           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania,                 :
Department of Corrections, State              :
Correctional Institution at Rockview,         :
                                              :
                            Petitioner        :
                                              :
                     v.                       : No. 913 C.D. 2018
                                              : Argued: December 13, 2018
State Civil Service Commission                :
(Barnes),                                     :
                                              :
                            Respondent        :

BEFORE:       HONORABLE MARY HANNAH LEAVITT, President Judge
              HONORABLE PATRICIA A. McCULLOUGH, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                            FILED: March 27, 2019



              The Commonwealth of Pennsylvania, Department of Corrections
(Department) petitions for review of the Adjudication and Order of the State Civil
Service Commission (Commission) reinstating Tamela Barnes (Barnes) to her
position as a Corrections Officer Trainee (COT), without back pay, to begin one
year of training as a probationary employee at the State Correctional Institution at
Rockview (SCI Rockview) as if she were a newly hired employee pursuant to
Sections 905.1 and 951 of the Civil Service Act.1 We affirm.

       1
        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, 741.951. Section 905.1 states, in relevant part, “No officer or
(Footnote continued on next page…)
(continued…)

employe of the Commonwealth shall discriminate against any person in . . . retention or any
other personnel action with respect to the classified service . . . because of . . . non-merit factors.”
71 P.S. §741.905a. In turn, Section 951(b) and (d) provides:

                (b) Any person who is aggrieved by an alleged violation of
               section 905.1 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.

                                                 ***

                (d) Notwithstanding any other provisions of this section, the
               commission may, upon its own motion, investigate any personnel
               action taken pursuant to this act and, in its discretion, hold public
               hearings, record its findings and conclusions, and make such
               orders as it deems appropriate to assure observance of the
               provisions of this act and the rules and regulations thereunder.

71 P.S. §741.951(b), (d). Finally, the Commission’s regulations state, in relevant part:

                (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).


                                                   2
             This Court has previously summarized the facts of this case as
follows.2   On August 8, 2016, Barnes started her COT orientation with the
Department and on that same date, acknowledged that she had received, read and
agreed to abide by the Department’s Code of Ethics Handbook. She attended the
Department’s training academy from August 22, 2016 to September 23, 2016, and
she began working at SCI Rockview as of October 2, 2016. Barnes suffered from
a painful abdominal condition following a pregnancy that necessitated visits to the
emergency room on November 12, 2016, November 27, 2016, December 5, 2016,
and December 20, 2016, in addition to several other doctor’s appointments. She
was prescribed a narcotic medication related to her medical condition.                On
November 27, 2016, she brought one pill of this medication into SCI Rockview
and took the pill to ease her pain. During her shift, Barnes informed her supervisor
that she was feeling ill and she was found vomiting in the bathroom. Barnes was
taken to the emergency room by ambulance.
             Barnes had been scheduled to have surgery for her condition in late
January 2017, but she had emergency surgery on December 22, 2017, because of
her condition. Barnes returned to work on January 12, 2017. During the period
between October 2, 2016 and January 12, 2017, she incurred approximately 7 days
of non-prescheduled leave and 12 days of unapproved unpaid absence.
             After two fact-finding meetings and a pre-disciplinary conference, the
Department notified Barnes by letter on March 20, 2017 that her employment as a
COT was terminated as of that date.             The Department stated that she was


      2
          See Department of Corrections v. State Civil Service Commission (Barnes) (Pa.
Cmwlth., No. 913 C.D. 2018, filed September 6, 2018) (denying the Department’s application
for supersedeas).


                                            3
discharged for unapproved absences, leave abuse and undependability, and for
violations of Code of Ethics Sections B-15, B-21 and B-29. Section B-15 of the
Code of Ethics prohibits Department employees from bringing controlled
substances into a Department facility, and from using such substances on site,
unless it is a prescribed medication and the employee’s supervisor gives prior
written approval.        Section B-21 requires a Department employee to report
immediately any illness, emergency, or injury to her supervisor; the employee’s
date of return to work; and to keep the supervisor apprised of any developments in
the illness, emergency, or injury.             Section B-29 mandates that Department
employees comply and cooperate with internal investigations and respond
completely and truthfully to any questions posed to them.
               Barnes appealed her removal from employment as a probationary
COT, asserting that she was discharged for discriminatory reasons motivated by
her gender and disability. On June 4, 2018, following three days of evidentiary
hearings, the Commission issued an Adjudication and Order. In the Adjudication,
the Commission concluded that Barnes had produced sufficient evidence to
demonstrate that discrimination had occurred, relying on evidence of four similarly
situated male COTs with significant absences who were allowed to keep their jobs
and granted leave when Barnes’ request for leave was refused.3 Because Barnes

