KOWAL v. FERNDALE AREA SCHOOL DISTRICT

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOHN KOWAL, ) Case No. 3:18-cv-181

)

Plaintiff, ) JUDGE KIM R. GIBSON

)

v. )

)

FERNDALE AREA SCHOOL DISTRICT __)

and FERNDALE AREA SCHOOL )

DISTRICT BOARD OF EDUCATION, )

)

)

Defendants. )

MEMORANDUM OPINION

I. Introduction

This case arises from Defendants Ferndale Area School District (“School District”) and

Ferndale Area School District Board of Education’s (“School Board” or “Board”) (collectively

“Ferndale” or “Defendants”) alleged acts of retaliation against Plaintiff John Kowal (“Kowal”) in

violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and the

Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 951 et seq. Pending before the Court is

Defendants’ Motion for Summary Judgment. (ECF No. 45). The Motion is fully briefed (ECF Nos.

47, 55) and ripe for disposition. For the reasons that follow, the Court GRANTS Defendants’

Motion for Summary Judgment.

II. Jurisdiction and Venue

This Court has subject-matter jurisdiction because Plaintiff's ADEA claim arises under

federal law. 28 U.S.C. § 1331. The Court has supplemental jurisdiction over Plaintiff's PHRA

claim because it forms part of the same case or controversy as his ADEA claim. 28 U.S.C. § 1367.

Venue is proper because a substantial portion of the events giving rise to Plaintiff's claims

occurred in the Western District of Pennsylvania. 28 U.S.C. § 1391.

IiI. Factual Background

The following facts are undisputed unless otherwise noted.’

A. Introduction

Mr. John Kowal was employed as a business manager by Ferndale from 1987 until his

retirement on September 12, 2017. (ECF No. 46 at I 1-2). As a business manager, Kowal was

responsible for all financial aspects of the School District including financial reporting,

accounting, payroll, accounts payable, insurance (including health insurance), all components of

the Administrator/Supervisor Compensation package, and retirement benefits. (Id. at 1] 3-4).

B. Sick Leave Incentive Upon Retirement

While employed by Ferndale, Kowal received contractual benefits tied to an Act 93

Agreement. (Id. at [1 6-9; ECF No. 46-2 at Exhibits D-6, D-7). During the relevant time period in

this case, Kowal’s Act 93 Agreement permitted Act 93-covered individuals to apply unused

accumulated sick days towards health care coverage in retirement through a program called the

Leave Upon Retirement Incentive (“Sick Leave Incentive Program”). (ECF Nos. 46 at □□ 15;

59 at J 15; 46-2 at Exhibit D-6). To be eligible to participate in the Sick Leave Incentive Program,

1 The Court derives these facts from a combination of Defendants’ Concise Statement of Undisputed

Material Facts in Support of Defendants’ Motion for Summary Judgment (ECF No. 46), Plaintiff's Response

to Concise Statement of Undisputed Material Facts in Opposition to Defendant’s Motion for Summary

Judgment (ECF No. 59), Defendants’ Reply to Plaintiff's Response to Concise Statement of Undisputed

Material Facts in Support of Defendants’ Motion for Summary Judgment (ECF No. 60), and Plaintiff's

Second Amended Complaint (ECF No. 26).

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an Act 93-covered individual was required to meet several criteria.2 (ECF No, 46-2 at Exhibit D-

6). If an employee was qualified to participate in the Sick Leave Incentive Program by meeting

the criteria listed within the Act 93 Agreement, the employee was then permitted to choose one

of several options when applying their unused accumulated sick days towards their health care

coverage in retirement. (Id.).

2 In its entirety, the Sick Leave Incentive provides that “an employee shall be eligible for ‘Sick Leave

Incentive Upon Retirement’ if and only if: (i) the employee shall submit his/her resignation for purposes of

retirement to the Superintendent prior to January 15 of the year in which he/she elects to retire; (ii) the

retirement shall be effective subsequent to the last school day of the year and prior to August 15 of the year

of retirement; (iii) the employee shall have a minimum of 15 years of service as a professional employee

under the provisions of the Pennsylvania School Employees Retirement System and have attained the age

of 51 as of retirement; (iv) the employee shall have provided, as a professional employee of ‘DISTRICT’, at

least 8 years of service; (v) the retirement shall occur before the employee attains the age of eligibility for

Medicare; (vi) the employee shall not (except for ‘Restoration of Health Sabbatical’ have taken a

Compensated Leave at any time within the 6 fiscal years (July 1 — June 30) immediately preceding the fiscal

year during which retirement occurs.” (ECF No. 46-2 at D-6).

3 The options available to qualifying employees included: “(i) 1 year of health care coverage (exclusive of

Dental Insurance) as provided for in the contract in effect for the year of coverage (as of the date hereof, the

coverage provided in Article IX, Section A) for the employee and his/her dependents for each 45 days of

unused accumulated sick leave as of the ‘effective date’ of retirement, with any block of days not equal to

45 to be pro-rated to provide a portion of the coverage in the final year (i.e., 110 unused days shall result in

two years of complete coverage, and ‘DISTRICT’ being obligated for 44% of the 3" year premium); (ii) 1

year of health care coverage (exclusive of Dental Insurance) as provided for in the contract in effect for the

year of coverage (as of the date hereof, the coverage provided in Article IX, Section A) for the employee

only for each 20 days of unused accumulated sick leave as of the ‘effective date’ of retirement, with any

block of days not equal to 20 to be pro-rated to provide a portion of the coverage in the final year (i.e. □□ 110

days shall result in five years of complete coverage, and ‘DISTRICT’ being obligated for 50% percent [sic]

of the 5" year premium); (iii) ‘DISTRICT’ being responsible for the percentage of health care coverage

premiums (exclusive of Dental Insurance) as provided for in the contract in effect for the year of coverage

(as of the date hereof, the coverage provided in Article IX, Section A) for the employee until the earlier of

his/her demise, attainment of age 65, or eligibility for Medicare, determined as set forth below, to a

maximum ‘DISTRICT’ liability of $2,000 per annum. The percentage of annual premium to be paid by the

‘DISTRICT’ shall be determined by dividing the number of unused accumulated sick days as of the

‘effective date’ of retirement by the total number of sick days earned by the employee while employed by

‘DISTRICT’ or its predecessors (i.e. — (200) total sick days earned while employed by Ferndale/Dale and

‘District’, 120 days of unused accumulated sick days as of ‘effective date’ of retirement, results in 60%

premium payment); (iv) Payment by ‘DISTRICT’ to employee’, on or before October 15 of each year, of the

amount ‘DISTRICT’ would have been required to pay as health care coverage premium for employee had

‘employee elected option (iii); (v) Payment by the District to employee of $115 for each sick day not used

for the above.” (ECF No. 46-2 at D-6).

