Opinion
No. 1511 C.D. 2011
06-11-2012
City of Philadelphia, Appellant v. City of Philadelphia Civil Service Commission (Perry)
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ANNE E. COVEY, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE COLINS
This matter and City of Philadelphia v. City of Philadelphia Civil Service Commission (Robinson), No. 1481 C.D. 2011, are related appeals by the City of Philadelphia (City) from orders of judges of the Philadelphia County Court of Common Pleas affirming decisions of the Civil Service Commission of the City of Philadelphia (Commission). The Commission reversed the City Water Department's decisions to dismiss Kendall Robinson and Michael Perry (collectively, Employees), Utility Maintenance Apprentices in an Electrical Apprentice training program, and ordered their reinstatement without backpay. We conclude that the Commission lacked jurisdiction to review Employees' dismissals because Employees' appeals to the Commission were filed beyond the 30-day time limit provided by Section 7-201 of the Philadelphia Home Rule Charter. We, therefore, reverse and order that the Commission's reinstatement decisions be vacated. Even if the Commission were held to have jurisdiction, however, reversal would be required, because the Commission exceeded its authority by substituting its judgment as to the appropriate disciplinary penalty for the misconduct that it found that Employees had committed.
While the cases are not consolidated, they involve the same legal issues and most of the same essential facts and both cases were argued together. We therefore address both cases in this opinion.
In April 2007, the City Water Department started an Electrical Apprentice Program to train City high school graduates at the City's expense. The apprentices in this program were probationary employees for the first six months and after that period held Civil Service positions for the balance of the three-and-one-half year program. The apprentices were assigned to a worksite four days a week where they received on-the-job training with mentor Water Department electricians. They were also required to attend classroom training at Orleans Technical Institute one day a week to learn material they needed to become Water Department industrial electricians and to prepare for the Civil Service written electrician examination. (Robinson Hearing Transcript (H.T.) at 53-55, 73, Robinson Reproduced Record (R.R.) at 62a-64a, 82a; Perry H. T. Exhibit A at 25-27, 40-41, Perry R.R. at 101a-103a, 116a-117a.) The City not only paid for the Orleans Technical Institute program, but paid the apprentices for a full, five-day week, and the apprentices were instructed that attending the classroom training was part of their Water Department job. (Robinson H.T. at 54-55, Robinson R.R. at 63a-64a; Perry H.T. Exhibit A at 26-27, Perry R.R. at 102a-103a.) Robinson and Perry were both part of the first class of 11 apprentices in this program; of the other nine, eight completed the program and one left to attend the Police Academy. (Robinson H.T. at 64, 72-73, Robinson R.R. at 73a, 81a-82a; Perry H.T. Exhibit A at 33-34, 40, Perry R.R. at 109a-110a, 116a.)
Robinson and Perry were dismissed effective January 25, 2010, for multiple incidents concerning their behavior in and compliance with the classroom component of the program. Both had repeated lateness between June 2009 and December 2009 - Robinson was significantly late 13 of 26 classroom days and Perry was significantly late 11 of 27 days. (Robinson Hearing Exhibit D-1, Robinson R.R. at 126a-127a; Perry Hearing Exhibit D-1, Perry R.R. at 121a-123a.) Robinson repeatedly used his cell phone and other electronic devices in class, did not readily comply with instructions to put them away and did not follow instructions or pay attention in class on a number of occasions. (Robinson H.T. at 15-23, Robinson R.R. at 24a-32a.) In fact, there had been issues with Robinson's behavior well before June 2009 and all of the Orleans Institute instructors had had problems with him. (Robinson H.T. at 43-45, 48-49, 55-57, 64-66, Robinson R.R. at 52a-54a, 57a-58a, 64a-66a, 73a-75a.) Perry slept in class on multiple occasions, not merely having difficulty staying awake and closing his eyes, but putting his head on his desk to go to sleep. (Perry H.T. at 15-23, Perry R.R. at 24a-32a.)
