or that the reassignment would have dissuaded a reasonable employee
from opposing a forbidden employment practice. See Burlington N., 543 U.S. at 67-68.
Accordingly, the Brughs have failed to make out a prima facie case of retaliation in
connection with Larry’s reassignment.

22

3. Larry Has Failed to Show That There Is a Causal Connection Between
Protected Activity and His Reassignment but Has Shown That A
Reasonable Jury Could Find a Causal Connection Between Protected
Activity and His Termination
Having determined that the Brughs have failed to show that Larry’s reassignment
was an adverse action, the Court need not address whether the Brughs have shown a causal
connection between an adverse action and protected conduct. However, the Court will
briefly do so in the interests of completeness. The Court will also address the Brughs’
arguments that there is a causal connection between Larry’s termination and his protected
activity.'°
MAC maintains that, even if Larry’s reassignment was a materially adverse action,
the Brughs have produced no evidence of a causal connection between protected activity
in the 1990s and Larry’s reassignment in 2012. (ECF No. 45 at 17.) MAC argues that the
record demonstrates that President Foley was unaware of a history of complaints about
Larry’s behavior and his extensive grievance list until after his reassignment, and that
therefore this protected activity could not have given rise retaliation because intent to
retaliate is a precondition of any retaliation claim. (Id. at 17-18.) MAC also asserts that the
temporal proximity between protected activity and reassignment is too remote to suggest
a retaliatory motive. (Id. at 18-19.) MAC argues that the Brughs are intentionally
misconstruing testimony in an attempt to create disputes of material facts.” (Id. at 4-7.)

6 MAC does not dispute that Larry’s termination is sufficient to establish the second element of the
Brughs’ prima facie case. (ECF No. 45 at 19.)
The Court notes with disapproval the unnecessarily combative tone MAC takes towards the
Brughs and their counsel. (See ECF No. 68 at 4 (accusing the Brughs of “egregious intentional
misrepresentations of testimony ... in an attempt to create disputed material facts”).).
23

MAC next argues that the Brughs have produced no evidence to show that Larry’s
termination was causally connected to protected activity. (Id. at 19-20.) MAC maintains
that the timing of Larry’s termination, over two months after Attorney Carroll contacted
the College on his behalf, is a time period that is long enough to require other evidence of
retaliatory intent to defeat summary judgment. (Id. at 20.) MAC argues that no such
evidence exists. (Id.)
In replying to MAC’s arguments that there is no evidence of a causal connection
between protected activity and Larry’s reassignment and termination, the Brughs argue
that there are three incidents that support their claim: (1) at the meeting where the College
reassigned Larry, President Foley stated that “anyone who would call a lawyer doesn’t
deserve the courtesy of a meeting with the President” (ECF No. 57 at 14); at an August 23,
2012 meeting with Larry, President Foley stated that he “would welcome a lawsuit” from
Larry (Id. at 14-15); and (3) during a meeting with the staff of the Student Affairs
Department, President Foley stated, after telling the staff that Larry planned to sue the
College, that hiring a lawyer “changes the temperature of things,” evidencing retaliatory
intent, along with an effort to discourage opposing unlawful employment practices, as well

as negatively affecting Larry’s work relationships within the department with his
statements. (Id. at 15-17.)
For any retaliation claim to succeed, there must be evidence of an intent to retaliate.
Moore, 461 F.3d at 341. The Brughs’ claim of retaliation in connection with Larry’s
reassignment must rest upon events prior to Attorney Carroll’s letters to the College, as
Attorney Carroll sent the letters after Larry’s reassignment. Accordingly, the events upon
24

