S. Vladimirsky v. School District of Philadelphia

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Serge Vladimirsky, :
Petitioner :
:
v. :
:
School District of Philadelphia, : No. 732 C.D. 2018
Respondent : Submitted: March 14, 2019
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge (P.)
HONORABLE ELLEN CEISLER, Judge
OPINION BY
JUDGE COVEY FILED: April 2, 2019
Serge Vladimirsky (Vladimirsky) petitions this Court for review of the
Secretary of Education’s (Secretary) May 1, 2018 order awarding him $21,561.00 for
lost compensation during 2011 and 2012. Essentially, Vladimirsky presents three
issues for this Court’s review: (1) whether the Secretary properly calculated
Vladimirsky’s compensation; (2) whether the School District of Philadelphia
(District) violated Vladimirsky’s due process rights; and (3) whether the Secretary
was required to address additional issues.1 After review, we vacate and remand.
1
Vladimirsky’s “Statement of the Questions Involved” includes six issues: (1) whether the
Secretary misapplied the law of mitigation of damages; (2) whether unsubstantiated, inadmissible
hearsay evidence can be relied upon to prove a fact at issue when it is repeatedly objected to during
the hearing and in objections to the testimony of an expert witness who has no first-hand knowledge
of any fact at issue; (3) whether the District’s counsel’s circumvention of the Philadelphia School
Reform Commission (SRC) violates the Sunshine Act, 65 Pa.C.S. §§ 701-716, and is the very same
malfeasance which this Court admonished the District for so doing; (4) whether the District’s
counsel’s refusal to properly reinstate Vladimirsky through the SRC and refusal to properly assign
Vladimirsky to a teaching position, and thereafter unilaterally declaring that he had abandoned his
job without any knowledge, authority or action of the SRC is yet another due process violation; (5)
whether the Secretary failed to act to reinstate Vladimirsky as directed to do so by this Court
pursuant to the Court’s Order and as asked to do so in Vladimirsky’s application to enforce the
executory orders of both this Court and the Secretary; and (6) whether this Court should order the
Background
The District hired Vladimirsky as a teacher and professional employee
on September 1, 1997. Vladimirsky worked as a social studies teacher at Overbrook
High School (Overbrook). As a result of incidents occurring on February 17 and
March 9, 2011, Assistant Superintendent Linda Cliatt-Wayman instructed
Vladimirsky to report to work at the High School Academic Division on March 14,
2011 pending an investigation of Vladimirsky’s alleged aggressive and agitated
classroom behavior. After an investigatory conference on March 23, 2011,
Overbrook’s then-principal Payne Young (Young) prepared an unsatisfactory
incident report (SEH-204) recommending Vladimirsky’s discharge. Young also
recommended placing the SEH-204 in Vladimirsky’s personnel file, and giving him
an unsatisfactory rating for the September 2010 to June 30, 2011 period. Following
an April 28, 2011 conference, Young issued a May 2, 2011 conference summary,
wherein, she upheld the SEH-204 because Vladimirsky’s behavior was excessive and
unprofessional. After a June 8, 2011 second-level conference, the District’s Talent
Acquisition Office’s Deputy Chief Lissa S. Johnson (Johnson) issued a conference
summary recommending that Vladimirsky’s employment be terminated and that
incident documentation be placed in his personnel file.
Vladimirsky requested a hearing before the District’s School Reform
Commission (SRC) and on November 28, 2011, a hearing was held before the SRC.
Effective July 20, 2011, the SRC terminated Vladimirsky’s employment.
Vladimirsky challenged his employment termination by pursuing litigation against
the District before the Secretary and this Court. On August 3, 2016, this Court
new Board of Education to reinstate Vladimirsky and assign him to an actual teaching position and
evaluate him in accordance with the present statutorily mandated evaluation process. Vladimirsky
Br. at 4-5. These issues are subsumed in this Court’s rephrasing of the issues and will be addressed
accordingly.
2
concluded that the District failed to comply with the mandatory provisions of the
Public School Code of 1949 (School Code),2 and thus held that Vladimirsky’s
employment termination was a nullity. See Vladimirsky v. Sch. Dist. of Phila., 144
A.3d 986 (Pa. Cmwlth. 2016) (Vladimirsky I). The Court ordered Vladimirsky be
reinstated with backpay. Id.
On August 25, 2016, the Secretary entered the following order:
Pursuant to the Opinion and Order of the Commonwealth
Court in the above captioned matter [] Vladimirsky shall be
reinstated effective August 3, 2016. The parties are hereby
ordered to file with my office a Stipulation regarding the
amount of compensation that is due to [] Vladimirsky, no
later than November 1, 2016, taking into account the duty to
mitigate damages. If the parties cannot enter into a
Stipulation regarding the amount of compensation that is
due to [] Vladimirsky, the parties shall file a Legal
Memorandum and Proposed Order with my office stating
their respective positions on the issue of due compensation,
no later than November 1, 2016. The Legal Memorandum
shall include appropriate legal and factual support.
