COMMONWEALTH OF PENNSYLVANIA

Deniece N. Davis : State Civil Service Commission

:

v. :

:

State Correctional Institution at :

Albion, Department of Corrections : Appeal No. 29751

Anthony H. Rodriques Laura J. Neal

Attorney for Appellant Attorney for Appointing Authority

ADJUDICATION

This is an appeal by Deniece N. Davis challenging her suspension

pending investigation and subsequent removal from regular Corrections Officer 1

employment with the State Correctional Institution at Albion, Department of

Corrections. A hearing was held on January 8, 2019, at the Erie Community

Corrections Center, in Erie, Pennsylvania before Hearing Examiner David Zurn.

The Commissioners have reviewed the Notes of Testimony and

exhibits introduced at the hearing, as well as the post-hearing Briefs submitted by

the parties. The issues before the Commission are: 1) whether the appointing

authority had just cause to remove1 appellant from her position; and 2) whether the

appointing authority removed appellant for reasons motivated by discrimination.

1 When an appointing authority suspends an employee pending investigation and subsequently removes the employee,

the period of suspension will be deemed part of the removal action. Woods v. State Civil Service Commission (New

Castle Youth Development Center, Department of Public Welfare), 865 A.2d 272, 274 n. 3 (Pa. Commw. Ct. 2004);

4 Pa. Code § 101.21(b)(2). Appellant having been suspended, effective September 13, 2017, pending investigation,

and having remained on suspension until her removal by letter dated June 28, 2018, we consider appellant’s removal,

effective as of the date of suspension, to be the sole personnel action to be reviewed through this appeal.

2

FINDINGS OF FACT

1. By letter dated September 15, 2017, appellant was

advised she had been suspended, effective

September 13, 2017, pending the investigation of a

possible Governor’s Code of Conduct violation

based on criminal charges filed against appellant.

Comm. Ex. A.

2. By letter dated June 28, 2018, appellant was

removed from her position as a Corrections Officer

1, regular status, with the State Correctional

Institution at Albion (hereinafter “SCI”), effective

June 26, 2018. Comm. Ex. C.

3. The Department of Corrections (hereinafter

“appointing authority”) charged appellant with

violating Part III of the Governor’s Code of

Conduct 1980-18, Amended2 (hereinafter

“Governor’s Code of Conduct”), Section B(10) of

its Code of Ethics, and Section 11 of Policy 4.1.1,

which is its workplace violence policy. The

2 The June 28, 2018 removal letter refers to Governor’s Code of Conduct 1990-18, Amended, whereas the policy

entered into evidence is titled Governor’s Code of Conduct 1980-18, Amended. Comm. Ex. C; AA Ex. 21 (emphasis

added). The correct title is Governor’s Code of Conduct 1980-18. Therefore, it appears the reference in the removal

letter is a typographical error.

3

appointing authority indicated the charges were

based on the following conduct:

…on May 15, 2018, you were

convicted and sentenced in

Pennsylvania Court of Common Pleas,

Erie County, to two (2) criminal

charges, Simple Assault (M2) and

Harassment (S), both of which have a

direct nexus to your work at SCI

Albion, arising from an initial,

aggressive verbal altercation with a co-

worker, Ms. Cheek, on September 11,

2017, in the lobby of SCI-Albion, and

which ultimately led to a second

altercation on September 12, 2017,

with Ms. Cheek in the parking lot of a

local Walmart store…An external

investigation of the second altercation,

on September 12, 2017, following the

filing of criminal charges, resulted in

the criminal conviction in the court of

law. Furthermore, SCI-Albion’s

investigation of the September 11,

2017, altercation on state property

substantiated the fact that you had

acted unprofessionally with your

coworker, created a hostile work

environment, and violated Department

policy governing workplace violence.

Comm. Ex. C.

4. In the June 28, 2018 letter, the appointing authority

noted the charge of violating Part III of the

Governor’s Code of Conduct standing alone would

warrant removal. Comm. Ex. C.

4

5. The appeal was properly raised before this

Commission and was heard under Sections 951(a)

and 951(b) of the Civil Service Act, as amended.

6. Appellant was hired by the appointing authority in

2008 as a Corrections Officer Trainee. N.T. p. 208.

7. Correction Officer Trainees are promoted to the

position of Correction Officer 1 after a one-year

period. N.T. pp. 208-209.

8. Correction Officer Trainees receive extensive

training, including a week-long orientation, during

which they receive training on the appointing

authority’s policies and procedures and the

Governor’s Code of Conduct. N.T. pp. 209-210.

9. During orientation, employees initial a checklist

verifying they reviewed the appointing authority’s

policies and procedures, including the appointing

authority’s Code of Ethics and the Governor’s Code

of Conduct. N.T. pp. 209-210.

5

10. On August 4, 2008, appellant completed the new

employee orientation checklist confirming she

received training on the Governor’s Code of

Conduct and the appointing authority’s Code of

Ethics. AA Ex. 15.

11. On August 4, 2008, appellant signed a receipt

indicating she received, read, and agreed to abide by

a copy of the appointing authority’s pocket-sized

Code of Ethics Handbook. AA Ex. 17.

12. Corrections officers receive training on

interpersonal communication skills and crisis

intervention, as well as other trainings on effective

communication. N.T. pp. 328-329.

13. Corrections officers have daily interactions with

staff and inmates. If a corrections officer fails to

communicate effectively and professionally during

such interactions, it hinders the safe operation of the

facility. N.T. pp. 326-328; AA Ex. 28.

14. On September 11, 2017, appellant was working her

bid post position in the SCI’s visitors lobby. N.T.

pp. 125-126.

6

15. On September 11, 2017 at approximately 2:15 p.m.,

appellant argued loudly with Correction

Counselor 2 Carolyn Cheek in the SCI’s visitors

lobby. During the argument, appellant repeatedly

referred to Cheek as “bitch” and used the expletive

“mother fuckers.” N.T. pp. 58-59, 104.

16. The September 11, 2017 argument occurred in front

of visitors and other coworkers. N.T. pp. 84, 88-90,

96, 98, 158-159, 164-166; AA Ex. 6.

17. On September 12, 2017, appellant was temporarily

removed from her bid post position pending the

outcome of the investigation into the September 11,

2017 incident. N.T. pp. 154-157, 320-321; AA Ex.

13.

18. On September 12, 2017, appellant cut in front of a

vehicle driven by Cheek, exited her car, came up to

Cheek’s window, which was halfway open, and

swung an object at Cheek. Cheek pushed her door

open to block appellant and ran. Appellant chased

after Cheek as she ran out of the parking lot, across

the intersection and into a yard. This occurred in

the parking lot of the Walmart on Elm Street in Erie,

Pennsylvania. N.T. pp. 20, 28, 52-53, 55, 63.

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19. On September 13, 2017, appellant was arrested and

formally charged based on the September 12, 2017

incident at the Walmart. N.T. pp. 35-36; AA Ex. 4.

