R. Welby v. SCSC (PA DOC - SCI Frackville)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Raymond Welby, :
Petitioner :
:
v. : No. 1702 C.D. 2014
: Submitted: June 12, 2015
State Civil Service Commission :
(PA DOC - SCI Frackville), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: August 27, 2015
Raymond Welby (Welby), representing himself, petitions for review
of an order of the State Civil Service Commission (Commission) sustaining his
removal for just cause by the Pennsylvania Department of Corrections (DOC),
State Correctional Institution at Frackville (SCI-Frackville or Appointing
Authority). Welby contends the Commission erred and abused its discretion in
finding just cause to remove him from his employment. To that end, Welby asserts
the Commission’s necessary findings were not supported by substantial evidence
and thus the Commission abused its discretion in finding Appointing Authority met
its burden of proving Welby engaged in unprofessional conduct and workplace
violence. For the reasons that follow, we affirm.
I. Background
Welby worked for Appointing Authority as a registered nurse. At the
time of Welby’s hire in September 2011, Appointing Authority provided him with
a copy of DOC’s Code of Ethics (Ethics Code). In addition, Welby signed a
receipt stating he received, read and agreed to abide by the Ethics Code.
Appointing Authority also provided Welby with a copy of DOC’s
Workplace Violence Policy, which Welby reviewed during an orientation class
session.
In late August 2013, while on vacation away from Employer’s
premises, Welby telephoned Employer’s intelligence-gathering captain, Timothy
Clark (Investigator), while on duty. Investigator’s duties included investigations of
inmate and employee misconduct at SCI-Frackville. Investigator also participated
in security threat monitoring, telephone monitoring and mail monitoring.
Welby told Investigator he needed advice in dealing with his
immediate supervisor, Mary Alice Kuras (Nurse Supervisor). Welby claimed he
heard from a coworker that Nurse Supervisor was spreading disparaging rumors
about him to others in the workplace, including his coworkers.1 In particular,
1
Welby claims in his petition for review to this Court that multiple coworkers informed
him that Nurse Supervisor told them Welby received prior discipline with a previous employer
for paying a mentally ill patient at a state hospital to masturbate and ejaculate on food that Welby
then fed to his fellow coworkers. See Pet. for Review at ¶6(d); Reproduced Record (R.R.) at
318a. Welby asserts Nursing Supervisor’s statements were in no way true and constituted sexual
harassment. Id. If this disgusting situation actually occurred, Welby continued, he would have
lost his license to practice nursing and faced criminal charges. Id.
2
Welby told Investigator “he was so mad with [Nurse Supervisor] that he wanted to
punch her in the face.” Notes of Testimony (N.T.), 2/26/14, at 69; Reproduced
Record (R.R.) at 69a.
Upon hearing Welby’s statement about punching Nurse Supervisor,
Investigator told Welby “you can’t make statements, you can’t make comments
like that …. Don’t make threats like that, don’t tell me this.” N.T. at 69; R.R. at
69a. Welby responded “oh, okay, let’s just forget I said it.” Id.
However, Investigator then asked Welby what his concerns were as to
Nurse Supervisor. Welby explained that before he left on vacation approximately
two weeks earlier, a fellow nurse told him that Nurse Supervisor was spreading
disparaging rumors about prior discipline Welby received while working for
another state agency. Investigator responded that he was aware of the rumors, but
he did not think Nurse Supervisor would spread these stories to her subordinates.
He also believed Nurse Supervisor would not have access to such information.
Nonetheless, Investigator asked Welby what he would like to do. Welby
responded: “I would like to beat the hell out of her.” N.T. at 71; R.R. at 71a. At
that point, Investigator told Welby:
I asked you not to make these threats. These threats are
concerning me. You could have said, I want you to
investigate it, I would like you to look into this for me.
However, you made another threat of violence and I
cannot tolerate that. So I’m going to have to report this
to my supervisor.
Id.
