The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DIANA L. STACHE,
Plaintiff,
VS. Civil Action No. 19-1364
Magistrate Judge Dodge
MID MON VALLEY TRANSIT AUTHORITY, _ )
Defendant.
MEMORANDUM OPINION
Plaintiff Diana L. Stache brought this action against Defendant Mid Mon Valley Transit
Authority (““MMVTA”), in which she asserts claims for breach of contract under Pennsylvania
law, and age and disability discrimination under the Age Discrimination in Employment Act, 29
U.S.C. §§ 621-34 (ADEA), and the Americans With Disabilities Act, 42 U.S.C. §§ 12101-12117
(ADA), respectively. These claims arise out of the termination of her employment by MMVTA
on May 24, 2018. .
In response to MMVTA’s motion to dismiss (ECF No. 3), Plaintiff agreed to dismiss the
breach of contract claim in Count I (ECF No. 12 at 3 n.1). The Court will treat this as a motion to
amend the Complaint and grant it without requiring any further pleading. Due to the existence of
genuine issues of material fact, the Court converted MMVTA’s motion into a motion for
summary judgment. MMVTA subsequently withdrew its motion with respect to the ADEA claim
in Count II (ECF No. 28 at 1 n.1). Therefore, the only disputed issue before the Court at this time
is MMVTA’s partial motion for summary judgment with respect to the ADA claim in Count III
of the Complaint on the ground that MMVTA has fewer than the minimum number of
employees in order to be a covered employer under the statute. For the reasons that follow,
MMVTA’s partial motion for summary judgment will be granted and Count III of the Complaint
will be dismissed.
I. Relevant Procedural History
Stache initially presented her claims to the Equal Employment Opportunity Commission
(“EEOC”), which issued a Notice of Right to Sue Letter on July 24, 2019. She then filed an
action on October 4, 2019 in the Court of Common Pleas of Washington County, Pennsylvania
which Defendant removed to this Court based on the federal questions presented by the ADEA
and ADA claims. The parties later consented to jurisdiction by a magistrate judge under 28
U.S.C. § 636(c).
On November 1, 2019, Defendant filed a motion to dismiss (ECF No. 3). After the parties
submitted materials outside of the pleadings (ECF Nos. 12, 13), the Court entered an order on
January 10, 2020 (ECF No. 14) converting the motion into a motion for summary judgment and
allowing the parties a further opportunity to present evidence relating to the motion. This issue
was fully briefed (ECF Nos. 18, 28, 30) and oral argument was held on March 5, 2020.
II. Factual Background
Plaintiff was hired by MMVTA in 2012 as an Office Secretary and worked there until she
was terminated on May 24, 2018. (Compl. §§ 5-7.)! She asserts that she had an excellent working
relationship with the prior Executive Director, the Board of Directors and staff. When a new
Executive Director, Donna Weckoski, took over, however, Ms. Weckoski exhibited personal
animosity toward her and created a hostile work environment that became progressively worse in
2017 and 2018. Ud. §§ 13-17.) Among other things, Plaintiff alleges that Ms. Weckoski spoke to
her and treated her in a derogatory, rude, offensive and inappropriate manner, isolated her from
' Notice of Removal (ECF No. 1) Ex. A.
the staff, human resources and the Board, discriminated against her based on her age (60) and
disability (cancer), falsified her attendance records and performance reviews and violated and
breached the duties and obligations owed to her under MMVTA’s Policy and Procedures. Ud. {
18.) Plaintiff alleges that this conduct was intentional and willful and that it harmed her
professional relationships with the staff, human resources and the Board. (Id. 4 19.) Ultimately,
she claims, she was unlawfully terminated.
Il. Discussion
A. Standard of Review
Under the Federal Rules of Civil Procedure, summary judgment is appropriate if there are
no genuine disputes as to any material fact and the moving party is entitled to judgment as a
matter of law. Fed.R.Civ.P. 56(a). Summary judgment may be granted against a party who fails
to adduce facts sufficient to establish the existence of any element essential to that party’s case,
and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S:
317, 322 (1986).