All of the apprentices, including Robinson and Perry, were instructed that this type of conduct in the classroom portion of the program was not acceptable, and they were warned that such conduct could lead to dismissal from the program. (Robinson H.T. at 18-20, 57-59, Robinson R.R. at 27a-29a, 66a-68a; Robinson Hearing Exhibit D-2, Robinson R.R. at 129a; Perry H.T. at 19-20, Perry R.R. at 28a-29a; Perry H.T. Exhibit A at 7-8, 28-29, Perry R.R. at 83a-84a, 104a- 105a; Perry Hearing Exhibit D-5, 138a; Exhibit DJ-2, Robinson R.R. at 145a and Perry R.R. at 139a.) Both Robinson and Perry received and signed guidelines from the classroom instructor in June 2009 specifically advising them that they had to be on time for class, turn off cell phones and other electronics in the classroom and participate in class. (Robinson H.T. at 18-19, 23, Robinson R.R. at 27a-28a, 32a, Robinson Hearing Exhibit D-2, 129a; Perry H.T. Exhibit A at 7, 10, Perry R.R. at 83a, 86a; Perry H.T. at 19, Perry R.R. at 28a; Perry Hearing Exhibit D-5, Perry R.R. at 138a.)
Because of continuing problems with the apprentices' behavior, Orleans Technical Institute requested that the Water Department speak to the class, and on September 16, 2009, the Water Department Training Manager went to the class with the Water Department's Human Resources manager and spoke to the apprentices to address class behavior. (Robinson H.T. at 19-20, 57-59, 64, Robinson R.R. at 28a-29a, 66a-68a, 73a; Perry H.T. Exhibit A at 7-8, 28-30, 34, Perry R.R. at 83a-84a, 104a-106a, 110a.) The Training Manager gave each apprentice, including Robinson and Perry, a memorandum on Water Department letterhead that stated:
As employees in the PWD Electrical Apprenticeship Program, you are expected/required to:
• Report properly prepared and in a timely manner for all scheduled classes. (Absence from class is only permissible when pre-approved by your supervisor or in the most exigent circumstances);
• Regularly report to your supervisor the exact dates and times on which you were present for classes. Failure to comply with this requirement may be regarded as tantamount to falsification of time records;
• Diligently comply with all instructions from your supervisor and your class instructor;
• Refrain from engaging in any behavior which might tend to be disruptive of class work. Sleeping, exhibiting an inattentive demeanor, answering cellular phones etc.;(Exhibit DJ-2, Robinson R.R. at 145a and Perry R.R. at 139a; Robinson H.T. at 58, Robinson R.R. 67a; Perry H.T. at 19-20, Perry R.R. 28a-29a) (emphasis added). At this September 16, 2009 meeting, the Training Manager went over each of the points in the memorandum and advised all the apprentices that violation of these standards would result in disciplinary action, which could include termination. (Robinson H.T. at 20, 58-59, Robinson R.R. at 29a, 67a-68a; Perry H.T. Exhibit A at 8, 28-30, Perry R.R. at 84a, 104a-106a.)
• Satisfactorily complete the course for which you are enrolled.
Compliance with these basic rules is viewed to be a condition of employment.
After the September 16, 2009 warning, both Robinson and Perry continued to violate these behavior requirements. (Robinson H.T. at 20-22, Robinson R.R. at 29a-31a; Robinson Hearing Exhibit D-1, Robinson R.R. at 126a-128a; Perry H.T. at 16, Perry R.R. at 25a; Perry Hearing Exhibit D-1, Perry R.R. at 121a, 123a-124a.) On December 9, 2009, the Water Department held pre-disciplinary hearings for both Robinson and Perry. (Robinson Hearing Exhibit D-5, Robinson R.R. at 132a-141a; Perry Hearing Exhibit D-3, Perry R.R. at 129a-134a.) Robinson admitted that he frequently had his cell phone out in class because "that's how I entertain myself" and because he thought the class was boring. (Robinson Hearing Exhibit D-5, Robinson R.R. at 132a-133a, 137a.) Robinson also did not dispute that he was late at times, but claimed that he and Perry were not the only apprentices who were late. (Robinson Hearing Exhibit D-5, Robinson R.R. at 132a, 139a.) Perry admitted that he had been late for class and slept in class "a few times," but he stated that this was because he was taking care of his ill grandmother. (Perry Hearing Exhibit D-3, Perry R.R. at 129a-130a.)