Reproduced Record (R.R.) at 1A.3 On November 1, 2016, the District sent
Vladimirsky’s Counsel an email stating:
This is to confirm the matters . . . just discussed with you on
the phone. The [] District is willing to offer reinstatement
to . . . Vladimirsky and is retaining its rights to move
forward with discipline . . . , including, but not limited to, a
recommendation of termination to the SRC. Please advise
by the end of business on November 2, 2016, whether . . .
Vladimirsky [is] willing to accept reinstatement with a start
date of November 4, 2016.
2
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 - 27-2702.
3
The District requested the Secretary to vacate the August 25, 2016 order because the
District petitioned the Pennsylvania Supreme Court for allowance of appeal and the petition’s filing
effected an automatic stay of this Court’s Order. The Secretary did not address the request.
Notwithstanding, on October 27, 2016, the District’s counsel notified Vladimirsky’s counsel, “[t]he
District is not willing to reinstate . . . Vladimirsky in light of the supersedeas.” R.R. at 689A. On
January 23, 2017, the Pennsylvania Supreme Court denied the District’s Petition for Allowance of
Appeal. See Sch. Dist. of Phila. v. Vladimirsky, 165 A.3d 889 (Pa. 2017).
3
R.R. at 690A (emphasis in original). On December 2, 2016, a follow-up letter was
emailed to Vladimirsky’s Counsel relating:
On the telephone this afternoon, we discussed the order
issued by the Commonwealth Court in this case. You
mentioned that, in fact, you read the [O]rder earlier today.
The [O]rder states that your client[ is] ‘hereby reinstated to
[his] position[] as a professional employee . . . .’ You
advised it is your position that in order for the [] District to
comply with the [O]rder, the SRC must reinstate your client
at a public meeting in order to comply with the Sunshine
Act.[4] You also advised that despite the language in the
[O]rder it is your opinion that at present your client has not
been reinstated to his position as a professional employee.
Despite your position that the [O]rder violates the law by
ordering reinstatement without compliance with the
Sunshine Act, your client did not file a notice of appeal
from the Court’s [O]rder. As you know, the time to appeal
is now closed.
In your client’s petition[] for review to the Commonwealth
Court, he requested, in pertinent part, ‘an Order of the Court
reinstating him to his position as a teacher . . . .’ In light of
your client’s request and the Court’s [O]rder, your client
received the relief he sought. As the [O]rder states, your
client has been reinstated on the date specified in the
[O]rder. The only outstanding issue is the matter of back
pay, and as you know, that is currently being resolved by
the Secretary.
We are again writing to your client to advise that he
may report to work. As we have previously requested
numerous times, please provide us with your client’s email
address so that the appropriate District staff persons may
contact your client to discuss logistics. Please be advised
that if we do not receive your client’s email address by
the close of business on Wednesday, December 7, 2016,
the District will consider your client to have abandoned
his position in the [] District.
The [] District expressly retains all and does not waive any
of its rights, claims, defenses and the like. In particular, the
4
65 Pa.C.S. §§ 701-716.
4
[] District expressly retains and does not waive its claims
that your client has failed to mitigate his damages in whole
or in part.
R.R. at 854a-855A (bold and underline emphasis in original).
In December 2016, the parties requested the Secretary to hold hearings
on the damages issue. Those hearings commenced on March 22, 2017 and continued
over the course of several days throughout 2017. On May 1, 2018, the Secretary
ordered:
Vladimirsky shall be entitled to $21,561[.00] as a total
gross amount for lost compensation during 2011 and 2012.
[] Vladimirsky also shall be entitled to payment for any
leave that he would have earned during those two years if
he remained employed with the [District]. The District
shall have the right to make deductions for applicable
retirement contributions and other payroll deductions in
accordance with legal and/or contractual requirements.
Secretary’s Dec. at 14. Vladimirsky appealed to this Court.5
Discussion
Compensation
Mitigation
Vladimirsky asserts that the Secretary erred when he held that
Vladimirsky failed to mitigate damages after March 2012 because he took a position
as a nursing home security officer, rather than continuing to search for teaching
positions.
In Vladimirsky I, this Court explained:
5
“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 Sch. Dist., 936
A.2d 183, 185 n.1 (Pa. Cmwlth. 2007).
