N.E. Kunsak v. SCSC (SCI Pittsburgh)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nancy E. Kunsak, :
Petitioner :
:
v. :
:
State Civil Service Commission :
(State Correctional Institute at :
Pittsburgh, Department of Corrections), : No. 746 C.D. 2015
Respondent : Submitted: December 24, 2015
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: May 5, 2016
Nancy E. Kunsak (Kunsak) petitions this Court for review of the State
Civil Service Commission’s (Commission) April 6, 2015 Adjudication and Order
dismissing her appeal challenging her removal as a Psychological Services Specialist
(Specialist) for the Department of Corrections (Department), State Correctional
Institution at Pittsburgh (SCI-Pittsburgh). The issues for this Court’s review are: (1)
whether the Commission erred as a matter of law by denying Kunsak’s request for a
hearing under Section 951(b) of the Civil Service Act (Act);1 (2) whether the
Commission erred as a matter of law by finding that the Department met its burden of
proving just cause for Kunsak’s removal; and, (3) whether the Commission erred as a
matter of law by failing to consider Kunsak’s performance reviews.2 After review,
we affirm.
1
Act of August 5, 1941, P.L. 752, as amended, added by Section 27 of the Act of August
27, 1963, P.L. 1257, 71 P.S. § 741.951(b) (relating to appeals in discrimination cases).
2
Kunsak presented three additional issues: whether the Commission erred by failing to
consider her workload, by not deciding this case in accordance with a prior decision in a similar
case, and by finding that Kunsak does not contest the factual charges against her. Because these
Kunsak was employed by the Department as a Specialist at SCI-
Pittsburgh from November 3, 20083 until she was discharged on October 18, 2013 for
violating the Department’s policy of promptly evaluating and treating inmates
suffering from mental health issues. Kunsak appealed from her employment
termination to the Commission under Sections 951(a) and 951(b) of the Act,4
requesting reinstatement with back pay. A hearing was held on January 8, 2014
pursuant to Section 951(a) of the Act in order to determine whether the Department
had just cause for its action. Kunsak’s request for review under Section 951(b) of the
Act was denied on the basis that she failed to sufficiently plead an employment
discrimination case. On April 6, 2015, the Commission concluded that the
Department established just cause for Kunsak’s removal and dismissed her appeal.
Kunsak appealed to this Court.5
Kunsak argues that the Commission erred by denying her request for a
hearing under Section 951(b) of the Act. We disagree. Section 905.1 of the Act
mandates:
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.
questions relate directly to whether the Department met its burden of proving just cause for her
removal, they are subsumed thereunder.
3
Kunsak was previously employed as a licensed psychologist at the Mayview State Hospital
from August 25, 2003 until October 31, 2008.
4
71 P.S. § 741.951(a), (b).
5
“The Court’s review of a decision of the Commission is limited to determining whether
constitutional rights have been violated, [whether] errors of law have been committed or whether its
findings are supported by substantial evidence.” Walsh v. State Civil Serv. Comm’n (Dep’t of
Transp.), 959 A.2d 485, 488 n.2 (Pa. Cmwlth. 2008).
2
71 P.S. § 741.905a.6 Section 951(b) of the Act instructs:
Any person who is aggrieved by an alleged violation of
[S]ection 905.1 of this [A]ct may appeal in writing to the
[C]ommission within twenty calendar days of the alleged
violation. Upon receipt of such notice of appeal, the
[C]ommission shall promptly schedule and hold a public
hearing.
71 P.S. § 741.951(b).
This Court has held:
Affirmative factual allegations must support all claims
of discrimination because discrimination cannot be
inferred. The burden of proof is upon the party claiming to
be aggrieved by the alleged discrimination. The
Commission is authorized to dismiss an appeal, sua
sponte, without a hearing if the appeal request form fails
to state a claim.
Reck v. State Civil Serv. Comm’n, 992 A.2d 977, 979 (Pa. Cmwlth. 2010) (citations
omitted; emphasis added). Section 105.12 of the Commission’s Regulations sets
forth what information is required to state a discrimination claim:
(b) The person appealing shall state clearly and concisely
the:
(1) Grounds of the interest of the person in the
subject matter.
(2) Facts relied upon.
(3) Relief sought.
