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City of Philadelphia v. Civil Service Commission

February 9, 2009

CITY OF PHILADELPHIA
v.
CIVIL SERVICE COMMISSION
APPEAL OF: LAUREEN M. BOLES



The opinion of the court was delivered by: Judge Leavitt

Submitted: November 12, 2008

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Judge*fn1, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JOHNNY J. BUTLER, Judge.

OPINION

Laureen M. Boles appeals from an order of the Court of Common Pleas for the First Judicial District (trial court) sustaining a demotion by her employer, the City of Philadelphia. In doing so, the trial court reversed the order of the Civil Service Commission of the City of Philadelphia (the Commission) restoring Boles to her former position as a Sanitary Engineer III with the City's Water Department. Concluding that the City's evidence demonstrated just cause to demote Boles, we affirm the trial court.

Boles, who has been employed by the City for 19 years, was out of work due to illness for approximately one year. She returned to work in June 2004, and was assigned to the Watershed Protection Office (Office) as a Sanitary Engineer III. Effective January 8, 2005, Boles was demoted to Sanitary Engineer II for the stated reason that she did not complete a project in accordance with the directions of her supervisor. Boles appealed her demotion, and the Commission conducted a hearing.

At the hearing, Boles' immediate supervisor, Christopher Crockett, testified to the events surrounding her demotion. Boles joined the Office on June 28, 2004, and the next day, Crockett, the manager of the Office, met with Boles. He assigned her the project of planning the Watershed Technology Center, which was being established to provide technical watershed information to developers and regulators, as well as to the general public. Although a Sanitary Engineer III should be able to handle multiple projects simultaneously, Crockett explained that he assigned Boles this single project as a "warm up" assignment, one easily within the ability of a Sanitary Engineer III. The day after their meeting, Crockett e-mailed Boles a timeline for completing certain tasks.

On July 22, 2004, Crockett met with Boles to discuss her progress on the timeline and discovered that Boles had not yet interviewed staff members, which was the critical first step he had identified in his timeline. Boles gave Crockett some PowerPoint slides, consisting of bullet points taken out of a 1997 document that were, in Crockett's view, vague. It became apparent to Crockett that Boles was taking a very minor part of the project, i.e., finding a physical location for the center, and turning it into her principal focus. Crockett coached Boles to redirect her efforts so that the project could be completed in a timely manner.

Crockett met with Boles again in August. At that point, Boles still had not interviewed the Office staff, as had been directed. Again, Boles gave Crockett the same PowerPoint slides she had produced in July but in a new format. Crockett again explained to Boles what she had to do. He found himself "thoroughly confused as to . why these things were not being done." Reproduced Record at 67a (R.R. ___). Crockett gave Boles an extension to August 19, 2004, to meet with Office staff. Boles did not meet this deadline.

On August 20, 2004, Crockett gave Boles a "special performance report," giving her an unsatisfactory performance rating "to alert her to the seriousness of the situation" and to explain, in writing, what she needed to do to achieve satisfactory performance. R.R. 67a-68a. The report stated, inter alia, that Boles "has missed critical project deadlines," "has not shown acceptable initiative," and "is not engaging [Office] staff regarding her tasks as directed in progress meetings." R.R. 151a. Boles was given until September 2, 2004, to complete an initial comprehensive conceptual design and to lead a brainstorming session with the entire Office staff. She was also given until September 27, 2004, to complete a final draft of a plan for the center. Boles did not appeal Crockett's performance report.

Crockett testified that Boles told him that she had tried to set up a meeting with staff on August 26, 2004. Boles did not invite Office staff, as directed, but instead requested the Office managers to invite their staffs. However, the invitations, sent by e-mail, did not reach all Office managers. In any event, it was not the managers' responsibility to help Boles set up this meeting, according to Crockett. Further, Boles did no follow up to find out which staff members would attend. Because the meeting did not take place on August 26, 2004, Crockett revised the timelines for the project, pushing everything back. Again, Crockett met with Boles to re-explain the tasks to be completed. Crockett testified that "I asked her if she was okay with those [tasks], what changes needed to be made, if I was asking for too much, what else needed to be communicated -- she said, no, this is clear." R.R. 69a.

On August 30, 2004, Crockett produced a new timeline for Boles' project. Boles missed a September 3, 2004, deadline. Crockett concluded that Boles was not trying to improve her performance and that she was not keeping him informed. On September 17, 2004, Crockett sent Boles a memorandum stating that she needed "to really start performing like an Engineer III and to just demonstrate some basic abilities." R.R. 71a.

On September 23, 2004, Crockett and another manager met with Boles. Boles gave them the same material she provided Crockett in August but in a larger font. Crockett told Boles that there were major items to be undertaken before the upcoming October 6, 2004, staff presentation on the plan for the Watershed Technology Center. At that point, Boles requested a week off and threatened to call in sick on October 6, 2004, and miss the meeting if she were not granted vacation time. Crockett acquiesced to Boles' vacation demand because the time he had been spending with Boles was beginning to impact his other duties. Crockett also spoke to Human Resource staff about disciplinary action.