5
With respect to Vladimirsky’s damages:
the law is well established that ‘[a] school teacher is
not a public officer, but is an employe[e] of the
school district, and the ordinary rules relating to
damages for breach of contract of employment
apply.’ Coble v. Sch. Dist. of Metal Twp., . . . 116
A.2d 113, 115 ([Pa. Super.] 1955) (citation
omitted). ‘Where a teacher is wrongfully
discharged, he is to be compensated for loss of
salary during such period, but there is no
requirement that the school district pay the
compensation provided in the contract regardless of
set-off or the amount of damages the employe[e]
has suffered.’ Id.
[W]e find no apparent reason why the
ordinary rules relating to damages for
breach of contract of employment should
not be applied. As stated in 47 Am.Jur.,
Schools, § 145, p. 402: . . . [I]n an action
for breach of contract by one employed as
a teacher, the measure of damages is the
wages which were to be paid, less any
sum actually earned, or which might have
been earned, by the plaintiff by the
exercise of reasonable diligence in
seeking other similar employment.
Id. at 116. More recently, this Court held in Merrell
v. Chartiers Valley School District, 51 A.3d 286
(Pa. Cmwlth. 2012):
A plaintiff has a duty to mitigate
damages. Circle Bolt & Nut Co. v. Pa.
Human Relations Comm’n, 954 A.2d
1265 (Pa. Cmwlth. 2008). The duty to
mitigate damages, however, ‘is not
onerous and does not require success.’ Id.
at 1270. All that is required to mitigate
damages is to make ‘an honest, good-faith
effort.’ Id. at 1271. The employer has
the burden of proving that substantially
6
comparable work was available and that
the plaintiff failed to exercise reasonable
due diligence in seeking alternative
employment. The substantially
comparable or equivalent work refers to
employment which affords virtually
identical opportunities for a promotion,
compensation and responsibilities.
Whether the plaintiff properly mitigated
damages is a factual determination to be
made by the fact-finder.
Merrell, 51 A.3d at 298 (citations omitted).
Vladimirsky I, 144 A.3d at 1004 (quoting Sch. Dist. of Phila. v. Jones, 139 A.3d 358,
376 (Pa. Cmwlth. 2016)).
In Merrell, a trial court held that an applicant for a teaching position was
improperly denied a statutorily mandated veteran’s preference, and ordered that he be
placed in a teaching position and made whole for lost wages and benefits. On appeal,
the school district argued, inter alia, that the applicant failed to mitigate his damages
because he applied for only one or two of the sixty-five
substantially equivalent social studies teacher positions
available in the neighboring school districts since 1997.
The [s]chool [d]istrict further argue[d] that Merrell was not
entitled to backpay because he withdrew from the
employment market for teachers by working in the
occupational safety industry and pursuing [Occupational
Safety and Health Act of 19706] recertification.
Merrell, 51 A.3d at 298. This Court rejected the school district’s argument,
explaining:
Merrell remained in the workforce by continuing to work in
the occupational safety industry and kept his teaching
certificate in an active status after the [s]chool [d]istrict did
not hire him in 1997. The mere fact that he did not apply
for a social studies teacher position more aggressively
6
29 U.S.C. §§ 651-678.
7
does not establish his failure to mitigate damages. He
was not underemployed or underpaid. Indeed, he earned
more than he would have earned as a teacher each year
except one. Due to his efforts, the backpay amount for
more than the 13-year period was reduced to $25,789[.00].
The record amply demonstrates that Merrell exercised
reasonable due diligence to mitigate damages and has not
withdrawn from the work force.
Merrell, 51 A.3d at 298 (emphasis added).
Here, the Secretary held that there was no record evidence that after
March 2012, Vladimirsky made any attempts to find similar employment. This
finding is contradicted by the very same record testimony the Secretary cited in
support of that finding, wherein Vladimirsky testified that he “stopped [searching for
teaching positions] toward the end of [2012].” R.R. at 255A (emphasis added).
Thus, the Secretary’s finding is unsupported by the record evidence and directly
contradicted by Vladimirsky’s testimony that he attempted for well over one year to
find teaching jobs.
Importantly, the Secretary found that from July 2011 through March
2012, Vladimirsky “made an honest, good-faith effort to find similar work[.]”
Secretary’s Dec. at 6. The finding was based on Vladimirsky’s testimony that he sent
his resume to numerous school districts, estimating the number of school districts to
be between 24 and 36.7 See R.R. at 256A. Vladimirsky explained that in some cases
he sent more than one resume to a school district. He also stated that he received
responses from only a small percentage of the school districts, and those responses
were rejection letters. See R.R. at 252A. Vladimirsky further explained that he
stopped searching for a teaching position because his search was rendered almost
pointless as a direct result of the District’s illegal employment termination. When
7
The Secretary found that Vladimirsky testified credibly about his attempts to find
employment as a teacher during the months following his employment termination. See Secretary’s
Dec. at 5.
8
asked on cross-examination why he gave up searching for a teaching position, he
expounded:
I was, according to them, fired, which polluted my ability to
get another position.
