          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Bauer,                          :
                                       : No. 2652 C.D. 2015
                         Petitioner    : Submitted: July 15, 2016
                                       :
                  v.                   :
                                       :
Pennsylvania State Civil Service       :
Commission (Pennsylvania               :
Department of Transportation),         :
                                       :
                         Respondent    :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN                          FILED: September 23, 2016


            Joseph Bauer petitions for review of the November 30, 2015,
adjudication of the State Civil Service Commission (Commission) dismissing Bauer’s
appeal challenging his removal from employment with the Pennsylvania Department
of Transportation (DOT) and sustaining DOT’s removal of Bauer effective October
27, 2014. We affirm.


            Bauer worked for DOT from 1999 to October 2014, where he most
recently served as the Roadway Programs Coordinator. (Adjudication, Findings of
Fact, Nos. 4-5.) On March 25, 2014, Bauer received a copy of DOT’s Sexual
Harassment Policy and Harassment/Hostile Work Environment Policy. 1 (Id., No. 6.)
Bauer was responsible for enforcing the policies and ensuring a harassment-free
workplace. (Id., No. 8.)


               Bauer was the second-level supervisor for Clerk Typist 2 (SL) for DOT.
(Id., No. 9.) Bauer directly issued assignments to SL. (Id., No. 10.) Starting in April
2014, when SL wore hoop earrings to work, Bauer would place his finger through the
opening and make various comments, including: “I am touching your hole” and “I got
my finger in your hole.” (Id., No. 11.) Bauer also touched SL’s ear and/or neck
during this time. (Id., No. 12.) Bauer also pushed SL causing her to fall into the wall
of her cubicle and used SL’s keyboard wrist pad to strike her on her upper thigh. (Id.,
Nos. 13, 15.)


               On September 23, 2014, Bauer and SL attended a work-related CPR
training session. (Id., No. 18.) SL had to sit next to Bauer, and before class started,
Bauer whispered to SL that she would have to remove her clothes during the class.
(Id., Nos. 19-20.) SL asked Bauer to stop talking multiple times, but he repeatedly
whispered to her about taking her clothes off. (Id., No. 21.) During the afternoon
session, Bauer loudly stated that he “‘couldn’t wait to unhook [SL’s] bra’” and
“‘[n]ow I know how to see [SL] with her bra off – perform CPR.’” (Id., No. 22
(citation omitted).) SL was embarrassed and uncomfortable because other employees
heard Bauer’s comments and looked at her. (Id., No. 23.)


       1
          DOT’s Sexual Harassment Policy and Harassment/Hostile Work Environment Policy
identify what constitutes harassment and provide for discipline, up to and including dismissal. (Exs.
AA-4, AA-5.)


                                                 2
               After the CPR class, SL spoke to DOT technician Joe Petrakovic about
the incident with Bauer. (Id., No. 24.) On September 24, 2014, SL reported the
incident to her supervisor, Jennifer Gonzales, who advised her to speak with Joseph
Rhodomoyer, the Labor Relations Coordinator. (Id., Nos. 25-26.)


               On September 25, 2014, SL emailed Rhodomoyer and reported Bauer’s
behavior in the office and at the CPR training.        (Id., No. 27.)    Thereafter,
Rhodomoyer spoke with SL, Petrakovic and Susan Sigley, a DOT accounting
assistant, about Bauer’s office behavior and his actions at the CPR training. (Id.,
Nos. 28-29.)


               Rodney   Vanscavish,    DOT’s   Northampton   County     Maintenance
Manager, notified Bauer of a pre-disciplinary conference, which was held on
September 25, 2014. (Id., Nos. 30-31.) By letter dated September 30, 2014, DOT
suspended Bauer, effective September 25, 2014, without pay pending an investigation
into the matter. (Id., Nos. 1, 33.)


               DOT’s investigation further revealed that Bauer made other comments,
including “asking ‘how much money would it take to have sex with me,’ or how
much money would it take to engage in a sexual act with an animal.” (Id., No. 32
(citation omitted).) On October 27, 2014, DOT notified Bauer of his immediate
removal from his position for inappropriate behavior and violations of DOT’s Sexual
Harassment Policy. (Id., Nos. 2, 33.) DOT stated that Bauer “‘made inappropriate
comments, gestures, suggestions, and inappropriate acts towards a female
subordinate.’” (Id. (citation omitted).)