20. On March 4, 2018, a non-jury trial was held

regarding the criminal charges for the

September 12, 2017 incident at the Walmart, and

appellant was convicted of Simple Assault, graded

as a misdemeanor of the second degree, and

Harassment, graded as a summary offense. N.T. p.

39; AA Ex. 5.

21. By letter dated May 15, 2018, the appointing

authority notified appellant that a pre-disciplinary

conference (hereinafter “PDC”) was scheduled for

May 25, 2018. AA Ex. 23.

22. Appellant attended the PDC with her union

representative. N.T. p. 246.

23. When determining the level of discipline to be

imposed, aggravating and mitigating circumstances

are reviewed, to include employee performance

reviews (hereinafter “EPR”) and prior disciplines.

N.T. pp. 296-297, 312-313.

8

24. On her EPR for rating period August 2016 to

August 2017, appellant received an overall rating of

needs improvement based on her lack of

professionalism, ineffective communication, and

absenteeism. N.T. pp. 143-146; AA Ex. 11.

25. On June 13, 2017, a written reprimand was issued

to appellant for violating Section B(10) of the

appointing authority’s Code of Ethics because she

created a hostile work environment. N.T. pp. 135-

139; AA Ex. 12.

26. In December 2016, appellant was counseled for her

lack of professionalism toward a coworker. AA Ex.

12.

27. In September 2016, appellant was counseled for her

lack of professionalism toward a Lieutenant. AA

Ex. 12.

28. Cheek received overall ratings of commendable on

her EPRs for rating periods June 2015 to June 2016

and June 2016 to June 2017. AA Exs. 29, 30.

29. On her EPR for rating period June 2016 to June

2017, Cheek was commended for her quality of

work and for being a team player. AA Ex. 30.

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30. Cheek did not have any discipline in her personnel

file. N.T. p. 293.

31. Part III, Section 2 of the Governor’s Code of

Conduct provides:

As soon as practicable after an

employe has been formally charged

with criminal conduct related to his or

her employment with the

Commonwealth or which constitutes a

felony, such employe shall be

suspended without pay. If such charge

results in conviction in a court of law,

such employe shall be terminated.

AA Ex. 21 (p. 7).

32. Section B(10) of the appointing authority’s Code of

Ethics provides:

Employees are expected to treat their

peers, supervisors, and the general

public with respect and conduct

themselves properly and

professionally at all times;

unacceptable conduct or insolence will

not be tolerated.

AA Ex. 16 (p. 4).

33. Section 11(A)(1) of Policy 4.1.1 provides in

pertinent part:

All forms of violence, threatening

behavior, and/or harassment, which

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involve or affect employees of the

Department, are prohibited by this

policy. Violence, threats, harassment,

intimidation, and other behaviors that

are disruptive to the Department will

not be tolerated, regardless of

mistakes, ignorance, or other

extenuating circumstances…Violation

of this policy by Department

employees may lead to: the employee

being removed from the premises;

disciplinary action, up to and including

termination from employment; and/or

criminal charges.

AA Ex. 20 (p. 1) (emphasis in original).

34. Section 11(A)(2) of Policy 4.1.1 provides in

pertinent part:

Incidents of workplace violence may

occur either at or away from the

workplace. The determining factors in

assessing whether an incident

constitutes workplace violence are the

individuals involved and the

relationship of the action to the

workplace; the location of the incident;

and/or if the violence is as a result of

Commonwealth business.

AA Ex. 20 (p. 1)

11

DISCUSSION

The current appeal challenges the appointing authority’s decision to

remove appellant from regular status employment as a Corrections Officer 1. The

issues in the present appeal are: 1) whether the appointing authority established just

cause to remove appellant from her position; and 2) whether appellant has

established her removal was based on discrimination.

The appointing authority charged appellant with violating Part III of the

Governor’s Code of Conduct, Section B(10) of the Code of Ethics, and Section 11

of Policy 4.1.1, which is the workplace violence policy. See Finding of Fact 3.

Specifically, the appointing authority asserted appellant engaged in an aggressive

verbal altercation with a coworker on September 11, 2017, which led to a second

altercation on September 12, 2017. See Finding of Fact 3. As a result of the second

altercation, appellant was convicted of Simple Assault and Harassment. See Finding

of Fact 3.

In support of its charges, the appointing authority presented the

testimony of Patrolman Mark Schroeck, Corrections Counselor 2 Carolyn Cheek,

Corrections Officer 1 Giovanny Perez, Security Lieutenant Timothy Anderson,

Personnel Director Theresa Croll, and Major of the Guard Christopher Meure. In

support of her appeal, appellant testified on her own behalf. The evidence provided

by the parties has been reviewed by the Commission and is summarized below.

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Summary of Evidence Presented

Mark Schroeck is a Patrolman with the Erie Police Department. N.T.

p. 19. Schroeck stated he has held this position for five years. N.T. p. 20. Schroeck

testified he was working on September 12, 2017 when he was dispatched to the

Walmart on Elm Street in Erie, Pennsylvania, based on a report that a female was

being chased by another female, who had a knife in her hand. N.T. p. 20. Schroeck

stated the two females involved in the incident were Carolyn Cheek and the

appellant. N.T. pp. 21-22. Schroeck stated Cheek was the only party present when

he arrived at the Walmart. N.T. p. 22. Schroeck described Cheek as distraught and

upset. N.T. p. 23. Schroeck stated Cheek appeared to have been crying because she

had redness underneath her eyes. N.T. p. 23. Schroeck stated Cheek identified

appellant as the other person involved in the incident and provided a written witness

statement. N.T. pp. 29, 34-35; AA Ex. 2.

Schroeck testified he obtained video footage of the September 12, 2017

incident from Walmart. N.T. p. 24; AA Ex. 6. While watching this video during the

hearing regarding the instant appeal, Schroeck testified it depicts a car driven by

appellant cutting in front of a car driven by Cheek. N.T. p. 28. Schroeck stated the

video further shows appellant exiting her vehicle and going to the side door of

Cheek’s vehicle after which Cheek is seen running away. N.T. p. 28. Schroeck

further stated, while the video shows Cheek and appellant arguing, it is too blurry to

determine whether appellant possessed a knife. N.T. p. 44.

13

Schroeck testified he interviewed appellant about the Walmart incident

on September 13, 2017. N.T. p. 30. Schroeck stated during this interview, appellant

denied brandishing a knife, but admitted she had a stick in her hand during the

Walmart incident. N.T. pp. 46-47.

Schroeck testified appellant was arrested on September 13, 2017 and

formally charged. N.T. pp. 35-36; AA Ex. 4. Schroeck stated a non-jury trial was

held on March 4, 2018 and appellant was found guilty of Simple Assault and

Disorderly Conduct.3 N.T. p. 39. Schroeck explained the charge of Simple Assault

was graded as a misdemeanor of the second degree, which means the perpetrator

intentionally, knowingly or recklessly caused bodily injury to another. N.T. p. 38.

Schroeck stated the other charges against appellant were dismissed.4 N.T. p. 39.

Schroeck also noted appellant testified at the March 4, 2018 trial and played a video

of an incident between her and Cheek that occurred at the SCI. N.T. p. 41.

