                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jason Waite,                                  :
                           Petitioner         :
                                              :
                     v.                       :
                                              :
State Civil Service Commission                :
(Warren State Hospital,                       :
Department of Human Services),                :      No. 1254 C.D. 2018
                        Respondent            :      Submitted: May 7, 2019

BEFORE:        HONORABLE ANNE E. COVEY, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge
               HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                   FILED: May 29, 2019

               Jason Waite (Waite) petitions this Court for review of the State Civil
Service Commission’s (SCSC) August 16, 2018 order dismissing Waite’s appeal and
sustaining Appointing Authority Warren State Hospital, Department of Human
Services’ (Authority) removal of Waite from his regular employment as a psychiatric
aide. Waite presents two issues for this Court’s review: (1) whether the SCSC erred
by finding that the Authority provided Waite with due process of law; and (2)
whether the SCSC erred by finding there was just cause for Waite’s employment
termination. After review, we affirm.


                                        Background
               On January 16, 2007, the Authority hired Waite and he remained
employed until February 1, 2014. Waite was rehired on July 21, 2014 and worked
through February 24, 2016.       On July 15, 2014, Waite completed his Employee
Emergency Information documentation, listing therein as his emergency contacts his
mother and father, who resided at 202-2 Chord Road, Corry, Pennsylvania 16407.
Waite also provided an Employee Data Sheet, wherein he stated his mailing address
was 202-2 Chord Road, Corry, Pennsylvania 16407.                     On July 16, 2015, Waite
sustained a work-related injury. He subsequently received workers’ compensation
(WC) benefits and Act 5341 benefits. Waite returned to work in February 2016 and
his WC and Act 534 benefits ceased. On November 21, 2016, Waite informed the
Authority that he believed he had sustained a recurrence of his July 16, 2015 work
injury (2016 Recurrence Claim).
               On November 22, 2016, the Authority’s Human Resource (HR)
Assistant Lori Klakamp (Klakamp) provided Waite with a toll-free telephone number
for the HR Service Center so he could officially change his address on file with HR.
Waite told Klakamp he was not concerned about changing his address since he was
still receiving the mail sent to his parents’ address. Klakamp did not change Waite’s
address on file because the Authority does not authorize the HR department to make
address changes for employees. All employees must call the HR Service Center and
make the change themselves. It is an employee’s responsibility to change his mailing
address and he can do so by telephoning the HR Service Center. The only person
authorized to change an employee’s address is the employee himself.
               The Authority scheduled an Independent Medical Examination (IME)
for Waite. On November 23, 2016, Klakamp requested that Waite’s medical care
group, Medical Group of Corry (Corry Group), complete a Return to Work Status
Report. Corry Group completed the Return to Work Status Report, declaring therein

       1
         Act of December 8, 1959, P.L. 1718, as amended, 61 P.S. §§ 951-952. “Act 534 was
enacted in order to assure those who undertook employment in certain state institutions that they
would be fully compensated in the event that they were disabled as the result of an act of a patient.”
DePaolo v. Dep’t of Pub. Welfare, 865 A.2d 299, 302 n.1 (Pa. Cmwlth. 2005).


                                                  2
that Waite could return to work with restricted duties and returned the same to
Klakamp.      However, the Authority did not honor Waite’s return to work with
restricted duties because it did not believe Waite had suffered a recurrence of his
work-related injury. Between November 21, 2016 and February 24, 2017, Waite did
not work. He was paid from his Family and Medical Leave Act2 (FMLA) and sick,
personal and family (SPF) leave, as well as his holiday and anticipated leave.
              As of February 25, 2017, Waite had exhausted his WC and Act 534
benefits and/or FMLA/SPF leave, and did not have any more accrued or anticipated
leave available. In accordance with the Authority’s policy, Waite was responsible for
knowing his available leave balance, and he was able to check it from any computer
or by calling the Authority to ask. The Authority’s Labor Relations Coordinator
Heather Heenan (Heenan)3 informed Klakamp that Waite had no more compensable
leave time.
              By letter dated March 3, 2017, mailed on March 4, 2017 (Pre-Separation
Letter), the Authority notified Waite that he was absent from work without
authorization beginning February 25, 2017. The Pre-Separation Letter ordered Waite
to report to work immediately, and directed him to contact Heenan by March 13,
2017 to explain the reason for his absences. Heenan mailed the letter by certified and
regular mail to the address Waite had listed on the Authority’s online information and
timekeeping account: 202 Chord Road, Apartment 2, Corry, Pennsylvania 16407.
The certified letter was returned to the Authority as unclaimed; however, the letter
sent by regular mail was not returned. Heenan never received a response from Waite.
              On March 5, 2017, Waite met with Registered Nurse Supervisor Joel
Odach (Odach) at the Authority and asked Odach to fax to Heenan a March 3, 2017

