R. Carpenter v. William Penn S.D. ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Randolph Carpenter, :
Appellant :
:
v. : No. 1123 C.D. 2021
: Argued: March 7, 2023
William Penn School District :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION
BY SENIOR JUDGE LEAVITT FILED: May 4, 2023
Randolph Carpenter appeals an order of the Court of Common Pleas of
Delaware County (trial court) granting the William Penn School District’s (School
District) motion for summary judgment and dismissing Carpenter’s complaint with
prejudice. In his complaint, Carpenter asserted a claim under Section 3 of the
Whistleblower Law,1 which prohibits an employer from retaliating against an
employee who makes a good faith report of wrongdoing by a public body. On
appeal, Carpenter argues that the trial court erred in concluding that he did not
demonstrate a causal connection between his reports of the School District’s
wrongdoings and its retaliatory employment acts. Specifically, in reaching this
conclusion, the trial court made factual findings and credibility determinations in the
light most favorable to the School District, which is inappropriate at the summary
judgment stage of litigation. After review, we reverse and remand the matter to the
trial court for further proceedings.
1
Act of December 12, 1986, P.L. 1559, as amended, 43 P.S. §1423.
Background
Carpenter is a current employee of the School District and has been
employed in various positions since October 2009. For the 2016-2017 school year,
Carpenter accepted a newly created School District position as an emotional support
supervisor. In this capacity, Carpenter oversaw and developed emotional support
programs throughout the School District. He also served as the School District’s
liaison with the Child Guidance Resource Center (Child Guidance), a third-party
contractor that provides emotional support services to School District students.
After Carpenter began work in this new position, he registered several
complaints of wrongdoing by the School District including: (a) failure to maintain a
safe “time out” room for student behavior de-escalation; (b) failure to implement
Individualized Education Plans (IEPs) as required by the Individuals with
Disabilities Education Act, 20 U.S.C. §1400; (c) failure to maintain the staffing level
of social workers and mental health workers needed to serve special education
students; (d) submission of fraudulent IEPs to the Pennsylvania Department of
Education; and (e) submission of fraudulent billing for therapy and counseling
services to Medicaid. Carpenter registered these complaints with Catherine
Greenstein, his supervisor and the director of the special education department; Jane
Harbert, the School District’s superintendent; Joseph Conley, the human resources
director; and the School District’s Board of School Directors (School Board).
By letter of July 10, 2017, the School District notified Carpenter that it
had eliminated his emotional support supervisor position and offered him four other
positions. Carpenter accepted a 7th grade English teaching position, a 9-month
position that reduced his annual salary by approximately $17,000. Between 2017
2
and 2020, Carpenter applied for 14 promotions within the School District but was
not selected for any of them.
Carpenter filed a complaint against the School District under the
Whistleblower Law. The complaint alleged that the School District retaliated
against Carpenter for registering good faith complaints of wrongdoing and waste.
The retaliation consisted of demoting him to a teaching position and not promoting
him to other positions for which he was qualified.
After discovery, the School District moved for summary judgment,
asserting that Carpenter did not meet his burden under the Whistleblower Law of
demonstrating that he had reported “wrongdoing or waste” as defined by the statute.2
In any case, Carpenter did not demonstrate that his reports of alleged wrongdoing
led to the elimination of his position as emotional support supervisor or to the School
District’s refusal to appoint him to other positions for which he was qualified. The
School District’s motion relied upon depositions of Carpenter, Greenstein, Harbert,
and Conley; the transcript of Carpenter’s Loudermill hearing;3 the School District’s
objections and answers to Carpenter’s two sets of interrogatories; the School
District’s July 10, 2017, letter notifying Carpenter that his position was eliminated;
and the resumes of Carpenter and the candidates who were selected by the School
District for the positions that Carpenter applied for between 2017 and 2020.
2
Section 2 of the Whistleblower Law defines “wrongdoing” as “[a] violation which is not of a
merely technical or minimal nature of a Federal or State statute or regulation, of a political
subdivision ordinance or regulation or of a code of conduct or ethics designed to protect the interest
of the public or the employer.” 43 P.S. §1422. “Waste” is defined as “[a]n employer’s conduct
or omissions which result in substantial abuse, misuse, destruction or loss of funds or resources
belonging to or derived from Commonwealth or political subdivision sources.” 43 P.S. §1422.
3
“A Loudermill hearing is a pre-termination hearing given to a public employee that is required
by due process, as established in Cleveland Board of Education v. Loudermill, 470 U.S. 532(1985).” Ray v. Brookville Area School District, 19 A.3d 29, 31 n.2 (Pa. Cmwlth. 2011).