3
Investigator then asked Welby when he planned to return to work.
Welby replied next Thursday. Id. Investigator told Welby not to come to the
workplace, but to wait for directions from Appointing Authority’s Human
Resources Office. N.T. at 72; R.R. at 72a. Investigator then documented his
phone conversation with Welby and discussed the call with his supervisor, Deputy
Superintendent for Facilities Management, George Miller (Deputy
Superintendent). N.T. at 73-74.; R.R. at 73a-74a.
On his first scheduled day back, Welby reported to SCI-Frackville’s
Superintendent Brenda L. Tritt’s office. Following Welby’s statement of his
version of his telephone conversation with Investigator, Superintendent Tritt
removed Welby from the workplace pending further investigation.
Thereafter, Appointing Authority assigned Lieutenant Robert Reese
and Lieutenant Todd Johnson to investigate Welby’s alleged threats against Nurse
Supervisor during the August 2013 phone conversation with Investigator.
Lieutenant Reese, the lead investigator, conducted an off-premises interview of
Welby regarding that phone conversation.
During the interview, Welby admitted making the phone call to
Investigator and making the statement that he would like to punch Nurse
Supervisor in the face. N.T. at 106; R.R. at 106a. However, Welby added that he
knew he could not punch Nurse Supervisor. Id. Welby also admitted saying that
he would like to beat the hell out of Nurse Supervisor, or words to that effect. N.T.
4
at 107; R.R. at 107a. Welby also told Lieutenant Reese that he was in a very
emotional state during the phone conversation with Investigator. Id.
Lieutenant Reese also asked Welby to complete a witness statement.
In his written statement, Welby admitted he told Investigator he would like to
punch Nurse Supervisor in the face, but that he knew he could not. See Employee
Witness Statement at 2;2 R.R. at 262a-64a. Welby also admitted in writing that he
informed Investigator a second time that he would like to hit or punch Nurse
Supervisor, but again indicated he knew he could not do that. Id.
Welby further indicated: “I didn’t mean any actual intent of doing
anything like mentioned and was actually asking for advice more than anything …
[I] would have no problem continuing to work alongside her if I was told that
would be the best thing.” Employee Witness Statement at 3; R.R. at 264a.
Following the investigation, Appointing Authority made a
determination to conduct a pre-disciplinary conference (PDC) with Welby.
Appointing Authority sent Welby a September 2013 letter notifying him of the
PDC and charging him with three violations: Section B(10) of the Ethics Code
(employees are expected to treat their supervisors and general public with respect
and conduct themselves properly and professionally at all times, unacceptable
conduct and insolence will not be tolerated);3 Section B(2) of the Ethics Code
2
Welby’s Employee Witness Statement was introduced into evidence as Exhibit AA-10.
3
DOC’s Code of Ethics was introduced into evidence as Exhibit AA-1.
5
(excessive force, violence or intimidation will not be tolerated); and, DOC Policy
Statement No. 4.1.1 Human Resources and Labor Relations Manual, Section 11
(Workplace Violence Policy).4 See Ex. AA-8; R.R. at 260a.
At the PDC, Welby pled guilty to violating Section B(10) of the
Ethics Code. See PDC Minutes,5 R.R. at 265a. However, Welby pled not guilty to
violating DOC’s Workplace Violence Policy. Id.
Further, Welby admitted receiving information about DOC’s
Workplace Violence Policy and signing for it. R.R. at 266a. He also admitted
making the statements that he would like to punch Nurse Supervisor in the face
and beat the hell out of her. R.R. at 267a. Human Resource Analyst Anne Plaska
(HR Analyst), serving as PDC Panel Chairperson, and Deputy Superintendent,
indicated that Welby’s statements were a violation of the Workplace Violence
Policy. R.R. at 267a-68a. Welby, however, maintained he never intended to harm
Nurse Supervisor. Id.