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C. Ferndale’s Health Insurance Plan

Ferndale is part of a self-funded consortium of school districts for healthcare, the Greater

Johnstown Health Consortium (“Consortium”), with Ferndale paying its bills out of its own

funds. (ECF No. 46 at 1 33). Ferndale employs the Reschini Group, a healthcare broker, to act as

an intermediary between the Consortium and Highmark, the Consortium’s insurance provider.

(Id. at | 34). As part of its healthcare coverage, the Consortium maintains a stop loss insurance

policy to protect school districts from paying high claims caused by an individual incurring

medical expenses that exceed a $250,000 or $300,000 threshold (“Catastrophic Claim Threshold”).

(Id. at 52). The premium for the stop loss insurance policy is built into the premium that all ten

Consortium school districts pay, and each school district pays its claims out of the School

District’s own funds. (Id. at 1] 53-54). The stop loss insurance policy covers claims from active,

currently employed members over the age of 65 enrolled in Ferndale’s healthcare coverage. (Id.

at 55). The stop loss insurance policy does not cover claims for inactive, currently unemployed

members over the age of 65 enrolled in Ferndale’s healthcare coverage. (Id. at J 56).

D. Kowal’s Post-Retirement Healthcare Benefit Discussions with Ferndale

At the time of his retirement on September 12, 2017, Kowal was 66 years old (Id. at J 21),

had been enrolled in Medicare for over a year (ECF No. 59 at {| 41), and had accumulated 353.5

unused sick days (ECF Nos. 46 at J 143; 59 at J 143). On September 14, 2017,5 Kowal, Ferndale

4 Kowal disputes that the stop loss insurance policy does not cover inactive members over the age of 65

who are enrolled in Ferndale’s healthcare coverage. (ECF No. 59 at J 56).

5 Kowal disputes the date of the meeting held at Asiago’s Restaurant in Johnstown, Pennsylvania, claiming

the meeting occurred on September 20, 2017 (ECF No. 59 at {| 88). Although the date of the meeting is

immaterial, the Court will use the September 14, 2017 meeting date provided in the Affidavit of Greg

Sanford. (ECF No. 46-7 at {[ 8).

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Business Manager David Gates (“Gates”), Superintendent Carole Kakabar (“Kakabar”), and.

Reschini Group account executive Greg Sanford (“Sanford”) met at Asiago’s Restaurant in

Johnstown, Pennsylvania, to discuss post-retirement healthcare coverage and Medicare. (ECF No.

46 at TT 88-91). At this meeting, Ferndale contends they informed Kowal that, consistent with

the Act 93 Agreement, he was ineligible to receive Ferndale-provided post-retirement healthcare

coverage because he was over 65 years old and eligible for Medicare on the date he retired. (Id.).

Kowal contends that the Act 93 Agreement was not discussed at this meeting. (ECF No. 59 at II

89). Rather, Kowal claims he was only informed of the penalties associated with late enrollment

in Medicare. (Id.).

At a subsequent meeting, on October 31, 2017, Kowal met with Gates and Kakabar at

which time he was informed that he was not eligible for the Sick Leave Incentive Program and

Ferndale-provided post-retirement healthcare coverage. (ECF No. 46 at {ff 92-93). During that

meeting, Gates and Kakabar discussed the estimated value of Kowal’s unused sick days, personal

days, and vacation days and offered him $52,000 in cash for the value of his unused days. (Id. at

q 94; ECF No. 46-3 at 14:7-25; 15:1-2). Kowal, Kakabar, and Gates also discussed Kowal’s separate

health reimbursement account (“HRA”) which was active within Ferndale’s health insurance

group. (ECF Nos. 46 at {1 97; 59-2 at Exhibit 17). Kowal, Kakabar, and Gates left the meeting

without any resolution with respect to how Kowal wanted to handle his unused vacation,

personal, and sick days.

Another meeting was held on November 6, 2017, between Kowal, Kakabar, Gates and

Ferndale’s then-Solicitor James Walsh (“Walsh”) where Walsh informed Kowal that that he was

not eligible for the Sick Leave Incentive Program and Ferndale-provided post-retirement

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healthcare coverage. (ECF No. at TT 100-101). Walsh reviewed the Act 93 Agreement with Kowal

at this meeting and asked if Kowal and his wife would submit to a health audit to determine their

risk assessment towards catastrophic illness. (Id. [{] 102-103). Kowal refused to submit to the

health audit. (id. J 104).

Following that meeting, on November 15, 2017, the School Board held an executive session

School Board meeting in which it authorized Kakabar to work towards an agreement with Kowal

to provide an alternative, equivalent healthcare package in light of his years of service to

Ferndale. (Id. { 105). Kowal contends that following this School Board meeting, Kakabar called

him and told him that the Board had agreed he was entitled to 7.85 years of coverage, and that

she was calling to ask him his preferences for his benefit package. (ECF No. 59 at □□ 105). Kowal

indicated to Kakabar that he would like to continue with his current coverage.® (Id.). Kakabar

informed Kowal that he should expect a memorandum of understanding (“MOU”) confirming

his request to continue with his present coverage from Walsh once she had contacted him about

Kowal’s healthcare coverage choice. (Id.).

At another School Board meeting held on December 6, 2017, the Board approved a waiver

of “the Act 93 Agreement, Sick Leave Incentive Upon Retirement, for the retirement benefit of

6 Ferndale contends that, prior to Kowal’s retirement, he instructed payroll clerk Brenda Rhodes (“Rhodes”)

to process a healthcare insurance spreadsheet containing post-retirement healthcare coverage for himself

and his wife through March 2025. (ECF No. 46 at 138-43). Rhodes processed the paperwork as requested

and Kowal and his wife received continuing coverage from Ferndale following his retirement. (Id.).

Ferndale also contends that Kowal knew Ferndale did not permit inactive, unemployed members over the

age of 65 to be part of its Ferndale-provided healthcare coverage. (Id. at { 48). Kowal contends that the

spreadsheet he handed to Rhodes contained a list of Ferndale-provided HRA coverage, not healthcare

coverage. (ECF No. 59 at J 42). Regardless of the contents of the spreadsheet, both parties agree that Kowal

was receiving post-retirement healthcare coverage from Ferndale after he retired on September 12, 2017.