Following the pre-disciplinary hearings, the City, on December 30, 2009, sent Robinson and Perry notices that they were suspended for 30 days without pay and Notices of Intention to Dismiss. (Robinson H.T. at 6, Robinson R.R. at 15a; Perry Hearing Exhibit D-2, Perry R.R. at 125a-128a.) By Notice of Dismissal mailed January 22, 2010, the City dismissed both Robinson and Perry from their employment with the City effective January 25, 2010. (Robinson Hearing Exhibit D-6, Robinson R.R. at 142a-144a; Perry Hearing Exhibit D-4, Perry R.R. at 135a-137a.) The Notices of Dismissal advised Robinson and Perry that they "may, within thirty days after such dismissal, appeal to the Civil Service Commission for review thereof." (Robinson Hearing Exhibit D-6, Robinson R.R. at 142a; Perry Hearing Exhibit D-4, Perry R.R. at 135a.) Robinson and Perry each filed an appeal to the Commission on February 25, 2010. (Robinson Appeal to Commission, Robinson R.R. at 9a; Perry Appeal to Commission, Perry R.R. at 9a.)
The Commission held separate hearings on these dismissals on August 24, 2010, and, on November 4, 2010, issued opinions sustaining Robinson's and Perry's appeals and reinstating them without backpay and with the requirement to complete the coursework at their own expense. The Commission found that both Robinson and Perry engaged in the conduct for which they were dismissed. (Commission Opinion in Robinson at 2-3; Commission Opinion in Perry at 2-3.) The Commission specifically found that Robinson's behavior was "less than expected of a Department employee." (Commission Opinion in Robinson at 4.) The Commission did not find that Perry's caring for his grandmother excused his deficiencies, but instead found "[Perry]'s testimony regarding the scope of his caretaking duties to be less than forthright." (Commission Opinion in Perry at 3.) In both cases, the Commission ruled that there was not just cause for dismissal solely because the City had not used a progressive discipline policy prior to dismissal and because the City had not individually warned Robinson and Perry that their jobs were in jeopardy. (Commission Opinion in Robinson at 4; Commission Opinion in Perry at 3.)
The Court of Common Pleas, by orders entered July 11, 2011 and August 2, 2011, affirmed the Commission's decisions on the Perry dismissal and the Robinson dismissal respectively. The City timely appealed both of those orders to this Court.
This Court's review of the Commission's decision is limited to determining whether the Commission committed an error of law, made findings of fact not supported by substantial evidence or violated the constitution. City of Philadelphia v. Civil Service Commission (Johnson), 967 A.2d 1034, 1038 n.3 (Pa. Cmwlth. 2009); City of Philadelphia v. City of Philadelphia Civil Service Commission (Carter), 895 A.2d 87, 91 n.7 (Pa. Cmwlth. 2006). --------
The Commission was without jurisdiction to order Robinson's or Perry's reinstatement because both Robinson's and Perry's appeals to the Commission were untimely. The Philadelphia Home Rule Charter provides that "[a]ny employee who is dismissed or demoted after completing his probationary period of service, or who is suspended for more than ten days in any one year, may, within thirty days after such dismissal, demotion or suspension, appeal to the Commission for review thereof." Philadelphia Home Rule Charter § 7-201, 351 Pa. Code § 7.7-201 (emphasis added). Both dismissals were effective January 25, 2010, and both Employees were mailed notice of these dismissals and of their 30-day right to appeal to the Commission on January 22, 2010, before that effective date. Both appeals to the Commission were filed on February 25, 2010, 31 days after the dismissal.