Following the PDC, Appointing Authority terminated Welby by letter
on the grounds that he violated Section B(10) of the Ethics Code (unprofessional
and unacceptable conduct) and DOC’s Workplace Violence Policy, which
prohibits threats, by various means of communication, including letter, note,
telephone, fax or e-mail. In particular, Appointing Authority noted, Welby’s
4
DOC’s Workplace Violence Policy was introduced into evidence as Exhibit AA-4.
5
The Pre-Disciplinary Conference Minutes (R.R. at 265a-70a) were introduced into
evidence as Exhibit AA-11.
6
statements that he wanted to punch Supervisor in the face and beat the hell out of
her would not be tolerated. See N.T. Ex. A; Supplemental Reproduced Record
(S.R.R.) at 7b-8b.
Welby timely appealed his removal from employment to the State
Civil Service Commission (Commission). Thereafter, the Commission granted
Welby a hearing under Section 951(a) of the Civil Service Act.6 In February 2014,
the Commission held an evidentiary hearing at which both parties presented
evidence. See N.T. at 1-210; R.R. at 1a-210a.
In July 2014, the Commission issued an adjudication and order
dismissing Welby’s appeal. The Commission determined Appointing Authority
presented sufficient evidence to establish just cause for Welby’s removal under
Section 807 of the Civil Service Act, 71 P.S. §741.807 (no regular employee in the
classified service shall be removed except for just cause). In particular, the
Commission reasoned (with emphasis added):
Upon review of the record, the Commission finds
that [Appointing Authority] presented sufficient evidence
to support the charges. We find [Investigator] credible
that [Welby] made more than one remark threatening
physical harm to [Nurse Supervisor]. [Welby]
acknowledges making the threatening remarks. We
reject [Welby’s] contention that his response was merely
an inappropriate emotional response. [Welby] was off
work for fourteen days before calling to speak to
[Investigator]. During that time off, his emotions
escalated instead of providing distance from the situation.
6
Act of August 5, 1941, P.L. 752, added by the Act of August 27, 1963, P.L. 1257, as
amended, 71 P.S. §741.951(a).
7
[Welby] acknowledges that he deliberately made his first
statement. Even after [Investigator’s] initial
admonishment not to make any additional threats, it was
mere minutes later that he made a second threat toward
[Nurse Supervisor]. We find [Deputy Superintendent]
credible that [Welby’s] threatening remarks cannot be
tolerated in an environment where security is an utmost
concern and manipulative inmates could distort any
tension between [Welby] and [Nurse Supervisor] to their
advantage. [Welby’s] deliberate remarks, threatening
physical violence toward his supervisor, clearly reflected
negatively upon his competency and ability to perform
his job duties. [Bazargani v. State Civil Serv. Comm’n,
711 A.2d 529 (Pa. Cmwlth. 1998)].
Comm’n Adj., 7/23/14, at 11-12; R.R. at 310a-12a. Welby filed a petition for
review of the Commission’s order.7
II. Issues
Welby contends the Commission erred and abused its discretion in
determining Appointing Authority established just cause for his removal from
employment. In particular, Welby asserts the Commission’s necessary findings
were not supported by substantial evidence and, therefore, the Commission abused
its discretion in finding Appointing Authority met its burden of showing he
engaged in unprofessional conduct and workplace violence.
7
Our review involving agency adjudications is limited to a determination of whether the
agency’s findings are supported by substantial evidence, whether the agency erred as a matter of
law or whether it violated constitutional rights. Cutler v. State Civil Serv. Comm’n (Office of
Admin.), 924 A.2d 706 (Pa. Cmwlth. 2007).
8
III. Discussion
In civil service cases, the Commission is the sole fact-finder. Perry v.
State Civil Service Comm’n (Dep’t of Labor & Indus.), 38 A.3d 942 (Pa. Cmwlth.
2011); Bosnjak v. State Civil Serv. Comm’n, 781 A.2d 1280 (Pa. Cmwlth. 2001).