(ECF Nos. 46 at J 44; 59 at {| 105).

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John Kowal,” stating that “[a]pproval is subject to Kowal accepting in writing the retirement

healthcare terms offered, by December 20, 2017.” (ECF No. 46-3 at Exhibit 2). Early that next

morning, on December 7, 2017, Kakabar emailed Kowal a healthcare option authorized by the

School Board which would establish a Health Reimbursement Arrangement (“HRA Proposal”)

for Kowal and his spouse. (ECF No. 46-2 at Exhibit D-9), In that email, Kakabar informed Kowal

that she or Gates would need to be notified by Kowal, in writing, by December 20, 2017, whether

he accepted the HRA Proposal offered in the email. (Id.). Kakabar’s email also informed Kowal

that he would be removed from his “current district-provided Qualified High Deductible

Healthcare Plan at day’s end December 31, 2017.” (Id.).

Kowal replied to Kakabar’s email on December 11, 2017, requesting additions and/or

revisions to the HRA Proposal. (Id. at Exhibit D-10). Kakabar responded on December 13, 2017,

indicating that changes had been made to the HRA Proposal based on Kowal’s comments. (Id. at

Exhibit D-11). Kakabar reminded Kowal that he had until December 20, 2017, to accept the HRA

Proposal and that he would be removed from his current health plan on December 31, 2017. (Id.).

Kowal responded to Kakabar on December 15, 2017, stating he had two remaining concerns left

with respect to the HRA Proposal. (ECF No. 46-12 at 2). Kakabar responded on December 18,

2017, indicating final revisions had been made to the HRA Proposal and reminded Kowal of both

the deadline of acceptance and the date he would be dropped from his health plan. (Id. at 3). That

same day, Kowal contacted the EEOC and filed a Charge of Discrimination against Ferndale

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alleging they had violated the ADEA.’ (ECF Nos. 26 at [ 28; 6-2). Kowal dual-filed his charge

with the Pennsylvania Human Relations Commission (“PHRC”). (ECF No. 26 at { 29).

On December 19, 2017, Kowal emailed Kakabar and formally requested that the December

20, 2017 deadline to accept the HRA Proposal be set aside. (ECF No. 46-13). Kowal gave two

reasons for his request: (1) Kowal wanted to address the Board at its scheduled January 17, 2018

meeting, and (2) Kowal had an initial interview scheduled with the EEOC to determine if

Ferndale had violated the ADEA. (Id.). In that same email, Kowal indicated his preference to

discuss the matter before an “open meeting” of the School Board. (Id.). From December 20, 2017,

to March 2018, Kowal did not communicate any additional terms he wanted incorporated into

Ferndale’s HRA Proposal, nor did he raise concerns that Ferndale had not incorporated the

changes he requested in the HRA Proposal. (ECF Nos. 46 at J 141; 59 at { 141).

E. Ferndale Extends the HRA Proposal Acceptance Deadline and Continues

Kowal’s Healthcare Coverage into 2018

Following Kowal’s requests for a deadline extension and to meet with the School Board,

Kakabar emailed Kowal on December 27, 2017, informing him that his current Ferndale-provided

healthcare plan would be extended into 2018 until Ferndale could get legal advice. (ECF No. 46-

14). On January 16, 2018, Kakabar notified Kowal by correspondence that the deadline to accept

7 Kowal alleges that he filed a Charge of Discrimination with the EEOC on December 18, 2017. (ECF No. 26

at 27-29). However, other than mere assertions, Kowal has not presented any evidence that he filed his

Charge of Discrimination on December 18, 2017. The earliest record evidence produced by Kowal of his

protected activity with the EEOC is dated and time-stamped February 16, 2018. (ECF No. 6-2), Further,

Kowal has not produced any record evidence of when he filed his second EEOC Complaint—which he

alleges he filed on June 18, 2018 (ECF No. 26 at 1 43). Ferndale accepts Kowal’s assertions that he filed a

Charge of Discrimination on December 18, 2017, but this Court notes that no documentation of such

protected activity on December 18, 2017, has been produced. (Id. at 27-29). For the purposes of this

memorandum opinion, the Court will analyze Kowal’s retaliation claims as if he did engage in protected

activity with the EEOC on December 18, 2017.

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or reject the HRA Proposal was temporarily postponed. (ECF No. 46-3 at Exhibit 4). In that same

correspondence, Kakabar told Kowal that his request to address the Board in “open/executive

session”® was declined by the School Board. (Id.). Kakabar stated that “while Section 708 of the

Sunshine Law? would permit the Board to meet with [him], the Board [was] respectfully declining

that offer,” giving several reasons to justify their decision. (Id.). Specifically, Kakabar cited four

reasons the School Board was declining to meet with Kowal including: (1) Kowal had placed

himself on Ferndale’s insurance without having spoken with Kakabar or Walsh before retiring,

(2) Kowal was instituting legal proceedings against Ferndale, (3) Kowal indicated he had an initial

8 The Court notes that there is confusion among the parties with respect to the type of meeting Kowal

requested from Ferndale when he requested an “open meeting” with the Board. (ECF No. 46-13). In his

December 19, 2017 email, Kowal requested an “open meeting” with the Board after quoting Section

708(a)(1) of the Pennsylvania Sunshine Act. (Id.). Ferndale appears to have interpreted Kowal’s request as

a demand to meet with the Board in executive session, or, at the very least, an “open/executive session.”

(ECE No. 46-3 at Exhibit 4). It appears to the Court that Kowal was citing Section 708 of the Pennsylvania

Sunshine Act as a basis for requesting that further discussions of his retirement benefits be removed from

the School Board’s executive sessions and discussed only in a publicly held or “open” School Board

meeting. The Court will analyze Kowal’s “open meeting” request as a request to discuss his retirement

benefits in a publicly held or “open” School Board meeting.

° In relevant part, Section 708 of the Pennsylvania Sunshine Act states:

(a) Purpose.--An agency may hold an executive session for one or more of the following reasons:

(1) To discuss any matter involving the employment, appointment, termination of

employment, terms and conditions of employment, evaluation of performance,

promotion or disciplining of any specific prospective public officer or employee or

current public officer or employee employed or appointed by the agency, or former

public officer or employee, provided, however, that the individual employees or appointees

whose rights could be adversely affected may request, in writing, that the matter or matters be

discussed at an open meeting. The agency's decision to discuss such matters in executive

session shall not serve to adversely affect the due process rights granted by law,

including those granted by Title 2 (relating to administrative law and procedure), The

provisions of this paragraph shall not apply to any meeting involving the appointment

or selection of any person to fill a vacancy in any elected office. 65 Pa.C.5. § 708(a)(1)

(emphasis added).

