         IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sandra L. Tate-Burns,                   :
                                        : No. 1304 C.D. 2015
                         Petitioner     : Submitted: June 3, 2016
                                        :
                  v.                    :
                                        :
State Civil Service Commission          :
(Erie County Office of Children         :
and Youth),                             :
                                        :
                         Respondent     :


BEFORE:     HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE MICHAEL H. WOJCIK, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE WOJCIK                                    FILED: November 10, 2016

            Sandra L. Tate-Burns (Petitioner), pro se, petitions for review of an
order of the State Civil Service Commission (Commission) dismissing her appeal
of a one-day disciplinary suspension from employment with the Erie County
Office of Children and Youth (Appointing Authority). Petitioner contends that the
Appointing Authority did not establish good cause and her suspension was based
on discriminatory reasons. Discerning no error, we affirm.
            Petitioner is employed as a County Caseworker 2 by the Appointing
Authority, where she has worked for the last 24 years. By letter dated May 30,
2014, the Appointing Authority notified Petitioner that it was suspending her for
one day from her position for “failure to follow through with . . . directives and
procedure regarding Attendance on Demand,” which “caused additional work for
other county employees.” Commission Adjudication, 5/26/15, Findings of Fact
(F.F.) No. 1; Certified Record (C.R.), Commission Exhibit A.
               Petitioner appealed the one-day suspension to the Commission. She
alleged her suspension was without adequate justification under Section 803 of the
Civil Service Act (Act).1 She claimed her suspension was the result of prohibited
race and age discrimination in violation of Section 905.1 of the Act.2
               Hearings were held before a Commission hearing officer.3 The issues
before the hearing officer were whether the Appointing Authority demonstrated
good cause to impose a one-day suspension on Petitioner for not following its time
and attendance procedures and whether it suspended Petitioner for discriminatory
reasons. In support of the disciplinary action, the Appointing Authority presented
the testimony of Petitioner’s immediate supervisor, Shatoia Carroll (Supervisor),
and its Administrator of Clinical Ongoing Services, Mary Jo Cline (Administrator).
Petitioner testified on her own behalf.
               With regard to whether the Appointing Authority demonstrated good
cause for the suspension, the Commission found that in Petitioner’s 2011, 2012,
and 2013 annual reviews, the Appointing Authority rated her performance as
“needs improvement.” F.F. No. 10. In September 2013, the Appointing Authority
changed Petitioner’s supervisor to Supervisor because she is highly organized and
the Appointing Authority believed she could help Petitioner catch up on her work.
In July 2013 and November 2013, the Appointing Authority provided Petitioner


      1
          Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §741.803.

      2
          Added by the Act of August 27, 1963, P.L. 1257, 71 P.S. §741.905a.

      3
          Petitioner was represented by counsel in the proceedings before the Commission.


                                               2
with corrective action plans to help her bring her paperwork up to date. Thereafter,
the Appointing Authority reduced her caseload from 13 cases to 9. At the time, the
average caseload for caseworkers was 13. F.F. Nos. 8, 10-12.
               In 2014, the Appointing Authority formally warned Petitioner for not
following its policies and directives.      Specifically, on February 3, 2014, the
Appointing Authority issued Petitioner a first level disciplinary warning for:

               Not following through with agency policy for case note
               documentation and poor casework practice, specifically,
               not returning phone calls, not responding to emails,
               missing scheduled home visits and meetings, and not
               satisfying requests for documentation on your cases. The
               Case Note Documentation Policy states that all contacts
               need to be documented in CAPS within five business
               days of the contact date. You failed to do this on four of
               your eight cases. The CAPS notes on these cases were
               entered 11 to 14 days after the contact dates. It is
               important to follow agency policies and demonstrate
               acceptable casework practice. Not following this policy
               and poor casework practice could jeopardize children's
               safety.
F.F. No. 13. In March 2014, the Appointing Authority issued a second level
disciplinary warning for:

               Agency policy, directives from a Supervisor, and,
               specifically, not satisfying requests for documentation,
               delaying permanency for children on your case, the
               inability to prioritize, and ineffective communication. It
               is important to follow State Regulations [and] agency
               policies and demonstrate acceptable casework practice.
               Not following these regulations [and] policies and poor
               casework practice could jeopardize children's safety.
F.F. No. 15.
               Then, in May 2014, the Appointing Authority issued third level
discipline in the form of a one-day suspension because Petitioner again did not