Therefore, issues as to witness credibility and resolution of evidentiary conflicts
are within the exclusive province of the Commission, and we will not reweigh the
evidence or substitute our judgment even though we might have reached a different
conclusion. Thompson v. State Civil Serv. Comm’n, 863 A.2d 180 (Pa. Cmwlth.
2004). In reviewing a Commission decision, we view the evidence, and all
reasonable inferences arising from the evidence, in the light most favorable to the
prevailing party. Perry.
A. Just Cause for Removal
1. Generally
The ultimate issue before this Court, Welby acknowledges, is whether
Appointing Authority had just cause to remove him from employment. Welby
claims his alleged threats against Nurse Supervisor were merely careless remarks
made out of frustration rather than intentional threats. Welby further claims he had
no actual intent to harm Nurse Supervisor, his verbal remarks were not work-
related, and they did not constitute egregious misconduct of any sort. Therefore,
Welby argues, Appointing Authority did not have just cause to terminate his
employment.
Pursuant to Section 807 of the Civil Service Act, a civil service
employee may be removed from employment only for just cause. Thompson. The
9
appointing authority has the burden of showing just cause for removal. Id. The
term just cause is not defined in the Act. Nonetheless, just cause must be merit-
related and the criteria for determining just cause must touch upon the employee’s
competency and ability in some rational and logical manner. Woods v. State Civil
Service Comm’n, 912 A.2d 803 (Pa. 2006); Perry; Thompson.
Further, what constitutes just cause for removal is largely a matter of
discretion on the part of the head of the department. Id. However, to be sufficient,
the cause should be personal to the employee and such as to render him unfit for
the position he occupies, thus making dismissal justifiable and for the good of the
service. Id. Whether the employee’s actions constitute just cause for removal is a
question of law fully reviewable on appeal. Perry.
2. Violations of Employer’s Policies
Here, Appointing Authority dismissed Welby for violations of Section
B(10) of the Ethics Code and DOC’s Workplace Violence Policy. Section B(10)
of DOC’s Ethics Code provides (with emphasis added):
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.
R.R. at 220a. DOC’s Workplace Violence Policy pertinently provides (with
emphasis added):
[DOC] is committed to ensuring a safe environment for
its employees and is dedicated to maintaining a work
environment that is free from violence. [DOC] has a zero
tolerance policy for any incidents of workplace violence,
10
including threats of violence, by or against its employees
or other individuals on Commonwealth property. All
forms of violence, threatening behavior, and …
harassment, which involve or affect employees of [DOC]
are prohibited by this policy. Violence, threats,
harassment, intimidation, and other behaviors that are
disruptive to [DOC] will not be tolerated, regardless of
mistakes, ignorance, or other extenuating circumstances.
All reports of workplace violence incidents will be taken
seriously and will be dealt with appropriately through a
prompt investigation …. Violations of this policy by
[DOC] employees may lead to disciplinary action, up to
and including termination, from employment.
Violence connected to the workplace takes many forms.
Incidents of workplace violence include, but are not
limited to, threats in person, by letter or note, telephone,
fax, or electronic mail …. Incidents of workplace
violence may occur either at or away from the workplace.
The determining factors in assessing whether any
incident constitutes workplace violence are the
individuals involved and the relationship of the action to
the workplace; the location of the incident; and … if the
violence is as a result of Commonwealth business.
R.R. at 247a.
3. Commission’s Critical Findings
At the Commission’s February 2014 hearing, both Investigator and
Welby testified regarding their August 27, 2013 phone conversation about Nurse
Supervisor. Based on their testimony, the Commission made the following
findings:
12. [Welby] told [Investigator] that [Nurse Supervisor]
was spreading false rumors about him. N.T. pp. 69, 154.
13. [Investigator] asked [Welby], ‘What would you like
to do?’ [Welby] replied that he was so mad ‘he wanted
11
to punch [Nurse Supervisor] in the face.’ N.T. pp. 69,
15[3].
