S.M. Donahue v. SCSC (DHS) ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean M. Donahue, :
Petitioner :
:
v. : No. 128 C.D. 2020
: SUBMITTED: January 15, 2021
State Civil Service Commission :
(Department of Human Services), :
Respondent :
OPINION NOT REPORTED
MEMORANDUM OPINION
PER CURIAM FILED: May 3, 2021
Sean M. Donahue petitions for review, pro se, of the January 16, 2020 Order
of the State Civil Service Commission (Commission) dismissing his appeal and
sustaining the action of the Department of Human Services (DHS) in not selecting
him for the position of Income Maintenance Caseworker in DHS’s Luzerne County
Assistance Office – Hazleton District (IMC position). We affirm the Commission’s
Order.
Background
DHS posted a job vacancy for the IMC position, both externally and
internally, from June 22, 2018 through July 6, 2018. An external job posting is filled
using civil service lists certified by the Commission. An internal job posting is filled
using bids submitted by current state and local civil service employees seeking
reassignments and transfers.
Mr. Donahue applied for the IMC position on June 24, 2018, but he was not
selected for the position. DHS filled the position internally. No civil service lists
containing Mr. Donahue’s name were used to fill the IMC position.
On August 31, 2018, Mr. Donahue filed an appeal with the Commission,
challenging his non-appointment to the IMC position. In his appeal, Mr. Donahue
averred, “I wasn’t hired so my veterans[’] preference wasn’t honored.” Notes of
Testimony (N.T.), 12/19/18, DHS Ex. A.
The Commission held an evidentiary hearing on December 19, 2018. Janet
Norton, DHS’s Field Human Resources Officer, testified on DHS’s behalf. Mr.
Donahue, appearing pro se, testified on his own behalf.
At the conclusion of Mr. Donahue’s case-in-chief, DHS orally moved to
dismiss the appeal, arguing that Mr. Donahue had failed to satisfy his burden of
proving a prima facie case of discrimination or a violation of Section 7104(b) of the
statute commonly known as the Veterans’ Preference Act, 51 Pa. C.S. § 7104(b).1
N.T., 12/19/18, at 95-97. The Commission declined to rule on the motion at that
time, stating that it would rule on the motion in its subsequent written adjudication,
after the parties had submitted supporting briefs. Id. at 97-98, 160-61. Following
the hearing, both parties filed post-hearing briefs with the Commission.
On January 16, 2020, the Commission dismissed Mr. Donahue’s appeal,
concluding that he failed to meet his burden of proving discrimination in violation
1
Section 7104(b) of the Veterans’ Preference Act provides:
Whenever a veteran’s name appears on an eligible list certified [by the
Commission] or provided as the result of a civil service examination, the appointing
authority in making an appointment to a public position shall give preference to
the veteran, notwithstanding the veteran’s standing on the eligible list if the
appointment is otherwise made in accordance with 71 Pa.[]C.S. § 2402 (relating to
selection and appointment of eligibles). A veteran may not begin or hold the public
position until proof of discharge papers, separation documents or statement of
service are provided to the appointing authority.
51 Pa. C.S. § 7104(b) (emphasis added).
2
of Section 905.1 of the former Civil Service Act.2 The Commission explained its
reasoning as follows:
Pennsylvania law does not preclude [DHS] from using
alternative recruitment methods [in hiring]. As [Ms.] Norton credibly
testified, [Mr. Donahue] was not eligible for the [IMC] position under
the recruitment method used by [DHS] to fill the position. The [IMC]
position was filled through the internal hiring method. At the time of
the hiring, [Mr. Donahue] did not hold, nor has he ever held, a civil
service position with the Commonwealth [of Pennsylvania]. Thus, he
was not eligible for the [IMC] position under the recruitment method
used by [DHS]. As such, [DHS] was not required to interview or select
[Mr. Donahue] for the [IMC] position.
Based on the foregoing, we find [that DHS] provided a
legitimate, non-discriminatory explanation for not selecting [Mr.