       2
        29 U.S.C. §§ 2601-2654.
       3
        In the Notes of Testimony July 26, 2017 (N.T.), Heenan’s name is misspelled as Heenon.
However, a review of Heenan’s signature and typewritten name confirms the correct spelling as
Heenan. See N.T. Ex. AA-6.
                                              3
document from Corry Group that stated that Waite could return to work in a limited
duty capacity (March 3, 2017 Doctor’s Note). Odach faxed the March 3, 2017
Doctor’s Note to Heenan.4 The March 3, 2017 Doctor’s Note did not indicate if the
limited duty work restrictions were similar to those Waite required after his initial
work injury; it did not explain why Waite had not been at work or why he could not
come into work; and it did not contain a return to work date.
              On March 6, 2017, the Authority mailed Waite a March 3, 2017 letter by
certified and regular mail to 202 Chord Road, Apartment 2, Corry, Pennsylvania
16407, informing him that the Commonwealth’s WC claims administrator had
reviewed his 2016 Recurrence Claim and determined that it was not compensable.
The certified letter was returned as unclaimed. The letter sent by regular mail was
never returned.
              Psychiatric Aide and Union Representative Jason Madonia (Madonia)
was in the HR office when he learned that a Pre-Disciplinary Conference (PDC)
would be scheduled for Waite. A question arose about whether the Authority had
Waite’s current mailing address. Madonia knew the address the Authority had on file
was not Waite’s current address. Madonia advised HR that Waite’s current address
on file was incorrect; however, he did not provide Waite’s current address because
although Madonia had been to Waite’s current apartment, he was not certain of
Waite’s specific mailing address.          HR asked Madonia if he could get Waite to
provide his current address.



       4
         There is a stipulation on the record that Waite asked his supervisor to fax the document to
Heenan. However, Waite’s attorney refers to “Jason Logac” as the supervisor, Notes of Testimony
July 26, 2017 (N.T.) at 85, and the Authority’s counsel refers to “Joel Odach” as the person who
faxed the document. N.T. at 86-87. The SCSC’s Adjudication refers to both names. See
Adjudication at 9. Notwithstanding, the inconsistency does not impact the Court’s analysis of the
issues before it.


                                                 4
                Madonia contacted Waite by Facebook messenger and advised him that
he may wish to update the address he had on file with the Authority.                        Waite
responded to Madonia that he was receiving his mail and it did not make sense that
the Authority needed his new mailing address. Madonia suggested to Waite that he
contact the Authority to figure out “the snag” with his address. Waite replied that the
Authority was probably just trying to lay the groundwork to terminate his
employment.
                By March 29, 2017 letter, sent by certified and regular mail to 202
Chord Road, Apartment 2, Corry, Pennsylvania 16407, the Authority notified Waite
that he was scheduled for a PDC (PDC Notification). Waite’s father, James Waite,
signed for the certified mailing. The letter sent by regular mail was not returned. On
April 5, 2017, the Authority held a PDC for Waite.                      Madonia, Heenan, the
Authority’s Nurse Manager Jeffrey Darling (Darling), and Barbara Johnson
(Johnson)5 attended the PDC. Waite did not attend his PDC, nor did he call the
Authority to participate therein. During Waite’s PDC, the panel discussed that Waite
had not communicated with the Authority since March 2017.