The moving party bears the initial burden of identifying evidence which demonstrates the
absence of a genuine issue of material fact. Once that burden has been met, the non-moving party
must set forth “specific facts showing that there is a genuine issue for trial” or the factual record
will be taken as presented by the moving party and judgment will be entered as a matter of law.
Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue is
genuine only if 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). The Court of
Appeals has held that “where the movant bears the burden of proof at trial and the motion does
not establish the absence of a genuine factual issue, the district court should deny summary
judgment even if no opposing evidentiary matter is presented.” Nat'l State Bank v. Federal
Reserve Bank, 979 F.2d 1579, 1582 (3d Cir. 1992),
In following this directive, a court must take the facts in the light most favorable to the
non-moving party and must draw all reasonable inferences and resolve all doubts in that party’s
favor. Hugh v. Butler Cty. Family YMCA, 418 F.3d 265, 266 (3d Cir. 2005); Doe v. County of
Ctr., Pa., 242 F.3d 437, 446 (3d Cir. 2001).
B. Breach of Contract Claim .
In Count I, Plaintiff alleged a claim of breach of contract based upon MMVTA’s
Personnel Policy and Procedures. MMVTA moved to dismiss this claim on the ground that it
does not state a claim upon which relief can be granted. In response to the motion to dismiss,
Plaintiff filed an Answer to Defendant’s Motion to Dismiss in which she “requests leave of
Court to Amend the Complaint to delete the Count for Breach of Contract and all references to
breach of express contract and/or implied contract.” (ECF No. 11 at 3; see also ECF No. 12 at 3
Courts have concluded that, because Rule 41(a) describes voluntary dismissal of an
“action,” it does not allow for piecemeal voluntary dismissals of less than all claims against any
single defendant. “The proper procedural mechanism for dismissing less than all of the claims in
an action is a motion to amend under Federal Rule of Civil Procedure 15(a).” Chan v. Cty. of
Lancaster, 2013 WL 2412168, at *16 (E.D. Pa. June 4, 2013) (citation omitted).
Therefore, the Court will construe Plaintiffs Answer to the motion to dismiss, in relevant
part, as a motion to amend the Complaint and will grant Plaintiffs request. The Complaint is
hereby amended to delete the breach of contract claim in Count I and all references to breach of
express contract and/or implied contract.
C. Plaintiff's ADA Claim
Title I of the ADA provides that “[n]o covered entity shall discriminate against a
qualified individual with a disability because of the disability of such individual in regard to □□□□
application procedures, the hiring, advancement, or discharge of employees, employee
compensation, job training, and other terms, conditions, and privileges of employment.” 42
U.S.C. § 12112(a). A covered entity for purposes of this provision is defined as having “15 or
more employees for each working day in each of 20 or more calendar weeks in the current or
preceding calendar year.” 42 U.S.C. § 12111(5)(A). See EEOC v. Grane Healthcare Co., 2
F. Supp. 3d 667, 686 (W.D. Pa. 2014).?
MMVTA asserts that because it employed fewer than fifteen employees, it is not a
covered employer for purposes of the ADA. The ADA defines an “employee” as “an individual
employed by an employer.” 42 U.S.C. § 12111(4). The Supreme Court has stated that this
definition is “completely circular and explains nothing.” Clackamas Gastroenterology Assocs.,
P.C. v. Wells, 538 U.S. 440, 444 (2003) (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S.
318, 323 (1992)). Accordingly, when such circular definitions are used for “employees,” the
Supreme Court has “concluded that Congress intended to describe the conventional master-
servant relationship as understood by common-law agency doctrine.” Jd. at 445 (quoting Darden,
503 U.S. at 322-23),
* The ADEA has a similar provision, which states that an employer must. have “twenty or more
employees for each working day in each of twenty or more calendar weeks in the current or
preceding calendar year.” 29 U.S.C. § 630(b). However, the Supreme Court has held that this
section does not apply to states or state agencies, Mt. Lemmon Fire Dist. v. Guido, 139 S.Ct. 22
(2018), and MMVTA has withdrawn its motion for summary judgment with respect to the
ADEA claim based on the holding in this case. (ECF No. 28 at 1 n.1.)
