        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jennifer Beuchat,                        :
                          Petitioner     :
                                         :
             v.                          :   No. 988 C.D. 2017
                                         :   Submitted: December 1, 2017
State Civil Service Commission           :
(Department of Corrections),             :
                        Respondent       :


BEFORE: HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE PATRICIA A. McCULLOUGH, Judge
        HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION
BY JUDGE BROBSON                         FILED: June 13, 2018


             Jennifer Beuchat (Beuchat) petitions for review of an order of the State
Civil Service Commission (Civil Service Commission), which dismissed her appeal
challenging her non-selection for a promotion to Corrections Officer 4 with the
Pennsylvania Department of Corrections (Department).            The Civil Service
Commission denied Beuchat’s appeal as untimely on the basis that it was not filed
within 20 days of the date that Beuchat became aware of the challenged action. For
the reasons that follow, we affirm.
             Beuchat served as a corrections officer with the Department at the State
Correctional Institution at Muncy (SCI-Muncy). Beuchat applied for a promotion
to the position of “Corrections Officer 4”—a position Beuchat also refers to as
“Captain” and “Shift Commander”—but the Department notified her on
April 11, 2017 that it did not select her.             The April 11, 2017 notification of
non-selection included the name of the successful candidate. On April 18, 2017,
Beuchat spoke with the major at SCI-Muncy with whom she interviewed for the
position. According to Beuchat, the major informed her that she was not selected
for reasons such as biting her fingernails and appearing apathetic during the
interview. (Petitioner’s Br. at 2.) At that time, 13 days remained for Beuchat to file
a timely appeal request form with the Civil Service Commission. Instead, she filed
her appeal request form on May 3, 2017.
                By order dated June 21, 2017, the Civil Service Commission denied
Beuchat’s appeal on the ground that she did not file her appeal request within 20 days
of the notification of the non-promotion as required by the Civil Service Act (Act)1
and reiterated by the Civil Service Commission rules.2 (Certified Record (C.R.),
Item No. 2.) This appeal followed.
                On appeal,3 Beuchat argues that the Civil Service Commission erred by
dismissing her appeal as untimely. She alleges that she filed the appeal request form
within 20 days of her discovering the discrimination. More specifically, Beuchat

       1
           Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§ 741.1-.1005.
       2
           Specifically, the Civil Service Commission cited Rule 105.12(a)(3), which provides:
       (a) Requests for hearings shall be:
                ...
                (3) Received or postmarked not more than 20 calendar days after the
                employee receives notice of the challenged personnel action.
4 Pa. Code § 105.12(a)(3).
       3
          Our review of a decision of the Civil Service Commission is limited to whether
constitutional rights have been violated, whether errors of law have been committed, and whether
the findings of the Commission are supported by substantial evidence. Woods v. State Civil Serv.
Comm’n, 912 A.2d 803, 808 (Pa. 2006).

                                                 2
contends that it was not until April 18, 2017, when she spoke with the major at
SCI-Muncy, that she learned that she was not selected for the promotion due to
non-merit factors, and, therefore, the 20-day limit should have started to run on that
date. Beuchat further argues that 20 days is an unreasonable timeframe for a person
to determine that discrimination has occurred. Beuchat further contends that a
person suspecting discrimination would first need to acquire detailed information
about the successful candidate:            “the other candidate’s test score, employee
performance reports, prior discipline, overall service record (including time and
attendance), prior discipline, resume or qualifications, and prior personnel actions
(demotions, reinstatements, etc.).” (Petitioner’s Br. at 1.)
               As part of her timeliness argument, Beuchat contends that her
non-promotion was due to discrimination,4 which is prohibited by Section 905.1 of
the Act.5 Section 951(b) of the Act, however, provides:

       4
           Beuchat’s arguments appear to pertain to both the April 11, 2017 notification of
non-selection as well as comparisons to previously successful candidates for Corrections Officer 4.
Beuchat posits that successful candidates for Corrections Officer 4 were less qualified than her
because: (1) she had higher test scores; (2) she had more experience as Acting Shift Commander
(temporarily having the responsibility of Corrections Officer 4); and (3) she had fewer incidents
of discipline on her record. She provides several reasons why she believes she was not selected
for the promotion, despite her qualifications. She contends that the successful candidate was
selected over her because Beuchat had reported her supervisor for sexually inappropriate behavior
with a coworker. Beuchat also contends that she was not selected because the misconduct report
that she lodged against her supervisor earned her a reputation as a “whiny” employee, a personality
trait, and Beuchat argues that the Act prohibits basing an employment decision on a candidate’s
reputation for being “whiny.” (Petitioner’s Br. at 5.) Beuchat argues that, aside from reporting
sexual harassment and her reputation for being whiny, “all other factors were relatively equal.”
(Id.)
       5
         Added by the Act of August 27, 1963, P.L. 1257, 71 P.S. § 741.905a. Section 905.1 of
the Act provides:
       No officer or employe of the Commonwealth shall discriminate against any person
       in recruitment, examination, appointment, training, promotion, retention or any