which the Brughs’ claims rest are those that Larry’s personnel file documented over his
career with the College, including alleged racial discrimination and proceedings stemming
from that incident, as well as Larry’s other disputes with the College’s administration.
MAC contends that President Foley, who made the decision to reassign Larry, did not look
at Larry’s file until after the reassignment occurred. (ECF No. 46 J 180.) The Brughs deny
this, but assert only that Fulop testified that President Foley never viewed the file. (ECF
No. 58 { 180.) However, this is not enough. The Brughs have produced no evidence that
President Foley was aware of Larry’s past history and the occurrences that form the
foundation of the Brughs’ claims. Accordingly, the Brughs have shown no evidence of an
intent to retaliate in connection with Larry's reassignment and therefore no evidence of a
causal connection.
MAC does not contest the first two elements of the Brughs’ prima facie case
concerning Larry’s termination, that Larry engaged in protected conduct and that his
termination was an adverse action. (See ECF No. 45 at 12-13, 19.) However, MAC argues
that the Brughs have failed to establish the requisite causal connection between Larry’s
protected activity'® and his termination. (Id. at 19-25.)
There are two ways to prove a casual connection: (1) where the time between the
complaint and the alleged retaliation is so close as to be “unusually suggestive,” timing
alone can defeat summary judgment; and (2) “timing plus other evidence.” Williams v.
Phila. Housing. Auth. Police Dep’t., 380 F.3d 751, 760 (3d Cir. 2004), superseded by statute on

'8 MAC does not dispute that Attorney Carroll’s letters to the College on Larry’s behalf constitute
protected activity. (ECF No. 45 at 12-13.)
25

other grounds as recognized in, Lewis v. Univ. of Pa., 779 F. App’x 920 (3d Cir. 2019)
(unpublished). The timing that is close enough to be “unusually suggestive” varies, but it
is usually not more than a few days. See, e.g., Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir.
1989) (holding that a termination two days after filing a claim of discrimination was
sufficiently close in time to infer a causal connection).
Here, the Brughs have produced sufficient evidence of a causal connection under
both timing theories. Under the “unusually suggestive” theory, the Brughs have produced
evidence from which a reasonable jury could infer that the College decided to terminate
Larry within a few days after Attorney Carroll’s letter of September 24, 2012, to the College.
(ECF No. 58 { 22.) Chairperson Rullo’s testimony, while not explicitly clear that President
Foley had decided to terminate Larry, states that the College was moving “in th[e]
direction” of firing Larry by September 27 or 28, 2012, and that the delay until December
10, 2012, was to prepare a severance agreement. (ECF No. 58-2 at 22:24-24:13.) This
evidence, if the Brughs presented it at trial and the jury believed it, would permit the jury
to infer a causal connection.
Additionally, even if the timing were not unusually suggestive, and the College did
not make the decision to terminate Larry until later, the Brughs have produced sufficient
other evidence to show a causal connection. Larry has sworn, under penalty of perjury,
that, at his termination, President Foley stated that he was firing Larry because of Attorney
Carroll's letters to the College. (ECF No. 58 J 26; ECF No. 58-1 at 5.) Additionally, Fulop
testified that President Foley made a statement to that effect at Larry’s termination. (ECF
No. 58-2 at 14.) This evidence would permit a reasonable jury to infer a causal connection.

26

4. The Brughs Have Failed to Show That The College’s Reasons for Reassigning
Larry Were Pretextual But Has Shown That A Reasonable Jury Could Find
That The College’s Reasons for Terminating Larry Were Pretextual
Once a plaintiff has made out a prima facie case of retaliation and the defendant has
rebutted that case with a legitimate, nonretaliatory reason for the adverse employment
action, the plaintiff must show that the legitimate reason proffered is merely a pretext, a
sham or cover, for unlawful retaliation. Moore, 461 F.3d at 342.
MAC argues that, even if Larry has made out a prima facie case of retaliation, MAC
has articulated legitimate, non-retaliatory reasons for reassigning and terminating him.
(ECF No. 62 at 1-2.) MAC asserts that it reassigned Larry due to personality conflicts with
his supervisor, Dr. Grassadonia. (See ECF No. 46 {{ 156-76.) MAC argues that it
terminated Larry because of his past history of complaints about his behavior, a
nonretaliatory and legitimate reason. (Id. at 3.) MAC asserts that there is insufficient
evidence for a reasonable jury to conclude that these proffered reasons are pretextual and
that it is accordingly entitled to summary judgment. (Id. at 3-4.)
The Brughs do not specifically refute MAC’s arguments that the College had
legitimate, nonretaliatory reasons to terminate Larry,’ though they do contend that MAC’s
proffered reasons are pretextual and state several examples of testimony and evidence they
would introduce in support of that position. (ECF No. 57 at 12-13.)
MAC has advanced a legitimate, nonretaliatory reason for reassigning Larry: his

poor relationship with his supervisor, Dr. Grassadonia, which resulted in unsuccessful