                                           3
follow its directives and procedures. This time, the policy pertained to time and
attendance and the utilization of a new software program, known as Attendance on
Demand (AOD).        In 2012, the Appointing Authority implemented the AOD
program to track employee time and attendance. It expected employees to use the
software to punch in and punch out, request leave, and request overtime approval
before working overtime. The Appointing Authority provided employees with
written instructions, and it offered them training for the program.           However,
Petitioner did not use the AOD program to punch in or out; she did not submit her
timecard for approval; she worked overtime without permission; and, she did not
reconcile leave time and work time. Her noncompliance caused additional work
for other employees. F.F. Nos. 1, 16-19.
             With regard to Petitioner’s claims that her suspension was motivated
by discrimination and retaliation, the Commission found that Petitioner and
Supervisor are both African-American.4 Petitioner testified that she and Supervisor
had a disagreement over court summaries. Petitioner was supposed to submit a
draft court summary to Supervisor by October 31, 2013, which was due in court by
November 4, 2013.        She did not submit the draft until November 7, 2013.
Petitioner was on leave until January 2014. Consequently, Supervisor revised her
draft, made inaccurate changes, and submitted it to the court. Petitioner objected
to the changes made. On February 5, 2014, Petitioner complained to Administrator
and accused Supervisor of making false statements and exaggerations.                 She
requested reassignment to a new supervisor. She received her first level discipline
around that same time. F.F. Nos. 4, 6, 20-36.

      4
        Petitioner disputes Supervisor’s ethnicity claiming she is biracial, not African-
American. See F.F. 6 n.1; Petitioner’s Brief at 11; Notes of Testimony, 9/29/14, at 127.


                                           4
             Ultimately, the Commission found the testimony of Supervisor and
Administrator credible. The Commission found the Appointing Authority met its
burden of showing that Petitioner failed to follow its time and attendance
procedures. Her failure to comply hampered and frustrated the execution of her
duties and thus provided good cause for her one-day suspension. Commission
Adjudication at 18, 19.
             With regard to Petitioner’s discrimination claims, the Commission
found Claimant did not meet her burden of establishing discrimination. Claimant
testified she is African-American, but she did not offer any testimony regarding her
age. She did not testify regarding her time and attendance. She did not offer any
evidence showing that the Appointing Authority treated her differently by
suspending her for failure to comply with the time and attendance procedures from
any other employee who did not comply. Commission Adjudication at 20-21.
             Insofar as Petitioner asserted her suspension was in retaliation for her
objections to Supervisor’s changes to the court summary, the Commission
determined she proved a prima facie case.         Petitioner produced evidence, if
believed, that Supervisor improperly changed her court summary, and Petitioner
complained about it to Administrator. Petitioner testified the first level discipline
was the first she received in 24 years and it was issued shortly after she complained
to Administrator about Supervisor.      Although Petitioner’s evidence was “not
overwhelming,” the Commission found that it was “enough to meet her burden of
establishing a prima facie case of discrimination.” Commission’s Adjudication at
21.
             Notwithstanding, the Commission found the Appointing Authority
met its burden of proving a legitimate, nondiscriminatory reason for its suspension.


                                         5
Based on the credible testimony of the Appointing Authority’s witnesses, the
Commission found the Appointing Authority’s decision to suspend Petitioner did
not represent retaliation in response to her complaint about Supervisor regarding
the court summary. The Commission explained that while Petitioner may have
received her first discipline on February 3, 2014, she received a rating of “needs
improvement” on her annual review for the previous three years. In 2013, the
Appointing Authority assigned Supervisor to oversee Petitioner to help her with
her caseload. Although Administrator acknowledged Petitioner requested a change
in supervisor on February 5, 2014, Administrator credibly denied that Petitioner
complained to her about Supervisor’s amendment to her court summary.
Moreover, the Commission found the sequence of events supported discipline
related to her work, and not her objections to Supervisor’s corrections. Insofar as
Petitioner’s testimony differed from Appointing Authority’s witnesses, the
Commission found the latter more credible.
              Based on the credited evidence, the Commission concluded the
Appointing      Authority     suspended      Petitioner    solely    for    the   legitimate,
nondiscriminatory reason that she failed to comply with its time and attendance
procedures. Accordingly, the Commission dismissed Petitioner’s appeal.
              Petitioner now petitions this Court for review.5 Petitioner raises two
issues.    First, she contends the Commission erred because the record lacks
evidence supporting good cause for her suspension.               Second, she asserts that


       5
        Our review of Civil Service Commission adjudications is limited to a determination of
whether constitutional rights have been violated, whether errors of law have been committed, or
whether the findings of the agency are supported by substantial evidence. Section 704 of the
Administrative Agency Law, 2 Pa. C.S. §704; Woods v. State Civil Service Commission,
912 A.2d 803, 808 (Pa. 2006).


