R.J. Erdlen, Jr. v. Lincoln IU No. 12 ( 2017 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard J. Erdlen, Jr., :
Petitioner :
: No. 1435 C.D. 2016
v. :
: Argued: March 7, 2017
Lincoln Intermediate Unit No. 12, :
Respondent :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE McCULLOUGH FILED: July 13, 2017
Richard J. Erdlen, Jr., Ph.D. (Petitioner), petitions for review of the
July 26, 2016 order of the Secretary of the Department of Education (Secretary)
which affirmed a decision of the Board of School Directors (Board) of the Lincoln
Intermediate Unit No. 12 (LIU) dismissing him from his position as a certified school
psychologist.
Facts/Procedural History
The facts and procedural history of this case, as gleaned from the
Secretary’s findings of fact, may be summarized as follows. Petitioner has been
employed by LIU as a certified school psychologist since 1985, and in 2001, he
assumed the title of Supervisor of Pupil Personnel until his termination. In the latter
capacity, Petitioner was a supervisor to lower-ranking psychologists and Dr. Hamme,
Assistant Director of Special Education, was his immediate supervisor with authority
to issue directives. Dr. Bertram, LIU’s Director of Special Education, was also a
direct supervisor of Petitioner. Until the 2013 to 2014 school year, Petitioner
received satisfactory ratings on his annual performance evaluations. (Findings of
Fact (F.F.) at Nos. 1-4, 12.)
In November 2014, Petitioner contacted Dr. Hamme and informed him
that a building administrator in Eastern York School District (Eastern York) had
contacted an LIU psychologist, Dr. Kenien, who is an LIU employee working under
Petitioner’s supervision. The building administrator at Eastern York talked to Dr.
Kenien about a situation involving the changing of a child’s placement at Eastern
York and questioned that change. Petitioner asked Dr. Hamme for advice on how to
proceed and/or direct Dr. Kenien in this matter. In response, Dr. Hamme informed
Petitioner that he and Dr. Kenien could only refer the building administrator to her
own administration and internal chain of command within Eastern York and that,
consistent with the LIU’s policies, it was not appropriate for the LIU to get involved,
especially since no one in the LIU worked with the student. (F.F. at Nos. 5-7.)
Nonetheless, after Petitioner discovered that the child at Eastern York
had a placement change, he contacted Eastern York’s superintendent via an email,
stating that he was concerned for the child and that the change appeared to be a
punishment. In his email, Petitioner also told the superintendent that there could be
potential legal and liability ramifications for Eastern York as a result of the
placement; that she should fact-check the information and consult with Eastern
York’s solicitor; and that the decision-making process in this matter would likely be
castigated in a special education audit.1 Later, on November 17, 2014, Petitioner
1
In its entirety, this email reads:
(Footnote continued on next page…)
2
discovered that the child was returned to his initial placement, and the superintendent
(continued…)
It has come to my attention that there is a 6th grade boy at the Eastern
York MS with an IEP [individualized education program] for his
learning disability. Today he was demoted to the Wrightsville
Elementary School with parent approval. The fact that the change of
placement is close-ended strongly suggests this is a disciplinary
procedure, and more accurately, a punishment. My chief concerns are
for the short-term and the long-term well-being of this child.
However, I am equally intent on providing you a heads-up to the legal
and liability ramifications to the District and its taxpayers.
Please fact-check on the following information before deciding on a
course of action. The student has manifested behavioral problems.
There is no functional behavior analysis (FBA), no positive behavior
support plan (PBSP), no modification through the IEP-team process,
and no presentation of a notification of recommended education
placement (NOREP) to the parent. The short-term nature of the
placement makes it clear it is intended as a disciplinary action, a de
facto suspension from his home school. Still, there was no
manifestation determination conducted. In one case, 5 separate
protections were bypassed. The moral imperative here is to make
sure the emotional impact of this apparent attempt to “teach this
student a lesson” has been considered by the mental health specialists
in the District.
Believe me when I say, I would be well-pleased if you could both
rescue the child and reverse the decision-making process that is likely
to be castigated in a special education audit. (Using these facts and
not identifying the district, I checked with someone who does audits.
So this opinion is not mine alone). Once the facts are verified, your
solicitor’s opinion would be quite valuable in trying to decide how a
hearing officer would interpret such facts. I say that only because I
can appreciate “Murphy’s Law.” I wish I could have spoken to you in
person about this matter. I am writing in hope that it speeds up the
review. I would be happy to speak to you by phone if necessary: 717-
[XXX-XXXX]. I appreciate your attention to this important matter.
(Reproduced Record (R.R.) at 549a.)
3
called Petitioner to voice disapproval over how he handled the situation. The
superintendent also asked Petitioner who told him about the child’s situation, but
Petitioner did not answer, saying that he would not engage himself in the inner
workings of another agency. (F.F. at Nos. 8-9, 11.)
On November 19, 2014, Dr. Bertram received a copy of Petitioner’s
email to Eastern York’s superintendent. Dr. Bertram stated that the appropriate
protocol for a psychologist like Petitioner who had a concern about a student who
was not an LIU student was to first contact her or Dr. Hamme. Dr. Bertram issued
two directives to Petitioner requesting narratives about his conversations with the
superintendent and when Petitioner finally responded, the narratives were cursory,
incomplete, and lacking details. After looking into the matter, Dr. Bertram believed
that she had to conduct “damage control” because Eastern York’s staff and
superintendent questioned Petitioner’s professionalism and felt that he was
condescending and threatening. Dr. Bertram, noting that she had never had a
psychologist supervisor at or near Petitioner’s rank address a superintendent the way
Petitioner did, verbally reprimanded Petitioner, and, in response, Petitioner said,
“Lesson learned.” (F.F. at Nos. 17-19.)
Following a series of exchanges between Petitioner, his supervisors, and
Eastern York personnel, Dr. Zeroth, the Executive Director of the LIU, issued a
directive to Petitioner informing him that he was not a consultant or facilitator of
team maintenance and should not offer to provide that service to Eastern York. Dr.
Zeroth instructed Petitioner not to visit or communicate with any Eastern York or
LIU staff assigned to Eastern York or to provide services to Eastern York without
first receiving approval from Dr. Bertram. However, in violation of Dr. Zeroth’s
directives, Petitioner visited the Eastern York school principal. Petitioner said that he
4
visited the principal to discuss with him the prospects of having a new psychologist
for the school because one was being transferred. (F.F. at Nos. 31-32.)
