Fisler v. State Sys. of Higher Educ.

• Decision Date: 17 October 2013
• Citation: 78 A.3d 30
• Parties: John C. FISLER, Petitioner v. STATE SYSTEM OF HIGHER EDUCATION, CALIFORNIA UNIVERSITY OF PENNSYLVANIA, Respondent.
• Court: Pennsylvania Commonwealth Court

78 A.3d 30

John C. FISLER, Petitioner

v.STATE SYSTEM OF HIGHER EDUCATION, CALIFORNIA UNIVERSITY OF PENNSYLVANIA, Respondent.

Commonwealth Court of Pennsylvania.

Argued Sept. 9, 2013.

Decided Oct. 17, 2013.

Kenneth A. Sprang, Chevy Chase, MD, for petitioner.

Jeffrey B. Hawkins, Harrisburg, for respondent.

BEFORE: LEADBETTER, Judge, BROBSON, Judge, and COLINS, Senior Judge.

OPINION BY Judge BROBSON.

John C. Fisler (Fisler) petitions for review of an order of the Chancellor of the State System of Higher Education (SSHE), dated January 3, 2013. The Chancellor adopted a proposed adjudication ¹ and order of a hearing officer, thereby denying Fisler's motion for a new hearing and affirming the decision of California University of Pennsylvania (University) to suspend and subsequently discharge Fisler from his employment with the University for poor job performance. In so doing, the Chancellor concluded that the University's decisions were supported by just cause. For the reasons set forth below, we now affirm.

The findings of fact as adopted by the Chancellor are summarized as follows. Fisler began working for the University's Development Office as a major gifts officer on October 8, 2007. (Finding of Fact (F.F.) no. 18.) Subsequently, Fisler was named to the position of Associate Vice President for Development and Campaign Planning. (F.F. no. 33.) In that position, Fisler managed all of the gift officers and reported directly to the president of the University, Angelo Armenti, Jr. (President Armenti), because the intermediary position of Vice President for Development and Alumni Relations was left vacant. (F.F. nos. 33–34.)

Eventually, it became evident that Fisler's management performance was not positive, in that the general sense was that he was not a leader. (F.F. no. 41.) Because the Development Office was not making the progress he expected in terms of raising money and he and Fisler were not doing well as a team, President Armenti sought to fill the position of Vice President for Development and Alumni Relations, which President Armenti had been filling himself. (F.F. nos. 43–45.) Although Fisler applied for this position, President Armenti ultimately hired Ron Huiatt (Huiatt), who started working for the University in November 2009. (F.F. nos. 55, 64.) President Armenti, however, was so impressed with Sharon Navoney (Navoney), another candidate who was already employed at the University as Senior Director of Major and Planned Gifts, that he envisioned a reorganization in which Huiatt was “number one” and Navoney was “number two,” which would result in the placement of Fisler elsewhere in the organizational structure of the Development Office. (F.F. nos. 63, 65.)

Upon beginning work at the University, Huiatt and President Armenti discussed how to develop an effective fundraising operation at the University. (F.F. no. 69.) President Armenti indicated to Huiatt that he was generally dissatisfied with the productivity and accountability of the Development Office under Fisler's oversight, and he directed Huiatt to reorganize the Development Office staff without eliminating any employees. (F.F. nos. 70–71.) After conducting a review of the Development Office, Huiatt made various changes to the organization of the Development Office, including elevating Navoney to Associate Vice President and giving her the majority of the management responsibilities within the Development Office. (F.F. nos. 73, 77–78, 86.) Huiatt also decided to make Fisler a special advisor to Huiatt, naming Fisler Senior Advisor and Senior Associate Vice President for Special Initiatives. (F.F. nos. 79, 87.)

With the reorganization, Fisler's role in the Development Office changed from overseeing all of the campaign and development activities and staff to providing advice and counsel to Huiatt; serving as primary liaison to the athletic development team; leading various special initiatives at Huiatt's direction; carrying a small, select portfolio of major gift prospects; and representing the Vice President's Office when Huiatt was unable to do so. (F.F. nos. 85, 87.) President Armenti approved the restructuring plan effective January 1, 2010, and Huiatt presented the restructuring plan to his staff in January 2010. (F.F. nos. 80, 84.) Fisler was upset with the changes to his responsibilities and did not find them to be challenging or edifying, because they were consistent with things he had done 25 to 30 years earlier in his career. (F.F. nos. 88, 92.)