14. [Investigator] advised [Welby] that if he was seeking
advice, he could not continue to make threatening
comments or statements. N.T. pp. 69, 153.
15. [Welby] replied, ‘Okay, let’s just forget I said it. I
won’t even tell anybody that I called you.’ N.T. pp. 69-
70.
16. [Investigator] asked [Welby] to explain his concern.
[Welby] stated that he had recently learned that [Nurse
Supervisor] was talking about his prior disciplinary
action to his coworkers. N.T. p. 70.
17. [Investigator] said that he had also heard the rumor,
but did not think [Nurse Supervisor] would tell her
subordinates stories about [Welby]. [Investigator] said
he did not think [Nurse Supervisor] would be privy to the
information or spread rumors. N.T. pp. 70-71, 152.
18. [Investigator] then asked what [Welby] would like
him [Investigator] to do. [Welby] replied ‘I would like to
beat the h*ll out of her.’ N.T. pp. 71, 153-154.
19. [Investigator] replied: ‘I asked you not to make these
threats. These threats are concerning me. You could
have said, ‘I want you to look into this for me.’ However,
you made another threat of violence and I cannot tolerate
that. So I’m going to have to report this to my
supervisor. N.T. p. 71.
Comm’n Adj., 7/23/14, Findings of Fact (F.F.) Nos. 12-19; R.R. at 304a-05a.
4. Just Cause Determination
Ultimately, the Commission, noting that Welby, by making another
threatening remark toward Nurse Supervisor after being warned, violated Section
B(10) of DOC’s Ethic Code and DOC’s Workplace Violence Policy. Comm’n
12
Adj. at 11-12; R.R. at 310a-11a. Deputy Superintendent testified Section B(10)
requires that DOC employees treat other employees, their supervisors, and the
general public respectfully and professionally. N.T. at 117; R.R. at 117a. Any
other behavior will not be tolerated. Id. Welby’s threats against Nurse Supervisor
were disrespectful and unprofessional. Id.
The Commission also credited Deputy Superintendent’s testimony
that Welby’s threats violated DOC’s Workplace Violence Policy. See N.T. at 117-
19; R.R. at 117a-19a. Deputy Superintendent testified Welby’s threat to punch
another employee in the face directly impacted his ability to perform his job. N.T.
at 118; R.R. at 118a. If Welby and Nurse Supervisor did get into a confrontation at
SCI-Frackville, it would affect the morale of other employees who were expecting
Appointing Authority to provide a safe environment. See N.T. at 118-19; R.R. at
118a-19a. To that end, DOC’s Workplace Violence Policy has a zero tolerance for
any form of workplace violence. N.T. at 119; R.R. at 119a.
In addition, if the inmates were to see such a confrontation, they might
learn to use those circumstances for various manipulative purposes in order to
obtain contraband or even escape. N.T. at 118-19; R.R. at 118a-19a. Ultimately,
the Commission determined Welby’s deliberate remarks, which threatened
physical violence toward his supervisor, clearly reflected negatively upon his
competency and ability to perform his job duties. Comm’n Adj. at 12; R.R. at
311a. Therefore, the Commission concluded, Appointing Authority established
just cause for Welby’s removal. Id.
13
5. Welby’s Argument
On appeal here, Welby argues the Commission erred and abused its
discretion in determining Appointing Authority established just cause for his
removal based on informal comments he made while on vacation. Essentially,
Welby reiterates the same argument that he presented to the Commission. To
constitute just cause, an employee’s behavior or actions must touch upon his
competency or ability in some rational or logical manner. Id. In making his
emotional remarks to Investigator on the phone while on vacation, Welby claims
he was merely blowing off steam and had no intent of actually harming Nurse
Supervisor.