Donahue] for appointment to the [IMC] position . . . . [Mr. Donahue]
provided no credible evidence that [DHS’s] merit-related reason was
pretextual. . . .
2
Act of August 5, 1941, P.L. 752, as amended, added by the Act of August 27, 1963, P.L.
1257, formerly 71 P.S. § 741.905a. Section 905.1 of the former Civil Service Act provided:
No officer or employe of the Commonwealth shall discriminate against any person
in recruitment, examination, appointment, training, promotion, retention or any
other personnel action with respect to the classified service because of political or
religious opinions or affiliations[,] because of labor union affiliations[,] or because
of race, national origin or other non-merit factors.
Formerly 71 P.S. § 741.905a. Section 951(b) of the former Civil Service Act provided that any
person who is aggrieved by an alleged violation of Section 905.1 may appeal in writing to the
Commission within 20 calendar days of the alleged violation. Formerly 71 P.S. § 741.951(b),
added by the Act of August 27, 1963, P.L. 1257.
The General Assembly repealed the Civil Service Act by the Act of June 28, 2018, P.L.
460, which became effective on March 28, 2019. The provisions of the former Civil Service Act
are now found in Title 71, Part III, of the Pennsylvania Consolidated Statutes, commonly known
as the Civil Service Reform Act. Because Mr. Donahue challenges hiring decisions that were
made before the Civil Service Act’s repeal date, we apply the former Civil Service Act’s provisions
to this case.
3
Comm’n Adjudication, 1/16/20, at 11 (footnote and internal citations omitted)
(emphasis added). Mr. Donahue now petitions this Court for review.3
Analysis
An individual who appeals his non-selection for appointment to a position in
the civil service may do so only on the basis of discrimination. Price v.
Luzerne/Wyoming Cntys. Area Agency on Aging, 672 A.2d 409, 413 (Pa. Cmwlth.
1996). There are two categories of discrimination under the former Civil Service
Act: “traditional discrimination” and “procedural discrimination.” Daily v. State
Civ. Serv. Comm’n, 30 A.3d 1235, 1239 (Pa. Cmwlth. 2011). Traditional
discrimination is based on factors such as race, sex, national origin, and other non-
merit factors. Id. Procedural discrimination is based on procedural violations of the
former Civil Service Act and its attendant regulations. Id.In this case, Mr. Donahue appears to allege procedural discrimination,
because he argues that DHS improperly limited the applicant pool for the IMC
position to only internal candidates. Mr. Donahue claims that, by doing so, DHS
“wrongfully filled [the] entry[-]level [IMC] position[] as if [it] were a promotion.”
Pet. for Rev. ¶ 8. He also alleges that DHS “compared multiple [hiring] lists and
then decided which lists to hire from . . . to circumvent the Veterans’ Preference
Act.” Id.When an appellant claims discrimination under Section 905.1 of the former
Civil Service Act, he bears the burden of demonstrating a prima facie case of
discrimination. See Price, 672 A.2d at 413; 4 Pa. Code § 105.16(a). To establish a
3
Our review of the Commission’s decision is limited to determining whether constitutional
rights were violated, whether an error of law was committed, or whether the Commission’s factual
findings are supported by substantial evidence. Williams v. State Civ. Serv. Comm’n, 811 A.2d
1090, 1092 n.1 (Pa. Cmwlth. 2002).
4
prima facie case of procedural discrimination, the appellant “must show that he was,
in fact, harmed because of the technical non-compliance with the [former Civil
Service] Act or evidence that[,] because of the peculiar nature of the procedural
impropriety[,] he could have been harmed but there is no way to prove that for
certain.” Perry v. State Civ. Serv. Comm’n (Dep’t of Lab. & Indus.), 38 A.3d 942,
956 (Pa. Cmwlth. 2011). If the appellant establishes a prima facie case, the burden
shifts to the appointing authority to advance a legitimate, non-discriminatory reason
for its action. Cola v. State Civ. Serv. Comm’n (Dep’t of Conservation & Nat. Res.),
861 A.2d 434, 436 (Pa. Cmwlth. 2004).
Mr. Donahue contends that DHS “compared a large number of different hiring
lists, including both internal and external applicants, evaluated their qualifications,
identified veterans they didn’t want to hire and then decided to hire only from the
lists that circumvented veterans[’] preference.” Pet. for Rev. ¶ 54. We reject this
claim.
