P. Kolega v. SCSC (Dept. of Ed.)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pamela Kolega, :
Petitioner :
:
v. : No. 2056 C.D. 2014
: Argued: September 17, 2015
State Civil Service Commission :
(Department of Education), :
Respondent :
BEFORE: HONORABLE DAN PELLEGRINI, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
PRESIDENT JUDGE PELLEGRINI FILED: October 15, 2015
Pamela Kolega petitions for review of the order of the State Civil
Service Commission (Commission) dismissing her appeal and affirming her
furlough by the Department of Education (Department) from her position of
English Language Education Advisor 2 (ELEA 2) under the Civil Service Act
(Act).1 We affirm.
1
Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§741.1-741.1005. Section 3(s)
of the Act defines “furlough” as “the termination of employment because of lack of funds or of
work.” 71 P.S. §741.3(s). See also Section 101.1(a) of the Commission’s regulations, 4
Pa. Code §101.1(a) (“Furloughs shall occur only because of lack of funds or lack of work.”).
I.
Kolega is an older female, aged 65, and is disabled by chronic
rheumatioid arthritis. In May 1995, the Department hired her in the position of
Basic Education Associate 1 (BEA 1) in the Department’s Bureau of Teaching and
Learning (Bureau), Migrant Education Division. In June 2000, Kolega was
promoted to the position of World Language Education Advisor 2 in the Bureau’s
Curriculum Division. In June 2011, she was furloughed and was reassigned as the
only employee in the ELEA 2 position in the Bureau’s Curriculum Division.
Positions in the Curriculum Division are funded through the Commonwealth’s
general government operations (GGO) fund.
In February 2013, the Governor’s Budget Office issued the proposed
budget for the 2013-2014 fiscal year, which indicated that the Department would
be required to eliminate 21 GGO-funded positions. The Department chose to
abolish 18 vacant positions, and three Deputy Secretaries were directed to
eliminate one GGO-funded position each. The Department concluded that
Kolega’s duties could be performed by other employees based on a reorganization
plan and her GGO-funded ELEA 2 position was eliminated.
Kolega’s ELEA 2 position was covered by the collective bargaining
agreement (CBA) between the Commonwealth and the Federation of State Cultural
and Educational Professionals (Union), and the furlough procedures under the
CBA permit bumping to positions in classifications previously held in a seniority
unit.2 In August 2013, Kolega was advised of her furlough from the ELEA 2
2
Section 802(a), (c) of the Act provides, in relevant part:
(Footnote continued on next page…)
2
position and she accepted a bump to a vacant BEA 1 position in the Bureau’s
Student Services Division, a position that she had previously held.
II.
In August 2013, Kolega filed an appeal of the furlough and the bump
demotion.3 She alleged that the demotion was improper because: her ELEA 2
(continued…)
An employe shall be furloughed only if at the time of furlough, the
employe is within the lowest quarter among all employes of the
employer in the same class on the basis of their last regular service
ratings, and within this quarter the employe shall be furloughed in
the order of seniority unless there is in existence a labor agreement
covering the employes to be furloughed, in which case the terms of
such labor agreement relative to a furlough procedure shall be
controlling: Provided, That the appointing authority may limit the
application of this provision in any particular instance to employes
in the same class, classification series or other grouping of
employes as referred to in any applicable labor agreement, and
which are in the same department or agency within the same
bureau or division…. Under the rules a regular employe
furloughed shall for a period of one year be given preference for
reemployment in the same class of position from which furloughed
and shall be eligible for appointment to a position of a similar class
in other agencies under this act unless the terms of an existing
labor agreement preclude the employe from receiving the
preferential treatment contained in this section in which event the
terms of the labor agreement shall be controlling.
71 P.S. §741.802(a), (c). See also Section 101.1(l) of the Commission’s regulations, 4 Pa. Code
§101.1(l) (“If there is a labor agreement covering the employees to be furloughed, the terms of
the agreement as to furlough and reemployment procedures shall be controlling.”).
3
Section 3(r) of the Act defines “demotion” as the “voluntary or involuntary movement
of an employee to a class assigned to a pay range with a lower maximum salary.” 71 P.S.
§741.3(r).