19 This is likely due to the fact that MAC’s initial brief in support of its Motion for Summary Judgment
did not address the issue of pretext, but MAC raised the issue in its Reply.
27

mediation between the two parties and a damaged working relationship. (See ECF No. 46
{1 156-76.) The Brughs have produced no evidence that could convince a reasonable jury
that this reason is pretextual. The Brughs’ arguments on the issue of pretext address Larry’s
termination, rather than his reassignment, and they have therefore not shown that his
reassignment was pretextual.
The Court will assume, for the sake of argument, that MAC’s proffered reasons for
terminating Larry are legitimate and nonretaliatory. However, President Foley’s alleged
statements at the termination meeting would permit a reasonable jury to conclude that
those reasons are pretextual. Accordingly, the Court denies MAC’s Motion for Summary
Judgment with respect to Larry’s termination.
D. The Court Will Grant MAC’s Motion Because Suzanne Brugh Was Not the
College’s Employee at the Time of Her Dismissal
The Court now turns to Suzanne’s claims of retaliation.
1. The Parties’ Arguments
MAC contends that Suzanne has failed to establish a prima facie case of retaliation
because, at the time the alleged acts of retaliation occurred, she was not an employee of the
College. (ECF No. 45 at 25.) MAC also asserts that there was no retaliatory animus
motivating President Foley’s decision to replace the game clock operators; President Foley
made the decision in 2010 so that college employees could have an opportunity to
supplement their income and Ryan Smith, the athletic director, failed to follow that
directive. (Id. at 25-26.)

28

MAC contends that Suzanne has failed to adduce any evidence of an adverse
employment action or a causal connection between protected activity and an adverse
employment action. (Id. at 26.) MAC asserts that her dismissal from game clock operation
duties is a trivial harm that does not raise to the level of “adverse action” as Title VII defines
that term because it is a “mere inconvenience.” (Id.) With regard to a causal connection,
MAC argues that, even assuming that her dismissal constituted an adverse action, there is
no evidence that that dismissal is linked with retaliation. (Id.) MAC maintains that the
evidence shows that the decision to replace the game clock operators had nothing to do
with Larry, and that, absent an intent to retaliate, there can be no retaliation. (Id. at 26-27.)
The Brughs respond that there is sufficient evidence for Suzanne's claim to proceed.
(ECF No. 57 at 17-18.) Smith testified that Foley had mentioned to him in August of 2012
about a potential lawsuit from the Brughs and that the motive for removing her from game
clock operations was retaliatory. (Id.) The Brughs also argue that Steve Shuniak’s
continued operation of the game clocks shows retaliatory intent because only Suzanne was
terminated. (Id, at 18-19.) The Brughs do not respond to MAC’s arguments that Suzanne

was not an employee that Title VII covers or that her dismissal was de minimis.
2. Suzanne Was Not an Employee of the College and Therefore Has No
Claim for Retaliation
Title VII makes it unlawful for an employer to discriminate or retaliate against its
employees. 42 U.S.C. § 2000e-3(a). Title VII defines an employee as “an individual
employed by □□ employer.” Id. § 2000e(f). An independent contractor is not an employee.”
The PHRA does include certain independent contractors, but only those whose jobs the
Pennsylvania Bureau of Professional and Occupational Affairs or the Fair Housing Act regulate.
29

