            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brendan M. Tedrick,                         :
                 Petitioner                 :
                                            :
              v.                            : No. 1830 C.D. 2017
                                            : Argued: November 13, 2018
State Civil Service Commission              :
(Commonwealth of Pennsylvania,              :
Department of Labor and Industry),          :
                    Respondent              :


BEFORE:       HONORABLE ROBERT SIMPSON, Judge
              HONORABLE ELLEN CEISLER, Judge
              HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                           FILED: December 7, 2018


              Brendan M. Tedrick (Tedrick) petitions for review of an order of the
State Civil Service Commission (Commission) dismissing his appeal challenging his
non-selection for appointment to the position of Rehabilitation Teacher of the Blind
(VRT)1 with the Department of Labor and Industry (Department). We affirm.




       1
         The position of Rehabilitation Teacher of the Blind has since been renamed and is now
called Vision Rehabilitation Therapist. As such, the position will be referred to as VRT throughout
the opinion.
                                         I.
            The pertinent facts are as follows. Tedrick was previously employed as
a VRT with the Department’s Bureau of Blindness and Visual Services (BBVS) from
July 2006 through March 2014. During his employment, Tedrick was active in the
union, serving as a committee chair. He also underwent two surgical procedures on
his eyes during his employment as a VRT, and while he took several days off after
each surgery to recuperate, he never requested any accommodations under the
Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213. During
his employment, Tedrick received two overall ratings of “Satisfactory” and two
overall ratings of “Commendable” on his Employee Performance Reviews (EPR),
and he was not issued any discipline, performance improvement plans or attendance
warnings throughout this time.


            On April 4, 2014, Tedrick resigned from his VRT position to accept
employment with the federal government and he relocated to Florida. He left his
employment with the Department in good standing and received references from
Vocational Rehabilitation Counselor Giovanna Ochabillo (Ochabillo) and District
Manager Lynn Heitz (Heitz), his direct supervisor.         Tedrick left his federal
government position in October 2014, moved back to Pennsylvania and sought
employment again with the Department.


            An individual seeking reinstatement to his Commonwealth employment
may utilize two separate processes. First, he may submit a Civil Service application,
take the examination and be placed on the eligibility list.       The Civil Service
application does not have any place for an applicant to specify that he is seeking



                                         2
reinstatement. He may also submit his application materials directly to the employer,
here BBVS, to bid on the job posting in which he is interested. Notably, a former
employee does not have the right to be reinstated to his prior position; he merely may
apply for reinstatement if he left Commonwealth employment with regular Civil
Service status (in good standing). See 4 Pa. Code § 101.54; Management Directive
580.23 from the Governor’s Office of Administration, amended.


             Tedrick utilized the first option and applied for several positions with
BBVS through the Commission’s website, including that of VRT and Vocational
Rehabilitation Counselor (VRC). The job posting for the VRT position specifically
stated that candidates could be considered for the vacancy based upon the Civil
Service eligibility list, transfer, reassignment, voluntary demotion or reinstatement.
(Reproduced Record (R.R.) at 371a-374a.) The job posting contained a link to the
Civil Service application as well as instructions for applying directly to the post. (Id.)


             On December 2, 2014, Tedrick received his Notice of Examination
Results for the VRT exam, earning a score of 85. In March 2015, Tedrick was sent
an Availability Survey/Interview Notice for a VRT position in Philadelphia, which he
completed and submitted on April 9, 2015. He was sent a second notice for a VRT
position in Philadelphia on June 15, 2015, which he also completed and returned
indicating his interest.   In late March or early April 2015, Department Human
Resource Analyst Amanda Piro (Piro) received an email from Tedrick stating that he
was interested in reinstatement to a VRT position. Piro forwarded this email to
BBVS administrators. Piro also spoke with Tedrick over the telephone and advised




                                            3
him to take the Civil Service test and apply directly to the VRT job posting. Tedrick
admittedly never applied directly to the posting.


