F.M. Burock v. Office of the Budget (SCSC)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Frank M. Burock, :
Petitioner :
:
v. :
:
Office of the Budget :
(State Civil Service Commission), : No. 656 C.D. 2021
Respondent : Submitted: January 28, 2022
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE FIZZANO CANNON FILED: May 9, 2022
Frank M. Burock (Burock), pro se, petitions for review of the April 29,
2021 order of the State Civil Service Commission (Commission) sustaining the
decisions of the Office of the Budget (Employer) to impose a level-two alternative
discipline in lieu of suspension with final warning (ADLS-2) and to remove Burock
from regular Accountant 3 employment with Employer’s Executive Offices, and
dismissing Burock’s appeal therefrom. Upon review, we affirm.
I. Background
A. Disciplinary Actions by Employer
Burock worked for Employer’s Bureau of Accounting and Financial
Management (BAFM) as an Accountant 3 from March 2012 until his termination in
June 2019. Comm’n Adj., 4/29/21 at 3, Finding of Fact (F.F.) 3-4 & 6, Supplemental
Reproduced Record (S.R.R.)1 at 410b; see also id. at 15, S.R.R. at 422b. Burock
was tasked with assisting in the oversight of the fiscal and budgetary affairs of
multiple Commonwealth agencies by reconciling and analyzing financial
information, preparing financial statements and forecasting budgetary and cash
needs. F.F. 7. By signature dated February 21, 2018, Burock acknowledged receipt
of Employer’s job performance standards for his position. Comm’n Adj., 4/29/21 at
16, S.R.R. at 423b; see also Transcript of Testimony (T.T. 2020) at 76, S.R.R. at
78b.2 As a senior level accountant, Burock was expected to provide guidance to
other accountants. F.F. 8.
In January 2019, Employer placed Burock on a performance
improvement plan (January 2019 PIP) for the January 2019 to March 2019 rating
period (first rating period). F.F. 10. The January 2019 PIP directed Burock to attend
weekly meetings with Michelle Baker (Baker), BAFM General Accounting Manager
with Employer’s Office of Comptroller Operations; Jamie Jerosky (Jerosky), BAFM
Financial Services Manager; and Andy Cameron (Cameron), Assistant Director of
Employer’s General Accounting Unit, to review and discuss his progress. F.F. 9 &
11; Comm’n Adj., 4/29/21 at 15 nn. 4-6, S.R.R. at 422b. Specifically, Baker, Jerosky
1
We note that we have added the letter “b” following the page numbers in our citations to
the supplemental reproduced record (S.R.R.), although Employer failed to do so in accordance
with Pennsylvania Rule of Appellate Procedure 2173. See Pa.R.A.P. 2173 (providing that pages
of the S.R.R. shall be numbered separately in Arabic figures followed by a small letter “b”). We
further note that this is the third instance in as many appeals by Burock in which we have found it
necessary to remind Employer of this rule.
2
The Commission heard evidence in two proceedings in October and November 2020.
The November 2020 hearing was a continuation of the October 2020 proceeding. See T.T. 2020
at 335, S.R.R. at 337b. As the two hearing transcripts are paginated continuously in the S.R.R.,
any citations herein to the hearing transcripts shall be as to one document, designated “T.T. 2020.”
2
and Cameron addressed Burock’s failure to accurately reconcile accounts, correctly
mark unpaid items, properly prepare the Underground Storage Tank Indemnity Fund
(USTIF) statement and independently research and resolve various other matters.
Comm’n Adj., 4/29/21 at 18, S.R.R. at 425b. Jerosky was also available to answer
Burock’s questions outside the meetings. Id. The January 2019 PIP also informed
Burock of the specific standards required to obtain a rating of “Satisfactory” in each
of the following job rating categories: “Job Knowledge/Skills,” “Work Results,”
“Communications,” “Initiative/Problem Solving” and “Work Habits.”3 F.F. 12.
Burock was required to obtain a rating of “Satisfactory” in all job categories to
achieve an overall “Satisfactory” rating in the subsequent interim Employee
Performance Review (EPR). F.F. 14. Further, the January 2019 PIP cautioned
Burock that failure to achieve an overall rating of “Satisfactory” on the interim EPR
could result in progressive discipline, up to and including removal. F.F. 15.
In April 2019, Employer issued an interim EPR deeming Burock’s
overall job performance during the first rating period “Unsatisfactory.” F.F. 17-18.
Although Employer rated Burock’s job performance “Satisfactory” in the individual
categories of “Interpersonal Relations” and “Work Habits,” Burock nevertheless
failed to achieve “Satisfactory” ratings in the four remaining categories. F.F. at 17-
18, S.R.R. at 413b; Comm’n Adj., 4/29/21 at 19, 426b. Employer rated Burock’s
performance “Unsatisfactory” in the individual category of “Job Knowledge/Skills”
on the basis of his continued failure to grasp the basic job skills necessary to
complete assigned tasks. F.F. 19 (citing T.T. 2020 at 91-92, S.R.R. at 93b-94b;
Certified Record (C.R.), Appointing Authority Exhibits (A.A. Ex.) 7, April 2019
Interim EPR; C.R., A.A. Ex. 8, Weekly Meeting Minutes). Specifically, Burock
3
We note that the individual job performance category of “Interpersonal Relations” does
not appear in the list enumerated in finding of fact 12. See F.F. 12.
3
displayed a lack of knowledge and understanding in completing unpaid items and in
updating the USTIF statement quarterly, resulting in missed and miscalculated
items. Id. Burock also enlisted another accountant to analyze the “1190000
balancing account,” even though that task was his responsibility. Id.
In support of Burock’s “Unsatisfactory” job performance rating in the
“Work Results” category, Employer again cited his failure to independently and
correctly complete the USTIF statement, as well as his failure to complete the
checklist for the Capital Facility Reports. F.F. 20 (citing T.T. 2020 at 92, S.R.R. at
94b; C.R., A.A. Ex. 7, April 2019 Interim EPR). Regarding Burock’s
“Unsatisfactory” rating in the individual category of “Communications,” Employer
cited his inability to explain “everyday items” such as account reconciliations and
the USTIF statement, as well as his argumentative behavior with management
regarding a treasury adjustment. F.F. 21 (citing T.T. 2020 at 92, S.R.R. at 94b; C.R.,
A.A. Ex. 7, April 2019 Interim EPR). Employer also rated Burock’s job
performance “Unsatisfactory” in the individual category of “Initiative/Problem
Solving,” due to his failure to independently research issues and remove old
adjustments from financial statements. F.F. 22 (citing T.T. 2020 at 92-93, S.R.R. at
94b-95b; C.R., A.A. Ex. 7, April 2019 Interim EPR).