...
[] Being fired from a position in the [] [D]istrict does not
make you prospectively a very good employee. I did
attempt. As you say, maybe I could have attempted even
harder. I was rejected at every turn, which simply
reinforced the perception that I am tainted; I am a teacher
who was fired from a tenured position and these people do
not want to hire me. I have to survive, I have to move on
with my life.
...
[] I have parents that I’m responsible for who are old and
sick, so there’s, you know, more responsibilities than: oh,
I’m a teacher and that’s my commitment. No, I have family
that I can’t be sponging off of; I have to pay the bills.
R.R. at 260A.
To counter Vladimirsky’s assertion that he exercised reasonable due
diligence in pursuing alternative employment, the District relied on Vladimirsky’s
acknowledgement that he ceased looking for teaching positions towards the end of
2012 and thereafter, he worked in a lower paying position as a security guard.
However, Vladimirsky’s expert Richard M. Miller (Miller),8 testified regarding his
involvement in the District’s teacher hiring process and Vladimirsky’s belief that a
continued search for teaching positions would be futile:
Q. On those selection committees that you have sat on,
were there any instances where teachers were not selected
8
Miller testified that he had a lengthy tenure with the District as a teacher, a department
head and an administrator. See R.R. at 549A-555A. His duties as department head included
extensive involvement in teacher selection. He also admitted he was a long-time friend of
Vladimirsky and his family. See R.R. at 555A-556A, 589A-591A.
9
because of the reasons that they [sic] were leaving their
position at a previous school?
A. It didn’t come up a whole lot, but I think that if you got
into a fistfight with your principal, you were unlikely to
think that you would get a job somewhere else, but you
consider each case depending on what goes on. But the
answer is when you have seven or 17 other teachers to
choose from, why would you pick somebody with a shady
past or with any blemish on their [sic] record?
In Lower Merion School where I’m somewhat familiar
with, there’s a thousand applicants, a thousand applicants
for a social studies job. Why would anybody pick
[Vladimirsky], who was dismissed from Philadelphia, when
you can get a new teacher fresh out of college, pay them
half as much money, and give -- why would you give the
job to [Vladimirsky]? In my experience in the governance
councils that I’ve sat on -- and I hired teachers for Success
for All for the three years; it was more than just a
governance council – I wouldn’t consider anybody whose
credentials were besmirched and might affect the -- you
know, I was doing a program to report the efficacy of their
program, and if they found out that some of the teachers had
anything going on in the past, I would not consider hiring
them, in my personal experience.
Q. If those selection teams on which you sat were aware
that a teacher had been fired for cause, would they have
been chosen for the job?
A. No.
....
Q. What would be the chan[c]es of someone getting a
teaching job if he had been fired for cause?
A. Zero.
....
Q. Would the firing of a teacher for cause by a school
district create a stigma on a prospective applicant for a
teaching position?
A. Absolutely.
10
R.R. 583a-585A.
The District has the burden to prove that substantially comparable work
was available and that Vladimirsky “failed to exercise reasonable due diligence in
seeking alternative employment.” Vladimirsky I, 144 A.3d at 1004 (quoting Jones,
139 A.3d at 376). To prove the availability of substantially comparable work, the
District presented vocational expert Terry P. Leslie (Leslie) who testified that there
were teaching positions available to Vladimirsky after his dismissal which were
suitable to his education, experience, and qualifications.9 See R.R. at 363A-443A.
Specifically, Leslie related that he “use[d] a couple of companies that
provide[] job openings throughout the country in a variety of occupations.” R.R. at
369A. He further explained, “I then had those job openings taken limited to teacher
openings in the Commonwealth of Pennsylvania and specifically in subjects that
would be taught by a social studies teacher.” Id. Leslie clarified that “we were
looking at from 2011 to current.” R.R. at 371A. Leslie further stated:
Well, I obtained all of the data, so I obtained a listing of all
of the occupations that I was seeking. That list is over 60
pages long. [See Exhibit SDP-3.] I also received a copy of
all of the advertisements for social studies teachers from
2011 to the present[, see Exhibit SDP-4], and when I say
the present, I had asked for this data I believe in May of this
year, and that listing was over 1,400 pages of individual
advertisements for social studies teache[r]s.[10]
9
Vladimirsky asserts that Leslie was not a credible witness, in part, because he lacked
knowledge in the education field. This Court has recently reiterated that “[i]n a case involving the
dismissal of a professional employee of a school district, the Secretary is the ultimate factfinder
with the power to determine the credibility of witnesses, the weight to be accorded the evidence,
and the inferences to be drawn therefrom.” Moffitt v. Tunkhannock Area Sch. Dist., 192 A.3d 1214,
1218 (Pa. Cmwlth. 2018) (emphasis added).