Further, Welby asserts, Appointing Authority presented no evidence
that he could not competently perform his duties as a trained nurse. To that end,
Welby contends Appointing Authority had no rational or logical reason to
terminate him based on a comment made out of frustration while outside the course
of his employment. In short, Welby argues Appointing Authority presented no
credible evidence that he was a true threat to Nurse Supervisor or that he treated
her in a disrespectful manner. Therefore, Welby asserts his remarks to Investigator
were essentially non-work-related and did not put anyone at risk.
In support of his position, Welby cites, among other cases,
Department of Corrections v. Pennsylvania State Corrections Officers Association,
923 A.2d 1212 (Pa. Cmwlth. 2007), a grievance arbitration case where an
arbitrator’s award modified a corrections officer’s termination to a five-day
suspension because the officer’s off-duty threats to kill his ex-wife and others,
14
while communicated to a friend who was an on-duty DOC employee, were not
directed at DOC or its employees or inmates. On appeal, this Court upheld the
arbitrator’s modification of the officer’s removal from employment to a suspension
on the ground that the officer’s threats did not have a direct negative effect on
DOC’s operations.
Here, Welby claims he merely called Investigator for advice and his
statements about harming Nurse Supervisor, made while on vacation, had no effect
on his competency and ability to perform his job. Therefore, his statements had no
direct negative effect on Appointing Authority’s operations.
Welby further contends he did not engage in willful misconduct as
defined by the courts in unemployment compensation cases. Section 402(e) of the
Unemployment Compensation Law8 states an employee shall be ineligible for
compensation for any week in which his unemployment is due to willful
misconduct connected to his work.9 In order to constitute a threat, a
communication must convey an intent to inflict harm or loss on another or on
another’s property. Aversa v. Unemployment Comp. Bd. of Review, 52 A.3d 565
(Pa. Cmwlth. 2012). Here, Welby maintains, his heat of the moment statements
8
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S.
§802(e).
9
Willful misconduct within Section 402(e) is defined by the courts as: 1) wanton and
willful disregard of an employer’s interests; 2) deliberate violation of rules; 3) disregard of the
standards of behavior which an employer can rightfully expect from an employee; or 4)
negligence showing an intentional disregard of the employer’s interests or the employee’s duties
and obligations. Grieb v. Unemployment Comp. Bd. of Review, 827 A.2d 422 (Pa. 2002).
15
about harming Nurse Supervisor, followed by the statement that he knew he could
not do that, lack any evidence of an intent to harm.
Welby further asserts Nurse Supervisor, by spreading disparaging and
defamatory rumors him, created a continuously hostile work environment which
caused him to use a poor choice of words in his conversation with Investigator,
which Welby believed to be an informal conversation. However, Welby claims,
other than these heat of the moment remarks, there was no evidence to indicate he
intended to harm Nurse Supervisor. Further, Welby told Investigator during the
phone call he knew he could not physically harm Nurse Supervisor. Relying on
J.S. ex rel. H.S. v. Bethlehem Area School District, 807 A.2d 847 (Pa. 2002),
Welby thus argues his remarks cannot be considered a true threat under the totality
of the circumstances in this case.
For these reasons, Welby argues the Commission’s determination that
he acted unprofessionally or disrespectfully toward Nurse Supervisor and that he
violated DOC’s Workplace Violence Policy, were not supported by substantial
evidence. Therefore, Welby asserts Appointing Authority failed to establish just
cause for his removal.
6. Analysis
As discussed above, the Commission is the sole fact-finder in civil
service cases. Perry. Therefore, determinations as to witness credibility and the
resolution of conflicting evidence are within the exclusive province of the
Commission. Id. As such, we may not reweigh the evidence or substitute our
16
judgment for that of the Commission, even though we may have reached a
different factual conclusion. Id.
Here, the Commission determined Welby violated Section B(10) of
the Ethics Code by telephoning Investigator and telling him that he would like to
punch Nurse Supervisor in the face. Although Welby asked Investigator if he
could call him “off the record” at his home number, Investigator declined Welby’s
request. See F.F. No. 11; N.T. at 152; R.R. at 152a.