Failure to file an appeal to the Philadelphia Civil Service Commission within this 30-day time limit is a jurisdictional defect which bars the Commission from granting relief absent a showing of extraordinary circumstances, such as a breakdown in the administrative process or circumstances beyond appellant's control. Sofronski v. Civil Service Commission, City of Philadelphia, 695 A.2d 921, 924 (Pa. Cmwlth. 1997); see also Russo v. Unemployment Compensation Board of Review, 13 A.3d 1000, 1002, 1003 (Pa. Cmwlth. 2010) (failure to timely appeal decision of an administrative agency is a jurisdictional defect) (citing Sofronski); Falcon Oil Co. v. Department of Environmental Resources, 609 A.2d 876, 878 (Pa.Cmwlth. 1992) (failure to timely appeal from administrative agency action is a jurisdictional defect). Neither Robinson nor Perry have put forth to this Court any cause for the delay in filing their appeals to the Commission which they contend could constitute extraordinary circumstances. The fact that the appeal deadline was missed by only one day is not a basis for allowing an untimely appeal absent a showing of some extraordinary circumstance which caused that delay. Russo, 13 A.3d at 1003-04.
The City did not raise the untimeliness issue before the Commission or in its arguments in the Court of Common Pleas. Because it is a jurisdictional defect, however, failure to file a timely appeal to the Commission cannot be waived and may be raised for the first time on appeal. Sellers v. Workers' Compensation Appeal Board (HMT Construction Services, Inc.), 552 Pa. 22, 26-27, 713 A.2d 87, 89 (1998); Ludwikowski v. Workers' Compensation Appeal Board (Dubin Paper Co.), 910 A.2d 99, 100-101 (Pa. Cmwlth. 2006). "[T]he issue of timeliness is not waivable" and "may be raised at any time sua sponte by an appellate court." Ludwikowski, 910 A.2d at 101.
Employees argue that the 30-day deadline for appeals to the Civil Service Commission should be treated as a flexible "claim-processing rule" rather than a jurisdictional defect, based on the United States Supreme Court's decision in Henderson v. Shinseki, ___U.S.___, 131 S. Ct. 1197 (2011). Henderson, however, is an interpretation of a federal statute and congressional intent, not a constitutional ruling. It therefore has no effect on and provides no basis for overruling this Court's and our Supreme Court's established precedents that failure to file a timely appeal to an administrative body is a jurisdictional bar. Moreover, the factors on which the Court based its ruling in Henderson are absent here. The appeal period in Henderson was part of a statutory scheme that not only provided for non-adversarial proceedings, but also imposed no deadline for filing a claim. ___U.S. at ___, 131 S. Ct. at 1206.
In any event, even if the appeals had been timely filed, the Commission's decisions must be reversed because the Commission found that both Employees committed misconduct that constitutes just cause for their dismissal. The issue before the Commission on an appeal of a dismissal is to determine whether the City proved the charges against the employee and whether those charges are just cause for discipline. Philadelphia Home Rule Charter § 7-303, 351 Pa. Code § 7.7-303 (dismissal of civil service employee "shall be for just cause only"); City of Philadelphia v. Civil Service Commission (Johnson), 967 A.2d 1034, 1042 (Pa. Cmwlth. 2009); City of Philadelphia v. Civil Service Commission of the City of Philadelphia (Luna), 717 A.2d 1067, 1070-71 (Pa. Cmwlth. 1998), abrogated on other issue by Naylor v. Township of Hellam, 565 Pa. 397, 773 A.2d 770 (2001).