(c) Appeals alleging discrimination which do not include
specific facts relating to discrimination may be
dismissed. Specific facts which should appear on the
appeal form include:
(1) The acts complained of.
6
Added by Section 25 of the Act of August 27, 1963, P.L. 1257.
3
(2) How the treatment differs from treatment of
others similarly situated.
(3) When the acts occurred.
(4) When and how the appellant first became aware
of the alleged discrimination.
4 Pa. Code § 105.12 (emphasis added). On the Commission’s Appeal Request Form
(Request Form), under “REASONS,” is the instruction to “ANSWER THE FOLLOWING
QUESTIONS AS COMPLETELY AS POSSIBLE. FAILURE TO DO SO MAY RESULT IN DENIAL OF
YOUR APPEAL. (Attach additional sheets if necessary.)” Reproduced Record (R.R.) at
323a.
In Kunsak’s discrimination hearing request portion of the Request Form,
she averred that she was discriminated against based upon her sex and disability as
follows:
A. What action(s) occurred which led you to believe you were
discriminated against?
Management did not equally distribute workloads, after
numerous requests. When an inmate suicide occurred,
despite [Department] past practices in other institutions
with male psychology staff; I, as female staff, was fired.
B. Where and when did this action occur?
April 30 – October 18, 2013.
C. Who discriminated against you? Provide name(s) and job
title(s).
Superintendent Mark Capozza
Deputy William Woods
D. Do you believe the [Act] and/or Rules were violated? If so,
what section(s)?
Yes. Section 807 [relating to removal for just cause],
905.1 [sic], Section 950 ([notice] beyond time limits)
4
E. Provide any other information which you believe is
relevant.
Dr. Robert Dietz, SCI[-]Greene, provides onsite
supervision one day a week. Dr. Kenneth Caion
provided supervision as he was onsite, as a Regional
Manager. In the month of June, I covered for every
psychology staff in their multiple absences, but coverage
for me was [undecipherable handwriting].
R.R. at 323a (emphasis added). In the Commission’s Notice of Public Hearing, it
stated: “The reason for the denial under Section 951(b) [of the Act] is insufficient
allegation of discrimination.”7 Certified Record, Notes of Testimony, Commission
Ex. C.
Thus, despite the Commission expressly instructing in its Regulations
and Request Form to do so, and advising of the risk of having her discrimination
appeal request denied, Kunsak did not proffer any facts regarding how she may have
been discriminated against based upon a disability. Moreover, Kunsak’s only
statement that could even remotely support a sex discrimination claim was: “When an
inmate suicide occurred, despite [Department] past practices in other institutions with
male psychology staff; I, as female staff, was fired.” R.R. at 323a. In the absence of
“[a]ffirmative factual allegations” to support Kunsak’s claims, and since
“discrimination cannot be inferred,” the Commission properly denied Kunsak’s
request for a hearing under Section 951(b) of the Act.8 Reck, 992 A.2d at 979.
7
Kunsak’s specific issue was whether the Commission’s failure to consider her request for
a hearing under Section 951(b) of the Act constitutes an error of law. However, since the
Commission clearly considered and denied the request due to insufficient discrimination
allegations, as evidenced by its Notice of Public hearing and its Adjudication (see Commission Adj.
at 2 n.1), we restated the issue accordingly.
8
[T]he employee must present sufficient evidence that, if believed and
otherwise unexplained, indicates more likely than not that
discrimination occurred. Moore v. State Civil Serv. Comm’n (Dep’t of
Corr.), 922 A.2d 80 (Pa. Cmwlth. 2007). Given the critical role of
circumstantial evidence in discrimination cases, the prima facie
burden of proof is not an onerous one. Id. Absent a credible response
5
Kunsak next contends that the Commission erred as a matter of law by
finding that the Department met its burden of proving just cause for Kunsak’s
removal. We disagree.
Initially,
[c]ivil servants may only be terminated for ‘just cause.’ 71
P.S. § 741.807.[9] Although not defined in the . . . Act, our
court has indicated that just cause ‘must be merit-related
and the criteria must touch upon competency and ability in
some rational and logical manner.’ Galant v. Dep[’]t of
Env[tl.] Res[.], . . . 626 A.2d 496, 497 ([Pa.] 1993).