                                                3
             Any person who is aggrieved by an alleged violation of
             Section 905.1 of this act[, relating to prohibition of
             discrimination,] 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.
Here, Beuchat appealed the decision of the Department on May 3, 2017, more
than 20 days after notification of her non-selection on April 11, 2017. Thus, her
appeal is untimely under Section 951(b) of the Act.
             That is not the end of the inquiry, however, as we determined in Butler
v. State Civil Service Commission, 426 A.2d 239 (Pa. Cmwlth. 1981), that the
discovery rule may be applied to toll the 20-day period for appeals under the Act. In
Butler, the Department of Health denied three female nurses a promotion to an
administrative position. Over a month after notification of the non-selection, the
three female nurses learned the identity of the successful candidate for the promotion
and that he was the only male applicant. The Civil Service Commission dismissed
the appeals as untimely because the female nurses filed their appeals of the decision
more than 20 days after the notification of non-selection. This Court reversed and
instead held that the 20-day limit was tolled until the date that the female nurses
learned the identity of the successful applicant. We explained that an unsuccessful
applicant must know the identity of the successful candidate before suspecting that
the employer’s decision was not based on merit.
             Therein lies the difference between the instant case and Butler. Here,
the April 11, 2017 notification to Beuchat of her non-selection included the name of
the successful applicant. Beuchat acknowledged as much in her petition for review.


      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
(See Pet. at ¶ 11.) Unlike the female nurses in Butler, who did not know the identity
of the successful applicant, Beuchat possessed the requisite knowledge to suspect
that she was the victim of discrimination (if that was the case). She knew the identity
of the successful applicant as of April 11, 2017, but she did not appeal to the Civil
Service Commission within 20 days as required by Section 951(b) of the Act.
Beuchat provides no authority to support the contention that she did not need to file
her appeal until 20 days after acquiring a more detailed employment history of the
successful candidate.
               The distinction between this case and Butler is bolstered by the reason
for the alleged discrimination in each case. Here, Beuchat states that she reported
alleged inappropriate behavior by her supervisor, and, as a result, she was reputed to
be “whiny.”        Beuchat had knowledge of those circumstances prior to the
April 18, 2017 meeting with the major at SCI-Muncy. Thus, the April 18, 2017
meeting, wherein the major identified her demeanor during the interview as her
reason for non-selection, did not provide the basis for Beuchat’s theory of
discrimination.      The facts in this case are in stark contrast to the inferred
discriminatory grounds in Butler—i.e., discrimination based on the gender of the
three female nurses. The female nurses had no reason to suspect they were not
promoted due to their gender until they discovered the identity of the successful
applicant and that he was also the only male applicant, which occurred well after the
deadline for an appeal.6 Beuchat, on the other hand, knew of her own reputation and
her history of reporting her supervisor at the time of her non-selection, well in


       6
          Beuchat was not required to prove her entire case within 20 days; rather, she was required
to initiate her case within 20 days. The filing of an appeal request form serves to begin the process
of contesting a promotion decision and is followed by a hearing for the purpose of obtaining
information on the alleged discrimination.

                                                 5
advance of the appeal deadline. Moreover, to the extent Beuchat argues that she was
not hired due to what Beuchat refers to as non-merit factors or personality traits—
i.e., her demeanor in the interview, specifically appearing apathetic and biting her
nails—a candidate alleging that such consideration constituted discrimination must
do so within the allotted 20 days.
             Accordingly, we affirm the decision of the Civil Service Commission.




                                         P. KEVIN BROBSON, Judge




                                         6
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jennifer Beuchat,                      :
                        Petitioner     :
                                       :
            v.                         :   No. 988 C.D. 2017
                                       :
State Civil Service Commission         :
(Department of Corrections),           :
                        Respondent     :



                                     ORDER


            AND NOW, this 13th day of June, 2018, the order of the State Civil
Service Commission is hereby AFFIRMED.




                                       P. KEVIN BROBSON, Judge
