K. Schafer v. Dept. of L&I (SCSC)

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevin Schafer, :
Petitioner :
:
v. :
:
Department of Labor and Industry :
(State Civil Service Commission), : No. 562 C.D. 2022
Respondent : Submitted: February 17, 2023
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: May 23, 2023
Kevin Schafer (Schafer), pro se, petitions this Court for review of the
State Civil Service Commission’s (Commission) April 20, 2022 order dismissing his
appeal that challenged his removal from his employment with the Department of
Labor and Industry (Department) as a Fiscal Management Specialist 1 (FMS1), and
the Commission’s May 13, 2022 order denying his request for reconsideration of its
April 20, 2022 order (Reconsideration Request). Essentially, Schafer presents two
issues for this Court’s review: (1) whether the Commission erred by concluding that
Schafer’s appeal request contained insufficient allegations of discrimination and
denying Schafer’s hearing request; and (2) whether the Commission erred by
denying Schafer’s Reconsideration Request.1 After review, this Court affirms.
1
Schafer’s Statement of Questions Involved primarily challenges the Department’s
assertions regarding Schafer’s job performance and the Department’s justifications for his
employment termination as follows:
On March 18, 2022, Schafer filed an Appeal Request Form, see
Certified Record (C.R.) Item No. 1, with the Commission challenging his removal
from his employment as a probationary FMS1 with the Department. Schafer did not
complete Part III of the Appeal Request Form which pertains to “All
Persons/Employees Alleging Discrimination.” C.R. Item No. 1 at 2. Specifically,
Schafer did not provide any information in Part III, subsection N1, under the
categories “Type of Action Being Appealed” and “Type of Discrimination Alleged.”
Id. Schafer also failed to supply information in response to Appeal Request Form
[(1)] Why didn’t my supervisor tell me areas to improve on my
Interim Employee Performance Review [(EPR)] during our weekly
meetings that I implemented?
[(2)] How is my job performance rated “UNSATISFACTORY” in
all areas of my Interim [EPR] and corresponding [EPR] after my
inquiry to my supervisor to get rated “SATISFACTORY” during
my weekly meetings?
[(3)] Did [the Human Resources department (]HR[)] ever receive
the documents that I sent to [my supervisor,] Tiffany Ebersole
[(Ebersole)] on a weekly basis informing [her] of my work
completed? If not, WHY NOT? (I included worksheets that I kept
during my Commonwealth [e]mployment with [the Department]) (I
also kept PowerPoint Presentations that I had created)[.]
[(4)] If I could not perform simple tasks, as stated in my EPR, then
why was I assigned to train incoming Fiscal Management Specialist
3s on the TelcoSM system by [Ebersole]? . . . .
[(5)] Did HR at [the Department] receive my “EXTERNAL”
Training Certificates? (My “INTERNAL” Training was
inadequate[.])
Schafer Br. at 6-7. Because Schafer may only challenge his probationary employment termination
based on discrimination, see Personnel Department, City of Philadelphia v. Hilliard, 548 A.2d
354 (Pa. Cmwlth. 1988), and the Commission held that Schafer failed to allege discriminatory acts
and denied his hearing request, this Court shall consider whether the Commission erred in its ruling
and improperly denied his Reconsideration Request. See Pike Cnty. Child Welfare Serv. v. State
Civ. Serv. Comm’n (Soto), 143 A.3d 1030 (Pa. Cmwlth. 2016).
2
Part II, subsection N2, which requested “complete and specific” responses to the
following questions:
A. What action(s) occurred which led you to believe you
were discriminated against?
B. Where and when did this action occur?
C. Who discriminated against you? Provide name(s) and
job title(s), if known.
D. Do you believe Act 71 of 2018 (Civil Service
Reform)[2] and/or Civil Service Rules were violated? If
so, what section(s)? . . . .
E. Provide any other information which you believe is
relevant. You may attach additional sheets if
necessary.
C.R. Item No. 1 at 3.
On April 15, 2022, Schafer submitted an email to the Commission
(April 15 Email) stating, in pertinent part:
I am writing to you to offer some more information on my
Appeal (March 18) from a rejection of employment from
[the Department].
I feel as if management recognized [its] authoritative
power and misused it attempting to manage me. . . .
I had [two] instances where I conversed with the Deputy
Secretary Joseph Lee [(Lee)] ([my] boss’s boss). The first
was the first day of employment. The second was when I
asked my Supervisor Tiffany Eb[]ersole [(Ebersole)], if
[the Department] could support the Transit Check
Program (12/18/2021). She forwarded my email to [Lee]
and the next morning he sent me an email saying that as
2
The General Assembly repealed the Civil Service Act, Act of August 5, 1941, P.L. 752,
as amended, formerly, 71 P.S. §§ 741.1-741.1005, by the Act of June 28, 2018, P.L. 460, which
became effective on March 28, 2019, and replaced the former Civil Service Act with the statute
commonly known as the Civil Service Reform Act. The Civil Service Reform Act is now found
in Title 71, Part III, of the Pennsylvania Consolidated Statutes, 71 Pa.C.S. §§ 2101-3304.