On April 22, 2019, Employer issued an ADLS-2, the equivalent of a
three-day suspension, on the basis of Burock’s unsatisfactory job performance
during the first rating period, based on the recommendations of Baker, Jerosky and
Cameron. F.F. 1 & 33; Comm’n Adj., 4/29/21 at 21 (citing T.T. 2020 at 44, 93, 153,
S.R.R. at 46b, 95b and 155b).4 Burock appealed, asserting that Employer’s decision
4
Prior to Employer’s imposition of the ADLS-2, Employer had issued three disciplinary
actions on the basis of Burock’s “Unsatisfactory” job ratings from previous rating periods—a
February 2018 written reprimand, a July 2018 Level One (ADLS-1) and a January 2019 ADLS-1.
4
to impose the ADLS-2 was excessive, unfair and based on a pattern of discrimination
and retaliation5 dating back two years. See C.R., A.A. Ex. B, ADLS-2 Appeal at 1.6
F.F. 33-36. The January 2019 ADLS-1 did not progress to an ADLS-2, owing to Burock’s
improvement on one of the job performance rating categories. F.F. 37. This Court affirmed the
July 2018 ADLS-1 disciplinary action in Burock v. State Civ. Service Commission (Office of the
Budget) (Pa. Cmwlth., No. 1865 C.D. 2019, filed May 13, 2021) (Burock I). We affirmed the
January 2019 ADLS-1 disciplinary action in Burock v. State Civ. Service Commission (Office of
the Budget) (Pa. Cmwlth., No. 81 C.D. 2020, filed May 13, 2021) (Burock II).
5
The Civil Service Reform Act, 71 Pa.C.S. §§ 2101-3304 (Act), does not provide for a
separate statutory claim of retaliation, independent of a discrimination claim under Section 2704,
71 Pa.C.S. § 2704. Rather, proving retaliation is one mode of establishing that an appointing
authority engaged in discrimination by basing a personnel action on “nonmerit factors.” See
Section 2704 of the Act, 71 Pa.C.S. § 2704; see also Beaver Cnty. v. Funk, 492 A.2d 118, 121 &
121 n.7 (Pa. Cmwlth. 1985) (explaining that evidence regarding financial state of county at time
employer furloughed a probationary status caseworker, coupled with testimony as to witness’s
belief that furlough was imposed in retaliation for bargaining unit’s refusal to accept wage freeze,
satisfied caseworker’s burden of establishing that furlough was based on nonmerit factors, and
thus, furlough was discriminatory); see also 71 P.S. § 741.905a (prohibiting discrimination by
officers or employees of the Commonwealth in connection with any personnel action with respect
to the classified service on the basis of political or religious opinions or affiliations, labor union
affiliations, race, national origin or other non-merit factors).
6
Section 3003 of the Act provides, in relevant part:
It shall be the duty of the [C]ommission . . . [t]o conduct hearings as
follows:
(i) A regular employee in the classified service may,
within 20 calendar days of receipt of notice from the
appointing authority, appeal in writing to the
[C]ommission a permanent separation, suspension
for cause, furlough or demotion on the grounds that
the action has been taken in the employee’s case in
violation of the provisions of this part. Upon receipt
of the notice of appeal, the [C]ommission shall
promptly schedule and hold a public hearing.
(ii) A person who is aggrieved by an alleged
violation of section 2704 (relating to prohibition of
discrimination) may appeal in writing to the
[C]ommission within 20 calendar days of the alleged
violation. Upon receipt of the notice of appeal, the
5
For the March 28, 2019 to May 30, 2019 rating period (second rating
period), Employer placed Burock on another performance improvement plan (March
2019 PIP) imposing the same performance standards and directives as the preceding
PIP. F.F. 23. In June 2019, Employer issued an interim EPR (June 2019 interim
EPR) based on Burock’s job performance during the second rating period. F.F. 27-
28; Comm’n Adj., 4/29/21 at 21-22, S.R.R. at 428b-29b. Burock again received an
overall “Unsatisfactory” job performance rating due to his failure to achieve
“Satisfactory” ratings in any job performance category apart from “Interpersonal
Relations” and “Work Habits.” Id. Employer rated Burock’s job performance
“Unsatisfactory” in the individual category of “Job Knowledge/Skills” based on his
continued failure to grasp basic job skills, such as reconciling accounts and
completing T-accounts. F.F. 28 (citing T.T. 2020 16-07, S.R.R. at 108b-09b; C.R.,
A.A. Ex. 11, June 2019 Interim EPR). In regard to Burock’s “Unsatisfactory” rating
in the “Work Results” category, Employer again cited his inability to correctly
reconcile accounts, as well as his failure to complete and follow up on a “PPA Taxi
transfer.” F.F. 29. Rating Burock’s job performance “Unsatisfactory” in the
“Communications” category, Employer highlighted Burock’s inability to understand
and explain unpaid items for account reconciliations, his sarcastic and
unprofessional remarks in response to the April 2019 interim EPR and his error in
directing an agency to send federal e-mail correspondence to an obsolete federal
group e-mail account. F.F. 30 (citing T.T. 2020 at 107, S.R.R. at 109b); C.R., A.A.
Ex. 11, June 2019 Interim EPR). Finally, Employer rated Burock’s job performance
[C]ommission shall promptly schedule and hold a
public hearing.
71 Pa.C.S. § 3003(7)(i), (ii). Section 2103 of the Act defines the term “appointing authority” to
include “[t]he officers, board, commission, individual or group of individuals having power by
law to make appointments in the classified service.” 71 Pa.C.S. § 2103.
6
“Unsatisfactory” in the individual category of “Initiative/Problem Solving” based on
his failure to independently resolve unpaid items, complete basic accounting
functions, confirm completion of an “AM document” and correctly complete debit
and credit for the “USTIF statement FI recon backup.” F.F. 31 (citing T.T. 2020 at
108, S.R.R. at 110b; C.R., A.A. Ex. 11, June 2019 Interim EPR).
As a result, Baker, Jerosky and Cameron recommended termination of
Burock’s employment. Comm’n Adj., 4/29/21 at 24, S.R.R. at 431b (citing T.T.
2020 at 46, 109 & 155-56, S.R.R. at 48b, 111b & 157b-58b). By letter dated June
19, 2019, Employer notified Burock of its decision to remove him from Accountant
3 employment, effective at the close of business on June 20, 2019. Id. (citing T.T.
2020 at 110-11, S.R.R. at 112b-13b); see also C.R., A.A. Ex. D, Termination Letter
at 1.
