SD of Philadelphia v. S. Chek ( 2020 )


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  •             IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    School District of Philadelphia,               :
    Petitioner                 :
    :
    v.                              :
    :
    Sonarith Chek,                                 :   No. 1266 C.D. 2019
    Respondent               :   Submitted: June 12, 2020
    BEFORE:        HONORABLE ANNE E. COVEY, Judge
    HONORABLE CHRISTINE FIZZANO CANNON, Judge
    HONORABLE J. ANDREW CROMPTON, Judge
    OPINION NOT REPORTED
    MEMORANDUM OPINION
    BY JUDGE FIZZANO CANNON                            FILED: July 7, 2020
    The School District of Philadelphia (District) petitions for review from
    the August 15, 2019 order of the Secretary of Education (Secretary) that reversed its
    decision to dismiss Sonarith Chek (Chek), a tenured professional employee, and
    ordered Chek’s reinstatement. The Secretary reversed Chek’s dismissal for two
    reasons. First, the Secretary concluded that Chek did not receive due process
    because the District failed to comply with the procedures required by the Public
    School Code of 1949 (School Code).1 Second, the Secretary concluded that the
    District did not meet its burden of showing a valid cause to terminate Chek. Upon
    review, we affirm.
    1
    Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-XXX-XX-XXXX.
    On or about September 1, 1994, the District hired Chek as a
    professional employee and during his last year of employment, the 2017-2018 school
    year, Chek was assigned to the Penn Treaty School as a social studies teacher.
    Secretary of Education, Opinion and Order dated 8/15/19, Findings of Fact (F.F.) 1
    & 3. Principal Sam Howell (Principal Howell) supervised Chek while he was at
    Penn Treaty School and often spoke with Chek about classroom management and
    other concerns. F.F. 5; Notes of Testimony (N.T.) 21, 49.
    In 2017, Principal Howell initiated an investigation into two incidents
    giving rise to the current dispute. The first incident occurred on October 2, 2017
    when a student in Chek’s classroom climbed out of the window and on to the top of
    the gymnasium roof, which was adjacent to the windowsill of the classroom window.
    F.F. 6-7. At the time, Chek was in the classroom taking roll and could not see the
    window. F.F. 8. The other students in the room reported to Chek that the student in
    question was trying to climb out the window. F.F. 9. Chek told the student to come
    back into the room and sit down and the student complied with his request. F.F. 10-
    11. At the time of the incident, Chek was aware that the screws and grate on the
    window had been loosened, which enabled the student to climb out of the window.
    F.F. 16. Before this incident, Chek verbally reported to the custodian that the
    window needed repair. F.F. 16-17. The custodian told Chek to report that the grate
    had been loosened to the building engineer but Chek failed to do so. F.F. 17-18.
    When Principal Howell investigated this incident, he discovered that the screws had
    been loosened and the window was subsequently repaired so that students could no
    longer climb out of the window. F.F. 15, 20.
    The second incident occurred on October 13, 2017, and involved a
    physical altercation with a student. F.F. 21, 24-30. While Chek was teaching, a
    2
    student was tossing a paper plane around a classroom and refused to sit down with
    his classmates. F.F. 21-22. Chek took the paper plane away, crunched it, and threw
    it in the trash. F.F. 23. In response, the student “punched” Chek in the stomach and
    sat at Chek’s computer. F.F. 24-25. Chek told the student to get away from the
    computer and pulled the student up by the book bag. F.F. 26-27. At that point, the
    student punched Chek a second time and knocked over a fan. F.F. 28. Chek tried
    to grab the student’s book bag as Chek held the door open and, apparently not
    expecting the door to be open, the student ran out the door and fell on the floor. F.F.
    29-30. The student reported that Chek pushed him out of the classroom and onto the
    floor. F.F. 31. Chek “did not admit to pushing the student out of the door” but
    admitted to closing the door after the student ran out of the classroom. F.F. 32-33.
