           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alfred A. Smith,                       :
                           Petitioner :
                                       :
               v.                      : No. 1447 C.D. 2017
                                       : Submitted: March 2, 2018
State Civil Service Commission         :
(Pennsylvania Department of            :
Corrections, State Correctional        :
Institution at Mahanoy Appointing      :
Authority and Tara L. Owens and        :
Patrick J. McDevitt),                  :
                           Respondents :


BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                    FILED: March 28, 2018


              Alfred A. Smith (Smith) petitions pro se1 for review of the order of
the State Civil Service Commission (Commission) which dismissed his appeal
challenging his non-selection for promotion to the position of Adult Basic
Education Teacher (ABET) with the Pennsylvania Department of Corrections,



       1
         While Smith was represented by counsel before the Commission, his petition for review
to this Court was filed pro se.
State Correctional Institution at Mahanoy (Appointing Authority). For the reasons
that follow, we affirm.


                                          I.
             In 1993, Smith began working as a Personnel Analyst at the State
Correctional Institution at Mahanoy (SCI-Mahanoy).          His job duties included
overseeing a training program for employees at SCI-Mahanoy and SCI-Frackville.
Smith is Hispanic and he has acted as a Spanish translator at both institutions.


             In January 2016, the Appointing Authority posted a notice that
applications were being sought for an ABET at SCI-Mahanoy. Smith submitted an
application for the position. A civil service promotion list for the ABET position
was prepared and Smith was one of four individuals appearing on that list. Smith
was scheduled for an interview on April 11, 2016, but all interviews were
cancelled when the Appointing Authority determined that there were two vacant
ABET positions at SCI-Mahanoy that needed to be filled.


             In April 2016, a second list was prepared for the ABET positions but
Smith was not among the 13 individuals on that list.            Nevertheless, Smith
interviewed for the ABET positions. All six candidates who were interviewed for
the ABET positions were interviewed by the same panel consisting of Jeffrey
Chiampi, Educational Administrative Manager/Division Chief for the Bureau of
Corrections Education; Carl Kmiec, Field Human Resource Officer for SCI-Dallas
and SCI-Retreat; and Thomas O’Brien (O’Brien), school principal at SCI-
Frackville. The panel asked each of the six candidates identical questions during



                                          2
their interviews.    Based upon their prior teaching experience and interview
performances, the panel unanimously selected Patrick McDevitt (McDevitt) as the
first choice and Tara Owens (Owens) as the second choice. Smith was ranked
fourth out of the six individuals interviewed. By letter dated September 16, 2016,
the Appointing Authority notified Smith that he was not selected for the ABET
positions.


             Pursuant to Section 951(b) of the State Civil Service Act (Act),2 Smith
appealed to the Commission alleging that his non-selection constituted both
technical and traditional discrimination.       Smith asserted that the Appointing
Authority committed technical discrimination because the initial panel composition
was changed when the interviews were rescheduled and Chester Beggs (Beggs),
the School Principal at SCI-Mahanoy who was familiar with Smith and his work
performance, was kept off the interview panel based upon a perceived conflict of
interest that turned out to be inaccurate. According to Smith, Beggs should have
been on the interview panel because he was the principal of the school at which
Smith was seeking to become a teacher and was the most knowledgeable about the
needs of the students and the type of candidate likely to succeed in the ABET
positions. Smith also alleged that the Appointing Authority committed traditional
discrimination based upon national origin as for decades only white males and
white females have been selected as ABETs at SCI-Mahanoy.




      2
       Act of August 5, 1941, P.L. 752, added by the Act of August 27, 1963, P.L. 1257, as
amended, 71 P.S. § 741.951(b).




                                            3
              Following a hearing, on September 6, 2017, the Commission issued
an order holding that Smith failed to present evidence establishing discrimination
in violation of Section 905.1 of the Act3 and, accordingly, dismissed his appeal.
Smith then petitioned this Court for review of the Commission’s decision.4


                                              II.
              Pursuant to Section 951(b) of the Act, there are two categories of
discrimination for which an unfavorable employment action may be appealed to
the Commission. The first is traditional discrimination, which is based on factors
such as race, sex, age, disability and national origin. Pronko v. Department of
Revenue, 539 A.2d 456, 461-62 (Pa. Cmwlth. 1988). The second is technical
discrimination which occurs when a Commonwealth agency, such as the
Appointing Authority, violates the procedures established in the Act or the Civil
Service Rules (Rules). Id. at 462. Proof of a technical violation constitutes
discrimination per se and no showing of intent is required. Moore v. State Civil

       3
          Added by the Act of August 27, 1963, P.L. 1257, 71 P.S. § 741.905a. Section 905.1 of
the Act, titled prohibition of discrimination, provides:

              No officer or employe of the Commonwealth shall discriminate
              against any person in recruitment, examination, appointment,
              training, promotion, retention or any other personnel action with
              respect to the classified service because of political or religious
              opinions or affiliations because of labor union affiliations or
              because of race, national origin or other non-merit factors.

       4
           Our review of the Commission’s decision is limited to determining whether
constitutional rights have been violated or errors of law have been committed, and whether the
Commission’s findings are supported by substantial evidence. Moore v. State Civil Service
Commission (Department of Corrections), 922 A.2d 80, 84 n.3 (Pa. Cmwlth. 2007) (citation
omitted).




