The opinion of the court was delivered by: Magistrate Judge Lisa Pupo Lenihan
Currently before the Court for disposition are cross-motions for summary judgment. In essence, this civil rights lawsuit involves a facial and "as applied" constitutional challenge to the Pennsylvania Legislature's enactment of an amendment to the Pennsylvania Public School Code on July 20, 2007, codified at 24 Pa. Stat. Ann. 17-1704.1-B. Section 17-1704.l-B appears to eliminate, for management level employees, any entitlement to either a pre- or post-deprivation hearing upon termination of employment. Plaintiff alleges that his summary and precipitous termination from public employment by Defendants on August 23, 2007, without being afforded any due process, including a hearing, the right to counsel, adequate notice of the grounds for termination, or any other appropriate safeguards, violated both the Pennsylvania and United States Constitutions, as well as the Local Agency Law, 2 Pa. Cons. Stat. § 105 and Subch. B of 2 Pa. Cons. Stat. Chs. 5 & 7, and the Pennsylvania Public School Code. In addition to a bringing a claim under 42 U.S.C. § 1983 (Count II), Plaintiff seeks relief in the form of mandamus (Count I), a declaratory judgment under 42 Pa. Cons. Stat. Ann. § 7531 et seq. (Count III), and an Appeal Pursuant to the Local Agency Law (Count IV). Plaintiff also seeks damages in the form of lost wages and benefits, interest, and attorneys' fees, costs and expenses on these claims (Counts I-IV). In addition, Plaintiff seeks mandamus relief under 24 Pa. Stat. Ann. § 11-1164 to recover unpaid fringe benefits that allegedly accrued to his benefit prior to his termination (Count V). Finally, Plaintiff has asserted a claim under the Pennsylvania Whistleblower's Law, 43 Pa.Stat. Ann. § 1421 et seq. (Count VI).
This Court has subject matter jurisdiction over Plaintiff's civil rights and federal constitutional claims by virtue of 28 U.S.C. § 1331. In addition, this Court has supplemental jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. § 1367. Venue lies in this district pursuant to 28 U.S.C. § 1391(b).
Defendants have moved for summary judgment (Doc. No. 42) on Counts I, II, III, IV and VI of Plaintiff's Third Amended Complaint. Plaintiff filed a cross-motion for partial summary judgment (Doc. No. 50) with respect to Counts III and IV of his Third Amended Complaint. For the reasons set forth below, the Court will grant Defendants' motion as to Count VI, but will deny it in all other respects. With regard to Plaintiff's cross-motion on Counts III and IV, the Court will grant said motion with respect to Plaintiff's claims for declaratory relief.
The parties dispute most of the factual allegations contained in their respective Concise Statements of Material Facts, proffered in support of the cross-motions for summary judgment. Nonetheless, the claims on which the parties seek summary judgment involve either legal questions or factual allegations which are not in dispute. Thus, the Court has gleaned from the parties' submissions the relevant undisputed facts that are material to the questions of law raised in the pending motions, which are summarized below.
Plaintiff, Dr. Dwight Mosley, was hired by Defendants, City of Pittsburgh Public School District and City of Pittsburgh Board of Public Education (collectively, "School District"), on August 6, 2001 for the position of Chief Human Resources Officer. As such, Plaintiff was responsible for overseeing the entire Human Resources Department. Sometime in 2005, while Plaintiff was off on an extended medical leave of absence, the acting superintendent, Dr. Andrew King, presented to the City of Pittsburgh Board of Public Education ("Board") a proposed reorganization of various central office functions, which eliminated three cabinet level positions, including the Chief Human Resources Officer position which Dr. Mosley occupied. (King Aff. ¶ 4 (Pl.'s App. 2).)*fn1 Upon his return from medical leave, Dr. Mosley was offered the management level position of Director of Staffing and Recruitment, which had been vacant after the reorganization. (Id. at ¶ 5; Plaintiff's Second Revised Affidavit dated 8/30/09 ("Pl.'s Aff."), ¶ 7 (Doc. No. 82).) Dr. Mosley occupied the position of Director of Staffing and Recruitment*fn2 from April 1, 2005 until he was terminated on August 23, 2007.