    Chek did not leave the classroom to see if the student was injured, nor did he call
    security. F.F. 34.
    Principal Howell investigated the second incident and, as part of that
    investigation, obtained 12 witness statements, which included 10 statements from
    students, 1 statement from the speech pathologist for the school, and 1 statement
    from Chek. F.F. 35-39. Based on the information gathered, the District concluded
    that Chek pushed the student out of the classroom and onto the floor. F.F. 40. The
    incident was reported to the Pennsylvania Department of Human Services, which
    subsequently investigated and “concluded that the incident was unfounded.” F.F.
    43, 51.
    On October 16, 2017, Chek was reassigned to the Education Center
    pending an investigation and, while at the Education Center, he was not given any
    work. F.F. 44-45. Two days later, on October 18, 2017, Principal Howell held an
    3
    investigatory conference to discuss both incidents.2 F.F. 48. On November 15,
    2017, Principal Howell wrote an unsatisfactory incident report in which he
    recommended that Chek be terminated and that the unsatisfactory incident report
    and all related attachments be included in his personnel file. F.F. 50. On December
    5, 2017, Chek met with Principal Howell at a second disciplinary conference. F.F.
    52. Following this conference, Principal Howell did not amend his recommendation
    for disciplinary action but forwarded his findings for a second level review. F.F. 53.
    On March 28, 2018, Chek attended a second level conference with the District where
    Chek agreed that “it was improper to physically touch a student in any way.” F.F.
    54-55.
    On June 21, 2018, the School Reform Commission (SRC)3 at a public
    meeting resolved that there existed evidence to support the recommendation of the
    Superintendent to terminate the employment of Chek. F.F. 56. On August 3, 2018,
    the School Board of Philadelphia (Board) provided Chek with a written notice that
    included a statement of charges, informed Chek of his right to a hearing, and
    scheduled a hearing before the SRC. F.F. 62; Reproduced Record (R.R.) at 100a-
    02a. On August 8, 2018, Chek elected a hearing before the Board. F.F. 69.
    While the charges were pending and prior to Chek’s hearing, the
    District, by notice dated August 21, 2018, suspended Chek without pay effective
    August 20, 2018. F.F. 72. The August 20, 2018 notice indicated that Chek was
    2
    Chek and his union representative participated in this conference with Principal Howell.
    Reproduced Record at 101a.
    3
    The SRC is an instrumentality of the school district with the authority to exercise the
    powers of the local school board. Vladimirsky v. Sch. Dist. of Phila., 
    144 A.3d 986
    , 989 n.2 (Pa.
    Cmwlth. 2016). At some point during these proceedings, the SRC was dissolved pursuant to law
    and the governance returned to the School Board of Philadelphia. F.F. 60.
    4
    suspended “on the grounds of persistent and willful violation of or failure to comply
    with the school laws of the Commonwealth, including official directives and
    established policy of the Board of Directors.” F.F. 73.4
    On October 30, 2018, Chek’s hearing was held before the Board’s
    appointed hearing officer. F.F. 75. At the hearing, the District presented the
    testimony of a District administrator and the speech language pathologist. F.F. 76.
    Chek appeared and testified on his own behalf. F.F. 77. Several months later, on
    January 10, 2019, the Board’s appointed hearing officer recommended that Chek be
    dismissed, effective immediately, for the reasons set forth in his findings of fact and
    conclusions of law submitted with his recommendation. F.F. 78. With his proposed
    recommendation, the hearing officer provided a proposed adjudication for the Board
    that included a resolution to dismiss Chek from employment with the District. F.F.
    79. A week later, on January 17, 2019, the Board, at a public meeting, voted to
    dismiss Chek from his employment by two-thirds vote and, in doing so, adopted the
    resolution proposed by the hearing officer. F.F. 80-82; R.R. 37a, 152a. Chek
    appealed the Board’s decision to the Secretary.