In the meantime, on November 28, 2014, Dr. Bertram directed Petitioner
to send a copy of his upcoming presentation to her administrative assistant for an
advisory council meeting to be held on December 9, 2014. Petitioner never provided
Dr. Bertram’s office with a copy of the presentation and failed to return messages
asking whether he was prepared to conduct the presentation. (F.F. at Nos. 83-84.)
On December 10, 2014, a meeting was held by Dr. Bertram and Ms.
Greth, the Director of Human Resources, to debrief the Eastern York matter with
Petitioner and discuss his disregard of directives from superiors. At the beginning of
the meeting, Petitioner started to talk about another matter and ignored Dr. Bertram
and Greth. After being told to close his laptop, Petitioner requested that an attorney
be present. Dr. Bertram and Greth informed Petitioner that there was no need for an
attorney because they were in the initial stages of an investigation, were not making
accusations, and were not imposing discipline. Dr. Bertram and Greth stated that it
was LIU’s standard procedure that an attorney not be present during these types of
meetings. (F.F. at Nos. 33-35.)
During the meeting, Petitioner was defensive, confrontational, did not
want to answer the questions he was asked, and continued to divert the meeting to
other topics. The questions that Dr. Bertram and Greth asked concerned issues such
as Petitioner’s self-interjection into the Eastern York matter, whether he thought his
actions adhered to the Code of Professional Conduct, and whether his actions
reflected the role model behavior that can be expected of a supervisor and leader.
When the meeting adjourned, Petitioner understood that LIU would continue its
investigation and was instructed in a subsequent email sent by Greth not to speak to
5
anyone regarding the issues they discussed and the Eastern York matter because LIU
wanted to gather the most accurate information and prevent the investigation from
being compromised. However, in his response to the email, Petitioner informed
Greth that he had already told people about what had happened with respect to the
Eastern York matter and their meeting. In reply, Greth instructed Petitioner to
provide her with a list of the people that he had spoken to, but Petitioner never
complied. (F.F. at Nos. 37-38, 41-42.)
On December 17, 2014, at a regularly scheduled meeting of school
psychologists, where Drs. Bertram and Hamme were in attendance, Petitioner
provided the psychologists with a five question survey for them to complete. The
survey asked: do you feel supported by the psychology supervisor, special education
director, and executive director; what activities do you feel expressed support for
school psychology; whether you would feel supported if you could invite your
supervisor to a Human Resources fact-finding meeting to review your work
performance; whether the psychological supervisor is a poor model for the practice of
school psychology; and whether you have known the psychology supervisor to
violate professional ethics? (F.F at Nos. 43-44.)
Petitioner admitted that the survey pertained to issues addressed in his
meeting with Dr. Bertram and Greth. Dr. Bertram then reiterated to Petitioner that he
was not allowed to discuss any issues related to their meeting or the Eastern York
matter, and told him that he could not share the survey with the psychologists. In an
indignant manner, Petitioner replied, “on whose authority?” (F.F. at No. 45.)
Petitioner then announced to the psychologists that he was not allowed to share the
survey and that Drs. Bertram and Hamme would collect the survey from them, which
they did. (F.F. at No. 46.)
6
Nevertheless, at the December 17th meeting, Petitioner presented a
PowerPoint presentation that had a strong parallel to the Eastern York child
placement matter and indirectly referenced and presented facts identical to those
involved in that situation. Although Petitioner stated that the presentation was a
hypothetical scenario, Dr. Hamme could identify it as the Eastern York matter and
she observed that there were questioning looks among the psychologists, which
caused her to believe that others also identified the situation and knew that it was not
a hypothetical situation. (F.F. at Nos. 40, 47.) Toward the end of the presentation,
Petitioner shared that it was an actual situation and on a slide entitled, “Lessons
Learned,” Petitioner stated: “Don’t be disappointed because decision-makers don’t
have your ethical code or professional training. They may catch up.” (F.F. at No.
52.)
In addition, there were two slides toward the end of the presentation that
were entitled, “Implications,” and suggested consequences for the executive director
and the special education director. However, Petitioner flipped through these slides
and stated that he was not going to review them due to time constraints. According to
Dr. Hamme, Petitioner’s presentation looked like a training tool to teach the school
psychologists to follow his path and adopt his point of view and he was trying to
create a conflict between the staff and administration of the LIU. Dr. Hamme told
Petitioner to provide him with a copy of the presentation, and Petitioner was
reluctant, but he eventually submitted a copy that purportedly contained the missing
slides. Petitioner later admitted that he had previously discussed the Eastern York
matter at regional meetings of school psychologists without identifying the student.
(F.F. at Nos. 51-53.)
7
On the same day as the meeting, December 17, 2014, Dr. Bertram
provided Petitioner with a letter advising him that based upon allegations of
unprofessional behavior, he was being placed on administrative leave. The LIU
administration believed that this leave was necessary so that the LIU could conduct
an unimpeded investigation and review information without needing to address
concerns related to Petitioner’s interference with the investigation. By letter dated
December 18, 2014, Dr. Bertram notified Petitioner that the LIU was able to
determine that modifications had been made to the PowerPoint presentation that
Petitioner provided to the LIU and directed Petitioner to: provide an exact copy of
the presentation and its slides; comply with Greth’s directive that he identify those
people that he spoke to after the December 15, 2014 meeting; and not have contact or
communication with anyone in the LIU. While Petitioner was placed on
administrative leave, Greth obtained statements from the superintendent of and a
psychologist at Eastern York, who both voiced objections about Petitioner’s behavior
with respect to the child’s placement and claimed Petitioner issued threats and unfair
accusations. Greth also obtained a phone report for Petitioner’s LIU-issued cell
phone which revealed that from December 26, 2014, to January 7, 2015, Petitioner
had phone calls and/or text messages with four LIU employees in violation of the
directive that he not communicate with any of the LIU employees while on leave.
(F.F. at Nos. 60-61, 63-68.)
Thereafter, Dr. Zeroth directed Petitioner to cooperate with Eastern York
in its internal investigation. Petitioner missed three days of work, due to an illness,
and left an automated out-of-office email response on his emails, which stated that he
was not feeling well, but will “return to fight for truth, justice and the American way
once the costume returns from the dry cleaner.” (F.F. at No. 69.) In turn, Dr.