3
The facts of record, as developed in discovery, follow. After Carpenter
began his work as an emotional support supervisor, he discovered that Greenstein
had not hired the social workers and mental health professionals needed to provide
the counseling services set forth in the IEPs of special education students. Carpenter
Deposition at 41-43; Reproduced Record at 115a-17a (R.R.___). He found that the
School District did not provide special education students the necessary materials
and services, and it did not properly train the special education and emotional
support teachers. Carpenter believed that the School District failed to provide a Free
and Appropriate Public Education (FAPE) to students with disabilities, in violation
of the Individuals with Disabilities Education Act. Carpenter registered his
complaints about these shortcomings with Greenstein, Harbert, and the School
Board.
Carpenter also discovered that the time-out room located at the Walnut
Street Elementary School had exposed electrical outlets and a “sharp object.”
Greenstein Deposition at 48; R.R. 498a. Carpenter reported this to Greenstein,
Harbert, Conley, and the School Board; however, no remedial action was taken until
a student suffered an injury. Greenstein Deposition at 48-49; R.R. 498a-99a. As
the director of special education, Greenstein was responsible for the safety of the
time-out room. Carpenter Deposition at 95; R.R. 169a.
The School District acknowledged the existence of Carpenter’s reports.
In its response to Carpenter’s first set of interrogatories, the School District stated
that “the [School Board] was advised by [Carpenter] who stood on many occasions
to make public comments about the time-out room with many people from the
[School] District at large in attendance. Therefore, it is assumed that as many people
know as [Carpenter] could humanly tell.” School District’s Objections and Answers
4
to Carpenter’s First Set of Interrogatories ¶13; R.R. 1210a. In addition, Harbert
testified that Carpenter had “the habit of bringing those [IEP-related issues] to a
business meeting of our School Board Directors, which [was] disruptive during our
business meetings.” Harbert Deposition at 48; R.R. 1170a.
Carpenter found that the School District had submitted incomplete IEPs
to the Pennsylvania Department of Education, which Carpenter believed was done
to obtain more funding. Specifically, many IEPs submitted to the Department of
Education, which were finalized by Greenstein, provided only basic demographic
information. The Department of Education does not review the IEPs; it “just
count[s]” the IEPs marked as finalized. Greenstein Deposition at 72; R.R. 522a.
When confronted by Carpenter, Greenstein stated that “it’s our dirty little secret
here.” Carpenter Deposition at 167; R.R. 241a. Carpenter registered this complaint
with Harbert, Conley, and the School Board. The School District assigned a solicitor
to investigate the matter, who determined that Carpenter’s allegations were
unfounded. Harbert Deposition at 46; R.R. 1170a.
Carpenter discovered that the School District requested reimbursement
for therapy services during periods of time when no therapist was available to
students. Carpenter Deposition at 193; R.R. 267a. When Carpenter questioned
Greenstein, she denied this claim. Id. at 203-04; R.R. 277a-78a.
In the summer of 2017, during the extended school year program,
Carpenter learned that the School District permitted a student who had sexually
assaulted other students to attend classes in a regular classroom, without notification
to parents and teachers. Carpenter Deposition at 109-12; R.R. 183a-86a. Carpenter
registered a written complaint with the School District for failure to notify teachers
and parents to ensure the safety of the students.
5
Days later, on July 10, 2017, the School District notified Carpenter by
letter that his position was being eliminated due to budgetary constraints. Carpenter
requested to “finish out the week” so that he could provide documentation to the
teachers, particularly in regard to the student with a history of sexual misconduct.
Carpenter Deposition at 123-24; R.R. 197a-98a. The School District refused.
Carpenter testified that during the School Board budget meeting held
in June of 2017, Jennifer Hoff, the School Board president, stated that all District
employees to be furloughed for budgetary reasons had already been notified.
Carpenter Deposition at 210, 215; R.R. 284a, 289a. Carpenter did not receive that
notification, and he was unaware that his position would be eliminated prior to
receiving the letter of July 10, 2017.
With respect to the budget, the School District stated that Greenstein
“worked together with other administrative District professionals to reduce costs as
the result of necessary budget cuts for the upcoming school year,” and she decided
to eliminate the emotional support supervisor position. School District’s Objections
and Answers to Carpenter’s First Set of Interrogatories ¶6; R.R. 1207a. The School
District also stated that Carpenter “was not demoted as the result of poor
performance[.]” Id. ¶7; R.R. 1207a. Nevertheless, when asked whether Carpenter’s
performance “played any part in [its] decision to ‘de-fund’ the Emotional Support
Supervisor position,” the School District responded:
Yes and No. “No” to the extent that the position was only created
and active for a year or less and was more of a “wish list item”
than a “needs list item” in the Special Education Department; and
“yes” because [Carpenter] did not perform in such an
extraordinary manner that made it impossible for the
administration to eliminate the position – [Carpenter’s]
performance evaluation for that year yielded 11 “needs
6
improvements” which could not alone justify keeping an
unnecessary position in the Special Education Department.
School District’s Objections and Answers to Carpenter’s Second Set of
Interrogatories ¶41; R.R. 1229a (emphasis in original).