    On August 15, 2019, the Secretary reversed the decision of the Board
    to terminate Chek and ordered the Board to reinstate his employment with the
    District. Secretary’s Order dated 8/15/19. The Secretary gave two reasons for his
    decision. First, the Secretary concluded that Chek was dismissed in violation of the
    “strict procedure outlined in the . . . School Code” and, therefore, Chek was denied
    “due process of law.” Secretary’s Opinion at 13. Second, the Secretary concluded
    that the Board erred when it terminated him for cause pursuant to the School Code
    4
    On September 7, 2018, the Department of Labor and Industry held that Chek was not
    ineligible for unemployment compensation benefits in that his work-related conduct did not rise
    to the level of willful misconduct. F.F. 74.
    5
    because the evidence shows that Chek did not “persistently and willfully violate the
    school laws of the Commonwealth by violating the District’s policy against
    physically aggressive behavior by teachers toward students.”
    Id. at 16.
    The District
    petitioned this Court for review.5
    Before this Court, the District asserts that the Secretary erred when he
    concluded that the District did not have cause under the School Code to terminate
    Chek’s employment. District’s Brief at 12. The District states that the Secretary
    abused his discretion when he discredited “eyewitness testimony without discussion
    or analysis and sufficient evidence does not support the findings supporting the
    discussion.”
    Id. Section 1122
    of the School Code provides the “only valid causes for
    termination” of a contract entered into with a tenured professional employee. 24
    P.S. § 11-1122. It is the District’s burden to prove that a professional employee
    committed one or more of the statutorily enumerated acts. Foderaro v. Sch. Dist. of
    Phila., 
    531 A.2d 570
    , 571 (Pa. Cmwlth. 1987). Here, the District charged Chek with
    “persistent negligence in the performance of duties; willful neglect of duties;
    intemperance; cruelty; and persistent and willful violation of or failure to comply
    with school laws of this Commonwealth, including official directives and
    established policy of the board of directors,” R.R. at 100a, which are charges
    expressly provided for in Section 1122 of the School Code.6 Though the charges are
    5
    Our review of the Secretary’s order is limited to determining whether an error of law was
    committed, constitutional rights were violated, or necessary findings of fact were unsupported by
    substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; McCoy v.
    Lincoln Intermediate Unit No. 12, 
    391 A.2d 1119
    , 1121 (Pa. Cmwlth. 1978).
    6
    Section 1122 provides:
    6
    provided by Section 1122, the Secretary concluded that the District did not meet its
    burden of proof because there was “insufficient support in the record” for the
    allegation that “Chek persistently and willfully violated and/or failed to comply with
    the school laws of the Commonwealth, including the official directives and
    established policy of the board of directors.” Secretary’s Opinion at 16. The
    Secretary additionally concluded that “Chek was not intemperate and was not cruel.”
    Id. Upon review,
    we agree.
    The District alleged that Chek “persistently and willfully” violated or
    failed to comply with school laws, including official directives and established
    policy of the Board, but the statement of charges do not specifically identify which
    law, directives or Board policies that Chek allegedly violated. R.R. at 100a-01a.
    The basis for the District’s charges were the two incidents that occurred on October
    2, 2017 and October 13, 2017.
    Id. The Secretary
    found that with the first incident,
    a student climbed out of the classroom window and onto the gymnasium roof while
    Chek was taking roll and could not see the window. F.F. 7-8. The other students in
    the class told Chek that the student had climbed out the window. F.F. 9. Chek told
    the student to come back into the classroom and sit down and the student complied.
    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; wilful neglect of
    duties . . . persistent and wilful 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.
    7
    F.F. 10-11. The student was able to climb out of the window because the screws
    and the grate on the window had been loosened. F.F. 15.