                                           3
              Bauer appealed his removal to the Commission, which held a hearing on
March 3, 2015. On November 30, 2015, the Commission issued an adjudication and
order dismissing Bauer’s appeal and sustaining DOT’s removal of Bauer effective
October 27, 2014.         The Commission concluded that DOT presented sufficient
evidence to prove that Bauer’s inappropriate behavior violated the Sexual Harassment
Policy and constituted just cause for his removal under section 807 of the Civil
Service Act (Act), Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §741.807.2
(Adjudication at 14-15.)          Bauer now petitions this court for review of the
Commission’s adjudication.3


              Initially, Bauer contends that DOT did not have just cause to remove
him pursuant to section 807 of the Act, 71 P.S. §741.807. The Pennsylvania Supreme
Court has held that an employee’s removal must be merit-related, i.e., “related to the
employee’s competency and ability to perform his job, or arise from conduct
rendering him unfit for the position he occupies.” Woods v. State Civil Service
Commission (New Castle Youth Development Center), 912 A.2d 803, 809 (Pa. 2006).




       2
        Section 807 of the Act states that “[n]o regular employe in the classified service shall be
removed except for just cause.” 71 P.S. §741.807. The appointing authority bears the burden of
proving just cause and the charges underlying the employee’s removal. Long v. Pennsylvania
Liquor Control Board, 535 A.2d 1233, 1235 (Pa. Cmwlth. 1988).

       3
          Our review of the Commission’s decision is limited to determining whether the factual
findings are supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated. Pennsylvania Board of Probation and Parole v. State Civil
Service Commission (Manson), 4 A.3d 1106, 1112 n.11 (Pa. Cmwlth. 2010). Whether a civil
service employee’s actions constitute just cause for removal is a question of law reviewable by this
court. Id. at 1112.


                                                 4
               Here, DOT’s decision to discharge Bauer was based on conduct
rendering him unfit for the position he occupies.                 Bauer was a manager and
responsible for enforcing DOT’s Sexual Harassment Policy and Harassment/Hostile
Work Environment Policy. Bauer received and had knowledge of DOT’s policies.
SL was subordinate to Bauer, and Bauer acted inappropriately towards SL on many
occasions.4     Bauer admitted to his behavior towards SL but argued that it was
appropriate and explainable. The Commission, however, found DOT’s witnesses and
evidence credible and Bauer not credible, except when corroborating DOT’s evidence
and witness testimony. (Adjudication at 14.) The Commission is the fact-finder and
sole arbiter of credibility. Hetman v. State Civil Service Commission (Berks County
Children and Youth), 714 A.2d 532, 537 n.9 (Pa. Cmwlth. 1998). The Commission
found that Bauer’s conduct was neither appropriate nor explainable, violated DOT’s
policies, and constituted just cause for Bauer’s dismissal. We agree.


               Next, Bauer argues that he was dismissed for refusing to accept a
demotion and sign a waiver of his legal rights. Bauer further argues that DOT’s offer
of the position was illegal because he was not qualified for the civil service position.


               Any settlement discussions or offers of settlement are confidential and
cannot be used to prove or disprove the validity of a claim. Shapiro v. State Board of
Accountancy, 856 A.2d 864, 875 (Pa. Cmwlth. 2004). The record reflects that the
offer was part of a post-investigation, pre-termination settlement discussion with
Bauer.     The Commission considered Bauer’s argument and found it irrelevant

      4
          Bauer also engaged in inappropriate conduct with at least one other subordinate employee.



                                                 5
regarding whether there was just cause for Bauer’s removal. (See N.T., 3/3/15, at
113a, 165a.) Bauer’s reliance on the terms of a proposed settlement agreement is
irrelevant to the underlying case of harassment.


             Bauer also contends that the Commission erred in failing to make certain
findings of fact and in failing to require DOT to present certain witnesses. Because
DOT presented sufficient evidence to support the Commission’s findings, we will not
disturb those findings. Martin v. State Civil Service Commission (Department of
Community and Economic Development), 741 A.2d 226, 229 (Pa. Cmwlth. 1999).
Further, nothing prevented Bauer from calling his own witnesses.


             Accordingly, we affirm.



                                       ___________________________________
                                       ROCHELLE S. FRIEDMAN, Senior Judge




                                          6
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joseph Bauer,                          :
                                       : No. 2652 C.D. 2015
                         Petitioner    :
                                       :
                  v.                   :
                                       :
Pennsylvania State Civil Service       :
Commission (Pennsylvania               :
Department of Transportation),         :
                                       :
                         Respondent    :

                                      ORDER


            AND NOW, this 23rd day of September, 2016, we hereby affirm the
November 30, 2015, adjudication of the State Civil Service Commission.



                                       ___________________________________
                                       ROCHELLE S. FRIEDMAN, Senior Judge
