Opinion
No. 1012 C.D. 2012
02-07-2013
Andrea Christine Butterfield, Petitioner v. Dover Area School District, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Andrea Christine Butterfield (Butterfield) petitions for review from an order of the Secretary of Education (Secretary) upholding her demotion by the Dover Area School District (District) from an administrative director to an elementary school teacher. Butterfield contends that the District did not demote her in accordance with the Public School Code of 1949 (School Code), and that the District demoted her in retaliation for protected activities. Upon review, we affirm.
Act of March 10, 1949, P.L. 30, as amended, 24 P.S. §§1-101-27-2702.
I. Background
Butterfield began her employment with the District in 1998. From 2008 through the time of her demotion in February 2011, Butterfield served as Director of Career Education and Academic Services. She is certified in a number of areas in education.
In 2010, the District Board of Directors (Board) enacted an Act 93 Compensation Plan (Plan), without formally meeting to discuss it with the District Act 93 administrators. As an Act 93 employee, Butterfield expressed dissatisfaction with the Plan and led challenges to it. Butterfield made eight Right-to-Know Law (RTKL) requests related to the Plan. On February 14, 2011, she communicated with Department of Education (Department) officials about the Act 93 impasse. As a result, a Department official sent an email to the Superintendent advising that the Department would convene a panel on the matter.
An Act 93 Compensation Plan is a plan for compensation for school administrators pursuant to Section 1164 of the School Code, 24 P.S. §11-1164. The Plan pertains to school employees who are not included in the bargaining unit subject to the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §§1101.101-1101.2301.
Act of February 14, 2008, P.L. 6, 65 P.S. §§67.101-67.3104.
Meanwhile, the District projected a $3 million budget deficit for 2011-2012. To address the shortfall, the District made numerous reductions to the proposed budget.
On February 28, 2011, the Superintendent wrote to Butterfield that he would make a recommendation to the Board to eliminate her position, and reassign her to a classroom teaching position. She did not consent to the demotion.
Responding to the Superintendent's recommendation, the Board voted on March 7, 2011 to abolish Butterfield's position and to assign her to an unidentified teaching position, citing reasons of economy. As a consequence of the demotion, Butterfield suffered a reduction in compensation. At a minimum, the District saved $70,000, representing the reduction of Butterfield's compensation plus the cost of a new teacher.
Butterfield appealed her demotion, asserting seniority rights to other positions. The Board held a two-day hearing, at which Butterfield and District witnesses testified. She presented no other witnesses. The Board issued an adjudication denying her appeal. Butterfield then appealed to the Secretary.
Prior to the hearing before the Secretary's hearing examiner, she filed a notice of intent to call additional witnesses. She sought to offer additional witnesses on her Act 93 advocacy and its effect on the District. The hearing officer denied her request.
Before the hearing examiner, Butterfield challenged the District's "cost-saving" rationale for her demotion as a pretext. The real reason, she asserted, was retaliation for her Act 93 activism. Butterfield argued the temporal proximity between her Act 93 activism and her demotion raised an inference of causation. Also, she questioned the Superintendent's credibility and the due process of the hearing before the Board. Legally, Butterfield contended that her demotion should be reviewed as a "realignment demotion" which would afford her seniority bumping rights.
Ultimately, the Secretary issued an opinion, including findings of fact, affirming the Board. The Secretary determined the Board's decision to demote Butterfield constituted a "pure demotion," not a realignment demotion. Sec'y Op., 5/2/12, at 9. Accordingly, the process and review was governed by Section 1151 of the School Code, 24 P.S. §11-1151 (salary increases; demotions), which does not assess the appropriateness of the reassignment and is more deferential to the District's decision making.
The Secretary concluded Butterfield did not meet her burden of showing arbitrariness or an improper motive. He specified "Butterfield has failed to show any connection between the District's decision to demote her and her activities with the Act 93 committee." Sec'y Op., 5/2/12, at 10. Further, the Secretary held the reason provided, that of economy, was valid. Butterfield appealed to this Court.
