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PENNSYLVANIA RECORD

Sunday, June 16, 2024

Erie charter school denies retaliation and hostile work environment claims from Black security guard

Schools
Marlanpresley

Presley | Jackson Lewis

ERIE – An Erie charter school has denied all liability alleged by a Black security guard, who claimed she was faced retaliation after reporting unwelcome advances from the school principal.

Diana Cole initially filed suit in the Erie County Court of Common Pleas on March 8 versus Erie Rise Leadership Academy Charter School. Both parties are of Erie.

“Plaintiff was employed by Erie Rise for a year as a security guard. In that position, she was responsible for control and redirection of students who were not complying with defendant’s rules. Plaintiff performed her duties in an exemplary manner. She was subjected to a disciplinary write up on Aug. 31, 2022 when she declined to perform duties that were not part of her job, to-wit, moving desks. The principal of Erie Rise at all relevant times was David Krakoff, a white male in his late 40’s to early 50’s,” the suit stated.

“During her employment, plaintiff was frequently subjected to unwelcome flirtatious comments by Mr. Krakoff. Mr. Krakoff would comment on plaintiff’s appearance on a daily basis, telling her how good she looked. This occurred despite the fact that she is a uniformed employee who wore the same uniform on a daily basis. On several occasions, Mr. Krakoff telephoned plaintiff on her personal cell on the pretext that he needed to discuss a student. Mr. Krakoff’s behavior made plaintiff uncomfortable, and she filed a complaint concerning his treatment of her on Oct. 13, 2022.”

The suit continued that on Oct. 26, 2022, the plaintiff and a co-worker were required to redirect a student who was attempting to leave the building, and while the two individuals were awaiting their direct supervisor to direct the manner of intervention, a caseworker began dealing with the child and the situation was escalating.

In the resolution of that incident, the plaintiff said she “acted in accordance with established policy and all of her actions were proper.”

“After the incident was resolved, plaintiff was given a three-day disciplinary suspension without pay by Mr. Krakoff. The suspension was in retaliation for the complaint she had filed. After the filing of her complaint against Krakoff, plaintiff was subjected to a hostile work environment. Mr. Krakoff’s demeanor toward her changed significantly. Krakoff regarded plaintiff with anger and used his position to retaliate against plaintiff by suspending her without cause, costing her three days’ pay. Krakoff [then] recruited two Board Members in an attempt to terminate plaintiff’s employment at an informal Board meeting of Oct. 28, 2022. Despite Krakoff’s efforts, plaintiff’s employment was not terminated,” the suit said.

“Plaintiff was subjected to a hostile or offensive work environment in retaliation for her complaint. She had to encounter Mr. Krakoff on a daily basis and ‘walked on eggshells’ for fear of further disciplinary suspensions or, as already threatened, the termination of her employment. Erie Rise, at the time it decided to employ Mr. Krakoff, was aware that he had resigned two prior employment positions, during or shortly after he had been investigated for engaging in the same conduct of which plaintiff complained on Oct. 13, 2022. Plaintiff has met the conditions precedent to the filing of this suit in that she filed a complaint with the Equal Employment Opportunity Commission, which was cross-filed with the Commonwealth of Pennsylvania Human Relations Commission and then transferred to the Pennsylvania Human Relations Commission, which has authorized the filing of this suit.”

The defendant removed the case to the U.S. District Court for the Western District of Pennsylvania on May 2, citing the federal laws that the plaintiff alleges were violated.

UPDATE

Erie Rise Leadership Academy Charter School answered the complaint on May 20 and denied its substantive allegations as conclusions of law to which no official response was required, before providing numerous affirmative defenses on its own behalf.

“Plaintiff has failed to state a claim upon which relief can be granted. Plaintiff’s claims are barred, in whole or in part, by the applicable statute of limitations. Plaintiff’s claims are barred, in whole or in part, and any recovery of damages is precluded, by the doctrines of waiver and/or estoppel, unclean hands, and laches. Plaintiff’s claims are barred, in whole or in part, and any recovery of damages is precluded, because plaintiff failed to mitigate her alleged damages. At all times relevant hereto, Erie Rise made a good faith effort to comply with all federal and state laws. Plaintiff’s claims are barred, in whole or in part, and any recovery of damages is precluded, because plaintiff cannot establish a prima facie case of retaliation or hostile work environment. Plaintiff’s claims are barred, in whole or in part, and any recovery of damages is precluded, because Erie Rise exercised reasonable care to prevent and promptly correct any discriminatory conduct, and because plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by defendant. Plaintiff’s claims are barred, in whole or in part, because any harm plaintiff suffered was due to her own conduct,” the defenses stated.

“Plaintiff’s claims are barred, in whole or in part, and any recovery of damages is precluded, because plaintiff cannot prove by a preponderance of the evidence that Erie Rise’s legitimate, nondiscriminatory reasons for taking any employment-related action were pre-textual. To the extent plaintiff recovers any movies from collateral sources, Erie Rise is entitled to a set-off. If any allegations of unlawful conduct are true, Erie Rise’s employees implicated in those allegations acted on their own, in violation of Erie Rise's policies prohibiting such conduct, and acted outside the scope of their employment. Erie Rise made good faith efforts to comply with the law and should not be liable for any discriminatory acts by employees of defendant. All events which occurred more than 300 days prior to the filing of plaintiff’s charge of employment discrimination with the EEOC are untimely and are not properly asserted in this action; nor is plaintiff entitled to relief for any events which occurred more than 300 days prior to the filing of her charge of employment discrimination. Although Erie Rise denies plaintiff was exposed to a hostile work environment, Erie Rise asserts that it exercised reasonable care to prevent and correct promptly any harassing behavior, and that plaintiff has unreasonably failed to take advantage of any preventive or corrective opportunity provided or to avoid harm otherwise. Any claim for punitive damages violates the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Pennsylvania Constitution and such damages are, therefore, not recoverable in this action. Further, the claim for punitive damages violates the federal doctrine of Separation of Powers because punitive damages are a creation of the judicial branch of government and invade the province of the legislative branch; therefore, any claim for punitive damages must be dismissed.”

For counts of violating Title VII of the Civil Rights Act of 1964 for retaliation for protected activity and creation of a hostile work environment and the Pennsylvania Human Relations Act for retaliation, the plaintiff is seeking damages in excess of the applicable limits for mandatory arbitration, for compensatory damages, reasonable attorney’s fees and reimbursement of expenses, punitive damages and such other and further relief as the Court deems just.

The plaintiff is represented by Timothy D. McNair of the Law Office of Timothy D. McNair, in Erie.

The defendant is represented by Marla N. Presley and Kelly L. Mistick of Jackson Lewis, in Pittsburgh.

U.S. District Court for the Western District of Pennsylvania case 1:24-cv-00119

Erie County Court of Common Pleas case 10597-2024

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com

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