Conley, the human resources director, testified that the emotional
support supervisor position was created to meet “the needs of our children.” Conley
Deposition at 27; R.R. 615a. He explained that the School District decided to
eliminate that position because it was “a brand new position . . . only in place for
one year,” and its contractor, Child Guidance, could provide “some of the services”
assigned to the position. Id. at 58; R.R. 646a. Conley testified that he and Greenstein
attempted on numerous occasions to conduct a performance evaluation with
Carpenter; however, they did not complete the evaluation until after Carpenter’s
position was eliminated.
Greenstein testified that the decision to eliminate the emotional support
supervisor position and two assistant principal positions was made by the
superintendent, Harbert, before the budget was adopted in June of 2017. Greenstein
testified as follows:
I didn’t make that decision. I was asked [by Harbert] my opinion
of whether the position was necessary, and . . . we had come to
find out that Child Guidance provided a clinical supervisor for
their [sic] staff, so it didn’t seem necessary to have an additional
supervisor for emotional support.
Greenstein Deposition at 91-92; R.R. 541a-42a. Greenstein also testified that the
School District attempted to notify Carpenter about the decision “for about [a] month
and a half over the summer” but was unable to contact him. Greenstein Deposition
at 93; R.R. 543a.
7
The record established that between 2017 and 2020, Carpenter applied
for 14 positions within the School District for which he was turned down. These
positions included teacher on special assignment, supervisor of secondary special
education, assistant principal, acting assistant principal, special education
supervisor, supervisor of innovation and personalized learning, and English/social
studies coaching. The School District responded that Carpenter was “minimally
qualified for each position” and that “the successful candidates were better suited
for the positions due to good interview answers and good previous experience.”
School District’s Objections and Answers to Carpenter’s Second Set of
Interrogatories, ¶34; R.R. 1226a.
Carpenter has a bachelor’s degree in communication and a master’s
degree in multi-cultural education, and he is certified for special education, English
instruction, and administrative principal. Carpenter has received several awards
during his employment with the School District, including Middle School Teacher
of the Year, Making a Difference Award, and Special Educator of the Month. For
the 2016-2017 school year, in which he served in the emotional support supervisor
position, Carpenter’s performance evaluation included one “distinguished,” seven
“proficient,” and eleven “needs improvement” rankings. School District’s
Objections and Answers to Carpenter’s First Set of Interrogatories, ¶11; R.R. 1209a.
Carpenter’s performance was not assessed as “unsatisfactory” because he did not
receive any “failing” rankings. Id.
8
Trial Court Decision
By order and opinion dated June 3, 2021, the trial court granted
summary judgment to the School District and dismissed Carpenter’s complaint with
prejudice. The trial court held that the record lacked “concrete facts” to establish a
causal connection between Carpenter’s reports of alleged wrongdoing and the
School District’s elimination of his position and subsequent refusals to hire him for
other positions. Trial Court Op. at 6 (quoting Golaschevsky v. Department of
Environmental Protection, 720 A.2d 757, 759 (Pa. 1998)). The record did not
establish that Greenstein, Harbert, Conley, or the School Board threatened adverse
consequences against Carpenter because of his reports. The trial court criticized
Carpenter’s “vague circumstantial evidence.” Trial Court Op. at 7. Nevertheless, it
found that Carpenter established the following:
• [Carpenter] was hired into this newly created role for the
2016-2017 school year and it was during this year that [he]
registered his reports of alleged wrongdoings.
• Within days of his last complaint, the [School District]
eliminated his position, allegedly due to budgetary
reasons.
• At a School Board meeting on June 12, 2017, the [School
Board] President stated that all employees who could
potentially be furloughed for budgetary purposes had
already been notified; however, [Carpenter] had not been
given notice at this time.
Id. However, the trial court rejected Carpenter’s suggested “inference of retaliatory
intent” by the School District as “unreasonable and inconsistent” with the other
record evidence. Trial Court Op. at 7. The trial court dismissed Carpenter’s
temporal proximity argument because, “in light of Greenstein’s testimony,” the
9
decision to eliminate Carpenter’s position was made before Carpenter’s final report
of alleged wrongdoing in July of 2017. Id. at 8-9.
On the School District’s decision not to hire him for any of the positions
for which Carpenter applied between 2017 and 2020, the trial court held that
Carpenter’s personal belief that he was more qualified than the selected candidates
did not demonstrate causation that could “withstand summary judgment.” Trial
Court Op. at 10. Specifically, the record lacked evidence on the identity of the
interviewers or the experience criteria used to evaluate the candidates. Carpenter’s
evidence did not demonstrate that he outperformed the other candidates during the
interview process or that the hiring committees relied upon Greenstein’s
performance evaluation in making their decision not to hire him for any of the 14
positions.