Burock appealed his termination, again asserting that Employer’s
disciplinary action was excessive, unfair and based on discrimination. See C.R.,
A.A. Ex. E, Removal Appeal at 2. Burock also contended that in November 2017,
former Assistant Director Paul Jones threatened to terminate him if he related to
Director Mike Burns his allegation that Jones had “plugged” numbers on a USTIF
statement.7 See id.
B. Appeals to the Commission
Employer filed a motion to combine Burock’s appeals, which the
Commission granted. See C.R., Item No. 5, Comm’n Letter, 12/20/19. On October
7
Burock asserts that Jones ordered “multiple plugs,” which Burock described as the
practice of falsifying numbers to balance accounts, in a September 30, 2017 USTIF statement, and
that Jones “was gone a few months later.” Burock’s Br. at 15 & 17.
7
14, 2020 and November 10, 2020, the Commission held hearings in which both
Burock and Employer participated. See T.T. 2020 at 1-2 & 328-29, S.R.R. at 3b-4b
& 330b-31b.
1. Evidence Concerning Burock’s Job Performance
Employer’s witnesses provided the following testimony in support of
the challenged disciplinary actions. Jerosky testified that Burock failed to verify the
accuracy of his work with supporting documentation, solve problems independently,
provide accurate adjustments and conduct necessary research. See Comm’n Adj.,
4/29/21 at 18, S.R.R. at 425b (citing T.T. 2020 at 41 & 43, S.R.R. at 43b & 45b).
For instance, Burock had incorrectly marked items for deletion, mistakenly included
accruals in financial statements, and improperly changed the “methodology” by
including unnecessary data in reports. Id. at 19, S.R.R. at 426b (citing T.T. 2020 at
42, S.R.R. at 44b). Further, Burock failed to timely submit assignments and did not
complete treasury reconciliations on multiple occasions. Id. (citing T.T. 2020 at 60-
61, S.R.R. at 62b-63b). Jerosky further attested that Burock sought guidance from
entry-level accountants when, as a senior level accountant, he was expected to
provide assistance to other accountants. Id. at 20, S.R.R. at 427b (citing T.T. 2020
at 45, S.R.R. at 47b).
Baker, Burock’s primary supervisor since March 2018, testified that
Burock failed to grasp the basic job skills necessary to complete assigned tasks, such
as updating quarterly financial statements and calculating various items. Id. at 19,
S.R.R. at 426b (citing T.T. 2020 at 91-92, S.R.R. at 93b-94b). For instance, Burock
was unable to explain account reconciliations, the USTIF statement and other
“everyday items.” Comm’n Adj., 4/29/21 at 20, S.R.R. at 427b (quoting T.T. 2020
8
at 92, S.R.R. at 94b). Baker attested that Burock failed to independently research
various issues, including those pertaining to old adjustments on financial statements
that should have been removed and unpaid amounts included in the Capital Facilities
Report. Id. at 20-21, S.R.R. at 427b-28b (citing T.T. 2020 at 92-93, S.R.R. at 94b-
95b). Burock also improperly marked certain account reconciliations as complete
based on seeking guidance from another Accountant 3 employee and failed to
independently research the matter himself as directed. Id. (citing T.T. 2020 at 107,
S.R.R. at 109b. Baker further testified that Burock failed to correctly complete T-
accounts, a “basic accounting function,” even after receiving guidance during
several of the weekly meetings. Id. (quoting T.T. 2020 at 107, S.R.R. at 109b).
According to Baker, Burock also failed to complete and follow up on a “PPA Taxi
transfer” and was unable to search for transactions in Employer’s accounting system.
Id. at 23, S.R.R. at 430b (citing T.T. 2020 at 107-08, S.R.R. at 109b-10b).
Cameron, Burock’s “second-level supervisor,” testified that Burock
failed to conduct necessary research and that he demonstrated an inability to
“problem solve.” Comm’n Adj., 4/29/21 at 18, S.R.R. at 425b (citing T.T. 2020 at
146-48, S.R.R. at 148b-50b). Further, Burock was unable to consolidate names,
dates and items researched in connection with treasury reconciliations. T.T. 2020 at
150, S.R.R. at 152b (citing C.R., A.A. Ex. 8, Weekly Meeting Minutes). Cameron
attested that despite years of meeting with Burock in order to improve his job
performance, Burock was “constantly post[ing] something that[] [was] completely
incorrect” when attempting to complete account reconciliations, noting that if one
post had not been remedied, “the agency”8 might have lost up to $4,000. T.T. 2020
at 151, S.R.R. at 153b. Cameron further attested that during one of the weekly
8
Cameron did not specify to which agency he was referring. See T.T. 2020 at 151, S.R.R.
at 153b.
9
meetings, Burock attempted to take credit for a “big issue” that was in fact resolved
by another employee. Id. at 28, S.R.R. at 435b (citing T.T. 2020 at 370-71, S.R.R.
at 372b-73b).
2. Evidence Concerning Alleged Discrimination
Burock provided the following testimony in support of his
discrimination claims. Burock testified that Employer’s decision to terminate his
employment was “the culmination of a two-year process of retaliation against [him]
by various managers and supervisors,” stemming from a disagreement in 2017 with
his new manager, Paul Jones, regarding a USTIF financial statement, presumably
the alleged “plugging” incident. T.T. 2020 at 175, S.R.R. at 177b; Comm’n Adj.,
4/29/21 at 24, S.R.R. at 431b (citing C.R., Burock’s Exs. 4 & 5). Burock attested
that Jerosky questioned the “incident” upon reviewing the statement and forwarded
the matter to Jones. T.T. 2020 at 175, S.R.R. at 177b. Burock informed Jones of his
intention to discuss the issue involving the financial statement with Mike Burns
(Burns), the Director of the Budget and Jones’ direct supervisor. Id. at 175-76,
S.R.R. at 177b-78b. Burock testified that Jones responded, “I don’t agree with you,
and if you do that, you’ll be gone.” Comm’n Adj., 4/29/21 at 24, S.R.R. at 431b
(quoting T.T. 2020 at 176, S.R.R. at 178b). Burock asserted that his eventual
discussion with Burns influenced Jones to rate his job performance “Unsatisfactory”
in an EPR roughly one month later and that Jones threatened to fire him on January
5, 2018. Id. at 25, S.R.R. at 432b (citing T.T. 2020 at 176-77 & 187, S.R.R. at 178b-
79b & 189b). According to Burock, the “Unsatisfactory” EPR issued by Jones
served as the basis for all disciplinary action taken against him by Employer, up to
and including his termination, and ultimately frustrated his applications for other
10
positions with the Commonwealth. Id. (citing T.T. 2020 at 177-78 & 242-43, S.R.R.
at 179b-80b & 244b-45b). Further, Burock accused Baker of being “vindictive”
when she counseled him about his nearly exhausted leave balance. Id. (citing T.T.