    The Secretary found that with the second incident, a student was
    “tossing a paper plane around a classroom” in which Chek was teaching and “refused
    to sit down with his classmates.” F.F. 21-22. Chek took the paper plane away,
    crunched it, and threw it in the trash. F.F. 23. The student retaliated by punching
    Chek in the stomach and sitting at Chek’s computer. F.F. 24-25. Chek told the
    student to get away from the computer and “pulled the student up by the book bag.”
    F.F. 26-27. The student punched Chek again and knocked down a fan. F.F. 28.
    Chek tried to grab the student’s book bag as Chek held the door open and, not
    expecting the door to be open, the student ran out the door and fell on the floor. F.F.
    29-30.
    In its statement of charges, the District suggested that Chek violated a
    law, directive or policy because “there was physical contact” with a student. R.R. at
    101a. During the second-level conference, the District noted that Chek agreed that
    it is improper to “physically touch a student in any way.” R.R. at 101a; F.F. 55. The
    District, however, never alleged that Chek touched a student with the first incident
    as the basis for this charge was failure to supervise the students in his class. F.F. 19;
    District Ex. 1. The Secretary’s findings do not establish that Chek physically
    touched the student during the second incident. Moreover, the Department of
    Human Services concluded that the second incident was unfounded. F.F. 51; Chek
    Ex. 12.
    Additionally, the facts do not support the conclusion that Chek willfully
    or persistently violated any law, directive or Board policy. Horton v. Jefferson Cty.-
    Dubois Area Vocational Tech. Sch., 
    630 A.2d 481
    , 484 (Pa. Cmwlth. 1993) (stating
    8
    that willfulness “requires the presence of intention and at least some power of
    choice” and 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”);
    Lucciola v. Sec’y of Educ., 
    360 A.2d 310
    , 312 (Pa. Cmwlth. 1976). The District
    alleged with the first incident that Chek failed to supervise his students and alleged
    with the second incident he used physical force against a student. F.F. 19, 40.
    However, based on the facts as found by the Secretary, there is nothing to suggest
    that Chek intentionally failed to supervise his students or that he intentionally sought
    to physically harm his student. Although there were two incidents that occurred in
    close proximity, the nature of each incident was very different. Gobla v. Bd. of Sch.
    Dirs. of Crestwood Sch. Dist., 
    414 A.2d 772
    , 775 (Pa. Cmwlth. 1980) (stating that
    when evaluating persistency it is “in the very nature of the offense that it entails a
    series of deliberate violations accumulated over a period of time”). These two
    incidents in close proximity involving very different facts, that is, a student climbing
    out of a window and Chek’s attempt to control a student disrupting the class, do not
    support a conclusion that Chek’s conduct entailed a series of “deliberate violations”
    over a period of time to show persistency.
    Nevertheless, the District asserts that Chek willfully neglected his
    duties, with respect to the first incident, because he failed to properly supervise the
    students. District’s Brief at 28. The District contends that Chek “regularly took roll
    from a position where he could not see all of his students, particularly those near a
    window that he knew a child could open because the safety grill was loose.”
    Id. To dismiss
    a professional employee for willful neglect of duties, a district must show
    that the employee intentionally disregarded his known duties. Flickinger v. Lebanon
    Sch. Dist., 
    898 A.2d 62
    , 67 (Pa. Cmwlth. 2006) (holding that the failure of a principal
    9
    to immediately respond to the report of a gun in the school was a choice that he made
    as he knew he was required to respond immediately to a report of a gun and,
    therefore, his conduct constituted willful neglect of duty as it placed the students in
    danger); Williams v. Joint Operating Comm. of the Clearfield Cty. Vocational-Tech.
    Sch., 
    824 A.2d 1233
    (Pa. Cmwlth. 2003) (holding that assistant director’s act of
    opening bids before the bid submission deadline and discussing the content of the
    bids with one of the bidders of the project was a willful neglect of duty because
    doing so was illegal).