Investigator then advised Welby that if he was seeking advice, Welby
could not continue to make threats like that. F.F. No. 14; N.T. at 153; R.R. at
153a. Nonetheless, according to Investigator, when he again asked Welby what he
wanted to do about Nurse Supervisor, Welby replied: “I would like to beat the hell
out of her.” F.F. No. 18; N.T. at 71; R.R. at 71a. Even Welby testified he replied
that what he would like to do was to “you know, punch her up, to choke her.” N.T.
at 153; R.R at 153a.
Given Welby’s repeated threats of physical harm toward Nurse
Supervisor over the phone to Investigator, we discern no error or abuse of
discretion in the Commission’s determination that Welby engaged in
unprofessional conduct, which was clearly disrespectful of Nurse Supervisor. As
such, Welby violated Section B(10) of DOC’s Ethics Code, which requires that a
DOC employee treat fellow employees, including supervisors, with respect.
17
Similarly, we discern no error or abuse of discretion in the
Commission’s determination that Welby’s threats of physical harm against Nurse
Supervisor violated DOC’s Workplace Violence Policy. As HR Analyst and
Deputy Superintendent explained at the PDC and the Commission hearing, DOC
has a zero tolerance policy for workplace violence, which includes threats of
violence by one employee against another. Therefore, Welby’s statements to
Investigator that he would like to punch Nurse Supervisor in the face, and beat and
choke the hell out of her, violated DOC’s Workplace Violence Policy.
Further, we discern no error or abuse of discretion in the
Commission’s determination that Welby’s violations of DOC’s Ethic’s Code and
Workplace Violence Policy established just cause for his dismissal. As indicated
by the Workplace Violence Policy, Appointing Authority has a zero tolerance
policy for workplace violence, including threatening behavior, “regardless of
mistakes, ignorance, or other extenuating circumstances.” R.R. at 247a (emphasis
added).
What constitutes just cause is largely a matter of discretion for the
head of the department. Woods; Perry. Here, the Commission credited Deputy
Superintendent’s testimony that Welby’s statements that he would like to punch
and choke Nurse Supervisor directly impacted his ability to perform his job. N.T.
at 118; R.R. at 118a. If Welby and Nurse Supervisor did get into a confrontation at
SCI-Frackville, it could affect the morale of other employees who were expecting
Appointing Authority to provide a safe environment. N.T. at 118-19; R.R. at 118a-
19a.
18
In addition, if the inmates were to see such a confrontation, they might
learn to use those circumstances for various manipulative purposes. N.T. at 118-
19; R.R. at 118a-19a. Therefore, we agree with the Commission that Welby’s
deliberate remarks, which threatened physical violence toward his supervisor,
clearly reflect negatively upon his competency and ability to perform his job
duties. See Comm’n Adj. at 12; R.R. at 311a.
Further, as the Commission aptly noted, Welby’s anger toward Nurse
Supervisor appeared to escalate rather than dissipate during the time spent on
vacation. Comm’n Adj. at 12; R.R. at 311a. As HR Analyst recognized at the
PDC, Welby made the statements about punching Nurse Supervisor because he
was angry and upset, not because he was joking. R.R. at 267a. Regardless, HR
Analyst viewed these statements as a clear violation of the Workplace Violence
Policy. Id. As discussed above, threats of violence cannot be justified by
extenuating circumstances such as Welby’s animosity toward Nurse Supervisor
based on his belief that she spread disparaging rumors about him.
Consequently, we find that substantial evidence supports the
Commission’s determinations that Welby violated Section B(10) of DOC’s Ethics
Code and DOC’s Workplace Violence Policy. We further conclude the
Commission did not err or abuse its discretion in holding Welby’s statements that
he would like to physically assault Nurse Supervisor, constituted just cause for his
dismissal from employment.