8
Bertram emailed Petitioner on November 25, 2014, advising him that the out-of-
office response was inappropriate, unprofessional, and did not align with the
guidelines the Director of Technology had previously provided to the LIU’s staff. At
the request of Dr. Bertram, Petitioner removed the out-of-office response. A few
days later, though, Petitioner forwarded to all the LIU psychologists Dr. Bertram’s
November 25, 2014 email, which Dr. Bertram perceived to be an act that was
disrespectful and undermined her authority. On December 3, 2014, Dr. Bertram
directed Petitioner not to forward any emails from her or Dr. Hamme without their
explicit permission and informed him to copy her on all emails he sends regardless of
the topic and recipient, and that disregard of this directive could result in disciplinary
action. Petitioner, however, continued to send emails without copying Dr. Bertram.
(F.F. at Nos. 70-78.)
On January 15, 2015, Dr. Zeroth sent Petitioner a notice of
hearing/statement of charges, informing him that the LIU administration was
recommending to the Board that he be dismissed from his employment with the LIU.
In this notice, Petitioner was notified that the Board would conduct a hearing and that
the bases for his recommended discharge was persistent negligence in the
performance of duties, willful neglect of duties and violation of school laws, and
reiterated that a more detailed statement of the charges were sent to his attorney. On
April 23, May 4, and May 13, 2015, the Board convened a hearing, and on September
1, 2015, the Board voted to dismiss Petitioner from employment. (F.F. at Nos. 85-
88.)
On October 1, 2015, the Secretary received a petition for appeal from
Petitioner. The Secretary then appointed a hearing officer, who conducted a hearing
on October 29, 2015. (F.F. at Nos. 88-90.)
9
At the beginning of the hearing, the parties offered five joint exhibits
into evidence and Petitioner called what was essentially a character witness to testify
on his behalf. The Board then called Dr. Bertram to testify to the incidents discussed
above and submitted numerous documents, letters, and emails into evidence that were
mostly written to, from, or by Petitioner. In a very thorough fashion, Petitioner’s
counsel cross-examined Dr. Bertram questioning and attempting to undermine the
bases for the decision to recommend Petitioner’s termination. Lastly, Petitioner
testified in extensive detail and at great length concerning his conduct, expressing his
belief that it was warranted and proper. (R.R. at 3a-330a; 359a-493a.)
After receiving evidence and reviewing the matter, the hearing officer, in
an opinion and order dated July 27, 2016, concluded that the evidence was sufficient
to sustain Petitioner’s dismissal. The hearing officer determined that the evidence
established that beginning in November 2014, and continuing through January 2015,
there were numerous occasions where Petitioner violated or failed to comply with the
official directives of his supervisors. (Hearing Officer’s Decision at 22.)
In making this determination, the hearing officer cited, among other
instances, the following occasions where Petitioner engaged in misconduct:
[B]etween November 14, 2014 and December 9, 2014,
[Petitioner] failed to comply with numerous directives of
his supervisors regarding the Eastern York matter. Dr.
Hamme’s directive not to involve the LIU in the Eastern
York matter; Dr. Bertram’s directive to provide narratives
about his conversations with [Eastern York’s
superintendent], and when he did, he only provided a
cursory summary with no significant detail; [and] Dr.
Zeroth’s directive that he speak only with senior leadership
at Eastern York and the LIU about the investigation . . . .
* * *
10
Because [the Eastern York matter] was an ongoing
personnel issue, after the [December 10, 2014] meeting,
Ms. Greth emailed [Petitioner] directing that he was not to
speak to anyone regarding the issues they had discussed and
to let her know if he had done so. Approximately three and
one-half hours later, [Petitioner] emailed Ms. Greth stating
he had “already done so.” When she asked to whom he had
spoken and about what, [Petitioner] stated he would
respond to her before the week was out. However,
[Petitioner] never provided the information he was directed
to provide. Therefore, [Petitioner] failed to comply with
Ms. Greth’s directive.
* * *
By using the Eastern York matter as the basis for his
PowerPoint presentation, [Petitioner] violated his
supervisors’ directives not to discuss the Eastern York
matter with anyone other than the senior administration at
the LIU and at Eastern York. [Petitioner] did not
specifically identify Eastern York in the PowerPoint
presentation, but since he had discussed this matter with
psychologists at regional meetings it is reasonable to
believe the psychologists knew he was discussing the actual
matter in which he had been involved. Additionally, even
though [Petitioner] had been told that the LIU did not
support how he had handled the Eastern York matter, he
was using the PowerPoint as a training tool to teach the
psychologists to follow the same path he had followed and
was nudging them to his point of view . . . .
After the December 17 psychologists meeting, Dr. Bertram
and Ms. Greth met with [Petitioner] to talk about the survey
and the PowerPoint presentation. Although [Petitioner] had
his laptop with him and was directed multiple times to
provide a copy of the PowerPoint, he refused to do so at
that time and stated he would send a copy before the end of
the day. [Petitioner] sent a copy of the PowerPoint to Ms.
Greth that day, but changes had been made and some slides
had been removed; therefore, he failed to comply with the
directive to produce a copy of the PowerPoint.
* * *
11
After December 17, 2014, Ms. Greth continued to
investigate the Eastern York matter and [Petitioner’s]
subsequent behavior. During the investigation, cell phone
utilization records for [Petitioner’s] LIU-issued cell phone
were reviewed, and they evidenced that he had phone calls
and text messages with LIU employees during his paid
administrative leave. These communications were in
violation of the directive issued to him by Dr. Bertram.
* * *
The out-of-office response [Petitioner] placed on his email
stated: “I am under the weather and will be out of the office
for a few days. I’ll return to fight for truth, justice and the
American way once the costume returns from the dry
cleaner.” Although [Petitioner] testified that he had not
been feeling well and this out-of-office response was an
impulsive act, Dr. Zeroth believed that, in the context of
what was happening with the Eastern York matter, it was
clear what message [Petitioner] was conveying in this
response . . . . [I]t is reasonable to interpret [Petitioner’s]
out-of-office message as relating to his actions in the
Eastern York matter and that he would continue on what he
believed to be a justified crusade when he returned.
* * *
Dr. Bertram further directed that [Petitioner] copy her on all
emails he was sending regardless of the topic and to whom
they were sent. [Petitioner] failed to comply with Dr.
Bertram’s directive because after receiving the directive he
continued to send some emails to others without copying
Dr. Bertram.
* * *
On November 28, 2014, Dr. Bertram directed [Petitioner] to
provide the presentation to her administrative assistant.
Even after Dr. Bertram’s administrative assistant asked
[Petitioner] about the presentation, [Petitioner] failed to
comply with the directive to provide the presentation to Dr.