    Here, however, the District does not explain how Chek’s taking roll
    during class constitutes a failure to supervise his students. Additionally, the District
    does not explain how Chek’s failure to have the grate repaired on the window
    violated a duty that he owed or knew about and intentionally or purposefully
    disregarded. Chek reported the loose grate to the custodian, who told him to report
    it to the building engineer but Chek failed to do so. F.F. 16-18. The District does
    not cite to any law, policy or Board directive that required Chek to follow up with
    the building engineer to ensure that the repair was made to his classroom or that he,
    in any way, intentionally disregarded such a policy or directive to result in the
    incident.
    Next, the District asserts that it had cause to terminate Chek for
    intemperance and cruelty based on the second incident as it involved a physical
    altercation with the student. District’s Brief at 27. A district may dismiss a
    professional employee for cruelty when a teacher intentionally and maliciously
    inflicts physical suffering upon a student. Blascovich v. Bd. of Sch. Dirs. of
    Shamokin Area Sch. Dist., 
    410 A.2d 407
    , 408-09 (Pa. Cmwlth. 1980). A district
    may dismiss a professional employee for intemperance when the employee exhibits
    10
    a loss of self-control, which may be inferred from the use of excessive force.
    McFerren v. Farrell Area Sch. Dist., 
    993 A.2d 344
    , 360 (Pa. Cmwlth. 2010);
    Belasco v. Bd. of Pub. Educ. of Sch. Dist. of Pittsburgh, 
    486 A.2d 538
    , 541-42 (Pa.
    Cmwlth. 1985), aff’d, 
    510 A.2d 337
    (Pa. 1986). Upon review of the record and the
    Secretary’s findings, however, we agree that there is no evidence to support a
    conclusion that Chek’s conduct was cruel or exhibited a loss of self-control or
    excessive use of force.
    The District argues that Chek acted cruelly and with intemperance, that
    is, excessive force, because “[a]fter the [student] hit him and played with his fan and
    computer, Chek threw him out of the room with such force that the [student] hit his
    head on the lockers across the hallway.” District’s Brief at 27. In support, the
    District relies on statements made by the speech language pathologist and the student
    involved in the incident. The speech pathologist testified that he was in the hallway
    during the incident and saw the student hit the lockers on the other side of the
    hallway and slam into the floor. F.F. 38; N.T. 64-69; District Ex. 3. The speech
    pathologist left the scene to get the school nurse to verify that the student was not
    injured but by the time he returned, the student had left the area. F.F. 41. The student
    involved in the incident stated that Chek pushed him out of the classroom. F.F. 31;
    District Ex. 3. However, the Secretary did not find the speech pathologist or the
    student’s statements credible when evaluated against Chek’s testimony.
    The Secretary stated:
    I have accepted . . . Chek’s testimony to be credible. To
    the extent . . . Chek’s testimony is contradicted by the
    testimony of the speech language pathologist, I have found
    the speech language’s testimony not credible. To the
    extent that . . . Chek’s statements are contradicted by
    witness statements in documents where the witnesses did
    11
    not appear and confirm those statements at the hearing, I
    have found those statements to be not credible.
    See Secretary’s Opinion at 16. The Secretary is the ultimate fact finder when, as
    here, he makes findings of fact. Balog v. McKeesport Area Sch. Dist., 
    484 A.2d 198
    ,
    200 (Pa. Cmwlth. 1984). As the ultimate fact finder, the Secretary renders credibility
    determinations of the witnesses. Rhodes v. Laurel Highlands Sch. Dist., 
    544 A.2d 562
    , 565 (Pa. Cmwlth. 1988). Though the District argues that the Secretary’s
    credibility determination regarding the speech language pathologist was “arbitrary
    and capricious” because it was based on “random or convenient selection,” we
    disagree. District’s Brief at 25.
    As stated by the Secretary, he reviewed the testimony of Chek and the
    speech pathologist and made the determination that Chek’s testimony was credible.