10
Notwithstanding Leslie’s testimony, Exhibits SDP-3 and SDP-4 include job listings
beginning in 2009. The availability of such positions before the District terminated Vladimirsky’s
employment on July 20, 2011 is not relevant to the mitigation issue and artificially inflates the
number of allegedly available positions. This inclusion of 351 irrelevant and misleading job
advertisements on 351 pages of Exhibit SDP-4 represents nearly one quarter of the entire exhibit.
11
R.R. at 372A.
Finally, Leslie discussed a list of job openings for social studies teachers
that were filled from 2011 to present throughout Pennsylvania obtained through a
Right-to-Know Law (RTKL)11 request.12 See R.R. at 379A. Based on a review of
these documents, Leslie opined that for the period September 2011 through May
2017, “there were plentiful openings. There was over - - it ranged between 100 and
250 openings per year within [subjects that a social studies teacher could teach].”
R.R. at 378A. Accordingly, the District contended that substantially comparable
work was available.
Based on Leslie’s testimony and report, the Secretary concluded:
“[Vladimirsky] did not exercise reasonable due diligence in obtaining available
employment after March 2012 and also that [Vladimirsky] could have reasonably
expected to earn more money than he actually earned if he pursued similar
employment with reasonable diligence.” Secretary’s Dec. at 7.
‘The general rule is that the burden of proof rests with the
defendant to show that the plaintiff could have minimized
his damages by using the ordinary care of a reasonable
and prudent person.’ APCL & K, Inc. v. Richer
[Commc’ns], Inc., . . . 361 A.2d 762, 766 ([Pa. Super.]
1976). See also: Williams v. [Nat’l] Org[.], Masters, Mates
& Pilots of Am[.], . . . 120 A.2d 896, 901 ([Pa.] 1956); State
Pub[.] Sch[.] Build[g.] Auth[.] v. W.M. Anderson Co., . . .
410 A.2d 1329, 1331 ([Pa. Cmwlth.] 1980).
Princess Hotels Int’l v. Hamilton, 473 A.2d 1064, 1067 (Pa. Super. 1984) (emphasis
added).
Similarly, such irrelevant evidence of allegedly available positions occupies 15 of Exhibit SDP-3’s
65 pages.
11
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
12
Exhibit SDP-5, containing the District’s Right-to-Know Request, contains information
pertaining to positions beginning in 2009.
12
In Vladimirsky I, this Court specifically instructed the District: “The
employer has the burden of proving that substantially comparable work was available
and that the plaintiff failed to exercise reasonable due diligence in seeking alternative
employment. The substantially comparable or equivalent work refers to employment
which affords virtually identical opportunities for a promotion, compensation and
responsibilities.” Vladimirsky I, 144 A.3d at 1004 (emphasis added) (quoting Jones
I, 139 A.3d at 376).
After a thorough review of the record, the number of positions Leslie
claimed were available to Vladimirsky was misleading in that the position listings
Leslie described pertained to jobs across the Commonwealth and to jobs outside of
the relevant time period.13 Vladimirsky was not required to relocate for
employment in order to mitigate back pay damages. See Somerset Area Sch. Dist. v.
Starenchak, 599 A.2d 252 (Pa. Cmwlth. 1991). Further, Leslie’s testimony and
documentary evidence does not prove that comparable employment was available.
Having an expert obtain pages of information with respect to employment
opportunities which included numerous opportunities that were clearly outside
Vladimirsky’s geographic location, outside of the relevant time period, and not
substantially comparable work, is of dubious value. See Exs. SDP-3, 4, 5.
13
For example, “available” positions listed in Exhibit SDP-3 (the list Leslie described as
“over 60 pages long”) include those located in counties distant from Philadelphia, including: York,
Allegheny, Montour, Lancaster, Lehigh, Clearfield, Berks, Dauphin, Adams, Lackawanna, Warren,
Blair, Washington, Centre, Northampton, Bradford, Clinton, Beaver, Crawford, Armstrong,
Monroe, Erie, Northumberland, Columbia, McKean, Fayette, Luzerne, Carbon, Butler and
Lycoming. An in-depth review of the document raises further questions as to its value. Many
positions were listed as part-time and substitute positions. See, e.g., Ex. SDP-3 at 1, 2. Some titles
identified the positions cryptically, such as simply: “High” (id. at 2, 4); “Instructor” (id. at 1, 2);
“Teacher” (id.); “Marketing Technician Support Teacher” (id. at 3). Curiously, 11 positions on the
list were allegedly obtained from the product auction website, “eBay.” Even more dubious is the
inclusion of 10 allegedly “available” positions with the District – the same entity that terminated
Vladimirsky’s employment. Further, with respect to Exhibit SDP-4, many of the job
advertisements pertained to jobs outside of the Philadelphia area, and part-time and substitute
teacher positions.