3
far as [Ebersole] and he was [sic] concerned[,] the case
was closed. I did not ask any further questions to
management. [Two] days a [sic] later I got an [Employee
Performance Review (]EPR[)] giving me all
UNSATISFACTORY ratings on my job performance.
I only talked with [Lee] twice. . . . How could he make a
fair assessment of my job performance on any EPR
received by me? The [f]irst EPR was never signed by him
and I was told by [Ebersole] that the comments were his.
I trusted her and followed his recommendations. I
completed [two] trainings . . . relating to my job functions.
I attached certificates of completion of those trainings. I
was also informed to take some Internal Trainings and
apply my learning to my role as a[n] FMS1. I created
PowerPoints of these trainings and put them in my own
words for retention. I also attached these PowerPoints as
well as the [first] EPR that was NOT signed by [Lee.]
I remember the first week of being at [the Department,]
[Ebersole] making a sarcastic remark to me about putting
a Director in charge of a[n] FMS1[.] My co-workers
were FMS3s. I did get hired at an FMS1 role working
for this management team.
I love working for the Commonwealth. I would like to
apply to other agencies. I know[] the actions of this
management team is [sic] not an accurate portrayal of
other agencies. As it is now, I would have to apply
externally. I will ask the court to grant me an extended
probationary period and put me on Administrative Leave
for six months. I can then apply internally and will have a
greater chance of transferring to a different agency. Six
months should give me ample time.
C.R. Item No. 1 at 5-6 (emphasis added). With the April 15 Email, Schafer attached
numerous documents including his EPRs, training completion certificates,
PowerPoint presentations, completed work, and resumes. Notably, Schafer did not
provide information regarding any alleged discrimination and gave no explanation
for how the attached documents were relevant to a discrimination claim.
4
On April 20, 2022, the Commission denied Schafer’s appeal request,
stating:
[T]he [Commission], at its regular meeting, reviewed all
information presented by [Schafer] on the Appeal Request
Form and any attachments or additional documents. The
appeal relates to [Schafer’s] removal from [FMS]1,
probationary status, with the [Department]. As a
probationary employee, [Schafer] has the burden of going
forward to establish a claim of discrimination as the basis
of appeal. [See Section 105.12(c) of the Commission’s
Regulations,] 4 Pa. Code § 105.12(c). However, [Schafer]
has not indicated acts, which, if proven, would constitute
discrimination, although requested to do so on the Appeal
Request Form. Accordingly, the request for hearing is
denied as there was an insufficient allegation of
discrimination.
C.R. Item No. 2 at 1.
On May 3, 2022, Schafer sent the Commission his Reconsideration
Request. Therein, Schafer described in more detail the circumstances regarding his
employment termination and expressed dissatisfaction with the way his supervisors
managed him and characterized his performance. On May 13, 2022, the
Commission denied Schafer’s Reconsideration Request. Schafer appealed to this
Court.3
Initially,
[i]t is well established that a probationary status civil
service employee does not enjoy the job security afforded
to regular status employees who may be removed only for
just cause. A probationary status civil service employee,
unlike a regular status civil service employee, does not
possess a substantial personal or property right in
continued employment. Under [the former Act commonly
3
“Our scope of review is limited to a determination of whether the Commission committed
an error of law, whether there has been a violation of constitutional rights, or whether there is
substantial evidence to support the findings of fact necessary to support the adjudication.” Norvell
v. State Civ. Serv. Comm’n, 11 A.3d 1058, 1061-62 (Pa. Cmwlth. 2011).
5
known as] the State Civil Service Act, a probationary
employee may seek administrative or judicial review of
his dismissal only where he alleges that his dismissal
was based upon discrimination due to political or
religious opinions or affiliations, or because of labor
union affiliations, or race, national origin or other non-
merit factors.[4]
The burden of proving that a probationary employee’s
dismissal is based upon discriminatory reasons is on
the employee. It is not sufficient for a probationary
employee to attempt to satisfy this burden of proof by
alleging there were not enough merit factors assessed
against him because this Court has held that there is no
quantitative standard for the removal of a probationary
employee and that as long as the removal is job-related
and not tainted by discriminatory motives a dismissal
of a probationary employee will not be disturbed.
Pers. Dep’t, City of Phila. v. Hilliard, 548 A.2d 354, 356 (Pa. Cmwlth. 1988)
(emphasis added; citations and footnotes omitted); see also Adams Cnty. Child. &
Youth Servs. v. Ruppert, 559 A.2d 71 (Pa. Cmwlth. 1989). This Court has held that
“[a]ffirmative factual allegations must support all claims of discrimination
because discrimination cannot be inferred. . . . The Commission is authorized
to dismiss an appeal, sua sponte, without a hearing if the appeal request form
fails to state a claim.” Reck v. State Civ. Serv. Comm’n (Pa. Liquor Control Bd.),
992 A.2d 977, 979 (Pa. Cmwlth. 2010) (citation omitted; emphasis added).
Sections 105.12(b) and (c) of the Commission’s Regulations describe
the necessary information to allege a discrimination claim on the Appeal Request
Form as follows:
4
Section 2704 of the statute commonly known as the Civil Service Reform Act, 71 Pa.C.S.