Carolyn Cheek is a Correction Counselor 2 at the SCI. N.T. pp. 50-51.

Cheek has been employed as a Corrections Counselor 2 for twenty-three years. N.T.

p. 52.

Cheek testified that, on September 12, 2017, she pulled into the

Walmart parking lot and a few minutes later a vehicle driven by appellant pulled up

next to her. N.T. p. 52. Cheek stated appellant exited the vehicle, came up to her

3 The Sentencing Order establishes appellant was convicted of Simple Assault, graded as a misdemeanor of the second

degree, and Harassment, graded as a summary offense. AA Ex. 5. Pursuant to the Sentencing Order, appellant was

not convicted of Disorderly Conduct. AA Ex. 5.

4 The information filed by the District Attorney’s office indicates appellant was charged with: two counts of Simple

Assault, which were both graded as misdemeanors of the second degree; two counts of Terroristic Threats, which

were graded as misdemeanors of the first degree; and two counts of Harassment, one of which was graded as a

summary offense and the other of which was graded as a misdemeanor of the third degree. AA Ex. 4.

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window, which was halfway open, and swung a knife.5 N.T. p. 52. Cheek stated

she pushed her door open to block appellant and ran. N.T. pp. 52-53. Cheek stated

appellant chased after her as she ran out of the parking lot, across the intersection

and into a yard. N.T. pp. 53, 55. Cheek stated there was a lady in the yard working

who she asked for help. N.T. pp. 53, 55. Cheek further stated she was fearful for

her life because she did not know what appellant was capable of doing and because

appellant chased her down the street with a knife. N.T. pp. 55-56, 64. Cheek also

noted appellant knew where she lived, which caused her to be afraid for herself and

her daughter. N.T. pp. 56, 65-66.

Cheek testified the September 12, 2017 incident occurred the day after

she and appellant had an argument at work. N.T. p. 56. Cheek stated she was

working the 7:30 a.m. to 4:30 p.m. shift on September 11, 2017. N.T. p. 59. Cheek

stated during her shift, she was directed to retrieve something for her supervisor

from the women’s locker room.6 N.T. pp. 58, 380. Cheek stated she was having

trouble locating the item; so, she attempted to call her supervisor from the officer’s

desk out front. N.T. p. 58. Cheek stated as she was trying to call her supervisor, she

kept hearing appellant say the word “bitch.”7 N.T. p. 58. Cheek stated, at first, she

questioned whether appellant was talking to her and she asked appellant, “Are you

talking to me?” N.T. p. 58. Cheek stated appellant replied, “Yes,” and then said,

“I’m tired of you old bitches thinking that y’all running stuff around here.” N.T. p.

58. Cheek stated she responded, “I don’t talk to you like that. Please stop referring

to me like that,” but appellant continued to badger her by calling her “all types of

5 Cheek recalled that, at the trial regarding this incident, appellant testified she pulled her windshield wiper off her

car and claimed this is what she had in her hand, not a knife. N.T. p. 63. 6 On redirect, Cheek explained she was retrieving a Fitbit for her supervisor that was to be given to another officer.

N.T. p. 381. Cheek stated she did not know whether her supervisor was selling the Fitbit to the officer. N.T. p. 381.

7 Cheek noted that, at the trial on the September 12, 2017 incident, appellant testified she started referring to Cheek

as “bitch” because she felt disrespected that Cheek did not ask her to use the phone. N.T. p. 62.

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bitches and mother fuckers,” at which point they began to argue. N.T. pp. 58-59.

Cheek stated this occurred around 2:15 p.m. N.T. p. 59. Cheek noted she never had

an argument with appellant prior to this, and she denied calling appellant a “bitch”

or “little girl” or touching appellant. N.T. pp. 68, 74-75.

Cheek testified she did not see appellant at work after the September 11,

2017 incident, nor did she see appellant at work on September 12, 2017. N.T. pp.

59-60. Cheek stated she left work early on September 12, 2017 because her blood

pressure was very elevated. N.T. p. 60. Cheek explained she was not feeling well

when she came to work because of the argument she had with appellant the day

before. N.T. pp. 60, 72-73. Cheek stated her supervisor took her to the nurse’s

station and the nurse checked her blood pressure twice and determined it was very

elevated. N.T. p. 60. Cheek stated she was instructed to go to the emergency room

or her doctor, and her supervisor drove her home around 11:30 a.m. N.T. pp. 60-61.

Cheek stated she then called the doctor and got an appointment that same day. N.T.

p. 60. Cheek stated her supervisor drove her to the appointment. N.T. p. 60.

Cheek stated she had another encounter with appellant on

December 19, 2018, which was approximately a month before the hearing on the

instant appeal. Cheek stated she and her daughter were at the same Walmart that

day, when appellant pulled up beside them, rolled down her window, screamed,

“Merry Christmas,” and then laughed before pulling out of the parking lot. N.T. pp.

56-57.

16

Giovanny Perez is currently a Corrections Officer 1 at the State

Correctional Institution in Cambridge Springs. N.T. p. 78. In September 2017,

Perez was working at the SCI. N.T. p. 78. Perez has been employed as a Corrections

Officer 1 for nineteen years. N.T. p. 77.

Perez testified that, on September 11, 2017, he was assigned to work

the ion scanner at the SCI’s main gate when he heard loud talking. N.T. pp. 78-80.

Perez stated he came out from the room in which the ion scanner was located to see

what was going on. N.T. p. 80. Perez stated appellant and Cheek were arguing;

however, when he watched the video of the incident, he could not recall at which

point the arguing started. N.T. pp. 86-92; AA Ex. 6. Perez stated when the argument

intensified, he walked away to get the Lieutenant, who is the supervisor, but the

Lieutenant did not come down to diffuse the situation. N.T. pp. 94-95, 106-107.

Perez stated before he went to get the Lieutenant, he asked appellant and Cheek to

stop, but they continued to argue. N.T. pp. 106-107. Perez stated both Cheek and

appellant were loud during the argument. N.T. p. 104. Perez also noted another

officer and visitor were in the area during the argument and can be seen on the video.

N.T. pp. 84, 88-90, 95-96, 98.

Additionally, Perez stated the video shows that Cheek was on the phone

and stayed behind the counter after she was done using the phone. N.T. pp. 102-

104. Perez further noted the desk where the phone was located was appellant’s post

at the time. N.T. pp. 104-105.

17

Timothy Anderson is a Security Lieutenant, which is a Corrections

Officer 3, at the SCI. N.T. pp. 111-112. Anderson has held the position of

Lieutenant for five years and worked in the security office for three of those years.

N.T. p. 112. Anderson has worked for the appointing authority for thirteen years.

N.T. pp. 112-113.

Anderson testified that, as a Security Lieutenant, he conducts internal

investigations of staff and inmate misconduct and tracks inmate activity, to include

gang activity and contraband, such as drugs and weapons. N.T. pp. 114-115.