From November of 2003 to Plaintiff's termination on August 23, 2007, the Office of Human Resources appears to have been in various states of disorganization and involved in several miscommunications, for which Plaintiff was ultimately held responsible, initially as Chief Human Resources Officer and later as Director of Staffing and Recruitment. Defendants point to several distinct instances where Dr. Mosley's performance was called into question, in attempting to establish a history of unsatisfactory performance. These instances are summarized briefly below.
A December 1, 2003 letter from the superintendent at that time, Dr. John Thompson, to Dr. Mosley indicated that the superintendent and several board members were dissatisfied with Dr. Mosley's job performance and the state of disorganization that existed in the Office of Human Resources in November of 2003. (Pl.'s Dep. Ex. 2, App. Tab B.) In his letter, Dr. Thompson refers to a copy of an improvement plan for Dr. Mosley, the goals of which he expects Dr. Mosley to achieve by December 31, 2003.*fn3 Dr. Thompson goes on to state that he expects immediate and substantial progress in Dr. Mosley's performance and in the overall operations of the Office of Human Resources, Dr. Mosley to work closely with him to develop an overall solution to the performance problems that confront Dr. Mosley and his office, and his full cooperation in working with an outside consulting group that is developing a reorganization and comprehensive improvement plan for the Human Resources Office. (Id.) Finally, Dr. Thompson indicates that he will meet with Dr. Mosley on January 5, 2004 to assess the extent to which he has achieved the goals in the improvement plan and in the event he is unable to attain these goals, Dr. Mosley's future employment with the School District and decisions related to it will be discussed at that meeting. It appears that the review meeting took place on January 15, 2004, and Dr. Mosley successfully completed all of the items in the improvement plan according to the established timelines. (See 1/29/04 Memorandum from Mosley to Thompson, Pl.'s Dep. Ex. 3, App. Tab B.) Dr. Mosley's 2003-04 salary increase, which was not scheduled to go into effect until January of 2004, needed to be authorized by Dr. Thompson before taking effect, which authorization was withheld until Plaintiff successfully completed all of the goals outlined in the improvement plan.*fn4 (Pl.'s Dep. at 20; Pl.'s Aff., ¶ 6.)
Next, the School District contends that Dr. Mosley was demoted on April 1, 2005 from Chief Human Resources Officer to Director of Recruiting and Staffing, allegedly due to his performance, but fails to provide any details of the conduct that supposedly led to his "demotion." Dr. Mosley, on the other hand, disputes that he was demoted, and submits that his position as Chief Human Resources Officer was eliminated in a reorganization plan implemented by Dr. King while Dr. Mosley was on a medical leave of absence.*fn5 Dr. Mosley was offered the position of Director of Recruitment and Staffing in April of 2005, which position reported to the Chief Human Resources Officer. The latter position was vacant, however, until Superintendant Roosevelt retained Lee Nicklos, a consultant, to serve as Acting Chief Human Resources Officer from October 2005 to July 2006. Thus, Dr. Mosley reported to Lee Nicklos from October 2005 to July 2006.
During the time that Nicklos was Dr. Mosley's direct report, Nicklos gave him a satisfactory performance rating for his 2006 evaluation, but informed him that the rating included a strong emphasis on a need for improvement. (Pl.'s Dep. Ex. 8.) Nicklos issued a supplemental memorandum to the 2006 performance evaluation on June 29, 2006, in which she noted that while "many things have been successfully accomplished during [her]tenure, she outlined nine areas that needed improvement, three of which required Dr. Mosley's immediate attention.*fn6 (Id.)
