Carney v. Pa. State Sys. of Higher Educ.
| Decision Date | 14 August 2014 |
| Docket Number | No. 1177 C.D. 2013,1177 C.D. 2013 |
| Court | Pennsylvania Commonwealth Court |
| Parties | Timothy D. Carney, Petitioner v. Pennsylvania State System of Higher Education, Respondent |
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
Timothy D. Carney (Petitioner) petitions for review of an order of the Chancellor of the Pennsylvania State System of Higher Education (PASSHE) that affirmed the decision of Slippery Rock University (Slippery Rock) to furlough Petitioner and abolish his position as Director of Maintenance Services at Slippery Rock. For the reasons that follow, we affirm the Chancellor's order.
The facts as found by the Chancellor are as follows. Petitioner was first hired by Slippery Rock in 1985 as a Project Manager (Draftsman-Designer). (June 12, 2013 Adjudication, Finding of Fact (F.F.) F.F. ¶1.) Petitioner was promoted through various positions until his final promotion, in 2002, to the position of Director of Maintenance Services, which he held until his furlough in 2011. (Id., F.F. ¶¶2-6, 8, 10.)
In 2006, the Facilities and Planning Division in which Petitioner worked was reorganized, and Petitioner began reporting to the newly created position of Director of Facility Services, which was filled by Scott Albert in 2007. (Id., F.F. ¶¶11, 12, 15.) Albert reported to Charles Curry, the Vice President for Finance and Administrative Affairs, who was one of four vice presidents at the university; Curry in turn reported to the President of Slippery Rock, Robert Smith. (Id., F.F. ¶¶33, 34, 36.)
Prior to joining Slippery Rock, Albert had held a similar position overseeing maintenance operations at a university in Indiana, which used a zone maintenance system distinct from the shop structure employed by Slippery Rock. (Id., F.F. ¶¶28-30.) Under the shop structure, the tradesmen were organized into seven trades, such as plumbing and electrical, and supervised by seven skilled foremen who reported to Petitioner. (Id., F.F. ¶¶33, 69.) Under zone maintenance, rather than being divided up by trade, mixed groups of tradesmen were assigned to geographic areas of the campus. (Id., F.F. ¶29.) Albert and President Smith discussed zone maintenance during Albert's employment interview in 2007, and President Smith was intrigued by the potential benefits of a transition to that system; the decision was made to delay a switch to zone maintenance at that time due to concerns of the tradesmen, so long as improvements were made in the Facilities and Planning Division. (Id., F.F. ¶¶30, 31.)
Beginning in 2009, Slippery Rock began focusing on cost savings initiatives and budget cuts because of projected lower funding from the Commonwealth. (Id., F.F. ¶40.) In November 2009, Vice President Curry asked Albert to provide suggestions for cost savings, and Albert responded by email with eight possible reforms, which included changes to the shift schedules, a zonemaintenance pilot project and to "[e]xamine moving [Petitioner] out of his current position to a staff function i.e., project management." (Id., F.F. ¶42; see also Nov. 5, 2009 Email, Reproduced Record (R.R.) at 551a-552a.)
As the fiscal year running from July 1, 2010 to June 30, 2011 (Fiscal Year 2010-11) approached, Slippery Rock faced an unprecedented $8.9 million projected budget shortfall, which was largely the result of anticipated cuts in appropriations from the Commonwealth and uncertainty as to whether Slippery Rock would receive federal stimulus funds. (Adjudication, F.F. ¶¶37, 43-45, 49.) As Slippery Rock could not raise its tuition and fees unilaterally, President Smith asked the Slippery Rock community as a whole for suggestions to close the shortfall but proclaimed that the university's primary goal was to preserve its academic programs. (Id., F.F. ¶¶46-49.) President Smith asked Albert directly to make recommendations for budget cuts in the Facilities Department for Fiscal Year 2010-11, and several of Albert's proposals were adopted and incorporated into the budget. (Id., F.F. ¶¶52, 53, 55.) Included among these were operational changes and personnel moves such as the removal of an unfilled painter position and filling the positions of grounds workers, an HVAC mechanic and the central storage foreman with lower classification positions. (Id., F.F. ¶55.) In the end, Slippery Rock was able to make up the $8.9 million shortfall and balance its Fiscal Year 2010-11 budget through various revenue enhancements and cost containments, including the elimination and freezing of numerous positions. (Id., F.F. ¶56.)