              After the job posting for the VRT position closed, Human Resources
determined there were no eligible applicants who had applied directly to the post.
Therefore, the Options List sent to BBVS indicated that the only applicants to be
considered were those from the Civil Service eligibility list, including Tedrick. Three
candidates were then interviewed for the VRT position – Allison Zellers (Zellers), A.
Aquilino and Tedrick, who interviewed via telephone on June 25, 2015. Prior to their
interviews, candidates were instructed to submit an application, photo identification,
resume and any other documentation they thought would provide useful information.
Tedrick provided the required documentation as well as an EPR from his previous
employment as a VRT. All three candidates were provided with a copy of the job
description before their interviews and were advised not to use any devices when
providing their answers.


              Ochabillo, Heitz and Social Work Supervisor Fields (Fields) conducted
the interviews, during which the candidates were asked the same questions that Heitz
composed. The panel members did not discuss any of the candidates prior to the
interviews.   All three panel members wrote down the candidates’ answers and
separately rated their performances.


              Of particular note, interview question number five asked the candidates
to “[p]lease review and describe your knowledge and experience using iOS devices.”
(Commission Adjudication (C.A.), Finding of Fact (F.F.) 64.)         Tedrick initially



                                           4
replied, “I don’t know what an iOS device is.” (C.A., F.F. 65.) During the telephone
interview, Tedrick admittedly “Googled” iOS, despite the instructions he was given,
and learned it was a software operating system. He was later allowed to expand upon
his initial response to question number five and stated that while he had taught a
client how to use a notebook, VRTs do not work with iOS devices and it is not their
responsibility to teach clients how to use them.


              After the interviews were complete, the panelists met to determine who
to recommend for hire and all three panelists agreed on their final, overall ratings for
the candidates. Tedrick received an overall interview rating of “somewhat deficient,”
and Aquilino, and Zellers received an overall rating of “acceptable.” On or about
September 5, 2015, Zellers was selected for the VRT position.


                                               II.
              On September 10, 2015, Tedrick appealed his non-selection to the
Commission pursuant to Section 951(b) of the Civil Service Act (Act) 2, requesting


       2
        Act of August 5, 1941, P.L. 752, as amended, added by the Act of August 27, 1963, P.L.
1257, 71 P.S. § 741.951(b). Section 905.1 of the Act pertains to the prohibition of discrimination
and 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.

Added by the Act of August 27, 1963, P.L. 1257, 71 P.S. § 741.905a.




                                                5
“[a]n investigation into the hiring procedures at the . . . Department . . . and
reinstatement to my former position.”             (R.R. at 1a.)      Tedrick alleged that the
Department discriminated against him based upon his labor union affiliations,
violation of civil service act/rules and other non-merit factors when it denied his
reinstatement and/or selection to the VRT position.


              The Commission held that Tedrick failed to establish discrimination
under Section 905.1 of the Act and, accordingly, dismissed his appeal. Specifically,
after reviewing the record as a whole, the Commission found that while the evidence
was enough to meet the initial prima facie burden, there was not substantial evidence
to establish Tedrick’s discrimination claims. Tedrick then petitioned this Court for
review.3


                                               III.
              There are two types of discrimination that may be appealed to the
Commission under Section 951(b) of the Act:                  “traditional discrimination” and
“technical discrimination.” Pronko v. Department of Revenue, 539 A.2d 456, 462
(Pa. Cmwlth. 1988). “‘Traditional’ forms of discrimination focus upon such factors

       3
        Our review of a Commission adjudication is limited to determining whether an error of law
was committed or constitutional rights were violated, and whether necessary findings of fact are
supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. §
704; Pennsylvania Game Commission v. State Civil Service Commission, 747 A.2d 887, 891 (Pa.
2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Shade v. State Civil Service Commission, 749 A.2d 1054, 1056
n.5 (Pa. Cmwlth.), appeal denied, 764 A.2d 52 (Pa. 2000). We view the evidence and all
reasonable inferences arising therefrom in a light most favorable to the party that prevailed before
the Commission. Bosnjak v. State Civil Service Commission, 781 A.2d 1280, 1286 (Pa. Cmwlth.
2001).