Anderson stated when he conducts a fact-finding investigation regarding employee

misconduct, he reviews the employee’s past disciplines and EPRs, the video of the

incident, and interviews witnesses. N.T. pp. 117-119. Anderson stated once the

investigation is completed, a report is generated and forwarded to the administrative

staff, after which a PDC may be held. N.T. pp. 119-121.

Anderson testified he was responsible for investigating appellant’s

misconduct, which occurred on September 11 and 12, 2017. N.T. p. 116. Anderson

stated the investigation of September 11, 2017 incident was assigned to him by the

Major of the Guard. N.T. pp. 116-117. Anderson explained the September 12, 2017

incident came to light during the course of the investigation of the September 11,

2017 incident. N.T. p. 125.

18

Anderson stated he began his investigation of the September 11, 2017

incident by first obtaining the video of the September 11, 2017 incident to ensure

that it was not overwritten. N.T. p. 123; AA Ex. 6. Anderson stated he also

contacted Walmart and obtained video of the September 12, 2017 incident, which

Anderson believes is the same as the video obtained by Schroeck.8 N.T. pp. 128-

130, 133.

Regarding the September 11, 2017 incident, Anderson testified the

video depicts Cheek standing behind the desk in the visitors lobby, where appellant

was working. N.T. pp. 126, 175. Anderson stated it is his understanding that Cheek

remained behind the desk because she was waiting for a return call from her

supervisor regarding a non-work-related transaction between her supervisor and

another officer. N.T. pp. 175-177. Anderson explained employees typically use the

telephone, rather than their radios, for personal matters or professional matters that

are not immediate. N.T. pp. 183-184. Anderson further explained, the radio channel

needs to be open in the event that there is an emergency, which is why it is not used

for personal matters or professional matters that are not immediate. N.T. p. 184.

Anderson testified he also observed on the video that there were two

visitors present during the September 11, 2017 incident. N.T. pp. 158-159, 164-166;

AA Ex. 6. Anderson stated the appointing authority’s Code of Ethics and the

Governor’s Code of Conduct require employees to conduct themselves outside of

the facility in a manner that does not bring negative light to the facility or the

appointing authority. N.T. p. 129. Anderson explained the argument occurred in an

area where the public is present which is a violation of the appointing authority’s

8 The parties stipulated the Walmart video obtained by Anderson is the same as the video obtained by Schroeck. N.T.

pp. 133-134.

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Code of Ethics. N.T. pp. 166-167. Anderson noted, as a result of the September 11,

2017 incident, appellant was temporarily removed from her bid position at the

visitors lobby on September 12, 2017 and assigned to work a different post. N.T.

pp. 154-157; AA Ex. 13.

In addition to obtaining and reviewing the videos, Anderson stated he

interviewed and obtained statements from the witnesses and appellant. N.T. pp. 124,

148-149, 158; AA Ex. 8. Anderson noted he interviewed appellant on October 16,

2016.9 N.T. pp. 149-150. Anderson stated during this interview appellant indicated

she had a small ice scraper in her hand during the September 12, 2017 incident at

Walmart. N.T. p. 151.

Anderson testified that, during his investigation, he also reviewed

appellant’s prior discipline and EPRs. N.T. p. 134. Anderson stated appellant

previously received a written reprimand for creating a hostile work environment,

which was a violation of Section B(10) of the appointing authority’s Code of Ethics.

N.T. pp. 135-139; AA Exs. 9, 12. Regarding appellant’s EPRs, Anderson noted

appellant received an overall rating of satisfactory on her EPR for rating period

August 2015 to August 2016; however, she received a rating of needs improvement

in the area of work habits. N.T. pp. 140-142; AA Ex. 10. Anderson further noted

appellant received an overall rating of needs improvement on her EPR for rating

period August 2016 to August 2017 based on her lack of professionalism, ineffective

communication, and absenteeism. N.T. pp. 143-146; AA Ex. 11.

9 Anderson’s memorandum summarizing appellant’s interview establishes the interview occurred on October 16,

2017. AA Ex. 8. The signature date on appellant’s witness statement and incident report, which she prepared and

brought with her to the interview, is also October 16, 2017. N.T. p. 152; AA Ex. 8. Therefore, it appears that Anderson

misspoke when he testified that he interviewed appellant on October 16, 2016.

20

Anderson testified he did not review Cheek’s prior disciplinary record

because it was not within the scope of his investigation or necessary at the time.

N.T. pp. 172-173. However, Anderson indicated he did review Cheek’s EPRs for

rating periods June 2015 to June 2016 and June 2016 to June 2017. N.T. pp. 190-

192; AA Exs. 29, 30. Anderson stated Cheek received overall ratings of

commendable on both of these EPRs. N.T. p. 192; AA Exs. 29, 30. Anderson also

noted there were comments on Cheek’s EPRs commending her for the quality of her

work and recognizing her as a team player. N.T. pp. 192-193. Additionally,

Anderson noted he did not receive any information that Cheek was charged with

criminal activity as a result of the September 12, 2017 incident at Walmart. N.T. p.

193.

Anderson testified the fact-finding investigation was closed prior to the

resolution of appellant’s criminal charges for the September 12, 2017 incident at

Walmart. N.T. p. 168. Anderson stated upon completing the fact-finding

investigation, it was submitted to his Captain for review and then forwarded up the

chain of command. N.T. p. 169. Anderson noted he does not make any disciplinary

recommendations when he submits the fact-finding investigation. N.T. p. 169.

Anderson testified that, as a result of the information brought forth by the fact-

finding investigation, a PDC was held. N.T. p. 169. Anderson stated he did not

attend the PDC, but Captain Jones, who is his immediate supervisor, attended. N.T.

pp. 169-170.

Theresa Croll is the SCI’s Personnel Director. N.T. p. 204. Croll has

held this position for seven and a half years. N.T. p. 204. Croll testified that, as the

Personnel Director, she is responsible for all actions pertaining to human resources,

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including hiring, firing, disciplinary actions, labor relations, benefits, and payroll.

N.T. p. 205. Croll noted employee personnel and training records are maintained by

her office. N.T. pp. 205-208.

Croll testified appellant was hired by the appointing authority in 2008

as a Corrections Officer Trainee. N.T. p. 208. Croll explained Correction Officer

Trainees are promoted to the position of Correction Officer 1 after a one-year period.

N.T. pp. 208-209. Croll further explained that, during the one-year period,

Correction Officer Trainees receive extensive training, which includes a week-long

orientation. N.T. p. 209. Croll stated during orientation employees initial a checklist

verifying they reviewed the appointing authority’s policies and procedures, training

academy procedures, the appointing authority’s Code of Ethics and Code of

Conduct, as well as the Governor’s Code of Conduct. N.T. pp. 209-210. Croll noted

appellant completed this checklist on August 4, 2008, which confirms she received

training on the Governor’s Code of Conduct; Management Directive 205.33, which

is the workplace place violence policy; and the appointing authority’s Code of

Ethics. N.T. pp. 210-212; AA Ex. 15. Croll also noted appellant signed a receipt

indicating she received a copy of the pocket-sized Code of Ethics. N.T. pp. 213-

215; AA Exs. 16, 17.