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interview with the EEOC to determine if other fair employment laws had been violated, and (4)

Kowal informed Ferndale it may be necessary for Ferndale to secure an attorney. (Id.).

A few days later, on January 19, 2018, Kakabar again notified Kowal by correspondence

that he was not eligible for Ferndale-provided post-retirement healthcare coverage because he

was an Act 93 covered employee. (ECF No. 46-3 at Exhibit 5). In that same correspondence,

Kakabar informed Kowal that he had until February 15, 2018, to decide whether to accept the

HRA Proposal. (Id.). If Kowal did not accept the HRA Proposal by the deadline, Kakabar stated

that Ferndale would take the necessary steps to remove Kowal from Ferndale’s coverage,

reconcile Kowal’s remaining sick days, and pay the balance out to Kowal. (Id.). Lastly, Kakabar

stated that Ferndale was providing Kowal until February 15, 2018 to give him an opportunity to

consult with counsel, or with the EEOC. (Id.).

On February 13, 2018, Kowal emailed Kakabar stating that he had completed the EEOC

initial interview process and informed Kakabar that the EEOC would be contacting her within 10

to 60 days. (ECF No. 46-15 at 2). Kowal did not accept or respond to Ferndale’s HRA Proposal

by the deadline of February 15, 2018. (ECF Nos. 46 at J 133; 59 at 133). On February 27, 2018,

Kowal was notified by Kakabar that his healthcare coverage would be terminated on February

28, 2018 (ECF No. 46-3 at Exhibit D-2). The following day, on February 28, 2018, Kowal emailed

Gates and Kakabar informing them that (1) he had completed his EEOC interview process, (2) he

had completed his Charge of Discrimination Form and returned it to the EEOC and (3) consistent

with EEOC advice, he had dual-filed his complaint with both the EEOC and PHRA. (ECF Nos.

46-17 at 2; 6-2). Kowal also reiterated a point made in his December 19, 2017 email to Kakabar in

which he stated “it would not be appropriate for me to jeopardize any rights I may have under

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the EEOC as well as the ADEA and any other laws by making any decision, including any

proposed ‘payout’ demands, until the EEOC had completed its investigation of his complaint.”

(ECF No. 46-17 at 2). Kowal further stated he would evaluate his options after the EEOC

investigation was completed. (Id.).

F. Ferndale Cashes Out Kowal’s Unused Sick Days

Following the expiration of Ferndale’s HRA Proposal deadline, Ferndale began the

process of cashing out Kowal’s unused accumulated sick days. To cover the costs of Kowal’s

Ferndale-provided healthcare coverage following his retirement, Kowal was charged 3.75 unused

sick days per month from October 2017 to February 28, 2018 for a total of 18.75 sick days. (ECF

No. 46-2 at Exhibit D-12), In a letter dated March 5, 2018, Kakabar informed Kowal that Ferndale

was paying him $38,496.25 for his remaining 334.75 unused sick days at a rate of $115 per day.

(ECF No. 46-3 at Exhibit D-12). In that same letter, Kakabar also informed Kowal that with the

appropriate payroll deductions withheld, Ferndale was issuing him a check for his unused

accumulated sick days totaling $22,213.71. (ECF No. 46-18). Lastly, Kakabar notified Kowal that

Ferndale had received his Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”)

Continuation Coverage Election Form, but Ferndale would not accept or otherwise charge 3.75

days of Kowal’s unused sick days as payment for the coverage as he requested. (Id.). Rather,

Kowal would have to submit payment of $1,485.33 for continued “husband and wife” coverage.

(Id.).

On March 22, 2018, Kowal sent Kakabar and Gates an email notifying them that EEOC

had completed its investigation and issued a Right to Sue Letter. (ECF No. 46-19). In that same

email, Kowal informed Kakabar and Gates that he and his wife had decided to accept the Board’s

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HRA Proposal. (Id.). Kakabar responded that she would contact her legal counsel and respond

to Kowal as soon as possible. (Id.).

A week later, on March 29, 2018, Kakabar sent an email to the School Board following up

ona discussion which had occured at its March 28, 2018 School Board Meeting in which the Board

discussed Kowal’s email and request to accept the HRA Proposal. (ECF No. 59-3 at Exhibit 40).

Kakabar gave the Board Members two options: (1) reinstate the HRA Proposal minus the five

months for healthcare coverage Kowal received after he retired (Kakabar also proposed having

Kowal pay Ferndale’s attorney’s fees and sign a document preventing Kowal from bringing suit

with respect to unused sick days) or (2) pay Kowal the cash value of his remaining sick days. (Id.).

The Board ultimately decided they would not reinstate the HRA Proposal. (ECF No. 46 at 155).

Kakabar notified Kowal by correspondence on April 19, 2018, that the School Board would not

be reinstating the HRA Proposal. (ECF No. 46-18). In that same letter, the Kakabar included a

$22,213.71 check for the remaining value of Kowal’s sick days, minus payroll deductions and the

cost of his health insurance from October 2017 to February 2018. (ECF No. 46-18).

G. Kowal Requests to Speak to the School Board Again

Between January 2018 and April 2018, Kowal did not attend a public School Board

meeting, nor did he sign up to speak at any public comment portion of any public School Board

meetings held between January 2018 and April 2018. (ECF No. 46 at [J] 160-161).

On April 28, 2018, Kowal emailed School Board President Sandi Chobany (“Chobany”)

requesting that she facilitate sending a letter to the email addresses of all the members of the

School Board. (Id. at [| 162). The letter Kowal requested Chobany share with the School Board

reiterated his stance that he was wrongfully denied his post-retirement healthcare benefits and

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repeated his request to meet with the Board. (ECF No. 46-21). Chobany responded on May 3,

2018, indicating that she did not feel it was her place to provide Kowal the email addresses of the

members of the School Board. (Id. at 8). Further, Chobany informed Kowal that the Board would

discuss his request to meet at their May 9, 2018, monthly Board Meeting, and a response to his

request would be provided thereafter. (Id.). Around the same time Kowal asked to meet with the

School Board and have his letter shared with members of the School Board, Kowal also requested

to meet with Kakabar to discuss the HRA Proposal. (Id.).