19
We also dismiss as irrelevant Welby’s contention that he did not
engage in willful misconduct as defined by the courts in unemployment
compensation cases. Just cause for the removal of a civil service employee is a
different standard from that of willful misconduct in unemployment compensation
cases. See Perry; Morrison v. Dep’t of Corr., 659 A.2d 620 (Pa. Cmwlth. 1995).
Thus, even assuming the Unemployment Compensation Board of Review
determined Welby’s violations of DOC’s policies did not rise to the level of willful
misconduct, this would not preclude the Commission from determining just cause
existed for Welby’s removal from civil service. Morrison.
Similarly, Welby’s citations to cases reviewing just cause analyses in
grievance arbitration awards are also misplaced. Although accompanied by a
union representative at the PDC, Welby did not indicate he filed a labor grievance
challenging his removal from employment under the parties’ collective bargaining
agreement (CBA). Regardless, this appeal is limited in scope to a review of the
Commission’s adjudication and order determining that Appointing Authority
established just cause for his removal under Section 807 of the Civil Service Act.
Consequently, our decision in Pennsylvania State Corrections Officers
Association, which determined that an arbitrator’s decision that DOC did not have
just cause under the CBA to terminate an officer, based on his off-duty threats to
kill his ex-wife, drew its essence from the parties’ CBA, is inapplicable here.
We next address Welby’s contention that his statements that he would
like to punch and choke Nurse Supervisor cannot be considered a true threat under
the totality of the circumstances test applied in J.S. In J.S., our Supreme Court,
20
borrowing from the Wisconsin Supreme Court’s decision in In re A.S., 626
N.W.2d 712 (Wisc. 2001), employed an objective reasonable person standard in
determining whether a middle school student’s internet threats to among other
things, kill his teacher, constituted protected speech under the First Amendment or
constituted a true threat to inflict harm. J.S. defined a true threat as a statement
that a speaker would reasonably foresee that a listener would reasonably interpret
as a serious expression to inflict harm, as opposed to hyperbole, jest, or innocuous
talk. In making this determination, the totality of the circumstances must be
considered. Interestingly, in J.S., our Supreme Court observed, it was not
necessary that the speaker have the ability to carry out the threat.
Here, as noted above, DOC’s Workplace Violence Policy has a zero
tolerance for threats of violence, regardless of extenuating circumstances.
Moreover, Investigator, who received Welby’s threats and immediately reported
them to Deputy Superintendent, found Welby’s statements, made in anger, to be
serious enough to constitute violations of the Workplace Violence Policy.10
Therefore, we reject Welby’s contention that his statements cannot be considered
as true threats and therefore cannot constitute violations of DOC’s Workplace
Violence Policy.
10
Welby also contends Appointing Authority did not present an expert medical or
psychological opinion that he was likely to harm Nurse Supervisor. See Pet’r.’s Br. at 38.
However, Welby cites no authority, and we are unaware of any authority, for such a requirement.
Nonetheless, Investigator, who received Welby’s call, testified his duties at the time included
investigations of inmate and employee misconduct, and threat monitoring. N.T. at 68; R.R. at
68a. Welby’s threats “concerned him” enough to immediately report it to Deputy
Superintendent. N.T. at 73; R.R. at 73a.
21
IV. Conclusion
For the above reasons, we discern no error or abuse of discretion in
the Commission’s determination that Appointing Authority removed Welby from
employment for just cause in accord with Section 807 of the Civil Service Act, 71
P.S. §741.807. Accordingly, we affirm.
ROBERT SIMPSON, Judge
22
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Raymond Welby, :
Petitioner :
:
v. : No. 1702 C.D. 2014
:
State Civil Service Commission :
(PA DOC - SCI Frackville), :
Respondent :
ORDER
AND NOW, this 27th day of August, 2015, for the reasons stated in
the foregoing opinion, the order of the State Civil Service Commission is
AFFIRMED.
ROBERT SIMPSON, Judge