      3
          In this regard, the Commission explained its determination as follows:

                      Due to illness, [Barnes] incurred roughly seven days of CN
               or non-prescheduled leave, and twelve days of AW or unapproved
               unpaid absence. Due to illness, COT Robert Rudy incurred
               roughly twenty days of AO or approved unpaid absence. He also
               incurred one day of AW absence, eight days of CN leave, and two
               days of C4 or non-prescheduled leave. COT Nathan Stewart
               incurred roughly one hundred and twenty-two days of YUS or
(Footnote continued on next page…)
                                                4
had met the initial burden of proving a prima facie case of employment
discrimination, the burden of production shifted to the Department to advance a
legitimate nondiscriminatory reason for her dismissal. The Commission concluded
that the Department had not provided a legitimate non-discriminatory reason for
Barnes’ discharge because of her unapproved absences, leave abuse and
undependability, or violations of Code of Ethics Sections B-21 or Section B-29.

(continued…)

              extended unpaid sick leave. He also incurred thirty-five days of
              YUSO or FMLA [(Family and Medical Leave Act, 29 U.S.C.
              §§2601-2654)]/SPF unpaid sick leave. He also incurred roughly
              twenty-eight days of other leave identified as FMLA related. He
              incurred roughly nine days of AW absence and five days of CN
              leave. COT Justin Rouge incurred twenty-eight days of YUSO
              leave. He also incurred three days of other leave identified as
              FMLA related. He incurred two days of AW absence and one day
              of CN leave. COT Marlin Shope incurred roughly twenty-five
              days of YUSW or extended unpaid sick leave and twenty-seven
              days of AO leave. He incurred roughly two days of AW absence
              and two days of CN leave.

                      Reviewing the foregoing records, the Commission finds
              that [Barnes] and the male COTs all incurred non-prescheduled
              leave and unapproved absences. In addition, the male COTs
              incurred other types of leave. [Barnes] and her husband [] testified
              they repeatedly asked the [Department] to grant [Barnes] leave
              without pay or to allow her to receive a leave donation, but the
              [Department] refused. Further, all of the male COTs were absent
              for more days than [Barnes].          Yet, unlike [Barnes], the
              [Department] did not remove the male COTs for unapproved
              absences, leave abuse, and undependability. Based on the
              foregoing, the Commission finds [Barnes’] evidence is sufficient,
              if believed and otherwise unexplained by the [Department] to
              show the [Department] treated her differently than the male COTs
              by removing her for her absences.

Commission Adjudication at 19-20 (citations omitted).


                                               5
              However, the Commission did find that the Department had a
legitimate nondiscriminatory reason for its disciplinary action because Barnes, by
her own admission, brought a narcotic medication into SCI Rockview without
prior written approval in violation of Section B-15 of the Code of Ethics.
Nevertheless,     the    Commission       determined       that   “clearly,    there    was    a
misunderstanding.” Commission Adjudication at 24.
              As a result, the Commission concluded that the Department had not
successfully rebutted the presumption of discrimination raised by Barnes’ prima
facie case, and sustained her appeal challenging her removal from probationary
COT employment at SCI Rockview and overruled her removal. Commission
Adjudication at 30. Accordingly, the Commission ordered that the removal be
expunged from Barnes’ record and that she be returned to the beginning of her
probationary period with no reimbursement of wages and emoluments. Id. The
Department then filed the instant appeal of the Commission’s Order.4




       4
           Our scope of review of a Commission order is limited to determining whether
constitutional rights were violated, an error of law was committed, and Commission practice and
procedure was violated, and whether necessary findings of fact are supported by substantial
evidence. Pennsylvania Game Commission v. State Civil Service Commission (Toth), 747 A.2d
887, 890-91 (Pa. 2000). Substantial evidence is any relevant evidence that a reasonable mind
might consider adequate to support a conclusion. Mihok v. Department of Public Welfare, 607
A.2d 846, 849 (Pa. Cmwlth. 1992). In civil service cases, the Commission is the sole fact finder.
Western Center, Department of Public Welfare v. Sanders, 518 A.2d 878, 882 (Pa. Cmwlth.
1986). Accordingly, resolution of evidentiary conflicts and determinations as to witness
credibility are within the exclusive province of the Commission. Id. Thus, where competing
testimony has been presented, the Commission is the sole finder of fact and this Court will not
substitute its judgment for that of the fact finder. Western Center, Department of Public Welfare
v. Hoon, 598 A.2d 1042, 1045 (Pa. Cmwlth. 1991). On appeal, the prevailing party before the
Commission is entitled to every inference that can be logically and reasonably drawn from the
evidence viewed in a light most favorable to that party. Id.


