E. Jones v. School District of Philadelphia

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Ellis Jones, :
Petitioner :
:
v. :
:
School District of Philadelphia, : No. 722 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
Ellis Jones (Jones) petitions this Court for review of the Secretary of
Education’s (Secretary) May 1, 2018 order awarding Jones $4,303.00 for lost
compensation during 2014 and 2015. Essentially, Jones presents three issues for this
Court’s review: (1) whether the Secretary properly calculated Jones’ compensation;
(2) whether the School District of Philadelphia (District) violated Jones’ due process
rights; and (3) whether the Secretary was required to address additional issues.1 After
review, we vacate and remand.
1
Jones’ “Statement of the Questions Involved” includes five 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 Jones through the SRC and refusal to properly assign Jones 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; and (5) whether the
Secretary failed to act to reinstate Jones as directed to do so by this Court pursuant to the Court’s
Order and as asked to do so in Jones’ application to enforce the executory orders of both this Court
and the Secretary. Jones’ Br. at 4. These issues are subsumed in this Court’s rephrasing of the
issues and will be addressed accordingly.
Background
The District hired Jones as a teacher and professional employee on
September 1, 2002. Jones was a vocational teacher at Dobbins Area Vocational
Technical School (AVTS) for six years until the electronics program was
discontinued at that location. During the 2008-2009 school year, Jones was assigned
as a math teacher at Mastbaum AVTS (Mastbaum). On or about April 30, 2009,
Mastbaum’s principal Mary Dean (Dean) received a letter containing alleged
inappropriate statements Jones made in his classroom while teaching. Thereafter, an
investigation commenced regarding the alleged statements. After an investigatory
conference on June 1, 2009, Dean prepared an unsatisfactory incident report and
recommended that Jones’ employment be terminated. In August 2009, the District’s
Administration recommended that Jones’ employment be terminated.
Jones requested a hearing before the District’s School Reform
Commission (SRC) and on April 16, 2010, a hearing was held before the SRC.
Effective December 15, 2010, the SRC terminated Jones’ employment. Jones
challenged his employment termination by pursuing litigation against the District
before the Secretary and this Court. On June 2, 2016, this Court 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 Jones’ employment termination was a
nullity. See Sch. Dist. of Phila. v. Jones, 139 A.3d 358 (Pa. Cmwlth. 2016) (Jones I).
The Court ordered Jones be reinstated with backpay. Id.
Facts
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 [] Jones shall be
2
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§ 1-101 - 27-2702.
2
reinstated effective June 2, 2016. The parties are hereby
ordered to file with my office a Stipulation regarding the
amount of compensation that is due to [] Jones, 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 []
Jones, 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 42A.3 On November 1, 2016, the District sent Jones’
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 [] Jones . . . 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
Jones . . . [is] willing to accept reinstatement with a start
date of November 4, 2016.
R.R. at 82A (emphasis in original). On December 2, 2016, a follow-up letter was
emailed to Jones’ Counsel relating:
On the telephone this afternoon, we discussed the [O]rder
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
3
The District had requested the Secretary to vacate the August 25, 2016 order because the
District petitioned the Pennsylvania Supreme Court for allowance of appeal and that entitles the
District to an automatic stay. The Secretary did not address the request. On February 15, 2017, the
Pennsylvania Supreme Court denied the District’s Petition for Allowance of Appeal. See Sch. Dist.
of Phila. v. Jones, 167 A.3d 697 (Pa. 2017).
4
65 Pa.C.S. §§ 701-716.
3
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
[] District expressly retains and does not waive its claims
that your client failed to mitigate his damages in whole or
part.
R.R. at 83A-84A (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 January 24, 2017, and
continued over the course of several days throughout 2017. On May 1, 2018, the
Secretary ordered:
Jones shall be entitled to $4,303[.00] as a total gross amount
for lost compensation during 2014 and 2015. [] Jones also
shall be entitled to payment for any leave that he would
have earned during those two years if he remained
4
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. Jones appealed to this Court.5
Discussion
Compensation
Mitigation
Jones first argues that he is entitled to all lost compensation he should
have earned had he not been dismissed, less what he actually earned during the
relevant time period. The District rejoins that because Jones had a teaching job for
only two of the relevant years, he failed to mitigate his damages. Therefore, the
District maintains, they are the only years he is entitled to compensation.
In Jones I, this Court explained:
With respect to Jones’ 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
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
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 [teacher] 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 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).
Jones I, 139 A.3d at 376-77 (emphasis added; footnote omitted).
Here, the Secretary found as a fact: “The record contains no credible
evidence to support a conclusion that [Jones] made any effort to find employment
similar to his employment with the District at any relevant time until he obtained
employment with the Delaware County Intermediate Unit (‘DCIU’) in 2014.”
Secretary Dec. at 3, Finding of Fact 12 (emphasis added).
However, Jones testified that beginning in October 2009, he worked in
the Springfield, Delaware County School District, as a substitute teacher. See R.R. at
405A, 409A. Jones further reported that in the beginning of 2010 he filed an
6
application with the Pennsylvania Regional Educational Applicant Placement (PA
REAP)6 network, making his credentials available to all school districts in
Southeastern Pennsylvania that may need to fill a vacancy. See R.R. at 406A-407A.
As a result of his employment search, Jones obtained a position at MAST Charter
School during the 2010-2011 school year, see R.R. at 380A, 410A, and Pottstown
High School as an evening program teacher. See R.R. at 410A-411A. Moreover,
Jones explained that from August 2011 through December 2012 he worked at Hope
Charter School, see R.R. at 412A-413A, from January 2013 to January 2014 he
worked at Upper Darby High School, see R.R. at 414A-416A, and thereafter, he
obtained a position as a tenured teacher at DCIU. In addition, Jones testified that he
registered with Kaleidoscope.7 According to Jones, Kaleidoscope “puts candidates in
many schools in the area. [sic] [He] signed up with Kaleidoscope, and they sent [him]
on job interviews at some of the institutions they put people[,] [sic] to see if they
would accept [him]. [sic]” R.R. at 385A. Jones also noted that he persistently sought
to improve his position in the education field by attending graduate school and
earning additional certifications. The record evidence clearly reveals that as a result
of Jones’ employment search, he was continuously employed throughout the period
of his dismissal, except for two short periods of unemployment. Thus, Finding of
Fact 12 is not supported by substantial evidence.
Importantly, the District has the burden to prove that substantially
comparable work was available and that the plaintiff “failed to exercise reasonable
6
PA REAP is a national school application network which “is a free service designed to
help educators find new and exciting teaching jobs, administrative jobs and other related service
positions in Pennsylvania.” https://www.pareap.net (last visited March 15, 2019). Through PA
REAP, one can find employment opportunities from 950 school districts and private schools
nationwide. See id.
7
“Kaleidoscope Education Solutions is a leading referral agency of special education
professionals and school-based therapy providers.” https://www.kesgroup.net (last visited March
15, 2019).
7
due diligence in seeking alternative employment.” Id. The District presented
vocational expert Terry P. Leslie (Leslie) who testified that the Commonwealth of
Pennsylvania had teaching positions available to Jones after his dismissal which were
suitable to his education, experience, and qualifications. See R.R. at 458A.
Specifically, Leslie related that he “asked that data be collected that
outlines all of the positions that have been advertised in the [C]ommonwealth of
Pennsylvania for math and special education teachers since 2009 to the present[.]”
R.R. at 460A. As a result, he “received . . . individual lined employment openings
put together in a list[ ] [(Summary)] then received copies of the employment
advertisements for those individual openings [(Advertisements)].” R.R. at 462A,
School District Ex. (SDE) 1-2.
The Summary was a more than 900-page list of job postings for “special
education teachers and high school math teachers in the state of Pennsylvania.” SDE
1 at 1. It included jobs throughout Pennsylvania in such locations as Pittsburgh,
Lancaster, York, Fairview, Lebanon, Scranton, Bedford, Mechanicsburg,
Stroudsburg, Huntingdon, Newville, Jim Thorpe and Erie, among other places, which
are a great distance from the Philadelphia area. The Summary also listed postings on
CraigsList and Internships. Importantly, none of the job postings stated the salary for
the particular position. Moreover, the Summary included hundreds of positions not
geographically relevant as Jones was not required to relocate to obtain employment in
order to mitigate back pay damages. See Somerset Area Sch. Dist. v. Starenchak, 599
A.2d 252 (Pa. Cmwlth. 1991). It also listed positions irrelevant to Jones’ job search
because they were not substantially comparable, such as substitute teachers, research
associates, volunteer teachers and assessment editors.
The Advertisements contained the “details” for the positions listed in the
Summary and consisted of over 21,000 pages. See R.R. at 463A-464A, SDE 2. The
“details”, however, varied between one to two sentences and full paragraphs, most of
8
which were so vague, it could not be determined whether the positions were indeed
comparable. See SDE 2. Significantly, most of the Advertisements did not contain
salaries. See id.
Finally, Leslie discussed a list of job openings for math and special
education teachers that were filled from 2009 to present throughout Pennsylvania,
which were obtained pursuant to a Right-to-Know Law (RTKL)8 request (Request).
See R.R. at 467A. Specifically, the Request sought from August 11, 2009 to August
2017: (1) “[a]ny and all job postings and vacancies for teacher positions in the
following areas of certification[]” instructional I and II social studies, mathematics,
technology education, special education, vocational instructional II vocational
instruction, related occupational area automotive mechanics, cooperative education
and engineering related technology; and (2) “[a] copy of all resumes for teachers
hired” in the above-listed certifications. SDE 3 at 3. The Request garnered
approximately 1,300 pages of tables and charts from various schools and school
districts containing information on all available positions, including, inter alia, school
nurses, sports coaches, music coordinators, art coordinators, health and physical
education teachers, counselors, long-term substitute teachers, substitute van drivers,
and administrative positions. The responses further included, among other things,
lists of new hires, rehires, and classification changes.
Leslie opined:
Q Okay. And based on your review of all the documents
that you reviewed, did you form an opinion as to whether []
Jones could have obtained a teaching position after his
termination by the [] [D]istrict?
A Yes. It’s clear that school districts have been hiring for
teachers certified in those areas on a consistent basis.
8
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
9
Q And in this case, it’s not really a question as to
whether he’s obtained any teaching position, because he
did -- he did obtain some; right?
A Correct.
Q So, what is it that you were determining?
A Right. It’s not so much a question of whether or not
there were positions open and available, because,
obviously [] Jones has been gainfully employed since the
date of his termination.
My focus was more on the earnings of the individuals with
those teaching certifications on a statewide level. So, what
I did then is, go through the -- statistics are put together by
economists that are hired through or employees of either the
Pennsylvania Department of Labor and Industry or the
[United States] Bureau of Labor Statistics, and then compile
data for those teaching positions on an annual basis from
2009 to the present.
Q So, you were essentially determining what he could have
or should have been making?
A What the average experienced teacher in those
disciplines earned on a [C]ommonwealth basis.
R.R. at 468A-469A (emphasis added). Leslie further opined:
Q Do you provide any opinion in your report as to what his
earning capacity -- what [] Jones’[] earning capacity was
during the period of 2009 to the present?
A Right. Again, I was tasked at taking a look at the
[C]ommonwealth of Pennsylvania as a whole. And the
earning capacity for teachers with his qualifications range
from 76,900 dollars in 2009 --
....
As I was saying, it ranged from 63,900 dollars in 2009 to
74,477 dollars in 2016.
R.R. at 476A-477A.
10
Significantly, the salary figures Leslie cited were computed from a set of
statistics completely independent from the information he obtained through the
Summary, Advertisements and Request, and, as he stated, were “look[ing] at the
Commonwealth of Pennsylvania as a whole[,]” not related to specific, available
positions in Jones’ geographic location. R.R. at 476A. Thus, notwithstanding the
data testified to, Leslie’s opinion with respect to what Jones should have earned is
based on nothing more than the Pennsylvania Department of Labor and Industry’s
Occupational Employment and Wage Rates, and the United States Department of
Labor’s Bureau of Labor Statistics’ State Occupational Employment and Wage
estimates. See SDE 4 at 6. More importantly, comparing these salary figures, i.e.,
$63,900.00 in 2009 to $74,477.00 in 2016, with Jones’ actual earnings, i.e.,
$57,788.00 in 2009 to $85,640.00 in 2016,9 the compensations are substantially
similar, such that it does not support the conclusion that Jones did not mitigate his
damages. This statement is especially true here, where the salaries obtained from the
Request for high school math teachers and special education teachers ranged from
$42,000.00 to $66,719.00, for the relevant time period.10 See SDE 3.
Based on Leslie’s testimony and report, the Secretary concluded: “(1)
[Jones] did not exercise reasonable due diligence in obtaining available employment
prior to the time he was employed at DCIU, and (2) [Jones] could have reasonably
expected to earn more money than he actually earned if he pursued similar
employment with reasonable diligence.” Secretary’s Dec. at 11. For the reasons
stated above, the Secretary’s conclusions are not supported by the record evidence.
‘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
9
See Secretary’s Dec. at 5.
10
With the exception of one special education position having a salary of $73,883.00 for the
relevant time period.
11
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). Jones’ evidence showed that even though Jones’ dismissal had occurred in
August 2009, Jones had continuously worked since October 2009. Because Leslie
testified to an average earning wage from teachers across Pennsylvania with his
qualifications during that period, the Secretary resolved this issue in favor of the
District. “Where, as here, the [Secretary’s] findings are [not] supported by the
evidence, they are [not] binding upon an appellate court.” Princess Hotels Int’l, 473
A.2d at 1067 (quoting Burke v. Israel, 399 A.2d 779, 782 (Pa. Super. 1979)).
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.” Jones I, 139 A.3d at 376 (emphasis added) (quoting Merrell, 51
A.3d at 298). By having an expert obtain pages of information with respect to
employment opportunities, including, in large part, opportunites that were clearly
outside Jones’ geographic location and/or not substantially comparable work, see
SDE 1-3, and then basing the purported comparable salary on statistics completely
unrelated and independent of the available employment opportunities compilation,
see SDE 4, the Court is constrained to conclude that the District failed to satisfy its
burden of proof.
12
“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 substantially comparable work was available and that [Jones] failed
to exercise reasonable due diligence in seeking alternative employment.”11 Jones I,
139 A.3d at 376 (quoting Merrell, 51 A.3d at 298). “Even assuming that [Jones] did
not take necessary steps to obtain employment, the [District] has not met its burden of
proof.” Delliponti v. Deangelis, 681 A.2d 1261, 1265 (Pa. 1996). The District failed
to present evidence to establish that there were available teaching positions
substantially equivalent to the position Jones previously held with the District, see
Raya and Haig Hair Salon v. Pa. Human Relations Comm’n, 915 A.2d 728, 735 (Pa.
Cmwlth. 2007), “which afford[] virtually identical opportunities for . . .
compensation . . . .” Jones I, 139 A.3d at 376 (emphasis added) (quoting Merrell,
51 A.3d at 298).
The fact that the District compiled 900 to 21,000 pages of random job
ads, without correlating salaries, does not prove that Jones 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).
Accordingly, because the record evidence reveals that the District did not satisfy its
burden, Jones 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.
11
Jones also argues that Leslie’s report was inadmissible hearsay because it was based on
the Summary, the Advertisements and the Request which were all hearsay and/or obtained for
litigation. Because this Court concludes that the District did not meet its burden, the Court does not
reach this issue.
13
Calculation
Jones claims that the calculation of what he should have earned had he
not been dismissed must be based on a combination of the doctorate salary schedule
(because he obtained his doctorate in May 2017),12 and the senior career teacher
salary. Jones further contends that he is entitled to compensation through June 2017,
when he retired. The District responds that Jones is entitled to the master’s degree
salary schedule because that is the only degree Jones had during the relevant period.
Further, the District asserts that Jones should only be compensated through his
reinstatement date.
The Secretary explained:
[Jones] argues that he would have been compensated at the
level of those who possessed a doctorate degree. [Jones]
claims that he would have been paid on the ‘doctorate’ scale
during the 2010-2011 and 2011-2012 school years. I
disagree. [Jones] did not have a doctorate degree at any
relevant time. In my view, the . . . amounts correctly
reflect a salary at the level of the only graduate degree
[Jones] did hold from 2009 through 2016 (i.e., master’s
degree +30, Step 11). [Jones’] proper pay grade is correctly
listed . . . .
Even if [Jones’] testimony regarding his graduate degrees is
assumed to be true, he did not obtain a doctorate degree
until 2017. He testified that he received a doctorate degree
from Gwynedd Mercy University in May 2017. . . . There
is no evidence in the record to support a conclusion that
[Jones] was entitled to payment on the District’s
‘doctorate’ scale prior to 2017. In my opinion, 2017 is
outside the proper timeframe for the calculation of damages
in this matter. To the contrary, [Jones] contends that he is
entitled to a damage award for lost compensation through
2017 and invites me to conclude that the District never
validly reinstated him. . . . [Jones] argues that the District’s
12
At the May 9, 2017 hearing, Jones testified that he was graduating May 13, 2017, so he
would have his doctorate at that time. See R.R. at 282A-283A.
14
offer to return him to work was invalid because it was not
made at a public meeting. . . .[13] Again, I disagree.
. . . . [T]he District has offered [Jones] reinstatement,
and [Jones] has refused it. Therefore, the correct
timeframe for the calculation of damages ends on
November 9, 2016[14] - the day on which the District first
offered [Jones] reinstatement. The District has offered to
return [Jones] to his position several times. [Jones] has
chosen not to return to work. . . . I cannot reward [Jones]
for refusing to accept reinstatement. Accordingly, I find
that the relevant timeframe for the calculation of damages
must end on November 9, 2016, when the District first
offered [Jones] his job back. His wages must be calculated
at the master’s degree pay level commensurate with the
only graduate degree he held during the relevant timeframe
(2009-2016).
[Jones] also claims that he is entitled to additional pay as a
senior career teacher. . . . I find no support in the record for
this claim. The evidence does not support a conclusion
that [Jones] would ever have held senior career teacher
status with the District. The prerequisites for senior career
teacher status are as follows: ‘Possession of a Vocational II
certificate issued by [the Pennsylvania Department of
Education]; and ten (10) years of satisfactory teaching in
the [District]; and forty[-]five (45) approved college
credits.’ Ex. EJ-16. It is undisputed that the 2009
issuance of an unsatisfactory incident report regarding
[Jones] would have prevented him from being
considered as having satisfied the requirement of ten
years of satisfactory teaching. . . . It is further
undisputed that [Jones] did not obtain his 45th credit
until after the Fall Semester of 2014. . . . Even if he did,
there is no evidence to support a conclusion that he would
have been able to obtain 45 credits by that time if he was
working full-time for the District. It is undisputed that,
after [his employment] termination [Jones] had a reduced
work load at his non-District jobs. Accordingly, I find that
[Jones] would not have been paid as a senior career teacher
or at the ‘doctorate’ pay level at any relevant time.
13
This argument will be further addressed below.
14
According to the record, November 4, 2016, is the date the District first offered
reinstatement. See R.R. at 82A.
15
Secretary’s Dec. at 6-7 (emphasis added; footnote omitted). This Court discerns no
error in the Secretary’s analysis. Moreover, other than perfunctory statements in
footnotes in his brief, see Jones’ Br. at 58 n.21-23, Jones does not offer any argument
on which this Court can conclude otherwise. Accordingly, the compensation Jones
would have earned if he had not been dismissed was correctly calculated at the
master’s degree salary schedule and properly ended on November 4, 2016.15
Jones further argues:
The Secretary did not . . . interpret Jones’ [Philadelphia
Federation of Teachers] Collective Bargaining Agreement
properly. Nor did the Secretary calculate the statutory
interest rate of 6% per year. He also did not properly assess
[Public School Employees’ Retirement System]
contributions properly [sic]. And he did not order
reimbursement of [] Jones’ transcript fees as mandated by
Section []1127 of the tenure provisions of the School Code[,
24 P.S. § 11-1127].
In Jones’ memorandum on compensation due, he presented
a detailed analysis. We therefore incorporate it herein by
reference.
Jones’ Br. at 56. Rather than developing a coherent argument with respect to each of
these claims, with proper citation to relevant case law supporting his argument as
required by the Pennsylvania Rules of Appellate Procedure, Jones simply attempts to
incorporate by reference the memorandum he submitted to the Secretary below.
[The Pennsylvania Supreme Court] ha[s] previously held
that such ‘incorporation by reference’ is an unacceptable
manner of appellate advocacy for the proper presentation of
a claim for relief to our Court. Commonwealth v. Edmiston,
. . . 634 A.2d 1078, 1092 n.3 ([Pa.] 1993) (specifying that
all claims a litigant desires our court to consider are
required to be set forth in the appellate brief and not just
15
Jones also asserts that the 6% interest should be compounded. However, as Jones
correctly notes in his unsupported request “for a remedial order” from this Court: “The type of
interest, whether simple or compound, is discretionary. Graybill v. Juniata [Cty.] Sch[.] Dist., 347
A.2d 524 (Pa. Cmwlth. 1975).” Jones’ Br. at 27.
16
incorporated by reference); Pines v. Farrell, . . . 848 A.2d
94, 97 n.3 ([Pa.] 2004) (holding that reliance on the ‘briefs
and pleadings already filed in this case’ was ‘not a
recommended form of advocacy’ and noting that ‘this Court
is not obliged to root through the record and determine what
arguments, if any, respondent forwarded below, nor are we
obliged to fashion an argument on his behalf.’). Our rules
of appellate procedure specifically require a party to set
forth in his or her brief, in relation to the points of his
argument or arguments, ‘discussion and citation of
authorities as are deemed pertinent,’ as well as citations to
statutes and opinions of appellate courts and ‘the principle
for which they are cited.’ Pa.R.A.P. 2119(a), (b).
Therefore[,] our appellate rules do not allow incorporation
by reference of arguments contained in briefs filed with
other tribunals . . . as a substitute for the proper presentation
of arguments in the body of the appellate brief.
Commonwealth v. Briggs, 12 A.3d 291, 342-43 (Pa. 2011). Consequently, Jones has
waived these arguments. Id.
Due Process
The Sunshine Act
Jones argues that the District failed to comply with the Secretary’s
August 25, 2016 order directing that Jones be reinstated. Jones contends that because
the District did not pursue Jones’ reinstatement through the SRC and the SRC did not
reinstate him, the District violated the Sunshine Act. Jones expressly relies on
Section 708 of the Sunshine Act. Section 708(a) of the Sunshine Act 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
17
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). 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 Jones to be reinstated, thus
the Sunshine Act does not control. This Court’s Order expressly directed: “[T]he
Acting Secretary of Education’s November 5, 2013 order is REVERSED. [] Jones 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.” Jones I, 139 A.3d at 377.
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 Jones’
reinstatement, the SRC was not required to recommend, establish, decide or vote on
anything. Accordingly, since no official action was necessary, the Sunshine Act does
not apply.
18
Reinstatement Letters
Jones asserts that the District’s letters offering Jones’ reinstatement were
illegal and thus void. Consequently, Jones maintains he was not reinstated. This
Court disagrees.
On June 2, 2016, this Court ordered Jones’ reinstatement. In accordance
with this Court’s Order, on August 25, 2016, the Secretary ordered Jones reinstated
effective June 2, 2016. This Court recognizes that the District requested that the
Secretary 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 Jones offering reinstatement “with a start date of
November 4, 2016.” R.R. at 82A. Jones responded by stating his position that the
SRC had to reinstate him at a public meeting and that Jones could not be reinstated
with pending disciplinary action. The District responded on December 1, 2016,
explaining that SRC action was not required, that the District had the right to proceed
with disciplinary action and requested Jones to report to work. See R.R. at 83A-84A.
This Court agrees with the District. As explained above, SRC action
was not required because this Court ordered Jones to be reinstated. Moreover, the
District was free to proceed with disciplinary action as this Court specifically
concluded: “Jones is reinstated to his position as a professional employee until
the District properly terminates his employment in accordance with the School
Code . . . .” Jones I, 139 A.3d at 376 (emphasis in original). Accordingly, Jones’
reinstatement was valid.16
16
Jones 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 Jones’ due
process rights. However, the cure for said violation is not reinstatement through the SRC, but
rather, reinstatement followed by employment termination proceedings as prescribed by the School
Code.
19
Additional Issues
Application to Enforce
Jones argues that he submitted an application to enforce the Secretary’s
order reinstating him, and notwithstanding the Hearing Officer’s 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. [Jones’] request for enforcement of [the Secretary’s]
orders reinstating [Jones] to his position with the [District].
c. The amount of back pay, if any, that should be awarded
to [Jones], taking into account his duty to mitigate damages.
R.R. at 144A. Jones 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 February 15, 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 Jones 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
Jones states in his brief: “Jones asked the Secretary to order the
expunction of all records and his Hearing Officer never addressed the issue. We ask
20
this Court to do so now.” Jones’ Br. at 53. Jones further argues: “The District
provides a ‘do not hire’ list to Kelly Services. If Jones’ name is placed on that list it
would create a ‘stigma’ which would create a cause of action against the District.”
Id.
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 Jones I for Jones’ reinstatement and calculation of
damages. The Hearing Officer specified the issues to be determined in its Scheduling
Order (the District’s stay request, Jones’ Enforcement Application and
damages/mitigation). As Jones’ 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 Jones’ employment
termination because the District failed to comply with the School Code, it did not
address the actual charges. Moreover, if Jones had accepted the reinstatement, the
original charges could again be reinstituted and disciplinary proceedings could be
brought against Jones correspondingly. Accordingly, the Secretary did not err in not
addressing Jones’ records expunction and we will not do so now.
Conclusion
For all of the above reasons, the Secretary’s order is vacated, and the
matter is remanded to the Secretary to recalculate Jones’ damages by including what
he should have received under the masters salary schedule for the time period
beginning with Jones’ dismissal and ending on the date he was first offered
21
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
Ellis Jones, :
Petitioner :
:
v. :
:
School District of Philadelphia, : No. 722 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 Ellis Jones’ damages in accordance with this opinion.
Jurisdiction relinquished.
___________________________
ANNE E. COVEY, Judge