In March 2010, Fisler contacted Dr. Lisa McBride, who is the Special Assistant to the President for Equal Employment Education Opportunity at the University. (F.F. nos. 93–94.) Fisler did so because certain members of the search committee for the Vice President for Development and Alumni Relations position communicated that there had been irregularities in the search, and Fisler had his own concerns about age discrimination, retaliation, and being treated unfairly with regard to the most recent reorganization of the DevelopmentOffice. (F.F. nos. 94, 96.) Although Dr. McBride initially told Fisler that she had heard some rumors about improprieties in the search, she later told him that that was not the case, and that social equity procedures required Fisler to file a formal complaint. (F.F. nos. 95, 97.) Because Fisler wished to pursue an informal resolution, Fisler and Huiatt engaged in mediation regarding the reorganization and Fisler's role at the University, but the mediation was ultimately unsuccessful.² (F.F. nos. 98, 106–14.)

Based on Fisler's general demeanor as to the reorganization and his new role at the University, Huiatt inferred that Fisler was not willing to take on the proposed functions assigned to him as a consequence of the reorganization. (F.F. no. 120.) Because of his concerns regarding Fisler's recalcitrance, Huiatt, with President Armenti's approval, redefined Fisler's job description to provide him with very specific information about what was expected of Fisler in his job responsibilities. (F.F. no. 122.) Huiatt provided Fisler a letter dated April 7, 2010, providing that Fisler's suggestions at the mediation session about his work assignments did not fit the needs of the University's Development Office, and outlining Fisler's new work duties as a lead field officer, a position which Huiatt thought would be best suited for Fisler. (F.F. nos. 121, 123–24.) These duties included cultivating, soliciting, and stewarding major and planned gifts; managing a portfolio of 100 prospects who had been pre-screened for a gift capacity of $25,000; serving as liaison to the Athletic Department fundraising staff; managing the faculty and staff capital campaign initiatives; serving as a member of the University Development and Leadership Team; overseeing the activities of a Clerk Typist 3 in the Development office; and assisting the Vice President. (F.F. no. 124.) With regard to the management of the prospect portfolio, the job description indicated that Fisler would be expected to make, on average, 12 visits a month with prospects, 3 of which would be solicitation meetings where the prospect is asked for a gift at the rated capacity level, and 2 or fewer of which would be stewardship meetings, and to replace disqualified prospects with new prospects with a gift capacity of at least $25,000 so as to maintain a portfolio of 100 prospects. (F.F. no. 125.) The letter also provided that, although Fisler might prefer to perform other tasks, the tasks outlined in the job description were those that would best serve the needs of the Development Office and the University. (F.F. no. 128.) The letter also provided that Fisler should perform the assigned work duties in a high quality, effective, and efficient manner, and that failure to perform the assigned tasks could lead to corrective action, up to and including termination of employment.³ (F.F. nos. 128–29.)

Although Fisler was assigned an initial list of prospects, he had unfettered access to the pool of prospective donors, such that he could seek out other prospects at will, as all major gifts officers at the University were expected to do. (F.F. nos. 138–39.) Although Fisler had complaints regarding what he believed were the limitations of his portfolio, Huiatt expected Fisler to access the pool, which was the same pool of 4,000–plus prospects used by all other prospect managers in the Development Office, for additional prospects after disqualifying prospects in his portfolio. (F.F. nos. 140–41.) Moreover, Fisler was not prohibited from obtaining prospects from other lists available to him or from other gift-capacity categories. (F.F. no. 145.)

Huiatt and Fisler met weekly to discuss Fisler's job performance and, eventually, the need to improve it. (F.F. no. 152.) During a weekly meeting on December 10, 2010, Huiatt and Fisler went over Fisler's job performance over the preceding 8 months, with Huiatt noting that Fisler was not meeting expectations. (F.F. no. 159.) Specifically, as of November 24, 2010, Fisler's portfolio contained approximately 61 prospects, and as of the December meeting, Fisler was averaging only 4 visits with prospective donors a month. (F.F. nos. 158–59.) Huiatt encouraged Fisler to improve his performance and to not be constrained by the initial prospect list or territory if other prospects were available. (F.F. no. 160.) Huiatt told Fisler that Fisler should be achieving 8 to 12 visits a month with prospects and that a significant number of those visits should be solicitations, and that as Senior Vice President and an experienced major gifts officer, Fisler should be a leader in the area of prospect visits. (F.F. no. 161.) Huiatt also told Fisler that Fisler's job performance would be reviewed again in January 2011 and that Fisler's number of prospect visits would be expected to increase significantly. (F.F. no. 163.)

During a weekly meeting on January 28, 2011, Huiatt explained to Fisler that...