Pa. Game Comm’n v. State Civil Serv. Comm’n (Toth), 747 A.2d 887, 892 (Pa. 2000).
What constitutes just cause for removal is largely a matter
of discretion on the part of the head of the department.
Woods [v. State Civil Serv. Comm’n, 912 A.2d 803 (Pa.
2006)]; Pa. Bd. of Prob. & Parole v. State Civil Serv.
Comm’n [(Manson)], 4 A.3d 1106 (Pa. Cmwlth. 2010).
‘However, to be sufficient, the cause should be personal to
the employee and such as to render the employee unfit for
his or her position, thus making dismissal justifiable and for
the good of the service.’ [Manson], 4 A.3d at 1112.
Whether the actions of a civil service employee constitute
just cause for removal is a question of law fully reviewable
by this Court. Id.
from the appointing authority, a presumption of discrimination arises
and the employee’s prima facie case stands determinative of the
factual issue of the case. Id.
If, however, the appointing authority offers a non-discriminatory
explanation for the personnel action, the presumption drops from the
case. Id. As in other civil litigation, the tribunal must then evaluate
the entire body of evidence under the preponderance standard and
determine which party’s explanation of the appointing authority’s
motivation it believes. Id.
Perry v. State Civil Serv. Comm’n (Dep't of Labor & Indus.), 38 A.3d 942, 957-58 (Pa. Cmwlth.
2011).
9
Section 807 of the Act states: “No regular employe in the classified service shall be
removed except for just cause.” 71 P.S. § 741.807.
6
Perry v. State Civil Serv. Comm’n (Dep’t of Labor & Indus.), 38 A.3d 942, 951 (Pa.
Cmwlth. 2011). “The appointing authority bears the burden of proving just cause and
the substance of the charges underlying the employee’s removal.” Dep’t of Transp. v.
State Civil Serv. Comm’n, 84 A.3d 779, 783 n.1 (Pa. Cmwlth. 2014). Finally,
“[w]hen reviewing a Commission decision, we view the evidence, and all reasonable
inferences arising from the evidence, in a light most favorable to the prevailing
party.” Perry, 38 A.3d at 948.
Admitted into evidence at the hearing without objection were the
Department’s Policy Statement and its Procedures Manual relating to inmate access
to mental healthcare. The Department’s Policy Statement, effective June 14, 2014,
states that the Department shall “establish a systematic method of delivering
psychological services to every inmate” under its supervision “to ensure that
regardless of how major or minor the emotional disturbance, services are available to
every inmate[.]” R.R. at 331a-332a. To that end, Section 2.A.4.b of Policy No.
13.8.1 in the Department’s Procedures Manual, also effective June 14, 2004,
provided:
Since any inmate may report or demonstrate mental health
issues whether or not [he/she is] currently receiving mental
health treatment, all contact staff must be trained and able
to recognize signs of potential mental illness, suicidality or
elevated risk of violence. Observations or concerns about
any inmate with such issues shall be relayed to the
appropriate treatment staff for evaluation and follow-up
using the DC-97 [Mental Health Referral Form]. In urgent
cases, a phone call shall be made to the psychology
department (or the infirmary if after hours) or the inmate
shall be escorted to the infirmary area. Under supervision
of the [licensed psychology manager (]LPM[)],
[p]sychology staff will interview the inmate as soon as
possible after receipt of referral, but no later than one
week. This interview will be documented on a DC-560.
The LPM will evaluate the need for immediate psychiatric
7
evaluation and/or [psychiatric observation cell (]POC[)]
placement. If the LPM/designee determines psychiatric
evaluation is warranted but not an emergency, a DC-97
along with a copy of the DC-560 [Mental Health Contact
Note] shall be forwarded to psychiatry the same day. The
inmate shall be seen by the psychiatry provider within two
weeks of receipt of this referral from psychology staff or
sooner if possible.
R.R. at 355a (footnote omitted; text emphasis added).
The Department’s Deputy Superintendent for Centralized Services at
SCI-Pittsburgh William Woods (Woods) testified that he supervises approximately
half of the operations at SCI-Pittsburgh, including the facility’s inmate mental health
services. He explained that when he took the position at SCI-Pittsburgh in April
2012, Kunsak’s immediate supervisor was LPM Sandy Vujnovic (Vujnovic). Woods
explained that since Vujnovic retired in August or September 2012 and her position
had not yet been filled as of June/July 2013, Woods was the immediate supervisor to
Kunsak and four other Specialists in 2013.
