Vladimirsky v. Sch. Dist. of Phila.
| Decision Date | 03 August 2016 |
| Docket Number | Nos. 2288 C.D. 2014,s. 2288 C.D. 2014 |
| Citation | 144 A.3d 986 |
| Parties | Serge VLADIMIRSKY, Petitioner v. The SCHOOL DISTRICT OF PHILADELPHIA, Respondent. The School District of Philadelphia, Petitioner v. Serge Vladimirsky, Respondent. |
| Court | Pennsylvania Commonwealth Court |
Richard W. Migliore, Havertown, for petitioner.
Paul J. Cianci, Huntingdon Valley, for respondent.
BEFORE: MARY HANNAH LEAVITT, President Judge, and ANNE E. COVEY, Judge, and DAN PELLEGRINI, Senior Judge.
OPINION BY Judge ANNE E. COVEY.
The School District of Philadelphia (District) and Serge Vladimirsky (Vladimirsky) petition this Court for review of Acting Secretary of Education Carolyn C. Dumaresq's (Acting Secretary) November 19, 2014 order reinstating Vladimirsky to his position as a professional employee from July 20, 2011 to March 15, 2012, and sustaining Vladimirsky's March 15, 2012 employment termination.
Vladimirsky presents six issues for this Court's review: (1) whether the District and the School Reform Commission (SRC)2 failed to comply with the mandatory employment termination procedures set forth in the Public School Code of 1949 (School Code);3 (2) whether the District and the SRC's failure to comply with the School Code violated Vladimirsky's due process rights; (3) whether the Acting Secretary erred in sustaining Vladimirsky's March 15, 2012 discharge; (4) whether the District was required to impose progressive discipline before terminating Vladimirsky's employment; (5) whether a two-year delay in the issuance of the Acting Secretary's order created the appearance of impropriety; and (6) whether the SRC's hearing examiner's status as a long-time District employee violated Vladimirsky's due process right to an impartial and unbiased tribunal.
The District presents five additional issues: (1) whether the School Code required the SRC to resolve that evidence existed and, if true, justified employment termination, before issuing charges; (2) whether the District was required to prove that the SRC read or knew about the charges or the employment termination hearing transcript before resolving to discharge him; (3) whether the District's July 20, 2011 letter suspended Vladimirsky without pay; (4) whether an SRC pre-charge determination would have violated Vladimirsky's due process rights; and (5) if the Court rules that there were procedural defects, whether remand is the proper remedy.
The District hired Vladimirsky as a professional employee on September 1, 1997 and he was employed as a tenured professional until his employment was terminated. Vladimirsky worked as a social studies teacher at Overbrook High School (Overbrook). On February 17, 2011, because Overbrook's then-principal Payne Young (Young) observed Vladimirsky's students disengaged from classroom activities, she knocked on the door and asked Vladimirsky about the class. Vladimirsky became angry and yelled at Young. Young walked away to attend a meeting and Vladimirsky followed her, speaking in a raised voice. Vladimirsky continued his aggressive behavior in front of Young's meeting participants. That day, Young issued an incident report concerning Vladimirsky's behavior.
On March 9, 2011, Overbrook academic leader Catherine Smith (Smith) notified Vladimirsky that several books had been thrown out of his classroom window, and she assisted Vladimirsky in identifying the responsible students. One of Vladimirsky's students made a video documenting Vladimirsky's extremely agitated behavior at the time. In the video, Vladimirsky shouted about the books being thrown out of the window and yelled obscenities at the students. He then aggressively approached a student holding a cellphone and grabbed the student's arm in an attempt to take the phone. When the student resisted, Vladimirsky lost his balance and fell on the student. The school police officer was called. Written incident statements by students, Smith and Vladimirsky corroborated the incident and Vladimirsky's reaction.
On March 11, 2011, Assistant Superintendent Linda Cliatt–Wayman instructed Vladimirsky to report to work at the High School Academic Division on March 14, 2011 pending an investigation. On March 23, 2011, Young conducted an investigatory conference attended by Vladimirsky, Young, Philadelphia Federation of Teachers (PFT) staff Jackie Dubin (Dubin) and the District's labor relations assistant Carole Porter (Porter). At the conference, Vladimirsky admitted to the February 17, 2011 verbal exchange and that his temper caused him problems. Vladimirsky and Dubin also reviewed the March 9, 2011 witness statements and video. Thereafter, Young prepared an unsatisfactory incident report (SEH–204) referencing both the February 17 and March 9, 2011 incidents, and recommending Vladimirsky's discharge. Young also recommended placement of the SEH–204 in Vladimirsky's personnel file, and giving him an unsatisfactory rating for the September 2010 to June 30, 2011 period. Following an April 28, 2011 conference attended by Vladimirsky, Dubin, Porter and Young pertaining to the March 9, 2011 incident, Young issued a May 2, 2011 conference summary, wherein, she upheld the SEH–204 because Vladimirsky's March 9, 2011 response was excessive and unprofessional.