Concluding that Carpenter did not meet his burden of demonstrating a
causal connection between his reports of wrongdoing and the School District’s
decisions to eliminate his position as emotional support supervisor and not to
promote him, the trial court held that he did not establish a prima facie case for a
claim under the Whistleblower Law. Accordingly, the trial court did not reach the
issue of whether Carpenter’s complaints consisted of reports of “wrongdoings” or
“waste,” as defined by the Whistleblower Law. Trial Court Op. at 6.
Carpenter appealed to this Court.4
4
On August 31, 2021, the Superior Court transferred Carpenter’s appeal to this Court.
10
Appeal
On appeal,5 Carpenter raises two issues for our consideration.6 First,
he argues that the trial court erred in granting summary judgment because there is a
dispute of material fact surrounding the School District’s elimination of his position
as emotional support supervisor and its refusal to promote him to positions for which
he was qualified. Second, he argues that the trial court erred because it made factual
findings in a summary judgment motion and did not view the record in a light most
favorable to the non-moving party, Carpenter. Instead, the trial court viewed the
record in a light most favorable to the School District.
I. Disputed Facts on Causation
In his first issue, Carpenter argues that the trial court erred in granting
summary judgment because the record demonstrates that the facts material to the
causal connection between his reports of wrongdoings and the School District’s
decisions on his employment are disputed. Carpenter argues that the trial court
misconstrued Golaschevsky, 720 A.2d 757, and its progeny to mean that causation
can be established only through direct evidence. To the contrary, “surrounding
circumstances” can establish causation. Id. at 759; Evans v. Thomas Jefferson
University, 81 A.3d 1062, 1070 (Pa. Cmwlth. 2013). Moreover, Carpenter argues,
Golaschevsky and Evans are distinguishable. In those cases, the record lacked any
evidence of a retaliatory reason for the employer’s action. By contrast, here, the
5
“On appeal from a trial court’s order granting or denying summary judgment, our standard of
review is de novo and our scope of review is plenary.” Brewington v. City of Philadelphia, 149
A.3d 901, 904 n.3 (Pa. Cmwlth. 2016). Summary judgment is properly entered only when, “after
examining the record in the light most favorable to the non-moving party, and resolving all doubts
as to the existence of a genuine issue of material fact against the moving party, the moving party
is clearly entitled to judgment as a matter of law.” Pyeritz v. Commonwealth, 32 A.3d 687, 692
(Pa. 2011).
6
Carpenter’s statement of the questions raises three issues, which we combine into two for clarity.
11
record evidence demonstrates “sufficient temporal proximity to support an inference
of retaliatory intent.” Carpenter Brief at 34.
The record shows that on July 10, 2017, the School District notified
Carpenter that his position as the emotional support supervisor was being eliminated
days after he filed his most recent complaint of wrongdoing. The stated reason was
budgetary; however, Carpenter’s evidence showed that all employees under
consideration for furlough due to budget cuts were notified before the June 2017
School Board meeting. Carpenter was not notified until July. Carpenter also points
out that the School District offered inconsistent reasons for his demotion, which
“may be viewed as evidence tending to show pretext.” Carpenter Brief at 34
(quoting Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 284
(3d Cir. 2001)). For example, in discovery, the School District did not cite the
budget but stated that his position was eliminated because Carpenter “did not
perform in such an extraordinary manner that made it impossible for the
administration to eliminate the position.” School District’s Objections and Answers
to Carpenter’s Second Set of Interrogatories ¶41; R.R. 1229a. The evidence also
showed that Greenstein and Harbert, to whom Carpenter registered most of his
complaints of wrongdoings, were the ones who made the decision to eliminate his
position, and their “dissatisfaction with [Carpenter] voicing his concerns” was well
documented in the record, including Harbert’s deposition. Carpenter Brief at 35.
Carpenter asserts that this body of circumstantial evidence, taken as a
whole, demonstrates that “at the very least, a genuine issue of material fact exists”
as to whether his position as emotional support supervisor was eliminated due to
budgetary reasons, performance concerns, or retaliatory reasons. Carpenter Brief at
36.
12
Carpenter further asserts that the School District’s proffered reason that
the selected candidates for the 14 positions for which he applied between 2017 and
2020 were “better suited” based on their “good previous experience” is implausible.
Carpenter Brief at 36 (citing School District’s Objections and Answers to
Carpenter’s Second Set of Interrogatories, ¶34; R.R. 1226a). Carpenter contends
that it defies logic that “an internal candidate who has been employed [] for ten years
and possesses supervisory experience and extensive special education experience,
would be rejected for fourteen positions over the course of two years for legitimate
non-retaliatory reasons.” Id. at 37. Carpenter argues that the “implausibility” in the
School District’s proffered reason for its action supports the inference that the
School District acted for retaliatory reasons. Id. (quoting Fuentes v. Perskie, 32 F.3d
759, 764 (3d Cir. 1994)).