                                      Procedural History
                On April 13, 2017, the Authority notified Waite that his employment
was terminated for unauthorized absence and failure to report when ordered. Waite
appealed from his removal to the SCSC. The SCSC held a hearing on July 26, 2017.
On August 16, 2018, the SCSC dismissed Waite’s appeal and sustained the
Authority’s removal of Waite effective April 18, 2017.                 Waite appealed to this
Court.6 On September 28, 2018, the SCSC filed the Certified Record. On November

       5
           The record does not contain Johnson’s title only that she was on the panel to record the
PDC.
       6
         “Our scope of review is limited to a determination of whether the Commission committed
an error of law, whether there has been a violation of constitutional rights, or whether there is
                                                 5
5, 2018, Waite filed his brief and what he entitled a Supplemental Record rather than
a Reproduced Record.
              On January 2, 2019, the Authority filed an Expedited Motion to Strike
Waite’s Supplemental Record and Brief (Motion to Strike) contending: (1) the
Supplemental Record largely consisted of documents that were not admitted into the
SCSC hearing record, either because they were not offered or were deemed irrelevant
to the matter on appeal; (2) the SCSC did not admit these documents because they
pertained to the WC and Act 534 litigation rather than Waite’s removal; and (3)
Waite’s brief similarly focused on his WC and Act 534 claims and the Supplemental
Record rather than documents relevant to the Authority’s basis for terminating
Waite’s employment, i.e., time and attendance violations under the Authority’s HR
Policy 7173.7
              On January 10, 2019, Waite filed a Reply to the Authority’s Motion to
Strike. By January 16, 2019 order (Order), this Court granted the Motion to Strike.
Specifically, the Court directed: the “supplemental record is stricken[,]” and Waite
“shall file an amended brief . . . removing all references to documents not
appearing in the certified record.” Order (emphasis added). On January 28, 2019,
Waite filed his amended brief; however, it is virtually identical to his original brief
with the exception of deleting all Supplemental Record citations. However, the
references to the documents not included in the certified record remained in Waite’s
brief.




substantial evidence to support the findings of fact necessary to support the adjudication.” Norvell
v. State Civil Serv. Comm’n, 11 A.3d 1058, 1061-62 (Pa. Cmwlth. 2011).
        7
          HR Policy 7173 controls absenteeism and time and sick leave abuse. See N.T. Ex. AA-10.
                                                 6
                                         Discussion
              Waite first argues that the SCSC erred by finding that the Authority
afforded him due process. Initially, the United States Supreme Court declared:

              The essential requirements of due process . . . are notice and
              an opportunity to respond. The opportunity to present
              reasons, either in person or in writing, why proposed action
              should not be taken is a fundamental due process
              requirement. The tenured public employee is entitled to
              oral or written notice of the charges against him, an
              explanation of the employer’s evidence, and an opportunity
              to present his side of the story. To require more than this
              prior to termination would intrude to an unwarranted extent
              on the government’s interest in quickly removing an
              unsatisfactory employee.

Cleveland v. Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985) (citations omitted).
              Essentially, Waite asserts that despite Madonia’s knowledge that Waite’s
listed address was incorrect and that the March 3, 2017 Doctor’s Note contained
Waite’s correct address, he did not receive his PDC Notification and, thus, no due
process.8 The Authority rejoins that since Waite was notified of the PDC but chose
not to attend, he nevertheless received due process.

              It is well settled that the [SCSC] has the inherent power to
              determine the credibility of witnesses and the value of their
              testimony. . . . In making its findings, the [SCSC] must
              base the findings upon substantial evidence. Substantial
              evidence is such relevant evidence as a reasonable mind
              might accept as adequate to support the conclusion.

McAndrew v. State Civil Serv. Comm’n (Dep’t of Cmty. & Econ. Dev.), 736 A.2d 26,
31 (Pa. Cmwlth. 1999) (citations omitted). Here, the SCSC expressly determined:



       8
          This Court has not relied upon the extra-record documents or Waite’s arguments related
thereto, but rather addresses only those arguments Waite was permitted to include in his amended
brief.


                                               7
            [W]e find [Waite’s] testimony not credible that he did not
            receive his PDC Noti[fication]. The [SCSC] fully believes
            [Waite] was aware of his PDC date and time, but chose not
            to attend.
            [Waite’s] own conduct prevented him from presenting his
            evidence to the PDC panel. Therefore, he cannot now base
            a denial of due process claim on his own decision not to
            attend.