                                              4
Service Commission (Department of Corrections), 922 A.2d 80, 85 (Pa. Cmwlth.
2007). For an individual to obtain relief for technical discrimination, he “must
present evidence that he [ ] ‘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 [he] could have been harmed but there is no way to prove
that for certain.’” Id. at 85 (quoting Pronko, 539 A.2d at 462) (emphasis in
original).


                                        A.
             Smith contends that the Commission erred in failing to conclude that
the Appointing Authority committed technical discrimination by deciding to
remove Beggs from the interview panel. Smith argues that Beggs was under the
impression that he would be on the interview panel since he was the School
Principal at SCI-Mahanoy where the ABETs were being hired. However, Beggs
was removed from the panel because there was an alleged conflict between him
and another individual who was interviewed for the ABET positions – Beggs was
on the school board that voted to terminate this individual during his previous
employment as a public school teacher. Smith claims this allegation is not true and
there was no legitimate reason to remove Beggs from the interview panel. Smith
appears to argue that Beggs’ removal harmed or could have harmed Smith’s
prospects of being promoted to the ABET position because Smith would have
known that he was the best candidate for the job.


             However, as the Commission correctly noted, nothing in the Act or
Rules requires that specific employees be members of interview panels. While



                                         5
there was testimony that certain employees, including school principals, are
usually members of interview panels for the ABET positions, none of the witnesses
testified that the employees who ultimately served on Smith’s interview panel were
incapable of selecting an ABET and no evidence in this regard was presented
before the Commission. Notably, O’Brien, who actually served on the interview
panel, is a school principal, just at another institution. In addition, the Commission
found the Appointing Authority’s witnesses to be credible and they testified that
O’Brien was assigned to the interview panel because it was believed that Beggs
had a conflict of interest with one of the candidates being interviewed.


              There is no evidence in the record that the Appointing Authority
violated a procedure established in the Act or Rules by not including Beggs on the
interview panel, nor is there any evidence that Smith was harmed or could have
been harmed by Beggs’ exclusion.              Therefore, we discern no error in the
Commission’s       conclusion      that   Smith     failed    to   demonstrate      technical
discrimination.5


                                              B.
              Smith also argues that the Commission erred in concluding that the
Appointing Authority did not engage in traditional discrimination based upon his
national origin. An individual alleging that a personnel action was undertaken for


       5
         Smith also asserts in his brief to this Court that the Appointing Authority committed
technical discrimination by presenting false information regarding the veterans’ preference and
by not providing him with requested legal documents. Because these issues were not raised
before the Commission, they have been waived and will not be considered by this Court. See Pa.
R.A.P. 302(a); Fatzinger v. City of Allentown, 591 A.2d 369, 371 (Pa. Cmwlth. 1991).



                                              6
traditional discriminatory reasons has the sole burden of proof.             Keim v.
Department of Health, 543 A.2d 1261, 1264 (Pa. Cmwlth. 1988). Traditional
discrimination cannot be inferred or based solely on general statistics; rather, there
must be affirmative, factual support for the alleged discrimination.         Price v.
Luzerne/Wyoming Counties Area Agency on Aging, 672 A.2d 409, 413 (Pa.
Cmwlth. 1996).


             Here, Smith failed to put forth any evidence to support his argument
that he was not selected for the ABET position because he was born in Mexico and
is Hispanic. He relies merely upon his assertion that the ABETs at SCI-Mahanoy
are all non-Hispanic, white males and white females, and his national origin should
have been given more weight in the hiring process because of the high percentage
of Hispanic inmates at SCI-Mahanoy. There is no evidence and no affirmative
factual proof in the record that Smith was treated differently from the other
candidates or that his non-selection was motivated by discrimination.


             Moreover, the Appointing Authority presented credible evidence of
legitimate, non-discriminatory reasons for selecting McDevitt and Owens over
Smith for the ABET positions. The Appointing Authority considered McDevitt
and Owens the most suitable candidates given their significant teaching histories
and the fact that teaching inmates is the main function of the ABET position.
Smith did not attempt to counter this finding by presenting evidence or even
argument that McDevitt and Owens, the individuals selected for the ABET
positions, did not possess the necessary skills and experience to perform the
functions and duties of an ABET or that he possessed far superior skills. To the



                                          7
contrary, the Appointing Authority’s witnesses credibly testified that they chose
McDevitt and Owens because of their performance during the interview process
and their previous teaching experience, which Smith did not possess.


            Accordingly, we affirm the Commission’s order.



                                      ___________________________________
                                      DAN PELLEGRINI, Senior Judge




                                        8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Alfred A. Smith,                       :
                           Petitioner :
                                       :
               v.                      : No. 1447 C.D. 2017
                                       :
State Civil Service Commission         :
(Pennsylvania Department of            :
Corrections, State Correctional        :
Institution at Mahanoy Appointing      :
Authority and Tara L. Owens and        :
Patrick J. McDevitt),                  :
                           Respondents :




                                  ORDER


            AND NOW, this 28th day of March, 2018, the order of the State Civil
Service Commission in the above-captioned matter is hereby affirmed.



                                     ___________________________________
                                     DAN PELLEGRINI, Senior Judge