3
position was federally funded and should not have been affected by the state
budget; the Department never implemented the proposed reorganization supporting
her furlough; the Department lacked the authority to eliminate the ELEA 2 position
because it was “critical;” and the position was never really eliminated because it
appeared as “Vacant” on the Department’s website as of November 2013.
Kolega also alleged traditional discrimination due to her age and
disability, as well as that her furlough was taken in retaliation for prior actions she
brought before the Pennsylvania Human Relations Commission (PHRC). Kolega
also alleged technical discrimination because: the Department failed to
demonstrate lack of funds or lack of work as required by the Act; the Department
failed to comply with the requirements of Section 101.1(c) and (d) of the
Department’s regulations regarding furloughs;4 and the Department targeted her as
4
4 Pa. Code §101.1(c), (d). Section 101.1(c) and (d) state:
(c) Furlough units. Furloughs will be conducted within approved
furlough units. For purposes of this section, a furlough unit shall
be defined as all employees in the classification within an affected
institution, division, bureau or a combination of the institutions,
divisions or bureaus within an agency. Each appointing authority
will submit recommended furlough units to the Director. Once
approved by the Director, these furlough units will be used for
subsequent furloughs. Changes to the approved furlough units
shall be submitted to and approved by the Director prior to their
use in subsequent furloughs.
(d) Order of furlough. When a furlough is necessary, the last
annual or probationary performance evaluations, as applicable, of
regular employees in the same furlough unit and class shall be
converted to categories or relative ranks. The employees will be
placed into quarters, and those in the lowest quarter will be
furloughed or returned under subsection (e), in the inverse order of
(Footnote continued on next page…)
4
a unit of one because there were 50 or more other GGO-funded employees in the
Office of Elementary and Secondary Education that could have been furloughed.
At hearing, Rita Perez (Perez), the Bureau’s Director at the time of the
furlough, testified that she managed the Curriculum, Federal Programs, Student
Services and Planning Division, including each division’s program and personnel.
She stated that there were a total of 21 positions that were abolished in August
2013, 18 of which were vacancies and three actual positions that were furloughed
which included Kolega’s position. Perez testified that Kolega was furloughed as
part of an overall Department deputate reorganization plan that included collapsing
the Bureau of Assessment into the Bureau of Teaching and Learning to repurpose
two divisions in each bureau. Perez stated that following review, they determined
that they had the staffing necessary in both bureaus in English Language Arts and
did not need the third Language Arts position, Kolega’s position, to accomplish
necessary tasks because there were already two federally-funded Education
Assessment Specialists in the Assessment Bureau. She explained the
appropriateness of Kolega’s furlough as follows:
It was appropriate because we already had two
folks in the Bureau of Assessment who focused on
English Language Arts type of assessments. Moving
forward in that position, the Department is to focus more
on the assessment part of curriculum and assessment.
(continued…)
classified service seniority. Seniority for this purpose shall be the
length of continuous service in the classified service if there has
been no break in service.
5
We had two people filling that position, and we did not
need a third person.
(Reproduced Record (RR) at 88a-89a).
Perez testified that she first became aware of the furloughs during
budget discussions with the Department’s Deputy Secretary at that time, Carolyn
Dumaresq (Dumaresq), and the Chief of Staff at that time, David Folkman. She
stated that she made the decision to furlough Kolega in collaboration with
Dumaresq. She testified that she did not discriminate against Kolega on the basis
of age, disability or any other non-merit factor and did not retaliate against Kolega.
Diane Hershey (Hershey), the Director of the Bureau of Human
Resources, testified that the Governor’s Budget Office issued a proposed budget in
February 2013 requiring the elimination of 21 GGO positions. She stated that she
found 18 vacant GGO positions that were eliminated and that three program
deputies recommended the remaining three GGO positions that would be
eliminated: an Education Executive 1 position in the Office of Child Development
and Early Learning; a clerk typist from the Office of Post-Secondary Education;
and Kolega’s ELEA 2 position in the Office of Elementary and Secondary
Education. She testified that Kolega’s position “[w]as not federally funded. It was
GGO funded from July 1st, 2006. I can’t remember exactly when [Kolega’s
predecessor] started. But the federal money was dried up, was eliminated. So we
moved the job to general government operations, GGO money July 1 st, 2006.”