The School District counters that the record lacks direct evidence that
Carpenter’s reports had adverse consequences for Carpenter’s employment. Rather,
the record consists of “unjustified and unwarranted inferences and speculation, or
insufficient, vague, circumstantial evidence of alleged retaliation.” School District
Brief at 17-18. The School District argues that the temporal proximity between
Carpenter’s reports and the elimination of his position as emotional support
supervisor does not, by itself, support a reasonable inference of retaliatory intent.
Id. at 18. Further, Carpenter did not prove that he was more qualified than the
successful candidates hired for the jobs for which he applied, and he presented no
evidence that he outperformed other candidates during the interview process. The
School District argues that Carpenter offered nothing more than a “subjective
personal opinion” that his reports of wrongdoings caused the School District not to
hire him for those positions. School District Brief at 40.
13
A motion for “[s]ummary judgment is properly granted where there is
no genuine issue of material fact as to a necessary element of a cause of action and
the moving party has clearly established entitlement to judgment as a matter of law.”
LaChance v. Michael Baker Corporation, 869 A.2d 1054, 1056 n.3 (Pa. Cmwlth.
2005). For the purposes of summary judgment, “[a] fact is material only if it directly
affects the disposition of the case.” Pyeritz v. Commonwealth, 956 A.2d 1075, 1079
(Pa. Cmwlth. 2008) (citing Allen v. Colautti, 417 A.2d 1303 (Pa. Cmwlth. 1980)).
“All doubts as to the existence of a genuine issue of a material fact are to be resolved
against the granting of summary judgment.” Shoats v. Commissioner, Pennsylvania
Department of Corrections, 591 A.2d 326, 330 (Pa. Cmwlth. 1991). “[T]he
questions of whether there are material facts in issue and whether the moving party
is entitled to summary judgment are matters of law.” Alderwoods (Pennsylvania),
Inc. v. Duquesne Light Company, 106 A.3d 27, 34 n.5 (Pa. 2014).
Materiality is governed by the standards in the Whistleblower Law.
Section 3(a) states, in pertinent part, as follows:
(a) Persons not to be discharged.--No employer may discharge,
threaten or otherwise discriminate or retaliate against an
employee regarding the employee’s compensation, terms,
conditions, location or privileges of employment because the
employee or a person acting on behalf of the employee makes a
good faith report or is about to report, verbally or in writing, to
the employer or appropriate authority an instance of wrongdoing
or waste by a public body or an instance of waste by any other
employer as defined in this act.
43 P.S. §1423(a). The “Whistleblower Law protects employees who come forth
with good faith reports of wrongdoing by publicly[ ]funded employers; it does so by
prohibiting retaliatory conduct from the employer, and by providing a civil remedy
14
for employees when employers violate the law’s provisions.” Harrison v. Health
Network Laboratories Limited Partnerships, 232 A.3d 674, 681 (Pa. 2020).
Section 4(b) of the Whistleblower Law sets forth the evidentiary
standard needed to establish a prima facie case of a violation. It states, in pertinent
part, as follows:
(b) Necessary showing of evidence.--An employee alleging a
violation of this act must show by a preponderance of the
evidence that, prior to the alleged reprisal, the employee or a
person acting on behalf of the employee had reported or was
about to report in good faith, verbally or in writing, an instance
of wrongdoing or waste to the employer or an appropriate
authority.
43 P.S. §1424(b) (emphasis added). To make a prima facie case for wrongful
discharge, “the plaintiff must show both a protected report of wrongdoing or waste
and a causal connection between that report and the discharge.” Evans, 81 A.3d at1064 (citing O’Rourke II v. Commonwealth, 778 A.2d 1194, 1200 (Pa. 2001)).
Where a plaintiff makes this showing, the burden shifts to the employer to prove “by
a preponderance of the evidence that the action by the employer occurred for
separate and legitimate reasons, which are not merely pretextual.” Section 4(c) of
the Whistleblower Law, 43 P.S. §1424(c).
The trial court concluded that Carpenter did not make a prima facie
case because he did not demonstrate a causal connection between his reports of
wrongdoings and the School District’s elimination of his position as emotional
support supervisor and its subsequent failure to hire him for other positions. In so
holding, the trial court relied on Golaschevsky, 720 A.2d 757, and Evans, 81 A.3d
1062.
15
In Golaschevsky, an employee of the Pennsylvania Department of
Environmental Protection (DEP) reported that some of his co-workers in the District
Mining Office were violating federal copyright law. Golaschevsky’s supervisor
encouraged him to submit a detailed written report about these alleged violations,
but he did not do so. Several weeks later, Golaschevsky received a negative interim
performance evaluation, which was followed by a list of projects to be completed in
the next 90 days. Four months later, Golaschevsky received an unsatisfactory
performance evaluation for not completing the assignments on time, and his
employment was terminated.