On June 8, 2011, the District's Talent Acquisition Office's Deputy Chief Lissa S. Johnson (Johnson)4 held a second-level conference with Vladimirsky, Dubin and Porter regarding the February 17 and March 9, 2011 incidents. Johnson offered Vladimirsky an opportunity to provide additional information or comments. Vladimirsky apologized for the February 17, 2011 incident. With respect to the March 9, 2011 incident, Dubin, on Vladimirsky's behalf, stated that Vladimirsky felt that the students had betrayed his trust, and that he had acted emotionally. Vladimirsky acknowledged that he acted inappropriately when he physically confronted the student, and he did not deny using obscenities. Following the June 8, 2011 conference, Johnson issued a conference summary recommending that Vladimirsky's employment be terminated and that incident documentation be placed in his personnel file.
By a July 20, 2011 letter signed by SRC Chairman Robert L. Archie, Jr., Esquire and Deputy Superintendent Leroy D. Nunery (Nunery),5 Vladimirsky was notified that the charges against him constituted “a willful violation of or failure to comply with the School Laws of this Commonwealth, and other improper conduct such as to constitute cause pursuant to ... Section [1122] of the [School Code, 24 P.S. § 11–1122 ].” Reproduced Record (R.R.) at 162a. The letter informed Vladimirsky that they would recommend to the SRC that his employment with the District be terminated effective immediately, and that he had a right to request an SRC hearing. In the same letter, Vladimirsky was told that the District's payroll department would be advised to make the necessary salary adjustments.
By October 3, 2011 letter, Vladimirsky requested a hearing. On November 28, 2011, a hearing was held before Jeffrey White (Hearing Officer White), the SRC's hearing officer for all District dismissal, demotion or suspension cases. At the hearing, the District contended that it would demonstrate that Vladimirsky had willfully violated or failed to comply with Section 1122 of the School Code in that he had “administered corporal punishment to the student.” R.R. at 17a.6
By April 5, 2012 letter, Hearing Officer White notified Vladimirsky that the SRC had recommended that Vladimirsky's employment be terminated for intemperance and willful violation of “the School Laws.” R.R. at 101a. The letter also advised Vladimirsky that after full consideration of the charges, testimony, evidence and arguments, on March 15, 2012, the SRC resolved to adopt Hearing Officer White's findings of fact and conclusions of law enclosed therein, and that Vladimirsky's employment was terminated effective July 20, 2011.
Vladimirsky timely appealed from the SRC's decision to the Acting Secretary. On June 4, 2012, argument was held before Hearing Examiner Karen S. Feuchtenberger. On November 19, 2014, the Acting Secretary ordered that Vladimirsky be reinstated to his position as a professional employee as of July 20, 2011, but sustained his March 15, 2012 discharge and ordered that he receive the compensation lost between July 20, 2011 and March 15, 2012. The District and Vladimirsky appealed to this Court.7
Vladimirsky first contends that the Acting Secretary erred in sustaining the March 15, 2012 dismissal because the District did not comply with the School Code's mandatory discharge procedures when the District terminated his employment as a professional employee on July 20, 2011 without a hearing, and then, belatedly held a hearing more than four months later on November 28, 2011 which also did not comply with the School Code, and finally resolved to ratify Vladimirsky's illegal employment termination four months later on March 15, 2012. As a result, Vladimirsky asserts that his employment termination is void ab initio. The District argues that it complied with Section 1127 of the School Code.8
The District sent Vladimirsky a letter dated July 20, 2011 which stated, in relevant part:
This is to advise you that we shall recommend to the [SRC] that your employment with [the District] be terminated effective immediately. The [ ] District's Payroll Department shall be advised to make the necessary salary adjustments. The charges against you constitute just cause pursuant to the collective bargaining agreement and, in addition, constitute a willful violation of or failure to comply with the School Laws of this Commonwealth, and other improper conduct such as to constitute cause pursuant to ... Section [ ]1122 of the [School Code, 24 P.S. § 11–1122 ].
R.R. at 162a (emphasis added). After summarizing the February 17 and March 9, 2011 incidents and the subsequent investigations and conferences, the letter concluded:
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