                                               6
              The Department first claims that the Commission erred in determining
that Barnes established a prima facie case of discrimination because she did not
show that she was treated differently from other similarly situated employees. In
this case, the Commission found that, unlike Barnes, the male COTs were treated
differently because they were granted leave for their medical issues and were not
terminated for their unapproved leave. However, Barnes was not similarly situated
because the male COTs were eligible for different forms of leave than Barnes due
to their length of employment, employment records, and the Collective Bargaining
Agreement (CBA) in effect at the time of their absences. Barnes did not have the
requisite time in for FMLA or SPF leave and did not qualify for leave donations.
Moreover, none of the other officers were facing disciplinary charges at the time
that they requested AO leave while Barnes had improperly brought narcotics into
the institution without permission.
              As this Court has explained, in discrimination cases filed pursuant to
Section 905.1, we have adopted

              [a] standard of proof [that] first requires the complainant
              [to] make out a prima facie case of discrimination, which
              [s]he does by producing sufficient evidence and, if
              believed and otherwise unexplained, indicates that more
              likely than not discrimination has occurred. When [the]
              complainant has made out a prima facie case, a
              presumption of discrimination arises which, if not
              rebutted by the appointing authority, becomes
              determinative of the factual issue of the case.
Department of Health v. Nwogwugwu, 594 A.2d 847, 850 (Pa. Cmwlth. 1991)
(citation omitted).5 “[T]he burden of establishing a prima facie case cannot be an

       5
          “Traditional discrimination” cases encompass “those claims of discrimination based on
race, sex, national origin, or the like.” Nwogwugwu, 594 A.2d at 849 n.4.


                                              7
onerous one,” and “[w]hen the initial burden of proof is met, the burden of
production shifts to the appointing authority to clearly advance a legitimate non-
discriminatory reason for removal through the introduction of admissible
evidence.” Id.
             However, “[t]his burden of production does not require an employer
. . . to persuade the factfinder that it was actually motivated by the proffered reason
or reasons. All that is required is that the employer’s evidence raise a genuine
issue of fact as to whether it discriminated against the complainant.” Id. Finally:

                    Once the prima facie case is rebutted, the
             presumption of discrimination drops from the case. The
             complainant, who retains the burden of persuasion
             throughout must then demonstrate, by a preponderance of
             the evidence, that the proffered merit reason for dismissal
             is merely a pretext. In other words, the complainant must
             prove that his dismissal was motivated by non-merit or
             discriminatory factors. The complainant “may succeed
             in this either directly by persuading the court that a
             discriminatory reason more likely motivated the
             employer or indirectly by showing that the employer’s
             proffered explanation is unworthy of credence.”
Id. at 850-51 (citations omitted).
             As outlined above, the Commission’s determination that Barnes
established a prima facie case of discrimination is based on substantial record
evidence. Specifically, the Commission found that “the male COTs all incurred
pre-scheduled leave and unapproved absences,” and that “all of the male COTs
were absent for more days than [Barnes] . . .            [y]et unlike [Barnes], the
[Department] did not remove the male COTs for unapproved absences, leave
abuse, and undependability.” Commission Adjudication at 20. The Department
acknowledges that neither Barnes nor one of the male COTs were eligible for
FMLA, but fails to explain any basis for the outright denial of Barnes’ requests for
                                          8
AO, YUSO, unpaid leave, or donated leave that were granted to the similarly
situated male COTs.
             Moreover, the Commission specifically rejected the Department’s
claim that Barnes and the other male COTs were not similarly situated or that
Barnes did not request leave or incorrectly requested such leave. See Commission
Adjudication at 26-29. The Commission noted that only three of the four male
COTs received differing types of FMLA, and that “[i]t is more relevant to the issue
that all of the COTs received AW or unapproved paid leave and CN or non-
prescheduled leave, but only [Barnes] was disciplined for it,” and “the three other
male COTs had AW leave in their records, too.” Id. at 26-27 (citations omitted).
             Additionally, “[t]he Commission [wa]s not persuaded by the
[Department]’s argument that [Barnes] was not eligible for AO leave because her
medical condition was not sufficiently serious,” because “[t]here is no dispute
[Barnes] left [work] by ambulance twice and underwent emergency surgery” and
“[Field Human Resource Officer] Rowe testified that a new employee with a
prepaid vacation could receive AO leave.”         Commission Adjudication at 27
(citations omitted).   Further, “[t]he Commission [wa]s not persuaded by the
arguments that [Barnes] either did not request leave or did not request it correctly.
[She and her husband] credibly testified that before and after [her] emergency
surgery they requested leave and leave donation. Insofar as the testimony of the
[Department]’s witnesses is inconsistent with their testimony, we do not find it
credible.” Id. at 28-29 (citations omitted). In short, there is sufficient credible,
substantial evidence supporting the Commission’s determination in this regard and,
again, we will not substitute our judgment for that of the Commission. Hoon, 598
A.2d at 1045.