Bertram’s administrative assistant.
12
(Hearing Officer’s Decision at 27-35.)
The hearing officer found that all of the above directives were
reasonable and that Petitioner’s conduct in relation thereto amounted to persistent and
willful violation of or failure to comply with school laws, including official
directives. The hearing officer further found, for the same reasons, that Petitioner
engaged in persistent negligence in the performance of his duties and willful neglect
of duties. Id. at 35-37. Accordingly, the hearing officer denied Petitioner’s appeal
and upheld the Board’s decision to dismiss him from employment, and the Secretary
signed the July 27, 2016 order in his official capacity.
Petitioner now appeals to this Court,2 contending that the Secretary erred
because the evidence was insufficient to support his dismissal; his conduct was
protected activity under the Americans with Disabilities Act (ADA) 3 and the
Rehabilitation Act of 1973 (RA);4 the LIU imposed an unlawful command or “gag”
order on him not to discuss certain subjects with other LIU staff; and the LIU failed
to provide, in accordance with due process, adequate notice of the charges and a
proper hearing on those charges.
2
“This Court’s standard of review of a decision of the Secretary of Education is limited to
[the] determination of whether substantial evidence supports necessary factual findings, and
whether an error of law or constitutional violation was committed.” Curl v. Solanco School
District, 936 A.2d 183, 185 n.1 (Pa. Cmwlth. 2007).
3
42 U.S.C. §§12101-12213.
4
29 U.S.C. §§701-796i.
13
Sufficiency of the Evidence
Petitioner contends that the evidence was legally insufficient to support
his dismissal, arguing that the Secretary impermissibly aggregated minor incidents
and “petty annoyances.” (Petitioner’s brief at 24.) Petitioner asserts that his conduct
does not reflect the level of persistent negligence necessary to justify his discharge
and that he did not willfully ignore or disobey any significant directives.
Section 1122(a) of the Public School Code of 1949 (Code), Act of
March 10, 1949, P.L. 30, as amended, 24 P.S. §11-1122(a), states that a professional
employee may only be dismissed for the reasons set therein. See Foderaro v. School
District of Philadelphia, 531 A.2d 570, 571 (Pa. Cmwlth. 1987). The statutory bases
for discharge under section 1122(a) of the Code are:
(a) The only valid causes for termination of a contract
heretofore or hereafter entered into with a professional
employe shall be immorality; incompetency; unsatisfactory
teaching performance based on two (2) consecutive ratings
of the employe’s teaching performance that are to include
classroom observations, not less than four (4) months apart,
in which the employe’s teaching performance is rated as
unsatisfactory; intemperance; cruelty; persistent
negligence in the performance of duties; willful[l] neglect
of duties; physical or mental disability as documented by
competent medical evidence, which after reasonable
accommodation of such disability as required by law
substantially interferes with the employe’s ability to
perform the essential functions of his employment;
advocation of or participating in un-American or subversive
doctrines; conviction of a felony or acceptance of a guilty
plea or nolo contendere therefor; persistent and wil[l]ful
violation of or failure to comply with school laws of this
Commonwealth (including official directives and
established policy of the board of directors); on the part of
the professional employe . . . .
24 P.S. §11-1122(a) (emphasis added).
14
This statutory section provides that a professional employee may be
terminated, among other reasons, for the “persistent and wil[l]ful violation of or
failure to comply with school laws of this Commonwealth . . . .” Id. In determining
whether a persistent and willful violation of a school law has occurred, this Court
must examine three elements: persistency, willfulness, and a violation of a school
law. Horton v. Jefferson County—Dubois Area Vocational Technical School, 630
A.2d 481, 482 (Pa. Cmwlth. 1993). “Persistency is held to exist when the violation
occurs either as a series of individual incidents or one incident carried on for a
substantial period of time. Wil[l]fulness requires the presence of intention and at
least some power of choice.” Id. Further, this Court has “interpreted ‘willful
violation of the school laws’ to include not only violations of the Code, but also
violations of rules and orders of the employee’s superior.” Harris v. Commonwealth
Secretary of Education, 372 A.2d 953, 957 (Pa. Cmwlth. 1977).
Additionally, section 1122(a) of the Code permits a professional
employee to be discharged when the employee engages in “persistent negligence in
the performance of duties . . . .” 24 P.S. §11-1122(a). The Code does not define the
charge of persistent negligence. Lauer v. Millville Area School District, 657 A.2d
119, 121 (Pa. Cmwlth. 1995). Nevertheless, this Court has observed: “Dismissal for
persistent negligence is warranted when a teacher fails to comply with a directive of
supervisors on numerous occasions. In fact, a single act, continued for a period of
time, may support dismissal for persistent negligence.” Id. (citations omitted;
emphasis in original.)
In comparing and contrasting a charge of persistent and willful violation
of school laws with persistent negligence in the performance of duties, this Court has
commented:
15
The charge of willful and persistent violation of school laws
and the charge of persistent negligent performance of job
duties seem often to be combined in a discharge proceeding.
The same act may be used to support both charges . . . .
Each charge consists of several elements, and the district
must prove all elements. Persistency is one element shared
by both charges. Knowledge is another common element.
For a violation of a school law to be willful, the district
must show that the employee knew of the school district’s
policy in question and deliberately chose not to comply . . . .
[F]or negligent performance to be shown, the school district
must prove that the professional employee had knowledge
of the school district’s performance expectations and had
been warned of the consequences of failing to meet them
....
Negligent performance does not require the existence of a
clearly adopted or articulated board policy. However, the
professional employee must be advised that certain conduct
is unacceptable . . . .
McFerren v. Farrell Area School District, 993 A.2d 344, 357-58 (Pa. Cmwlth. 2010).
In McFerren, we summed up the burdens of proof for, and the subtle
distinction between, the two charges as follows:
In sum, to prove charges of willful and persistent violation
of a school law and persistent negligence in performance of
duties, the school district must prove (1) persistency in the
form of numerous incidents of the same misconduct and (2)
knowledge that the conduct in question was wrong and that
its repetition could lead to discipline or discharge. For a
violation of a school law, the school district must point to
an adopted policy or order that was deliberately violated.
For negligent performance of a duty, the district must
specifically advise the employee of that duty . . . . Finally,
the negligent performance must be serious, not picayune.
Id. at 358.