Golaschevsky filed a whistleblower complaint, alleging that his report
of the copyright violations caused his discharge. After discovery, DEP filed for
summary judgment, which was granted by this Court. On appeal, the Supreme Court
considered, inter alia, whether Golaschevsky’s evidence satisfied the causation
requirement set forth in the Whistleblower Law. Concluding that the record showed
Golaschevsky was terminated because of his inability to complete assignments in a
timely manner, the Supreme Court affirmed the grant of summary judgment. The
Supreme Court explained why Golaschevsky’s evidence was inadequate:
Gray [v. Hafer, 651 A.2d 221 (Pa. Cmwlth. 1994),] correctly
held that, to make out a prima facie case of retaliatory
termination pursuant to the Whistleblower Law, a plaintiff must
“show by concrete facts or surrounding circumstances that the
report led to the employee’s dismissal, such as that there was
specific direction or information received not to file the report or
that there would be adverse consequences because the report was
filed.” Gray, 651 A.2d at 225.
Here, Appellant does not present sufficient evidence to establish
a causal connection between his report and his termination. He
does not allege that his supervisors threatened to fire him or to
impose any other adverse consequences because of his report,
nor does he establish any other “concrete facts” to connect the
16
report with the dismissal. Instead, in attempting to show a causal
connection, Appellant relies solely on vague and inconclusive
circumstantial evidence.
For example, Appellant alleges that, prior to his December 20,
1993 meeting with Linnan regarding the alleged copyright
violations, his supervisors had not indicated any dissatisfaction
with his work. Appellant claims that his report of alleged
wrongdoing touched off a series of retaliatory actions, including
negative performance evaluations, lack of cooperation from
fellow employees and supervisors, withholding of information
regarding computer software, and, ultimately, termination of
Appellant’s employment. However, this “evidence” constitutes
nothing more than Appellant’s perception of how others treated
him after he made the December 20, 1993 report—a perception
that is obviously colored by Appellant’s interest in proving that
he is a victim of retaliatory discharge.
Viewing the evidence objectively, Appellant’s termination
apparently was the result of his unsatisfactory work performance,
and had nothing to do with his report of alleged copyright
violations. Indeed, rather than punishing him for making an oral
report of alleged wrongdoing, Appellant’s supervisors
encouraged him to follow up on the matter and produce a written
report, though he apparently never did so.
Golaschevsky, 720 A.2d at 759-60 (emphasis added).
In Evans, 81 A.3d 1062, the plaintiff, a nurse, filed a whistleblower
complaint against her employer, a drug treatment center. After reporting that the
director had violated the policy on methadone distribution, Evans alleged that the
director acted in a rude or hostile manner toward her; her annual performance rating
dropped from “outstanding” to “effective;” and she was disciplined about her
conduct with patients and with a new employee. Id. at 1066–68. Ultimately, her
employment was terminated. Notably, the evidence was undisputed that the
plaintiff’s behavior towards patients was an issue that pre-dated her report of the
17
director’s wrongdoing. Further, her performance evaluation on patient interaction
was the same before and after the report. Id. at 1070.
This Court affirmed the grant of summary judgment to the employer
because Evans did not demonstrate a causal connection by “concrete facts or
surrounding circumstances.” Evans, 81 A.3d at 1070. We explained:
Given the undisputed fact that Evans had been told before 2010
that there were patient complaints that she acted “harsh” and had
received the same “Needs Improvement” rating concerning her
interaction with patients in January 2009 as she did after the
report, and the lack of any genuine dispute that the patient
complaints and co-worker complaints for which she was
disciplined actually occurred, [Evans’] evidence is insufficient to
meet her burden of showing a causal connection.
Id. In short, Evans offered the “very same type of evidence that the Supreme Court
held insufficient in Golaschevsky.” Id. at 1071. “[T]he mere fact that the discharge
occurred a few months after a report of wrongdoing and that the first formal negative
actions by the employer occurred after the report are not enough to show a causal
connection.” Id. at 1070-71 (citing Golaschevsky, 720 A.2d at 759-60) (emphasis in
original).
In sum, Golaschevsky and Evans established that a prima facie case of
retaliation under the Whistleblower Law requires the plaintiff to “show by concrete
facts or surrounding circumstances that the report [of wrongdoing or waste] led to
[the plaintiff’s] dismissal.” Golaschevsky, 720 A.2d at 759 (quoting Gray, 651 A.2d
at 225) (emphasis added). However, a negative employment evaluation that happens
to follow, by several months, a report of wrongdoing, or the employee’s personal
perception of how he or she is treated, is evidence too “vague and inconclusive” to
satisfy the plaintiff’s threshold burden. Golaschevsky, 720 A.2d at 759-60; Evans,
81 A.3d at 1070-71.
18
Here, as the trial court correctly pointed out, Carpenter did not allege
that his supervisors threatened retaliation because of his reports. That does not end
the inquiry. A causal connection between the report of alleged wrongdoings and
negative employment acts can be demonstrated by circumstantial evidence.
Golaschevsky, 720 A.2d at 759.