According to Woods, when he began investigating inmate Jumaul
Williams’ (Williams) July 10, 2013 suicide, he learned that referrals regarding
Williams’ mental health had been made to the psychology department and they were
assigned to Kunsak for action. Woods asked Kunsak for copies of the referrals,
which she provided to him with the following July 20, 2013 written statement:10
Deputy Woods: These are the copies of the referrals I
received in regards to [] Williams. I did not from the
information given determine that these evaluations were
priority, as I believed this Inmate was in the infirmary. I
did not see him for an assessment. I deeply regret that I did
not, as I would have hope[d] I could have intervened
effectively to assist him. As you are aware, I see most of
the general population inmates with requests and referrals,
10
Woods declared that he did not question Kunsak about the referrals at that time because
he realized that fact-finding would be necessary to determine whether there was a potential
disciplinary issue. See R.R. at 173a-174a.
8
as well as new commitments and parole violators. It is
necessary to prioritize when I am aware an inmate has
pressing issues. I was totally unaware of the extent of []
Williams’ physical problems, the severity of his physical
pain, and as a result, his state of mind. I will redouble my
efforts to be of assistance to the officers of F Block and
Medical when I am aware a critical situation exists, as well
as the more routine requests of staff and Inmates.
R.R. at 325a. Woods further testified that, with the statement, Kunsak supplied DC-
97 forms.11 One DC-97 form was issued on June 10, 2013 by Sheila Angel in which
she reported that “[Williams] is a [community corrections center (CCC)] return
housed in Infirmary – had recent surgery. Reports he is feeling depressed. Affect –
Flat.” R.R. at 326a. Woods recalled that the other DC-97 form was a June 20, 2013
referral made by Dr. Joseph Mollura regarding Williams’ “frustration.” R.R. at 327a.
According to the relevant portion of the SCI-Pittsburgh psychology department’s
mental health tracking form prepared by the Specialist and mental health coordinator
George Findlay (Findlay), the referrals were assigned to Kunsak on June 13 and July
2, respectively. See R.R. at 328a.
Woods explained that he asked SCI-Pittsburgh’s Unit Manager Joseph
Schott (Schott) to conduct a fact-finding related to Kunsak’s policy violation.12
Schott testified that, as a part of his fact-finding, he took Kunsak’s statement on July
24, 2013, wherein Kunsak admitted that she was familiar with the Department’s
policy of evaluating inmates no later than one week after referrals are received, and
that she received the June 10 and June 20, 2013 referrals but did not assess Williams.
See R.R. at 329a. Kunsak’s statement continued, in relevant part:
5. Why did you not follow policy?
11
Although the Department initially claimed that Kunsak received three referrals for
Williams, Woods acknowledged that there were two. See R.R. at 178a.
12
At that time, Schott managed SCI-Pittsburgh’s general population therapeutic community
housing units A2 and B2. His duties included overseeing behavioral treatment staff, but not the
psychology department staff.
9
With the amount of referrals that I had to process and the
coverage I was providing for our department for the
[m]onth of June, I prioritized the referrals by the urgency
associated with them. I did not perceive urgency involved
with the referral for [] Williams on either date.
6. Are you allowed to do this per policy?
No.
Do you have anything else to add?
Due to the workload and extraordinary circumstances at that
time[,] I could not assess him.
R.R. at 329a (emphasis added); see also R.R. at 63a-67a.
According to Woods, based upon Schott’s findings, SCI-Pittsburgh’s
superintendent determined that a pre-disciplinary conference was necessary.13 The
pre-disciplinary conference was held on August 30, 2013.14 Woods recounted that, at
the pre-disciplinary conference, Kunsak again admitted that she received two
referrals, but did not evaluate Williams within a week of either of them. Therefore,
substantial evidence supports the Commission’s conclusion that Kunsak violated the
Department’s policy.