Croll testified a PDC was held in the instant matter at the request of the

Superintendent. N.T. p. 217. Croll explained the Superintendent is responsible for

determining whether a PDC should be held and appointing a panel to conduct the

PDC. N.T. pp. 217-218. Croll further explained the Superintendent makes this

determination after reviewing the fact-finding investigation. N.T. p. 217.

Additionally, Croll noted the PDC process is outlined in the appointing authority’s

Policy 4.1.1. N.T. p. 218.

22

Croll stated prior to the PDC, appellant was suspended pending

investigation. N.T. p. 219. Croll stated appellant was notified of the suspension

pending investigation by letter dated September 13, 2017. N.T. pp. 219-220; AA

Ex. 18. Croll stated the September 13, 2017 letter informed appellant the

investigation was regarding behavior relating to workplace violence and violations

of the appointing authority’s Code of Ethics. Croll explained the bases for the

investigation were the incidents on September 11 and 12, 2017. N.T. p. 222. Croll

also noted Cheek filed a workplace violence report after the September 12, 2017

incident at Walmart. N.T. p. 222.

Croll testified a second notice of suspension pending investigation was

issued to appellant on September 15, 2017 because criminal charges had been filed

against appellant on September 14, 2017. N.T. pp. 223-225; AA Ex. 19. Croll

explained the notice needed to be reissued to add a violation of the Governor’s Code

of Conduct based on the criminal conduct, which was in connection with appellant’s

employment. N.T. pp. 224-225.

Croll testified a third notice was issued to appellant on November 7,

2017 because the external investigation for the criminal charges was not completed.

N.T. pp. 229-231; AA Ex. 22. Croll explained the period of suspension pending

investigation is typically limited to ninety days unless there is an outside

investigation such as here.10 N.T. pp. 230-231.

10 It is unclear to what rule or policy Croll is referring. We note that, pursuant to Section 101.21(c) of the Civil

Service Rules, “[s]uspensions, to include suspensions pending internal investigation, may not exceed an aggregate of

more than 60 working days in a calendar year.” 4 Pa. Code § 101.21(c). Additionally, Section 101.21(d) of the Civil

Service Rules provides: “[a]n employee suspended, pending investigation by an external agency, may be suspended

for the duration of the external investigation and up to 30 consecutive work days after the conclusion of the external

investigation.” 4 Pa. Code § 101.21(d).

23

Croll testified after the criminal charges were resolved, a PDC notice

was issued to appellant scheduling the PDC and informing appellant of the charges

against her. N.T. pp. 231-233; AA Ex. 23. Croll noted the Superintendent is

responsible for determining the charges. N.T. p. 234. Croll stated she chaired

appellant’s PDC panel, which consisted of Deputy Flinchbaugh, Deputy Ennis, and

Captain Jones, who was the charging officer. N.T. pp. 216, 246. Croll noted

appellant’s union representative and the confidential recorder were also present at

the PDC. N.T. p. 246.

Croll testified she was responsible, as chairperson, for reading the

charges and reminding those present that the panel is responsible for determining

whether the charges are substantiated. N.T. p. 246. Croll stated she is also

responsible for maintaining order during the PDC and ensuring the employee has

time to introduce comments, statements, and evidence to the panel. N.T. pp. 246-

247. Croll explained that, after the PDC is concluded, the panel reviews the evidence

and testimony to determine whether the charges are substantiated. N.T. pp. 248-

249. Croll stated the panel then confers with the Superintendent regarding their

findings, which the Superintendent reduces to writing in a PDC synopsis. N.T. pp.

249-250.

Croll testified the PDC synopsis in the instant matter indicates the

evidence establishes appellant violated Section B(10) of the appointing authority’s

Code of Ethics and Section 11 of the appointing authority’s Policy 4.1.1 based on

the criminal conviction for the Walmart incident and the incident that occurred in

the SCI’s visitors lobby. N.T. pp. 250-254; AA Ex. 25. Croll stated the PDC

synopsis also set forth mitigating and aggravating factors, which included a review

of appellant’s prior discipline, which consisted of a written reprimand for violations

24

of Section B(10) of the appointing authority’s Code of Ethics. N.T. pp. 254-255;

AA Ex. 25. Croll explained the written reprimand arose out of two equal opportunity

complaints which were filed against appellant.11 N.T. pp. 256-259, AA Ex. 12.

Croll testified the Superintendent recommended appellant be

terminated based on the substantiated charges. N.T. p. 259. Croll stated this

recommendation was forwarded to the Office of Administration along with the fact-

finding investigation, PDC minutes, and relevant documentation, including the

video evidence. N.T. pp. 259-261. Croll explained the Office of Administration

reviews the documentation to determine if the recommended discipline is consistent

with the normal range of sanctions imposed. N.T. p. 260. Croll stated that, in this

matter, the Office of Administration responded with a memo indicating the

appropriate sanction normally imposed in such circumstances is dismissal. N.T. pp.

260-262; AA Ex. 26. Croll stated upon receiving this memo, she assisted the

Superintendent in drafting appellant’s dismissal letter. N.T. pp. 262-263; AA Ex.

27.

Croll testified the dismissal letter included three charges for violations

of the Governor’s Code of Conduct, the appointing authority’s Code of Ethics and

the appointing authority’s Policy 4.1.1. N.T. p. 263; AA Ex. 27. Croll noted

Section 11 of the appointing authority’s Policy 4.1.1 informs employees that

workplace violence can occur either at or away from the workplace. N.T. pp. 235-

11 During cross-examination, Croll explained she received an e-mail from appellant regarding issues she had with the

staff members who were referenced in appellant’s written reprimand. N.T. pp. 273-275; Comm. Ex. D. Croll stated

the personality issues appellant had with staff members were investigated multiple times. N.T. p. 275. Croll also

noted appellant continued to have issues with staff members after the written reprimand. N.T. p. 275. Croll could not

recall if the other staff members referenced in appellant’s email were disciplined; however, she indicated the matter

was investigated as evidenced by the written reprimand which was issued to appellant. N.T. pp. 276-281. On redirect,

Croll added that, at the conclusion of the investigation, it was recommended that both appellant and one of staff

members who initiated the complaint be counseled on their professionalism. N.T. p. 311; AA Ex. 9.

25

237; AA Ex. 20. Croll stated the incident on September 12, 2017, at Walmart was

considered workplace violence under this policy because it was connected to the

work-related argument that occurred on September 11, 2017. N.T. pp. 238-239.

Croll noted the Walmart incident occurred less than twenty-four hours after

appellant was temporarily removed from her bid-post position based on the

September 11, 2017 work-related argument. N.T. pp. 243-244; AA Ex. 8.