It is not disputed that the elimination of Carpenter’s position as
emotional support supervisor occurred days after his most recent report of
wrongdoing. The School District asserted that the position was eliminated due to
budget cuts, but Carpenter did not receive notice in advance of the budget’s adoption,
as did the other employees furloughed for budgetary reasons. The record presents
more than Carpenter’s “personal perception” of a negative response to his reports.
See Golaschevsky, 720 A.2d at 759-60. For example, Harbert, the superintendent
who made the decision to eliminate Carpenter’s position, described his bringing IEP-
related issues to the School Board meetings as “disruptive.” Harbert Deposition at
48; R.R. 1170a. The School District claimed that Carpenter “did not perform in such
an extraordinary manner that made it impossible for the administration to eliminate
the position” because his “performance evaluation for that year yielded 11 ‘needs
improvements.’” School District’s Objections and Answers to Carpenter’s Second
Set of Interrogatories ¶41, R.R. 1229a; Conley Deposition at 48-53, R.R. 636a-41a.
This statement undermines the claim that the School District’s decision was solely
based on budget. In any case, the performance evaluation was done after Carpenter’s
position was eliminated.
In both Golaschevsky and Evans, the record established an undisputed
reason for the termination of employment, i.e., unsatisfactory job performance. In
19
each case, the employee presented no evidence, other than “personal perception,”
that a report of wrongdoing had led to the termination of employment.
By contrast, here, the record shows that Carpenter did not have a history
of unsatisfactory work performance prior to making his reports. Further, his
performance evaluation was done only after his position as emotional support
supervisor was eliminated. The School District’s July 10, 2017, notification letter
to Carpenter stated that budget cuts caused the elimination of his position, but other
evidence showed that all employees, except Carpenter, had received notice of their
furlough before the budget was adopted in June. The School District could have sent
this letter in June of 2017, and there is no explanation for Carpenter’s immediate
dismissal without allowing him to finish the week. The School District’s notice of
his furlough shortly followed Carpenter’s complaint about its handling of a student
with a history of sexual assault. Taken as a whole, the record demonstrates a genuine
issue of material fact as to whether the elimination of Carpenter’s position as
emotional support supervisor was due to his reports of alleged wrongdoing. The
trial court erred in otherwise holding.
Carpenter also argues that his reports of alleged wrongdoings were
causally related to the School District’s decision not to hire him for other positions
between 2017 and 2020. Here, the School District asserted that it chose “better
suited” candidates who had “good previous experience” and gave “good interview
answers.” School District’s Objections and Answers to Carpenter’s Second Set of
Interrogatories, ¶34; R.R. 1226a.
Carpenter responds that a comparison of the experience of the selected
candidates to his experience casts “serious doubt” on the School District’s “vague”
explanation for its hiring decisions. Carpenter Brief at 22, 36. This is particularly
20
true because the School District agreed that it gives special consideration to
“internal” candidates, such as Carpenter. Id. at 24.
Carpenter focuses on four positions to make his argument that he was
objectively more qualified than the candidate selected. In April of 2018, Carpenter
applied for the position of supervisor of secondary special education. Despite the
fact that Carpenter had eight years of special education experience with the School
District as well as experience in administrative and supervisory roles, the School
District selected an external candidate who had no supervisory or administrative
experience. See Morris Resume, R.R. 1238a-40a. In August of 2018, Carpenter
applied for two acting assistant principal positions at Penn Wood High School.
Again, the School District selected two candidates who had no administrative or
supervisory experience, explaining that the “committee felt that they had the best
qualifications for that particular position.” Conley Deposition at 67, R.R. 655a. In
October of 2019, Carpenter applied for the position of supervisor of elementary
special education. The School District selected an external candidate for the
position, who had less teaching experience than Carpenter and possessed only one
year of administrative experience at the time of her selection. Marvil Resume, R.R.
1258a-59a. Finally, in August of 2020, Carpenter applied for the position of
assistant principal at Penn Wood Middle School, for which the School District
selected an external candidate without supervisory experience and certified only to
teach elementary K-6. Spivey Resume, R.R. 1261a. By contrast, Carpenter was
certified to teach at the middle school level. As for other positions for which
Carpenter applied, the School District stated that “other candidates were selected
that were deemed to be more qualified.” Conley Deposition at 70; R.R. 658a.
21
Carpenter testified that in each case he had experience more relevant
than that of the successful candidates. The trial court dismissed this testimony as
“personal perception” that was insufficient to prove causation. See Golaschevsky,
720 A.2d at 759-60. However, the experience of all the candidates, including
Carpenter, was objectively established in their resumes. This is not mere “personal
perception.”
The School District asserted that it did not base its hiring decision solely
on experience but also on “good interview answers.” School District’s Objections
and Answers to Carpenter’s Second Set of Interrogatories, ¶34; R.R. 1226a.
Conley’s testimony contradicts the School District’s assertion in this regard.
