Fisler v. State System of Higher Education
78 A.3d 30
Pa. Commw. Ct.2013Background
- Fisler began at the University in 2007 in the Development Office as a major gifts officer and was later named Associate Vice President for Development and Campaign Planning.
- A 2010 reorganization reduced Fisler’s responsibilities; Navoney was elevated, Huiatt redefined Fisler’s duties, and Fisler became Senior Advisor and Senior AVP for Special Initiatives.
- Huiatt and President Armenti sought to improve fundraising performance; Fisler’s portfolio and activity remained underperforming for over a year.
- On June 8, 2011 a pre-disciplinary conference was held; on June 10, 2011 Fisler received a 5-day suspension for ongoing poor performance and was given specific post‑suspension goals.
- Despite warnings and a suspension, Fisler’s performance did not improve; by August 2011 the University terminated him for poor performance.
- Fisler appealed the suspension and discharge; hearings occurred in 2011; the Chancellor adopted the hearing officer’s proposed adjudication with one finding struck; the Chancellor affirmed just cause and the discharge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Due process in hearing officer substitution | Fisler argues substitution of a new hearing officer violated due process because the writer did not hear live testimony. | University argues Peak-based safeguards allow substitution; ultimate fact finder is the Chancellor, not the hearing officer. | No due process violation; ultimate fact finder may rely on record with safeguards under Peak. |
| Substantial evidence supporting findings | Fisler contends many findings lack substantial support and credit University witnesses over his. | University contends findings are supported by evidence; credibility is within the fact-finder’s discretion. | Substantial evidence supports the findings; credibility and weight are for the fact-finder. |
| Just cause for suspension and discharge | Fisler asserts lack of just cause and pretext for dismissal. | University maintains ongoing poor performance with warnings constitutes just cause. | University had just cause to suspend and discharge for prolonged inadequate performance. |
Key Cases Cited
- Cavanaugh v. Fayette County Zoning Hearing Board, 700 A.2d 1353 (Pa.Cmwlth.1997) (due process and credibility in administrative adjudication; living testimony not always required)
- R. v. Dep't of Pub. Welfare, 535 Pa. 440 (Pa. 1994) (administrative due process safeguards; Peak framework)
- Gow v. Dep’t of Educ., 763 A.2d 528 (Pa.Cmwlth.2000) (replacement of hearing officer does not violate due process if impartial and testable record exists)
- Peak v. Unemployment Compensation Bd. of Review, 509 Pa. 267 (Pa. 1985) (standard: decision must be reviewable under substantial evidence)
- Wasiolek v. City of Philadelphia, 146 Pa.Cmwlth. 582 (Pa.Cmwlth.1992) (note on administrative decisions and due process guidance)
- Grenell v. State Civil Service Comm'n, 923 A.2d 533 (Pa.Cmwlth.2007) (capricious disregard of overwhelming evidence requires explanation)
- Krebs Chrysler-Plymouth, Inc. v. State Bd. of Vehicle Mfrs., Dealers & Salespersons, 655 A.2d 190 (Pa.Cmwlth.1995) (scope of review for administrative findings; not all allegations must be addressed)
- Bumba v. Pa. State Sys. of Higher Educ., 734 A.2d 36 (Pa.Cmwlth.1999) (MPP is merit-based but flexible; not to stifle managerial discretion)