SCSC Adjudication at 25.
            At the outset, the Authority’s Rules, Regulations, and Expectations
provide, in relevant part: “As a condition of employment, current address and
telephone numbers must be on file in the HR Office and your work unit. You are
required to provide changes in name, home address, and telephone number to the HR
Office promptly.” Notes of Testimony July 26, 2017 (N.T.) Ex. AA-15 at 3 ¶ 23.
            With respect to Waite’s address, he testified:
            Q. [] Waite, your testimony is that at one point in time you
            lived at 202 Chord Road in Corry, Pennsylvania?
            Correct?
            A. Correct.
            Q. And then you moved to an address of 706, and I can’t
            say it, Conewango Avenue?
            A. You did good.
            Q. Is that right?
            A. That is right.
            ....
            Q. And that was in July of 2016?
            A. Yes.
            Q. All right.



                                          8
            And in – after July of 2016 when did you move back to the
            202 Chord Road address?
            A. About three weeks ago.
            Q. While you were living at the 706 Conewango Avenue
            address, who was living at 202 Chord Road?
            A. My parents.
            Q. And they are who?
            A. James and Deanna Waite.
            Q. All right.
            And they are the same people listed in the documentation as
            your emergency contact people?
            A. Yes.
            Q. And they are the same – well, your father is the same
            person who is listed on a couple of those certified mail
            receipts that were signed for your mail?
            Correct?
            A. Correct.
            Q. Did you ever talk with him about that?
            A. Every time they got mail for me, they forwarded it
            down to me. So there was a point in March that I lost use
            of my phone, because I didn’t have money to pay my bills.
            So physically talking to anybody was out of the question.
            But they would always send me my mail.

N.T. at 320-322 (emphasis added). This testimony is corroborated by Klakamp’s and
Madonia’s testimony. Klakamp related that, on November 22, 2016, she told Waite,
“in order to make an official change of address that he needed to contact the HR
[S]ervice [C]enter . . . [a]nd [she] provided him the telephone number[.]” N.T. at 75.
Waite responded that “he really was not worried about not receiving his mail because
this was his parents’ address.” Id. Klakamp “encouraged him to call as soon as


                                          9
possible because . . . this is the address that would be used until he did update his
address.” Id.
            Madonia similarly reported that he had contacted Waite through
Facebook messenger to advise him to update his address. He further testified:

            Q. In that same message, did you mention anything at all
            about the PDC that was going to occur on April 5th of 2017?
            ....
            A. I honestly don’t recall whether it was direct or kind of
            beating around that he may want to look out for something
            in the mail as far as a PDC goes. I was trying to, I guess,
            basically use the information I had to try and be a good
            friend to, you know—I don’t know, try and do the right
            thing I guess.
N.T. at 21-22. Madonia continued:
            [Waite] had said that he was getting his mail so that
            didn’t make sense. And then after I had kind of pressed the
            issue, saying it that he might want to figure out what the
            snag[] is he had then commented, well, they’re probably
            just trying to lay the ground work to terminate me.

N.T. at 23-24 (emphasis added).
            The above testimony, coupled with the stipulation that Waite had the
March 3, 2017 Doctor’s Note faxed to Heenan immediately after the Pre-Separation
Letter was sent to Waite, see N.T. at 86-87, Waite’s father signed the receipt for the
PDC Notification, see N.T. Ex. AA-10 at 3, and all correspondence was sent to the
address Waite provided the Authority as his mailing address, constitute substantial
evidence supporting the SCSC’s finding that Waite was aware of his PDC’s date and
time, but chose not to attend. Because the Authority gave Waite “notice and an
opportunity to respond,” he was afforded all the process he was due. Loudermill, 470
U.S. at 546. Accordingly, the SCSC properly determined that the Authority provided
Waite due process.

