             IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bhagwan Aggarwal,                                :
               Petitioner                        :
                                                 :
                 v.                              :   No. 683 C.D. 2018
                                                 :   Submitted: October 5, 2018
State Civil Service Commission,                  :
                    Respondent                   :

BEFORE:          HONORABLE MARY HANNAH LEAVITT, President Judge
                 HONORABLE ANNE E. COVEY, Judge
                 HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY PRESIDENT JUDGE LEAVITT                                           FILED: January 23, 2019

                 Bhagwan Aggarwal, pro se, petitions for review of an adjudication of
the State Civil Service Commission (Commission) that denied reconsideration of its
decision to dismiss his challenge to his demotion by the Pennsylvania Department
of Transportation (PennDOT). Aggarwal asserted that his demotion was
discriminatory, but the Commission concluded that Aggarwal did not allege facts
sufficient to state a claim of discrimination. Concluding that the Commission did
not abuse its discretion in denying reconsideration, we affirm.
                 On October 21, 2017, PennDOT promoted Aggarwal to the position of
a Management Analyst Supervisor, as a probationary employee for the first 180
days.1 If removed before the end of the probationary period, Aggarwal would have
the right to return to his prior position as a Management Analyst 2. Aggarwal Brief,
Appendix D at 1.



1
    The promotion resulted in an increase in compensation from $25.05 per hour to $28.55 per hour.
              On February 6, 2018, Aggarwal’s supervisor, William Gipe, gave
Aggarwal an unsatisfactory performance evaluation.                 On February 12, 2018,
Aggarwal attended a pre-disciplinary conference at which Aggarwal learned he
would be demoted because of his unsatisfactory job performance.
              Aggarwal appealed to the Commission on February 13, 2018, claiming
he had not been given sufficient time to prepare for his pre-disciplinary conference
and not given specific examples of unsatisfactory performance.                         On the
Commission’s appeal form, Aggarwal checked the boxes marked “RACE” and
“NATIONAL ORIGIN.”2 Certified Record (C.R.), Item No. 1, Part III. The form
provided a space for a response to the question: “What actions(s) occurred which led
you to believe you were discriminated against?” Id. Aggarwal responded as
follows:

              My supervisor suddenly made negative comments on [my]
              performance on 01/26/2018, [for] the first time and wants [] to
              demote me to my previous Management Analyst 2 position. I
              believe he is doing this to me just after joining a white lady in
              my unit about three weeks ago. On 02/06/2018, he gave me [a]
              written unsatisfactory [Review]. My supervisor never provided
              me any coaching on my responsibilities, nor communicated goals
              or expectations. My supervisor did not enroll me in the training
              class that [was] available, and asked me to continue to take calls
              [involving] previous position, though, I requested to take that off
              because of [my] ongoing workload.

Id.
              On March 26, 2018, the Commission dismissed Aggarwal’s appeal
without a hearing because his appeal did not state facts, which, if proven, would

2
    Other choices, not selected, were Political Opinions/Affiliations; Religious
Opinions/Affiliations; Labor Union Affiliations; Age; Sex; Disability; Violation of Civil Service
Act/Rules; and Other Non-Merit Factors.
                                               2
constitute discrimination. The Commission explained that a probationary employee
has the burden to establish a claim of discrimination, and the allegations in
Aggarwal’s appeal did not meet this threshold burden.
               On April 10, 2018, Aggarwal requested reconsideration. Therein, he
complained that Gipe did not provide him with documentation of an unsatisfactory
performance. In meetings, Anthony Reda, of Labor Relations, repeatedly asked
Aggarwal the same questions. In addition, Aggarwal had to tell his reviewing
officer, Diane Chamberlin, his version of the facts four times. Claiming that Reda
and Chamberlin conspired with Gipe to demote him, Aggarwal stated as follows:

               I also believe my recruitment had an EEO [Equal Employment
               Opportunity] objective for the Management Analyst Supervisor
               position [and] when I was hired (as a diversity/minority
               candidate) that’s why my supervisor … was reluctant to train or
               coach me on my responsibilities from the start and wanted me to
               fail so that he can demote me back, and justify the defeat [of] the
               EEO objective and Civil Service test eligibility. But when I did
               not [fail], he used the [Review] mechanism by giving
               discretionary bad ratings.