Following the May 19, 2018, School Board meeting, Kakabar emailed Kowal informing

him that the Board had discussed both his request to meet with the Board as well as his request

to meet with Kakabar. (ECF No. 59 at 164). In that email, Kakabar notified Kowal that neither

she nor the Board would meet with Kowal. (Id.), Further, Kakabar stated that the Board was not

interested in exploring any type of retirement incentive that included paid health coverage. (Id.).

Finally, Kowal was instructed that all future communication to “the District, Board Members,

Superintendent, Business Manager, or any other school official should be sent to” Ferndale’s

attorney of record. (Id.). Kowal then filed his second Charge of Discrimination with the EEOC

and PHRC on June 18, 2018. (ECF No. 26 at {J 43-44).

IV. Procedural Background

On September 14, 2018, Kowal filed his Complaint bringing three claims against Ferndale:

Discrimination in Violation of the ADEA (Count I), Discrimination in Violation of the PHRA

(Count II), Breach of Contract (Count II). (ECF No. 1). On November 19, 2018, Ferndale filed a

Motion to Dismiss Pursuant to F.R.C.P. 12(B)(6) with an accompanying brief in support. (ECF

Nos. 6, 7). Kowal responded with a Brief in Opposition on December 11, 2018, (ECF No. 9), and

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this Court entered a Memorandum Order on January 3, 2019 dismissing Counts II and III of

Kowal’s complaint without prejudice. (ECF No. 13).

Kowal then filed a First Amended Complaint on January 30, 2019, bringing two claims

against Ferndale: Discrimination in Violation of the ADEA (Count I) and Wage Payment

Collection Law (Count II). (ECF No. 16). Ferndale filed a Motion to Dismiss and accompanying

brief in support (ECF No. 18, 19). On March 25, 2019, this Court entered a Memorandum Opinion

and Order dismissing Count II of Kowal’s Amended Complaint with prejudice. (ECF No. 22).

On April 4, 2019, Kowal filed a Second Amended Complaint bringing two claims against

Ferndale: Discrimination Violation of the ADEA (Count I) and Retaliation in Violation of the

PHRA (Count II). (ECF No. 26). Ferndale answered Kowal’s Second Amended Complaint on

April 24, 2019. (ECF No. 29). Ferndale moved for summary judgment on March 22, 2021. (ECF

No. 43). Kowal responded in opposition on June 1, 2021 (ECF No. 55) and Ferndale replied on

June 21, 2021 (ECF No. 60).

V. Legal Standard

This Court will grant summary judgment “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 “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); 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

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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 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”).

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VI. Discussion

Kowal alleges claims of retaliation against Ferndale under both the ADEA and PHRA.”

Kowal asserts that Ferndale retaliated against him because he filed a Charge of Discrimination

with the EEOC. (ECF No. 26 at 11). The ADEA makes it unlawful for an employer to discriminate

against an employee who has made a charge of discrimination against their employer under the

ADEA. 29 U.S.C. § 623(d).

It is undisputed that during the period of time relevant to this case, Defendant was an

“employer” subject to the ADEA’s provisions. 29 U.S.C. § 630(b). Further, neither party disputes

Kowal was an “employee” or “individual” entitled to statutory protection from retaliatory

discrimination under the ADEA. (ECF Nos. 47,55). 29 U.S.C. § 630(f). See Erie Cnty. Retirees Ass’n

v. Cnty. Of Erie, 220 F.3d 193, 209-210 (3d Cir. 2000) (citing Robinson v. Shell Oil Co., 519 U.S. 337,

341-345 (1997)).

Since this is a retaliation case in which Kowal has presented no “direct evidence” of

retaliation, the Supreme Court’s framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), provide the

formulation for allocating the requisite burdens of proof and production for purposes of the

instant motion for summary judgment." In a retaliation case of this kind, the plaintiff must first

0 Courts analyze claims under ADEA and PHRA in the same manner. See Kelly v. Drexel University, 94 F.3d

102, 105 (3d Cir. 1996). The Court references only the ADEA framework for brevity —if Defendant is entitled

to summary judgment on Plaintiffs ADEA claim, it is likewise entitled to summary judgment on Plaintiff's

PHRA claims.

1 The McDonnell Douglas-Burdine burden-shifting framework does not apply in an employment

discrimination case in which a plaintiff presents “direct evidence” of discrimination. Swierkiewicz v. Sorema

N.A., 534 U.S. 506, 511 (2002). “Direct evidence” of discrimination is evidence that is “so revealing of

discriminatory animus that it is not necessary to rely on any presumption” from the plaintiff's prima facie

case to shift the applicable burden of production to the defendant. Starceski v. Westinghouse Electric Corp.,

-16-

establish a prima facie case of illegal retaliation. McDonnell Douglas, 411 U.S. at 802. If the plaintiff

establishes a prima facie case of retaliation, the defendant must articulate legitimate, non-

discriminatory reasons for treating the plaintiff in an adverse manner. Id. at 802-03. If the

defendant articulates legitimate, non-discriminatory reasons for the plaintiffs adverse treatment,

the plaintiff must demonstrate that the reasons given by the defendant for such treatment are

merely a pretext for unlawful retaliation. Id. at 804-05.

a. Kowal Cannot Show that Ferndale Retaliated Against Him for Engaging in

Protected Activity

1. The Parties’ Arguments

Ferndale argues it did not retaliate against Kowal for engaging in protected activity. First,

Ferndale contends that Kowal cannot establish a prima facie claim of retaliation because (a) he

cannot demonstrate that he suffered an adverse action either subsequent to or contemporaneous

to engaging in protected activity, and (b) he cannot establish that there was a causal connection

between the protected activity he engaged in and the alleged adverse actions taken by Ferndale.

(ECF No. 47 at 4).

More specifically, Ferndale argues Kowal cannot establish that he suffered an adverse

action because (i) he was not entitled to post-retirement healthcare coverage under the Act 93

Agreement, (ii) Ferndale provided Kowal with fair compensation for his unused accumulated

sick days, and (iii) Ferndale did not prevent Kowal from addressing the School Board in violation

of Pennsylvania’s Sunshine Act. (ECF No. 47 at 9-15). Further, Ferndale contends Kowal cannot

establish there was a causal connection between the protected activity he engaged in and the

54 F.3d 1089, 1096 n.4 (3d Cir. 1995). The evidence presented in this case does not constitute “direct

evidence” of discrimination.