                                              6
evidence supports her claim that the Appointing Authority suspended her for
discriminatory reasons.


                                   1. Good cause
             In civil service cases, the Commission is the sole finder of fact. Perry
v. State Civil Service Commission (Department of Labor and Industry), 38 A.3d
942, 948 (Pa. Cmwlth. 2011). “As such, determinations as to witness credibility
and resolution of evidentiary conflicts are within the Commission's sole province
. . . .” Id. This Court will not reweigh the evidence or substitute judgment. Id.
When reviewing a Commission decision, we view the evidence, and all reasonable
inferences arising from the evidence, in a light most favorable to the prevailing
party. Id.
             We first examine Petitioner’s claims that Appointing Authority lacked
good cause for the suspension. Section 803 of the Act provides that a disciplinary
suspension without pay of a classified employee in the civil service must be for
“good cause.”      71 P.S. §741.803.   It is the appointing authority’s burden of
showing that the employee was suspended for good cause. Hargrove v. State Civil
Service Commission, 851 A.2d 257, 260 (Pa. Cmwlth. 2004); Shade v. State Civil
Service Commission (Department of Transportation), 749 A.2d 1054, 1057
(Pa. Cmwlth.), appeal denied, 764 A.2d 52 (Pa. 2000).
             Although the Act does not define the term “good cause,” the attendant
regulations offer guidelines as to what constitutes good cause. Woods v. State Civil
Service Commission, 912 A.2d 803, 810 (Pa. 2006). Specifically, Section 101.21
of the Commission’s regulations provides that good cause for suspension includes:

             (1)    Insubordination.
             (2)    Habitual lateness in reporting for work.
                                          7
                (3)    Misconduct amounting to violation of law, rule or
                       lawful and reasonable Departmental orders.
                (4)    Intoxication while on duty.
                (5)    Conduct either on or off duty which may bring the
                       service of the Commonwealth into disrepute.
                (6)    Similar substantial reasons.
4 Pa. Code §101.21; accord Salvati v. Department of Public Welfare, 474 A.2d
399, 401 (Pa. Cmwlth. 1984).
                In addition, this Court has held that “good cause” must relate to an
“employee's competence and ability to perform his or her job duties,” or “must
result from conduct that hampers or frustrates the execution of the employee's
duties.”      Bruggeman v. State Civil Service Commission (Department of
Corrections, SCI–Huntingdon), 769 A.2d 549, 553 (Pa. Cmwlth. 2001) (citations
omitted); Shade, 749 A.2d at 1057. “[T]he criteria must be job related and in some
rational and logical manner touch upon competence and ability.” Shade, 749 A.2d
at 1057. However, “[n]o person shall be suspended because of race, gender,
religion or political, partisan or labor union affiliation.” 71 P.S. §741.803.
                Here, the Commission found that the Appointing Authority
established its record and timekeeping policy and that Petitioner did not follow this
policy on multiple occasions. It also found that Appointing Authority previously
warned Petitioner about not following its directives and policies.                       The
Commission’s findings are supported by substantial evidence.                    Administrator
testified the Appointing Authority implemented AOD in 2012, provided
instructions on the program and offered training to all employees, including
Petitioner.     Commission Hearings, 8/12/14 and 9/29/14,6 Notes of Testimony



      6
          The pagination reflects the combined transcripts for both hearings.


                                                 8
(N.T.) at 16, 18. Administrator testified regarding an employee’s responsibilities
under AOD:

                They need to punch in and punch out daily. They need to
                submit requests for time off, comp time, personal leave,
                sick time, vacation, whatever time that may be. If they
                need to work overtime, they need to let their supervisor
                know to get a prior approval for that.
Id. at 18-19.
                Supervisor testified Petitioner was aware of the AOD program and she
did not exhibit any difficulties using the program after implementation. N.T. at 73.
However, in 2013, issues arose. Id. Supervisor described the following problems:

                I was having issues with her requesting time off, letting
                me know how she wanted overtime, either comp or paid
                overtime. I was having issues with her working overtime
                without permission. I was having issues with her
                punching in and punching out. I was having issues with
                her submitting AOD timecard or approving it in a timely
                manner. I was also having issues with her requesting
                days off and vacation days.
Id. at 74-75. She explained that Petitioner:

                would request a day off, and come into work and work,
                and not punch out so they [sic] would look like a
                vacation day, where she’s actually in the office. And then
                she wouldn’t reconcile her AOD with me, so I had no
                way to really show, you know, were you at work or were
                you not at work.
Id. at 75. Supervisor testified these issues caused additional work for her. Id.
                The Appointing Authority suspended Petitioner for one day without
pay as part of its progressive discipline policy. Administrator testified that, prior to
this suspension, the Appointing Authority had other issues with Petitioner. N.T. at
24. In February 2014 and March 2014, Appointing Authority issued first and

                                            9
second level disciplinary warnings for not following agency policies and
directives. C.R., Appointing Authority Exhibit 3. Prior to that, in 2013, the
Appointing Authority issued two corrective action plans because Petitioner fell
behind on her paperwork. N.T. at 23, 53-54. In the 2011, 2012, and 2013 annual
reviews, Appointing Authority rated Petitioner’s performance as “needs
improvement.” N.T. at 25; see id. at 58. Although the merit of the prior discipline
was not subject to review at the hearing, it showed the Appointing Authority
followed the standard, progressive procedure by issuing a one-day suspension for
the third violation.
             Petitioner did not deny or otherwise defend her noncompliance with
the record and timekeeping policy on the AOD system. Petitioner’s failure to
follow the record and time policy clearly related to her ability and competence to
perform her job duties. Upon review, the Appointing Authority met its burden of
proving good cause for suspending Petitioner.


                                2. Discrimination
             Next we turn to Petitioner’s claim of discrimination. Section 905.1 of
the Act provides, in relevant part, that “[n]o officer or employe of the
Commonwealth shall discriminate against any person in ... retention or any other
personnel action with respect to classified service because of ... race ... or other
non-merit factors.” 71 P.S. §741.905a. An employee asserting discrimination
under the Act must present some affirmative evidence in support of that allegation,
and the Commission may not infer discrimination. Bruggeman, 769 A.2d at 553.
When claiming disparate treatment, the employee must demonstrate that she was
treated differently than other employees similarly situated. Id. If the employee


                                        10
meets this burden, “the employer must demonstrate a non-discriminatory reason
for its conduct.” State Correctional Institution at Pittsburgh v. Weaver, 606 A.2d
547, 549 (Pa. Cmwlth. 1992).
              Here, with respect to age discrimination, Petitioner did not offer any
evidence regarding her age. As for her claims of racial discrimination, Petitioner is
African-American, but so too is the Supervisor who issued the suspension.
Significantly, Petitioner offered no evidence that Appointing Authority treated her
differently than any other employee who did not comply with the AOD procedures.
Although the Commission found Petitioner met a prima facie case based on the
fact that her suspension occurred close in time to her disagreement with Supervisor
over the court summary, as discussed above, the Commission found the
Appointing Authority demonstrated nondiscriminatory, good cause reason for the
suspension.    Reviewing the record in light of the Commission's credibility
determinations, we conclude that the Commission did not err in concluding the
suspension was for the legitimate, nondiscriminatory reason that Petitioner violated
its directives and procedures regarding AOD.
              Accordingly, we affirm.




                                        MICHAEL H. WOJCIK, Judge




                                         11
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Sandra L. Tate-Burns,                   :
                                        : No. 1304 C.D. 2015
                        Petitioner      :
                                        :
                  v.                    :
                                        :
State Civil Service Commission          :
(Erie County Office of Children         :
and Youth),                             :
                                        :
                        Respondent      :

                                     ORDER


            AND NOW, this 10th day of November, 2016, the order of the State
Civil Service Commission, dated May 26, 2015, is AFFIRMED.




                                      __________________________________
                                      MICHAEL H. WOJCIK, Judge