                                                 6
as race, sex or age,” while procedural or “‘[t]echnical’ discrimination involves a
violation of procedures required pursuant to the Act or related Rules.” Masneri v.
State Civil Service Commission, 712 A.2d 821, 823 n.3 (Pa. Cmwlth. 1998) (citing
Pronko, 539 A.2d at 462). Tedrick alleged both types of discrimination before the
Commission and in his appeal to this Court and we will discuss each in turn.


                                               A.
              With respect to a claim of traditional discrimination, an employee must
initially present a prima facie case by producing sufficient evidence that, if believed,
indicates more likely than not that discrimination has occurred. Moore v. State Civil
Service Commission, 922 A.2d 80, 85 (Pa. Cmwlth. 2007) (citations omitted). It is
well established that the prima facie burden of proof cannot be an onerous one
“[g]iven the critical role of circumstantial evidence in discrimination proceedings.”
Id.; see also Department of Health v. Nwogwugwu, 594 A.2d 847, 850 (Pa. Cmwlth.
1991). However, mere general and conclusory allegations of discrimination are not
adequate and traditional discrimination may not be inferred; rather, the employee
must demonstrate affirmative, factual support for the alleged discrimination. See
Allen v. State Civil Service Commission, 992 A.2d 924, 929 (Pa. Cmwlth. 2010);
Price v. Luzerne/Wyoming Counties Area Agency on Aging, 672 A.2d 409, 412 (Pa.
Cmwlth. 1996), appeal denied, 688 A.2d 174 (Pa. 1997).4

       4
         Claims of traditional discrimination based upon an employee’s disability include adverse
employment actions motivated by prejudice and fear of an employee’s known disability, as well as
an employer’s failure to make reasonable accommodations. Allen, 992 A.2d at 932 (citation
omitted). Moreover,

              for [an employee] to establish a prima facie case of discrimination
              under the ADA, the [employee] must show: (1) he is a disabled
(Footnote continued on next page…)

                                               7
               A presumption of discrimination arises from the employee’s prima facie
case which, if not rebutted by the employer, becomes determinative of the factual
issue. Moore, 922 A.2d at 85; Nwogwugwu, 594 A.2d at 850. However, if the
employer presents a legitimate, non-discriminatory explanation for the employment
action, the presumption drops from the case and the employee must demonstrate, by a
preponderance of the evidence, that the proffered reason is merely a pretext for
discrimination. Nwogwugwu, 594 A.2d at 850 (citation omitted).


               Tedrick argues that the Commission erred in denying his traditional
discrimination claim because the bulk of evidence established that he was the best,
most qualified candidate for hire or reinstatement to the VRT position and that he was
not selected or reinstated due to discriminatory, non-merit factors such as gender,
disability and union affiliation. However, Tedrick testified that he never needed or
requested an accommodation for his visual disability during his employment with
BBVS, he did not know if his visual disability was grounds for not hiring him, he
never advised Fields about his disability, and no one stated he was denied the VRT
job because of a visual disability. Ochabillo and Heitz both testified that they were
unaware of Tedrick’s visual disability. Moreover, Heitz testified that she was not
aware of any issues related to Tedrick’s union service, and Ochabillo testified that she

(continued…)

               person within the meaning of the ADA; (2) he is otherwise qualified
               to perform the essential functions of the job, with or without
               reasonable accommodations by the employer; and (3) he has suffered
               an otherwise adverse employment decision as a result of
               discrimination.

Id. (quoting Taylor v. Phoenixville School District, 184 F.3d 296, 306 (3d Cir. 1999)).



                                                  8
had no issues with his prior union affiliation. The Commission found the testimony
of Ochabillo and Heitz to be credible. As the sole fact finder in civil service cases,
the Commission has exclusive authority to assess witness credibility and resolve
evidentiary conflicts; therefore, we will not disturb the Commission’s determinations
on these issues.   See Moore, 922 A.2d at 84 n.3; Bosnjak, 781 A.2d at 1286.
Moreover, Tedrick introduced no evidence demonstrating that the Department viewed
his prior union affiliation in a negative light or declined to hire him due to his
disability or gender; therefore, the Commission properly determined that he failed to
meet his burden regarding his traditional discrimination claim.