16
In McFerren, a high school district terminated a principal on four
different statutory grounds and the Secretary affirmed on de novo review. The
Secretary treated the charges of persistent negligence and persistent violation of a
school law as one count and concluded that when considered in the aggregate, a
series of isolated incidents proved that the principal violated both charges. In that
case, the principal: told the superintendent, after disciplining a basketball player,
“that he could do what he wanted;” failed to update the school’s website as required
by his job duties and did not advise the superintendent of problems with the website;
did not respond to the superintendent’s repeated requests for a report on the number
of students to be enrolled in next year’s classes; and failed to obtain the
superintendent’s approval before taking a vacation leave. In addition, the principal
instituted a new schedule that resulted in teachers not having a class assignment for
thirty minutes a day; created a new program that was unsuccessful and not
implemented correctly; allowed teachers to leave early on the day before Christmas
vacation; and scheduled staff meetings which resulted in a late start for high school
students. Further, the principal did not advise the superintendent when he left the
building to go to lunch; did not make plans for four extended development days as
required by a collective bargaining agreement; and responded to a board member’s
question during an official session while his back was turned toward the member.
This Court reversed on appeal, concluding that the evidence was
insufficient to establish that the principal engaged in persistent and willful violation
of a school law. We further found that the evidence was legally inadequate to
demonstrate that the principal committed persistent negligence in the performance of
his duties. In these regards, we reasoned:
First, persistency is lacking from the [the school district’s]
case. The essence of persistency is repetition. There can be
17
no repetition where the acts or omissions in question are
unrelated to one another; the acts in question must be the
same or very similar to be persistent . . . . Here, the conduct
in each incident cited by the Secretary bears little or no
relationship to that in the next incident. There is no
common thread between not maintaining the [school
district’s] website, for example, and talking back to [the
superintendent] at a meeting to discuss discipline of a
basketball player . . . .
If there is a common thread to the incidents relied upon by
the Secretary, it may lie in the findings about [the
principal’s] conduct with superiors. He talked back to [the
superintendent] at a meeting in a manner [the
superintendent] considered insubordinate and [the principal]
had to be told to turn around at a school board meeting to
listen to the board member’s denunciation of him. However
. . . we conclude that two incidents over two and a half
years do not satisfy the requisite persistency standard.
Second, the [school district] did not satisfy the knowledge
element. [The principal’s] personnel file is absent of any
warnings from his supervisor [but his contract states “that
[r]epeated infractions or those of a serious nature will be
submitted, entered and maintained in the central file in the
superintendent’s office.”]
The District did not prove that [the principal] had
knowledge that he had committed “repeated infractions” or
infractions “of a serious nature.” In the absence of this
knowledge, the [school district] cannot demonstrate that his
conduct constituted willful violation of school law or a
negligent performance of his job . . . . Not one of the
incidents cited by the Secretary to support these two
charges was submitted, entered or maintained in the central
file in the superintendent’s office.
Third, it is not clear to the Court that all the incidents in
question are serious and rise above the level of the picayune
. . . . However, the Court declines to do a point-by-point
analysis of each incident to determine whether each act
cited by the Secretary was trivial or serious enough to
warrant a discharge. What may seem trivial in significance
18
to the Court may, in actuality, be important in an
educational setting . . . . However, these expectations must
be made known to the professional employees governed by
them. Board policy and performance expectations cannot
be adopted on an ad hoc basis, or after-the-fact, to
accommodate a school board’s desire to discharge an
employee prior to the completion of the contract period.
993 A.2d 359-60 (citations and internal quotation marks omitted).
Based upon this rationale, we concluded in McFerren that the Secretary
erred in holding that the District’s evidence proved its charge of willful and persistent
violation of a school law and also its charge of persistent negligence in the
performance of duties.
On the other side of the spectrum, the Court held in Johnson v. United
School District, 191 A.2d 897 (Pa. Super. 1963), that a teacher could validly be
dismissed for failing to attend an “open house” for the parents of her students. There,
the teacher was told by her administrative superior that she must attend “open house”
when she was interviewed, at a subsequent teacher’s meeting, and on one later
occasion. The teacher informed her administrative superior that she would not attend
“open house,” was again instructed by her superior that she must attend, responded
that she would not attend, and did not go to the open house, deciding instead to go to
a personal event. Quoting the “inimitable language” of former Justice Michael
Musmanno, the Court rhetorically questioned: “How can children be expected to
show respect toward their teachers if they learn that the teachers themselves are
disrespectful to their superiors? . . . . What would happen to all organized society if
government employees could close their eyes to directives which control the
intermission of the vast complicated gears of governmental machinery?”
19
Id. at 901 (quoting Board of Public Education, School District of Philadelphia v.
Bernard August, 177 A.2d 809, 819-20 (Pa. 1962) (majority opinion by Musmanno,
J.)).
Against the backdrop of this quotation, the Court in Johnson noted the
“persistence of the [teacher] in her announced refusal, without cause, to accept her
assignment to open house,” id. at 901, and concluded that:
Any school teacher who lacks an understanding of her
responsibility to be present on this occasion [i.e., open
house] and who arrogantly refuses to obey the direction of
her employer to be there and instead follows her own
personal whims and pleasures can properly be held by the
board employing her to be unfit to continue in the
employment of that board.
Id. at 900.
Notably, the Court in Johnson determined that the teacher engaged in
persistent misconduct by refusing to attend one open house when she was repeatedly
warned by her superior that attendance was required and mandatory. See Belasco v.
Board of Public Education, 486 A.2d 538, 542 (Pa. Cmwlth. 1985) (not that “even a
single incident may amount to persistent behavior” but clarifying that “[t]his is true
only where an incident is carried on for a ‘substantial’ period of time.”). The Court
also found that the teacher’s discharge was warranted under both the persistent
negligence and willful violation standards: “The [teacher] here not only closed her
eyes to a directive, but arrogantly persisted in her announced intention not to comply
with the directive. This conduct was an act of negligence and would also be
classified as persistent and wil[l]ful violation of the school laws.” Johnson, 191 A.2d
at 900.
In Spano v. School District of Brentwood, 316 A.2d 162 (Pa. Cmwlth.
1974), this Court concluded that an administrator, namely a “curriculum
20
coordinator,” who refused to confine her activities to those which the superior
directed her to perform, was properly dismissed for persistent and willful violation of
the school laws. The administrator in the Spano case called the superintendent an
“autocratic administrator,” and basically a “liar,” and told others that the
superintendent was not “her boss” and that she did not have to follow his orders. Id.
at 164. The administrator also circulated a proposed kindergarten course of study
without consulting the kindergarten teachers, the elementary school principal, or the
superintendent. Finally, the administrator, although lacking the authority, made a
teacher under the supervision of the superintendent initial all written correspondence
with the superintendent.