In September of 2006, Frank Chester became Chief Human Resources Officer, replacing Nicklos, and thus, became Dr. Mosley's supervisor. From approximately October of 2006 to July of 2007, Chester cites numerous instances in which he claims Dr. Mosley's performance was substandard. Dr. Mosley, on the other hand, has a vastly different perception of the incidents upon which Chester graded his performance as substandard. In some of the instances, Dr. Mosley contends he actually assisted in resolving the problem, rather than created the problem, and accuses Chester and the School District of mischaracterizing emails and memorandums detailing outstanding issues that Dr. Mosley's department needed to resolve. The evidence of record is conflicting on many of these factual issues regarding Dr. Mosley's performance and requires credibility determinations. Thus, the Court may not and will not attempt to resolve them on summary judgment.*fn7 In any event, the factual issue of whether Dr. Mosley's performance was unsatisfactory is not material to the disposition of the pending summary judgment motions.*fn8
Of particular relevance to Plaintiff's whistleblower claim is the following incident that occurred in December of 2006, and carried over into the first part of 2007. On December 5, 2006, Plaintiff extended an offer of employment to James McCrea for the Electrical Systems Administrator position, based on recommendations of two School District managers. (Memorandum dated 2/22/07 to Jody Spolar from Plaintiff (Pl.'s Dep. Ex. 11).) According to Plaintiff, he gave Mr. McCrea the yellow professional application to complete because McCrea was a new administrator, and historically, the professional application was used for administrators. (Id.) That application did not ask McCrea to self-report any prior criminal history. As it turned out, Mr. McCrea had a prior criminal history, which was not discovered until the criminal history background check had been completed, by which time McCrea was already working for the School District. McCrea subsequently resigned. Frank Chester, Dr. Mosley's supervisor, felt that Dr. Mosley provided the incorrect application packet to Mr. McCrea*fn9 and failed to conduct the criminal background check in a timely fashion. (Memorandum dated 3/6/07 from Chester to Dr. Mosley's personnel file (Pl.'s Dep. Ex. 12).)*fn10
Consequently, Chester placed a memorandum in Dr. Mosley's personnel file on March 6, 2007, reflecting his alleged mishandling of the situation, and the need for attention to detail and follow-through. (Id.)
In response to Chester's March 6, 2007 memorandum, Dr. Mosley sent a rebuttal letter to Chester on March 19, 2007, to inform the School District about his belief that he was being criticized and blamed for failing to obtain the appropriate background checks in December 2006, and alleged that other employees failed to obtain timely background checks for Chester and Superintendant Roosevelt.*fn11 (Letter dated 3/19/07 from Dr. Mosley to Frank Chester (Pl. Dep. Ex. 13).) Subsequently, Chester investigated Dr. Mosley's allegations, filed a background check report for himself, and confirmed that Superintendant Roosevelt's background checks were already completed and located in his personnel file. (Chester Dep. at 13-14, 21-22, 29.)
Thereafter, on April 3, 2007, Chester completed an Employee Performance Appraisal System Employee Improvement Plan for Dr. Mosley ("EIP"). (Pl.'s Dep. Ex. 16.) The EIP identifies the following areas of concern relating to performance: "Planning and implementation, timeliness, problem solving, decision making". (Id.) With regard to improvement strategies and expected areas of improvement, the EIP states "see attached", however, there is nothing attached to the copy of the EIP included in the record. On April 12 and 19, 2007, Dr. Mosley and Chester met to discuss the items identified on the form entitled "Action Items for Recruiting and Staffing" (Pl.'s Dep. Ex. 19), which focused on tasks, expected outcome, timeframe for completion and results. On April 24, 2007, Plaintiff was asked to review and sign a copy of the EIP. (Pl.'s Dep. Ex. 20 & 21.) In response, Dr. Mosley emailed Chester on April 26, 2007 requesting a meeting with him to discuss the implications of being placed on an EIP, and that a representative of the Pittsburgh Administrators Association ("PAA") be present at the meeting. (Id.) A meeting was subsequently held between Chester, Dr. Mosley and Vincent M. Carr, the PAA representative in April of 2007. Although there is some disagreement over what was said at the meeting, the parties do appear to agree that Chester indicated at the meeting that Dr. Mosley was not on an improvement plan and that he was not in any danger of being terminated. (Pl.'s Dep. at 65; Affidavit of Vincent M. Carr dated 5/2/07 ("Carr Aff."), ¶ 6 (Pl.'s App. Ex. 5 (Doc. No. 68-5)); Chester Dep. at 94-98; Supplemental Declaration of Frank Chester ("Chester Supp. Decl."), ¶ 4 (Defs.' Supp. App. II, Tab H (Doc. Non. 71-2)).)
In a Memorandum dated May 25, 2007, Chester again confirmed with Dr. Mosley that the Recruiting and Staffing Department was not operating at an acceptable level, and that he needed to focus on the critical areas highlighted in a three-month project plan. (Pl.'s Dep. Ex. 24.) In another Memorandum dated June 20, 2007, Chester informed Dr. Mosley of his decision to implement a number of changes in the organization of the Recruiting and Staffing Department. (Pl.'s Dep. Ex. 26.) One of the changes that Chester implemented was a realignment of personnel, which relieved Dr. Mosley of all responsibility for Board/Personnel related areas. (Id.)