(RR at 158a). Hershey acknowledged that Kolega’s Exhibit 16 showed that the
Department’s website listed Kolega’s ELEA 2 position as “Vacant,” but that the
6
Department’s press office prepares the website and that that position had been
abolished. (Id. at 159a, 160a).
Hershey stated that the reason that Kolega’s position was chosen for
elimination was because “there’s two employees [in the Assessment Bureau] doing
assessment work relative to English Language” and “[w]e would have duplicative
… work because there are two positions in assessment, Bureau of Assessment and
Accountability that are performing the assessment work.” (RR at 156a, 544a).
She testified that the clerk typist was able to bump into a federally-funded position
and that Kolega was able to bump into the BEA 1 position under the CBA. She
stated that she prepared a letter for the acting Department Secretary requesting
approval of the furlough by the Secretary of Administration; the furlough was
approved; Kolega was notified that she was to be furloughed and that she could
bump into the BEA 1 position that she previously held, one pay scale group lower,
because there were no other ELEA 2 or ELEA 1 positions; and that Kolega elected
to accept the offered position. Hershey stated that she was involved in various
efforts to accommodate Kolega’s disability and that she never denied any of the
requests for accommodation. Hershey denied that she discriminated against
Kolega based on age, disability or any other non-merit factor and did not retaliate
against Kolega.
The Union’s President, William Betrand, testified for Kolega that he
was notified by e-mail of the Department’s decision to furlough Kolega. He stated
that he met with representatives of the Department and the Office of
7
Administration to inquire into the reasoning for Kolega’s furlough. He testified
that he is not aware of any violation of the CBA’s process in Kolega’s furlough.
Kolega testified that at an August 2013 meeting, she was given a copy
of the written notice of furlough which stated that she “was being furloughed for
economic reasons,” and that she “would be demoted to an EL[E]A 1 in another
division.” (RR at 344a). She stated that she was not told that her ELEA 2 position
was being eliminated at that meeting, but she was told that only the GGO
complement had been reduced as opposed to federally-funded positions. She
explained that in her prior position, she was responsible for overseeing the English
language standards contained in the “Pennsylvania Core Standards,” as provided in
the Department’s regulations.5 She testified that the mathematics advisor and a
number of younger individuals designated as contacts on other areas of study were
not furloughed, and that contractors and consultants are currently overseeing the
English language standards. She stated that she was told that the ELEA 2 position
was going to be federally-funded when she was placed in that position in July
2011, and that her predecessor in the position, Jo Beth McKee, had been federally-
funded, but that her travel expenses were state-funded. (RR at 372a-375a).
5
See Section 4.3 of the Department’s regulations, 22 Pa. Code §4.3 (“Pennsylvania Core
Standards—Academic standards for English language arts and mathematics based upon a
Nationwide, state-led process coordinated by the National Governors Association and the
Council of Chief State School Officers and in collaboration with teachers, content experts and
other education stakeholders. The standards define the knowledge and skills students should
have within their K-12 education careers so that they will graduate high school able to succeed in
entry-level, credit-bearing academic college courses and in work-force training programs.”).
8
Kolega also testified regarding her 2008 and 2013 requests for
accommodations under the Americans with Disabilities Act6 (ADA) and noted that
some had been accepted based upon her 2008 request. She stated that the 2013
request reiterated the 2008 request because she had a supervisor who had
complained about her needing assistance, and that in July 2013, the Department
approved the same accommodations as previously granted. She testified that the
ADA accommodations were part of her complaint to the PHRC. Kolega
acknowledged that she is currently the Department’s Refugee Program Officer
with bi-weekly pay of $2,715.00.
Sarah Flaherty, the Acting Chief of the Curriculum Division, testified
for Kolega that she was not aware of the planned reorganization and that she was
not consulted regarding the Department’s furlough decisions. She stated that Perez
told her over the telephone about Kolega’s furlough and where Kolega was moving
in the Department. She testified that while she has worked with contractors with
respect to English Language Arts, the contractor that she has been working with,
Jean Dyszel, has not been performing English Language Arts duties and she does
not know who, if anyone, is performing Kolega’s former duties.
Barbara Dychala, the Department’s Labor Relations Coordinator,
testified that she did not participate in any furloughs, but she coordinated and
participated in the August 2013 meet and discuss meeting that the Union had
requested. She stated that the matters discussed at that meeting related to Kolega’s
6
42 U.S.C. §§12101-12213.
9
furlough and that she summarized the meeting and responded to the concerns
expressed there in a September 2013 letter.