On appeal, Kunsak does not dispute these facts. Rather, Kunsak claims
that removal was too harsh under these circumstances where SCI-Pittsburgh’s
psychology department was understaffed, and the facts do not support that Williams’
referrals were a priority.15
In support of Kunsak’s mitigation claims, she testified at the hearing that
she was the only Specialist assigned to general population, which meant she was
13
There were other disciplinary matters discussed at the pre-disciplinary conference;
however, they are unrelated to this appeal.
14
The conference panel consisted of Woods, SCI-Pittsburgh’s Major of the Guard Lee Estav
and Field Human Resource Officer Anya Evans.
15
Under Section 803 of the Act, the Department “may for good cause suspend without pay
for disciplinary purposes an employe holding a position in the classified service.” 71 P.S. §
741.803. Thus, the Department had the discretion to suspend rather than discharge Kunsak.
10
responsible for approximately 200 to 300 inmates with mental health needs but who
could function in general population. She related that, in addition, her other duties
included conducting and documenting parole assessments, continuity of care plans
for inmates in the state’s intermediate punishment program, transfers, new
commitments, parole violators and crisis intervention.16 Kunsak agreed that
completing referrals and doing them on time was extremely important. Kunsak also
explained that she prioritized Williams’ first referral based upon the fact that he was
in the infirmary’s care at the time.
Woods acknowledged that although Williams was “housed in the
infirmary,” which is where Section 2.A.4.b of Policy No. 13.8.1 in the Department’s
Procedures Manual requires that inmates with urgent circumstances be placed, R.R. at
326a, that fact did not negate Kunsak’s duty to timely act on the first Williams’
referral. Woods articulated that a referred inmate could be in the infirmary for a
medical reason and, “[i]f he’s in there for a medical reason and he’s having mental
health issues as well, he needs to be followed up with by mental health.” R.R. at
280a-281a.
Woods further conceded that SCI-Pittsburgh is a very busy facility, and
that although the psychology department usually consists of Specialists supervised by
an LPM, SCI-Pittsburgh’s LPM retired in September 2012 and, despite two
replacement searches, the position remained unfilled as of June/July 2013, requiring
him to supervise the psychology department. He acknowledged that LPMs are
16
According to Woods, each Specialist has a primary assignment and other duties, including
parole assessments, sex offender program evaluations and crisis intervention. Woods estimated that
there are approximately 1,850 inmates at SCI-Pittsburgh and, although he could not say what
percentage of those inmates were in general population, he agreed that there are more inmates in
general population than in the restricted housing unit, the special needs unit and the secure special
needs unit. See R.R. at 217a.
11
licensed psychologists, and he was not.17 In addition, Woods admitted that while an
LPM would regularly have met with psychology staff, he did not. See R.R. at 184a.
Woods explained that in the absence of an LPM, he was the individual to
whom Specialists would raise workload concerns. Woods testified that he discussed
workload issues with the psychology staff, including Kunsak, after Vujnovic retired
in 2012 and again after Specialist Cindy Farrell retired in May or June 2013. He
stated:
A. . . . [W]e offered overtime to the [Specialists].
Q. Because there was too much work and not enough
employees - - - ?
A. At that point in time we were down a lot and yes.
R.R. at 225a. Woods acknowledged that there were ongoing discussions about SCI-
Pittsburgh’s staffing issues after Vujnovic’s departure and following the issuance of
the Department of Justice’s May 2013 report regarding understaffing and deficient
mental health services provided at SCI-Cresson. He specified that after he met with
the psychology staff and they reported what they needed to get their work done, he
received authorization to give them overtime hours.
Woods recalled Kunsak reporting to him for the first time at the August
2013 pre-disciplinary conference that she was four to six months behind on her work.
See R.R. at 179a. He maintained that, during the time he was Kunsak’s immediate
supervisor, she did not report an inability to keep up with her referrals. Woods
further stated that he was not aware of Kunsak having been disciplined prior to this
incident. See R.R. at 273a.
17
Woods stated he occasionally borrowed an LPM from SCI-Greene to come in to review
reports, assign Specialists work and evaluate the psychology department’s operation, but there had
not been an LPM at SCI-Pittsburgh for some time.
12
Kunsak admitted that she informed Woods in an August 2013 meeting,
that she was approximately four months behind on her work, but denied that was the
first time. See R.R. at 297a. Notwithstanding, she provided no testimony regarding
when, in the past, she may have expressed them.
