University of Pittsburgh of Commonwealth Sys. of Higher Educ. v. Department of Labor & Indus., 041206 PACCA, 1440 C.D. 2005

Docket Nº:1440 C.D. 2005
Party Name:University of Pittsburgh of the Commonwealth System of Higher Education, Petitioner v. Department of Labor & Industry, Respondent
Case Date:April 12, 2006
Court:Court of Appeals of Pennsylvania
 
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University of Pittsburgh of the Commonwealth System of Higher Education, Petitioner

v.

Department of Labor & Industry, Respondent

No. 1440 C.D. 2005

Court of Appeals of Pennsylvania

April 12, 2006

Argued: February 1, 2006

BEFORE: HONORABLE JAMES GARDNER COLINS, President Judge HONORABLE BERNARD L. McGINLEY, Judge HONORABLE DAN PELLEGRINI, Judge HONORABLE ROCHELLE S. FRIEDMAN, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE RENEE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge

OPINION

BONNIE BRIGANCE LEADBETTER, Judge

University of Pittsburgh petitions for review of an order of the Department of Labor and Industry, Bureau of Labor Law Compliance, granting Earl Whitehead's request to inspect his personnel file, including letters that were written by "outside evaluators" in connection with Whitehead's pursuit of a promotion to Full Professor status.1The issue raised on appeal is whether these letters are "letters of reference" or "performance evaluations" under the Act commonly referred to as the Personnel Files Act (Act).2If the letters constitute letters of reference, then they are not subject to inspection under the Act. On the other hand, if the letters constitute performance evaluations, Whitehead has a right to inspect them. After review, we reverse.

The underlying facts are not disputed. Whitehead is a tenured Associate Professor in the University's Department of Mathematics, specializing in combinatorics and graph theory. In late 2001, Whitehead initiated an application for promotion to Full Professor. The University's procedures for promotion require the assembly of a "dossier" on the promotional candidate, which includes the candidate's curriculum vitae (CV), all previous annual faculty reviews, and a minimum of six "external referee" letters.3With respect to the external referee letters, the University's procedures provide that the letters should be sought from well-regarded scholars in similar or related fields, or from scholars who know the candidate primarily through their knowledge of his work and impact. Moreover, the candidate is asked to suggest a number of external referees from whom letters are sought but no more than one-half of the letters submitted may be from referees suggested by the candidate.

The University requests the external referees to provide an "evaluation" of the candidate's body of work, and comment on the candidate's accomplishments, assess his stature as a research scholar and teacher, compare him with outstanding persons of comparable rank at other institutions, and comment on whether the applicant would be likely to achieve the full rank of professor at the evaluator's institution.4To aid the external referees, the University provides them with ten examples of the candidate's best written work, his CV, a list of research papers and a research statement. The candidate and his department together determine the materials to be submitted to the external referees. The University's procedures provide that promotional decisions are partially based upon the external referees' opinions of the candidate's reputation in his field.

The external referees are not compensated by the University for providing their evaluation. Moreover, only the University employees participating in the promotion process see the external referees' evaluations. The identity of the external referees and their evaluations are not revealed to the promotional candidate.

The Full Professors in Whitehead's department failed to recommend him for promotion and, therefore, he was not promoted. Whitehead raised several concerns regarding the review process with the Department's Chair, Dr. John Chadham, and was advised that several external referees responded negatively. Whitehead pursued the matter further and an internal investigation ensued into the selection of the external referees, ultimately concluding that the review process was fair.

Thereafter, in November 2002, Whitehead requested access to his personnel file, including the external referee letters. While the University granted Whitehead access to his file, it denied access to the external referee letters pursuant to a University policy exempting from inspection "external references secured from persons who are not current . . . employees and who do not receive an honorarium or fee for submitting the reference." Adjudication No. 2002-28 (June 16, 2005), slip op. at 5, Finding of Fact No. 11. Whitehead then filed a complaint with the Bureau seeking an order permitting him to inspect the external referee letters.5Following a hearing, the Bureau concluded that the external referee letters were performance evaluations, not letters of reference, and, therefore, subject to inspection under the Act. In reaching this conclusion, the Bureau examined this court's decisions in Lafayette College v. Department of Labor and Industry, Bureau of Labor Standards, 546 A.2d 126 (Pa. Cmwlth. 1988), and Pennsylvania State University v. Department of Labor and Industry, Bureau of Labor Standards (Penn State), 536 A.2d 852 (Pa. Cmwlth. 1988), and the Bureau's earlier adjudication in Hoagland v. Lehigh University (Bureau decision dated February 24, 1982). The Bureau concluded that the external referee letters constituted performance evaluations because the letters were a required part of the University's promotion criteria, the decision to promote is partially based upon the letters and the external referees are asked to evaluate the candidate. The Bureau specifically concluded that whether the external referee was required to provide the letter or paid to provide the letter was not dispositive. Accordingly, the Bureau ordered the University to make such documents available for inspection. The order was later stayed pending resolution of the instant appeal.

On appeal, the University contends that the Bureau erred as a matter of law in concluding that the external referee letters constitute performance evaluations subject to inspection under the Act.6According to the University, the Bureau's conclusion is not supported by the common usage of the phrase "letter of reference,"...

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