Given these incidents, we concluded that the administrator “exceeded
her authority as ‘curriculum coordinator,’ openly questioned [the superintendent’s]
authority and violated his directives.” Id. We also added:
Obviously, [the administrator] and [the superintendent] had
different concepts of not only the functions of the job of
‘curriculum coordinator,’ but also the job’s importance and
position within the school district’s administrative
hierarchy. Since Matika was the Superintendent of the
School District, and therefore [the administrator’s] superior,
it was incumbent on [the administrator], once she
understood what was expected of her and her position, to
genuinely attempt to fulfill that role . . . .
Id. at 164 (emphasis in original). Accordingly, this Court in Spano affirmed the
school board’s dismissal of the administrator for persistent and willful violation of a
school law.
When the Secretary determines that there are multiple statutory grounds
or reasons supporting termination, this Court need only find that one of them are
valid in order to affirm the Secretary’s decision. Horton, 630 A.2d at 482. Instantly,
21
the facts as found by the hearing examiner, and as adopted by the Secretary, are much
more analogous, in terms of both degree and kind, to those in Spano and Johnson
than they are to those in McFerren. Akin to the conflict between the curriculum
coordinator and the superintendent in Spano, Petitioner overstepped the bounds of his
authority, disobeying clear and reasonable directives from his superiors, and, in the
process made explicit attempts to severely undermine their authority. As elucidated
more fully above by the hearing officer, Petitioner engaged in defiant behavior with
respect to the Eastern York matter and this behavior persisted, on a continual basis,
for approximately one month in a variety of instances. In this aspect, Petitioner’s
conduct was much like that of the teacher in Johnson, who was steadfast in her
refusal to attend open house despite numerous directives from her supervisor that she
must attend.
For example, although directed not to engage in such conduct, Petitioner
discussed the Eastern York matter and the LIU’s investigation with other
psychologists, failed to provide his superiors with requested information integral to
the investigation, and performed actions that not only disobeyed his superiors’
commands, but also were done with the apparent intent of thwarting the investigation.
Unlike the nature of the principal’s alleged course of misconduct in McFerren,
Petitioner’s misconduct emanated from and had as its common thread the Eastern
York matter, which served in one way or another as the general setting or basic theme
underlying the defiance of his supervisors’ orders. Moreover, in contrast to the
circumstances in McFerrern, Petitioner’s supervisors clearly articulated to Petitioner
that which he could not do, yet Petitioner persistent in doing just that, with full
awareness and knowledge that which he had done was forbidden. In essence,
Petitioner carried a banner that his supervisors told him not to carry; he was aware of
22
the strife he was causing; and he made his intention to be disobedient to his
supervisors clear in his survey to the psychologists at the December 17, 2014
meeting, his out-of-office email response proclaiming that he would return “to fight
for truth, justice and the American way,” and his PowerPoint slide stating that the
“decision-makers don’t have [his] ethical code or professional training.” (F.F. at Nos.
52, 69.)
In his brief, Petitioner portrays his conduct in a different light, which can
be summarized thusly: “Instead of understanding that [Petitioner] had the interests of
the student at heart and used the broad facts of that case to formulate some training
for the school psychologists he supervised, the LIU went overboard to satisfy its
customer [i.e., Eastern York] at the expense of [Petitioner] who became the target.”
(Petitioner’s brief at 30.) However, in proceedings like these, the Secretary conducts
de novo review and acts as the ultimate fact-finder with the power to determine the
credibility of witnesses, the weight of their testimony, and the inferences to be drawn
therefrom. Katruska v. Bethlehem Center School District, 767 A.2d 1051, 1056 (Pa.
2001); Belasco v. Board of Public Education of the School District of Pittsburgh, 510
A.2d 337, 342-43 (Pa. 1986). As fact-finder, the Secretary declined to view the facts
through the lens that Petitioner offers, it was within the exclusive province of the
Secretary to do so, and we cannot, under our standard of review, second-guess the
Secretary’s credibility and weight determinations.
Therefore, on this record, we conclude that the Secretary did not err in
concluding that Petitioner engaged in willful and persistent violation of a school law
in consistently refusing to obey his supervisors’ directives. Although willful
violation of a school law and persistent negligence in performance of duties share
common elements and overlap to a notable extent in theory, we believe that the
23
sturdiest ground for affirmance lies in the former. This is because, while violation of
a school law requires proof that an order or directive was disobeyed deliberately,
negligence necessitates evidence that the employee was specifically advised of a duty
and is most suitable in instances where an employee thereafter does not live up to that
duty through the exercise of reasonable care and/or effort. In other words, a willful
violation of a school law can be summed up as a form of direct defiance of an order
while persistent negligence can be characterized as failing to achieve stated goals or a
certain level of achievement. Accordingly, we rest our conclusion on the ground that
the evidence was sufficient to establish that Petitioner persistently and willfully
violated a school law.
The ADA and RA
Petitioner argues that the LIU discharged him in retaliation for
advocating on behalf of a special education student in violation of the ADA and RA.
For support, Petitioner cites Barker v. Riverside County Office of Education, 584 F.3d
821 (9th Cir. 2009), wherein the Ninth Circuit held that a special education teacher
had standing to maintain a retaliation claim under the ADA and the RA against the
local school district that fired her. The teacher in that case alleged that she was fired
in retaliation for advocating on behalf of her disabled students.
We find that Petitioner’s argument lacks merit for three primary reasons.
First, Petitioner was allegedly advocating for a student that was not
under his or the LIU’s professional services and, absent such a relationship, it is at
least doubtful that he has standing to vicariously assert the student’s rights or
advocate on his behalf. It must also be noted that in discussing the student’s situation
with Eastern York’s officials, Petitioner violated an express command from his
24
superiors and LIU’s policy not to intermingle in such affairs, and Petitioner does not
contend that LIU’s policy is unreasonable or fails to advance the institutional goal of
maintaining and respecting the autonomy between Eastern York and the LIU.
Second, as succinctly yet ably explained by the hearing officer:
[Petitioner] argues he was advocating for the Eastern York
student and his dismissal was, therefore, not appropriate.