Sometime after the June 20, 2006 Memorandum but prior to August 17, 2007, Chester recommended Plaintiff's termination to the Superintendant based upon continuing problems they were experiencing in the staffing and customer service areas, inaccuracies in records and information provided to the Board, union grievances, and summer school staffing, all of which he attributed to Dr. Mosley.*fn12 (Chester Dep. at 117-121.) The Superintendant concurred with Chester's observations about Plaintiff's unsatisfactory performance. (Chester Dep. at 115; Deposition of Mark Roosevelt dated 3/30/09 ("Roosevelt Dep.") at 35-36, 42-43, 45-46 (Pl.'s App. 7 (Doc. No. 68-7)).) Consequently, on August 17, 2007, Superintendant Roosevelt signed a letter written to Dr. Mosley, in which he advises Dr. Mosley that he is recommending to the Board that he be dismissed as Director of Recruiting and Staffing and his employment terminated based on unsatisfactory performance. (Pl.'s Dep. Ex. 31; Roosevelt Dep. at 50.) Superintendant Roosevelt further advises Dr. Mosley that his recommendation was being made pursuant to Section 17-1704.1-B of the Pennsylvania Public School Code as it relates to Commonwealth Partnership Districts. (Pl.'s Dep. Ex. 31.) In support of his recommendation, Superintendant Roosevelt points to Dr. Mosley's overall performance, specifically:
Failure to adequately interact with and supervise [his] staff Poor decision making and problem solving that has negatively impacted grievances, employee relations issues, and credibility with the Board Numerous deficiencies in the performance of [his] duties and the administration of [his] department relating to the summer school program Lack of detail and analysis of issues (Id.) The August 17, 2007 letter further states:
Many of these matters were reviewed by Lee B. Nicklos in her review of your performance in June, 2006 with no demonstrable improvement on your part. Dr. John Thompson noted similar issues in his letter to you in December, 2003, that ultimately led to your demotion and placement in this position. Nothing in your performance changed materially for the better. (Id.) Finally, Superintendant Roosevelt indicates that the Board will consider his recommendation on August 22, 2007, and if the Board adopts his recommendation, the action will be final. (Id.) Although the letter is dated August 17, 2007, it was postmarked August 20, 2007 (id.), and was received by Dr. Mosley on the evening of August 21, 2007 (Pl.'s Dep. at 89-90; Pl.'s Aff., ¶51).
Dr. Mosley did not go to work on August 22, 2007. (Pl.'s Dep. at 93.) Prior to the Board meeting, Dr. Mosley made telephone calls from home to discuss the August 17, 2007 letter with the following individuals: His attorney, Avrum Levicoff; three members of the Board-Mark Brently, Tom Sumpter, and Randall Taylor; PAA Representative Vince Carr; PAA legal counsel Susan Halstal; and Sharon Ward, who handled fringe benefits information at the School District. (Pl. Dep. at 93-96; Pl.'s Dep. Ex. 34.) Plaintiff's counsel, Avrum Levicoff (who represented Dr. Mosley in a prior School District matter), faxed a letter to the Superintendant on August 22, 2007, prior to the Board meeting, claiming that the Superintendant's position was unfounded. (Defs.' App. Tab F (Doc. No. 45-7).) Mr. Levicoff's letter indicates that he copied the Board President, William Isler, on the letter. (Id.)
Prior to the Board meeting, Plaintiff was also able to talk with Board members Mark Brently and Tom Sumpter, during which he inquired if they knew what was going on. (Pl.'s Dep. at 94-95.) According to Dr. Mosley, neither Board member was aware of what was going on with Dr. Mosley's termination. (Pl.'s Dep. at 95.) Dr. Mosely also spoke with Sharon Ward regarding the number of benefit days that he had accrued, in the event he was going to be terminated. (Pl.'s Dep. at 95.) In addition, Plaintiff spoke with Vince Carr to find out what rights he had from the union's perspective. (Pl.'s Dep. at 96.) Carr referred Plaintiff to PAA legal counsel, Susan Halstal, who informed Dr. Mosley that he had some legal coverage. (Id.)
