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William Merrell v. Chartiers Valley School District

August 29, 2012

WILLIAM MERRELL
v.
CHARTIERS VALLEY SCHOOL DISTRICT, BERNARD A. SULKOWSKI, MICHAEL L. BONACCI, THOMAS HELBIG, MICHAEL DEMPSTER, JEFF CHOURA, JOHN FRANJIONE, PATRICIA FREY, BRIDGET KELLY, KATHLEEN LEWIS, BETH MCINTRYE, MARY LOU PETRONSKY, APPELLANTS



The opinion of the court was delivered by: Bonnie Brigance Leadbetter, Judge

Argued: June 4, 2012

BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION BY JUDGE LEADBETTER

The Chartiers Valley School District (School District) appeals from the judgment entered by the Court of Common Pleas of Allegheny County in favor of William Merrell (Merrell) and against the School District after a non-jury trial. The court found that the School District violated Section 7104(a) of the Act, commonly known as the Veterans' Preference Act, 51 Pa. C.S. § 7104(a), by failing to give Merrell veteran's preference in processing his application for a teacher position. The court ordered the School District to place Merrell in a teacher position and to make him whole for lost wages and benefits. The School District argues that Merrell was not entitled to veteran's preference because he was not qualified for the position. It further argues that Merrell failed to establish that its hiring process was flawed and antagonistic to the precepts of the Act. The School District also challenges the court's award of damages to Merrell. After careful review of the record and relevant case law, we affirm.

I.

In July 1999, Merrell commenced the instant action by filing a complaint in equity against the School District and its officials. In the amended complaint, Merrell alleged that he was a veteran of the United States Air Force and applied for a full-time high school social studies teacher position with the School District in 1997 and 1999. He averred that he was qualified for the position but was not hired due to the School District's failure to give him the veteran's preference mandated by the Act. Section 7104(a) of the Act provides that "[w]henever any soldier[*fn1 ] possesses the requisite qualifications and is eligible to appointment to or promotion in a public position, where no such civil service examination is required, the appointing power in making an appointment or promotion to a public position shall give preference to such soldier." (Emphasis added.)*fn2 Merrell asked the trial court to order the School District to hire him as a social studies teacher as of the 1997-1998 school year and to pay him backpay and lost benefits.

The trial court sustained the School District's preliminary objections and dismissed the action as untimely. The court concluded that the School District's April 28, 1999 letter informing him of its decision to hire another applicant was an adjudication from which an appeal should have been filed within 30 days. This Court reversed the dismissal on the basis that the trial court should have permitted Merrell to file an appeal nunc pro tunc. In Merrell v. Chartiers Valley School District, 579 Pa. 97, 855 A.2d 713 (2004), the Pennsylvania Supreme Court affirmed this Court's decision on different grounds. The Court determined that the School District's April 28 letter was not an adjudication subject to the 30-day appeal period. The Court classified veterans' preferences as "supplemental point preferences and tie-breaking preferences," as opposed to "absolute preferences." Id. at 108, 855 A.2d at 719. The Court stated: "Public employers are not required to hire preference eligible veterans if they do not believe the candidate is qualified or possesses the requisite experience. Without an absolute preference in employment, Merrell does not have a property right to preference in employment such as to render the letter of April 28th an adjudication." Id. at 110, 855 A.2d at 720-21 (footnote omitted).

In support, the Merrell Court relied on Brickhouse v. Spring-Ford Area School District, 540 Pa. 176, 183-84, 656 A.2d 483, 486-87 (1995), which held:

Veterans who seek to take advantage of the act must be able to accomplish "proper performance of public duties." That is, a veteran seeking to take advantage of the preference mandated by the act must be able to demonstrate his ability to perform the job at the level of skill and with the expertise demanded by the employer. .

We are mindful that a public employer might be able to formulate qualifications for a job in such a way as to defeat the veterans' preference required by the act. When such formulations are undertaken in bad faith without regard to legitimate need, they must fail, but determination of the legitimacy of the employer's formulation of hiring criteria can be done only on a case by case basis.

The Merrell Court stated that no determination had been made by the trial court in the preliminary objections stage as to whether Merrell possessed the appropriate qualifications or that the School District attempted to circumvent the Act. The Court observed, however: "It appears that Merrell was able to advance only to level four of the five-step hiring process. He was not among, as nearly as we can determine from the scant record before this Court, the final applicants under consideration." Merrell, 579 Pa. at 110, 855 A.2d at 721. The Court further noted: "In the instant matter, the preference had not yet ripened because Merrell did not succeed in reaching the final level of consideration. The applicants remaining after the close of the fourth stage, the point at which Merrell was removed from consideration, were those considered qualified for the open teaching position." Id. at 112, 855 A.2d. at 721-22. The Court accordingly remanded the matter to the trial court to give Merrell "the opportunity to demonstrate his qualifications and, if he is able, show that there was a flaw in the process that precluded the ripening of his interest [by reaching the final step of being selected as one of three applicants referred to the School Board], antagonistic to precepts of the Veterans Preference Act." Id. at 112, 855 A.2d at 722.

II.

On remand, the parties agreed to bifurcate the case and hold separate bench trials on liability and damages.*fn3 At a bench trial held on liability in April 2010, the following evidence was presented. In 1996, the School District adopted an interview process developed by Development Dimension International (DDI), an industrial personnel firm located in the School District, which utilizes final selection criteria, known as a targeted selection, and a rating system, known as STAR (Situation, Task, Action and Result). Two trained interviewers fill out questionnaire sheets on twelve qualities that a good teacher must possess, which were formulated by DDI based on information obtained from the School District's teachers and administrators.*fn4 The interviewers also rate applicants' qualities on the following scale:

5 -- Much more than acceptable (Significantly exceeds criteria for successful job performance) 4 -- More than acceptable (Exceeds criteria for successful job performance) 3 -- Acceptable (Meets criteria for successful job performance) 2 -- Less than acceptable (Generally does not meet criteria for successful job performance) 1 -- Much less than acceptable (Significantly below criteria for successful job performance)

Clarifying ratings:

N -- No opportunity to observe or assess

W -- Weak/Want more data (for example, 4W) 5H -- Too high

Reproduced Record (R.R.) at 683a.

The School District's hiring process begins with review of written applications. All applicants eligible for a position are given a telephone interview. Those receiving a rating of 3 or higher in the telephone interview move to face-to-face targeted selection interviews by two interviewers. After interviews, the two interviewers meet to discuss their ratings given to each applicant and arrive at a consensus rating on each of the twelve qualities and an overall consensus rating. Three candidates with highest ratings per available position are referred to the School Board after the high school principal ranks them.*fn5 The former high school principal, Michael Bonacci, testified that in ranking the three selected applicants in 1997, he considered what "they can bring more than just teaching," such as an ability to coach sports teams. Notes of Testimony (N.T.) at 606; R.R. at 1183a.

Merrell retired from the United States Air Force in 1995 with the rank of senior master sergeant after serving for more than twenty years. He holds a B.A. degree in legal studies from the University of Pittsburgh, a M.A. degree in geography and regional planning from the California University of Pennsylvania, a

M.A degree in secondary education from Duquesne University, and a Pennsylvania teaching certificate for social studies from Duquesne University. He was a participant in the "Troops to Teachers" program administered by the United States Department of Defense, under which the Department pays a school district hiring a veteran 50% of his or her basic salary up to $25,000 in the first ...


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