II. Discussion
A demotion is "a reassignment to a position which has less authority, prestige or salary." Hritz v. Laurel Highlands Sch. Dist, 648 A.2d 108, 110 (Pa. Cmwlth. 1992). The type of demotion dictates the procedure, the decision-maker, and our review. Kemp v. City of Pittsburgh Pub. Sch. Dist., 933 A.2d 130 (Pa. Cmwlth. 2007). Thus, at the outset we must decide whether Butterfield's demotion constitutes a regular demotion governed by Section 1151 (salary increases; demotions), or a "realignment" due to a suspension under Section 1124 of the School Code, 24 P.S. §11-1124 (causes for suspensions). Realignment demotions are addressed in accordance with Section 1125.1 of the School Code, 24 P.S. §11-1125.1, added by Act of November 20, 1979, P.L. 465, (persons to be suspended), compelling closer scrutiny and de novo review in court. Id.
Demotions are exclusively reviewed by the Secretary of Education, whose decisions are appealable to this Court. Kemp v. City of Pittsburgh Pub. Sch. Dist., 933 A.2d 130 (Pa. Cmwlth. 2007). Realignments are reviewed by the local court of common pleas. Id.
A. Demotion versus Realignment
Butterfield asserts the Board improperly demoted her to a classroom teacher position when it should have realigned her to an administrative position consistent with her seniority and certifications. She contends the Secretary erred in not treating her demotion as a realignment requiring protection of her seniority and consideration of her qualifications for other available positions.
The District contends the Secretary properly evaluated Butterfield's demotion under School Code Section 1151 (salary increases; demotions), using a standard deferential to the Board's decision, which can be set aside only upon proof that it was arbitrary and capricious. In the alternative, the District asserts that regardless of which provision applies, Butterfield did not establish her suitability for any other administrative position.
Demotions are distinguishable from realignments depending on a number of surrounding circumstances. Unlike a demotion, a suspension is in the nature of an impermanent separation, a furlough or layoff. Filoon v. Middle Bucks Vo-Tech Sch., 634 A.2d 726 (Pa. Cmwlth. 1994). A professional employee may not be "realigned" or suspended except for the reasons enumerated in Section 1124 of the School Code, 24 P.S. §11-1124 (causes for suspensions). These reasons are limited to: (1) declines in enrollment; (2) alteration of educational programs; (3) consolidation of schools; or, (4) reorganizations. Kemp. "Only when a demotion results from a suspension caused by the elimination of a position and attending reorganization" or regrouping of staff "does a 'realignment-demotion' occur." Filoon, 634 A.2d at 730.
Once a suspension under Section 1124 (causes for suspension) is established, Section 1125.1(c) requires a school entity, like the District, to "realign its professional staff so as to ensure that more senior employees are provided with the opportunity to fill positions for which they are certificated and which are being filled by less senior employees." 24 P.S. §11-1125.1(c). Essentially, Section 1125.1 provides bumping rights for professional employees so they may preserve seniority in any demotion resulting from reorganization.
Butterfield asserts the circumstances here constitute a reorganization. In this case, the District eliminated 12.5 teaching positions and five support staff, and closed the Kralltown Elementary School. See District Adjudication, Finding of Fact (F.F.) No. 24, Reproduced Record (R.R.) at 195a. Although many of the duties she performed as an administrator were reassigned to guidance counselors, the District created a Coordinator of Secondary Education and Services position with many of same duties as Butterfield's abolished position. Butterfield contends Section 1125.1 (persons to be suspended) obligated the District to place her in that position or another administrative position.
In determining whether a reorganization of staff qualifies as a realignment, we assess the underlying reason. Our analysis in Kemp is instructive. In Kemp, the district reorganized its Office of Academic Affairs, causing the demotions of a number of administrative professionals. The reorganization was motivated by a $17 million budget deficit. This Court, speaking through then President Judge Leadbetter, held the change in employment status motivated solely by a budget deficit did not constitute a realignment because the reason, finances, was not enumerated in Section 1124 (causes for suspension). Therefore, the demotions fell within Section 1151 of the School Code (salary increases; demotions).
Here, the District eliminated a number of teaching and support positions, in addition to Butterfield's demotion. Such action does not indicate a reorganization governed by Sections 1124 (causes for suspension) and 1125.1 (persons to be suspended). Similar to Kemp, the reason for the elimination of positions and Butterfield's demotion was economy. Section 1124 does not list "economy" among its reasons, and there was no regrouping of other employees. See Kemp. Moreover, Section 1125.1 generally applies when there has been a consolidation of schools or programs, and there is a resulting reorganization. Id. The facts here do not show such a structural change. Therefore, the Secretary properly reviewed the Board's demotion of Butterfield under Section 1151 of the School Code (salary increases; demotions).