John Gasdaska, the Office of Administration’s Director of Labor
Relations, testified that his primary role in furlough actions is to implement the
contractual seniority provisions and to provide notification to the relevant union.
He acknowledged that “the agency has broad discretion in that area to show lack of
money and how they are going to address it [through furloughs],” (RR at 488a),
and that he did not discuss with Hershey whether the English Language Arts
position was critical. He stated that he participated in the August 2013 meet and
discuss meeting, but that the Department researched the issues that were discussed
and prepared and sent the response.
Debra Jenkins (Jenkins), a budget analyst in the Department’s Bureau
of Budget and Fiscal Management, testified that she deals with cost codes which
are used to charge accounts for payment. She stated that she prepared statements
recording the cost codes used by the Department for the ELEA 2 position in 2010
and 2011. She testified that the ELEA 2 position was paid with federal funds when
it was held by McKee in 2010, and that the ELEA 2 position was paid with GGO
funds when it was held by Kolega in 2011. (RR at 515a-517a). She stated that
“[in] 2008, Jo Beth McKe[e] had applied for and received a Striving Reader Grant
and a Reading Recovery Grant so she was managing federal funding. So it was
deemed her position could be federally funded and not be in federal audit.” (Id. at
525a). Nevertheless, she testified that when Kolega went into the ELEA 2
position, it was state-funded. (Id. at 519a).
10
III.
The Commission dismissed Kolega’s appeal. Regarding Kolega’s
claim that the ELEA 2 position was federally-funded, the Commission noted that
the only evidence that she offered in support was her own testimony. However, it
noted, though, that Kolega’s own witness, Jenkins, testified that even though
Kolega’s predecessor in the position applied for and received federal funding, her
position was state-funded through GGO funds as of October 2011. As a result, the
Commission “conclude[d] that [Kolega] has failed to refute the [Department]’s
inclusion of her position as subject to the GGO-based reduction.” (RR at 891a).
The Commission also rejected Kolega’s claims that the Department
relied upon the staffing proposals in a never-fully-implemented reorganization
plan, and that her ELEA 2 position was “critical” and had not actually been
eliminated. The Commission determined that the fact that the reorganization plan
was never fully implemented was irrelevant, because credible evidence was
proffered that the reason that the Department eliminated her position was because
there were other personnel who could perform her duties. The Commission also
rejected Kolega’s assertion that the ELEA 2 position was “critical,” noting that
“[w]hile the Code clearly emphasizes the importance of the English Language
Arts, we have found no language dictating that the [Department]’s responsibilities
be performed by the ELEA 2 or any other designated position.” (RR at 892a n.
10). The Commission likewise rejected Kolega’s claim that the ELEA 2 position
was not eliminated, noting her evidence in support and stating that “[t]he
[Department] has, through Hershey, introduced credible testimony establishing that
the position has, in fact, been abolished.” (Id. at 892a).
11
The Commission explained that because Kolega brought her age and
disability traditional discrimination claims under Section 951(b) of the Act, she
had the initial burden “to present evidence that, if believed and otherwise left
unexplained, indicates that more likely than not discrimination has occurred”
thereby establishing a presumption of discrimination requiring the Department to
“introduce evidence of a ‘non-discriminatory explanation’ for the challenged
personnel action.” (RR at 892a-893a) (citations omitted). The Commission
concluded that “[w]hile her presentation may be deemed adequate to meet the
standard for a prima facie claim, the [Department]’s non-discriminatory
explanation—i.e., credible testimony that the English Language Arts duties could
be performed by others ([RR at 156a-157a])—was sufficient to persuade this
Commission that [Kolega]’s age and disability were not the reasons for the
[Department]’s decision. (Id. at 893a). As a result, the Commission dismissed
Kolega’s age-based and disability-based discrimination claims because they were
not “supported by credible evidence of an intent to discriminate.” (Id.).