13
Moreover, the fact that the District compiled hundreds of pages of random job ads
does not prove that Vladimirsky failed to use “the ordinary care of a reasonable and
prudent person” in seeking alternative employment. Princess Hotels Int’l, 473 A.2d
at 1067 (quoting APCL & K, Inc., 361 A.2d at 766).
The record evidence reflects and the Secretary found that “[a]fter his
employment with the District ceased in July 2011, [Vladimirsky] was unemployed
until 2013, when he was hired as a security guard for Sunrise Senior Living Center
[(Sunrise)]. He remained employed at Sunrise at all relevant times thereafter.”
Secretary’s Dec. at 2, ¶11. Once Vladimirsky was no longer eligible to receive
unemployment compensation benefits, and he had been unsuccessful in obtaining a
teaching position, he accepted the position at Sunrise as a security guard because he
needed income to live.
The Secretary recognized Vladimirsky’s resume submission to 24 to 36
school districts during the period between the District’s employment termination and
his acceptance of the Sunrise position, as an “honest, good-faith effort to find similar
work[.]” Secretary’s Dec. at 6. In contrast, the Secretary found that because
Vladimirsky ceased looking for a teaching position after March 2012, he did not
mitigate his damages after March 2012 and was not entitled to recover lost salary
beyond the first quarter of 2012. The Third Circuit Court of Appeals has explained in
the employment discrimination context:
[T]he ‘lower sights’ corollary to the mitigation doctrine, . . .
holds that, after unsuccessfully attempting for a reasonable
period of time to secure substantially equivalent interim
employment, a [wrongfully terminated employee] is
required to ‘lower his sights’ by seeking less
remunerative work. But the duty to lower one’s sights
arises only after a reasonably diligent search for
employment similar to that lost has been made. Doubts as
to whether or when a [wrongfully terminated employee]
14
must lower his or her sights are resolved against the
employer.
Tubari Ltd., Inc. v. Nat’l Labor Relations Bd., 959 F.2d 451, 456 (3d Cir. 1992)
(citations omitted; emphasis added).
The Secretary did not address how long Vladimirsky must continue what
Vladimirsky believed to be a fruitless effort to find comparable employment that was
tainted by the District’s termination for cause. Vladimirsky’s inquiries were
consistently rebuffed or ignored. Vladimirsky received rejection letters or no
response at all, and was not invited for a single interview, for almost a year and a
half. Vladimirsky contends that he concluded that the stigma resulting from the
District’s improper termination of his employment rendered continued application
submission unlikely to result in a teaching job.14 Thus, upon the cessation of his
unemployment compensation benefits, he accepted a job outside of the teaching
profession to financially support his family. The District failed to show that
Vladimirsky’s decision to accept the security guard position and cease searching for a
teaching job given the aforementioned circumstances was unreasonable, see Raya &
Haig Hair Salon v. Pa. Human Relations Comm’n, 915 A.2d 728 (Pa. Cmwlth.
2007), and we resolve any doubts about whether it was appropriate for Vladimirsky
to lower his sights and accept the Sunrise position, against the District.
“Bearing in mind the general rule that the burden of proof rests with the
defendant to show that the plaintiff could have minimized his or her damages,”
Starenchak, 599 A.2d at 254, this Court cannot agree that the District met its burden
of proving “that [Vladimirsky] failed to exercise reasonable due diligence in seeking
alternative employment.”15 Vladimirsky I, 144 A.3d at 1004 (quoting Jones, 139
14
Vladimirsky’s conclusion is supported by Miller’s testimony that Vladimirsky’s
likelihood of being hired was significantly reduced given the District’s unlawful termination of his
employment for cause.
15
Vladimirsky also argues that Leslie’s report was inadmissible hearsay. Because this Court
concludes that the District did not meet its burden, the Court does not reach this issue.
15
A.3d at 376). Accordingly, because the record evidence reveals that the District did
not satisfy its burden and Vladimirsky mitigated his damages, Vladimirsky is entitled
to the compensation he would have earned had he not been dismissed, less any
earnings he actually received during the relevant time period.
Due Process
The Sunshine Act
Vladimirsky argues that the District failed to comply with the
Secretary’s August 25, 2016 order directing that Vladimirsky be reinstated.
Vladimirsky contends that because the District did not pursue Vladimirsky’s
reinstatement through the SRC, and the SRC did not reinstate him, the District
violated the Sunshine Act. Specifically, Vladimirsky relies on Section 708 of the
Sunshine Act which provides, in relevant part:
An agency may hold an executive session for one or more
of the following reasons:
(1) To discuss any matter involving the employment,
appointment, termination of employment, terms and
conditions of employment, evaluation of performance,
promotion or disciplining of any specific prospective
public officer or employee or current public officer or
employee employed or appointed by the agency, or
former public officer or employee, provided, however,
that the individual employees or appointees whose
rights could be adversely affected may request, in
writing, that the matter or matters be discussed at an
open meeting.