2020 at 235-36, S.R.R. at 237b-38b). Moreover, Burock attested that Employer
acted vindictively against him by failing to nominate him for the Governor’s Award
for Excellence. Id. (citing T.T. 2020 at 236-38, S.R.R. at 238b-40b).9
Employer’s witnesses provided the following testimony in response to
Burock’s discrimination claims. Jerosky testified that the events from 2017
complained of by Burock had no bearing on the challenged disciplinary actions. Id.
at 36, S.R.R. at 443b (citing T.T. 2020 at 200-01, S.R.R. at 202b-03b).
Regarding Burock’s assertion that his workload exceeded that of a
female Accountant 3 who had quit prior to his removal, Baker testified that all
accountants, including the accountant referenced by Burock, are assigned more than
one financial statement to complete, and that she and Burock shared similar job
duties. Id. at 29, S.R.R. at 436b (citing T.T. 2020 at 349-50, S.R.R. at 351b-52b).
Moreover, Baker pointed out that Burock had worked for Employer for roughly
seven years by the time the female Accountant 3 he referenced began her
employment. Id. (citing T.T. 2020 at 172 & 350, S.R.R. at 174b & 352b).
Cameron testified that owing to his poor job performance, Burock’s
workload was reduced and that he was not assigned the type of special projects
typically performed by Accountant 3 employees. Id. at 29, S.R.R. at 436b (citing
T.T. 2020 at 152, S.R.R. at 154b). Cameron also attested that he attempted to dispel
Burock’s belief as to a conspiracy against him, so that Burock could focus on
9
Specifically, Burock testified that a fellow “state employee,” Kevin Kayda (Kayda)
refused Burock’s request to submit his name for the Governor’s Award for Excellence. T.T. 2020
at 238-240, S.R.R. at 240b-42b. Kayda’s title is not apparent from the record.
11
improving his job performance. Id. at 36, S.R.R. at 443b (citing T.T. 2020 at 249-
54, S.R.R. at 251b-46b).
3. The Commission’s Adjudication
On April 29, 2021, the Commission issued an adjudication affirming
Employer’s disciplinary actions and dismissing Burock’s appeal. Comm’n Adj.,
4/29/21 at 37-38, S.R.R. at 444b-45b. The Commission deemed credible the
testimony provided by Employer’s witnesses and cited the various exhibits proffered
by Employer evidencing Burock’s poor job performance. Id. at 29, S.R.R. at 436b.
In particular, the Commission noted that Burock’s unsatisfactory job performance
was documented in the minutes of the weekly meetings held during the rating
periods, in work e-mails and in the interim EPRs. Comm’n Adj., 4/29/21 at 18 &
21-22, S.R.R. at 425b & 428b-29b (citing C.R., A.A. Exs. 7-8 & 11-12). Citing the
credible testimony of Employer’s witnesses and the “detailed narratives” contained
in the April 2019 interim EPR, the Commission determined that Burock failed to
meet the standards set forth in the March 2019 PIP. Id. at 30, S.R.R. at 437b.
Specifically, the Commission highlighted Burock’s lack of understanding regarding
necessary job skills; inaccurate work product, including errors in reconciliations,
“unpaid items,” the USTIF statement and the Capital Facility Report; failure to
independently research and resolve issues; and inability to explain his work. Id.
(citing T.T., 2020 45 & 91-93, S.R.R. at 47b & 93b-95b; C.R., A.A. Ex. 7, April
2019 Interim EPR). The Commission deemed unpersuasive Burock’s claim that his
supervisors’ assessment of his job performance was erroneous. Id. at 31, S.R.R. at
438b. The Commission, therefore, found that Employer imposed the ADLS-2 solely
on the basis of Burock’s poor job performance during the first rating period. Id. at
12
30, S.R.R. at 437b. Thus, the Commission concluded that Employer established
good cause to impose the ADLS-2 on Burock. Id. at 29 & 32, S.R.R. at 436b &
439b; Conclusion of Law (C.L.) 1.10
Moreover, the Commission determined that Employer had just cause to
terminate Burock’s employment. Comm’n Adj., 4/29/21 at 32, S.R.R. at 439b. The
Commission cited Burock’s failure to exhibit the basic skills necessary to complete
assigned tasks; his inability to accurately reconcile accounts; his erroneous
completion of T-accounts, “unpaid items,” a “PPA Taxi transfer, an “AM document”
and the “USTIF statement FI recon backup”; his failure to independently conduct
research; and his inability to explain his work. Id. at 33, S.R.R. at 440b (citing T.T.
2020 at 107-08, S.R.R. at 109b-10b; C.R., A.A. Ex. 11, June 2019 Interim EPR).11
Regarding Jerosky’s recollection of Jones’ assertion that “[i]t would be better for all
if [Burock] were not here at all,” the Commission determined that Burock failed to
present any evidence suggesting that this purported statement motivated either the
issuance of the ADLS-2 or his removal. Id. at 26, S.R.R. at 433b. Moreover, the
Commission deemed unpersuasive Burock’s claim that his supervisor’s assessment
of his job performance was erroneous. Id. at 34, S.R.R. at 441b. The Commission,
therefore, found that Burock’s removal was based on his “Unsatisfactory” job
performance during the second rating period. Id. Thus, the Commission concluded
10
The Commission also deemed appropriate the level of discipline (an ADLS-2 with final
warning) imposed by Employer on the basis of Burock’s “Unsatisfactory” job performance rating
in the January 2019 to March 2019 EPR, noting that Employer’s disciplinary action was “the next
step in progressive discipline” following Burock’s receipt of a written reprimand and two ADLS-
1 letters. Comm’n Adj., 4/29/21 at 31, S.R.R. at 438b.
11
The Commission also deemed appropriate the level of discipline imposed by Employer
in terminating Burock as the “next step in progressive discipline” following his receipt of the
ADLS-2. Comm’n Adj., 4/29/21 at 33-34, S.R.R. at 440b-41b.
13
that Burock’s “Unsatisfactory” job performance as documented in the April 2019
interim EPR and supported by the credible testimony of Employer’s witnesses
“clearly relate[d] to his competence and ability to perform his job duties, thereby
providing just cause for removal.” Id. at 32 & 34, S.R.R. at 439b & 441b; C.L. 2.
The Commission next addressed Burock’s allegations of
discrimination. Comm’n Adj., 4/29/21 at 35, S.R.R. at 442b. The Commission
found that Burock failed to provide any evidence as to his age or in support of his
allegation that Employer treated younger employees differently from similarly
situated older employees. Id.