-17-

alleged adverse actions taken by Ferndale because there is neither an unusually suggestive

temporal proximity between the protected activity Kowal engaged in and Ferndale’s alleged

retaliatory acts, nor is there a pattern of antagonism coupled with the timing to establish a causal

link between Kowal’s activity and Ferndale’s actions. (Id. at 15-25) (citing Lauren W. ex rel. Jean W.

v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)).

Ferndale also asserts that even if Kowal can establish a prima facie case of retaliation,

Ferndale can show it had legitimate, non-discriminatory reasons for taking the actions it did. (ECF

No. 47 at 25). Finally, Ferndale argues Kowal cannot show that the legitimate, non-discriminatory

reasons for Ferndale’s actions were pretextual because Kowal’s protected activity did not

motivate Ferndale to deny Kowal’s requests to speak with the School Board, discontinue

negotiations with respect to its HRA Proposal, or issue a check for Kowal’s unused accumulated

sick days. (Id. at 28-31).

Kowal contends the Ferndale retaliated against him for filing a Charge of Discrimination

with the EEOC (ECF No. 26 at { 1). Kowal argues he can establish a prima facie claim of retaliation

because (a) he suffered an adverse action contemporaneous with and subsequent to his protected

activity of filing a Charge of Discrimination with the EEOC and (b) there is a causal connection

between his protected activity and Ferndale’s adverse actions. (ECF No. 55). Kowal alleges he

experienced adverse actions because (i) Ferndale repeatedly denied him the opportunity to

address the School Board in violation of Pennsylvania’s Sunshine Act, 65 Pa.C.S. § 701 et seq., (ii)

Ferndale stopped negotiations with respect to his post-retirement healthcare coverage, and (iii)

Ferndale unilaterally mailed him a check for the value of his unused accumulated sick days in an

amount significantly less than the amount to which he is entitled. (ECF No. 55). Further, Kowal

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argues there is a causal connection between Ferndale’s adverse actions and his protected activity

because the adverse actions taken by Ferndale and the protected activity Kowal engaged in are

closely linked in time. (Id. at 7).

Finally, Kowal argues he can demonstrate that the legitimate, non-discriminatory reasons

articulated by Ferndale for taking the adverse actions against him are merely pretextual because

there are several emails among Ferndale School Board members articulating their

disappointment, distaste, and animus toward Kowal following his filing of a complaint with the

EEOC. (Id.).

2. Kowal Cannot Establish a Prima Facie Case of Retaliation Under the ADEA

To establish a prima facie case of proscribed retaliation under either the ADEA or the

PHRA, the plaintiff must show that: (1) he engaged in a protected employee activity; (2) he was

subject to adverse action by the employer either subsequent to or contemporaneous with the

protected activity; and (3) that there is a causal connection between the protected activity and the

adverse action. Fasold v. Justice, 409 F.3d 178, 188 (3d. Cir. 2005) (citing Fogleman v. Mercy Hosp.,

Inc., 283 F.3d 561, 567 (3d Cir. 2002).

Here, it is undisputed that Kowal engaged in protected employee activity by filing his

Charge of Discrimination with the EEOC. (ECF No. 47 at 4). Therefore, the Court must only

determine whether (A) Kowal was subject to an adverse action by Ferndale and (B) whether

Kowal has demonstrated a causal connection between filing his EEOC Complaint and the adverse

actions taken by Ferndale.

A. Kowal Was Not Subject to an Adverse Action

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Kowal alleges three adverse actions taken by Ferndale including (i) declining Kowal’s

requests to meet with the School Board, (ii) refusing to continue negotiations with respect to its

HRA Proposal and other post-retirement healthcare coverage, and (iii) unilaterally mailing him

a check for the value of his unused accumulated sick days in an amount significantly less than

the amount to which he is entitled. (ECF No. 26 at [J 32-34, 39-42, 51).

“For an employer's action to satisfy the second prong of a prima facie case of retaliation,

the plaintiff ‘must show that a reasonable employee would have found the challenged action

materially adverse,’ which in this context means it well might have dissuaded a reasonable

worker from making or supporting a charge of discrimination.” Daniels v. School Dist. of

Philadelphia, 776 F.3d 181, 195-196 (3d Cir. 2015) (quoting Burlington N. & Santa Fe Ry. Co. v. White,

548 U.S. 53, 68 (2006). The Court is to analyze the employer's alleged adverse action “from the

perspective of a reasonable person in the plaintiff's position, considering ‘all the circumstances.”

Burlington N. & Santa Fe Ry. Co., 548 U.S. at 71 (quoting Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75, 81 (1998). “[P]etty slights, minor annoyances, and simple lack of good manners”

generally will not suffice. Burlington N. & Santa Fe Ry. Co., 548 U.S. at 71 at 68. However,

“TcJontext matters” such that “an act that would be immaterial in some situations is material in

others.” Id. at 69, (quoting Washington v. Ill. Dep't of Revenue, F.3d 658, 661 (7th

Cir.2005) (internal quotation marks omitted)). The Court will address each of Ferndale’s alleged

adverse actions in turn.

First, Kowal alleges that the School Board took materially adverse action against him by

declining to meet with him. (ECF Nos, 26 at {I 31-35; 46-3 at Exhibit 4; 59 at { 164). Kowal’s

argument hinges on the fact that Kakabar informed him that the School Board was declining to

-20-

meet with him at its scheduled public School Board meeting on January 17, 2018. (ECF No. 46-3

at Exhibit 4). However, despite the School Board declining to meet with Kowal at its scheduled

public meeting on January 17, 2018, nothing in the record indicates that Kowal was prohibited

from attending the January 17, 2018 meeting. (ECF Nos. 46-13; 46-1 at 148: 9-24; 46-1 at 149: 1-24;

46-1 at 151:11-18; 57-2 at 32-33). Nothing in the record indicates Kowal was prevented from

speaking during the public comment period of the January 17, 2018 meeting. (Id.). Furthermore,

nothing in the record indicates that Kowal was prohibited from attending any publicly held

School Board meeting and/or speaking during any public comment period of any publicly held

School Board meeting from the time of his initial meeting request on December 19, 2017, through

April 2018. (Id.). Indeed, even though Kowal specifically asked the School Board to meet in an

“open meeting,” he never attended any publicly held School Board meeting from the time of his

initial meeting request through April 2018. (Id.). No reasonable person in Kowal's position could

view the School Board declining a meeting request as a materially adverse action when any

person, including Kowal, could have attended any publicly held School Board meeting and/or

spoken during any public comment portion of any publicly held School Board meeting.

Burlington N. & Santa Fe Ry. Co., 548 U.S. at 71. Here, the Court finds that the School Board

declining to meet with Kowal does not constitute an adverse action for the purpose of establishing

a prima facie claim of retaliation.

