University of Pittsburgh of the Commonwealth System of Higher Education v. Department of Labor & Industry

DISSENTING OPINION BY

Judge McGINLEY.

I respectfully dissent to the majority’s conclusion that the letters written by the outside evaluators were “letters of reference” and not “performance evaluations” *690under the act commonly referred to as the Personnel Files Act (Act).1 As the majority states, an employee may inspect a performance evaluation as part of his personnel file but does not have the right to inspect a letter of reference.

The University of Pittsburgh’s letter requested:

[The external referees] compare him [Whitehead] with outstanding persons of comparable rank at other institutions and comment on whether he would be likely to achieve the rank of full professor at your institution.... For your reference and convenience, I have enclosed a package which includes a curriculum vitae, a list of research papers, a research statement and copies of the candidate’s ten best papers along with his comments. This material was agreed by the Reading Committee and the candidate and provided by him. If you need anything else which you feel is important for this evaluation, please contact me and we will make a copy available.

Letter from John Chadham, Chair, Department of Mathematics to Professor Ron Read at 1; Reproduced Record at 327a.

In addition to the documents listed in the letter, the University of Pittsburgh submitted copies of Earl G. Whitehead, Jr.’s (Whitehead) teaching evaluations with Whitehead’s approval and suggested that his instructional materials be submitted to the outside referees.

The referees were asked to evaluate Whitehead in comparison to other scholars in his field to determine whether he deserved to be promoted to full professor. The Department of Labor and Industry, Bureau of Labor Law Compliance (Bureau) found as a fact that the “University’s decision to promote is partially based on the external referees’ judgment of the candidate’s reputation in the field.” Adjudication, June 16, 2005, Finding of Fact No. 6 at 4. The Bureau also found that Dr. John Chadham, the Department of Mathematics Chair, advised Whitehead that several of the letters from outside referees provided negative information about Whitehead.

I agree with the Bureau’s determination that the external referee letters constituted performance evaluations because they were a required part of the University of Pittsburgh’s promotion criteria in that the decision to promote was partially based upon the external referees’ evaluations.

In Pennsylvania State University v. Department of Labor and Industry, Bureau of Labor Standards, this Court addressed whether a person who had been denied tenure at Pennsylvania State University (Penn State) could examine written reports prepared by faculty members on peer review committees. The Hearing Examiner determined that the peer review committee reports were performance evaluations subject to inspection under the Act. Penn State petitioned for review with this Court and contended that the peer review committee reports were letters of reference not subject to inspection. Penn State based this argument on the fact that the faculty members voluntarily served on the peer review committees and were not required to do so as a condition of employment and that the faculty members on the peer review committee had no supervisory responsibility over the tenure candidates. Penn State, 536 A.2d at 853-854.

This Court affirmed:
The peer review committee reports in this case were not prepared at the request of the tenure candidate, but were generated as a result of Petitioner’s
*691[Penn State] procedures and regulations. The reports were prepared by a designated group of tenured members of Petitioner’s [Penn State] faculty over which Respondents had no control or input. Given these considerations, Petitioner’s [Penn State] argument that the peer review reports are analogous to letters of reference is without merit.
The fact that the faculty serving on the committees did not possess supervisory authority over the tenure candidates is not dispositive. Rather, the nature of the peer review reports is controlling. Because these reports evaluate tenure candidates in the areas of teaching ability, research, scholarly performance, and service to the university, public, and profession, we agree with the Bureau’s determination that these reports constituted performance evaluations....

Penn State, 536 A.2d at 855.

Clearly, the present case differs from Penn State in that Whitehead had some input into the identity of the external referees and the external referees were not faculty members of the same institution as Whitehead. However, the external referee letters were undeniably evaluations of Whitehead’s research, publications, and teaching. These evaluations were critical factors in determining whether Whitehead would become a full professor. I agree with the Bureau that the external referee letters constituted performance evaluations which Whitehead could review. Accordingly, I would affirm.

Judge FRIEDMAN joins this dissenting opinion.

. Act of November 26, 1978, P.L. 1212, as amended, 43 P.S. §§ 1321-1324. The Act is also referred to as the Personnel Files Inspection Act.