Regarding Kolega’s technical discrimination claim under the Act that
its provisions were not followed, the Commission determined that sufficient
credible evidence establishing a prima facie lack of funds was submitted “through
the presentation of the Budget proposal withdrawing funding for twenty-one
positions,” and a prima facie lack of work “through testimony establishing that
[Kolega]’s position was, in good faith, eliminated in compliance with the proposed
funding reduction.” (RR at 894a). As a result, the Commission dismissed
Kolega’s argument in this regard “having found both a lack of funds and a lack of
work.” (Id.).
12
In regards to Kolega’s technical discrimination claims that the Code
provisions were not followed, the Commission found that they “have not been
explained either at hearing or in her post-hearing Brief.” (RR at 894a).
Nevertheless, the Commission noted that both the Act and the Code “give[]
precedence to the terms of labor agreements relative to furlough procedure” and
that the Department presented credible evidence that Kolega’s ELEA 2 position
was subject to the terms of the CBA with the Union and that the CBA included a
statement on the furlough procedures. (Id. at 894a-895a). As the Commission
explained:
As has been noted the procedure used to determine the
effect of the decision to abolish [Kolega]’s position and
[Kolega]’s furlough rights was based upon the [CBA]
covering that position. The Commonwealth Court of
Pennsylvania, in Scuoteguazza et al. v. Commonwealth,
Department of Transportation et al., [368 A.2d 869 (Pa.
Cmwlth. 1977)], advised the Commission that while the
Commission retained jurisdiction to determine the
sufficiency of the agency’s justification for furlough—
i.e., whether the agency has proven the existence of a
lack of funds or a lack of work sufficient to necessitate a
furlough—the Commission is not empowered to interpret
the [CBA] to determine whether the agency adhered to a
furlough procedure established thereunder.
(Id. at 895a n. 13). As a result, the Commission denied Kolega’s technical
discrimination claims.
Finally, regarding Kolega’s retaliation claim, the Commission noted
that she alleged that she had filed three separate age, disability and retaliation
discrimination complaints with the PHRC, and that her furlough and demotion
13
were causally related thereto. However, because the Act does not provide a
standard for reviewing retaliation claims, the Commission applied the standard for
reviewing traditional discrimination claims and found that Kolega “failed to
present evidence sufficient to show any causal connection between her PHRC
complaints and her furlough; without such evidence, [her] allegation of retaliation
has been deemed unproven.” (RR at 895a-896a). The Commission also applied
the standard used to establish a prima facie case of retaliation before the PHRC,
and found that “[b]ased upon our ruling, it is apparent that, even using a specific
retaliation standard, [Kolega]’s claim would have been dismissed.” (Id. at 896a n.
14).
IV.
A.
In this appeal,7 Kolega first argues that the Commission’s
determination that she was properly furloughed under Section 802 of the Act due
to lack of funds or lack of work is not supported by substantial evidence.
7
This Court’s scope of review of a Commission adjudication is limited to determining
whether necessary findings of fact are supported by substantial evidence, whether an error of law
has been committed or whether constitutional rights have been violated. Section 704 of the
Administrative Agency Law, 2 Pa. C.S. §704; Pennsylvania Game Commission v. State Civil
Service Commission, 747 A.2d 887, 891 (Pa. 2000). Substantial evidence is such relevant
evidence as a reasonable mind might accept to support a conclusion. Shade v. Civil Service
Commission, 749 A.2d 1054, 1056 n.5 (Pa. Cmwlth.), appeal denied, 764 A.2d 52 (Pa. 2000).
The Commission is the sole fact finder in civil service cases, and it has the exclusive authority to
assess witness credibility and evidentiary weight. Bosnjak v. State Civil Service Commission,
781 A.2d 1280, 1286 (Pa. Cmwlth. 2001). As a result, this Court will not disturb the
Commission’s determinations regarding credibility or the weight of the evidence. Id. In
reviewing a Commission decision, this Court views the evidence and all reasonable inferences
arising therefrom in a light most favorable to the prevailing party. Id.
14
Specifically, Kolega asserts that there is no credible evidence demonstrating a lack
of funds because she presented credible evidence that her ELEA 2 position was
federally-funded. She contends that there is no credible evidence demonstrating a
lack of work because her ELEA 2 position was not eliminated, the proposed
Department reorganization never took place, and no reason for the furlough was
provided at the time that it was implemented.
The Department bears the burden of proof and the burden of going
forward to make a prima facie showing that there was a lack of funds or lack of
work. See Dougherty v. Department of Health, 538 A.2d 91, 93 (Pa. Cmwlth.