Second, Kowal argues that Ferndale’s refusal to continue negotiations regarding its HRA

Proposal and other post-retirement healthcare benefits constitutes a materially adverse action

against him. (ECF No. 55 at 5-7). As an initial matter, nothing in the factual record indicates that

the HRA Proposal was open for further negotiation following Kakabar’s December 18, 2017 email.

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(ECF No. 46-12 at 3). Following Kakabar’s email stating that “final revisions” had been made to

the HRA Proposal, Kowal did not communicate any additional terms he wanted incorporated

into the HRA Proposal, nor did he raise any concerns with Kakabar that she had failed to

incorporate changes he had previously requested. (ECF Nos. 46 at J 141; 59 at □ 141). Further, in

response to Kowal’s email informing Ferndale of his contact with the EEOC, Ferndale postponed

the expiration date of the HRA Proposal until February 15, 2018. (ECF No. 46-3 at Exhibit 4). Even

after Ferndale extended the HRA Proposal deadline—a deadline set before Kowal engaged in

protected activity Kowal did not accept or respond to Ferndale’s HRA Proposal by the deadline

of February 15, 2018. (ECF Nos. 46 at J 133; 59 at {1 133). Indeed, Kowal’s only communication

with respect to the HRA Proposal was to request that the HRA Proposal be reinstated more than

a month after it had expired. (ECF No. 46-19). Moreover, nothing in the factual record indicates

any other offers or negotiations for post-retirement healthcare coverage were made between

Kowal and Ferndale. No reasonable person in Kowal’s position could conclude that Ferndale’s

extension of a deadline to accept the HRA Proposal—a deadline set before Kowal engaged in

protected activity —and Ferndale’s subsequent refusal to reinstate the HRA Proposal more than

a month after it expired establishes a materially adverse action. The Court finds that Ferndale’s

refusal to reinstate the HRA Proposal and/or negotiate other post-retirement healthcare coverage

negotiations does not constitute an adverse action against Kowal.

Third, Kowal contends that Ferndale unilaterally mailing him a check for the value of his

unused accumulated sick days in an amount significantly less than the amount to which he feels

he is entitled is an adverse action. (ECF No. 55 at 5-7). Kowal was ineligible to participate in the

Sick Leave Incentive Program, and, as such, was not entitled to sick day benefits at the time he

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retired. (ECF Nos. 26 at J 8; 46-2 at Exhibits D-6, D-7; 59 at {| 41). Although the School Board

granted a waiver of Kowal’s Act 93 Agreement, the Board’s waiver was no longer valid because

Kowal did not accept the HRA Proposal by the deadline of February 15, 2018. (ECF No, 46-3 at

Exhibit 2). Notwithstanding Kowal’s failure to respond by the February 15, 2018 deadline,

Ferndale paid Kowal for the value of his unused accumulated sick days at the Act 93 rate of $115

per day (less his months of post-retirement healthcare coverage and payroll withholdings). (Id.).

No reasonable person in Kowal’s position could conclude that receiving a cash payment for a

benefit he or she was not entitled to, at a rate he or she was not entitled to, constitutes a materially

adverse action. The Court finds that Ferndale unilaterally mailing a check to Kowal for the value

of his unused accumulated sick days is not a materially adverse action for the purposes of

establishing a prima facie claim of retaliation against Ferndale.

In sum, none of the actions taken by Ferndale constitute a materially adverse employment

action for the purpose of establishing a prima facie case of retaliation. Nevertheless, even if

Ferndale’s actions qualified as such, Kowal fails to fully establish the third element of a prima facie

case of retaliation as discussed in the next section.

B. Kowal Can Partially Demonstrate a Causal Connection Between Ferndale’s Alleged

Adverse Actions and His Engagement in Protected Activity

Assuming arguendo Kowal can establish he was subject to adverse actions by Ferndale, he

can only partially demonstrate a causal connection between Ferndale’s alleged adverse actions

and his EEOC activity. “To establish the requisite causal connection a plaintiff usually must prove

either (1) an unusually suggestive temporal proximity between the protected activity and the

allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a

-23-

causal link. Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)). The Court

“consider[s] a ‘broad array of evidence’ in determining whether a sufficient causal links exists

[for a plaintiff] to survive a motion for summary judgment.” Daniels v. School Dist. of Philadelphia,

776 F.3d 181, 195-196 (3d Cir. 2015) (quoting LeBoon v. Lancaster Jewish Community Center Assn,

503 F.3d 217, 232 (3d Cir. 2007).

First, Kowal contends that his filing a Charge of Discrimination with the EEOC caused

Ferndale to deny his meeting requests with the School Board. (ECF No. 55 at 5-7). Here, Kowal

can show a causal connection between the Board’s refusal to allow him to meet with the School

Board and his protected activity of filing a Charge of Discrimination with the EEOC. Specifically,

in her email to Kowal in response to his request to meet with the School Board, Kakabar informed

Kowal that the School Board would not meet with Kowal because (1) Kowal had placed himself

on Ferndale’s insurance without having spoken with Kakabar or Walsh before retiring, (2) Kowal

was instituting legal proceedings against Ferndale, (3) Kowal indicated he had an initial interview

with the EEOC to determine if other fair employment laws had been violated, and (4) Kowal informed

Ferndale it may be necessary for them to secure an attorney. (ECF No. 46-3 at Exhibit 4) (emphasis

added). Ferndale clearly indicates that, among several reasons, Kowal’s contact with the EEOC

was a factor in the Board’s decision to decline Kowal’s meeting request. (Id.). Notwithstanding

the causal connection between Kowal’s protected activity and the School Board declining his

meeting requests, for the reasons stated in Section VI(a)(2)(A), the Court has determined that

Kowal cannot establish that Ferndale took materially adverse action against him by declining his

meeting requests. Supra Section VI(a)(2)(A). The School Board declining to meet with Kowal had

no impact on Kowal’s ability to attend a publicly held School Board meeting and discuss his Sick

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Leave Incentive Program status with the School Board. Id. Because Kowal cannot demonstrate

School Board took a materially adverse action against him by declining to meet with him, he fails

to establish a prima facie claim of retaliation against Ferndale.

Second, Kowal argues that his activity with the EEOC caused Ferndale’s refusal to

continue negotiations regarding its HRA Proposal and other post-retirement healthcare benefits.