§§ 2101-3304, states: “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 other non-merit factors.” 71 Pa.C.S. § 2704.
6
(b) The person appealing shall state clearly and concisely
the:
(1) Grounds of the interest of the person in the
subject matter.
(2) Facts relied upon.
(3) Relief sought.
(c) Appeals alleging discrimination which do not
include specific facts relating to discrimination may be
dismissed. Specific facts which should appear on the
[A]ppeal [Request] [F]orm include:
(1) The acts complained of.
(2) How the treatment differs from treatment of
others similarly situated.
(3) When the acts occurred.
(4) When and how the appellant first became
aware of the alleged discrimination.
4 Pa. Code § 105.12(b), (c) (emphasis added).
Nowhere in Schafer’s Appeal Request Form or the April 15 Email did
he allege “that his dismissal was based upon discrimination due to political or
religious opinions or affiliations, or because of labor union affiliations, or race,
national origin or other non-merit factors.” Hilliard, 548 A.2d at 356. Further,
although Schafer complains about the Department’s actions, he does not describe
how the Department’s treatment of him differed from other similarly situated
probationary FMS1 employees. Thus, Schafer failed to allege any specific
discriminatory action against him. Absent specific facts, neither the Commission
nor this Court may infer discrimination. See Reck. Thus, the Commission did not
err when it denied Schafer’s appeal request.
Finally, with respect to Schafer’s Reconsideration Request, this Court
has held that “[t]he decision to grant or deny a request for reconsideration is a matter
7
of administrative discretion and[,] as such[,] will only be reversed for an abuse of
discretion.”5 Reck, 992 A.2d at 979. Schafer alleged, in relevant part, in his
Reconsideration Request:
I was discriminated against. I was not allowed to do this
job freely.
My job description . . . says that my work involves
explaining fiscal regulations and procedures to managers;
and processing budget revisions or other financial
transactions and ensuring compliance with policies
through recommendations and adjustments. I do not know
why, I was not invited to go with my co-worker to a
[l]egislative [h]earing at the Capit[o]l to help me
understand the State Government Budgetary Process[.]
Why would this co-worker be invited to a legislative
budget hearing and not me? We had the same supervisor.
That was discriminatory.
Moreover, [m]y supervisor repeatedly voiced her opinion
that the Fiscal Management of Program Areas in [the
Department] was going to be divided among the FMS3s.
Why wasn’t I assigned a Program Area? I can do this job.
I was instructed to train an incoming FMS3 on a financial
[t]elecommunications platform used to charge Program
Areas [for] the use of telecommunication devices and
services provided to the Commonwealth by outside
vendors. I was a[n] FMS1 training a[n] FMS3. Is this
common practice of management to have an employee
who was on “[p]robationary” [s]tatus train an incoming
employee? If I couldn’t perform simple job tasks, as my
supervisor stated, then why was I training a new employee
how to do them[?] This is discriminatory.
At my first [EPR], I was judged as unsatisfactory on all
areas on my EPR. How can I be unsatisfactory on all
areas? This is not me. My [s]econd EPR was worded
5
“An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion
the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will, as shown by the evidence of record, discretion is
abused.” Avery v. City of Phila. Bd. of Pensions & Ret., 212 A.3d 566, 570 (Pa. Cmwlth. 2019)
(quoting Mielcuszny v. Rosol, 176 A. 236, 237 (Pa. 1934)).
8
mostly word for word from [sic] the first EPR[.] Did my
supervisor simply cut and paste those comments from the
[i]nterim EPR[?] This portrayal of my character sickens
me[.] At my trial, I will give the court reference letters
from my Toastmasters Organization, my Rotary
Organization, and my [p]art-[t]ime job at Hershey’s
Chocolate World to illustrate my [i]ntegrity, [r]espect,
[s]ervice, and [e]xcellence. [] Ebersole’s portrayal of me
is discriminatory.
C.R. Item No. 3 at 1.
Similar to his Appeal Request Form and the April 15 Email, Schafer
failed to allege in his Reconsideration Request how the Commission erred given the
absence of any actionable discrimination based on “political or religious opinions or
affiliations, or because of labor union affiliations, or race, national origin or other
non-merit factors[,]” and given the lack of evidence demonstrating how the
Department’s treatment differed from other similarly situated probationary FMS1
employees. Hilliard, 548 A.2d at 356. Accordingly, the Commission did not abuse
its discretion by denying the Reconsideration Request.
For all of the above reasons, the Commission’s orders are affirmed.
_________________________________
ANNE E. COVEY, Judge
9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Kevin Schafer, :
Petitioner :
:
v. :
:
Department of Labor and Industry :
(State Civil Service Commission), : No. 562 C.D. 2022
Respondent :
ORDER
AND NOW, this 23rd day of May, 2023, the State Civil Service
Commission’s April 20, 2022 and May 13, 2022 orders are affirmed.
_________________________________
ANNE E. COVEY, Judge