                                         9
              Moreover, the Department’s post hoc attempt to distinguish Barnes
from the male COTs based on the admitted violation of the Code of Ethics is
unavailing because her pre-termination evaluations did not mention the incident
and Rowe admitted that this isolated incident was not the motivating reason for
Barnes’ removal. See id. at 13 (“Rowe opined that the ‘primary reason’ the
[Department] removed [Barnes] was ‘her lack of showing up for work and
undependability.’ [Hearing Transcript,] p. 506.”). As a result, the Commission did
not err in rejecting the Department’s claim that Barnes failed to establish a prima
facie case of discrimination based on the Department’s assertions that she was not
similarly situated to the male COTs and that she violated Section B-15 of the Code
of Ethics.
              The Department next claims that assuming that Barnes established a
prima facie case of discrimination, the Commission erred in sustaining her appeal
because it found that the Department had sustained its burden of proving a
legitimate non-discriminatory reason for her removal, i.e., that she violated Section
B-15 of the Code of Ethics by bringing narcotics into the institution without
permission.    The Department asserts that its burden in this regard is one of
production, not persuasion and that it was not required to persuade the Commission
that it was actually motivated by this non-discriminatory reason, only that it raised
a genuine issue of fact as to whether it discriminated against Barnes.           The
Commission’s finding that the Department had a legitimate non-discriminatory
reason for the discipline removed the presumption of discrimination and because
the Commission viewed the prima facie case as establishing facts to be disproved
by the Department, the Commission erred in finding discrimination by the
Department.


                                         10
              However, the Commission explained that Barnes’ technical violation
of bringing one dose of medicine to work in violation of Section B-15 of the Code
of Ethics was the result of a misunderstanding, explaining that this
misunderstanding “did not successfully rebut the presumption of discrimination.”
Commission Adjudication at 29.            The Commission further explained that, as
outlined above, this misunderstanding was not the primary or motivating reason for
Barnes’ removal as confirmed by Rowe, the Department’s own witness, who “was
a member of the pre-disciplinary panel” and “opined that the ‘primary reason’ the
[Department] removed [Barnes] was ‘her lack of showing up for work and
undependability,’” and that “[Barnes’] Employee Performance Reviews for
November and December 2016 rated her as ‘satisfactory’ in all categories except
for Work Habits.”        Commission Adjudication at 9-10, 12, 13, 29 (citations
omitted).
              Finally, the Department asserts that, having found a valid non-
discriminatory reason for its disciplinary action, the Commission should have then
considered whether this proffered reason was pretextual.                      Although the
Commission erred in not considering this final element, Barnes was required to
“point to weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions”6 in the proffered reason for her discharge. The only evidence of
pretext was Field Human Resource Officer Rowe’s testimony that Barnes’ leave
abuse was the “primary reason” for her termination. Barnes presented no evidence

       6
         See Kroptavich v. Pennsylvania Power & Light Co., 795 A.2d 1048, 1059 (Pa. Super.
2002) (“[In the pretext stage], [t]he plaintiff must, however, point to ‘weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons [such] that a reasonable factfinder could rationally find them “unworthy of
credence”’ and hence infer that the proffered nondiscriminatory reason ‘did not actually
motivate’ the employer’s action.”) (citation omitted).