“The Commission is the finder of fact and has exclusive authority to
assess credibility and resolve evidentiary conflicts.” Szablowski v. State Civil Serv.
Comm’n (Pa. Liquor Control Bd.), 111 A.3d 256, 261 (Pa. Cmwlth. 2015). Here, the
Commission concluded:
We are not persuaded by [Kunsak’s] arguments, nor do they
mitigate her responsibility to such an extent that a lesser
penalty would be more appropriate. The fact is that
[Kunsak] was assigned the referrals, never performed
the required assessments, and was in clear violation of a
policy that she was aware of, familiar with, and required
to follow. [Kunsak’s] failure to comply with that policy is
clearly related to her competency and ability to perform her
duties as a [Specialist] and establishes just cause for
removal.
Commission Adj. at 18 (emphasis added).
Section 952(c) of the Act authorizes the Commission to “modify or set
aside the action of the appointing authority[ and, w]here appropriate, . . . order
reinstatement, with the payment of so much of the salary or wages lost, including
employe benefits, as the [C]ommission may in its discretion award.” 71 P.S. §
741.952(c). However, this Court lacks similar authority to modify the Department’s
employment action:
The Court must observe that based on the nature and lack of
severity of [the employee’s] infraction, the discipline he
received, termination of employment, seems
disproportionately harsh. While the Commission has the
power to modify the action of the appointing authority even
where the charges brought against the employee are proven,
this Court will not separately weigh evidence or
substitute its judgment for that of the Commission even
13
though we may have reached different factual
conclusions[.]
Thompson v. State Civil Serv. Comm’n, 863 A.2d 180, 185 (Pa. Cmwlth. 2004)
(citation omitted; emphasis added).
One of Kunsak’s responsibilities was to timely act on inmate referrals
for mental health evaluations. Kunsak knowingly violated the policy. If it were true
that her workload in an understaffed environment made it impossible for her to
comply with the policy, at the very least, she should have notified Woods. Instead,
Kunsak designated Williams’ referrals a low priority, and she knowingly failed to
fulfill her job responsibilities. Under the circumstances, we agree with the
Commission that Kunsak’s failure to comply with the Department’s policy rendered
her unfit as a Specialist and her dismissal was “justifiable and for the good of the
service.”18 Perry, 38 A.2d at 951 (quoting Manson, 4 A.3d at 12).
This Court has held that a single policy violation, even in the context of
a long-standing, unblemished work record, may be just cause for removal.19 Perry
18
Kunsak relies upon Gibbs v. State Civil Service Commission, 281 A.2d 170 (Pa. Cmwlth.
1971), to support her contention that her policy violations (i.e., failure to timely interview Williams)
were insufficient just cause for her removal, particularly where there was evidence of supervisor
inefficiency associated with staff levels (i.e., Woods was not knowledgeable of or trained regarding
a Specialist’s duties and the necessary staffing) which resulted in an unreasonable workload. We
acknowledge that the Gibbs Court held that there was not just cause for Gibbs’ removal where there
was undisputed testimony that she was given an unreasonable workload and, thus, her removal was
not the result of her unsatisfactory performance. However, Gibbs is inapposite here because there
was substantial evidence that the staffing shortage was known and anticipated by Kunsak, and
Kunsak’s policy violation was due to her failure to effectively prioritize one of her most crucial and
time-sensitive duties, or to notify someone of her inability to timely carry them out. See Adamovich
v. Dep’t of Pub. Welfare, 504 A.2d 952, 956 (Pa. Cmwlth. 1986) (Gibbs is not controlling where
“substantial evidence exists to support the Commission’s determination that understaffing did not
totally excuse [the employee’s] poor performance[.]”).
19
Kunsak avers that the Commission’s adjudication in Jagota v. SCI-Graterford (SCSC
Appeal No. 27518), wherein Jagota received a 5-day suspension for falsifying records and, thus,
violating an inmate assessment policy, should control this case. However, this Court lacks the
authority to “substitute its judgment for that of the Commission.” Thompson, 863 A.2d at 185.