(ECF No. 55 at 5-7). Ferndale set December 20, 2017, as the deadline for Kowal to accept the HRA

Proposal which was prior to Kowal engaging in protected activity. Supra Section VI(a)(2)(A).

Upon learning of Kowal’s protected activity, Ferndale extended the deadline for Kowal to accept

the HRA Proposal until February 15, 2018. Id. The only activity caused by Kowal engaging in

protected activity was an extension of a deadline already established before Kowal had engaged

in protected activity with the EEOC. (ECF No. 46-3 at Exhibit 5). Kowal has failed to demonstrate

any causal link between Ferndale’s refusal to continue the HRA Proposal and other post-

retirement healthcare negotiations and his protected activity with the EEOC for the purpose of

establishing a prima facie claim of retaliation.

Third, Kowal contends that his protected activity with EEOC caused Ferndale to

unilaterally mail him a check for the value of his unused accumulated sick days in an amount

significantly less than the amount to which he feels he is entitled. (ECF No. 55 at 5-7). Again, as

discussed above, Kowal was ineligible to participate in the Sick Leave Incentive Program and was

not entitled to sick day benefits at the time he retired. Supra Section VI(a)(2)(A). Following

Kowal’s failure to respond by the February 15, 2018 deadline, Ferndale paid Kowal for the value

of his unused accumulated sick days at the Act 93 rate of $115 per day (less his months of post-

retirement healthcare coverage and payroll withholdings). Id. The Court finds there is no

-25-

unusually suggestive temporal proximity between Kowal’s protected EEOC activity on

December 18, 2017, and Ferndale issuing Kowal a check for his unused accumulated sick days on

March 5, 2018. DeFlaminis, 480 F.3d at 267. Further, Kowal cannot demonstrate a pattern of

antagonism, coupled with timing, that would establish a causal link between the date he received

his sick day payment and the date he filed a Charge of Discrimination with the EEOC. Id. The

Court holds that Kowal cannot establish any causal link exists between Ferndale issuing him a

check for the value of his sick days and his protected activity with the EEOC for the purposes of

establishing a prima facie claim of retaliation, especially since he was not eligible for participation

in the Sick Leave Incentive Program.

In sum, Kowal has failed to establish a prima facie claim of retaliation against Ferndale.

However, even if Kowal had established a prima facie claim of retaliation against Ferndale, the

Court would still grant Ferndale’s motion for summary judgment because Ferndale has met their

burden of offering legitimate, non-retaliatory reasons for the adverse employment actions taken

against Kowal and Kowal has failed to rebut those reasons.

3. Ferndale Has Put Forth Evidence that Permits a Jury to Find that it Took Adverse

Actions Against Kowal for Legitimate, Non-retaliatory Reasons

Assuming arguendo Kowal can establish a prima facie claim of retaliation against Ferndale,

the burden of production shifts to Ferndale to introduce admissible evidence that, if taken as true,

would permit a finding that the challenged employment actions were taken for legitimate, non-

retaliatory reasons. Moore v. City of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006).

The Court holds that Ferndale has produced evidence that shows it denied a School Board

meeting with Kowal, refused further HRA Proposal and other post-retirement healthcare benefit

-26-

negotiations with Kowal, and paid Kowal the actual value of his unused accumulated sick days

for legitimate, non-retaliatory reasons. A jury could find that Kowal experienced these adverse

actions because: (1) Kowal was not entitled to an executive session meeting with the School Board,

(2) Kowal could have attended any publicly held School Board meeting between December 2017

and April 2018, (3) Kowal could have spoken to the School Board during any public comment

period of any publicly held School Board meeting, (4) Kowal failed to meet all prerequisites to be

eligible to participate in the Sick Leave Incentive Program, (5) Kowal failed to accept Ferndale’s

HRA Proposal by the deadline of February 15, 2018 and did not request any extensions to the

deadline, (6) Kowal did not request further changes be made to the HRA Proposal or negotiate

any other post-retirement healthcare benefits, and (7) Kowal was paid the actual value of his

unused accumulated sick days minus the cost of his healthcare coverage and payroll deductions

at the Act 93 rate.

Accordingly, Ferndale has satisfied its burden of production to show that it took adverse

actions against Kowal for non-retaliatory reasons.

4, Kowal Cannot Show that Ferndale’s Reasons for its Adverse Actions Against

Him Are Pretextual

Given that Ferndale has met its burden under McDonnell Douglas, the burden shifts back

to Kowal to show that Ferndale’s stated reasons are a pretext for retaliation. Kowal must show

pretext by pointing to some evidence which: “(1) casts sufficient doubt upon each of the legitimate

reasons proffered by [Ferndale] so that a factfinder could reasonably conclude that each reason

was a fabrication; or (2) allows the factfinder to infer that discrimination was more likely than not

a motivating or determinative cause of the adverse employment action.” Fuentes v. Perskie, 32

-27-

F.3d 759, 764 (3d Cir. 1994). Kowal has failed to demonstrate pretext under both prongs of

Fuentes. (ECF No. 55 at 7). Indeed, the only evidence produced by Kowal to rebut Ferndale’s

legitimate, non-retaliatory proffered reasons are two email chains—one occurring after the HRA

Proposal initial deadline expired on December 21, 2017, and the other email chain occurring after

Kowal requested the HRA Proposal be reinstated in March 2018. (ECF No. 59 at I 155). Neither

email chain produced by Kowal demonstrate fabrication, much less that Kowal’s EEOC activity

was more likely than not a motivating cause for Ferndale’s adverse employment actions against

him. Kowal has failed to establish that Ferndale’s legitimate, non-retaliatory reasons are a pretext

for retaliatory conduct.

VII. Conclusion

For the forgoing reasons, the Court grants Defendants’ Motion for Summary Judgment.

(ECF No. 45). An appropriate order follows.

-28-

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOHN KOWAL, ) Case No. 3:18-cv-181

)

Plaintiff, ) JUDGE KIM R. GIBSON

)

v. )

)

FERNDALE AREA SCHOOL DISTRICT )

and FERNDALE AREA SCHOOL )

DISTRICT BOARD OF EDUCATION, )

)

)

Defendants. )

Li ORDER

xh

NOW, this <> day of November, 2021, upon consideration of Defendants’ Motion for

Summary Judgment (ECF No. 45), and for the reasons set forth in the accompanying

Memorandum Opinion, it is HEREBY ORDERED that Defendants’ Motion for Summary

Judgment (ECF No. 45) is GRANTED.

BY THE COURT:

A AQAMNANAL

KIM R. GIBSON

UNITED STATES DISTRICT JUDGE