[J]ust cause for removal ... must necessarily be largely a matter of discretion on the part of the head of the department. To be sufficient, however, the cause should be personal to the employee and such as to render him unfit for the position he occupies, thus making his dismissal justifiable and for the good of the service.City of Philadelphia v. City of Philadelphia Civil Service Commission (Carter), 895 A.2d 87, 92 (Pa. Cmwlth. 2006) (emphasis omitted) (quoting In re O'Gorman, 409 Pa. 571, 187 A.2d 581 (1963)). Whether conduct constitutes just cause for dismissal is an issue of law subject to this Court's plenary review. Johnson, 967 A.2d at 1038.
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All that the law requires is that the cause be not religious or political, but concerned solely with the inefficiency, delinquency or misconduct of the employee. A wide latitude must be left to the superior officer - in fact a discretion conditioned only on its exercise in good faith and not as a screen for some reason not based upon the fitness of the employee to fill the position.
This Court has repeatedly made clear that the Commission's authority is limited to determining whether the misconduct occurred and whether it constitutes just cause, not what penalty should be imposed for the misconduct. Johnson, 967 A.2d at 1041-42; Carter, 895 A.2d at 94-95; Luna, 717 A.2d at 1070-71. "[T]he law is clear that once just cause is found, neither the Commission nor this Court can impose a more lenient or a more severe penalty." Carter, 895 A.2d at 94.
What penalty is appropriate for an employee's misconduct is committed to the City department head's discretion, and the Commission, therefore, cannot set aside a dismissal for employee misconduct on the ground that lesser penalty would be more appropriate, unless the selection of dismissal as a penalty was a bad faith pretext for discrimination, was arbitrary or rises to a level of abuse of discretion. Johnson, 967 A.2d at 1041-42; Carter, 895 A.2d at 94-95; Luna, 717 A.2d at 1070-71.
The Commission, in reviewing disciplinary actions against civil servants, must determine whether the charges brought against an employee are supported by the evidence, whether the penalty imposed is not otherwise prohibited, and whether the selection of the penalty is not arbitrary, discriminatory or an abuse of discretion.Luna, 717 A.2d at 1070.
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Once the Commission confirm[s] the factual basis for [the] dismissal, it [i]s required to uphold the Department's disciplinary action absent an abuse of discretion.
The Commission found that both Robinson and Perry committed the misconduct for which they were dismissed. The Commission also concluded that their conduct was just cause for disciplinary action. The Commission found "[Robinson]'s behavior to be less than expected of a Department employee," found that both should have been subjected to "progressive discipline" for their behavior, and imposed its own disciplinary penalty on both Employees of loss of backpay and loss of payment for the remaining classes. (Commission Opinion in Robinson at 4; Commission Opinion in Perry at 3-4; see also Robinson Trial Court Opinion at 5.)
Given these findings, the Commission was required to uphold both dismissals. The acts of misconduct found by the Commission, insubordination, sleeping on the job and repeated tardiness, are all just cause for dismissal from employment. See, e.g., Wei v. State Civil Service Commission, 961 A.2d 254, 259 (Pa. Cmwlth. 2008) (repeated failure to perform assignments and insubordination are just cause for dismissal); Luna, 717 A.2d at 1069-70 (two incidents of abusive and foul language directed at supervisor constitute just cause for dismissal as a matter of law); Department of General Services v. Civil Service Commission (Maddox), 707 A.2d 1210, 1212 & n.3 (Pa. Cmwlth. 1998) (insubordination constitutes sufficient justification for discharge); Kelley v. Unemployment Compensation Board of Review, 429 A.2d 1227, 1228-29 (Pa. Cmwlth. 1981) ("sleeping on the job constitutes a wanton or willful disregard of the standards of behavior that an employer has the right to expect of his employees" and "substantial disregard of ... the employee's duties and obligations to the employer") (quoting Johnson v. Unemployment Compensation Board of Review, 420 A.2d 794 (Pa. Cmwlth. 1980)); Fritz v. Unemployment Compensation Board of Review, 446 A.2d 330, 333 (Pa. Cmwlth. 1982) ("An employer has the right to expect that his employees will attend work when they are scheduled, that they will be on time and that they will not leave work early without permission," thus "habitual tardiness is adequate grounds for a finding of willful misconduct").