                                              11
that the Department was operating on pretext when it terminated her employment
for bringing narcotics into the institution without permission.
              However, the Department fails to apprehend that it did not
successfully defend Barnes’ discrimination claim based solely on its asserted non-
discriminatory reason for her removal.               Rather, once the purported non-
discriminatory reasons were proffered, the Commission was required to weigh the
credibility of the differing explanations for Barnes’ removal.                 Although the
presumption of discrimination drops from the case, as in other civil actions, the
Commission must then evaluate the entire body of evidence under the
preponderance of evidence standard7 and determine which party’s explanation of
the Department’s motivation that it believes. See Moore v. State Civil Service
Commission (Department of Corrections), 922 A.2d 80, 85 (Pa. Cmwlth. 2007)
(“[O]nce the defendant offers evidence from which the trier of fact could rationally
conclude that the decision was not discriminatorily motivated, the trier of fact must
then ‘decide which party’s explanation of the employer’s motivation it believes.’”)
(citation omitted).
              In this case, the Department proffered several justifications and the
Commission properly exercised its credibility and evidence-weighing function in
rejecting all of them except for the misunderstanding regarding Barnes’ possession
and use of the prescription medication in violation of Section B-15 of the Ethics
Code. The Commission explained its ultimate determination by finding that this
misunderstanding was not the motivating factor for Barnes’ illegal removal as

       7
         See Commonwealth v. McJett, 811 A.2d 104, 110 (Pa. Cmwlth. 2002) (“Preponderance
of the evidence is tantamount to a ‘more likely than not’ standard. Proof by a preponderance of
the evidence is ‘often alluded to as a weighing of the evidence and a determination based upon
which way the mythical scales are tipped.’”) (citations omitted).


                                              12
stated by Rowe in her testimony.               See Moore, 922 A.2d at 86 n.5 (“[A]
complainant may succeed in proving a discrimination claim directly by persuading
the court (or agency) that a discriminatory reason more likely than not motivated
the employer or indirectly by showing that its proffered explanation is unworthy of
belief.”) (citing Nwogwugwu). In sum, and contrary to the Department’s assertion,
the Commission did not err in concluding that Barnes sustained her burden of
proof that the Department improperly removed her from her probationary COT
position for reasons motivated by discrimination rather than for the proffered, but
rejected as not credible, reasons.8


       8
           As the Commission explained:

                [Barnes] and the male COTs all incurred non-prescheduled leave
                and unapproved absences. [Barnes] and her husband [] testified
                they repeatedly asked the [Department] to grant [Barnes] leave
                without pay or to allow her to receive a leave donation, but the
                [Department] refused. Further, all of the male COTs were absent
                for more days than [Barnes].          Yet, unlike [Barnes], the
                [Department] did not remove the male COTs for unapproved
                absences, leave abuse, and undependability. . . . [T]he Commission
                cannot find that the charge related to [Barnes’] unapproved
                absences, leave abuse, and undependability provided the
                [Department] with a legitimate nondiscriminatory reason for her
                removal. The Commission finds that the [Department] did not
                successfully rebut the presumption of discrimination raised by
                [Barnes’] prima facie case. Of the four charges, only [Barnes’]
                violation of [the Department’s] Code of Ethics Section B-15
                provided a legitimate nondiscriminatory reason for discipline. In
                addition, Rowe was a member of the pre-disciplinary conference
                panel and she opined that the ‘primary reason’ that the
                [Department] removed [Barnes] was ‘her lack of showing up for
                work and undependability.’ As stated above, that is not a
                legitimate nondiscriminatory reason for [her] removal.

Commission Adjudication at 20, 29 (citations and footnote omitted).


                                               13
Accordingly, the Commission’s Order is affirmed.




                        MICHAEL H. WOJCIK, Judge




                          14
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Commonwealth of Pennsylvania,             :
Department of Corrections, State          :
Correctional Institution at Rockview,     :
                                          :
                         Petitioner       :
                                          :
                   v.                     : No. 913 C.D. 2018
                                          :
State Civil Service Commission            :
(Barnes),                                 :
                                          :
                         Respondent       :



                                      ORDER


            AND NOW, this 27th day of March, 2019, the order of the State Civil
Service Commission dated June 4, 2018, is AFFIRMED.




                                        __________________________________
                                        MICHAEL H. WOJCIK, Judge