                                          B.
            Technical discrimination occurs when a Commonwealth agency, such as
the Department, violates the procedures established in the Act or related regulations.
Pronko, 539 A.2d at 462. While no showing of intent is required with a technical
discrimination claim, an employee must show that he was, in fact, harmed because of
the procedural violation or that he could have been harmed but there is no way to
prove that for certain. Price, 672 A.2d at 413 (citing Pronko, 539 A.2d at 462).


            Tedrick appears to assert two bases for his technical discrimination
claim: (1) the Department misrepresented or misstated the eligibility criteria in the
VRT job posting by failing to include iOS training as an essential or core duty of the
job and by failing to advise applicants that job offers would be made solely on the
basis of their interview performance; and (2) issues surrounding the reinstatement
process. Tedrick argues that because of these “errors and/or illegalities,” he was not
put on notice of the criteria, which would be assessed in deciding which applicant to



                                          9
recommend for hire and was placed at a distinct disadvantage from other applicants.
We disagree.


               Tedrick admits that he did not follow the proper process for
reinstatement, as he never responded directly to the VRT job posting. Despite his
claims that he was not made aware of the process for reinstatement, Piro credibly
testified that she instructed Tedrick to apply directly to the job posting, which
indisputably contains specific instructions for how to do so. Tedrick also admits that
he was granted an interview, had ample time to respond to the questions, was allowed
to go back and amend one of his answers, and was notified that he was not the
selected candidate. There is no evidence that Tedrick was harmed or could have been
harmed by the fact that his name did not also appear on a list for possible
reinstatement because a former employee does not have an inherent right to
reinstatement and he was, in fact, granted an interview based upon his Civil Service
application.


               In addition, Ochabillo, Heitz and Fields gave Tedrick a lower overall
rating than the selected applicant, Zellers, due to his performance during the
telephone interview.     They specifically mentioned Tedrick’s contradictory and
deficient response regarding iOS devices, his sometimes rambling and unorganized
responses to specific questions, his failure to exhibit decision-making skills, and his
failure to discuss any leadership qualities, analytical skills or how his education
prepared him for the VRT position. The Commission has specifically authorized the
use of interviews in determining which eligible applicant to hire. 4 Pa. Code § 97.16.
Whether or not the job posting mentioned the importance of the interview process is



                                          10
irrelevant as Regulation 97.16 put Tedrick on notice and, quite frankly, it is merely
common sense. See Keim v. Department of Health, 543 A.2d 1261, 1265 (Pa.
Cmwlth. 1988). If we were to expand Tedrick’s argument to its logical conclusion,
there was no need for the Department to even conduct interviews because he had
more direct experience with the VRT position than the other candidates did and,
therefore, he must be selected for hire. His argument serves to create a right to
reinstatement in former Commonwealth employees, which we cannot accept.


            As to the interview question regarding iOS devices, pursuant to
Management Directive 580.19, a job posting must include a “brief job description.”
It need not include a detailed and exhaustive list of every discrete task that may be
performed by an employee in that particular job. For these reasons, we discern no
error in the Commission’s conclusion that Tedrick failed to put forth sufficient
evidence to demonstrate technical discrimination.


            Accordingly, the order of the Commission is affirmed.




                                      ________________________________
                                      DAN PELLEGRINI, Senior Judge




                                         11
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Brendan M. Tedrick,                  :
                 Petitioner          :
                                     :
            v.                       : No. 1830 C.D. 2017
                                     :
State Civil Service Commission       :
(Commonwealth of Pennsylvania,       :
Department of Labor and Industry),   :
                    Respondent       :




                                     ORDER


            AND NOW, this 7th day of December, 2018, the order of the State Civil
Service Commission in the above-captioned matter is hereby affirmed.




                                     ________________________________
                                     DAN PELLEGRINI, Senior Judge