In July 2010, around the same period when President Smith requested cost savings recommendations from Albert for Fiscal Year 2010-11, President Smith also asked Albert to implement the switch to zone maintenance. (Id., F.F. ¶51.) The transition to zone maintenance was completed by February 2011. (Id.,F.F. ¶64.) Petitioner played a key role in the transition from the shop structure to zone maintenance, including in the hiring process of new foremen responsible for the geographic zones and the creation of the zones. (Id., F.F. ¶¶66, 68.)
By switching to zone maintenance, the organizational structure of the Maintenance Services Department changed from seven shop foremen supervising tradesmen in a specific trade to three foremen supervising mixed trades in geographic campus zones along with a foreman supervising a project team. (Id., F.F. ¶¶69, 71, 76.) Thus, the number of foremen reporting to Petitioner was reduced from seven to four.1 (Id., F.F. ¶72.) The anticipated benefits of switching to zone maintenance included: (i) improved communication with non-maintenance staff, as they would be dealing with less foremen; (ii) reduced travel time for tradesmen; (iii) reduced costs in needing fewer supervisors; and (iv) reduced overtime costs because preventive maintenance could be performed during the day. (Id., F.F. ¶¶65, 73, 77, 78.)
In March 2011, just after the switch to zone maintenance, Governor Thomas Corbett announced significant cuts to PASSHE appropriations in his proposed Commonwealth budget; as originally proposed, these cuts would have amounted to a $22 million, or 50%, reduction in the revenue Slippery Rock derived from the state. (Id., F.F. ¶57.) In the end, the budget projection for the fiscal year running from July 1, 2011 to June 30, 2012 (Fiscal Year 2011-12) called for an $8 million shortfall. (Id., F.F. ¶59.)
In response to the projected budget shortfall for Fiscal Year 2011-12, President Smith demanded cuts from all areas except the university's academic core. (Id., F.F. ¶¶62, 63.) During a weekly meeting between Vice President Curry and Albert in April or May 2011, Albert proposed several options for reducing costs and one of those options was the elimination of Petitioner's position and to allow the four foremen to report directly to Albert. (Id., F.F. ¶¶80, 81.) On June 15, 2011, Vice President Curry sent President Smith a memorandum recommending that Petitioner be furloughed and the position as Director of Maintenance Services be eliminated. (Id., F.F. ¶83.) Curry explained the reason for his recommendation in the memorandum:
Since the implementation of the Zone maintenance in our Facilities and Planning operation, whereby we have decentralized the staffing and trades related services of our campus with the oversight of four Building Maintenance Foremen, we no longer have a need for a management position directly over the trades area.
(Id.; see also June 15, 2011 Memorandum, R.R. at 590a.)
Petitioner was informed of the termination at a meeting with Vice President Curry and Lynne Motyl, the Assistant Vice President for Human Resources, on June 20, 2011. (Adjudication, F.F. ¶¶85, 86.) At the meeting, it was emphasized that the furlough did not relate to job performance, but rather was a result of budgetary difficulties and the streamlining of the Maintenance Services Department. (Id.) Motyl drafted a letter to Petitioner officially informing Petitioner of his furlough and this letter was sent on June 21, 2011 with President Smith's signature. (Id., F.F. ¶¶84, 87.) Petitioner was given six weeks' notice and elected voluntary retirement on July 30, 2011 in order to receive continued health coverage and a portion of his unused sick leave. (Id., F.F. ¶¶89-91.) SlipperyRock was able to eliminate the $8 million shortfall in the Fiscal Year 2011-12 budget based in part on $2.4 million in cuts to salaries and wages, which included the elimination of Petitioner's position. (Id., F.F. ¶88.)
Petitioner challenged his furlough pursuant to the Merit Principles Policy (Policy) adopted by the PASSHE Board of Governors.2 The Policy sets forth the primary personnel policy, including general standards, employee discipline rules, notice requirements and hearing procedure, for employees in PASSHE institutions who do not fall within one of twelve categorical exceptions. (Policy § B, R.R. at 541a-542a.) The Policy defines a furlough as "the termination of an employee's employment for a specified period of time or permanently as part of a reduction in workforce effort." (Policy § F, R.R. at 543a.) While the Policy does not elaborate on what criteria is necessary for a furlough of a PASSHE employee, courts have looked to the Civil Service Act3 and related regulations and case law to require that a furlough be based upon either (i) a lack of funds or (ii) a lack of work. See Bumba v. Pennsylvania State System of Higher Education, 734 A.2d 36, 38 (Pa. Cmwlth. 1999); see also Section 3 of the Civil Service Act, 71 P.S. § 741.3(s) (). The Policy provides that the employer bears the burden of proof and the burden of going forward to make a prima facie showing that there was a lack of funds or lack of work. (Policy § L.3,...
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