65 Pa.C.S. § 708(a)(1). Section 708(c) of the Sunshine Act mandates that “[o]fficial
action on discussions held pursuant to subsection (a) shall be taken at an open
meeting.” 65 Pa.C.S. § 708(c).
The District rejoins that this Court ordered Vladimirsky to be reinstated,
thus the Sunshine Act does not control. This Court’s order expressly directed: “[T]he
16
Acting Secretary of Education’s November 19, 2014 order is REVERSED. []
Vladimirsky is hereby reinstated to his position as a professional employee of the
[District] and the matter is REMANDED to the [Secretary] for further proceedings
consistent with this Opinion.” Vladimirsky I, 144 A.3d at 1005.
The Sunshine Act defines an official action as:
(1) Recommendations made by an agency pursuant to
statute, ordinance or executive order.
(2) The establishment of policy by an agency.
(3) The decisions on agency business made by an agency.
(4) The vote taken by any agency on any motion,
proposal, resolution, rule, regulation, ordinance, report or
order.
65 Pa.C.S § 703 (emphasis added). Here, because this Court ordered Vladimirsky’s
reinstatement, the SRC was not required to recommend, establish, decide or vote on
anything. Accordingly, since no official action was necessary, the Sunshine Act did
not apply.
Reinstatement Letters
Vladimirsky asserts that the District’s letters offering him reinstatement
were illegal and thus void. Consequently, Vladimirsky maintains he was not
reinstated. This Court disagrees.
On August 3, 2016, this Court ordered Vladimirsky’s reinstatement. In
accordance with this Court’s Order, on August 25, 2016, the Secretary ordered
Vladimirsky reinstated effective August 3, 2016. This Court recognizes that the
District requested the Secretary to vacate his order based on its petitioning the
Pennsylvania Supreme Court for allowance of appeal. However, when the Secretary
did not address the request, the District in fact, sent a letter to Vladimirsky offering
17
reinstatement “with a start date of November 4, 2016.” R.R. at 848A (emphasis
omitted). Vladimirsky responded by stating his position that the SRC has to reinstate
him at a public meeting and that Vladimirsky could not be reinstated with pending
disciplinary action. The District responded on December 2, 2016, explaining that
SRC action was not required, that the District had the right to proceed with
disciplinary action and requested Vladimirsky to report to work.16 See R.R. at 854A-
855A.
This Court agrees with the District. As explained above, SRC action
was not required because this Court ordered Vladimirsky to be reinstated.17
Moreover, the District was free to proceed with disciplinary action as this Court
specifically concluded: “Vladimirsky is reinstated to his position as a professional
employee until the District properly terminates his employment in accordance
with the School Code . . . .” Vladimirsky I, 144 A.3d at 1003-04 (emphasis in
original). Accordingly, Vladimirsky’s reinstatement was valid.18
Additional Issues
Application to Enforce
Vladimirsky argues that he submitted an application to enforce the
Secretary’s order reinstating him, and notwithstanding the Hearing Officer’s
16
The District also requested in the letter Vladimirsky’s email address “so that the
appropriate District staff persons may contact [Vladimirsky] to discuss logistics.” R.R. at 855A.
The District, therein, further advised Vladimirsky’s counsel that “if we do not receive your client’s
email address by the close of business on Wednesday, December 7, 2016, the District will consider
your client to have abandoned his position in the [District].” Id. (emphasis omitted).
17
Therefore, the correct time frame for the calculation of damages ends on November 4,
2016, the day on which the District first offered Vladimirsky reinstatement.
18
Vladimirsky further claims that his reinstatement without SRC action is analogous to his
employment termination without SRC action, which this Court found to be a violation of
Vladimirsky’s due process rights. However, the cure for said violation is not reinstatement through
the SRC, but rather reinstatement followed by disciplinary proceedings at the School Board’s
discretion, as prescribed by the School Code.
18
scheduling order (Scheduling Order) stating otherwise, the Secretary did not address
it. The Scheduling Order stated, in relevant part:
At the hearing, the following issues/matters shall be
considered:
a. The [District’s] request for a stay or supersedeas pending
review by the [Secretary].
b. [Vladimirsky’s] request for enforcement of [the
Secretary’s] orders reinstating [Vladimirsky] to his position
with the [District].
c. The amount of back pay, if any, that should be awarded
to [Vladimirsky], taking into account his duty to mitigate
damages.
R.R. at 139A. Vladimirsky claims the Secretary did not address issues a and b.