During cross-examination, Croll provided additional clarification

regarding: 1) the use of phones at the appointing authority’s facilities;12 and 2) the

applicability of the appointing authority’s Policy 4.1.1 to the September 12, 2017

incident. Croll explained pursuant to the Pennsylvania State Corrections Officers

Association contract, employees are permitted to use the phones for reasonable

purposes and to speak with coworkers. N.T. pp. 281-282. Croll further stated

Cheek’s use of the phone on September 11, 2017, did not violate the appointing

authority’s Code of Ethics. N.T. pp. 285-286. Croll explained the appointing

authority’s Code of Ethics prohibits employees from profiting from their

employment as a corrections employee, such as being paid for a speaking event.

N.T. p. 285. Croll stated the policy is not intended to prohibit employees from

selling things to one another, which occurs routinely. N.T. p. 285. Croll explained

Cheek did not profit from the transaction between her supervisor and the other

officer; therefore, her use of the phone was not a violation of the policy. N.T. pp.

286-287. Croll also noted Cheek did not violate Section B(8) of the appointing

authority’s Code of Ethics because that section only applies to uniformed staff and

Cheek is not uniformed staff. N.T. pp. 287-289.

12 Appellant suggests it was inappropriate for Cheek to use the telephone at the desk on September 11, 2017. We

find this has no bearing on the removal action.

26

Regarding the appointing authority’s Policy 4.1.1, Croll indicated this

policy may apply to violence that occurs off of the appointing authority’s premises.

N.T. pp. 290-291; AA Ex. 20. Croll testified the testimony provided by Cheek and

appellant at the PDC established the incidents on September 11 and 12, 2017 were

related. N.T. p. 292. Croll also noted, while Cheek did not receive formal discipline

for the September 11, 2017 incident, she was counseled. N.T. p. 293. Croll

explained Cheek was not formally disciplined because she did not have any prior

discipline during her twenty-year career, whereas appellant had repeatedly engaged

in similar behavior. N.T. pp. 293-295, 312.

Croll testified aggravating and mitigating circumstances are reviewed

when determining the discipline that should be imposed. N.T. p. 296. Croll stated

aggravating circumstances may include poor performance reviews and whether the

same issue has been repeatedly addressed with the employee. N.T. p. 297. Croll

explained when the same issue is repeatedly addressed it means that the behavior is

not being corrected, which is why it is considered aggravating13 and progressive

discipline is taken. N.T. pp. 312-313. Croll stated mitigating circumstances may

include commendable or outstanding EPRs and no prior discipline. N.T. p. 297.

Christopher Meure holds the position of Major of the Guard at the SCI.

N.T. p. 315. Meure has held this position since June 2015 and has been employed

by the Department of Corrections since 1997. N.T. pp. 314-315, 321. As Major of

the Guard, Meure oversees the uniformed security staff. N.T. pp. 315-316.

13 Croll referenced the PDC synopsis written by the Superintendent, in which it is noted that appellant “had a written

reprimand from June 13, 2017, for COE B10 violations. She had been involved with multiple investigations related

to her behavior over the 2017 year. Her most recent EPR from August 2017 reflects an overall ‘needs improvement’

rating.” N.T. p. 295; AA Ex. 25 (p. 2).

27

Meure testified he issued a written reprimand, dated June 13, 2007, to

appellant, which referenced appellant’s continual pattern of unprofessional conduct.

N.T. pp. 316-317; AA Ex. 12. Meure explained discipline progresses from

counseling to a verbal reprimand and then to a written reprimand. N.T. p. 317.

Meure stated prior to receiving the June 13, 2007 written reprimand, appellant was

counseled for her unprofessional behavior toward a Lieutenant in September 2016.

N.T. pp. 317-318. Meure could not recall whether appellant was disciplined prior

to 2016 and noted he did not work at the SCI between 2010 and 2015. N.T. p. 333.

Meure testified appellant was temporarily removed from her bid post

on September 12, 2017, because there was a nexus between her bid post and the

September 11, 2017 incident. N.T. pp. 320-321. Meure explained appellant’s bid

post was located at the visitors lobby and the unprofessional interaction occurred in

front of visitors at this post; therefore, appellant was removed from this public area

pending the outcome of the investigation. N.T. pp. 320-321; AA Ex. 13.

Meure further testified returning appellant to her position was not an

appropriate course of action. N.T. p. 323. Meure explained appellant was provided

multiple opportunities to improve her behavior, which is evidenced by the

progressive discipline issued to her. N.T. p. 324. Meure further explained a

corrections officer must be able to clearly communicate in high stress situations,

which he does not believe appellant is capable of doing. N.T. p. 324. Meure stated

corrections officers have daily interactions with staff and inmates and a failure to

communicate effectively and professionally hinders the safe operation of the facility.

N.T. pp. 326-327. Meure explained if a corrections officer fails to be calm and

collected when dealing with inmates, the corrections officer may become distracted

and fail to observe other issues. N.T. pp. 327-328. Meure noted the SCI houses over

28

900 inmates with mental health issues, which is why corrections officers receive

training on interpersonal communication skills, as well as crisis intervention and

other trainings on effective communication. N.T. pp. 328-329.

In response to the appointing authority’s case, appellant testified prior

to the September 11 and 12, 2017 incidents, she emailed “personnel,” her supervisor,

Captain Sissem, and Deputy Franz regarding Cheek. N.T. pp. 338-339. Appellant

did not testify as to the substance of the emails.

Regarding her interactions with Cheek, appellant stated she does not

know why Cheek has a problem with her. N.T. p. 358. Appellant stated she does

not know Cheek outside of work, but she knows that Cheek lives near her. N.T. p.

358. Appellant said she has given Cheek rides to work, braided Cheek’s hair, as

well as Cheek’s daughter’s hair, and given Cheek money. N.T. p. 358. Appellant

stated after she told Cheek that she could no longer give her a ride to work, Cheek

began calling her “bitch,” told her she was “a little girl,” and told her that she did

not know what she was doing. N.T. pp. 358-359. Appellant explained she stopped

giving Cheek rides to work because she wanted to distance herself from everyone

after she received the bid post at the visitors lobby. N.T. pp. 359-360. Appellant

explained the bid post was very important to her and she did not want to “hang

around” with staff members who could be “dirty” or bring in contraband. N.T. pp.

359-360.

Regarding the September 11, 2017 incident, appellant argued Cheek

should have given her the same respect that would have been given to the regular

officer assigned to the desk in the visitors lobby. N.T. p. 348. Appellant explained

Cheek should have asked appellant to hand her the phone over the desk, rather than

29

going behind the desk. N.T. p. 348. Appellant stated the regular officer does not

even permit her to go behind the desk. N.T. pp. 348-349. Appellant stated only

security staff has clearance to go behind the desk and noted the other two officers on

the video did not go behind the desk. N.T. p. 350. Appellant explained there is

sensitive information regarding staff members, inmates, and visitors maintained at

the desk, which is not public information and may be confidential. N.T. pp. 350-

352.

Appellant further testified, Cheek could have used the phone in the

lobby or the radio or she could have asked the switchboard operator. N.T. p. 362.

Appellant stated that, by using the phone at the desk, Cheek distracted her from her

duty and a Lieutenant walked directly into the institution. N.T. p. 362. While

appellant maintained she continued to work during the incident, appellant also stated

the mental strain of Cheek calling her names was too much to process. N.T. pp. 362-

363.