    The Secretary accepted Chek’s testimony that Chek did not touch the student
    because Chek tried to grab the student’s book bag as Chek held the door open and,
    apparently not expecting to door to be open, the student ran out the door and fell on
    the floor. F.F. 29-30; N.T. 94-96; District Ex. 9. The record supports the Secretary’s
    finding as Chek testified:
    Before this incident, [the student] was tossing a paper
    plane all over the place. He refused to sit down with his
    classmates. Eventually, I went and grabbed the plane, the
    paper plane, crunched it up and [threw] it in the trash.
    That’s when he hit me in the stomach. I ignore[d] it. I
    thought it was over. Then he sat down.
    Eventually, he got up again because he was upset
    because I took--I’m assuming because I took the paper
    airplane away from him. So then he proceed to move
    around the room.
    12
    Eventually, he moved towards my laptop where I
    take roll. I asked [the student] to please get up, go back to
    his seat. He ignored me. I asked him a couple of times to
    --and eventually I walked over to close my laptop. I let
    him sit there but I closed my laptop.
    Then he opened it back up again. So I close[d] it
    again. Then he got real angry. He got up. Hit me in the
    stomach. Knock a fan down and ran toward the door. Ran
    full speed toward the door.
    I’m trying to grab him. Ran up to him and . . . I tried
    to--the backpack here and I tried to lift it like that. He had
    his backpack on, lift with my thumb, tried to lift him up
    like that. That’s when he got upset and hit me. Knocked
    the fan down and ran out the door.
    Q. He ran out the door?
    A. Yes. He ran, he definitely ran and then when I tried--
    when I almost like got him, like grab--touch his backpack
    and he just went through and dove. He dove toward the--
    out the hallway. Then he land. . . .
    Q. When you say he went to run out of the classroom--
    A. Yes.
    Q. --and what did you do? You said you touched the
    backpack, what were you trying to do with the backpack
    at that point?
    A. Trying to prevent him from running out.
    Q. How did you grab it? Did you grab the top of it or what
    did you do?
    A. Grab the top. Tried to grab the top, but he just ran.
    He’s running full force, so it’s hard to--he just--it
    happened so fast. So, like, then I closed the door.
    Q. Did you push him at any point?
    A. No.
    N.T. 93-96. Chek further testified that about 15 minutes or less after the incident the
    student walked by the classroom. Chek noted: “I saw him, he was coming up from
    the room, walking after his statement from the statement room and he looked at me,
    he just smiled and walked on and that was it. So I assumed he wasn’t hurt. . . .”
    N.T. 114. See F.F. 42 (finding that “Chek saw the student walking by his classroom
    13
    approximately 15 minutes later and assumed he was not injured”). Because
    Secretary’s findings of fact are supported by competent evidence, we must accept
    those findings on appeal. 
    Balog, 484 A.2d at 200
    .
    Based upon a review of the Secretary’s findings, which are supported
    by competent evidence of record, the Secretary appropriately concluded that Chek’s
    conduct was not cruel and did not demonstrate a loss of self-control or excessive
    force to support the charge for intemperance. Therefore, the District did not meet
    its burden of showing valid cause to terminate Chek from his employment pursuant
    to Section 1122 of the School Code.7
    Accordingly, we affirm the order of the Secretary.
    __________________________________
    CHRISTINE FIZZANO CANNON, Judge
    7
    Based on our conclusion with respect to this issue, we need not address the District’s
    arguments regarding its compliance with the procedures of the School Code.
    14
    IN THE COMMONWEALTH COURT OF PENNSYLVANIA
    School District of Philadelphia,       :
    Petitioner         :
    :
    v.                        :
    :
    Sonarith Chek,                         :   No. 1266 C.D. 2019
    Respondent          :
    ORDER
    AND NOW, this 7th day of July, 2020, the August 15, 2019 order of
    the Secretary of Education reversing the termination of Sonarith Chek and
    reinstating him as a professional employee is AFFIRMED.
    __________________________________
    CHRISTINE FIZZANO CANNON, Judge