Because this is not a realignment, we do not consider whether Butterfield should have been reassigned to another available administrative position, like Coordinator of Secondary Education and Services.
In support of her argument, Butterfield cites Fry v. Garnet Valley School District, 485 A.2d 508 (Pa. Cmwlth. 1984). However, Butterfield's reliance on Fry is misplaced. In Fry, a demotion was the result of regrouping of existing staff due to declining enrollment, one of the four reasons addressed in Section 1124 (causes for suspensions). Fry is easily distinguished because the demotion here did not result from any of the reasons listed in Section 1124. Unlike Fry, here the District did not regroup existing staff. Rather, the District reduced staff to reduce expenses. Butterfield does not establish any of the Section 1124 suspension grounds to entail evaluation of her suitability for another administrative position or deference to her alleged seniority rights.
This Court consistently holds a Section 1124 (causes for suspensions) suspension is necessary to trigger Section 1125.1 (persons to be suspended). See Kemp; Filoon; Hritz. Nevertheless, Butterfield contends that Gibbons v. New Castle Area School District, 518 Pa. 443, 543 A.2d 1087 (1988), eliminates that prerequisite. She asserts Gibbons broadened the application of Section 1125.1 beyond the confines of Section 1124 and realignments. We disagree.
In Gibbons, our Supreme Court interpreted the scope of Section 1125.1 (persons to be suspended) with regard to retaining less senior professional employees in their existing positions. The Board closed one of the schools, thus abolishing two administrator positions. The two administrators with the least seniority were returned to teaching positions. Gibbons was reassigned as assistant principal, earning the same salary as the principal. When Gibbons challenged the sitting principal for that position, the Board affirmed his reassignment. The Board determined that the decision to retain the existing principal given the changes to the school (adding ninth grade) was necessary to retain continuity.
Our Supreme Court reasoned that Section 1125.1 (persons to be suspended) must be construed to give proper effect to the seniority provision in subsection (c). Further, our Supreme Court explained that the necessity for considering seniority did not undermine the "longstanding statutory grant of discretion to school boards to appoint professional staff on the basis of the educational needs of the district." Gibbons, 518 Pa. at 448-49, 543 A.2d at 1089 (citing Section 508 of the School Code, 24 P.S. §5-508). Thus, school boards unequivocally retain discretion to realign staff, and are not constrained in doing so strictly on the basis of seniority.
Contrary to Butterfield's interpretation, Gibbons does not remove suspension as a predicate for a Section 1125.1 (persons to be suspended) proceeding. The reasons for suspension in Section 1124 of the School Code (decline in enrollment, alteration of educational program(s), consolidation or reorganization) are exhaustive. None of these reasons exist here. Therefore, Butterfield was not entitled to proceed under Section 1125.1.
B. Propriety of Demotion
Butterfield challenges her demotion as arbitrary and improperly motivated by a desire to quell her Act 93 activism. We review the Secretary's decision for error applying the standards for Section 1151 demotions.
In a case involving the demotion of a professional employee, our scope of review is limited to determining whether: (1) the professional employee's constitutional rights were violated; (2) the Secretary committed any errors of law in making the adjudication; and, (3) all necessary findings of fact were supported by substantial evidence. Brown v. Sch. Dist. of Cheltenham Twp., 417 A.2d 1337 (Pa. Cmwlth. 1980). The Secretary is the ultimate fact-finder if he makes findings of fact. Belasco v. Bd. of Pub. Educ., 510 Pa. 504, 510 A.2d 337 (1986). With these standards in mind, we review Butterfield's allegations of error.
"For the [Section 1151] demotion to be overturned on other than procedural grounds, the employee has the burden of proving the action to be arbitrary, discriminatory or founded upon improper considerations." Kaczmarcik v. Carbondale Area Sch. Dist., 625 A.2d 126, 128 (Pa. Cmwlth. 1993). There is a presumption that the action of a school board in such a case is valid. Dep't of Educ. v. Kauffman, 343 A.2d 391 (Pa. Cmwlth.1975).
An arbitrary action is one "based on random or convenient selection rather than on reason." Board of Pub. Ed. of School Dist. of Pittsburgh v. Thomas, 399 A.2d 1148, 1149-50 (Pa. Cmwlth. 1979) (quoting WEBSTER'S THIRD NEW INT'L DICTIONARY 110 (1966)). An action is not arbitrary merely because it does not effectuate a policy in the most effective or efficient manner, so long as it has some rational basis. Thomas.