Initially, appellant testified she remained at her post and telephoned her

supervisor who told her, “Figure it out amongst yourselves.” N.T. pp. 347-348.

However, later appellant stated she left her post to smoke a cigarette because Cheek

refused to leave. N.T. pp. 363, 374. Appellant stated when she returned, the

argument became heated because Cheek continued to refuse to leave and told

appellant that she was going to beat her up. N.T. pp. 347, 375. Appellant also

claimed she did not yell during the argument, nor did she have any reason to yell.

N.T. p. 376. Appellant noted she picked up the phone on the desk once Cheek left

from behind the desk so that the conversation would be recorded. N.T. pp. 376-377.

Appellant explained the phone begins to record as soon as it is picked up. N.T.

30

p. 377. Additionally, appellant stated she asked personnel whether Cheek was

disciplined for the September 11, 2017 incident to which personnel responded, “it

was none of [her] business.” N.T. p. 347.

Appellant suggests she was disciplined for the above incident because

she reported her supervisor for sexually harassing her in 2009.14 N.T. pp. 355, 360-

361. Appellant testified this occurred approximately one week after she started work

in 2009, and it resulted in her being discipline in 2013. N.T. pp. 355, 368-369.

Appellant also noted she was assaulted in 2009 by an inmate and suspended in 2010

based on this assault. N.T. pp. 356, 366. Appellant stated the suspension was

subsequently overturned and she was awarded back pay. N.T. p. 366. Appellant

stated she was told that she was assaulted because she is an attractive female and

“rallying inmates up.” N.T. p. 356. Appellant stated she was also told she would

not have been assaulted if she did not use certain mannerisms such as putting her

hand on her hip. N.T. p. 356. Appellant stated her supervisors did not “back her

up” any time she went to them. Appellant stated she was told to “just sit and look

pretty” and not to “rock the boat” because other people have worked there longer.

N.T. p. 357. However, appellant acknowledged incidents prior to 2016 were not

considered when determining the level of discipline imposed in the instant matter.

N.T. pp. 370-371.

Appellant testified she is very assertive, which is sometimes mistaken

for aggression. N.T. p. 352. Appellant explained she is a small person and because

of her appearance, she has a lot of problems with staff who come through the visitors

lobby. N.T. pp. 352-353. Appellant stated she is one of the youngest staff members

14 Appellant did not indicate whether she is still supervised by this individual.

31

and she believes a handful of the staff members do not feel she deserves the post at

the visitors lobby. N.T. p. 353. Appellant stated staff members made comments to

her that she is “a skinny little bitch” or “a little girl” and claim they do not have to

listen to her because they have worked for the appointing authority longer than her.

N.T. pp. 353-354.

Appellant stated during a meeting with Meure on June 13, 2017, she

had expressed she was frustrated because no one was listening to her and they were

combative and argumentative with her when she gave direction. N.T. p. 341.

Appellant stated Meure told her that she needed to work on her delivery, but he

understood her frustration. N.T. p. 341.

Appellant testified she received a negative EPR from

Lieutenant Clauson,15 even though “she does not supervise me.”16 N.T. p. 342.

Appellant stated she did not feel this was appropriate and believes her EPR should

have been completed by her direct supervisor, not Clauson, who was a shift

lieutenant. N.T. pp. 342-343. Appellant further stated she reported Clauson prior to

Clauson completing her EPR. N.T. pp. 343-344. Appellant noted she reported

Clauson for bringing her (Clauson’s) husband on the grounds and “making out”

during count. N.T. p. 343. Appellant stated she also complained to her chain of

command regarding Clauson completing her EPRs, but nothing resulted from this

complaint, even though her chain of command assured her they would review the

15 Appellant refers to the person as Lieutenant Scott Clauson. There was no indication of Clauson’s gender in the

record. However, appellant uses female pronouns to refer to Clauson.

16 Appellant did not indicate when this EPR was issued.

32

EPRs and “fix it.” N.T. pp. 344-345. Appellant further testified the complaint she

filed against Clauson was the basis for the counseling mentioned in her June 13,

2007 written reprimand. N.T. pp. 345-346.

Just Cause for Removal

In an appeal challenging the removal of a regular status employee, the

appointing authority has the burden of establishing just cause for the personnel

action. Mihok v. Department of Public Welfare, Woodville State Hospital, 147 Pa.

Commw. 344, 348, 607 A.2d 846, 848 (1992); 71 P.S. §§ 741.807, 741.951(a); 4 Pa.

Code § 105.15. Just cause must be job related and in some manner rationally and

logically touch upon the employee’s competency and ability to perform. Mihok, 147

Pa. Commw. at 348, 607 A.2d at 848. Having carefully reviewed the evidence, we

find the appointing authority has established the charges against appellant and

established just cause for her removal. In support of our conclusion, we find

credible17 the testimony provided by the appointing authority’s witnesses.

Specifically, the appointing authority presented credible evidence that

appellant engaged in an aggressive verbal altercation with Cheek on September 11,

2017, which occurred in front of visitors and coworkers. See Findings of Fact 15,

16. The following day, appellant’s aggressive behavior toward Cheek escalated and

resulted in appellant being charged, and subsequently convicted, of Simple Assault

and Harassment. See Findings of Fact 17-21. Such behavior violates the Governor’s

Code of Conduct, as well as the appointing authority’s Code of Ethics and

Workplace Violence Policy.

17 It is within the purview of the Commission to determine the credibility of the witnesses. State Correctional

Institution at Graterford, Department of Corrections v. Jordan, 505 A.2d 339, 341 (Pa. Commw. Ct. 1986).

33

Part III, Section 2 of the Governor’s Code of Conduct requires

termination of an employee who is convicted of criminal conduct related to his or

her employment. See Finding of Fact 31. Appellant’s Simple Assault and

Harassment convictions are clearly related to appellant’s employment. These

charges arose out of appellant’s threatening behavior toward her coworker, Cheek,

on September 12, 2017. See Finding of Fact 20. This incident occurred the day after

appellant engaged in an aggressive verbal altercation with Cheek at work, which

resulted in appellant being temporarily removed from her bid position. See Findings

of Fact 15, 17. Thus, there is a temporal connection between these two events further

establishing that the criminal conduct is related to appellant’s job performance.

Likewise, appellant’s failure to conduct herself properly and

professionally is also a violation of Section B(10) of the appointing authority’s Code

of Ethics. Section B(10) of the appointing authority’s Code of Ethic directs

employees to treat their peers with respect and to conduct themselves properly and

professionally at all times. See Finding of Fact 32. On September 11, 2017,

appellant failed to treat Cheek with respect when she engaged in an aggressive

argument with Cheek. See Finding of Fact 15. Appellant also failed to treat Cheek

with respect when she swung an object at her and chased her out of the Walmart

parking lot on September 12, 2017. See Finding of Fact 18. Furthermore, both

incidents occurred in view of the public. See Findings of Fact 16, 18. This

disrespectful and unprofessional behavior is a clear violation of Section B(10) of the

appointing authority’s Code of Ethics.