Further, the Commission determined that Burock failed to substantiate
his claim that he received a heavier workload than a female Accountant 3. Comm’n
Adj., 4/29/21 at 35, S.R.R. at 442b. The Commission credited Baker’s testimony
that Burock and the female Accountant 3 shared similar duties, even though she was
in her first year of employment as an Accountant 3 with Employer and Burock was
in his seventh. Id. Moreover, the Commission cited Cameron’s credible testimony
that Employer reduced Burock’s workload due to his poor job performance. Id. at
35-36, S.R.R. at 442b-43b.
In regard to Burock’s claims of retaliation and hostile work
environment stemming from alleged incidents dating back to 2017, the Commission
referenced Jerosky’s credible testimony that these events had no bearing on the
challenged disciplinary actions, as well as Cameron’s testimony that he attempted to
allay Burock’s concerns regarding an alleged conspiracy against him so that Burock
could focus on improving his job performance. Comm’n Adj., 4/29/21 at 36, S.R.R.
at 443b. Addressing Jerosky’s recollection of Jones’ purported statement that “[i]t
would be better for all if [Burock] were not here at all,” the Commission determined
14
that Burock failed to present any evidence suggesting that this statement motivated
either the issuance of the ADLS-2 or his removal. Id. at 26, S.R.R. at 433b.
The Commission, therefore, determined that Employer presented
credible evidence establishing legitimate, non-discriminatory reasons for rating
Burock’s job performance “Unsatisfactory” in both interim EPRs. Comm’n Adj.,
4/29/21 at 26, S.R.R. at 433b. Thus, the Commission concluded that Burock failed
to establish a prima facie case of discrimination. Id. at 35, S.R.R. at 442b.
II. Discussion
Before this Court,12 Burock argues that the Commission erred in
dismissing his appeals, because Employer has not established the requisite cause to
support the challenged disciplinary actions. See Burock’s Br. at 21-22. Burock
asserts that the April 29, 2021 adjudication “is the Commission’s opinion only and
it is incorrect.” Id. at 14-15. Burock maintains that he completed his work in a
timely manner during the rating periods “with probably 99% of it to [his]
supervisor’s liking.” Id. at 13. Further, Burock contends that he submitted into
evidence several e-mail threads which “directly contradict” his negative
performance reviews by showing that he submitted his work “with hardly a
comment” from either Baker, Cameron or Burns. Id. at 13 & 18. Burock asserts
12
Our scope of review of a determination of the Commission is limited to determining
whether constitutional rights have been violated, an error of law has been committed, or necessary
findings of fact are unsupported by substantial evidence. Williams v. State Civ. Serv. Comm’n,
811 A.2d 1090, 1092 n.1 (Pa. Cmwlth. 2002); see also Section 704 of the Administrative Agency
Law, 2 Pa. C.S. § 704. “[A] court reviewing the penalty imposed on an employee [within the
framework of the Civil Service Act] is not to substitute its determination for that of the employer.
Rather, the court is merely to make certain that just cause exists and that the appointing authority
did not abuse its discretion.” Zuckerkandel v. Dep’t of Pub. Welfare, 415 A.2d 1010, 1011 (Pa.
Cmwlth. 1980).
15
that e-mails were the “only way” work was reviewed, as “everything” was confirmed
by managers through e-mail. Id. at 18. Burock maintains that he timely prepared
USTIF statements, but that Jones’ lengthy review of one of these statements resulted
in tardy transmittal to the client, and that Burock received an interim EPR rating his
job performance “Unsatisfactory” within one month of this “incident.” Id. at 16.
Burock also points out that he had performed the same job for roughly six years
before receiving his first “Unsatisfactory” job performance rating. Id. at 15.13
Burock contends that the interim EPR comments were “petty[,] nitpicking,
duplicative, vindictive and purely retaliatory in nature.” Id. at 13-14. Burock asserts
that “[t]hey can make anything up on an EPR if they want to discredit someone and
they did.” Id.
Further, Burock contends any claim that he could not perform his job
is “ludicrous,” and that Employer’s disciplinary actions were motivated by
retaliation. Id. Specifically, Burock asserts that Employer retaliated against him
when Brian Seno (Seno)14 influenced Burock’s manager to issue a “biased EPR” in
July 2017 after learning that Burock had applied for a lateral position in the same
division the previous year, though the EPR was ultimately discarded by Burns. Id.
at 14-15. Burock maintains that Jones improperly placed Burock on a performance
improvement plan on the basis of the discarded EPR. Id. at 15.15 Burock also
contends that Employer’s retaliation was motivated by his decision to notify Burns
13
Burock received an overall “Unsatisfactory” job performance rating in July 2018. See
Burock I, slip op. at 3.
14
Burock alleges in his appellate brief that Seno and Jones left in March of 2018. See
Burock’s Br. at 8.
15
Burock fails to reference a particular PIP. See Burock’s Br. at 15.
16
of an instance of fraud committed by Jones related to the alleged “plugging”
incident. Id. at 14. Highlighting Jones’ purported pronouncement that “[i]t would
be better for all if [Burock] were not here at all,” Burock criticizes the Commission’s
determination that this declaration by Jones did not motivate Employer’s imposition
of the challenged disciplinary actions. Id. at 13 (citing Comm’n Adj, 4/29/21 at 26,
S.R.R. at 433b). Further, Burock asserts that Jones made this revealing statement
just one month after Burock reported him for fraud. See id. Burock also maintains
that Employer retaliated against him on the basis of his decision to report Jones and
Burns to OIG,16 Budget Secretary Randy Albright and Auditor General Eugene
DePasquale; to report an e-mail sent by Seno to 50 employees which openly
discussed the mental health condition of a colleague; and to report Baker for
permitting the misuse of Commonwealth property by Danashree Chitnis (Chitnis).
Id. at 14-16. Burock asserts that the Commission failed to accord proper weight to
the evidence he presented and, further, that “[t]he Commission never even
considered the possibility of retaliation in their [sic] discussion.” Id. at 14.
Further, Burock alleges that Baker favored Chitnis, a new female
Accountant 3 employee, by permitting her to make personal calls at work for
approximately two hours per day during the first six months of her employment. Id.
at 17-18. Burock also alleges that Employer favored Chitnis by assigning her “only
one specific job to do,” as compared with the “25 identifiable tasks the typical
Accountant 3 is responsible for.” Id. at 10.17 Burock further asserts that after Chitnis
16
Burock presumably intends to reference the Office of the Inspector General. See
Burock’s Br. at 14.