                                         10
               Waite next argues that the SCSC erred by finding that there was just
cause for his discharge.

               Section 807 of the Civil Service Act [(Act)9] provides ‘[n]o
               regular employe in the classified service shall be removed
               except for just cause.’ 71 P.S. § 741.807. The Act does not
               define ‘just cause.’ The Court has explained that ‘just cause
               for removal is largely a matter of discretion on the part of
               the head of the department.’ Perry v. State Civil Serv[.]
               Comm[’n] (Dep[’t] of Labor [&] Industry), 38 A.3d 942,
               951 (Pa. Cmwlth. 2011). However, ‘just cause ‘must be
               merit-related and the criteria must touch upon [the
               employee’s] competency and ability in some rational
               and logical manner.’’ Wei v. State Civil Serv[.] Comm[’n]
               (Dep[’t] of Health), 961 A.2d 254, 259 (Pa. Cmwlth. 2008)
               (quoting Galant v. Dep[’t] of Env[tl.] Res[.], . . . 626 A.2d
               496, 498 n. 2 ([Pa.] 1993)). Further, to be sufficient, it
               ‘should be personal to the employee’ and render him unfit
               for his job, ‘making dismissal justifiable and for the good of
               the service.’ Perry, 38 A.3d at 951. . . . ‘Whether the
               actions of a civil service employee constitute just cause for
               removal is a question of law fully reviewable by this Court.’
               Perry, 38 A.3d at 951.

Szablowski v. State Civil Serv. Comm’n (Pa. Liquor Control Bd.), 76 A.3d 590, 597
(Pa. Cmwlth. 2013) (emphasis added; footnote omitted). “It is beyond question that,
in order to do one’s duties, one must be available for work.” Zielinski v. Luzerne Cty.
Assistance Office, Dep’t of Pub. Welfare, 528 A.2d 1028, 1029 (Pa. Cmwlth. 1987).
“The Commonwealth has the right to have employees present at work to perform
needed services. See Section 2 of the Act, 71 P.S. § 741.2 ([I]t is the purpose of the
Act to promote greater efficiency and economy in the administration of
government).” Zielinski, 528 A.2d at 1029.
               Waite contends that the Pre-Separation Letter stated that he was being
investigated for unauthorized time off from work and that he was to report to work or,

      9
          Act of August 5, 1941, P.L. 752, as amended, 71 P.S. §§ 741.1-741.1005.


                                                11
if he is unable to do so, to contact Heenan to explain his absences by March 13, 2017.
Waite asserts that since he faxed the March 3, 2017 Doctor’s Note on March 5, 2017
explaining the reason for his absence, the Authority lacked just cause for his removal.
The Authority rejoins that it had just cause for Waite’s removal because he violated
the Authority’s HR Policy 7173 governing time and attendance.
                 HR Policy 7173 provides in relevant part:

                 A.     General Policy
                 All employees are hired to provide full-time services for
                 their scheduled workday. Absenteeism and time abuse
                 effect everyone negatively, resulting in staff shortages,
                 increased costs, use of overtime, reduction in services, and
                 poor morale. Each employee is accountable for personal
                 attendance, and managers and supervisors are to maintain
                 an efficient program to control time abuse, absenteeism,
                 facilitate acceptable levels of attendance and ensure that all
                 time away for [sic] the job is accounted for in SAP[10] when
                 not business related. The [Authority] has a critical interest
                 in seeing that employees are in attendance as scheduled,
                 unless utilizing their leave entitlements in an appropriate,
                 authorized fashion.

N.T. Ex. AA-11 at 3 (Section 7173.2) (emphasis added). HR Policy 7173 mandates
relative to discipline:

                 1. Each supervisor/manager shall notify the [HR]
                    Officer/Labor Relations Coordinator on the morning of
                    the second day of absence from work of any employee
                    absent without authorization or notification.
                 2. A certified letter must be mailed to the absent employee
                    that will advise them of his/her current status, reporting
                    requirements, and penalties for failure to do so (see
                    sample letter).[11] Removals that occur under these
                    circumstances are based upon unauthorized, unreported
                    absences and a failure to report to work as ordered.


       10
            SAP is not defined in the record.
       11
            The sample letter is identical to the Pre-Separation Letter sent to Waite on March 3, 2017.
                                                   12
N.T. Ex. AA-11 at 12 (Section 7173.5(F)). Further, HR Policy 7173 states: “If an
employee fails to comply with the conditions outlined in the Pre-Separation Letter[,] .
. . the employee will be discharged. NOTE: Employees who are physically unable to
report to work should not be ordered to do so.” Id. (Section 7173.5(E)(2)).
                Waite’s Pre-Separation Letter stated, in relevant part:

                You have been absent from work without authorization
                beginning February 25, 2017 and continue to be carried in
                an unauthorized status.
                You are hereby ordered to report to work immediately. If
                you believe you are unable to do so, you are ordered to
                contact [] Heenan at (814) 726-4220 by March 13, 2017, to
                explain the reason for your absences. Such explanation
                must be supported by satisfactory documentation.
                Failure to report to work as ordered and to contact []
                Heenan as ordered, or provide an acceptable reason and
                satisfactory documentation for your absences will result in
                disciplinary action up to and including discharge from
                employment.