1988) (stating that the burden of proof is on the employer to establish a lack of
funds or a lack of work in civil service appeals). In order for a furlough to be
based upon a lack of funds, there must be insufficient revenue to meet all financial
demands unless modifications are made in the Department. Bumba v.
Pennsylvania State System of Higher Education, 734 A.2d 36, 38 (Pa. Cmwlth.
1999), appeal denied, 757 A.2d 935 (Pa. 2000); County of Beaver v. Funk, 492
A.2d 118, 121 n.6 (Pa. Cmwlth. 1985); Forbes v. Department of Transportation,
434 A.2d 892, 894 n.4 (Pa. Cmwlth. 1981). However, a furlough based on a lack
of funds does not require a showing of bankruptcy; “[a] ‘lack of funds’ exists when
insufficient revenue is available to meet all financial demands unless modifications
are made in the system.” Id.
A furlough based on a lack of work is proper when “the amount of
work the employee is performing does not warrant [her] retention in view of the
fact that the employee’s work can more efficiently, from a cost or operational
15
standpoint, be performed through reassignment to others.” Department of State v.
Stecher, 484 A.2d 755, 758 (Pa. 1984). To show that a furlough was properly
based upon a lack of work, the employer must show that: (1) a position was
eliminated; (2) a reorganizational streamlining occurred; and (3) management
believed in good faith that the employee’s work could be conducted more
efficiently in the absence of the eliminated position. Id. at 759; Haskins v.
Department of Environmental Resources, 636 A.2d 1228, 1229 (Pa. Cmwlth.
1994). However, whether the employer could or should have cut other positions
instead of the appellant’s is not an issue before us; management, rather than the
courts, is entrusted with the discretion to determine what actions will best promote
the efficiency of the agency’s service to the public. Stecher, 484 A.2d at 758;
Stover v. Department of Environmental Resources, 636 A.2d 1275, 1277 (Pa.
Cmwlth. 1994); Vovakes v. Department of Transportation, 453 A.2d 1072, 1074
(Pa. Cmwlth. 1982). “[W]hen an agency determines that necessary work can be
performed adequately with fewer employees, thus saving Commonwealth funds,
that agency is obliged to ‘tighten up’ its work force by eliminating excess
positions.” Haskins, 636 A.2d at 1229.
Contrary to Kolega’s assertion as outlined above, there is ample
substantial evidence supporting the Commission’s determinations that her furlough
was due to both lack of funds and lack of work. Perez testified that Kolega was
furloughed as part of an overall Department reorganization that included collapsing
the Bureau of Assessment into the Bureau of Teaching and Learning to repurpose
two divisions in each, and that it was determined that they had the necessary
staffing in both bureaus in English Language Arts and did not need Kolega’s
16
position because of the two federally-funded Education Assessment Specialists in
the Assessment Bureau. (RR at 88a-89a). Jenkins, Kolega’s witness, testified that
the ELEA 2 position was paid with federal funds when it was held by McKee in
2010, and that the ELEA 2 position was paid with GGO funds when it was held by
Kolega in 2011. (Id. at 515a-517a). Hershey also testified that Kolega’s position
was paid with GGO funds. She also acknowledged that while Kolega’s Exhibit 16
showed that the Department’s website listed Kolega’s ELEA 2 position as
“Vacant,” the Department’s press office prepares the website and that that position
had, in fact, been abolished. (Id. at 159a, 160a). She stated that the reason that
Kolega’s position was chosen for elimination was because there were already two
employees in the Assessment Bureau doing assessment work in English Language
Arts and that there was duplicative work based on those two federally-funded
positions. (Id. at 156a, 544a).