The plain language of Section 7104(b) of the Veterans’ Preference Act states
that veterans’ preference applies “[w]henever a veteran’s name appears on an
eligible list certified [by the Commission].” 51 Pa. C.S. § 7104(b) (emphasis added);
see also Hous. Auth. of Cnty. of Chester v. Pa. State Civ. Serv. Comm’n, 730 A.2d
935, 947 (Pa. 1999) (“[M]andatory veterans’ preference [must] be afforded to any
veteran who is applying for a civil service position and who is on an [e]ligible [l]ist
due to his performance on the civil service examination.”) (emphasis added).
Here, it is undisputed that Mr. Donahue’s name was not on any lists DHS used
to fill the IMC position at issue, because DHS filled the position internally. The
Commission found that an internal job posting is filled using bids submitted by
current state and local civil service employees seeking reassignments and transfers.
5
Comm’n Finding of Fact (F.F.) No. 7. Veterans’ preference applies only when a
candidate is selected from a certified list of eligibles containing the name of an
eligible veteran. See 51 Pa. C.S. § 7104(b). Because DHS did not use any civil
service lists containing Mr. Donahue’s name to fill the IMC position, Comm’n F.F.
No. 10, Mr. Donahue failed to establish that DHS violated the Veterans’ Preference
Act by not selecting him for the position. See Hous. Auth., 730 A.2d at 943
(explaining that the veterans’ preference policy outlined in the Commission’s
management directive “reflect[s] the will of the legislature that veterans be given
mandatory preference in appointment when their names appear together with those
of non-veterans on a list of eligibles”) (emphasis added).
Next, Mr. Donahue contends that state agencies, such as DHS, intentionally
circumvent the veterans’ preference requirement by using different hiring lists to
“game[]the hiring system.” Pet. for Rev. ¶ 8.4 The Commission, however,
4
In his principal brief, Mr. Donahue baldly asserts, without any citation to record evidence:
Because DHS did not want to hire [Mr. Donahue], it simply shuffled positions
around on paper from office to office as a means of evading veterans[’] preference
and as a means of evading [sic] having to hire [Mr. Donahue]. DHS[’]s hiring
tactics involved having the people it wanted to hire in the Hazleton office apply to
the same position in a different office, one that [Mr. Donahue] did not apply to.
DHS then hired those applicants through a different office on paper, using a
different civil service hiring list, and later transferred those individuals to fill
positions in the Hazleton office. This practice served to illegally exclude [Mr.
Donahue] from consideration and hiring.
....
While people were actually hired to physically work in the Hazleton office, DHS
paid them on paper as if they were working in another office other than Hazleton,
such as Wilkes-Barre. DHS also incentivised [sic] employees from other offices to
transfer to the Hazleton office so that DHS could evade [sic] having to hire [him].
DHS employees enjoy the assurance of the DHS general counsel, which conspired
(Footnote continued on next page…)
6
specifically rejected this claim, finding that Mr. Donahue “did not provide any
evidence that [DHS] or other [state] agencies have in fact done this, nor did [he]
provide any evidence that this [practice] occurred” with regard to the IMC position
at issue. Comm’n Adjudication, 1/16/20, at 7; see Reck v. State Civ. Serv. Comm’n
(Pa. Liquor Control Bd.), 992 A.2d 977, 979 (Pa. Cmwlth. 2010) (stating that, in
civil service cases, “[a]ffirmative factual allegations must support all claims of
discrimination because discrimination cannot be inferred”). We find no error in this
determination.