Brown v. J. Kaz, Inc., 581 F.3d 175, 179 (3d Cir. 2009). The Third Circuit has construed this
definition to incorporate traditional principles of agency law— whether the hiring party had
the right to control the manner and means of performance—in determining employment
status. Id. at 180. The relevant factors used in that determination are: (1) the skill required;
(2) the source of the instrumentalities and tools; (3) the location of the work; (4) the duration
of the relationship between the parties; (5) whether the hiring party has the right to assign
additional duties to the hired party; (6) the extent of the hired party’s discretion over hours
of work; (7) the method of payment; (8) the provision of employee benefits; and (9) the tax
treatment of the hired party. Id. (citing Nationwide Mutual Ins. Co. v. Darden, 503 US. 318,
323-24 (1992)).
Here, these factors, based on undisputed facts, indicate that Suzanne was an
independent contractor and accordingly not subject to Title VII protection. Suzanne’s tax
treatment, filling out 1099 tax forms is the first major indicator of her independent
contractor status. (ECF No. 46 J 118.) In addition, the College had no right to mandate her
operating the game clocks at any particular game—she operated the clocks on a per-game
basis, controlled her own schedule, and could stop operating the game clocks at any time.
(Id. J] 119-121.) While the fact that operating the game clocks required minimal skill, that
the College provided the clocks, and that the work occurred on the College’s premises point
toward employee status, they are outweighed by the other factors. In addition, the College
paid Suzanne on a per-game basis, not at a continuing rate, like a salary or hourly wage,

Velocity Express v. Pa. Human Relations Comm'n, 853 A.2d 1182, 1186 (Pa. Commw. Ct. 2004); see Brown
v. J. Kaz, Inc., 581 F.3d 175, 179 n.1 (3d Cir. 2009). The Brughs have produced no evidence to show
that that sphere includes Suzanne’s operation of the game clocks.
30

and her work occurred only during basketball season—it did not continue throughout the
year. (Id. J 119.) Accordingly, Suzanne was an independent contractor and Title VII did
not afford her protection. The Court accordingly grants MAC’s Motion for summary
judgment with respect to Suzanne’s claim.
Additionally, the Brughs have shown no evidence of a causal connection under
either the “unusually suggestive” or “timing plus other evidence” theories. The Brughs
have not established when during the 2012-13 basketball season the College dismissed
Suzanne, nor have they adduced other evidence to show create a genuine issue of material
fact as to causation. Finally, the Brughs have failed to produce any evidence from which a
reasonable jury could conclude that the College’s dismissal of Suzanne was pretextual.
VII. Conclusion
MAC has shown that it is entitled to summary judgment on the Brughs’ retaliation
claim as it concerns Larry’s alleged demotion but not as that claim relates to Larry’s
termination. MAC has also shown that it is entitled to judgment as a matter of law on
Suzanne’s claim because she was not an employee of the College at the time she was
dismissed from game clock operation duties.
An appropriate order follows.

31

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LARRY BRUGH AND SUZANNE ) Case No. 3:17-cv-71
BRUGH, )
Plaintiffs, ) JUDGE KIM R. GIBSON
)
v. )
)
MOUNT ALOYSIUS COLLEGE AND )
THOMAS FOLEY, )
)
Defendants. )

| ORDER
AND NOW, this oe day of January, 2020, upon consideration of the Defendants’
Motion for Summary Judgment (ECF No. 44), and for the reasons set forth in the
accompanying Memorandum Opinion, IT IS HEREBY ORDERED that Defendants’
Motion is GRANTED IN PART and DENIED IN PART. IT IS FURTHER ORDERED
THAT:
1. The Motion is DENIED to the extent that it seeks summary judgment on the
Brughs’ claim of retaliation concerning Larry’s termination;
2. The Motion is GRANTED to the extent that it seeks summary judgment on the
Brughs’ claim of retaliation in connection with Larry’s reassignment; and
3. The Motion is GRANTED to the extent that it seeks summary judgment on the
Brughs’ claim of retaliation in connection with Suzanne’s dismissal.

\ Wt den
KIM R. GIBSON
UNITED STATES DISTRICT JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10415318. Public record. Not legal advice.