Conley, the human resources director, testified that the hiring committees believed
the selected candidates were “deemed to be more qualified” because they had
experience in student discipline, parent relationships, overseeing large groups of
teachers, and performing evaluations. Conley Deposition at 72-73; R.R. 660a-61a.
Conley testified that Carpenter did not have experience in evaluating teachers. Id.
at 73; R.R. 661a. The School District acknowledged, however, that Carpenter was
“minimally qualified for each position” for which he applied. School District’s
Objections and Answers to Carpenter’s Second Set of Interrogatories, ¶34; R.R.
1226a. Even so, Carpenter was not invited to interview for each position. Carpenter
Deposition at 224-26; R.R. 298a-300a.
Further, Greenstein, the recipient of the reports of alleged wrongdoing,
served on the committee that interviewed Carpenter for the position of supervisor of
secondary special education. It can be inferred that at least this committee, out of
14, knew of Carpenter’s reports of wrongdoing. Conley testified that the candidate
selected for supervisor of secondary special education “was the best fit for the
22
position,” on the basis of experience. Conley Deposition at 66; R.R. 654a. Carpenter
disputed that assertion, testifying that the selected candidate, a former extended
school year coordinator, had “never taught secondary” education. Carpenter
Deposition at 231; R.R. 305a. Carpenter had many years of experience in special
education.
Considering the evidence in a light most favorable to Carpenter, as we
must, we conclude that the record refutes the School District’s claim that interviews
played an important role in the hiring decision and that the other candidates had
superior work experience. Accordingly, the record demonstrates that a genuine issue
of material fact exists as to whether the School District’s refusal to hire Carpenter
for other positions between 2017 and 2020 was connected to his reports of alleged
wrongdoing.
On his second basis for retaliation, i.e., failure to promote, we conclude
that Carpenter’s causation evidence is enough to get the question of causation to a
jury.
II. Trial Court’s Factual Findings
In his second issue, Carpenter argues that in granting summary
judgment to the School District, the trial court “repeatedly credited the [School
District’s] version of the events and made factual and credibility determinations”
adverse to Carpenter. Carpenter Brief at 38. This is inappropriate at the summary
judgment stage of litigation. The School District responds that the trial court
“appropriately exercised its discretion” in holding that Carpenter failed to
demonstrate a causal connection between his reports and the elimination of his
position as emotional support supervisor. School District Brief at 28.
23
For the purposes of summary judgment, the record evidence must be
viewed in the light most favorable to the non-moving party, and all doubts regarding
the existence of a genuine issue of material fact must be resolved against the moving
party. Young v. Pennsylvania Department of Transportation, 744 A.2d 1276, 1277
(Pa. 2000). “A fact is material only if it directly affects the disposition of the case.”
Pyeritz, 956 A.2d at 1079.
Here, the trial court credited the School District’s explanation for
eliminating Carpenter’s supervisory position. The trial court stated that in “light of
Greenstein’s testimony, the Court finds [the School District’s] elimination of
[Carpenter’s] position would have happened regardless of [Carpenter’s] reports of
alleged wrongdoing.” Trial Court Op. at 8-9. The trial court further explained that
“Greenstein’s testimony undermines [Carpenter’s] temporal proximity arguments
because the decision to eliminate [Carpenter’s] position was made before
[Carpenter’s] final report of alleged wrongdoing (in July of 2017), and was also
made before the June 12, 2017 School Board meeting.” Trial Court Op. at 9
(emphasis in original). However, the record shows that this fact is disputed and
should not have been resolved in a summary judgment motion.
The trial court resolved all questions about the evidence in favor of the
School District, which is contrary to the principles that govern summary judgment.
Second, the trial court erred in making factual findings and credibility
determinations. Specifically, the trial court credited Greenstein’s testimony on the
timing and reason for the elimination of Carpenter’s position, even though other
evidence contradicted that testimony. Viewing the evidence in the light most
favorable to the non-moving party, i.e., Carpenter, the record demonstrates that a
genuine issue of material fact exists as to whether the elimination of Carpenter’s
24
position was solely motivated by budgetary concerns. The trial court erred in
holding otherwise.
Conclusion
For the above reasons, we reverse the trial court’s decision and remand
the matter for further proceedings, including disposition of the remaining issue in
the School District’s motion for summary judgment, i.e., whether Carpenter’s
complaints consisted of reports of “wrongdoing” or “waste” within the meaning of
the Whistleblower Law.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Randolph Carpenter, :
Appellant :
:
v. : No. 1123 C.D. 2021
:
William Penn School District :
ORDER
AND NOW, this 4th day of May, 2023, the Court of Common Pleas of
Delaware County’s order dated June 3, 2021, in the above-captioned matter, is
REVERSED. The matter is REMANDED to the trial court for further proceedings
consistent with the foregoing opinion.
Jurisdiction relinquished.
____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita