H. Shelley Morrisette v. PASSHE

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
H. Shelley Morrisette, :
Appellant :
:
v. : No. 7 C.D. 2022
:
PA State System of :
Higher Education : Submitted: March 3, 2023
BEFORE: HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: July 10, 2023
H. Shelley Morrisette (Appellant) appeals to this Court from the September
16, 2021 Order of the Court of Common Pleas of Cumberland County (Trial Court),
which granted the Motion for Summary Judgment (Motion) filed by Appellee, the
Pennsylvania State System of Higher Education (PASSHE). Appellant argues that
the Trial Court erroneously disregarded several key factual and legal issues in
Appellant’s employment discrimination action against PASSHE. Furthermore,
Appellant maintains that his failure to comply with an order of the Trial Court
directing him to submit a statement of errors complained of on appeal, pursuant to
Rule of Appellate Procedure 1925(b), is not fatal to his case. After review, we
affirm.
I. Background
From 2002 until 2012, Appellant was an Associate Professor in Marketing
and Management at Shippensburg University (University), a PASSHE member
institution. See Morrisette v. Pa. Sys. of Higher Educ. (C.C.P. Cumberland Cnty.,
No. 2015-00674, filed September 16, 2021) (Trial Court Opinion (Op.)) at 1. In
December 2012, Appellant was a candidate for promotion to the position of
Professor. Id. Promotions at the University are handled by a University Wide
Promotion Committee (UWPC) pursuant to the University’s Statement of Promotion
Policies and Procedures (Promotion Procedures). Id. The Promotion Procedures
directed UWPC members to rank each promotion candidate using three criteria
(teaching effectiveness, continued scholarly growth, and service to the University or
community). Id. Once the UWPC reached agreement on a ranking, it submitted the
results to the University President for a final determination. Id. Following a March,
2013 meeting, the UWPC ranked Appellant 11th-highest among 20 candidates for
promotion, a determination which he did not appeal. Id. at 2. The University
President then promoted the top ten candidates, which precluded Appellant from
receiving a promotion. Id.
Appellant initiated this action with the filing of a Complaint in the Trial Court
on February 5, 2014. See Original Record (O.R.), Item No. 0. The Complaint
underwent several amendments, and the Trial Court eventually proceeded under a
Fourth Amended Complaint, filed on February 14, 2018. See O.R., Item No. 30.
The Fourth Amended Complaint contained two counts, in which Appellant alleged
unlawful age and sex discrimination, both in violation of the Pennsylvania Human
Relations Act (PHRA).1 See generally id. ¶¶ 22-40. Appellant argued that he was
better qualified than several, younger promotion candidates who received higher
rankings from the UWPC, and that the “female voting members of the UWPC gave
[Appellant] an artificially low rating.” Id. ¶¶ 28, 36. As a remedy, Appellant
1
Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951-963.
2
requested “legal and equitable relief as is available to a prevailing plaintiff pursuant
to the remedial provisions of the [PHRA].” Id. ¶ 40.
In deposition testimony, Appellant acknowledged that he did not launch an
official appeal of the UWPC’s determination, as he believed that appeals were never
successful. O.R., Item No. 39, PASSHE’s Exhibit No. 1, Morrisette Dep. at 77.
Rather, Appellant personally contacted Dr. Sara Grove, co-chair of the UWPC, for
an explanation of what he believed to be his unfairly poor showing. Id. at 79. Dr.
Grove offered to meet with Appellant in person, but he refused. Id. at 80. Appellant
also acknowledged that he had no knowledge of any UWPC discussions about his
or other candidates’ age. Id. at 94-95. Although Appellant vaguely recalled hearing
rumors that someone accused him of being “misogynistic,” Appellant did not know
who said it, or whether it was said during a UWPC meeting. Id. at 95. When asked
why he believed that he was unfairly discriminated against, Appellant recalled a
discussion he had with Irma Lopez, whom he described as “a Hispanic female in the
[C]ollege of [B]usiness.” Id. at 124. According to Ms. Lopez, Appellant said, he
was not promoted because he was “an old, white male” who does not “play politics.”
Id. at 123. Appellant acknowledged that Ms. Lopez was not a UWPC member, and
was not present at any relevant UWPC meetings. Id. at 124.
In its defense, PASSHE presented the deposition testimony of Dr. Grove. See
O.R., Item No. 39, PASSHE’s Ex. No. 2, Grove Dep. at 41. Dr. Grove explained
that when the UWPC considered each slate of promotion candidates, it was not
aware of how many candidates the University President would eventually promote.
Id. at 93. When asked if she voted for Appellant’s promotion, Dr. Grove explained
that, while she gave Appellant a higher rank than most of the candidates, she and
other UWPC members did not cast votes for or against the promotion of the
3
candidates. Id. at 27. Rather, they simply ranked the candidates based on the criteria
outlined in the Promotion Procedures. Id. The UWPC then conducted multiple
rounds of voting until 80% of its members agreed on a final ranking of the
candidates, which was then sent to the University President. Id. at 94. Dr. Grove
added that she and other UWPC members discarded their notes from the March 2013
meeting soon after its conclusion, in keeping with their usual practice. Id. at 93.
In its defense, PASSHE further submitted a list of the March, 2013 promotion
candidates. See O.R., Item No. 39, PASSHE’s Ex. No. 11. The list, which also
states each candidate’s name, age at the time of the UWPC meeting, and eventual
promotion outcome, indicates that Appellant was one of two candidates in their
sixties; the other, who ranked 3rd out of the 20 candidates, was promoted to
Professor. Id. Of the 10 candidates who were successful, 9 were over the age of 40;
4 were over the age of 50. Id. The list also indicates that seven of the ten successful
candidates were men; one of the ten unsuccessful candidates was a woman. Trial
Court Op. at 10.
On August 13, 2020, Appellant moved for summary judgment, arguing (1)
that PASSHE was unable to articulate a legitimate, non-discriminatory reason for
denying Appellant a promotion; (2) that he was denied promotion because of illegal
consideration of his age; (3) that he was denied promotion because of illegal
consideration of his sex; (4) that the Promotion Procedures permitted unlawful
discrimination; and (5) that the destruction of meeting notes by Dr. Grove, and
others, constituted spoliation of evidence, thus entitling Appellant to summary
judgment in his favor. See generally O.R., Item No. 34. On October 7, 2020,
PASSHE filed its Motion for Summary Judgment (Motion), arguing that Appellant
had failed to state a prima facie discrimination case under the PHRA, and that
4
PASSHE had legitimate, non-discriminatory reasons for not promoting Appellant.
See O.R., Item No. 40, Motion ¶¶ 11-12.
In its September 16, 2021 Order, the Trial Court agreed that Appellant had
failed to meet his burden as a matter of law on either the age discrimination or sex
discrimination claims. See Trial Court Op. at 11. The Trial Court explained that
when analyzing sex discrimination claims, Pennsylvania courts use the analytical
model adopted by the United State Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Trial Court Op. at 9 (citing Campanaro v. Pa. Elec.
Co., 738 A.2d 472, 476 (Pa. Super. 1999)). Thus, the discrimination plaintiff must
first establish a prima facie case by showing (1) that he is a member of a protected
class, (2) that he has suffered an adverse employment action, and (3) that others not
in the protected class were treated differently. Id. Once the plaintiff has done so,
the burden shifts to the defendant to articulate a legitimate, non-discriminatory
reason for the adverse action. Id. at 5. The burden then returns to the plaintiff, who
must show that the reasons cited are untrue and a pretext for discrimination. Id.
The Trial Court concluded that Appellant had failed to meet the third element,
as the “University did not promote all females and they did not fail to promote all
males.” Id. at 10. Furthermore, the Trial Court explained, Appellant had failed to
substantiate the allegation that female UWPC committee members gave him an
artificially low ranking. Id. The Trial Court observed that Dr. Grove herself recalled
giving Appellant a higher rank than most candidates. Id. Even if Appellant had
made a prima facie case of sex discrimination, the Trial Court added, PASSHE
showed that the UWPC had legitimate, non-discriminatory reasons for not
promoting Appellant. Id. The Trial Court found that Appellant failed to provide
any basis for supposing that the reasons given were pretextual. Id. at 11.
5
Regarding Appellant’s age discrimination claim, the Trial Court explained
that when analyzing such cases, Pennsylvania courts apply the “variant” test set forth
in Kroptavich v. Pennsylvania Power and Light Company, 795 A.2d 1048 (Pa.
Super. 2002). Id. at 6. Specifically, the plaintiff must show (1) that he is at least 40
years of age; (2) that he was qualified for the position; (3) that he suffered an adverse
employment action despite being qualified; and (4) the employer had a continued
need for employees performing the same work. Id. (citing Kroptavich, 795 A.2d at
1058). The Trial Court found that Appellant made a prima facie case by meeting all
four elements. Id. at 7. Yet, based “on the blind nature of the promotion procedure,
and [the fact] that members of [Appellant’s] age cohort were both promoted and not
promoted,” the Trial Court also concluded that PASSHE had met its burden to
establish a legitimate, non-discriminatory basis for the adverse employment action.
Id. at 8. Once again, the Trial Court concluded that Appellant failed to show why
that basis was merely pretextual. Id. at 9.
Appellant filed an appeal to the Superior Court on October 7, 2021. See O.R.,
Item No. 53. In response, the Trial Court issued an order, dated October 7, 2021,
directing Appellant “to file of record, and serve upon the [Trial] Court, a concise
statement of the errors complained of on appeal within 21 days from the date of entry
of this Order.” O.R., Item No. 54. On November 1, 2021, the Trial Court issued a
Statement in Lieu of an Opinion. See O.R., Item No. 56. Therein, the Trial Court
explained that Appellant had failed to submit a concise statement of errors
complained of on appeal pursuant to its October 7, 2021 order. Id. Accordingly,
rather than issue an opinion in accordance with Rule 1925(a)(1), the Trial Court
opined that the appeal to the Superior Court should be quashed. Id. (citing
Commonwealth v. Lemon, 804 A.2d 34, 36-37 (Pa. Super. 2002)).
6
In a November 21, 2021 order, the Superior Court transferred the appeal to
this Court, citing our exclusive appellate jurisdiction in civil actions against
Commonwealth entities.2 See Morrisette v. Pa. Sys. of Higher Educ. (Pa. Super.,
No. 1285 MDA 2021, filed Nov. 22, 2021). In a per curiam order, this Court noted
Appellant’s failure to file a Rule 1925(b) statement, and the Trial Court’s opinion
that he has therefore “waived any issues for appellate review.” Accordingly, we
directed the parties to “address in their principal briefs on the merits whether
Appellant preserved any issues on appeal in light of his apparent failure” to file a
Rule 1925(b) statement.
II. Issues
Appellant argues that his appeal should not be quashed for his failure to
submit a Rule 1925(b) statement, because he did not “knowingly waive or fail to
preserve” his arguments. Appellant’s Br. at 54. Additionally, Appellant argues that
the Trial Court erred as a matter of law by denying his summary judgment motion,
as PASSHE has failed to articulate a legitimate, non-discriminatory reason for
failing to promote him. Appellant also argues that the Trial Court erred by failing
to analyze Appellant’s claims using a disparate impact theory, and by granting
PASSHE’s Motion, as genuine issues of material fact remain in this dispute.
III. Discussion
2
This Court’s review of an order granting summary judgment is limited to determining
whether the trial court committed an error of law or abused its discretion. Pickering v. Sacavage,
642 A.2d 555, 558 (Pa. Cmwlth. 1994). The trial court should grant summary judgment only in a
clear case, and the moving party has the burden of demonstrating that no material issues of fact
exist. Id. The trial court must view the record in the light most favorable to the non-moving party.
Id.7
Rule 1925(b) provides that, if the judge entering the order which gives rise to
an appeal desires clarification of the errors complained of on appeal, “the judge may
enter an order directing the appellant to file of record in the trial court and serve on
the judge a concise statement of the errors complained of on appeal.” Pa.R.A.P.
1925(b). Rule 1925(b)(3) provides that the judge’s order shall specify: (i) the
number of days after the date of entry of the judge’s order within which the appellant
must file and serve the statement; (ii) that the statement shall be filed of record; (iii)
that the statement shall be served on the judge, and both the place the appellant can
serve the statement in person, and the address to which the appellant can mail the
statement, and (iv) that any issue not properly included in the statement timely filed
and served shall be deemed waived. Pa.R.A.P. 1925(b)(3).
It is well settled that Rule 1925(b) sets out “a simple bright-line rule, which
obligates an appellant to file and serve a Rule 1925(b) statement, when so ordered;
any issues not raised in a Rule 1925(b) statement will be deemed waived.”
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011). Indeed, the courts “lack the
authority to countenance deviations from the Rule’s terms.” Id. This Court has
repeatedly held that the failure to timely file a Rule 1925(b) statement results in the
waiver of all issues on appeal. Commonwealth v. Holtzapfel, 895 A.2d 1284, 1289
(Pa. Cmwlth. 2006); Mayor, Town Council of Borough of Chambersburg v. Keeler,
85 A.3d 603, 605 (Pa. Cmwlth. 2014).
Instantly, the Trial Court issued an order on October 7, 2021, in which it
directed Appellant to file a concise statement of errors complained of on appeal,
8
pursuant to Rule 1925(b).3 Thus, in order to preserve any issues for appeal,
Appellant was required to submit a Rule 1925(b) statement. In his Brief, Appellant
maintains that he should be excused from the requirement because his counsel, “after
consulting the Rule, confirmed that issuance of [Rule 1925(b)] [o]rders is optional.
Therefore, [Appellant] was not actively watching the [Trial] Court’s docket or
making inquiries about [Appellant’s] appeal.” Appellant’s Br. at 54-55. Appellant
further explains that, shortly before the Trial Court issued its order, his counsel took
a job at a new firm, where there was a delay in receiving notification of the order.
Finally, Appellant notes that his “counsel regrets not having been more vigilant
regarding [Appellant’s] appeal.” Id. at 55.
The reasons cited by Appellant for his failure to comply with the Trial Court’s
Rule 1925(b) order are neither relevant nor persuasive. While courts may, in
extraordinary cases, allow an appeal where an appellant has substantially complied
with a Rule 1925(b) order,4 an attorney’s admitted lack of diligence in monitoring
the electronic docket does not justify a complete lack of compliance with the Trial
Court’s order. Consequently, this Court concludes that Appellant’s failure to file a
Rule 1925(b) statement constitutes his waiver of all issues on appeal.
3
The Trial Court’s order omitted an address to which the statement was to be delivered in
person or by mail. However, this Court has consistently held that such an omission does not excuse
an appellant’s failure to file a Rule 1925(b) statement. See, e.g., Lehigh and Northampton Transp.
Auth. v. Cap (Pa. Cmwlth. No. 543 C.D. 2021, filed May 23, 2022), slip op. at 2 n.5; McDowell v.
Dep’t of Hum. Servs. (Pa. Cmwlth., No. 809 C.D. 2020, filed Sept. 23, 2021), slip op. at 1.
Unreported opinions of this Court issued after January 15, 2008, may be cited for their persuasive
value. 210 Pa. Code § 69.414(a).
4
Substantial compliance is the equitable doctrine that allows a court “to overlook a
procedural defect that does not prejudice a party’s rights.” Berg v. Nationwide Mut. Ins. Co., 6
A.3d 1002, 1008 (Pa. 2010) (plurality op.).
9
IV. Conclusion
For the foregoing reasons, we affirm the Trial Court.
____________________________
ELLEN CEISLER, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
H. Shelley Morrisette, :
Appellant :
:
v. : No. 7 C.D. 2022
:
PA State System of :
Higher Education :
ORDER
AND NOW, this 10th day of July 2023, the order of the Court of
Common Pleas of Cumberland County, dated September 16, 2021, is hereby
AFFIRMED.
____________________________
ELLEN CEISLER, Judge