On October 6, 2004, Boles was reassigned to another manager. The Watershed Technology Center project was removed from Boles, who had spent 440 hours on the project and never completed Phase 1 of the three project phases. The project was reassigned to a consultant with a similar professional background to Boles, and this consultant completed the project in 170 hours.*fn2

Crockett's supervisor, Howard Neukrug, testified that he met with Boles on August 26, 2004, to discuss the special performance report. Boles stated that she thought her work was good and that she had not spoken to Neukrug about the performance evaluation earlier because she was busy working on a report. However, when Neukrug asked for a copy of that report, Boles replied that she was too busy to make copies and never supplied one to Neukrug. Neukrug testified that the Watershed Technology Center project was appropriate for a Sanitary Engineer III and was "a perfect assignment" for Boles. R.R. 92a.

Francis Meiers, the Department's Assistant Personnel Officer, confirmed that Boles never appealed her special performance report. Meiers reassigned Boles to another supervisor in October. After a hearing he conducted on November 9, 2004, Meiers recommended to the City Water Commissioner that Boles be demoted. The recommendation was accepted, and Boles was demoted to Sanitary Engineer II effective January 8, 2005.

In response to the City's case, Boles testified that she performed most of the tasks that Crockett assigned to her in June 2004. Boles acknowledged that she was instructed to meet with Office staff by July 21, 2004, and that she did not do so. Boles explained that, instead, she conferred with people outside the Office and spent her time trying to find a location for the center. Boles felt that she "had shown quite a bit of initiative" on the project and disagreed with Crockett's assessment that her performance was unsatisfactory. R.R. 108a. Boles pointed to an e-mail from Crockett in which he stated that she had made good progress.*fn3 This e-mail was sent two days after she received the assignment. Boles testified that she sent invitations to managers for a staff meeting on August 26, 2004, but some managers did not receive it. She acknowledged that the managers who did receive the invitation did not invite their staffs, as Boles had requested. Boles did not know why this was so. Boles felt that, in any case, she did not need to meet with Office staff because her real goal was to gather information, which she obtained from websites and from persons outside the Office. Boles testified that she was working on the goals assigned by Crockett and thought everything was going well with the project.

The Commission sustained Boles' appeal, concluding that the City failed to prove that it had just cause to demote Boles. The Commission explained as follows:

The Commission concludes that [Boles] performed her job duties even if in a manner different than what Crockett would have liked. As an Engineer III, [Boles] had some discretion as to how to complete her tasks. [Boles] chose to speak with persons outside the Department to get her information after she had no success meeting with persons within the Department. The Department's complaints about [Boles'] use or lack of use of e-mail and her failure to sign in are not persuasive in its decision to demote. Even if the Commission were to conclude that there are some stylistic issues that need to be worked out between [Boles] and management, [Boles] was not given sufficient time to perform her tasks and to achieve success. The evidence in the case shows that [Boles] was micro-managed following her return from leave, which led to her demotion. After more than twenty years of service to the City and several years as an Engineer III, the Commission believes that the Department has not shown that [Boles'] performance over a three to four month period warrants demotion.

Commission opinion, February 10, 2006, at 3-4 (emphasis in original).

The City appealed, and the trial court reversed the Commission's decision. In doing so, the trial court determined that the Commission's findings were not supported by substantial evidence and that there was just cause to demote Boles.

The trial court pointed to the evidence that Boles failed to complete several assignments and that her supervisor met with her numerous times to discuss her substandard work and to set goals to improve performance. The trial court explained that Boles did not present evidence to refute the allegations contained in her notice of [demotion]. She asserted only that she performed her duties despite her superior's characterization of her performance. As Engineer III, Ms. Boles possessed discretion in how to perform her job duties, but that does not negate the fact that she worked under the direction of a higher level manager and she repeatedly failed to meet performance standards.

Trial court opinion, February 13, 2008, at 3. The matter is now before this Court.

On appeal,*fn4 Boles raises one issue for our consideration. She argues that the Commission's decision sustaining her appeal must be affirmed because its factual findings are supported by substantial evidence. Specifically, Boles asserts that the evidence supports the Commission's findings that Boles performed her job duties, albeit in a manner different from what Crockett desired; that Boles had discretion as to how to complete her tasks and exercised that discretion reasonably; that Boles was not given sufficient time to perform her tasks successfully; and that Boles was micro-managed, the true cause of the demotion.*fn5

The City counters that Boles' inability to manage one project and comply with the basic requirements of her job, despite repeated requests that she do so, constituted just cause for her demotion, and that the Commission erred in concluding otherwise. The City contends that the Commission abused its discretion because it does not have the power to substitute its discretion for that of the City's ...


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