Additionally, Kolega’s furlough letter stated that she was being
furloughed “due to a lack of funds.” (RR at 309a). Moreover, it is immaterial
even if no reason for the furlough had been provided Kolega at the time that it was
implemented. A furlough, unlike other actions such as a termination for cause, is
not predicated upon specific acts by the employee but, rather, external economic
pressures and workplace reorganizations that are not easily distilled; for this
reason, neither the Act nor the Commission’s regulations require that the notice of
furlough include a discussion of the justifications which the employer would later
use if the furlough is challenged. Martin v. State Civil Service Commission
(Department of Community and Economic Development), 741 A.2d 226, 230-31
(Pa. Cmwlth. 1999) (stating that a furlough is not an adverse employment
17
determination requiring notice of the basis for the action); Section 105.3 of the
Commission’s regulations, 4 Pa. Code §105.3 (providing that only “[n]otices of
removal, involuntary demotion or suspension issued to regular employees shall
include a clear statement of the reasons therefore, sufficient to apprise the
employee of the grounds upon which the charges are based….”). As a result, the
purported absence of reasons for Kolega’s furlough at the time of its
implementation does not preclude the Department from raising those issues in her
Commission appeal.
B.
Kolega next argues that the Commission erred in determining that the
Department did not engage in either technical discrimination or discrimination
based on her age or disability or in retaliation for her complaints to PHRC. We do
not agree.
There are two categories of discrimination that may be appealed to the
Commission under Section 951(b) of the Act: “traditional discrimination” and
“technical discrimination.” Pronko v. Department of Revenue, 539 A.2d 456 (Pa.
Cmwlth. 1988). Traditional discrimination claims under Section 905.1 of the Act 8
are based on factors such as race, sex, age, disability and national origin. Id. at
462. Technical discrimination claims are based on technical and procedural
violations of the Act and related regulations. Reck v. State Civil Service
Commission, 992 A.2d 977, 980 n.3 (Pa. Cmwlth. 2010). In order to obtain relief
8
Added by Act of August 27, 1963, P.L. 1257, 71 P.S. §741.905a.
18
for technical discrimination, an employee must show that she was, in fact, harmed
because of the technical non-compliance with the Act or evidence that because of
the peculiar nature of the procedural impropriety, she could have been harmed but
there is no way to prove that for certain. Price v. Luzerne/Wyoming Counties Area
Agency on Aging, 672 A.2d 409, 413 (Pa. Cmwlth. 1996), appeal denied, 688 A.2d
174 (Pa. 1997).
1.
In traditional discrimination claims arising under Section 905.1 of the
Act, the employee claiming discrimination in personnel actions has the burden of
presenting evidence to support such a charge. Cola v. State Civil Service
Commission (Department of Conservation & Natural Resources), 861 A.2d 434,
436 (Pa. Cmwlth. 2004). In Moore v. State Civil Service Commission (Department
of Corrections), 922 A.2d 80, 85 (Pa. Cmwlth. 2007), this Court addressed the
standard of proof for traditional discrimination claims enunciated by the Supreme
Court in Allegheny Housing Rehabilitation Corp. v. Pennsylvania Human
Relations Commission, 532 A.2d 315, 319 (Pa. 1987).
First, the plaintiff must produce sufficient evidence to establish a
prima facie case. Moore, 922 A.2d at 85. To do so, the plaintiff must present
sufficient evidence that, if believed and otherwise unexplained, indicates more
likely than not that discrimination occurred. Id. 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 from the defendant, a
presumption of discrimination arises and the plaintiff’s prima facie case stands
19
determinative of the factual issue of the case. Id. If, however, the defendant 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 employer’s motivation it believes. Id.
Regarding Kolega’s traditional discrimination claim, the Commission
found that “the [Department]’s non-discriminatory explanation—i.e., credible
testimony that the English Language Arts duties could be performed by others
([RR at 156a-157a])—was sufficient to persuade this Commission that [Kolega]’s
age and disability were not the reasons for the [Department]’s decision.” (Id. at
893a). As outlined above, there is ample substantial evidence to support this
determination that the furlough was purely based on non-discriminatory factors.
2.
Kolega alleges that the Commission erred in failing to find technical
discrimination because the Department failed to furlough her in accordance with
the seniority provisions of the Act9 and Article 24, Section 7 of the CBA.10
9
As noted above, Section 802(a) of the Act states, in relevant part, “That the appointing
authority may limit the application of this provision in any particular instance to employes in the
same class, classification series or other grouping of employes as referred to in any applicable
labor agreement, and which are in the same department or agency within the same bureau or
division….” 71 P.S. §741.802(a).
10
Article 24, Section 7 of the CBA states, “In any class within the unit affected by
layoffs or furloughs, all emergency, temporary and provisional employees shall be laid off or
furloughed before any other employee.” (RR at 630a).