17
Burock points out that the Commission refused to accept as evidence “a very detailed
spreadsheet he had prepared comparing [his] workload” with that of Chitnis. See Burock’s Br. at
10. At the November 10, 2020 hearing, the Commission permitted Burock to question Baker
17
left in October 2018, her successor, Julia Ridge (whom he alleges was also younger
than he), received a similarly “easy” workload. Id. at 10. Burock maintains that his
workload remained substantially the same over the course of his employment, with
the exception of roughly six months in 2016 when it tripled due to turnover. Id. at
14. Burock contends that Baker was “furious” and issued him a “horrible EPR”
several weeks after he reported the alleged misconduct to Cameron. Id. at 17.
Asserting that he “laid out all the reasons his supervisors could and did
go after him with a pure hatred and vengeance,” Burock “urge[s] the [C]ourt to
please read [his] responses (part of the record) to every point brought up in the
interim EPRs used to arrive at [his] ADLS[-]2 and removal.” Id. at 15 & 18. Burock
contends that the Commission’s “view” that he failed to present evidence in support
of his claims is “false,” asserting that the Commission “just doesn’t want to see the
evidence.” Id. at 19. Further, Burock alleges that he asked eight current Office of
the Budget employees to testify on his behalf, but that all refused, citing the hostility
in the office and fears of repercussions. Id. Burock also asserts that Baker perjured
regarding the workload comparison spreadsheet. See T.T. 2020 at 347-50, S.R.R. at 349b-52b.
However, the Commission refused to enter the spreadsheet into the record on the basis that Burock
failed identify the sources of information upon which he relied in drafting the document or to
corroborate the veracity of the allegations contained therein. See id. at 213-14 & 376-79, S.R.R.
at 215b-16b & 378b-81b. The Commission further noted that Burock could have questioned
Chitnis at the hearing regarding her assignments in order to permit comparison of their respective
workloads. See id. at 378, S.R.R. at 380b.
Nevertheless, Burock attached the spreadsheet and several other extra-record documents
to his appellate brief. See Burock’s Br., Attachments marked “Ex. 12,” “AP-21” & “AP-32.” “In
civil service cases, the Commission is the sole fact-finder.” Perry v. State Civ. Serv. Comm’n
(Dep’t of Lab. & Indus.), 38 A.3d 942, 948 (Pa. Cmwlth. 2011); see also Shade v. Civ. Serv.
Comm’n (Pa. Dep’t of Transp.), 749 A.2d 1054, 1056 (Pa. Cmwlth. 2000) (“It is axiomatic that
the Commission, not this Court, has the power to resolve questions of credibility and to weigh the
evidence.”). Thus, this Court will not consider the extra-record documents proffered by Burock.
18
herself when he questioned her at the hearing.18 Id. Emphasizing his status as a pro
se litigant, Burock maintains that he “cannot compete with the Budget Office
machine.” Id. at 20.19 Burock, therefore, requests that this Court reverse the April
29, 2021 adjudication of the Commission. Id. at 22.20
A. Good Cause to Impose the ADLS-2
Section 2603 of the Civil Service Reform Act (Act) provides, in
relevant part:
(a) Right to suspend.--The following apply:
18
Burock fails to specify which portions of Baker’s testimony allegedly constituted
perjury. See Baker’s Br. at 19.
19
Burock cites Section 803 of the former Civil Service Act, 71 P.S. § 741.803, in
connection with his claim that Employer lacked good cause to impose the ADLS-2. See Burock’s
Br. at 13. However, effective March 28, 2019, the Act of June 28, 2018, P.L. 460, No. 71, repealed
and replaced the Civil Service Act. Employer issued the first disciplinary action at issue in the
present matter on April 22, 2019. Section 2603 of the Act provides that “[e]mployees may only
be suspended for good cause.” 71 Pa.C.S. § 2603(c).
20
Burock also requests that this Court “nullif[y]” its orders issued in Burock I and Burock
II, affirming separate adjudications of the Commission sustaining Employer’s previous
disciplinary actions against Burock. Burock’s Br. at 22. Burock maintains that the disciplinary
actions at issue in those matters exhibited “the same Office of the Budget and State Civil Service
Commission biases against [him] running through them.” Id. As noted by the Commission,
Employer’s decisions to impose the ADLS-2 and terminate Burock constituted the next step in
progressive discipline. See Comm’n Adj., 4/29/21 at 31-34, S.R.R. at 438b-41b. Burock’s request
to overturn orders of this Court sustaining the disciplinary actions previously imposed by
Employer against Burock constitutes an impermissible attempt to collaterally attack those orders.
See Moeller v. Washington Cnty., 44 A.2d 252, 254 (Pa. 1945) (a judgment, order or decree
rendered by a court having jurisdiction is not open to collateral attack in any other proceeding);
E.O. v. Dep’t of Pub. Welfare (Pa. Cmwlth., No. 2750 C.D. 2010, filed Sept. 14, 2011), slip op. at
4 n.5 (explaining that the collateral attack doctrine, which is related to collateral estoppel and res
judicata, “precludes a litigant from seeking to obtain a favorable outcome in a proceeding through
the use of a challenge to a previous related judicial determination”); see also Commonwealth Court
Internal Operating Procedure Section 414(a), 210 Pa. Code § 69.414(a) (providing that this Court’s
unreported memorandum opinions issued after January 15, 2008 may be cited for persuasive
value).
19
(1) An appointing authority may, for
disciplinary purposes, suspend without pay
an employee holding a position in the
classified service.
...
(c) Good cause.--Employees may only be suspended for
good cause.
71 Pa.C.S. § 2603(a)-(c). The appointing authority bears the burden of proving that
it had good cause to suspend a civil service employee. Toland v. State Corr. Inst. at
Graterford, Bureau of Corr., 506 A.2d 504, 506 (Pa. Cmwlth. 1986). “It is well
established that one’s relationship with the classified service turns upon a merit
concept.” Kanjorski v. Dep’t of Lab. & Indus., 403 A.2d 631, 632 (Pa. 1979).
Accordingly, “[t]his Court has held that good cause must relate to an employee’s
competence and ability to perform his or her job duties, . . . or must result from
conduct that hampers or frustrates the execution of the employee’s
duties.” Bruggeman v. State Civ. Serv. Comm’n (Dep’t of Corr. SCI-Huntingdon),
769 A.2d 549, 552 (Pa. Cmwlth. 2001) (citations omitted); see also Kanjorski, 403
A.2d at 632-33 (holding that merit criteria for evaluating disciplinary suspensions
“must be job-related and in some rational and logical manner touch upon
competency and ability”).