Finally, Mr. Donahue challenges DHS’s use of internal recruitment methods
when hiring for certain positions, asserting that DHS “narrowed the qualifications
for hiring s[o] that it had only one qualified candidate on the list” and then “gamed
the system to protect the candidate it wanted to hire.” Pet. for Rev. ¶¶ 38-40; see id.
¶ 50. This claim is belied by Ms. Norton’s testimony.
Ms. Norton testified that she was directly involved in the recruitment process
for the IMC position. N.T., 12/19/18, at 107. Ms. Norton testified that the position
was posted both externally and internally, but DHS received an “adequate number”
of bids from current civil service employees to recruit for the position internally. Id.
at 107-08. She explained that using internal bidders to fill the position saves time
and resources because the selected candidate is “a known employee,” his or her
employment record is already on file, and a background check has already been
performed. Id. at 108-09. Ms. Norton further testified that the person selected for
with them, that they will not face disciplinary action for having engaged in such
illegal hiring practices[] . . . .
Donahue Br. at 10-11.
7
the IMC position did not come from a civil service list and that no civil service list
containing Mr. Donahue’s name was used to fill the IMC position. Id. at 109.
On cross-examination, Ms. Norton testified that DHS “follow[s] all [of] the
[c]ivil [s]ervice rules for all of [its] hires.” Id. at 112-13. Although Ms. Norton
could not recall exactly how many internal candidates were interviewed for the IMC
position, id. at 108, she testified that there were more than five candidates and that
the candidates underwent a “competitive interview process,” id. at 114, 137. She
also testified that she is unaware of any civil service rule that requires DHS to use
only external job postings. Id. at 137.
The Commission credited Ms. Norton’s testimony, finding that Mr. Donahue
was not eligible for the IMC position because DHS recruited for the position
internally, as it was entitled to do. Comm’n Adjudication, 1/16/20, at 11. Mr.
Donahue presented no credible evidence to refute this testimony. The Commission
determined that “Pennsylvania law does not preclude [DHS] from” using internal
recruitment methods in hiring. Id. The Commission also found, based on Mr.
Donahue’s own testimony, that Mr. Donahue “did not hold, nor has he ever held, a
civil service position with the Commonwealth [of Pennsylvania].” Id.; see Comm’n
F.F. No. 3; N.T., 12/19/18, at 29. It is well settled that “[t]he Commission is the sole
fact finder in civil service cases and has exclusive authority to assess witness
credibility and to resolve evidentiary conflicts,” and this Court “will not disturb the
Commission’s determinations regarding credibility or the weight of evidence.”
Bosnjak v. State Civ. Serv. Comm’n, 781 A.2d 1280, 1286 (Pa. Cmwlth. 2001). We
8
conclude that the Commission’s findings are supported by substantial evidence of
record.5
Conclusion
Accordingly, because we conclude that Mr. Donahue failed to establish a
prima facie case of discrimination, we affirm the Commission’s Order.
5
In both his Petition for Review and appellate briefs, Mr. Donahue makes several
arguments relating to testimony presented in other cases he filed with the Commission, the
transcripts of which are not part of this record. This Court, however, cannot consider evidence on
appeal that was not part of the record before the Commission in this matter. See Pa. Tpk. Comm’n
v. Unemployment Comp. Bd. of Rev., 991 A.2d 971, 974 (Pa. Cmwlth. 2009); Pryor v. Workers’
Comp. Appeal Bd. (Colin Serv. Sys.), 923 A.2d 1197, 1201 (Pa. Cmwlth. 2006); see also 2 Pa. C.S.
§ 704 (“The [appellate] court shall hear the appeal . . . on the record certified by the Commonwealth
agency . . . .”). Therefore, we will not consider Mr. Donahue’s extra-record arguments.
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sean M. Donahue, :
Petitioner :
:
v. : No. 128 C.D. 2020
:
State Civil Service Commission :
(Department of Human Services), :
Respondent :
PER CURIAM
ORDER
AND NOW, this 3rd day of May, 2021, the Order of the State Civil Service
Commission, dated January 16, 2020, is hereby AFFIRMED.