20
Specifically, she argues that provisional or temporary employees are to be removed
or furloughed before regular employees and that a consultant was hired to perform
the duties of her position. However, the Commission found credible Hershey’s
testimony that “there’s two employees [in the Assessment Bureau] doing
assessment work relative to English Language” and that “[w]e would have
duplicative … work because there are two positions in assessment, Bureau of
Assessment and Accountability that are performing the assessment work.” (RR at
156a, 544a). There was no Commission finding that the employees that were
retained were provisional or temporary employees in violation of either the Act or
the CBA.
3.
With respect to her retaliation claim, the Commission found that she
“failed to present evidence sufficient to show any causal connection between her
PHRC complaints and her furlough; without such evidence, [her] allegation of
retaliation has been deemed unproven,” and that under the standard used by the
PHRC to establish a prima facie case of retaliation, “[b]ased upon our ruling, it is
apparent that, even using a specific retaliation standard, [Kolega]’s claim would
have been dismissed.” (RR at 895a-896a n. 14). While Kolega cites evidence
demonstrating, perhaps, that her furlough was temporally related to the retirement
of her former supervisor against whom she had filed the PHRC complaints, she
does not cite to any evidence found credible by the Commission which
demonstrates the causal relation between the reports and her furlough. Simply, the
Commission accepted as credible the Department’s non-discriminatory motivation
21
for her furlough and bump into the vacant BEA 1 position in the Bureau’s Student
Services Division and we will not disturb that determination on appeal.
C.
Finally, Kolega argues that the Commission erred in failing to take
judicial notice11 that the Department’s website stated that her ELEA 2 position is
vacant. However, in disregard of Pa. R.A.P. 2117(c) and 2119(e), Kolega has
failed to include in her brief any statement advising us of the manner in which the
issue was raised before the Commission and the place in the record where the
preservation of this issue may be found. Therefore, we deem this argument
waived.12 Moreover, even if it is assumed that the Commission was required to
11
As this Court has explained:
“Official notice” is the administrative counterpart of judicial notice
and is the most significant exception to the exclusiveness of the
record principle. The doctrine allows an agency to take official
notice of facts which are obvious and notorious to an expert in the
agency’s field and those facts contained in reports and records in
the agency’s files, in addition to those facts which are obvious and
notorious to the average person. Thus, official notice is a broader
doctrine than is judicial notice and recognizes the special
competence of the administrative agency in its particular field and
also recognizes that the agency is a storehouse of information on
that field consisting of reports, case files, statistics and other data
relevant to its work.
Falasco v. Pennsylvania Board of Probation and Parole, 521 A.2d 991, 995 n.6 (Pa. Cmwlth.
1987) (citations omitted).
12
See, e.g., In re Condemnation of Land for South East Central Business District
Redevelopment Area No.1, 946 A.2d 1154, 1156 (Pa. Cmwlth), appeal denied, 968 A.2d 233
(Pa. 2008), cert. denied, 556 U.S. 1208 (2009) (“[T]he statement of the case and/or argument
portion of a brief must contain a ‘specific reference to the places in the record’ where the ruling,
(Footnote continued on next page…)
22
take notice that the Department’s website stated that the ELEA 2 position was
vacant, as noted above, Hershey acknowledged that while Kolega’s Exhibit 16
showed that the Department’s website listed Kolega’s ELEA 2 position as
“Vacant,” the Department’s press office prepares the website and that that position
had, in fact, been abolished. (RR at 159a, 160a). As a result, any purported error
in this regard was harmless as the credible evidence rebutted the information on the
website.
Accordingly, the Commission’s order is affirmed.
________________________________
DAN PELLEGRINI, President Judge
(continued…)
or exception thereto, appears in order to show that the question before the court was timely and
properly raised below so as to preserve the question on appeal. Pa. R.A.P. 2117(c); Pa. R.A.P.
2119(e).”).
23
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pamela Kolega, :
Petitioner :
:
v. : No. 2056 C.D. 2014
:
State Civil Service Commission :
(Department of Education), :
Respondent :
ORDER
AND NOW, this 15th day of October, 2015, the order of the State
Civil Service Commission dated October 15, 2014, at No. 27958, is affirmed.
________________________________
DAN PELLEGRINI, President Judge