In support of its assertion that it does not have the requisite number of employees to fall
under the requirements of the ADA, MMVTA initially submitted the affidavit of its Executive
Director, Ashley Seman (Altemare). Ms. Seman avers that based upon her personal knowledge
and her review of MMVTA’s employment records, MMVTA had six employees in 2016, six
employees in 2017, five employees in 2018 and four employees in 2019. (Seman Aff. {{f □□□□
This suggests that MMVTA does not have the requisite number of employees to be a covered
employer under the ADA.
In turn, Plaintiff submitted her own affidavit, in which she asserts that although Ms.
Seman’s account is accurate, it fails to include the 20 to 30 employees of MV Transportation,
who are contracted to work solely for MMVTA. (Stache Aff. §§ 12-14.)* Plaintiff contends in
her affidavit that:
_ a. MMVTA controls when, where and how the workers perform the job.
Defendant controls the scope and nature of the work of MV
Transportation, and MV Transportation cannot act independently of
MMVTA.
b. MMVTA owns the buses for the workers. MMVTA also owns the
building where the drivers report to work, where the buses are kept and
maintained, and where maintenance is performed.
c. The driving, maintenance and repair work are performed for
MMVTA’s buses and bus routes.
d. There is a continuing relationship between MMVTA and workers.
e. MMVTA controls the bus schedule and routes and has the right to
assign additional work.
f. MMVTA sets the hours of work and the duration of the job.
g. MV Transportation pays the salaries of the workers from the money
paid by MMVTA to MV Transportation.
3 ECF No. 13 Ex. 1.
4 ECF No.18.
h. The work performed by each worker is part of the regular business of
MMVTA.
i. The workers are not engaged in their own separate and distinct
business.
Ud. 4 15.)
Significantly, however, although Plaintiff states in her affidavit that her statements are
based upon her personal knowledge, she does not identify how she is competent to make these
statements and does not provide any factual basis for her personal knowledge. At oral argument,
Plaintiffs counsel conceded that Plaintiff did not provide factual support for her statements. See
Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be
made on personal knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated.”’).
The Darden case sets forth a multiple factor common law agency test to determine if
individuals are “employees” when a statute does not define the term. The factors are:
(1) the hiring party’s right to control the manner and means by which the
product is accomplished;
(2) the skill required;
(3) the source of the instrumentalities and tools;
(4) the location of the work;
(5) the duration of the relationship between the parties;
(6) whether the hiring party has the right to assign additional projects to
the hired party;
(7) the extent of the hired party’s discretion over when and how long to
work;
(8) the method of payment;
(9) the hired party’s role in hiring and paying assistants:
(10) whether the work is part of the regular business of the hiring party;
(11) whether the hiring party is in business;
(12) the provision of employee benefits; and
(13) the tax treatment of the hired party.
503 U.S. at 323-24 (citation omitted).
Applying the relevant factors to the undisputed facts in this case demonstrates that MT
Transportation’s workers are not employees of MMVTA. In a second affidavit filed in
connection with MMVTA’s sur-reply brief, Ms. Seman states, among other things, that: 1) in its
contract with MMVTA, MV Transportation agreed to provide management and supervision,
undertake day-to-day operations of all MMVTA vehicles, employ and supervise all personnel,
administer training, drug and alcohol testing and safety programs, undertake all required
maintenance, process all warranty claims, assist in public relations and promotions, prepare
reports and provide information, provide and manage uniforms, and provide all equipment, parts
and supplies; 2) the contract specifically provides that MV Transportation is an independent
contractor and not an agent or servant of MMVTA; 3) MV Transportation handles all hiring and
firing decisions, as well as the work hours of its employees; 4) MMVTA does not maintain
workers? compensation insurance for MV Transportation employees; 5) MV Transportation
leases all property from MMVTA and is responsible for any damage to it; and 6) MV
Transportation is required to provide a significant amount of instrumentalities and tools that its
employees need. (Seman Aff. II 6, 8, 14, 16-18, 20-29, 40 & Ex. A).