N.T. Ex. AA-4 at 1.
                Presumably, because he received the Pre-Separation Letter,12 Waite had
Odach fax the March 3, 2017 Doctor’s Note to Heenan. However, the Pre-Separation
Letter declared in its entirety: “[Waite] is currently unable to return to work. He is
unable to lift greater than ten pounds, push, pull, carry items heavier than 10 pounds,
climb, bend or squat.” N.T. Ex. AP-3. However, under Section 7173.2(B) of HR
Policy 7173:

            1. Unauthorized Absence
                ....
                b. Employee does not have time to cover absence and is
                ineligible for any other paid or unpaid leave. NOTE: In

      12
           Waite denies receiving said letter.
                                                 13
             such cases, a doctor’s certificate should not be required
             as such a request would imply that some form of leave
             will be approved to cover the absence.

N.T. Ex. AA-11 at 3 (Section 7173.2(B)) (emphasis added). Based on the above
provision, Heenan testified that a doctor’s note is not acceptable as proof of inability
to work because “if the employee has exhausted all form[s] of leave [to] which they
are entitled . . . their absence cannot be approved.” N.T. at 202.
             Waite was ordered to report to work or to contact Heenan to explain the
reason for his absences. He did neither. Rather, he sent a doctor’s note severely
lacking in information. Although the note provided that Waite “was unable to return
to work[,]” it listed work restrictions as opposed to a beginning and end date for an
inability to work. N.T. Ex. AP-3. Based upon Waite’s failure to report to work or
contact Heenan, the Authority sent Waite the PDC Notification.                The PDC
Notification provided:

             This is to advise you an investigation is presently being
             conducted into the following allegations concerning your
             conduct as an employee of this organization.
               Details: violation of DHS [HR] Policy 7173,
               Unauthorized Absence and Failure to Report to
               Work as Ordered. Specifically, you failed to return
               to work or to contact [] Heenan by March 13, 2017
               to explain the reason for your absences.
             A [PDC] has been scheduled for Wednesday, April 5,
             2017, at 10:00 hours in Room 117, Labor Relations
             office; South Center Building or by phone at 814-726-
             4220. The purpose of the conference is to afford you an
             opportunity to answer the allegations. The nature of the
             evidence in support of the allegations will be described to
             you at that time. You will, at your request, be allowed
             union representation at the meeting.
             Discipline may or may not be imposed, depending on the
             facts gathered during the investigation. You will be
             notified, in writing, as soon as possible of the final outcome

                                           14
            of the investigation whether or not disciplinary action is
            taken.
            Should you choose not to attend this conference, decisions
            concerning appropriate action that may be warranted will be
            made based on the information available.
            If you have any questions concerning this matter, contact
            [Heenan] at extension 4220.

N.T. Ex. AA-6 (emphasis in original). Waite did not attend his PDC and was, thus,
removed for his unauthorized absence and failure to return to work as ordered. The
above exhibits, coupled with Heenan’s testimony constitutes substantial evidence of
just cause for Waite’s removal. Accordingly, the SCSC properly determined that the
Authority had just cause to terminate Waite’s employment.
            For all of the above reasons, the SCSC’s order is affirmed.



                                     ___________________________
                                     ANNE E. COVEY, Judge




                                         15
               IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jason Waite,                               :
                         Petitioner        :
                                           :
                    v.                     :
                                           :
State Civil Service Commission             :
(Warren State Hospital,                    :
Department of Human Services),             :      No. 1254 C.D. 2018
                        Respondent         :


                                      ORDER

               AND NOW, this 29th day of May, 2019, the State Civil Service
Commission’s August 16, 2018 order is affirmed.



                                      ___________________________
                                      ANNE E. COVEY, Judge