On August 23, 2007, Dr. Mosley reported to work and shortly thereafter, security guards appeared at his office to escort him from the building. (Pl.'s Dep. at 97-98; Pl.'s Dep. Ex. 34.)
Also on that date, Chester wrote to Dr. Mosley to inform him that the Board voted to dismiss him from his position effective August 23, 2007. (Pl.'s Dep. Ex. 32.) The letter does not mention any rights, procedures, or appeals available to Plaintiff.*fn13
Subsequently, Dr. Mosley instituted the present action on September 21, 2007, in the Allegheny County Court of Common Pleas, alleging violations of state law. On November 5, 2007, Mosley filed a Second Amended Complaint, adding a Section 1983 claim. Consequently, Defendants removed the case on November 15, 2007 to this Court based on 28 U.S.C. §§1441(a) and 1331. After Plaintiff's motion for remand and Defendants' motion to dismiss were denied, discovery ensued and after completion, the parties have now moved for summary judgment. The motions have been fully briefed and are ripe for disposition.
II. STANDARD OF REVIEW -- CROSS-MOTIONS FOR SUMMARY JUDGMENT
Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving party, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56 (c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
More specifically, the moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. Once that burden has been met, the nonmoving party must set forth "specific facts showing that there is a genuine issue for trial" or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis added by Matsushita Court). An issue is genuine only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When the parties have filed cross-motions for summary judgment, as in this case, the summary judgment standard remains the same. Transguard Ins. Co. of Am., Inc. v. Hinchey, 464 F.Supp.2d 425, 430 (M.D.Pa. 2006). "When confronted with cross-motions for summary judgment, . . . 'the court must rule on each party's motion on an individual and separate basis, determining, for each side, whether a judgment may be entered in accordance with the summary judgment standard.'" Id. (quoting Marciniak v. Prudential Fin. Ins. Co. of Am., 184 F. App'x. 266, 270 (3d Cir. 2006)). "If review of [the] cross-motions reveals no genuine issue of material fact, then judgment may be entered in favor of the party deserving of judgment in light of the law and undisputed facts." Id. (citing Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998)).
The School District has moved for summary judgment on all counts except Count V -- Mandamus regarding unpaid accrued fringe benefits. Dr. Mosley has filed a cross-motion for summary judgment as to Counts III and IV, and requests a determination by the Court that the 2007 amendment to the Pennsylvania Public School Code, 24 Pa. Stat. Ann. 17-1704.1-B(a)-(e), is facially unconstitutional and unconstitutional as applied. Because the resolution of the constitutional issues is dispositive of all the counts upon which the parties have moved for summary judgment except for the Pennsylvania Whistleblower Law claim under Count VI, the Court turns first to the constitutional arguments.
A. Dr. Mosley's Constitutional Claims
Dr. Mosley submits that the School District terminated his employment without affording him any process, relying on 24 Pa. Stat. Ann. § 17-1704.1-B, which authorizes Commonwealth Partnership School Districts, of which the City of Pittsburgh School District is one, to summarily terminate the employment of "management employees" without affording such employees the due process protections previously mandated by the due process clauses of both the United States and Pennsylvania Constitutions, and more explicitly by the provisions of the Pennsylvania Public School Code.
Section 17-1704.1-B provides:
(a) The superintendant of a school district shall have the authority to recommend to the board of school directors dismissal of a management employe for unsatisfactory performance or wilful misconduct.
(b) The board of school directors shall consider a recommendation of the superintendent for dismissal of a management employe. A recommendation for dismissal of a management employe shall be subject to the provisions of [24 Pa. Stat. Ann. § 5-508].*fn14
(c) The action of the board of school directors in dismissing an employe under this article shall not be deemed an adjudication under 2 Pa. C.S. Ch. 5 Subch. A (relating to practice and procedure of Commonwealth agencies), nor shall it be subject to a hearing under [24 Pa.Stat.Ann. §§ 5-514, 11-1125.1, & 11-1122].
(d) For the purposes of this section:
(i) The term "management employe" shall mean an employe who holds a management position above the level of first level supervisor. This term shall not include a principal, assistant principal, vice principal or any ...