The only bases for the Commission's findings that just cause was not shown were its view that the City was required to use a progressive discipline policy and its conclusion that neither Robinson nor Perry had been put on adequate notice "that his behavior was inappropriate and that his job was in jeopardy." (Commission Opinion in Robinson at 4; Commission Opinion in Perry at 3.) The Commission, however, has no power to require the City to use progressive discipline rather than termination for misconduct. Luna, 717 A.2d at 1069-71. The Commission's decisions here are, indeed, indistinguishable from what this Court reversed in Luna. The Commission in Luna found that the City had proven the misconduct and that the City "had legitimate grounds to effectuate disciplinary action," but held "that [the employee]'s conduct did not justify termination" because of "the City's failure to follow progressive discipline." 717 A.2d at 1069. This Court held that the Commission exceeded its authority in ordering reinstatement without backpay under those circumstances, noting that "the Philadelphia Home Rule Charter is bereft of statutory language expressly permitting the Commission to modify or set aside disciplinary action taken by a municipal department in Philadelphia County when the Commission's own findings support the action." 717 A.2d at 1071.
To the extent that the Commission's decision was based on a conclusion, independent of a progressive discipline requirement, that Employees had no notice that their conduct was improper and could result in termination, such a ruling would not be supported by substantial evidence. The evidence before the Commission showed that all the apprentices, including Robinson and Perry, received clear warnings that the specific conduct here, being late for the classes, sleeping in class and use of cell phones and electronics in class, violated their employment obligations and could result in termination. (Robinson H.T. at 18-20, 57-59, Robinson R.R. at 27a-29a, 66a-68a; Robinson Hearing Exhibit D-2, Robinson R.R. at 129a; Perry H.T. at 19-20, Perry R.R. at 28a-29a; Perry H.T. Exhibit A at 7-8, 28-29, Perry R.R. at 83a-84a, 104a-105a; Perry Hearing Exhibit D-5, 138a; Exhibit DJ-2, Robinson R.R. at 145a and Perry R.R. at 139a.)
Employees argue that the Commission's decision can be sustained on the grounds that termination was arbitrary because other apprentices also had incidents of lateness and used electronic devices in class. That contention fails for several reasons. First and most fundamentally, the Commission did not find any arbitrariness or discrimination by the City in choosing to discipline and dismiss only these two apprentices. Secondly, the argument is legally invalid. The contention that other employees may have committed misconduct is not a defense to an otherwise valid dismissal for misconduct. Metrick v. Civil Service Commission, 687 A.2d 26, 28-29 (Pa. Cmwlth. 1996). Finally, Employees' argument is contrary to the record. The evidence before the Commission was that Robinson's and Perry's behavior was distinctly worse than the conduct of any of the other apprentices. (Robinson H.T. at 15-17, 43-46, 48-49, 55-57, 64, 68, Robinson R.R. at 24a-26a, 52a-55a, 57a-58a, 64a-66a, 73a, 77a; Perry H.T. at 15-22, 26, Perry R.R. at 24a-31a, 35a.)
For the foregoing reasons, we conclude that the Commission lacked jurisdiction to review the dismissals in this case and acted beyond its authority in ordering Employees' reinstatement. Accordingly, the orders of the Court of Common Pleas of Philadelphia County in these matters must be reversed and the decisions of the Commission reinstating Employees must be vacated.
/s/_________
JAMES GARDNER COLINS, Senior Judge President Judge Pellegrini concurs in the result only. ORDER
AND NOW, this 11th day of June, 2012, the order of the Court of Common Pleas of Philadelphia County entered July 11, 2011 in the above matter is REVERSED and the decision of the Civil Service Commission of the City of Philadelphia in this matter is hereby VACATED.
/s/_________
JAMES GARDNER COLINS, Senior Judge