However, Petitioner testified the Eastern York student was
returned to the student’s original placement on November
18, 2014. Therefore, even if [Petitioner] believed his failure
to comply with Dr. Hamme’s November 14 directive was
justified, there was no justification for his failure to comply
with his supervisors’ directives thereafter.
(Hearing Officer’s Decision at 27.)
Third, to succeed on a retaliation claim under the ADA or RA a claimant
must prove, among other things, a causal connection between the employee’s
protected activity and the employer’s adverse action. Krouse v. American Sterilizer
Co., 126 F.3d 494, 500 (3d Cir. 1997). Here, the Secretary found that the real reason
the LIU discharged Petitioner was because he continuously disobeyed his
supervisors’ directives. Naturally implicit in this determination is the Secretary’s
rejection of any inference that the LIU discharged Petitioner as a result of the fact that
he advocated against the child’s placement in the Eastern York matter. See also R.R.
at 704a. Again, this is an issue that is entirely dependent on the credibility and the
weight to be afforded to the evidence by the fact-finder. The Secretary declined to
draw the inference that Petitioner proposes, and so must we. Therefore, Petitioner’s
argument is meritless.5
5
We do note that the LIU represents in its brief that Petitioner’s discrimination and
retaliation claims are currently pending in the United States Department of Education, Office for
Civil Rights. (LIU’s brief at 25.)
(Footnote continued on next page…)
25
The “Gag” Order
Petitioner contends that by directing him not to discuss the meeting or
the investigation with other employees of the LIU, Dr. Bertram and Greth committed
an unfair labor practice and violated his rights to engage in concerted activities for the
purposes of collective bargaining under the National Labor Relations Act (NLRA).6
We summarily dispose of this argument. Initially, the LIU is considered
to be a public entity, see generally Arnold v. BLaST Intermediate Unit 17, 843 F.2d
122 (3d Cir. 1988), and the NLRA simply does not apply to public employers, Lyes v.
City of Riviera Beach, Florida, 166 F.3d 1332, 1342 (11th Cir. 1999) (en banc)
(citing Section 152(2) of the NLRA, 29 U.S.C. §152(2)). Moreover, even if the
NLRA applied to the LIU, it is beyond cavil that claims under the NLRA belong to
the exclusive jurisdiction of the National Labor Relations Board, International
Longshoremen’s Association v. Davis, 476 U.S. 380, 389-91 (1986), and if Petitioner
wanted to advance his claim before that Board, he should have filed a declaratory
action seeking to stay the Secretary’s proceedings or asserted a claim and/or the
defense of preemption under the NLRA, see Bud Antle, Inc. v. Barbosa, 35 F.3d
1355, 1362-63 (9th Cir. 1994). Petitioner did not do so and the consequent result is
that he cannot litigate an NLRA unfair labor practice claim in these proceedings.
(continued…)
6
29 U.S.C. §§151 — 168.
26
Due Process – Adequate Notice and Prompt Hearing
Finally, Petitioner contends that the termination procedures of the Code
were violated, see section 1127 of the Code, 24 P.S. §11-1127, as well as his due
process rights, and that the Secretary erred in failing to find that the LIU did not
provide him with adequate notice of the charges or a meaningful hearing on the
charges. More specifically, Petitioner contends that the notice of hearing/statement
of charges was defective because it was not signed by the president of the Board of
the LIU, was not attested to by the secretary of the Board, did not indicate that it was
sent via registered mail, was not delivered after the Board passed a resolution
dismissing him, and the details of charges were provided to Petitioner’s counsel and
not Petitioner himself.
However, Petitioner did not raise any of these issues before the
Secretary. Pursuant to doctrinal case law, these issues are waived and cannot be
raised in this Court for the first time. See Ward v. Board of Education of the School
District of Philadelphia, 496 A.2d 1352, 1356 (Pa. Cmwlth. 1985) (“As he failed to
raise this issue before the Secretary, it may not be considered for the first time on
judicial review and we must consider that issue as waived.”); see also M.T. v.
Department of Education, 56 A.3d 1, 10 n.12 (Pa. Cmwlth. 2010) (“The failure of a
party properly to raise and preserve an issue before an administrative agency results
in waiver of that issue before this Court.”); East Allegheny School District v.
Secretary of Education, 603 A.2d 713, 715-16 n.5 (Pa. Cmwlth. 1992) (finding due
process claim regarding the lack of hearing waived where petitioner did not raise the
27
issue before the Secretary).7 Therefore, we conclude that Petitioner’s final issues do
not merit relief.8
7
Even if these issues were not waived, we note that Petitioner’s claims essentially challenge
the procedural and technical aspect of his termination. “While not capable of an exact definition,
basic elements of procedural due process are adequate notice, the opportunity to be heard, and the
chance to defend oneself before a fair and impartial tribunal having jurisdiction over the case.”
Commonwealth v. Wright, 961 A.2d 119, 132 (Pa. 2008).
Here, the notice of hearing/statement of charges advised Petitioner that his recommended
dismissal was “based on persistent negligence in the performance of duties and willful neglect of
duties and violation of school laws as contemplated by Section 1122 of the Public School Code”
and reiterated that “[t]he recommendation for dismissal and the nature of the charges against you
have been summarized in a letter to your attorney dated January 15, 2015.” (R.R. at 518a-19a.)
The notice of hearing/statement of charges also informed Petitioner of his “statutory and
constitutional rights to a hearing before the Board,” explained to him his right to present evidence,
and provided him with the date and place of the hearing. Id. Further, the notice was signed by Dr.
Zeroth, the Executive Director of the LIU, Petitioner admittedly received the notice, and his
attorney, or, in other words, authorized agent, received the details of the charges on his behalf.
On this record, Petitioner clearly received fair and sufficient notice and, as the transcript of
the hearing indicates, a full opportunity to present his case and litigate the issue as to whether he
should be discharged. In this context, the fact that the notice of hearing/statement was not signed
by the President of the Board, was not attested to by the Secretary of the Board, and may not have
been delivered through registered mail, assuming these are statutory violations, they are de minimis
in nature. Notably, Petitioner does not allege (nor can we discern) that he suffered any prejudice as
a result of these purported statutory transgressions. See Messina v. East Penn Township, 995 A.2d
517, 533 (Pa. Cmwlth. 2010) (en banc) (“[A] party raising a procedural due process challenge
usually must prove prejudice”); see also D.Z. v. Bethlehem Area School District, 2 A.3d 712, 722
(Pa. Cmwlth. 2010) (“Because demonstrable prejudice is a ‘key factor’ in determining whether a
denial of procedural due process occurred, and because [the petitioner] does not clearly explain how
she suffered prejudice, no procedural due process violation is apparent.”) (citation omitted).