We discern no error in the Commission’s determination that Employer
demonstrated good cause to impose the ADLS-2 on the basis of Burock’s
unsatisfactory job performance during the first rating period. As related at length
above, Employer provided ample documentary evidence, in addition to the credible
testimony of supervisors who met regularly with Burock and reviewed his work,
establishing that Burock repeatedly failed to meet basic job performance standards
20
even after extensive assistance and instruction from Employer. Accord Shade v. Pa.
State Civ. Serv. Comm’n (Pa. Dep’t of Transp.), 749 A.2d 1054, 1055-58 (Pa.
Cmwlth. 2000) (holding that appointing authority had good cause to impose on
employee an ADLS carrying the weight of a five-day suspension, where employee
failed repeatedly to achieve a “Satisfactory” overall rating in his job performance
review, despite exhibiting improvement in certain individual job performance
categories, and where employer had provided employee with a work plan outlining
15 performance standards and conducted quarterly review sessions with employee
to discuss his unsatisfactory job performance).
Nevertheless, Burock points out that he performed his job for roughly
six years before receiving his first “Unsatisfactory” job performance rating. See
Burock’s Br. at 15. However, Burock’s assertion regarding his performance
between 2012 and 2018 does not bear upon his unsatisfactory job performance
during the first rating period, which gave rise to the challenged ADLS-2.
Burock also contends that the Commission failed to accord sufficient
weight to the evidence he presented at the hearing. See Burock’s Brief at 14.21 “It
is axiomatic that the Commission, not this Court, has the power to resolve questions
of credibility and to weigh the evidence.” Shade, 749 A.2d at 1056 (citing
Toland, 506 A.2d at 506); see also Perry v. State Civ. Serv. Comm’n (Dep’t of Lab.
& Indus.), 38 A.3d 942, 948 (Pa. Cmwlth. 2011) (stating that “[i]n civil service cases,
21
We note that Burock fails to direct the Court to any particular portion of the record in
support of his arguments. See Pa.R.A.P. 2119(c) (“If reference is made to the pleadings, evidence,
charge, opinion or order, or any other matter appearing in the record, the argument must set forth,
in immediate connection therewith, or in a footnote thereto, a reference to the place in the record
where the matter referred to appears.”). We, therefore, decline Burock’s invitation for the Court
to search for “[his] responses (part of the record) to every point brought up in the interim EPRs
used to arrive at [his] ADLS[-]2 and removal.” Burock’s Br. at 18. See Commonwealth v. Beshore,
916 A.2d 1128, 1140 (Pa. Super. 2007) (explaining that an appellate court will not “scour the
record to find evidence to support an argument”).
21
the Commission is the sole fact-finder”). “As such, determinations as to witness
credibility and resolution of evidentiary conflicts are within the Commission’s sole
province, and we will not reweigh the evidence or substitute our judgment . . . .”
Perry, 38 A.3d at 948. Further, “[t]he fact that the Commission gave greater weight
to the testimony of [Burock’s] supervisor[s] than to the testimony of [Burock] is not
an error or abuse of the Commission’s fact-finding function.” Shade, 749 A.2d at
1056.
Moreover, Burock does not dispute any particular credibility
determination of the Commission, instead levying general accusations regarding the
veracity and the motives of Employer’s witnesses in an effort to undermine their
testimony. See Shade, 749 A.2d at 1056 (rejecting disciplined employee’s reliance
“on his own version of the facts as opposed to the findings as made by the
Commission based upon its credibility determination” even though “[i]t [was] clear
from the Commission’s decision that it found credible the testimony from the
witnesses of the [appointing authority], not [the employee’s] testimony, where there
was a conflict”). Accordingly, we will not disturb the Commission’s credibility
findings.
B. Just Cause for Removal
“No regular employee in the classified service may be removed, except
for just cause.” Section 2607 of the Act, 71 Pa.C.S. § 2607. “In an appeal from the
removal of a regular status employee, the appointing authority has the burden of
establishing just cause for its action.” Mihok v. Dep’t of Pub. Welfare, 607 A.2d
846, 848 (Pa. Cmwlth. 1992). Just cause for removal “must be merit-related and the
22
criteria must touch upon competency and ability in some rational and logical
manner.” Woods v. State Civ. Serv. Comm’n, 912 A.2d 803, 808 (Pa. 2006).
The Commission concluded that Employer’s provision of documentary
evidence and credible testimony demonstrating Burock’s repeated failure to improve
his unsatisfactory job performance established just cause for his termination, further
noting that termination constituted the next step in progressive discipline. Comm’n
Adj., 4/29/21 at 32-34, S.R.R. at 439b-41b. We agree. The January 2019 PIP
cautioned Burock that failure to achieve an overall rating of “Satisfactory” in the
next interim EPR could result in progressive discipline, up to and including removal.
F.F. 15. However, despite exhibiting improvement in one job performance category,
Burock again received an “Unsatisfactory” overall job performance rating in the
June 2019 interim EPR. We, therefore, agree with the Commission that Employer
demonstrated just cause to terminate Burock’s employment. See Harper v. Dep’t of
Pub. Welfare, 553 A.2d 521, 524-25 (Pa. Cmwlth. 1989) (concluding that substantial
evidence supported employer’s just cause to remove employee, where employee
failed to demonstrate significant improvement despite meeting regularly with his
supervisor, receiving specific guidance and being afforded multiple opportunities for
improvement).
C. Discrimination
“An officer or employee of the Commonwealth may not discriminate
against an individual in recruitment, examination, appointment, training, promotion,
retention or any other personnel action with respect to the classified service because
of race, gender, religion, disability or political, partisan or labor union affiliation or
23
other nonmerit factors.” Section 2704 of the Act, 71 Pa.C.S. § 2704.22 “Although
the burden of proof for establishing a prima facie case of employment discrimination
is not an onerous one, the burden nevertheless rests with the employee alleging the
discrimination.” Bruggeman, 769 A.2d at 553; see also Pronko v. Dep’t of Revenue,
539 A.2d 456, 461 (Pa. Cmwlth. 1988) (citing 4 Pa. Code § 105.16). 23 Satisfying
this burden requires the production of affirmative evidence in support of the
allegation; the Commission may not simply infer discrimination. Id.In traditional discrimination cases,24 the burden is on the petitioner to
make out a prima facie case of discrimination by producing sufficient evidence that,
if believed and otherwise unexplained, indicates that more likely than not
discrimination has occurred. Dep’t of Health v. Nwogwugwu, 594 A.2d 847, 849
(Pa. Cmwlth. 1991). When claiming disparate treatment, a complainant must
demonstrate that he was treated differently from other employees similarly situated.