First, the Secretary’s decision was dated May 1, 2018, and the
Pennsylvania Supreme Court denied the District’s Petition for Allowance of Appeal
on January 23, 2017. Therefore, the issue of the District’s request for a stay or
supersedeas was clearly moot on the date the Secretary issued his opinion. Second,
the Secretary concluded that the District reinstated Vladimirsky as of its first offer of
reinstatement. Consequently, the issue of enforcement of the Secretary’s
reinstatement order was also moot at the time the Secretary issued his decision.
Accordingly, the Secretary addressed the issues properly before him, i.e., the amount
of backpay and mitigation.
Liberty Interests and Records Expunction
Vladimirsky states in his brief: “The [Secretary] refused to order
expunction of the records against Vladimirsky. We now ask the Court to do so.”
Vladimirsky Br. at 53.
19
Pennsylvania Rule of Appellate Procedure 1551(a) provides in pertinent
part: “Review of quasijudicial orders shall be conducted by the court on the record
made before the government unit. No question shall be heard or considered by the
court which was not raised before the government unit . . . .” Pa.R.A.P. 1551(a).
This Court remanded this matter in Vladimirsky I for Vladimirsky’s reinstatement and
calculation of damages. The Hearing Officer specified the issues to be determined in
its Scheduling Order (the District’s stay request, Vladimirsky’s Enforcement
Application and damages/mitigation). As Vladimirsky’s record expunction was not
before the Secretary, it was properly not heard or considered by the Secretary.
Consequently, it cannot now be considered by this Court.
This Court notes that although it reversed Vladimirsky’s employment
termination because the District failed to comply with the School Code, it did not
address the actual charges. Moreover, if Vladimirsky had accepted the reinstatement,
the original charges could again be reinstituted and disciplinary proceedings could be
brought against Vladimirsky correspondingly. Accordingly, the Secretary did not err
in not addressing Vladimirsky’s records expunction and we will not do so now.
Lost Compensation Due to Vladimirsky
Vladimirsky next argues that the Secretary failed to properly compensate
him:
The Secretary did not include what is due to [] Vladimirsky
during the years that he was employed by [Sunrise] . Nor
did he apply the statutory interest rate of 6% per year.
[Section 1155 of the School Code,] 24 [P.S.] § 11-1155.
Nor did he factor in the accumulated sick and personal days
which Vladimirsky was entitled to be paid pursuant to the . .
. [c]ollective bargaining agreement. Nor did he provide an
order for the District to pay into the . . . retirement fund for
the years in question.
20
Vladimirsky Br. at 54.
Section 1130 of the School Code provides that where a final decision on
the discharge of a professional employee is in the employee’s favor, “there shall be
no abatement of salary or compensation.” 24 P.S. § 11-1130. Thus, such employee
is entitled to “damages for lost salary together with any increments to his salary to
which he would have been entitled had he continued in his position[.]” Mullen v. Bd.
of Sch. Dirs., 259 A.2d 877, 881 (Pa. 1969). Further, such employee is entitled to 6%
simple interest on back pay.19 See Shearar v. Sec’y of Educ., 424 A.2d 633 (Pa.
Cmwlth. 1981).
Because damages are to be determined by the fact-finder, this Court
remands the matter to the Secretary for recalculation of Vladimirsky’s damages. See
Omicron Sys., Inc. v. Weiner, 860 A.2d 554 (Pa. Super. 2004).
Conclusion
For all of the above reasons, the Secretary’s order is vacated, and the
matter is remanded to the Secretary to recalculate Vladimirsky’s damages by
including what amount he should have received under the salary schedule for the time
period beginning with Vladimirsky’s dismissal and ending on November 4, 2016, the
19
Although Vladimirsky contends that the Secretary did not factor in accumulated sick and
personal days or order the District to pay into the retirement fund, we do not agree. The Secretary’s
Order states that “Vladimirsky also shall be entitled to payment for any leave that he would have
earned . . . .” May 1, 2018 Secretary’s Order at 1 (emphasis added). The Secretary’s Order also
provides that “[t]he District shall have the right to make deductions for applicable retirement
contributions and other payroll deductions . . . .” Id.
21
date he was first offered reinstatement, including all accumulated leave, less all
income actually earned throughout that time period, plus 6% interest.
__________________________
ANNE E. COVEY, Judge
22
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Serge Vladimirsky, :
Petitioner :
:
v. :
:
School District of Philadelphia, : No. 732 C.D. 2018
Respondent :
ORDER
AND NOW, this 2nd day of April, 2019, the Secretary of Education’s
(Secretary) May 1, 2018 order is vacated, and the matter is remanded to the Secretary
to recalculate Serge Vladimirsky’s damages in accordance with this opinion.
Jurisdiction relinquished.
___________________________
ANNE E. COVEY, Judge