8
To the extent that Petitioner claims that the Board failed to pass a resolution or otherwise
resolve to terminate him from employment prior to the hearing, and that Dr. Zeroth’s notice of
hearing/statement of charges was insufficient because she was a member of the administrative staff
and not the Board, this argument does appear to possess merit. See School District of Philadelphia
v. Jones, 139 A.3d 358, 370-71 (Pa. Cmwlth. 2016) (en banc); Patchel v. Board of School Directors
of Wilkinsburg School District, 400 A.2d 229 (Pa. Cmwlth. 1979) (stating and reaffirming the
proposition that, under section 1127 of the Code, the Board – and not administrative staff and/or
(Footnote continued on next page…)
28
(continued…)
officials – must initially and officially resolve or make the decision to demote and/or terminate a
professional employee before a hearing is held); Abington School Board v. Pittenger, 305 A.2d 382,
387 (Pa. Cmwlth. 1973); see also Vladmirsky v. School District of Philadelphia, 144 A.3d 986, 994-
1000 (Pa. Cmwlth. 2016) (citing and discussing Pittenger). However, Petitioner did not raise this
argument before the Board or the Secretary and it would be manifestly unjust to allow him to set
aside his termination on this procedural ground when he has asserted it for the first time in this
appeal at this late stage of the proceedings. Indeed, in Pittenger, this Court emphasized:
We repeat, the record in this case is not one where the professional
employe sat back and asserted no claim to an improper procedural
defect in his demotion. [The petitioner’s] counsel, in every
proceeding, has raised this issue. It would have been a simple matter
for the Board to have cured the defects at the outset. The Board only
needed to have passed a resolution that it had sufficient evidence to
support its belief, to demote [the petitioner] by some given date, and
therein direct the Secretary and President of the Board to serve notice
upon [the petitioner] of this fact and to advise him of his right to a
hearing. At this point, [the petitioner] would have had a decision to
make: whether to request the hearing or consent to the demotion. The
Board did not follow this procedure. Instead, it permitted its
administrative staff to demote [the petitioner] without Board action,
and only after [the petitioner] demand for a hearing, set the wheels in
motion for a hearing several months later. As alluded to hereinbefore,
the Board did not know the contents of the charges which had been
promulgated by the Principal until the first day of hearing. This was
improper.
Pittenger, 305 A.2d at 384.
As noted in Pittenger, had Petitioner raised his argument regarding the Board’s lack of
involvement with the pre-termination notice in a timely fashion, the Board could have easily
rectified the error by passing a resolution. Although some may deem Pennsylvania’s waiver rule to
be unnecessarily strict, there is good reason not to allow Petitioner to raise this waived argument
now because, although Petitioner was validly terminated on the merits, he could potentially receive
years’ worth of back-pay – for time in which he did not work – based upon a procedural irregularity
that was readily curable. See Jones, 139 A.3d at 376-77. If this Court permitted Petitioner to raise
his argument and addressed it on the merits, we would, in effect, condone the practice of allowing a
party to sit back in silence, take a chance through the lengthy adjudicatory process, and when worse
comes to worse, pull out a game-winning card that results in an unfair wind fall. See Zeman v.
(Footnote continued on next page…)
29
Conclusion
For the foregoing reasons, we conclude that there was sufficient
evidence, as a matter of law, supporting the Secretary’s decision to terminate
Petitioner from his employment. We further conclude that Petitioner’s claims and/or
purported defenses under the ADA, RA, and NLRA are devoid of merit. Finally, we
conclude that Petitioner’s remaining arguments are waived for failing to properly
raise and preserve them before the Secretary. Accordingly, we affirm the Secretary’s
July 26, 2016 order.
________________________________
PATRICIA A. McCULLOUGH, Judge
(continued…)
Borough of Canonsburg, 223 A.2d 728, 729-730 (Pa. 1966) (“A party may not remain silent and
take his chances on a verdict and then, if it is adverse, complain of mere inadequacy which could
have been corrected.”). This we will decline to do and, instead, will follow Pennsylvania’s
longstanding rule on waiver. See Commonwealth v. Colavita, 993 A.2d 874, 891 (Pa. 2010) (“It is a
settled principle of appellate review, of course, that courts should not reach claims that were not
raised below . . . . This Court has consistently held that an appellate court cannot reverse . . . on a
basis that was not properly raised and preserved by the parties . . . . The rule is no different in the
constitutional context.”) (citation and internal quotation marks omitted).
30
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard J. Erdlen, Jr., :
Petitioner :
: No. 1435 C.D. 2016
v. :
:
Lincoln Intermediate Unit No. 12, :
Respondent :
ORDER
AND NOW, this 13th day of July, 2017, the July 26, 2016 order of the
Secretary of the Department of Education is hereby affirmed.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Richard J. Erdlen, Jr., :
Petitioner :
:
v. :
:
Lincoln Intermediate Unit No. 12, : No. 1435 C.D. 2016
Respondent : Argued: March 7, 2017
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
CONCURRING AND DISSENTING
OPINION BY JUDGE COSGROVE FILED: July 13, 2017
Richard J. Erdlen, Jr. (Petitioner) acted in a manner that was clumsy at
best, but could easily be characterized as rude and obnoxious. The record,
however, suggests that throughout this incident, Petitioner was primarily motivated
by his concern for the well-being of a child. The response on the other side,
however, whatever its positive motives, seems replete with concern that outside
discussion would damage institutional reputation. As a result, no one comes out of
this controversy looking their best.
This is the type of case which should have been the subject of
mediation. There, the parties would have been able to present their differences,
and perhaps a lengthy educational career could have been protected, and concerns
for the subject child addressed. The result mandated by the Majority would
possibly have been the same, but just as possibly not. Whether the door to
amicable resolution between the parties themselves is closed or not is certainly up
to them.
This Court's involvement in all this should be limited to the narrow
issue of whether the record requires affirmance or reversal of the termination
decision. I do not agree with the Majority's resolution of Petitioner's claim under
the Americans with Disabilities Act (ADA),1 as that may continue to have life, nor
do I agree with the Majority's waiver analysis. On these points, I dissent. Taking
these issues out of the equation, however, and on the thin ground remaining, I
concur only in the result.
___________________________
JOSEPH M. COSGROVE, Judge
1
42 U.S.C. §§ 12101-12213.
JMC-2