In addition, MMVTA provided the affidavit of MV Transportation’s District Manager for
Western Pennsylvania and Ohio, Marc Roncone. Based upon his personal knowledge and his
review of certain contracts, Mr. Roncone avers that MV Transportation is a privately-owned
transportation company that contracts with a number of entities to provide transportation
services, including MMVTA. (Roncone Aff. §§ 3-6.)° Most of the employees of MV
Transportation belong to a union and the collective bargaining agreement is between the union
and MV Transportation, MMVTA is not a party to the CBA. (Roncone Aff. 42-45.) Mr.
Roncone also corroborates the testimony of Ms. Seman regarding the relationship between the
parties, the operations of MV Transportation and its role vis-a-vis its workers. Ud. {§ 8-54.)
Plaintiff's affidavit does not create material issues of fact regarding the number of
individuals employed by MMVTA. Some of the facts she cites are not relevant to the factors that
the Court must consider in this regard (for example: MMVTA owns the buses; MV
Transportation pays its workers with money paid to it by MMVTA; driving, maintenance and
repair work “are performed” for MMVTA’s buses and routes). With respect to other statements
in her affidavit that may be relevant to this inquiry, Plaintiff has failed to demonstrate how, or if,
she was in a position as the office secretary to possess the requisite knowledge about the
relationship between MMVTA and MV Transportation.
By contrast, the affidavits of Ms. Seman, MMVTA’s Executive Director, and Mr.
Roncone, the District Manager of MV Transportation, are based in large measure on the actual
terms of the contract between the entities. The contract clearly and unambiguously defines the
parties’ respective roles and responsibilities. Because Plaintiff has made no showing that these
terms were revised, abrogated or otherwise not being followed, the contract and related facts in
the affidavits submitted by MMVTA are dispositive here.
> ECF No. 29 Ex. 1.
Based upon its review of all of the evidence submitted by the parties, the Court concludes
that no genuine issues of material fact exist regarding the number of employees of MMVTA.
Plaintiff's attempt to portray the personnel of MV Transportation as MMVTA’s employees is
unavailing. Rather, applying the Darden factors compels the conclusion that the employees of
MV Transportation are not employees of MMVTA as a matter of law. Not only does the contract
between MMVTA and MV Transportation so state, but in addition, MV Transportation, a
privately-owned company, employs, pays, supervises, disciplines and fires these employees,
makes all hiring and firing decisions, oversees the daily operations of all MMVTA vehicles and
provides uniforms, equipment, parts and supplies. MV Transportation leases all property from
MMVTA. MV Transportation, not MMVTA, provides workers’ compensation insurance for MV
Transportation workers. Many of these workers are members of a union which has entered into a
collective bargaining agreement with MV Transportation, not MMVTA. Simply put, the
personnel who perform work for MV Transportation are its employees.
Because the employees of MV Transportation are not employees of MMVTA, MMVTA
did not have more than fifteen employees during the relevant time period. Therefore, it is not a
covered employer under the ADA. As such, Plaintiff cannot maintain an ADA claim against
MMVTA, and MMVTA is entitled to judgment as a matter of law with respect to Count II.°
6 In her Complaint and in some of her briefs, Plaintiff notes that MMVTA’s Personnel Policy
and Procedures manual explicitly states that its employees are protected by anti-discrimination
statutes such as the ADA and ADEA. In her affidavit, she states that she was also informed
orally that MMVTA was a covered employer. Therefore, she suggests, MMVTA is obligated to
comply with these statutes. (Compl. §§ 9-12 & Ex. 1; ECF No. 12 at 2 & Ex. 1; ECF No. 18
{4 2-5.) However, she cites no authority in support of this argument and as noted above, Plaintiff
has withdrawn her breach of contract claim. At the oral argument, Plaintiff's counsel conceded
that the contents of an employee handbook cannot be given greater weight than the provisions of
the ADA for purposes of who is a covered employer.
10
Hil. Conclusion
For all of these reasons, Plaintiff's request to amend the Complaint to withdraw Count |
will be granted and MMVTA’s partial motion for summary judgment as to Count III will be
granted. An appropriate order follows. .
Dated: March 26, 2020 BY THE COURT:
PATRICIA EY DODGE
United States Magistrate Judge
11