Here, before Butterfield's position was created in 2008, guidance counselors across the District and an aide performed the duties of that position. R.R. at 3a-4a. Essentially, in eliminating the position, the duties were transferred back to the existing guidance counselors. R.R. at 4a.
The record reflects the Board demoted Butterfield for reasons of economy. The need to reduce a district budget is a legitimate reason for eliminating positions or demoting employees. Sch. Dist. of Phila v. Twer, 498 Pa. 429, 447 A.2d 222 (1982); Kemp; Thomas. The Secretary found the reason valid. As the Board's decision was based on the reason of cost-savings to better meet budgetary constraints, it was not "arbitrary." Thus, we agree with the Secretary that Butterfield did not meet her heavy burden of proving arbitrariness here.
Butterfield also failed to show the Board's decision to demote her constituted retaliation for her Act 93 activism and RTKL requests. In support of this alleged improper motivation, Butterfield cites the allegations set forth in her brief to the Secretary (R.R. at 242a). She cites no record evidence to buttress her claim.
Butterfield asserts the proximity in time between her Act 93 activities and her demotion gives rise to an inference of causation. She relies on two cases for this proposition: Lehighton Area School District v. Pennsylvania Labor Relations Board, 682 A.2d 439 (Pa. Cmwlth. 1996) and Spanish Counsel of York, Inc. v. Pennsylvania Human Relations Commission, 879 A.2d 391 (Pa. Cmwlth. 2005). However, the record in both cases contained substantial evidence of discrimination by the employer that does not exist here. Moreover, in both cases, we affirmed the fact-finder. Here, the fact-finder found no evidence of improper motive.
While the timing of Butterfield's Act 93 activities coincided with her demotion, temporal proximity alone does not establish retaliatory motive. Timing permits the fact-finder to draw an inference of causation. Id. The fact-finder here chose not to draw such an inference, which is within his discretion. See Belasco, 510 Pa. at 513, 510 A.2d at 342 ("the Secretary ... [is] the ultimate fact[-]fnder ... [with] ... the power to determine the credibility of witnesses, the weight of their testimony and the inferences to be drawn therefrom"); Lehighton Area Sch. Dist. (drawing of reasonable inferences is within the province of the fact-finder).
The Secretary determined Butterfield showed no connection between her Act 93 activism and the Board's decision. Sec'y Op., 5/2/12, at 10. Absent that connection, Butterfield cannot establish an improper motive. Butterfield failed to cite any record evidence the Secretary disregarded. Seeing none, we conclude the Secretary decided the retaliation charge appropriately.
C. Due Process/Additional Evidence
Butterfield also contends the Secretary's denial of her request to submit additional evidence resulted in a denial of due process. Butterfield argues the review the Secretary undertook here is not sufficient because he did not take additional evidence.
Pursuant to Section 1131 of the School Code, the Secretary "may hear and consider such additional testimony as he may deem advisable ...." 24 P.S. §11-1131. Because the receipt of additional testimony by the Secretary is purely a matter of discretion, we review the Secretary's decision for an abuse of discretion. Dohanic v. Dep't of Educ., 533 A.2d 812 (Pa. Cmwlth. 1987).
Further, Section 1131 gives the Secretary broad authority to exercise independent review "whether or not additional testimony is taken." Katruska v. Bethlehem Ctr. Sch. Dist., 564 Pa. 276, 282, 767 A.2d 1051, 1055 (2001) (citing Belasco). Significant to our review, the Secretary is not required to take additional evidence beyond the record created before the Board to issue his findings as the neutral fact-finder. Id.; Belasco (holding Secretary must review the official transcript of the record of the hearing before the Board and take additional testimony only if he deems it advisable).
Here, Butterfield timely submitted a request to submit additional testimony pursuant to 22 Pa. Code §351.8. Section 351.8 states in pertinent part:
(a) Testimony shall be received and recorded at the hearing before the board. The hearing before the Secretary will be held for purpose of reviewing the legal questions involved. However, additional testimony may be taken at the discretion of the hearing examiner.
(b) Where there has been no prior hearing before the board, testimony may be taken subject to the discretion of the hearing examiner.