Reconsideration Request (supplementary sheet) at 2; C.R. Item No. 3 at 6.
               On April 19, 2018, the Commission denied Aggarwal’s request for
reconsideration, and he petitioned for review to this Court. Before this Court,
Aggarwal has raised one issue, i.e., the Commission erred in holding he did not plead
facts sufficient to state a case of discrimination.3


3
  This Court’s review determines whether constitutional rights have been violated, whether an error
of law was committed and whether the necessary findings of fact are supported by substantial
evidence. Williams v. State Civil Service Commission, 811 A.2d 1090, 1092 n.1 (Pa. Cmwlth.
2002). An appellate court’s scope and standard of review is deferential with respect to factual
findings, but it is plenary on questions of law. Pennsylvania Game Commission v. State Civil
Service Commission (Toth), 747 A.2d 887, 891 n.9 (Pa. 2000).
                                                3
             As an initial matter, we consider the Commissions’ threshold argument
that Aggarwal’s timely request for reconsideration did not toll the time for filing an
appeal of the Commissions, underlying order. See Muehleisen v. State Civil Service
Commission, 443 A.2d 867, 869 (Pa. Cmwlth. 1982) (petition for reconsideration
does not operate to extend 30-day period for appeal of original order). Pennsylvania
Rule of Appellate Procedure 1512(a)(1) provides that a “petition for review … shall
be filed with the prothonotary of the appellate court within 30 days after the entry of
the order.” PA. R.A.P. 1512(a)(1). Because Aggarwal filed his petition for review
on May 18, 2018, more than 30 days after the Commission dismissed his appeal, we
agree with the Commission that Aggarwal cannot challenge the merits of the
appeal’s dismissal.
             Nevertheless, Aggarwal has timely appealed the Commission’s denial
of reconsideration. Our review of a denial of reconsideration is narrow. An agency’s
denial of reconsideration “will only be reversed for an abuse of discretion.” Reck v.
State Civil Service Commission, 992 A.2d 977, 979 (Pa. Cmwlth. 2010).
             A civil service employee in regular status may not be removed absent
a showing of just cause, but a probationary employee may be removed for any reason
so long as the removal is not discriminatory. Smith v. Pennsylvania Liquor Control
Board, 368 A.2d 923, 924 (Pa. Cmwlth. 1977). In Department of Health v. Graham,
427 A.2d 1279 (Pa. Cmwlth. 1981), this Court considered whether the Commission
exceeded its authority by reviewing an employer’s decision to terminate a
probationary employee for unsatisfactory work performance. We held that

             [a]s long as the reasons for removal are job related and not tainted
             by discriminatory motives, the safeguards given in the [Civil
             Service] Act to probationary employees are met.



                                          4
Id. at 1281. The probationary employee bears the burden of presenting evidence that
would support a discrimination claim. In Wilkie v. State Correctional Institution at
Graterford, Bureau of Correction, 506 A.2d 507, 510 (Pa. Cmwlth. 1986), this Court
held that “discrimination against a civil service employee cannot be inferred by the
Commission, because there must be some affirmative evidentiary support presented
to sustain allegations of discrimination.”
              Section 905.1 of the Civil Service Act4 prohibits discrimination in
employment and states:

              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.

71 P.S. §741.905a. This Court has construed Section 905.1 as encompassing two
types of discrimination claims: “traditional” and “technical.” Moore v. State Civil
Service Commission (Department of Corrections), 922 A.2d 80, 85 (Pa. Cmwlth.
2007).     Traditional discrimination claims involve, inter alia, allegations of
unfavorable treatment based upon race and national origin. Technical discrimination
encompasses claims based upon procedural violations of the Civil Service Act or its
related regulations. Aggarwal asserts a traditional discrimination claim.
              Claims initiated under Section 905.1 of the Civil Service Act require
the production of “sufficient evidence that, if believed and otherwise unexplained,

4
  Section 905.1 of the Civil Service Act, Act of August 5, 1941, P.L. 752, as amended, added by
the Act of August 27, 1963, P.L. 1257, 71 P.S. §741.905a. Pursuant to Section 2 of the Act of
June 28, 2018, P.L. 460, Section 905.1 will be repealed, effective March 28, 2019, due to
consolidation of the Civil Service Act.