14
(wherein this Court affirmed the removal of a Department of Labor and Industry
manager for violating its policy prohibiting the possession of weapons in the
workplace). Viewing the evidence, and all reasonable inferences arising therefrom in
a light most favorable to the Department, as we must, we hold that the Commission’s
findings are supported by the record, and those findings, in turn, support a conclusion
that the Department proved just cause to remove Kunsak. Perry. Under the
circumstances, we are constrained to affirm the Commission’s decision.
Lastly, Kunsak avers that the Commission erred as a matter of law by
failing to consider Kunsak’s performance reviews. We disagree. The Commission
permitted testimony at the hearing regarding Kunsak’s August 2012 and August 2013
performance evaluations, and they were admitted into evidence.20 See R.R. at 262a,
20
Woods testified that he reviewed and concurred with Vujnovic’s 2012 overall
“satisfactory” rating of Kunsak’s performance. See R.R. at 266a, 268a. Therein, under “Work
Results,” Vujnovic commented: “Dr. Kunsak has demonstrated considerable improvement since last
review period in attending to time-sensitive reports.” R.R. at 398a. Under “Initiative/Problem
Solving” is posted, in pertinent part: “Dr. Kunsak has developed procedures to ensure new
commitments are assessed and needed referrals are made.” R.R. at 398a. That August 2012
evaluation states that “Dr. Kunsak has managed duties and assignments in an acceptable manner
during this review period.” R.R. at 400a.
Woods explained that, in the absence of an LPM, he completed Kunsak’s August 2013
performance review, and gave her an overall “needs improvement” rating in light of “some
difficulties during this rating period.” R.R. at 405a. In Kunsak’s August 2013 evaluation,
completed after her rule violation, Woods commented that she “needs to focus on getting the basic
function of her job done, she has not been following up with referrals in a timely manner.” R.R. at
403a. He further reported that Kunsak “usually communicates effectively enough to complete most
of her assignments,” and that she “appears to be addressing existing problems as she sees them.”
R.R. at 403a. However, he also noted that Kunsak “does not always carry through with solutions
and often makes decisions independently that need to show more thought and need to ensure they
follow policy and procedure.” R.R. at 403a. He further commented under “Work Habits,” in
relevant part, that “[t]he volume of [Kunsak’s] work is not being completed in a timely manner.”
R.R. at 404a. Under “Additional Rater Comments,” Woods stated: “[Kunsak] need[s] to complete
all paperwork in a timely manner, this area will be re-evaluated in 90 days. This is especially
important with the inmate referrals to psychology. Not only does she need to follow up[,] but her
documentation . . . needs to be down [sic] correctly.” R.R. at 406a. At Kunsak’s request, Woods
discussed her 2013 evaluation with her on August 26, 2013.
15
265a, 275a, 290a-314a, 397a-404a. In the Commission’s Adjudication, it specifically
stated that it “reviewed the entire record.” Commission Adj. at 17. More
specifically, the Commission recognized therein that “[Kunsak] testified about an
annual employee performance review (hereinafter ‘EPR’) she received for the rating
period of August 2012 to 2013[.]” Commission Adj. at 17. The Commission
concluded:
With regard to the evidence presented concerning
[Kunsak’s] August 2012 to August 2013 annual EPR, we do
not find this evaluation relevant to our determination. The
EPR was issued after the fact-finding and [pre-disciplinary
conference] had been conducted concerning incidents which
occurred in June and July 2013. Any comments in the EPR,
consequently, were made after the incidents resulting in
removal had transpired, and are not probative of whether
[Kunsak] had been warned prior to the incidents that she
was behind in her workload and that she failed to heed that
warning.
Commission Adj. at 18 n.6. Thus, it is clear that the Commission considered
Kunsak’s performance evaluations, but deemed the 2013 evaluation not probative of
whether she violated the Department’s policy in June/July 2013.
Based upon the foregoing, we affirm the Commission’s Adjudication
and Order.
___________________________
ANNE E. COVEY, Judge
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Nancy E. Kunsak, :
Petitioner :
:
v. :
:
State Civil Service Commission :
(State Correctional Institute at :
Pittsburgh, Department of Corrections), : No. 746 C.D. 2015
Respondent :
ORDER
AND NOW, this 5th day of May, 2016, the State Civil Service
Commission’s April 6, 2015 Adjudication and Order is affirmed.
___________________________
ANNE E. COVEY, Judge