(c) If either party to a proceeding wishes to offer testimony, a notice of intent to offer testimony shall be delivered to the
Secretary and to opposing counsel at least 14 days before the hearing.22 Pa. Code §351.8 (emphasis added). Importantly, the proceedings are designed such that the testimony is presented to the Board. Belasco, 510 Pa. at 513, 510 A.2d at 342 ("The starting point of the process before the Secretary is the record of the hearing before the Board.").
Butterfield requested to submit testimony from four members of the Board at the time of her demotion. Butterfield also sought to submit testimony of two Department officials and information regarding the expenses related to addressing her RTKL requests. Butterfield asserted that the proffered testimony "is expected to contradict, and therefor undermine, the testimony and credibility of the Superintendent." R.R. at 230a, 231a, 232a. Butterfield did not offer direct testimony that her demotion was caused by her Act 93 advocacy; rather, she offered to supplement the existing record with more circumstantial evidence to support an inference of causation between her activism and demotion. See id.
In a four page decision, the Secretary's hearing officer declined to accept the proffered evidence. R.R. at 237a-40a. The hearing officer noted that there was no effort to obtain the testimony of the additional witnesses during the Board hearings and that Butterfield had an opportunity to attack the credibility of the District witnesses at that time.
The refusal to hear additional circumstantial evidence relating to her retaliation theory does not undermine the substantial evidence of the financial grounds for Butterfield's demotion. Under these circumstances, we discern no abuse of discretion in the decision not to afford Butterfield a second chance to make a case.
In her brief, Butterfield alludes to bias of the Board and hostility between herself and the District. Pet'r's Br. at 29-31. However, due process is ensured here by the Secretary's de novo review. Katruska v. Bethlehem Ctr. Sch. Dist., 564 Pa. 276, 767 A.2d 1051 (2001). Moreover, as noted by the hearing officer in the decision declining to receive additional evidence, Butterfield did not raise the issue of Board bias at the hearing, nor request that any Board members recuse themselves. See R.R. at 239a-40a.
D. Quantification of Economic Savings
Lastly, Butterfield challenges the District's quantification of the economic savings brought about by her demotion. The District Business Manager testified that the District saved a minimum of $70,000 demoting Butterfield. In part, this figure represents the difference between her salary as a director and as an elementary classroom teacher and the difference in benefits. The amount also reflects the cost savings in not needing to employ and train a new teacher to fill the teaching position. Sec'y Op., 5/2/12, at 8 (citing Notes of Testimony (N.T.), 8/18/2011, at 20, 60-61, 99-101).
The Secretary made de novo findings of fact. Among them, he found the District saved a minimum of $70,000 as a result of Butterfield's demotion. Secretary Op., 5/2/12, F.F. No. 13 (citing N.T. at 60-61). On appellate review, we do not assume the role of the fact-finder. Belasco; Brown. We assess the record for substantial evidence in support of the Secretary's findings. Id. Our review of the record reveals sufficient testimony from which the Secretary made his finding quantifying the savings from Butterfield's demotion.
Moreover, we note that demotions resulting in any cost savings are permissible. See, e.g., Kaczmarcik; Thomas. As there is no dispute that the District yielded a cost-savings from Butterfield's demotion, disagreement as to the specific amount of that savings does not offer grounds to set aside the Secretary's decision.
III. Conclusion
Discerning no error below, and as the Secretary's adjudication comports with due process, for the foregoing reasons, we affirm the Secretary.
The District filed a motion to strike Butterfield's reply brief. Essentially, the District asserts the arguments in the reply brief are largely duplicative of those in Butterfield's brief in chief. Rule 2113 of the Pennsylvania Rules of Appellate Procedure allows an appellant to file a brief in reply to matters raised by appellee's brief and not previously addressed in appellant's brief. Based on our review of the briefs submitted, we conclude Butterfield's reply brief conforms to Pa. R.A.P. 2113 because it replies to issues raised in the District's brief. Specifically, Butterfield refutes specific sentences in the District's Brief. See, e.g., Reply Br. at 1, 3-4. Accordingly, we deny the motion and do not strike the brief. --------
/s/_________
ROBERT SIMPSON, Judge Senior Judge Colins dissents. ORDER
AND NOW, this 7th day of February, 2013, the order of the Secretary of Education is AFFIRMED.
The School District's Application to Strike Petitioner's Reply Brief is DENIED.
/s/_________
ROBERT SIMPSON, Judge