                                              5
indicates that more likely than not discrimination has occurred….” Moore, 922 A.2d
at 80 (quoting Henderson v. Office of the Budget, 560 A.2d 859, 863 (Pa. Cmwlth.
1989)). Section 951(b) of the Civil Service Act5 permits an employee alleging
discrimination to appeal his removal to the Commission. It states:

              Any person who is aggrieved by an alleged violation of section
              905.1[, 71 P.S. §741.905a] of this act may appeal in writing to
              the commission within twenty calendar days of the alleged
              violation. Upon receipt of such notice of appeal, the commission
              shall promptly schedule and hold a public hearing.

71 P.S. §741.951(b). The Commission may, sua sponte, dismiss an appeal where
the appeal itself does not state a claim under Section 905.1. Craig v. State Civil
Service Commission (Department of Environmental Protection), 800 A.2d 364, 365
(Pa. Cmlth. 2002). The Commission’s regulation sets forth the information that is
needed to state a claim of discrimination:

              (c) Appeals alleging discrimination which do not include
              specific facts relating to discrimination may be dismissed.
              Specific facts which should appear on the appeal form 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(c) (emphasis added).


5
 Added by the Act of August 27, 1963, P.L. 1257, 71 P.S. §741.951. Pursuant to Section 2 of the
Act of June 28, 2018, P.L. 460, Section 951 will be repealed, effective March 28, 2019, due to
consolidation of the Civil Service Act.
                                              6
                  Aggarwal argues that his appeal stated facts sufficient to state a claim
of discrimination. The Commission responds that Aggarwal’s appeal did not allege
facts that, if proven, would establish discrimination.          Further, Aggarwal must
establish that the Commission abused its discretion by denying reconsideration, and
his brief to this Court makes no such claim. Instead, Aggarwal argues the legal
merits of the underlying case.
                  Aggarwal based his discrimination claim on the following averments:
(1) Gipe overburdened him with work and provided little guidance; (2) Gipe’s
assignments required Aggarwal to work 10-hour days; (3) Gipe chastised him for
not listening to a new employee (who was white); (4) Gipe’s unsatisfactory
performance review lacked explanation; and (5) Gipe used threatening and harassing
supervision methods, such as having Aggarwal attend three meetings with Reda
from Labor Relations without advance notice. Aggarwal Brief at 8-10, 12. He argues
that Gipe’s harassment “may be” based on “race or religion.”6 Aggarwal Brief at
21. He argues that the lack of constructive performance feedback constituted
discrimination. In addition, Aggarwal believes his recruitment to the Management
Analyst Supervisor position “might [have] had an EEO objective….” Aggarwal
Brief at 18. Therefore, this “might be a reason” to explain discriminatory treatment.
Id.
                  We hold that these claims did not establish discrimination. They show
Employer’s dissatisfaction with Aggarwal’s job performance, but that is not
reviewable in the case of a probationary employee. Department of Health, 427 A.2d
at 1281.




6
    Aggarwal does not state his religious affiliation.
                                                    7
               Aggarwal claims that because he never was given reasons for his
unsatisfactory review, he was the victim of discrimination. This is unfounded
because the performance review lists numerous reasons for the unsatisfactory rating.
It criticizes Aggarwal’s supervisory skills; his interpersonal communications; his
failure to follow direction; and his refusal to moderate his approach to his staff,
where he raised his voice and acted in an agitated manner, even after being coached.
It notes that Aggarwal challenged Gipe’s direction in front of subordinates; he
criticized his staff employees in front of their co-workers; and did not listen to their
suggestions.     In short, the unsatisfactory job evaluation was fully explained.
Aggarwal’s claim that it was devoid of specifics is belied by the document itself.
               Because Aggarwal’s appeal did not plead facts sufficient to support a
finding of discrimination, the Commission did not abuse its discretion by denying
reconsideration. Accordingly, we affirm the order of the Commission dismissing
his request for reconsideration.

                                    _____________________________________
                                    MARY HANNAH LEAVITT, President Judge




                                           8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Bhagwan Aggarwal,                      :
               Petitioner              :
                                       :
            v.                         :   No. 683 C.D. 2018
                                       :
State Civil Service Commission,        :
                    Respondent         :


                                  ORDER

            AND NOW, this 23rd day of January, 2019, the order of the State Civil
Service Commission dated April 19, 2018 in the above-captioned matter is
AFFIRMED.
                                  _____________________________________
                                  MARY HANNAH LEAVITT, President Judge