Id. If the complainant meets this burden, the burden of production shifts to the
employer to advance a legitimate non-discriminatory reason for the disciplinary
22
Section 2603(b) of the Act also prohibits an appointing authority from discriminating
against an employee holding a position in the classified service by issuing a suspension without
pay on the basis of “race, gender, religion, disability or political, partisan or labor union affiliation
or any other nonmerit factor.” 71 Pa.C.S. § 2603(b).
23
Section 105.16 of the Commission’s regulations provides, in relevant part:
The appellant shall go forward to establish the charge or charges of
discrimination. If at the conclusion of this presentation, the
appellant has, in the opinion of the Commission, established a prima
facie case, the appointing authority shall then be afforded the
opportunity to reply to the charges.
4 Pa. Code § 105.16.
24
“‘Traditional discrimination’ has been held to encompass only those claims of
discrimination based on race, sex, national origin, or the like.” Dep’t of Health v. Nwogwugwu,
594 A.2d 847, 849 n.4 (1991).
24
action. Id. at 850. However, an employer is not required, as part of its burden, to
persuade the Commission that it was actually motivated by the proffered reason or
reasons. Henderson v. Off. of the Budget, 560 A.2d 859, 864 (Pa. Cmwlth. 1989).
All that is required is that the employer’s evidence raise a genuine issue of fact as to
whether it discriminated against the complainant. Id. If an employer succeeds in
rebutting the presumption of discrimination raised by the complainant’s prima facie
case, the complainant must then demonstrate by a preponderance of the evidence
that the employer’s articulated reason was merely a pretext for discrimination. Wei
v. State Civ. Serv. Comm’n, 961 A.2d 254, 259-60 (Pa. Cmwlth. 2008).
Burock essentially asserts that Employer discriminated against him on
the basis of age and gender by taking disciplinary action against him while
permitting a younger, female employee to carry a lighter workload and to make
personal calls during work hours. We disagree.
As noted by the Commission, Burock provided no evidence as to his
age or the claimed disparate treatment on the basis of age. See Comm’n Adj.,
4/29/21 at 35, S.R.R. at 442b. Regardless, Burock fails to establish that he was
similarly situated to either Chitnis or Ridge, the allegedly younger and less
experienced female employees. See id.25 Although Burock maintains that
Employer’s motivation for imposing the challenged disciplinary actions was
discriminatory, the Commission credited the testimony of Employer’s witnesses
detailing Burock’s inadequate job performance. See Perry, 38 A.3d at 958(affirming a decision of the Commission sustaining an employer’s disciplinary
25
Further, undermining his assertion that Employer discriminated against him on the basis
of gender by delegating fewer assignments to female Accountant 3 employees, as noted above,
Employer in fact reduced Burock’s workload during both rating periods by restricting his
involvement with the type of special projects typically completed by Accountant 3 employees due
to his poor job performance. See F.F. 32; T.T. 2020 at 152, S.R.R. at 154b.
25
action, reasoning that “[a]s fact-finder, the Commission opted to believe [the
employer’s] explanation regarding the motivation for [the manager’s] removal”);
Tate-Burns v. State Civ. Serv. Comm’n (Pa. Cmwlth., No. 1304 C.D. 2015, filed
Nov. 10, 2016), slip op. at 5-6 & 10-11 (noting that “[i]nsofar as [employee’s]
testimony differed from [the a]ppointing [a]uthority’s witnesses, the Commission
found the latter more credible”). Further, Burock’s assertion that he had performed
the same job for roughly six years before receiving his first “Unsatisfactory” job
performance rating is of no moment. See Tate-Burns, slip op. at 5-6 & 10-11
(affirming the Commission’s determination that employer suspended employee
solely for the legitimate, non-discriminatory reason that she failed to comply with
its time and attendance procedures, and not in retaliation for reporting her
supervisor’s alleged misconduct, notwithstanding employee’s assertions that her
suspension constituted the first discipline imposed by employer in 24 years).
We deem baseless Burock’s contention that the Commission “never
even considered the possibility of retaliation in their [sic] discussion.” See Burock’s
Br. at 14. The Commission determined that Burock failed to establish a prima facie
case of retaliatory discrimination, specifically crediting Jerosky’s testimony that the
alleged events from 2017 identified by Burock did not influence the challenged
disciplinary actions. Comm’n Adj., 4/29/21 at 35-36, S.R.R. at 442b-43b.
Regarding Jerosky’s recollection of Jones’ purported assertion that “[i]t would be
better for all if [Burock] were not here at all,” the Commission concluded that
Burock failed to present any evidence suggesting that this purported statement
motivated either the issuance of the ADLS-2 or his removal. Id. at 26, S.R.R. at
433b. Moreover, the Commission concluded that Burock’s poor job performance
constituted a legitimate non-discriminatory reason for the adverse employment
26
actions. See Id. at 36, S.R.R. at 443b. See Perry, 38 A.3d at 957-58 (affirming the
Commission’s rejection of complainant’s claim that his suspension and discharge
were motivated by discrimination in retaliation for providing testimony that was
adverse to employer’s position in a separate civil service proceeding, where
employer’s credible testimony established that disciplinary actions were in fact
based on the legitimate non-discriminatory reason).
Further, we note that, apart from citing a defunct provision of the
former Civil Service Act, Burock fails to provide any supporting legal authority in
his appellate brief. See Pa.R.A.P. 2119(a) (“[t]he argument shall be divided into as
many parts as there are questions to be argued; and shall have at the head of each
part . . . the particular point treated therein, followed by such discussion and citation
of authorities as are deemed pertinent”) (emphasis added); Commonwealth of Pa. v.
Johnson, 985 A.2d 915, 924 (2009) (internal citations omitted) (“where an appellate
brief fails to provide any discussion of a claim with citation to relevant authority or
fails to develop the issue in any other meaningful fashion capable of review, that
claim is waived”) (emphasis added); see also Shade, 749 A.2d at 1057 (stating that
a disciplined civil service employee failed to fully develop his argument by generally
asserting without elaboration that his employer failed to assess each job rating factor
in relation to established standards in evaluating his job performance).
III. Conclusion
For the foregoing reasons, we affirm the Commission’s determination
that Employer satisfied its burden of establishing good cause to impose the ADLS-
2 and just cause to terminate Burock on the basis of his unsatisfactory job
27
performance and that Burock failed to provide evidence demonstrating that
Employer’s disciplinary actions were discriminatory.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
28
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Frank M. Burock, :
Petitioner :
:
v. :
:
Office of the Budget :
(State Civil Service Commission), : No. 656 C.D. 2021
Respondent :
ORDER
AND NOW, this 9th day of May, 2022, the April 29, 2021 adjudication
of the State Civil Service Commission is AFFIRMED.
__________________________________
CHRISTINE FIZZANO CANNON, Judge