Appellant’s threatening behavior toward Cheek is also a violation of

the appointing authority’s Workplace Violence Policy, which is set forth in Section

11 of Policy 4.1.1. Section 11(A)(1) of this policy prohibits all forms of violence

34

and threatening behavior. See Finding of Fact 33. This prohibition extends to

incidents that occur either at or away from the workplace. See Finding of Fact 34.

Both of the incidents described above constitute workplace violence under this

policy. As explained above, appellant’s intimidating and threatening behavior on

both occasions was directed at her coworker. See Finding of Facts 16, 18.

Furthermore, the September 12, 2017 incident was an escalation of appellant’s

unprofessional workplace conduct toward her coworker.

Nevertheless, appellant argues disparate penalties were imposed

because Cheek was not removed for her unprofessional conduct on September 11,

2017. Ap. Brief. The Commission is not persuaded by this argument. Appellant

and Cheek are not similarly situated. First, we find Cheek’s testimony credible that

appellant instigated the argument on September 11, 2017 and continued to badger

Cheek with various expletives. N.T. pp. 58-59. While Cheek did not respond

appropriately to appellant’s antagonistic behavior, she had not been disciplined

during her twenty-year career, whereas appellant had repeatedly been disciplined for

similar behavior. See Findings of Fact 25-27, 30. Additionally, Cheek received

commendable ratings on her EPRs and was recognized for being a team player,

whereas appellant was criticized on her EPR for her lack of professionalism and

ineffective communication. See Findings of Fact 28, 29. Furthermore, there is no

evidence Cheek continued to escalate the situation after September 11, 2017. Cheek

was not charged with criminal activity as a result of the September 12, 2017 incident

at Walmart, nor is there any evidence that she was the aggressor in that incident. See

Finding of Fact 18. Therefore, we reject appellant’s argument and find that the

penalty imposed was appropriate based on the aggravating and mitigating

circumstances.

35

Based on the above, we find the appointing authority had just cause to

remove appellant. The appointing authority presented credible evidence that

appellant engaged in unprofessional, intimidating, and threatening behavior and was

convicted of criminal conduct related to her employment. We find appellant’s

unprofessional behavior and criminal conduct toward her coworker reflect

negatively upon her competence and ability to perform her job duties, thereby

providing just cause for the removal. Mihok, supra. Having determined the

appointing authority demonstrated just cause, it is necessary to evaluate appellant’s

claims of discrimination.

Appellant’s Discrimination Claims

Appellant bears the burden of establishing that the personnel action was

due to discrimination. Henderson v. Office of the Budget, 126 Pa. Commw. 607,

560 A.2d 859 (1989). In analyzing claims of discrimination18 under Section 905.1

of the Act, appellant has the burden of establishing a prima facie case of

discrimination by producing sufficient evidence that, if believed and otherwise

unexplained, indicates that more likely than not discrimination has occurred. 71 P.S.

§ 741.951(b); 4 Pa. Code § 105.16; Department of Health v. Nwogwugwu, 141 Pa.

Commw. 33, 38, 594 A.2d 847, 850 (1991). The burden of establishing a prima

facie case cannot be an onerous one. Henderson, 126 Pa. Commw. at 616, 560 A.2d

at 864. Once a prima facie case of discrimination has been established the burden

of production then shifts to the appointing authority to advance a legitimate non-

18 The Act addresses both “traditional” and “procedural” discrimination. “Traditional discrimination” encompasses

only those claims of discrimination based on race, sex, national origin or other non-merit factors. “Procedural

discrimination” refers to a technical violation of the Act. In a case where an employee alleges a technical violation,

no showing of intent is required. There must be evidence, however, to show that the employee was harmed by the

technical noncompliance or that because of the peculiar nature of procedural impropriety that he or she could have

been harmed but there is no way to prove that for certain. Pronko v. Department of Revenue, 114 Pa. Commw. 428,

439, 539 A.2d 456, 462 (1988); 71 P.S. § 741.905a.

36

discriminatory reason for the personnel action. If it does, the burden returns to

appellant, who always retains the ultimate burden of persuasion, to demonstrate that

the proffered merit reason for the personnel action is merely pretext. Id. at 614-615.

In particular, an employee claiming disparate treatment must demonstrate that he or

she was treated differently than others similarly situated. Nwogwugwu, at 141 Pa.

Commw. 40, 594 A.2d 851 (1991).

Here, appellant alleges she was removed because she reported her

supervisor for sexually harassing her in 2009.19 N.T. pp. 355, 360-361. Appellant

also claims she was discriminated against based upon her sex in that, when she

reported she was assaulted by an inmate in 2009, she was told she was assaulted

because she was female, and she should just sit and look pretty. N.T. pp. 356-357.

Appellant did not present any evidence establishing how these events, which

occurred nine years earlier, are connected to the removal which is the subject of the

instant appeal. Indeed, appellant acknowledged incidents prior to 2016 were not

considered when determining the level of discipline imposed in the instant matter.

N.T. pp. 370-371.

Considering the above, we find appellant has failed to meet her burden

of establishing a prima facie case of disparate treatment based on sex or retaliation.

Henderson, supra. While we recognize the burden of establishing a prima facie case

cannot be an onerous one, Nwogwugwu, supra., in this matter, appellant’s evidence

is not enough to meet her burden to show that her removal was more likely than not

motivated by discrimination.

19 In her appeal form, appellant also alleges she was discriminated against based on her age. Appellant did not present

any evidence regarding age discrimination. Therefore, the Commission finds that appellant failed to establish a prima

facie case of age discrimination.

37

Furthermore, the appointing authority established that there was a

legitimate non-discriminatory reason for the removal. Extensive credible evidence,

as detailed above, was presented by the appointing authority establishing that the

removal was based upon appellant’s unprofessional and violent behavior, which

resulted in a criminal conviction for Simple Assault and Harassment against a

coworker. Appellant has failed to present any evidence which would establish the

appointing authority’s reason was pretextual. Accordingly, we enter the following:

CONCLUSIONS OF LAW

1. The appointing authority has presented evidence

sufficient to establish just cause for removal under

Section 807 of the Civil Service Act, as amended.

2. Appellant has failed to present evidence

establishing discrimination violative of Section

905.1 of the Civil Service Act, as amended.

ORDER

AND NOW, the State Civil Service Commission, by agreement of two

of its members,20 dismisses the appeal of Deniece N. Davis challenging her removal

from regular Corrections Officer 1 employment with the State Correctional

Institution at Albion, Department of Corrections and sustains the action of the State

20 Chairman Teresa Osborne, who took office March 22, 2019, did not participate in the discussion of or decision for

this appeal.

38

Correctional Institution at Albion, Department of Corrections in the removal of

Deniece N. Davis from regular Corrections Officer 1 employment effective

September 13, 2017.

State Civil Service Commission

____________________________________

Gregory M. Lane

Commissioner

____________________________________

Bryan R. Lentz

Commissioner

Mailed: October 17, 2019